author:
Storrs, J.
      Waite, J.

text:
    Foot vs. The New Haven and Northampton Company and others.
    In an action for diverting, upon tha.nlaintiff’s land, the water of a canal, located on the adjoining land of where it appeared, that it was so diverted by means of a culvert, built by the defendants, on "'Tilili r djn:"”Vc land, it was held that the plaintiff might recover for the damages occasioned to him thereby, notwithstanding the grantor of the plaintiff consented, by parol, to the building of the culvert, and the consequent diversion of said water.
    Such a license is void, under the statute of frauds, as the grant of an easement, or incorporeal hereditament, because it is not in writing, and, as a mere authority or license, was revocable by the plaintiff’s grantor, during his ownership of the land, and, if it did not cease on his conveyance of it to the plaintiff, was revocable by the latter afterwards; and this, although such grantor verbally requested the defendants to build, and assisted them in building, said culvert, and agreed to save them harmless from all damages occasioned thereby, such act, of the plaintiff having no greater effect than a parol license.
    If, however, the building of the culvert had been the act of such grantor, it seems that he would have no right to require the defendants to prevent it from diverting the water upon his, land, and could therefore maintain no action against the defendants for not doing so.
    The defendants, being a railroad company, and empowered by their charter to acquire the right, for the construction of their road, of diverting the water of said canal upon the plaintiff’s land, by taking the steps prescribed by the charter for that purpose, and not having taken such steps, did not acquire such right, by such acts, and verbal arrangement between them, and the plaintiff’s grantor.

      This was an action on the case, brought by Enos Foot, against the New Haven and Northampton company, Henry Ives, Charles Brockett and Arba Dickerman, for diverting the water, of what was formerly the Farmington canal, upon the land of the plaintiff.
    The New Haven and Northampton company were incorporated, in May, 1836, and are the successors of the corporation estabished by the general assembly, by the name of the president, directors and company of the Farmington canal. In May, 1846, said New Haven and Northampton company were empowered to construct a railroad, on, or near the line of the Farmington canal, from a point in the city of New Haven, to the north line of this state, with power to enter upon, and use all such land and real estate, as might be necessary for that purpose, provided such land was appropriated, and compensation made therefor in the manner prescribed.
    The cause was tried before the jury at the term of the superior court, holden at New Haven, in February, 1854.
    On the trial, the plaintiff claimed title to the premises described in his declaration, by deed, dated January-, 1849, from his father, Uriah Foot, who died in August, 1849.
    The acts of the legislature of this state, incorporating the Farmington canal company, the New Haven and Northampton company, and the several acts relating to the charters of said companies, were offered in evidence, and made part of the case; but as they appear among the private acts of the state of Connecticut, published by authority of the general assembly, a detailed statement of their provisions is unnecessary.
    It was proved and admitted, that the diversion of the waters of what formerly constituted part of the Farmington canal, complained of in the plaintiff’s declaration, and the injury proved, whatever it was, were effected by a brick culvert., erected in February, 1848, running under the railroad of the New Haven and Northampton company, and the turnpike of the Cheshire turnpike company, no part of which was constructed on the plaintiff’s land.
    The defendants offered evidence to prove, and claimed, that they had proved, that said culvert was a permanent and expensive structure, about seventy feet in length, and of about six feet span, erected and built by the New Haven and Northampton company, in the construction of their railroad, under their charter; that the same was erected and built by them, opposite to the plaintiff’s premises, where it now remains, at the express solicitation and request of said Uriah Foot, the tlien owner of said premises, who desired to have the same there placed, for the irrigation of his adjacent land; that said Uriah Foot cooperated and assisted in the erection of said culvert, and agreed with said company, for himself and his heirs, forever, to take care of the waters so diverted, and to guarantee said company against damage therefrom; and that said company would have diverted said water at a point above the plaintiff’s said land, where, as they claimed, they had acquired a right to discharge said waters, but for the request and agreements aforesaid of the said Uriah.
    The defendants claimed, that, if the facts were as claimed by them, they were not, any of them, liable to the plaintiff in damages for the necessary, natural and foreseen effects, resulting from the erection of said culvert, and requested the court to charge the jury, in conformity to said claim.
    The plaintiff claimed that, as the requests and agreements of the said Uriah Foot, claimed by the defendants, rested solely on parol evidence, they constituted a mere parol license which was revoked by his death, and also by express notice to that effect, by the plaintiff, personally, to each of the defendants, since his father’s decease; which notice was admitted: and that he was entitled to recover, from each of the defendants, whatever damages had accrued to him, by means of said diversion, since the revocation aforesaid. The plaintiff requested the court, to charge the jury in accordance with his claims.
    The court did not charge the jury as requested by the plaintiff, but did, pro forma, charge them in conformity to the claims of the defendants.
    The jury having returned a verdict for all the defendants, the plaintiff filed a motion for a new trial.

      R, 1. and C. R. Ingersoll, in support of the motion, contended,
    1. That the right, set up against the plaintiff, under parol authority from his grantor, is a perpetual, assignable, indefeasible right to use the land of the plaintiff, without compensation, for the discharge and passage of a large body of water, at the convenience of the party controlling its flow; a claim in direct conflict with the statute of frauds, which requires all “ contracts for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, to be in writing.” In its strictest sense, it is a claim for an easement upon the plaintiff’s land, which is not only a “ hereditament” within the statute, but, at common law, could only be created by <( deed, devise, or record.” Angell on Water Courses, § 168, et seq.

    2. That the parol authority, claimed to have been given to the New Haven and Northampton company, by the plaintiff’s grantor, cannot avail the defendants in the present action, as a license.
    The general principle, that a license is a personal privilege, not assignable, countermandable at the will,'and determinable by the death of the licenser, is undeniable. (1.) The fact, that the culvert through which the diversion is made, is “ a permanent and expensive structure,” and was built at the request of the licenser, does not except the case from this general principle.
    The authorities, both in Great Britain, and in this country, are now uniform to the effect that aright, “ concerning lands,” like that claimed by the defendants, cannot be created by any parol authority, or in any way except by deed.
    This doctrine was finally established in England, by the case of Wood v. Leadbitter, 13 M. & W., 838. See also Hewlins v. Shippam, 5 B. & C., 221, (11 E. C. L., 207.) Taplin v. Florence, 70 E. C. L., 760. 1 Sugden on Vendors, 9 L. Prince v. Case, 10 Conn. R., 381. Bridges v. Purcell, 1 Dev. & Bat., 493. Miller v. Auburn & Syracuse R. R. Co., 6 Hill, 62. Brown v. Woodworth, 5 Barb., 550. Houghtaling v. Houghtaling, 5 Barb., 379. Mumford v. Whitney, 15 Wend., 380. Stevens v. Stevens, 11 Metc., 251. (2.) Whatever question there may have been, as to the effect of an executed license between the original parties, such a license as that here claimed has, in no case, been held to extend to their heirs, or assigns. Were it otherwise, our land records would be of little value. Bridges v. Purcell, 1 Dev. & Bat., 493. Seidensparger v. Spear, 17 Maine, (5 Shepley,) 123. Perry v. Fitzhowe, 8 A. & E., (55 E. C. L.,) 756. Prince v. Case, 10 Conn. R., 381.
    3. That although the act, which enables the defendants to build a railroad, along the margin of their canal, is sufficient authority for their building a culvert, as a part of their road, yet no authority is given to them, to divert, or discharge a body of water upon the land of another, and, by constant replenishing, to continue the water there forever. Any parol agreement, purporting to confer such a right or. interest, could operate only as a license revocable, if itxcould have any operation at all. V

      Baldwin and Beach, contra, contended,
    1. That, where the acts done on the faith of a license, are capable of being, and are in fact, perfected upon the land of the defendant, the plaintiff cannot by revoking such license, recover for the consequent damage to his own land, caused by the “natural, necessary, and foreseen effects,” of such acts. Winter v. Brockwell, 8 East, 308. Liggins v. Inge, 7 Bing., 682. Woodbury v. Parshley, 7 New Hamp., 237. Addison v. Hackie, 2 Gill., 221. Dyer v. Sandford, 9 Metc., 395. Johnson v. Lewis, 13 Conn. R., 304.
    2. That a license is always a perfect protection against any act done under it, before revocation.
    All the authorities sustain the position, that “ licenses to do a particular act, do not, in any degree, trench upon the policy of the law, which requires that bargains, respecting the title, or interest, in real estate, shall be by deed, or in writing. They are only an excuse, for an act which would otherwise be a trespass.” Cook v. Stearns, 11 Mass., 533. Prince v. Case, 10 Conn. R., 379.
    Here “ the damage, whatever it was,” was caused by the erection of a culvert.
    The plaintiff’s grantor, not only authorized, but cooperated and assisted in its erection; since then, the defendants have done nothing, and they exercise no control over the water, which flows through it.
    3. That it is difficult to state any facts, more urgently calling for the application of the principle of equitable estoppel, than those found by the jury, and the plaintiff cannot now make the defendants pay him, for “ the necessary, natural, and foreseen effects,” of this act of his own grantor. 2 Am. Lead. Ca., 687.
    4 That the doctrine of parol licenses, and their effects, does not arise, in the present case. (1.) The effect of a license, is to render some act lawful, which would otherwise be unlawful. No individual would have a right to divert this water, upon the plaintiff’s land. He can only acquire it by agreement of the owner, and if such agreement is not in writing, it raises the questions we have been considering. (2.) But the state, by virtue of its right of eminent domain, has the right to divert this water upon the plaintiff’s land, or to appropriate it altogether, subject, of course, to his right of just compensation. 2 Kent. Com., 339. (3.) This culvert was built by the New Haven and Northampton company, under the authority of the state, in the construction of their railroad.
    Their charter gave them the right to put the culvert where they did, without any license, verbal or written, from the owner of the adjacent land. Private Acts, 1846, p. 84. Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. R., 294. Clark v. Saybrook, 21 Conn. R., 313. Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn. R., 74.
    The only question, therefore, between the defendants, and the owner of the land, was one of damage, and that was satisfactorily disposed of by 'the parties. It could as well be done by parol agreement, as by a written one, under hand and seal. Clement v. Durgin, 5 Greenleaf, 1. People v. Goodwin, 1 Selden, 568.
   Storrs, J.

We are not distinctly apprised, nor is it material to ascertain, in what capacity, or in what relation to the New Haven and Northampton company, the other defendants acted, when they assisted in building the culvert, of the effects of which the plaintiff complains. At that time, the land, which adjoins the site of the culvert, and is said to be injuriously affected by it, was owned by Uriah Eoot, and the acts of these defendants were done by his license or direction. No authorities are needed to support the opinion, that such a license, or direction, furnished a legal excuse for their conduct. And as it does not appear to have been proved, or even claimed on the trial, that either of them had any interest in the culvert itself, or in,the land on which it was constructed, or any control over the culvert, or the land, or any interest, (after the completion of the work,) in the affairs of the New Haven and Northampton company, or that, since that time, they had done anything which would render them liable to the plaintiff’s grantor, before the title of the plaintiff accrued, or afterwards, to the plaintiff himself, it follows that no cause of action was shown against these defendants, and that the verdict, so far as it relates to them, should not be disturbed.

But, upon the facts presented, the New Haven and Northampton company must be deemed to have continued the culvert, at the place under their railroad, where it was at first constructed; and thereupon, certain questions of law arise, in relation to which, the charge to the jury is considered erroneous by a majority of this court, and a new trial is advised.

As the culvert, which caused a diversion of the water of the canal upon the land of the plaintiff, was built, while the land was owned by Uriah Foot, (who, before his death, conveyed it to the plaintiff,) the plaintiff cannot recover for that injury, or for the injury, arising from the continuance of the culvert, prior to the conveyance to himself. Such acts were an injury to his grantor and not to him. He has therefore limited his claim for redress to such damage, as was caused by the continuance of the culvert, after his own title accrued; insisting that he is, at least, entitled to recover for the continuance of the injury, after the revocation of the license, under which the structure had been built; whether the death of his grantor, who gave the license, amounted of itself to such revocation, or whether the license remained in force until the express revocation of it, by the plaintiff himself. Accordingly, we have no direct concern with the defendants’ right, as against the grantor of the plaintiff, to build the culvert, but are simply to determine whether it was rightfully continued by the defendants, as against the plaintiff, after he became the owner of the land, or after the legal, or actual revocation of the defendants’ license: so that the circumstances, under which the culvert was built, have no importance here, except in so much as they affect the right of the defendants, to continue it. And, even if these circumstances show that the license, granted by the former owner, was revocable by him, it would not follow that, because it was not revoked by him during his ownership, and consequently justified all the acts of the defendants as against him, it would also justify the continuance, or repetition of those acts, against a subsequent purchaser, after a conveyance to such purchaser, or after the death of the original grantor of the license, or after the express revocation of the license by the purchaser. On the contrary, either of these incidents might suffice to terminate the defendants’ privilege. We go further. Even if it should appear that the license granted was irrevocable by the grantor of the plaintiff, it would not follow, that the plaintiff could not revoke it.

- The plaintiff, having an absolute and unrestricted conveyanee of his land from the former owner, has presumptively a full and unqualified dominion over it, subject to no servitude, or easement, in favor of any other person. The act, ' therefore, committed by the defendants, in turning the water of the canal upon it, was an invasion of the plaintiff’s rights, unless it was justified by the facts put in evidence by the defendants, upon whom the burden of establishing such justification rests. The facts found by the jury, and on which the defendants rely, are these. The company built the culvert on land adjoining the land of the plaintiff, at the verbal request of Uriah Foot, who then owned the adjoining land, and by whom it was subsequently sold, and conveyed to the plaintiff. The said Uriah desired that the said culvert should be so located, for the irrigation of his own land, and actually cooperated and assisted in building it; verbally agreeing with the defendants for himself and his heirs forever, to dispose of the water which should be diverted upon' his land, and to guaranty the defendants against any damage therefrom. The company would have diverted the water at a point above the land of said Uriah, and where they had a right to discharge it, but for the said request and agreements of the plaintiff’s grantor. On the other hand, it was found, for the plaintiff, that, after he became the owner of the land, and also after the death of Uriah Foot, he revoked the license conferred by his grantor, giving an express notice to that effect, to all the defendants.

These facts furnished ample prbof of a license from Uriah Foot, to the defendants, to construct the culvert, and to overflow his land ; and as this license was never revoked by him during his ownership, it constituted a justification for the diversion of the water for that period. We are as clearly of opinion, however, that the effect of the license, or agreement referred to, inasmuch as it was by parol, was not to convey to the defendants any estate, or interest in the land, which it was contemplated to overflow. The right perpetually to divert water upon that land, as claimed by the defendants, would be an incorporeal hereditament, and therefore an estate or interest in it; and such a right, the license, proved by the defendants, would be ineffectual to convey. To hold the contrary would be a direct abrogation of the statute of frauds, which requires all contracts for “ the sale of lands, tenements, or hereditaments, or of any interest in or concerning them,” to be in writing. The privilege, therefore, conferred on the defendants by the parol request, and agreement of Uriah Foot, is reduced to a mere license, although, in its terms, it was a more extended grant. The authorities on this point are uniform.

It is equally well settled, that a mere license, which is only an authority or power to do particular acts, uncoupled with an interest in the subject of those acts, (serving simply to justify such acts, while leaving the estate, and all the incidents of ownership, in the proprietor of the land,) is, in its nature, revocable. If it were not revocable, it would transfer to the licensee an interest in the land ; it would have the effect of a grant.

We consider it also to be now an established principle of the common law, although some ancient cases may seem to conflict with it, that when the right to do acts upon the land of another is of such a nature, as to require to be created by a grant, in order to be primarily indefeasible, a mere license to do such acts does not become irrevocable, because it has been executed by the licensee; although such execution may have been attended with expenditure of money or labor, and although, also, the termination of said license may cause the loss of such expenditure.

Nor do we think that the revocability of the license depends at all upon the circumstance that the acts authorized by the plaintiff’s grantor, were to be done, if considered only in respect to their immediate or direct effect, upon land not owned by him ; so long as the necessary and inevitable consequence of those acts would be an exercise, on the part of the defendants, of a right in the land of the grantor himself, and to restrict the dominion of the latter over it: a right, which if made indefeasible by a grant, would burden the land with a perpetual easement. In fact, the privilege conferred on the defendants was, in form, a license to build the culvert on the defendants’ own land, but in substance a right to overflow the land of the licenser himself. To construct a culvert on land adjoining his own, and really already under the defendants’ control, by virtue of their charter, was an act, which, independently of its tendency to cause an overflow upon the land of the grantor, the defendants had an unquestionable right to do, without his sanction, and which, in this view of the matter, was not done by virtue of his authority. What required his license was, that the company might, by means of the culvert, turn water upon his land; and this diversion was the subject of the license, rather than the mere construction of the culvert. The permission to build the culvert, which would necessarily cause the diversion of the water, was really a permission so to divert the water, and to affect the rights of the licenser in his own land. We cannot see why such a license should not be revocable in the same manner, as if the acts authorized to be done, were done on the premises of the licenser, consequently producing the same effect there.

Reference has been made by the defendants to a few very peculiar cases, the most prominent of which is Liggins v. Inge, 7 Bing., 682, as sustaining some such distinction, as has just been alluded to. The doctrine of these decisions is, that if one, who has a privilege on the land of another, permits that other to do acts, which are inconsistent with the enjoyment of the privilege, or tend to its destruction, such indulgence or license, if acted upon, or executed by the owner of the land, operates as an extinguishment, or abandonment of the privilege. If these cases were correctly decided, (about which we express no opinion,) they have no application to the case now before us. It will be seen, on examination, that the courts, so far from passing upon the question, whether an easement or interest in land can be acquired by parol license or agreement, executed or not executed, distinguish those cases from such as involve that issue. Besides, in the present case, Uriah Foot neither had, nor-claimed, any privilege in the land on which the culvert was built, nor did he, by the terms of his license, deprive himself, or pretend to deprive himself, of any such privilege. On the contrary, the claim of the defendants is, that an easement was conferred upon them, in the adjoining land of; Uriah Foot, consisting in a perpetual right to divert water, upon it.

We have not deemed it necessary to accompany our statement of principles, with a particular citation of the authorities by which they are supported. The cases on the subject, with the exception of the important case of Bridges v. Purcell et al., (1 Dev. & Bat., 493,) are collected in the second volume, page 506, of Select Decisions of American Courts, by Hare and Wallace. We are aware, that several decisions have been made in the courts of some of the United States, (adverted to in the work just named,) in which greater effect is given to the circumstance, that a parol license to perform acts upon land has been executed by the licensee, especially, where such execution has involved the expenditure of money or labor, than the principles we have adopted would warrant. It is true, that some óf those decisions go to the extent of holding that the license, after such execution, is irrevocable, and that thereby the licensee acquires an indefeasible and perpetual right to maintain) without disturbance, the condition in which he is placed by such execution. Those decisions were made, in states, where, as in Maine, Massachusetts, and New Hampshire, there are no courts of equity, with ordinary chancery jurisdiction, and where, therefore, it may have been deemed necessary, in order to administer substantial justice, that the strict principles of the common law should be modified by the distinctive principles of equity jurisprudence; or where, as in Pennsylvania, courts “possess the power of administering the principles of equity through the medium of legal forms.” With us, however, the administration of the two systems is kept distinct: so that, in considering the questions before us, we have been governed less by decisions in the states, to which allusion has just been made, than by cases adjudicated in other states of the union, and in England, where courts administer purely the principles of common law, modified only in certain instances, having no relation to the subject now under discussion, by the incorporation of equitable principles, into the legal system. In Bridges v. Purcell et al., (1 Dev. & Bat., 492,) it was held, that one,' whose land is overflowed by a mill-pond, has a right to recover for the ■/ damages suffered thereby, notwithstanding that his ancestor, by parol, expressly permitted the grantor of the defendant to erect the dam, and consequently, to overflow the land; that - such permission, if set up as a grant of a perpetual right to j overflow the land, (which would be an incorporeal heredita- 1 ment,) was void for want, of a deed; and that, if regarded 1 as a mere license or authority, it was revocable and ceased ! with the life of the licenser. The eminent judge, who " delivered the opinion of the court, reviewed with his usual ability and clearness, the prominent authorities, which might be supposed to favor the defendant, and discussed the general principles applicable to the case; showing most satisfactorily, as we think, that none of them sustained the doctrine that such a license, although acted upon by the licensee, passed any interest, or estate, in the land of the plaintiff, or was irrevocable. Unless there is distinction in principle between a license to turn back water upon another’s land, by means of a dam below it, and a permission to overflow it by means of the diversion of a stream from above, (which would hardly be claimed,) the case just cited is strictly analogous to the present.

It results from the principles which we have thus adopted, that it was the right of the plaintiff’s grantor, at any time during his ownership of the land, now belonging to the plaintiff, and even after the erection of the culvert, to revoke the license under which the defendants were permitted to divert the water. It follows, as a matter of necessity, that the plaintiff, after his purchase, had an equal right to annul the license.

Much stress has been laid on the fact that Uriah Foot, in connexion with his request that the culvert should be built, and his agreement concerning it, actually cooperated and assisted in its construction. Now, whether that agreement would be enforced in a court of equity, on the ground of its execution, we are not here called upon to determine; but at law, it cannot, existing only in parol, have any greater force, or stand on higher ground than a mere license, notwithstanding its execution. If these acts of Uriah Foot were to be regarded as done independently of the defendants, and the erection of the culvert as his act, and not that of the defendants, the latter might indeed successfully urge that although the plaintiff might not be bound to allow the culvert to remain, the defendants would be exonerated from any obligation to remove it, and could not be treated as a trespasser on account of its continuance. But the facts proved will' not allow us to regard the building of the culvert as the act of Uriah Foot. On the contrary, the.finding shows that “ it was erected, and built by the defendants in the construction of a railroad, under the charter” of the principal defendants, to whom of course, Uriah Foot’s services were rendered; and that although the culvert was made at his request, his assistance was furnished in behalf of such principal defendants and not in his own. Indeed, if it was built “ under the charter,” it must have been built by those defendants, who were authorized to construct it for the accommodation of a railroad; otherwise we must adopt the idea that Uriah Foot constructed it, without law or right; a supposition unwarranted by the proof, and inconsistent with the defendants’ claim.

But, whatever might be the rights of parties if the land in question still remained the property of Uriah Foot, the issue now presented is between the defendants, and a bona fide purchaser of the land for a valuable consideration, without any notice, actual or constructive, of any previous agreements between the former owner and the railroad company. That such a purchaser is not affected, by such an agreement, was settled by the decision of Prince v. Case, (10 Conn. R., 375.) To hold that such an agreement runs with the land, and creates an easement upon it even in the hands of a bona fide purchaser, amounting to a permanent encumbrance, would be not only to invade the statute of frauds, but a violation of the most salutary policy of our recording system, and also in such cases, as that now under review, of obvious principles of justice. On this point, we give our renewed sanction to the views of this court, as expressed by Chief Justice Williams, with his accustomed force and clearness, in the case j ust quoted; views which are strongly confirmed by the case of Bridges v. Purcell et al. In the latter, the ancestor of the plaintiff had given a license to the vendor of the defendant. The opinion of Judge Gaston, after showing that the pretended grant, for want of a deed, passed no interest in the land, and imposed no charge upon it, and could not prevent the plaintiff from succeeding to an unlimited and unshackled fee-simple therein, thus proceeds in respect to the privilege claimed: “ Regarded as a license, how does it enure to the benefit of the defendants ? If it passed as an appurtenance to the land, it partook of its nature; it was more than an authority, it was a hereditament. To hold that a permission, thus given, shall operate forever for the benefit of the grantee, and his assigns, against the grantor and his heirs, would be, in effect to permit a fee-simple to pass under the name of an irrevocable license. Purchasers would never know what encumbrances were upon their lands, and- instead of the solemn and deliberate instruments, which the law requires, as the indispensable means of transferring freeholds, valuable landed interests would be made to depend wholly on the integrity, capacity and recollection of witnesses.”

The defendants claim, lastly, that as the act of diverting the water upon the plaintiff’s land was within the scope of the company’s chartered powers, communicating the exercise of the right of eminent domain, nothing remained but to compensate the owner for the damages caused to him thereby, and that this had been done by an adjustment between the defendants and the owner. If the land had been lawfully condemned for the purposes of the company, no objection could be made to the validity of such an adjustment. But the powers of the defendants were acquired under a special grant, to be exercised only on special terms; and it was necessary for the company, in order that there should be such a condemnation, to pursue the steps prescribed by their charter for that purpose. Those steps were not taken, and the land was not therefore subject to the powers claimed by the defendants. This ground of justification therefore fails.

The superior court is therefore advised that a new trial should be granted.

In this opinion Church, C. J., and Hinman, J., concurred.

Waite, J.

In my opinion, the instruction given by the court to the jury, in this case, upon th'e evidence, as detailed in the motion, is founded upon the plainest principles of justice, and is sustained by the best authorities.

What was that evidence ? The railroad company, in constructing their road, under their charter, found it necessary to make a culvert to carry off the water, which formerly constituted a part of the Farmington canal. They could turn it above the plaintiff’s land, then owned by the plaintiff’s father, Uriah Foot. But he requested them to place the culvert adjacent to his land, that it might thereby be irrigated, and he agreed, that if they would do so, he would forever take care of the water, and guarantee the company against any damage that might result therefrom.

In compliance with his request, and with his cooperation and assistance, the defendants erected a permanent and expensive brick culvert under their road, no part of which was, placgd upon the_ plaintiff’s land, and no claim is made that they ever have done any act, in any manner affecting the plaintiff’s rights, other than suffering the culvert to remain where it was originally built.

After the structure was completed, Foot conveyed his land to the plaintiff, who now brings his action complaining of the culvert, as a nuisance, and seeks to compel the defendants to remove it.

Upon this evidence, the court told the jury, that if they found the facts to be as claimed by the defendants, they were not liable, for the necessary, natural, and foreseen effects, resulting from the erection of the culvert. The court was careful to place its exoneration, entirely, upon the natural consequences of the original act.

The plaintiff, by virtue of his deed, acquired no greater interest in the land than Foot, his father, had, at the time of the conveyance. The question is then brought to this: could Foot, were he now living, and still the owner of the land, treat the culvert, built where it is, at his request, and with his assistance, as a nuisance, and by a succession of actions, compel the defendants to tear it down and remove it ? If he could, it would seem to be one of those few cases where justice may be perverted, under the sanction of law.

The license which he gave was undoubtedly revocable, before the acts which it authorized ’ were done—and had it authorized several successive acts, it would have afforded no justification for those done subsequent to a revocation. But the defendants can never be made trespassers for doing those acts under it, which the license permitted, and before any revocation.

It has been said that such parol license is, in its nature countermandable, at any time, at the pleasure of the party who gave it, and that to hold otherwise would be to allow such a license the effect of having an interest in real estate, contrary to the statute of frauds.

But it is to be borne in mind that the culvert was placed entirely upon the defendants’ land, or where, independent of any license, they had a right to place it, and the only injury complained of, is the natural consequence resulting from the original act. And if that was authorized, it is difficult to see why those consequences were not also authorized.

Foot conveyed no interest in his land to the defendants, and they claim none in any land the plaintiff now owns. They neither raise nor shut any water-gates, and pond no land of his, to operate any mill of theirs.

Suppose he had been the owner of a dwelling-house, in which were ancient lights, standing close to the defendants’ land, upon which they were about to erect an expensive building, and he had requested them to place their building close to his, for the protection of his walls, and expressly waiving all objections, on account of any injury to his lights; could he, after they had erected their building, as he had requested, call upon them to pull it down, because it injured his ancient lights, and say to them, my license amounts to nothing, as it was merely by parol ?

It seems to me that such a case could not stand for a moment in a court of justice; and yet I can discover no essential difference, in principle, between the case supposed, and the one under consideration.

But I have said, that the ruling of the court below, was not only in accordance with justice, but has the support of authority, and the case of Liggins v. Inge, seems directly in point. 7 Bing., 632, (20 E. C. L., 237.)

There the plaintiff’s father being the owner of an ancient mill, by parol license, permitted the defendant to lower the bank of the river, upon his land above the mill, and place a weir upon it, by means of which the flow of the water to the mill was diminished. The plaintiff, deriving title from his father, brought an action on the case against the defendant, for diverting the water of the river from his mill, and the court, upon due consideration, held that he was not liable.

Tindal, C. J., in delivering the opinion of the court said: This is not a license, to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like, which license, if countermanded, the party is put in the same situation, as he was before it was granted; but this is a license to construct a work, which is attended with expense to the party using the license ; so that after the same is countermanded, the party to whom it was granted may sustain a heavy loss. It is a license to do something, that in its own nature, seems intended to be permanent and continuing. And it was the fault of the party himself, if he meant to reserve the power of revoking such a license, after it was carried into effect, that he did not expressly reserve the right, when he granted the license, or limit it as to duration. Indeed, the person who authorizes the weir to be erected, becomes in some sense, a party to the actual erection of it, and cannot after-wards complain of the result of an act, which he himself contributed to effect.” The reasoning of Chief Justice Tindal, in my opinion, applies with great force to the-present case. Both upon principle and authority, therefore, I think the license in the present case, after it was executed, was not countermandable by the person who gave it, and consequently, that the present action cannot be maintained. See also Winter v. Brockwell, 8 East., 308, and other eases cited in the two cases here mentioned.

For these reasons, I am of opinion that no new trial ought to be granted.

New trial to be granted.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Platt vs. Tuttle.
    In an action of trover for a heifer, the defendant requested the court to instruct the jury that if the plaintiff, at the time of the alleged conversion, suffered his heifer to run at large on the public highway, he was guilty of negligence, and that, if the defendant ignorantly took her without willfulness, or gross negligence on his part, and was not thereby benefitted, the plaintiff if equally negligent himself, could not recover. The court did not comply with such request, but did instruct them that if the defendant voluntarily took, and so disposed of the heifer, that she was lost to the plaintiff, such taking was a conversion; and that this was so, whether he took her by mistake, or otherwise. Held, that, as it was immaterial whether such taking was, or was not profitable to the defendant, and as the plaintiff’s loss was none the less real, because of his negligence, such course was correct.
    This was an action of trover for a heifer.
    The cause was tried before the jury, at the term of the county court, holden at New Haven, in March, 1853.
    On the trial, it appeared in evidence that the heifer of the plaintiff, to recover for which the action was brought, was permitted to run at large upon the public highway of the town of Prospect, by the plaintiff, without a keeper, while the defendant was passing through said town, with a drove of cattle, on his way from the state of New York, where he had recently purchased them, to his home in the town of Hamden.
    The plaintiff claimed, and offered evidence to prove, that while said heifer was feeding in the highway, some forty or fifty rods north of Prospect Centre, the defendant, who was passing along with his drove, took said heifer into his drove, and that she was driven off by him, and that he had knowledge of her being fin his drove; that at the centre of the town of Prospect, said drove and heifer remained a few minutes, when they were, by the defendant, all driven off easterly towards Hamden; that, about a mile from Prospect, the heifer turned back, and attempted to leave the defendant’s drove, but was driven back by him, and disposed of, and converted to his own use.
    The defendant offered much evidence to prove that the plaintiff’s heifer never entered his drove; that if said heifer ever so entered his drove, she did so of her own accord, and without his knowledge; that she remained there but a short time, and that he never exercised any control over her at any time, and never derived any benefit whatever from her loss; that within one or two days after the defendant reached his home, the plaintiff called upon him, and that, after making inquiries and examinations, he expressed himself satisfied that the defendant had not converted her to his own use; that, if said heifer ever entered his drove, it was while wandering at large without a keeper, upon a part of a certain highway of the town of Prospect, which did not adjoin the plaintiff’s land; that the plaintiff let said heifer out of his own lot, upon the night previous to the alleged loss, and saw her at large upon the highway without a keeper, on the forenoon of the day, that the defendant passed through Prospect, with his cattle, and did nothing to protect or restrain her.-
    The defendant claimed and requested the court to instruct the jury: first, that if they should find that the plaintiff had permitted his heifer to wander at large, upon the public highways of the town of Prospect, without a keeper, at the time of the alleged conversion, he was guilty of negligence, and that said heifer was unlawfully upon the highway, unless the plaintiff owned the land adjoining the highway, where she grazed. Secondly, that if the plaintiff lost his heifer through the mere negligence of the defendant, in the absence of knowledge, or willfulness, or gross negligence on his part; and if the defendant derived no benefit therefrom, and the plaintiff was also equally negligent himself, that he was not entitled to recover.
    The court did not instruct the jury, as requested by the defendant, but did instruct them substantially as follows. If the defendant voluntarily took the animal, and so disposed of her that she was lost to the plaintiff', such taking was a conversion, which rendered the defendant liable in trover ; and that this was so, whether he took her by mistake, supposing. her to belong to his drove, or otherwise.
    The jury having returned a verdict in favor of the plaintiff’, the defendant filed a bill of exceptions, and by motion in error, brought his case to the superior court, where it was reserved for the advice .of this court.

      C. Ives, in support of the motion, contended,
    1. That in actions of case and trespass it is well settled, that if the plaintiff has sustained damage through the mere carelessness or negligence of the defendant, he cannot recover therefor, if the plaintiff was also careless or negligent himself, and thereby contributed to his own loss. Beers v. Housatonic R. R. Co., 19 Conn. R., 566. 20 Eng. Law & Eq. R., 455. 5 Denio, 255. 12 Metc., 415.
    2. That the charge of the court did not render it necessary for the jury to find, that the defendant had so converted the heifer as to derive some advantage therefrom, or that the wrong act was done by him knowingly.
    3. That if the heifer had, at the time of the alleged conversion, been in an enclosed field, or in the custody of the keeper on the highway, the defendant would have exhibited more gross negligence than he would, if she was grazing by permission of the plaintiff, and trespassing without a keeper on the highway. This fact would have a bearing on the question of the negligence of the plaintiff. The court erred, therefore, in refusing to submit it to the jury. 5 Denio, 264.

      Beach, contra, contended,
    1. That in an action of trover, the plaintiff’s negligence is not in issue. The conversion of the property by the defendant being established, it is immaterial what causes contributed to the conversion, whether the mistake or ignorance of the defendant, or the negligence of the plaintiff. Devereux v. Barclay, 2 B. &. A., 702. Dunnell v. Mosher, 8 Johns., 445. 3 Starkie Ev., 1492, 1497, n. Everett v. Coffin, 6 Wend., 603. Hobart v. Haggart, 3 Fairfield, 67. Higginson v. York, 5 Mass., 341.
    It is a mistake to apply the principles, applicable to an action on the case, where the gist of the claim is the negligence of the defendant, to an action of trover, where the gist of the action is the unlawful conversion of the property of the plaintiff by the defendant.
    2. That it is well settled that a party, who voluntarily takes another’s property, either by mistake or otherwise, and is in possession unlawfully, is liable in trover. Keyworth v. Hill, 3 B. & A., 687.
   Hinman, J.

The mistake of the plaintiff in error, in this case, consists in a misapplication of the principles, applicable to an action on the case.for negligence, to this action of trover. The gist of the action of trover is, the unlawful conversion of the plaintiff’s property, irrespective of the manner in which the defendant obtained the possession of it. The theory of the action is, that the' defendant found the property which had previously been lost by the plaintiff; but this is wholly immaterial. If it is taken forcibly from the plaintiff, it is sufficiently lost to him; and the loss would seem to be none the less real, because he lost it carelessly. The gravamen of the whole matter is, that the defendant has converted to his own use property which belonged to the plaintiff. If he has done this, it would seem that he ought to pay for it; not, in any sense, as a compensation for the plaintiff’s carelessness, but as a compensation for the property that he wrongfully withholds from him.

The plaintiff in error is also mistaken in supposing it a matter of any importance, whether the defendant was or was not benefitted by his conversion of the property. He asked that the jury, should be charged, that if the plaintiff’s heifer came into his drove without his knowledge, and he ignorantly drove her off, so that she was lost to the plaintiff, and the defendant was not thereby benefitted, the plaintiff could not recover. This claim withdrew from the consideration of the jury, the conversion of the animal. It is obvious that he might have converted the heifer to his own use, and still have received no benefit from it; and if he did so convert her, then he ought to pay for her, because she would be equally lost to the plaintiff, whether the defendant made it a profitable conversion, or otherwise.

The charge is a little involved, but taking it altogether, we think the jury must have understood it as we do, that if the defendant voluntarily took the animal, and so disposed of her that she was lost to the plaintiff, such taking was a conversion that rendered the defendant liable in trover; and that this was so, whether he took her by mistake, supposing her to belong to his drove, or otherwise. We think this a con-ect proposition, and consequently, there is no error in the judgment complained of.

In this opinion the other judges concurred.

Judgment affirmed.


author: Waite, J.

text:
    Stoddard vs. Couch.
    The act imposing a penalty upon any officer who has served a writ, for endorsing thereon or receiving more than his lawful fees, (Rev. Stat., tit. 49, § 23,) is a penal act.
    Such act relates to the taking of unlawful fees in civil suits only.
    Therefore, where the plaintiff alleged substantially in his declaration, that the defendant, as a constable of the town of D, arrested the plaintiff, by virtue' of a warrant issued upon a complaint of a grand-juror, charging him with the commission of a riot, and carried him before a justice of the peace, who rendered judgment that he should pay a fine of five dollars, and the costs of prosecution, in pursuance of which he was compelled to pay, and did pay said fine, and the costs endorsed on said warrant, which latter were received by the defendant, who unlawfully included in those items seven dollars and ten cents more than his legal fees; it was held, that the offence charged against the defendant was not embraced in said act.
    This was an action on the statute entitled “ an act relating to sheriffs,” The declaration contained the following allegations.

      The defendant, as a constable of the town of Derby, arrested the plaintiff, and carried him before a justice of the peace, by virtue of a warrant issued upon the complaint of a grand-juror, charging the plaintiff with the commission of a riot. The plaintiff pleaded guilty, and the justice rendered judgment that he should pay a fine of five dollars, and the costs of prosecution, and stand committed until the sentence was complied with. In pursuance of the judgment, the plaintiff was compelled to pay and did pay the fine and costs, amounting to $13.59.
    Tlie defendant endorsed on the writ or warrant, the following items of fees, to wit:

      “ Travel to arrest, - $0.15
    Travel to court, with the prisoner, - - .75
    Cash paid assistance in arresting prisoner, - 3.00
    Cash paid for keepers, ... 2.00
    Holding prisoner in custody, - - 2.00.”
    These several items were a part of the amount of costs paid by the plaintiff, and were received by the defendant; and the defendant fraudulently, and unlawfully, included in those items the sum of $7.10, more than his legal fees, and that by force of the statute, the defendant had forfeited threefold that amount, being $21.30, to recover which the action was brought.
    It came before the county court, by appeal from the decision of a justice of the peace. The defendant pleaded the general issue, which the court found in favor of the plaintiff, and rendered judgment accordingly. The defendant filed his motion in error, and the case, in the superior court, was reserved for the advice of this court.

      Wooster, in support of the motion.

      Monson, contra.

      The following is that part of the statute upon which the action was founded.
      “ Sec. 23. If any officer, who has served a writ, shall endorse thereon more than his legal fees, or demand, or receive more than his legal fees, he shall forfeit threefold the amount of the excess; and if any officer, who has levied an execution on real estate, shall endorse thereon or include in his levy, more than his legal fees, he shall forfeit threefold the amount of all the fees charged, to he recovered in each case, by the person against whom the illegal charge has been made, by action on this statute.”

   Waite, J.

The question presented upon this record, is, whether the offence charged against the defendant, in the declaration, ds within the provisions of the statute, upon which it is founded.

The fees taken, by the defendant, were for the service of a warrant in a criminal case. The statute relates to the taking of unlawful fees in a civil case. It provides that “ if any officer, who has served a writ, shall endorse thereon more than his legal fees, or demand or receive more than his legal fees, he shall forfeit threefold the amount of the excess.”

No person, therefore, but an officer who has served a writ, is made liable to the penalty. The term writ, as used in our statutes, generally means process in a civil suit, while that in a criminal case is usually denominated a warrant.

Again, the person, entitled to sue for and recover the penalty, is “ the person, against whom the illegal charge has been made.” This, in a civil suit, is the plaintiff, or the person by whom the officer was employed to make service of the process.

' But, in a criminal prosecution, the fees of the officer are not, strictly speaking, chargeable against the defendant. He can only be rendered liable for the payment, by the judgment of the court, and if he is acquitted he has nothing to do with them.

It is said that the object of the legislature was, in all cases, to prevent officers from charging, and taking, unlawful fees for serving process. The statute, undoubtedly, might have been so framed as to embrace every act of that kind, but the enquiry now is whether it does so.

There may have been good reasons for not extending the operation of -the statute to criminal cases. An officer, who serves a writ in a civil case, is entitled to compensation immediately upon the performance of the service, and his right to his fees does not depend upon any allowance, or taxation by a judge or court.

This is not so in a criminal case. Before he becomes entitled to his fees, they must be taxed and allowed by the court' having cognizance of the case. If the defendant is acquitted, or if convicted, and the costs cannot be obtained out of his estate, the court draws an order upon the public treasury for the amount. And thus, through the medium of the court, are the fees of the officer obtained.

The legislature may have deemed this supervision of the court over the fees of the officer a sufficient protection against their illegality, without the necessity of enforcing a penalty for improper charges. Indeed, in certain cases, the statute vests in the court a sort of discretionary power, as to the allowance of officers’ fees. Statutes 1849, p. 269.

And the more effectually to guard against the allowance of unlawful charges, the supreme court of errors, by a recent rule, has declared that “ no bill of costs in a criminal cause will be taxed against the state, until it has been carefully examined by the state’s attorney,” whose business it is to take care of the interests of the state, “ nor unless he certifies, that, in his opinion, the same is reasonable and just.” 18 Conn. R., 571.

The statute upon which the present action is founded, is a penal one, to be construed strictly, and not to be extended beyond the clear import of the language used. Daggett v. The State, 4 Conn. R., 61. Gleason v. Gary, 4 Conn. R., 418. Rawson v. The State, 19 Conn. R., 292.

In our opinion, it does not embrace the offence set out in the declaration, and therefore the judgment of the county court is erroneous, and we so advise the superior court.

In this opinion the other judges concurred.

Judgment reversed.


text:
    Edmonds vs. Buel.
    The law does not require an indifferent person, to whom a writ of attachment is directed for service, and* who attaches property thereon^ to make oath to the truth of his return.
    In an action of trespass, for taking and carrying away a wagon, the defendant, in justification of the acts complained of, offered in evidence a writ of attachment, directed to him as an indifferent person, for service, and by virtue of which he took the property in question. To the admission of this evidence, the plaintiff objected, on the sole ground that the defendant did not make oath to the truth of his return, before judgment was rendered in the suit, upon which said property was taken. Held, that the defendant did not become a trespasser, by merely omitting to verify his return by his oath.
    This was an action of trespass, for taking and carrying away the plaintiff’s wagon. The cause was tried to the jury, before the county court for Middlesex county, at the December term, 1853.
    On the trial, the defendant, in justification of the acts complained' of, • offered in evidence a writ of attachment, directed to- him as an indifferent person, and returnable before a justice of the peace, by virtue of which, he took the property in. question. To the admission of this evidence the plaintiff objected, upon the sole ground, that the defendant had not made oath to the truth of his endorsement on the writ, until' one day after judgment had been rendered by the .justice in the suit upon it. ; 'But-the court overruled the objection, and admitted the evidence. The defendant having obtained a verdict, the plaintiff’ filed' a bill of exceptions, and a motion in error to the superior court, where, at the December term of that court, in 1853, the case was reserved for the advice of this court.

      W. D. Slvipmcm and Culver, for the plaintiff.

      Spencer, for the defendant.
   Waite, J.

The defendant, in the present ease, is charged with a trespass in taking the plaintiff’s property, which he attached, upon a writ, directed to him, as an indifferent person. The only objection made to the legality of his proceedings is, that he did not make oath to the truth of his endorsement, before judgment in the suit was rendered.

The statute, authorizing the service of writs by an indifferent person, does not require such oath, to render the doings legal. It is not so with respect to the oath required of the plaintiff, as to the necessity for directing a writ to an indifferent person. That oath must be taken, and the magistrate, issuing the writ, must certify upon it that he administered the oath, and unless this is done, the process will not be legal, nor afford any protection to the person serving it.

But the affidavit of an indifferent person, as to the service of the writ, is mere evidence in support of his return, and, when made, places the return upon the same ground, as that made by a sheriff or constable, under his official oath, upon an ordinary writ. The court, to which such a writ is returned, ought to be satisfied by proper evidence, that it has been legally served, before proceeding to render judgment in the suit. And although the oath of the party serving the process is the usual and proper mode of proving the service, yet we know of no law rendering such oath indispensable.

The practice is not so in other cases. Our statutes authorize the superior and county courts, and the judges of those courts, to make orders relative to the notice to be given to defendants, in suits in chancery, and for divorce, residing out of the state. Such notices are frequently given by indifferent persons, and their oaths are not always required to prove the notice. The court may find the fact upon any legal and satisfactory evidence, and this is frequently done.

In the present case, the endorsement of the defendant upon the writ, unsupported by any other evidence, would not, of itself, prove the matters therein set forth. But we do not consider the oath of the defendant indispensably necessary for that purpose, or that he became a trespasser, by merely omitting to verify his return by oath, before judgment on the suit was rendered.

For these reasons, we are of opinion that there is no error in the proceedings of the county court, and we so advise the superior court.

In this opinion the other judges concurred, except Church, C. J., who was absent when the case was argued.

Judgment affirmed.


author: Ellsworth, J.

text:
    Bevin vs. The Connecticut Mutual Life Insurance Company.
    Tlie rule, that a contract of insurance is one of indemnity only, prevails in life insurance, as well as in fire and marine insurance.
    The plaintiff, having advanced to B three hundred dollars in money, and sundry articles of personal property, under an agreement that the latter should go to California, and there labor, for at least one year, and account to the plaintiff for one-half of his gains, insured the life of B for one thousand dollars. Held, that the plaintiff had an insurable interest in the life of B and that his policy was a valued one for that amount.
    Where such policy, which was issued by a mutual life insurance company, contained a stipulation that B without the consent of said company previously obtained, should not pass beyond the settled limits of the United States, and in consideration of extra premiums from year to year, for three years, they endorsed on said policy a permit, authorizing B to pass by sea, in decked vessels, from any port in the United States, north of the thirty-sixth degree of north latitude, to and from any port in North and South America, except Chagres, and to reside in California for the term of one year, and B sailed from New York to Vera Cruz, crossed thence by land to San Bias, and sailed from that port in a decked vessel to California, where he resided for three years, until his death. It was held in an action on said policy, X. That parol evidence was admissible to show, that the defendants knew, before issuing said policy, that B intended to take such route across the country of Mexico, to California, that afterwards they knew that he went by said route, and had arrived there in safety, and that for the period of three years after his arrival, they continued to receive the extra premium for such residence. 2. That if the taking such route by B, was a violation of the stipulation in said policy, the subsequent acts of the defendants amounted to a waiver, and that the plaintiff was entitled to recover.
    This was an action of assumpsit, brought by Abner G. Bevin, against the Connecticut Mutual Life Insurance Company, upon a policy of insurance, made for one thousand dollars, in favor of the plaintiff, upon the life of George Barstow.
    The cause was tried before the superior court, for the county of Middlesex, at the term holden in March, 1854.
    The court found the following facts.
    In consideration of the annual premium of thirty-three dollars and ten cents, the defendants, on the 22d day of January, 1849, executed, and delivered to the plaintiff, a policy of insurance on the life of George Barstow, deceased, for the sum of one thousand dollars, during the whole continuance of said Barstow’s life. Said policy contained a stipulation that said Barstow should not, without the consent of the defendants previously obtained, and endorsed thereon, pass beyond the settled limits of the United States, (nor visit those parts of the United States, which lie south of the southern boundaries of the states of Virginia and Kentucky, between the first of June and the first of November.)
    The defendants also executed and endorsed upon said policy the following permit.
    “For, and in consideration of fifteen dollars, being one and a half per cent, extra premium, charged on annexed policy No. 3,277, the within named George Barstow is hereby permitted to pass by sea, in decked vessels, from any port in the United States, north of the thirty-sixth degree, north latitude, to and from any port in North or South America, Chagres excepted, and to reside in California, and country adjacent, for the term of one year from the date hereof.
    “And in further consideration of an annual extra premium of fifteen dollars, to be paid on or before the 22d day of January, in every year during the use of this certificate, the insured is permitted to continue so to pass by sea, and reside as aforesaid, without prejudice to this policy.”
    At the stipulated time in each year, from 1849 to 1852, inclusive, the plaintiff paid the defendants the annual premium] named in said policy, and the extra premium named in said permit.
    On the second day of September, 1852, said Barstow died in California, of the cholera-morbus; the defendants were duly notified of Barstow’s death, and payment of the amount of the policy was demanded of them, by the plaintiff.
    The amount paid by the plaintiff for premiums, and permits, upon said policy, was one hundred and ninety-two dollars and eighty cents.
    On the eighth day of January, 1849, the plaintiff advanced to said Barstow, three hundred and fifty dollars, under the following agreement.
    “ Eeeeived, Chatham, Jan. 8th, 1849, of Abner G. Bevin, the sum of three hundred and fifty dollars, to be used and applied as herein after specified, according to agreement made this day.
    George Barstow.
    “ This agreement, made this eighth day of January, 1849, between George Barstow, of Chatham, on the one part, and Abner G. Bevin, of Chatham, on the other part, witnesseth, that the said Barstow agrees on his part, for the above-named sum of three hundred and fifty dollars, to proceed as soon as practicable to California, and there to engage in mining and procuring gold, or to employ himself in the best and most profitable way, in which he can engage, and is to keep a correct account of all his expenses, and whatever more he obtains, he is to divide equal with the said Bevin, and if there is an opportunity to remit to the United States, agrees to do so, as often as he has an opportunity, and inform the said Bevin of the same, and also to inform the said Bevin how his letters can reach him, and is to be employed, as above specified, until he returns home, at least one year, if his health will permit.”
    To enable said Barstow the better to perform said agreement, the plaintiff also advanced to him articles of personal property, to the value of nineteen dollars. In pursuance of said agreement, Barstow proceeded to California, where he arrived about the middle of May, 1849, and went immediately to the mines, and was engaged in mining and procuring gold under his agreement with the plaintiff, until his death. On his way to California, and after his arrival there, he enjoyed good health until the sickness which terminated in his death.
    Said Barstow, in proceeding to California, left New York on the 16th day of January, 1849, in a substantial decked vessel for Vera Cruz, making the passage from New York to Vera Cruz in fourteen days; he remained in Vera Cruz, eight or ten days, whence he proceeded by land across the republic of Mexico, and through the city of Mexico to the port of San Bias, on the Pacific ocean, a distance of nearly one thousand miles, where he arrived in March. He remained at San Bias about three weeks, when he embarked in another substantial decked vessel, and proceeded, by sea, to San Francisco,' where he arrived on the 14th of May, 1849, making no unnecessary or unreasonable delays in his journey. The route taken by said Barstow, was one of the several routes of travel, then pursued, by persons going from the United States to California, and was not particularly hazardous, although the people of Mexico, along the route, were hostile in their feelings towards the citizens of the United States. He experienced no serious inconvenience on his journey, from the climate or any other cause, and his health during all that time, continued good.

      The court also found, (if parol testimony was admissible to prove the same,) that on the 15th day of January, 1849, during the negotiation for said policy, the plaintiff, said Barstow, and Guy E. Phelps, the secretary of the defendants; and who usually attended to the business of issuing policies, were together, in the defendants’ office; that said Phelps inquired of Barstow, which route he was going to take, and Barstow replied that he was going with Captain Hutten (commander of the barque Eugenie) to Vera Cruz, and thence across the country, (the route which he afterwards took,) and said Phelps remarked, that a trip would do him good,—would "be for his health; that Phelps, who also acted as the physician of the company, then invited the said Bar-stow into another room and there made the medical examination. Said Barstow then left said office, and the next day sailed from New York, on his way to California. Said policy was not issued by the defendants, nor the first payment received thereon, until some time after said Barstow had sailed on said voyage, and after the defendants, by reason of the facts aforesaid, had reason to believe that he had taken the route, which he did take. There was no evidence that the defendants, at either of these times, or when the subsequent payments were made on said policy, made any objections to the route taken, by the said Barstow.
    To the admission of the aforesaid parol testimony, the defendants objected; and the question, as to its admissibility, was reserved for the consideration and advice of this court, and if said court should be of opinion that the same was admissible, then the facts depending upon such testimony were found to be true, but otherwise, not proved.
    The court also reserved, for the advice of this court, the question what judgment ought to be rendered in the case.

      Bulkeley, for the plaintiff- contended,
    1. That it appears from the contract between the plaintiff and Barstow, that the former had an insurable interest in Barstow’s life. One, who is liable to a pecuniary loss by the death of any person, has an insurable interest in the life of such person. 1 Phill. on Ins., 200. Reynolds on Ins., 41.
    An interest, contingent in itself, that might be defeated, or might not have been' of any value to the assured, is a good insurable interest. 1 Phill. on Ins., 200, 201. Lord v. Dall, 12 Mass., 115.
    2. That the policy is a valued one. The extent of the interest is the amount insured, in those cases where the interest is subject to be affected by the skill and capacity of another, there being no mode of legally ascertaining the precise amount of loss and damage. 2 Phill. on Ins., 35, 441. Lord v. Dall, 12 Mass., 115. Reynolds on Ins., 42.
    3. That Barstow, by the terms .of his permit, had a right to take the route he did. The printed form of permit was adapted to the terms of the agreement between the parties. He had a right to go to and from, any port in North and South America, Chagres excepted, and to reside in California and the country adjacent. Mexico being adjacent, he could reside there, and could certainly pass from one port to another of that country.
    4. That if it were a violation of the policy and permit, for Barstow to take the route he did, the company have waived a compliance with the conditions of the policy; that having received the premiums from time to time, knowing the route he took, they are estopped from claiming a violation of the condition, and that parol evidence is admissible to prove such waiver and estoppel, and to explain words of indeterminate meaning. Allen v. Verm. Ins. Co., 12 Verm. R., 366. 1 Phill. on Ins., 490, 586. Frost v. Saratoga Ins. Co., 5 Denio, 154. 3 Wash. C. C. R., 159. 20 Conn. R., 563. 17 Conn. R., 353, 361. 1 Greenl. Ev., § 228, p. 412. Fish v. Hubbard’s adm’rs, 21 Wend., 651. 21 Conn. R., 451.

      W. D. Shipman, for the defendants, contended,
    1. That the plaintiff had no insurable interest in the life of the deceased, and therefore cannot recover.
    2. That the condition, that the subject should not go beyond the settled limits of the United States, is a warranty, the violation of which, by the terms of the contract, renders the latter null and void. 1 Phil. Ins., § 65, § 754, § 891. 3 Kent’s Com., 288. Wood v. Hartford Fire Ins. Co., 13 Conn. R., 533. The Glendale Woolen Company v. The Protection Ins. Co., 21 Conn. R., 19. Sheldon & Co. v. Hartford Fire Ins. Co., 22 Conn. R., 235. Jennings v. The Chenango Mut. Ins. Co., 2 Denio, 75.
    3. That the condition, being in the nature of an express warranty, any variation, whether material to the risk or not, avoids the policy. New Castle Fire Ins. Co. v. M’Morran, 3 Dow. R., 262. Pauson v. Watson, Cowper, 785. Blackhurst v. Cockell, 3 Term. R., 360. 1 Phil. Ins., § 893. De Haln v. Hartley, 1 T. R., 343. Jefferson Ins. Co. v. Cotheal, 7 Wendell, 72. Duncan v. Sun Fire Ins. Co., 6 Wend., 488. Fowler v. Ætna Ins. Co., 7 Wend., 270.
    4. That before the subject could leave the settled limits of the United States, without forfeiting his policy, he must have obtained the consent of the company. This being in writing, and endorsed on the policy, cannot be enlarged or varied by parol. 1 Greenl. Ev., § 275, et seq. Warren v. Wheeler, 8 Met., 97. Vandervoort v. The Columbia Ins. Co., 2 Caines, 155. Cheriot v. Barker, 2 Johns., 346.
    As the testimony offered by the plaintiff consists of the oral declarations of the parties, made prior to the execution of the contract, parol evidence of these would be inadmissible in an action upon any written contract, there being no ambiguity or imperfection in the language of the instrument, and they are especially so in one brought on an insurance policy. Weston v. Emes, 1 T. R., 115. Jennings v. Chenango Mut. Ins. Co., 2 Denio, 75. Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. R., 19. Parks v. Genl. Int.

      Ins. Co., 5 Pick., 34. Whitney v. Haven, 13 Mass., 172. Atherton v. Brown, 14 Mass., 152. Wiggin v. Boardman, 14 Mass., 12. Flinn v. Tobin, 1 Mood. & Malk., 367. Alston v. Mechanics' Mut. Ins. Co., 4 Hill., 329.
   Ellsworth, J.

Several questions of some practical importance are presented for our decision, in this case. We have occasion to decide only some of them, in order to make an end of this case, and shall, therefore, allude to such only with particularity.

It is said, first, that the plaintiff had no interest in the life of Barstow, when the policy was obtained, and if any, not the $1,000 stated in the policy. In marine and fire insurances, the questions and rules for ascertaining interest, are in general, well settled, and of every-day occurrence. In them the rule is, that the contract of insurance is one of indemnity only, recognizing policies being held to be illegal and void. The same is true, we suppose, in insurance on lives. In England, the statutes of George II. and Geofge III., declare all policies of insurance without interest, to be null and void, and although the phraseology of the statute of George III. has given rise to distinctions there, in this country we hold the English statutes to be in affirmance of the principle of the common law, that policies of insurance are contracts of indemnity only.

Without deciding what is an insurable interest in the life of another, in every case—whether it must be one of a pecuniary value, or property, which the law recognizes as property, or may be something less or different, as the interest in one’s relative, or in the life of another person—in this case we have no doubt there was an insurable interest, and one which the parties could well value, to the extent it was valued in the policy. The plaintiff had advanced to Bar-stow, the sum of three hundred dollars, besides articles of personal property, to enable him to go to California, and there labor, for at least one year, and to account to the plaintiff for one-half of his gains in that business. He was the plaintiff’s debtor, and partner, giving to the plaintiff an interest in the continuance of his life, as by that means, through his skill and efforts, the plaintiff might expect, not only to get back what he had advanced, but to acquire great gains and profits, in the enterprise. All the books hold this to be a sufficient interest to sustain a policy of insurance. As to the value of this interest, we think it must be held to be what the parties agreed to consider it, in the policy. This was the sum .asked for by the plaintiff, and which the defendants agreed to pay in case of death, and for which they were paid in the premiums given by the insured. The policy must, we think, be held to be a valued policy. If otherwise, and the question of interest is open for proof on the trial, to be determined by the estimate which jurors may put upon the value of Barstow’s life, under the circumstances, the policy may afford an inadequate and precarious security. "Who can tell what the plaintiff would have .gained, if Barstow had lived, and labored under his contract, in California? The plaintiff declared in the policy that he had an interest in the life of Barstow, of $1,000; the defendants received this declaration as true, and made it the basis of the insurance, and of their premium; now, without deciding that such a declaration is, in all cases, conclusive, as to the interest or damage, we hold, that in cases like the present, where there is not a definite and specific interest, and much is to depend upon the character and continuance of .the enterprise, such declaration, if honestly made, is the agreed value of interest. The defendants knew what was claimed to be the interest of the insured; what the damages were estimated to be in case of death, and what amount the plaintiff wanted to secure ; and the defendants agreed to this sum. It would" be against good faith, and against the meaning of the parties, for the defendants now to refuse to pay as they agreed. In marine insurance, policies on profits always are, and must be of necessity, valued. Mumford v. Hallet, 1 Johns., 433.

In Lord v. Dall, 12 Mass., 115, a sister obtained an insurance on her brother’s life, about going to sea, on whose generosity and assistance she was dependent for support. She recovered the whole sum; no question seems to have been made as to the amount, but only whether it was an interest which the law would recognize. So, in every case, where a person, on his own account, insures the life of a relative, if the sum named in the policy is not to be the rule of damages, we enquire, what is? The impossibility of satisfactorily going into the-question, in most cases, and especially where there is nothing to guide the enquiry and everything is uncertain, would lead us to hold that a policy like this is a valued policy, as most consistent with the understanding of the parties, and the principles of law. 2 Phil. Ev., 52. Bury on Ins., 24. 3 Kent’s Com., 219. Ang. Life Ins., 321. 12 Mass., 118.

The next objection is, that the plaintiff has failed to keep one of the warranties which he was to keep, and therefore, cannot recover. The warranty alluded to, is, that Barstow had, by the policy, no right to go out of the United States, and that he only obtained leave to go to California, and reside in a particular way, “to pass by sea in decked vessels, from any port in the United States, to and from any port in North and South America, Chagres excepted, and to reside in California.” The defendants insist that he went across the country, whereas he should have gone round the cape. We are unwilling to yield to this objection so entirely foreign to the merits of the claim, unless compelled to by the clear import of the license given, for Barstow reached California in perfect health, in due time, and had resided there some three years, when he died of a sudden sickness, unconnected with his passage across the country. The members of the court are not agreed in the exact construction to be put on this permit, and as there is another ground on which a majority, if not all of us, are agreed, we shall pass this point of construction, and dispose of the case, on another ground. It appears that, before the policy was filled up, the company were told that Barstow was going across the country: and afterwards, they knew he had so gone, and had reached California in safety. They knew, too, he was residing there, and from year to year, for three years, they suffered the plaintiff to pay the entire enhanced premium for such residence there, upon the idea that the insurance was still in force. They were willing then to overlook the breach of warranty, if any it was, and they virtually renewed the insurance by taking the entire premium, until Barstow’s death. Now, between man and man, in any ordinary transaction of business, such an objection would create surprise, and we should say it was unreasonable and untenable, and that this subsequent taking of the premium was a complete waiver of the objection, even if well founded at first. Suppose the plaintiff had warranted that Barstow should sail by the first of January, and he did not until the fifth, but reached California, in health, and after that, the company had received the stipulated premium for years with full knowledge of this fact, while he was residing there under the permit; would they not be liable on the policy 1

To prove the knowledge of the defendants, the parol evidence was offered, and,as we think, very properly, not to explain or qualify the written contract, there being no explainable ambiguity, but to prove that the defendants had knowledge at all times, of the fact that Barstow went to California across the country, and that they subsequently acted in view of such knowledge, inducing the plaintiff to continue to pay premiums.

We advise judgment for the plaintiff.

In this opinion the other judges concurred.

Judgment for the plaintiff