author: Hinman, J.

text:
    Howard vs. Lee.
    Where the grantor described himself in a deed of land as “guardian to” certain minors, and stated his authority thus, “ by virtue of license and authority to me granted by the court of probate for the district of E. to sell the real estate of said” minors “situated in said E.,” and it was admitted that the probate records were in due form, and that the court of probate had authority to make and did make an order authorizing the sale of the estate which the deed purported to convey; it was held, that such deed was valid.
    This was an action of trespass qu. cl.fr., tried before the superior court for New London county, at the term holden in January, 1856.
    On the trial, the plaintiff’s title to the land upon which the alleged trespasses were committed, was in question and became material. The plaintiff offered in support of and as the sole evidence of his title to said land, a deed, of which the material parts are the following.
    “ Know all men by these presents, that I, Moses W. Com-stock, of the town of Chatham, in the county of Middlesex, guardian to Alonzo C., Cornelia G. and Ellen M. Griswold, and Augustus G. and Andrew W. Comstock, minors, under the age of twenty-one years, by virtue of license and authority to me granted by the court of probate for the district of East Lyme, to sell the real estate of said Alonzo, Cornelia and Ellen Griswold, and Augustus and Warren Com-stock, situated in East Lyme, and consisting of a certain tract of land bounded as follows.”
    To this evidence the defendant objected, on the ground that upon the face of said deed it did not appear that the court of probate for the district of East Lyme, had granted authority to the guardian named in said deed to. sell and convey the same upon any petition or application to said court, or that said court of probate had at any time granted any order for the sale of the premises named in said deed, and for the further reason that it did not appear from said deed that said court of probate had any jurisdiction in the premises, for that it is not averred in said deed that said minors were resident in said probate district, nor that said land was situate within said probate district, and that it did not appear that said guardian had complied with the statute, as to giving bonds, &c.
    The objection was founded solely upon alleged defects in these particulars in the deed itself, and it was admitted that the probate records themselves were in due form, and that the court of probate in fact had jurisdiction to make and did make an order authorizing the sale.
    But the court overruled the objections and admitted said deed, as evidence to show the title of the plaintiff to the premises therein described.
    The jury rendered a verdict in favor of the plaintiff, and the defendant moved for a new trial, on the ground that the court improperly received said deed in evidence.

      Me Curdy and Willey in support of the motion.
    It is á well-established principle, that where a power is given to a particular person to do a certain act in a particular manner, his authority must appear on the instrument, and if it do not so appear, the act is void. Watson v. Wat
      son, 10 Conn. R., 86. Griswold v. Bigelow, 6 Conn. R., 259. Lockwood v. Sturdevant, 6 Conn. R., 374. No such authority appeared on the face of the deed in question.
    The case of Watson v. Watson will not be extended, modifying, as it does, the case of Lockwood v. Sturdevant.

    In a guardian’s deed, it should at least appear on the face of the deed, that the guardian acted by order of the court of probate, and that order should be so referred to, that it may become a part of the deed.

      Lippitt and E. Perkins, against the motion.
    1. The deed is valid and passed the title to the plaintiff. Being executed in the usual form, and with all the formalities required by statute, it accords with the practical construction of the law, and if it is not valid, very many titles in this state are defective.
    2. The capacity of the grantor, and his authority to act, are indicated and declared upon the face of the deed, which is all that is necessary.
    3. Though the reasons for the authority should appear upon the records of the court of probate, it is not necessary that they should be recited in the deed. Being referred to generally, it is sufficient that they exist. Watson v. Watson, 10 Conn., 77. The description of authority in this deed is identical in terms with that in Watson v. Watson, except as to the date.
    But it was admitted in this case that the probate records themselves were in due form of law, that the court in fact had jurisdiction to make and did make an order authorizing the sale.
    Hence the deed is valid.
   Hinman, J.

The plaintiff claims title to certain lands, under a deed executed by the guardian of certain minors, who were the owners, under authority granted for that purpose by the court of probate for the district of East Lyme, within which district the minors resided, and the lands were situated; and the question in the case is, whether the deed is admissible for the purpose of proving the title.

The defendant claims that the deed is void, because it does not appear upon its face, that the order to sell was granted upon any petition or application for that purpose, or that any such order was in fact granted; and also for the reason that it does not appear from the deed, that the court of probate had jurisdiction to make such an order, it not being alleged in the deed, that the minors were residents of the probate district of ’East Lyme, or that the land was situate in that district, or that the guardian had given the bonds required on such sale.

It is admitted that, in point of fact, none of these objections are true. The court had jurisdiction; because the minors resided in the district, and the land was there, and there was an application to sell it, which, it is admitted, the probate records show was granted in proper form. The ques-. tion therefore is, whether the deed is a sufficient execution of the power. It is, so far as relates to this question, in these words, “I, Moses W. Comstock, of the town of Chat-ham, in the -county of Middlesex, guardian to Alonzo C., Cornelia G. and Ellen M. Griswold, and Augustus G. and Andrew W. Comstock, minors, under the age of twenty-one years, by virtue of license and authority to me granted by the court of probate for the district of East Lyme, to sell the real estate of Alonzo, &c., situated in East Lyme, and consisting, &c., (describing it), and for the consideration of thirteen hundred dollars, received to my full satisfaction, the receipt whereof 1 do hereby acknowledge, of Edwin Howard, of East Lyme, do grant, bargain, sell and confirm unto Edwin Howard the above described estate of the said Alonzo C. &c., minors as aforesaid.”

The defendant relies upon the cases of Lockwood v. Sturdevant, 6 Conn., 373, and Watson v. Watson, 10 Conn., 77, and the authorities cited in those eases, to support his claims.

The case of Lockwood v. Sturdevant, it is true, standing alone, would seem to support the defendant’s claims, but that case was so materially modified by the case of Watson v. Watson, as to destroy its effect as a binding authority on a question of this sort. In both these cases the court had to pass upon the validity of deeds given under the authority of orders of the probate court, and the case of Watson v. Watson, is so nearly parallel in its circumstances with the case now under consideration, that, we think, it must control it. In that case, the party making the deed described herself as executrix of the last will and testament of the person whose estate she was conveying. Here the grantor describes himself as guardian of the minors whose estate he is conveying ; in that case, the deed stated that she sold the land in conformity to an order of the court of probate, dated the 24th of March, 1780; in this deed it is alleged to be made by virtue "of license and authority to him granted by the court of probate, for the district of East Lyme, to sell the identical property conveyed by it; — and on referring to the order of probate in the former case, it appeared, as it does in this case, on referring to the record, that the order was legally and properly granted. The only noticeable difference in the two cases is, that in the case of Watson v. Watson, the date of the order was given in the deed, which is omitted in this case. But we do not think this a material distinction between the cases. If the date of the decree was given, it might enable a party to refer to the record more readily; but that is of no importance on such a question. It was said that the order should be so definitely referred to as to make it a part of the deed.' But this would no more be done by giving its date, than by a more general reference. It was not considered to have been done in the case of Watson v. Watson. If it had been, no question could have been made, because the order itself was regular in every particular, and the deed would, had it included it, have been as definite as could have been required under the case of Lockwood v. Sturdevant. We think, therefore, that where an executor, administrator, guardian, or other person authorized to sell real estate under a decree or order of a court of probate, states in the deed the character in which he acts, the fact that he is authorized by an order or decree of the probate court which has authority to grant such order, to sell the estate which the deed purports to convey, and where it appears by the records of the court, or the order itself, which is, generally, a transcript of the records, that the court had jurisdiction of the subject matter, and proceeded regularly in .making the decree, it should be held sufficient to transfer the title. For these reasons, the superior court was correct, in receiving the deed in evidence, and a new trial is not advised.

In this opinion the other judges, Stores and Ellsworth, concurred.

New trial not to be granted.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    The State vs. Bromley.
    Where the complaint of a grand-juror for a violation of the twenty-ninth section of the act of 1854 for the suppression of intemperance alleged, that on a specified day the defendant “ tyas drunk and intoxicated, whereby he was disabled and deprived of his reason,” but did not aver that he was “ found” ' in that condition; it was held, that such complaint was insufficient.
    This was a complaint preferred by a grand-juror of the town of North Stonington to a justice of the peace, for a violation of the twenty-ninth section of the statute of 1854, entitled “ An Act for the suppression of intemperance.” That part of said section material to the present case, is as follows:

      “ If any person shall be found intoxicated, he shall, on conviction thereof, pay a fine of twenty dollars to the treasury of the town in which the offence is committed, together with the costs of prosecution, and stand committed until the judgment be complied with.”
    The complaint was in the following words: “ That William M. Bromley, at said town of North Stonington, on the 28th day of October, A. D. 1855, with force and arms was intoxicated and drunk, whereby he was disabled and deprived of his reason and understanding, against the peace, and contrary to the form of the statute in such case made and provided and of evil example.”
    On the plea of not guilty to this complaint, the defendant was found guilty, and he thereupon appealed to the superior court. At the term of said court holden in November, 1855, the defendant demurred to said complaint, and the questions of law thereon arising, were reserved for the advice of this court.

      Wait and Bond, in support of the demurrer.
    1. If the object of the law on which the prosecution was founded is to suppress intemperance, the makers of the law intended to effect this object by prohibiting the manufacture and sale of spirituous and intoxicating liquors, and not by interfering with their use as a beverage. This is fairly to be inferred from the fact that, out of the thirty-one sections which the act comprises, thirty sections are, by their language, explicitly and solely intended either to regulate or suppress the manufacture and sale of intoxicating drinks. This is also the legitimate inference from a fair construction of the 29th section of the act, when taken in connection with the 17th section. The fine is not imposed upon the person “ found intoxicated ” for being drunk, but only and solely for a refusal on his part to testify “ freely, fully and fairly regarding the procurement or receipt of the liquor which produced his intoxication;” the object of this section of the law being, not to punish the drinker, but to obtain evidence that will lead to the discovery and conviction of the seller.
    2. If it was the intention of the framers of this law to make the punishment of drunkenness a means for the suppression of intemperance, it was intended only to punish that open and public drunkenness, which, from its publicity, tends to breaches of the peace, and is of “ evil example to others in like case offending,” and not secret and unobtrusive intoxication. The language of the 29th section of the act admits of but one interpretation; the person prosecuted under this section, to be brought within its letter and meaning, must not only be intoxicated, but must be “found intoxicated,” that is, he must be publicly seen in that condition.
    3. If a person can not be convicted under this 29th section unless he is found intoxicated, then it is necessary that it should be alleged in the complaint that he was so found, and an omission of such allegation can be taken advantage of on demurrer.

      Willey and Palmer, contra.
    1. The legislature intended that the act under which this complaint originated, should receive a liberal construction, and should not be defeated by technical objections to the form of the complaint.
    2. It is a principle of law, that “ long continued practice may affect the construction of a statute,” and when, under a statute, a form of proceeding has for a long time been adopted, it will be held to be in accordance with the statute. 1 Sw. Dig., 12. 5 Conn. R., 171. McKeen v. Delancy, 5 Cranch, 22. 12 Wheat., 206.
    3. The old statute punishing drunkenness and the new statute are in similar language. “ If any person shall be found drunken &c.,” is the language of the old statute. “ If any person shall be found intoxicated &c.,” is the language of the new. By a uniform practice, the mode of declaring in cases of drunkenness has been substantially the same as is adopted in this case. 2 Sw. Dig., 772.
   Ellsworth, J.

This is an information against the prisoner, under the 29th section of the act of 1854, for the suppression of intemperance. The offence is described in the act, as “being- found intoxicated,” and is the same offence as being found drunk, which has been a statute offence in this state, from a remote period.

By the seventeenth section of the act of 1854, it is provided “ if any person shall be found in a state of intoxicatiou, any sheriff, &c., without iuarrant, may take such person into custody and detain him until he shall be recovered from his intoxication, &c., when he may make full disclosure of whom he procured the liquor, and under certain circumstances he may be discharged from further prosecution. This seventeenth section introduces a new proceeding into this branch of the law; the obvious design of which is, to ferret out places where liquor is kept and sold, and to punish the clandestine vendor of it, rather than his unhappy victim. The drunkard is supposed to be taken while in the state of drunkenness, as he is to be detained until he becomes sober, &c.; but the offence intended in the 29th section is, being or having been found drunk. If the person has been found drunk, he maybe complained of by a grand-juror, and regularly prosecuted, like any other offender.

The objects of the two sections are entirely different; the 17th is to prevent the sale of liquor, the 29th is to prevent intoxication, by punishing the drunkard. Now the 29th section contains the words 'found intoxicated,” in the description of the offence, and if this word be important, or has any distinct meaning in describing the offence, the present complaint is defective, for the word found is not in it, nor any equivalent word, but the defendant is only charged with having been intoxicated on a certain day. We can not wholly discard the word in looking after the statute offence, especially in construing a penal statute, although it may be true that the condition of having been intoxicated, is the offence aimed at by the law, in section 29th, whether or not the person was, at the time, seen, or, as the statute says, found in that condition. Practically, the distinction is of very little if any importance, as no person, probably, has been prosecuted for drunkenness, who was not, at the time he was drunk, seen to be so; but it might be otherwise, and we do not feel at liberty to discard from the act which makes the crime, any circumstance which enters into its description or definition. We think it not at all unlikely, that the popular belief is, that having been intoxicated, and being found intoxicated, mean about the same thing, and that this complaint, which is said to be after the form in Swift, does correctly describe the real offence aimed at by the legislature in the 29th section of the law, viz., being drunk, let it be provable in whatever way it may. This exact question has never been made in our courts, within our knowledge, so that we are called upon for the first time, to interpret the law according to our best judgment, and if we are wrong, it will be easy for the legislature to correct the error.

We advise judgment for the prisoner.

In this opinion the other judges, Stores and Hinman, concurred.

Complaint insufficient.


text:
    Gallup vs. Tracy.
    Poquetannoek cove is a part of the Thames river.
    Where A., B., C. and D. were legally appointed by the town of L., within which town such cove is situated, a committee for staking out oyster grounds in the Thames river, and C. soon afterward, with the consent of A. and B., staked out ground in said cove for that purpose and planted oysters thereon, but D. was not present and not notified to be present at any meeting of the other members of the committee, and did not authorize nor dissent from their action ; it was held, 1st, that such committee might act by a majority of those competent to perform its duties; 2d, that it was not necessary that the members should be notified to meet, or should meet together before acting; 3d, that such proceedings were legal and valid, and that C. had a right to the oysters so laid down, and to the occupation of the ground on which they were laid.
    C. having brought an action of trespass for entering on and taking oysters front the ground so staked out, founded on the forty-third section of the act for the encouragement and regulation of fisheries; (Rev. Stat. p. 862,) it was held, that the further prosecution of such action was not precluded by the repealing clause of the statute passed during its pendency in 18SS, entitled “ An act regulating and protecting the planting of oysters.”
    This was an action of trespass founded on the forty-third section of the “Act for the encouragement and regulation of fisheries,” for taking oysters from ground claimed by the plaintiff to have been staked out and occupied by him pursuant to the statute.'

    At the term of the superior court holden at New London, in November, 1855, the following facts were found, and the case reserved for the advice of this court.
    The plaintiff occupied a piece of ground in Poquetannock cove, about fourteen rods square, as a planting ground; and had at various times during the last twenty years, planted oysters thereon. This land was covered by the tide at low water, and was beneath the navigable waters of the state.
    In the year 1854, the town of Ledyard, within the limits of which this part of the cove was situated, and which town bounds westerly on the Thames river, passed the following vote:

      “ At a town meeting legally warned and held on Monday, the 2d day of Oct., 1854, the following persons were appointed a committee for staking out oyster grounds in the river Thames, viz.: Abel C. Spicer, Washington Avery, Avery Gallup, 2d., Daniel Stoddard.”
    Avery Gallup 2d., mentioned in said vote, was the plaintiff. Soon thereafter, and before the commission of the alleged trespass, the plaintiff called out Abel C. Spicer and Washington Avery, and with their consent, staked out the locus in quo, in conformity with the requirements of the statute, and planted oysters thereon. The plaintiff did not know that Daniel Stoddard was appointed one of the committee, but supposed that, himself being interested, it was only necessary for him to obtain the consent of Spicer and Avery. Stoddard was then living'in Ledyard, and had not declined the appointment, and would have acted if he had been notified. But he was not notified of any meeting of the committee, or of any request for the staking out of this ground, and did not authorize the action of the other members of the committee; nor did he subsequently assent to or dissent from the same before this suit was brought. It was proved that after the ground was so staked out and oysters planted thereon, the defendant entered thereon and took therefrom a quantity of oysters. But the defendant claimed that said ground was not lawfully staked out, inasmuch as Stoddard had not been notified to be present and was not present at any meeting or action of the committee, and had not, expressly or impliedly, concurred in their action, in relation to the ground in question.
    The court found that the staking out was in all respects regular and according to the requirements of the statute, so far as the action of the committee was involved ; unless the failure to notify Stoddard, and the want of his presence and concurrence, or action, or refusal to act, rendered the same invalid and ineffectual, and reserved for the advice of this court the question, whether upon the facts found, the staking out was invalid and ineffectual, or so far forth valid and . effectual.
    The court further found, that the Thames is a navigable river, in which the tide ebbs and flows; that it bounds the town of Ledyard on the west, and that the jurisdiction of said town extends to the center of said river; and that the inlet called Poquetannock cove opens into said‘river, on the east, within the limits of the town of Ledyard, and extends easterly about two and a half .miles, where it heads and receives a small stream called Poquetannock river.
    The waters which fill said cove are not derived in any considerable degree from Poquetannock river, but flow in and out, from and into the Thames river, with the flow and ebb of the tide. Across the mouth of said cove from one point to the other, an embankment and bridge, constructed for the Worcester railroad, extended on the 2d day of October, 1854, and still remain. Said cove is navigable at high water, and is occasionally and to some small extent navigated ; and oysters are found there, and have for many years past been planted and bedded there by the plaintiff, and in parts of it, occasionally, by other individuals.
    The ground staked out was within a line drawn from one of the headlands at the mouth of the cove, to the other, and east of and within the railroad embankment and bridge aforesaid, and beneath the waters of said cove.
    Upon these facts the defendant claimed, that the vote of the town of Ledyard appointing said committee, did not authorize it to stake out, or consent to the staking out of ground for planting oysters in the waters of Poquetannock cove, but that it was appointed for the purpose of staking out, or assenting to the staking out, of ground for the planting of oysters in Thames river, and there only ; and that in attempting to authorize the plaintiff to stake out and occupy said ground, they exceeded their jurisdiction, and their acts were invalid and ineffectual.
    The plaintiff claimed that said cove was only an inlet of the Thames river, and properly a part of it; that the waters of the Thames river were the waters of the cove, and that they flowed in and out at each flow and ebb of the tide, and that by a reasonable construction of said vote, it should be construed to embrace the spot selected by the plaintiff, and that such was the intention of the town ; that the committee did not exceed their jurisdiction ; and that their acts in relation to the locus in quo, were not invalid and ineffectual.
    The question so raised upon the construction of said vote, and whether the committee had power under it to assent to the staking out, by the plaintiff, of the ground, was reserved for the advice of this court.
    The defendant further claimed that the sections of the statute which authorized the occupation of the ground in question, as aforesaid, and the bringing and maintenance of the present suit, were, by the act entitled, “ An act regulating and protecting the planting of oysters,” passed May session, 1855, repealed without any saving clause relating to suits then pending; and that therefore this action could not be now maintained.
    This the plaintiff denied. And the question so raised in relation to the effect of such repeal, was also reserved for the advice of this court.
    The court further found, that the place so staked out was not a natural oyster bed, and that if said members of the committee could lawfully consent to the staking out and occupancy of the same without a notification to Stoddard, or his concurrence, and under the vote of the town of Ledyard appointing such committee, and if the act of the legislature referred to did not affect the maintenance of the present suit, the plaintiff was entitled to recover.
    Wait, E. Perkins and Starkweather for the plaintiff.
    1. The forty-third section of the “Act for encouraging and regulating fisheries,” which permits every inhabitant of this state to plant oysters in any of the navigable waters of this state, and with the consent of a committee appointed for that purpose by the town in which the same shall lie, to mark, stake out, and enclose the ground on which such oysters are planted, does not contemplate any act to be done on the part of such committee, or any convening together to give their consent to the act of another. They are not called upon to execute any power conferred upon them, but merely to consent that another may execute a power conferred upon him. The law does not require that they should all be notified to meet together. It being a compliance with the law if a majority consent, though they consent separately, it is necessary only to call upon such majority to consent.
    2. The vote of the town of Ledyard appointing said committee, did authorize them to consent to the staking out of the locus in quo ; said Poquetannock cove being but an inlet of the river Thames, and properly a part of it. The waters of said river are the waters of said cove, and flow into and out of the same at each flow and ebb of the tide; and by a reasonable construction of said vote, it should be construed to embrace the spot selected by the plaintiff. Such was the intention of the town ; the committee did not exceed their jurisdiction ; and their consenting to the staking out of the same by the plaintiff was valid and effectual.
    3. The sections of the statute which authorized the occupation of the locus in quo as an oyster bed, and the bringing and maintenance of this suit, having been repealed during the pendency of the suit, such repeal did not in any manner affect the maintenance and prosecution of said suit: 1. Because the proviso that continued said sections in force as to any ground then marked, staked out and enclosed by virtue of the provisions of these sections, prevents the discontinuance of this suit; for the rule is, that whenever conditional stipulations of a statute are general, every thing that is necessary to make such stipulations effectual, is given by implication of law, and is also supposed to be reserved. 1 Sw. Dig., 11. 2. Because this law was in its nature a contract between the public and the plaintiff, and the right to use this particular spot having become vested in the plaintiff under the contract, a repeal of the law could not divest him of these rights. 1 Sw. Dig., 13. Den v. Robinson, 2 South., 689. Naught v. O’Neal, Breese App., 29. McMachen v. The Mayor, 2 H. & J., 41. Taylor v. Rushing, 2 Stew., 160. Davis v. Minor, 1 How., (Miss.) 183. James v. Dubois, 1 Harr., 285.

      Halsey for the defendant.
    1. The statute upon which the action is founded was repealed by the act of 1855, and there is no saving clause providing for suits pending. If judicial proceedings are begun under an act and not finished when it is repealed, they can not be pursued. 1 Kent Comm., 465. Butler v. Palmer, 1 Hill, 324. North Canal Street Road, 10 Watts, 351.
    2. The committee had no authority to stake out oyster grounds in Poquetannock cove; the statute, being in derogation of the common law, is to be strictly construed. The vote of the town authorized them to stake out oyster grounds in the “river Thames.” The river and cove are distinct streams of water. It is to be presumed that the town used the term,'as used in common expressions in that community.
    3. The failure to notify Stoddard, renders the act of the committee void. They were not duly assembled, consequently there was no action by the committee, as such. Where a power of a public nature is committed to several persons, the act of a majority regularly met, is the act of the whole; but without notice to all to be present, they are not regularly assembled. Gridley v. Baker, 1 B. & P., 229. Dobson v. Fussy, 7 Bing., 305, (20 E. C. L. R. 139.) Greene v. Miller, 6 Johns., 39. Groton v. Hurlburt, 22 Conn. R., 189. Where the authority is for a private purpose, all must join in the act, and when a proviso is made that a less number may act, all must be present unless those who do not attend, had proper and sufficient notice and were wilfully absent. Greene v. Miller, 6 Johns., 39. McInroy v. Benedict, 11 Johns., 402. Brown v. Kingsley, 1 Johns. Ca., 334. Dalling v. Matchett, 2 Petersdorff Abr., 188. 1 Sw. Dig., 468.

       The section of the act above referred to is as follows:
      " Sec. 43. Every inhabitant of this state may lay down or plant oysters, in any of the navigable waters of this state; and with the consent of a committee appointed for that purpose by the town in which the same shall lie, may mark and stake out the ground upon which said oysters shall have been laid down or planted, and enclose it with stakes set at suitable distances, and of such length as to be at least two feet above high water mark; and every such inhabitant who shall so lay down, or plant, or inclose oysters, shall hold, possess and enjoy the same, and shall have the exclusive right and privilege of taking up and disposing of such oysters; provided that nothing herein contained, shall affect the rights of any owner or proprietor of any’meadow or other lands in which there may be salt water creeks or inlets, or which may be opposite or contiguous to such navigable waters, nor be construed to interfere with the rights of individuals, or the by-laws of any city, town, or borough, now existing*”

   Ellsworth, J.

One of the questions made in this case is, whether the repeal of the statute on which the action is brought, since the commencement of the action, defeats its further prosecution. We think the plaintiff had acquired a vested right in the oysters which he had laid down, and to the occupation of the place where he laid them down, unless there be a defect in his title, which we shall consider in the sequel, and therefore, that the repeal of the statute did not take away this right of property.

There is some question, whether the vote of Ledyard extends to the waters of the Poquetannoek cove. We think it does. This was undoubtedly the idea of the town, and the committee of the town; for- this committee was the only one appointed to grantlicense in any and all the waters of the town. This however, would not be decisive of the law of the ease, though it is justly entitled to weight in construing the vote, or rather in applying it to the subject matter in dispute.

This cove is little else than the tide waters of the river Thames, rising and setting into it from the general channel, and so absolutely does the cove constitute a part of the river, that the cove is not sensibly affected by the small stream which runs into it from the land side. The margin of this river throughout, abounds in inlets, indentations and recesses, according to the form of its banks and the extent of its marshes, but none of them are of any considerable size or depth, or capable of any general use, independently of the river itself. They are, then, mere dependencies and reservoirs of its waters.

The remaining question is attended -with somewhat more difficulty, and on general principles it may seem, at first view, as if it should be decided for the defendant. We refer to the want of consent of a numerical majority of the committee of the town of Ledyard, to the plaintiff’s appropriation to himself of the place in said cove in which he planted the oysters in question. We make no question, that the general principle of law is, that public agents may act by majorities where all are present, or where all have notice to be present; and, generally, not otherwise. 23 Wend., 211. But the question here is, of how many the committee consisted. If of three only, these two having given consent, it is enough, unless the fact that the other one had not notice to be present, is fatal to the plaintiff’s title or license. Three of the four members of the committee, strictly, may be said to have licensed and approved the location and appropriation by the plaintiff, two by express act, and the plaintiff of course, if he could be counted on the occasion; but if he could not, because he was the party to be licensed, and we think he could not, then the committee may be held to have consisted of three only, as in the case of the death of one of the number-, or his inability to act, by reason of absence from the town, sickness, insanity or interest. We think the plaintiff need not be counted as one, and so there were only three who could consent to the appropriation by the plaintiff; and two of the three have consented. This is a reasonable construction of the statute, which only requires license or consent from the committee, whose action is not to be likened to the formal adjudication of a board of judges, or assembled magistrates. Such a construction of the duties of this committee as we adopt, we are persuaded is in harmony with the general usage, and the general understanding of the people of the state, and of the legal profession; and were we to decide otherwise, we should do violence to this common sentiment, and, we fear, disturb rights of property universally recognized and long enjoyed. This statute is not unlike the one which requires the consent of selectmen, where owners wish to set out trees in the highway, in front of their lands. The consent of all the selectmen is not asked, nor of a numerical majority of all, if some of them can not act, by reason of absence, sickness, See. Without meaning to depart from the well-established law as to the manner in which public powers should be executed, or to lay down an absolute and universal rule, we incline to hold that the plaintiff’s license in this instance was properly enough given, and that it is sufficient. Damon v. Granby, 2 Pick., 352. Jones v. Andover, 12 Mass., 150. 3 T. R., 592. 6 T. R., 388. 6 Johns., 39.

It is further said that the committee should have been assembled for consultation, or that all should have had notice of the assembling; and that then, the majority of the whole could have given consent. This depends upon the view taken of the character of the committee. We do not consider them to be a board necessarily to be assembled, but as having power conferred by statute to give license and permission, seriatim. They certainly are not a board, in common parlance; they have no fixed place of acting or consultation, no record, no clerk, no time and no mode of proceeding. They act at once when and where a license is wanted; and to impose upon them, now, the formalities and rules of boards, requiring to be regularly convened before they can act, will essentially frustrate the object of their appointment, and needlessly embarrass the enjoyment of these minor rights and privileges. We think it wiser and more in harmony with general usage, to hold that a committee like this, need not be assembled to act, and may act by majorities of such as are competent to perform the duty. We advise judgment for the plaintiff.

In this opinion the other judges, Stores and Hinman, concurred.

Judgment for the plaintiff.


text:
    The Norwich Gas Light Company vs. The Norwich City Gas Company.
    The common council of the city of N. passed a resolution granting to T. and his assigns, for the period of fifteen years, the right to lay gas-pipes in the streets of said city, declaring therein that no other person or corporation should by tbe consent of such common council lay gas-pipes in said streets during that time. Held, that such resolution licensed T. and his assigns to use said streets in the manner specified in the resolution, hut not to restrain others from a similar use, which did not interfere with their works
    Where the plaintiffs, who were incorporated for the purpose of supplying said city of N., with gas, and authorized in their charter to purchase of T. all his gas-works and gas-business in said city and to lay down gas-pipes in the public streets and grounds of said city, purchased of T. all his said works and business; it was held, that their right to use said streets for those purposes was not exclusive.
    Where an amendment of the plaintiffs’ charter provided, that said right to lay down gas-pipes in and through the streets and public grounds of said city, should be exclusive as against any and all other persons and corporations except such persons or corporations as might thereafter be invested by the general assembly of the state with power to use said streets for the same purpose ; it was held, that so far as such amendment was a restriction upon the free manufacture and sale of gas, it was a monopoly, and was unconstitutional and void.

      Where subsequently to such charter T. assigned to the plaintiffs all his gasworks and business, and after said charter was amended as aforesaid, another gas company, organized under the statute relating to joint stock corporations, commenced opening the streets of said city of N. to lay down their pipes; it was held, that the plaintiffs were not entitleí’to an injunction to restrain such new company from continuing their works.
    Where such plaintiffs, during their controversy with the defendants, and for the purpose of preventing the latter from laying their pipes from their gas-works into said city of N., purchased a lot of land so situated upon the highway that it was necessary that the defendants’ main pipe should pass through it, and the defendants laid their gas-pipes across that part of said lot which lay within the limits of the public highway, and avowed their determination to maintain it there; it was held, that as the substantial controversy between the parties was in relation to their rights to use the highways irrespective of any title to the soil, and as the defendants were liable to the plaintiffs in an action of trespass for any damage the former might do to their land, said injunction ought not to be granted for that reason.
    This was a bill in chancery brought by the Norwich Gas Light Company for an injunction against the Norwich City Gas Company. The injunction asked was, “ to order and decree that the said Norwich City Gas Company refrain from all further distribution of gas through said streets &c., in said city and town of Norwich, and from all further use of said streets, &c., for that purpose, under some suitable penalty.”
    At the term of the superior court held in November, 1855, the court found the following facts, and reserved the questions arising in the case for the advice of this court.
    In the year 1848, Frederick W. Treadway commenced the erection of works for the manufacture of oil gas from oil, and completed them in 1849.
    In May, 1851, upon the application of said Treadway, in which a large number of the influential inhabitants of said city united, the common council of said city passed the following resolutions:
    “Resolved, That liberty be and is hereby granted to Frederick W. Treadway, and his assigns, to lay gas pipes and to erect gas-posts, burners and reflectors in the streets of this city and to do all things necessary to light said streets,' and the dwellings, stores, and other places situated therein; Provided, that the said streets and the trees growing therein shall not be injured, but shall be left, and remain in as good and perfect condition as before the laying of said pipes, or the erection of said posts. And provided further, that for any injury to individuals that may arise from the laying of said pipes or from the repairing or using the same, the said Treadway or his assigns, shall be liable in the same manner as if this resolution had not been passed.
    “Resolved, That the preceding resolution and the privileges thereby granted, shall continue and be in force, and may be enjoyed by the said Treadway and his assigns, for the period of fifteen years; and during that time, no other person, persons, or corporation, shall, by the consent of the court of common council, lay gas-pipes in said streets; Provided, That the said Treadway, or his assigns, shall, during the period aforesaid, furnish for the use of the city when required, and of such citizens residing on the streets through which gas-pipes are laid, as may want the same, good coal or other gas, at a price as cheap as gas of like description and quality shall be furnished in other cities of the class to which Norwich belongs, not exceeding four dollars per thousand feet, and on failure to do so, the privileges hereby granted shall cease, and these resolutions be without force.”
    In the year 1853, Treadway purchased a new site without the city, and commenced the erection of new and more extensive works. For the purpose of acquiring more capita], and obtaining other powers, and in connection with other persons, in the spring of 1854 he and others with him made application to the legislature of the state for a charter of incorporation.
    About the same time another and independent petition for the incorporation of another and a different company, but for the same purpose, was preferred to the same General Assembly, by Leonard Ballou and others.
    The assembly negatived the petition preferred by Ballou and others, and granted the prayer of the petition of Tread-way and others, and incorporated the petitioners under the name of the Norwich Gas Light Company, in an act, the material part of which is as follows :

      “ Sec. 2. Said company is hereby authorized and empowered to purchase of Frederick W. Treadway his gasworks and gas-business in the city of Norwich, with all the pipes, machinery, land, and buildings connected therewith, and when they have so purchased, are hereby authorized and empowered to manufacture, make, and sell gas, and to use for that purpose, rosin, coal, oil, or any other material or materials, and to furnish such quantities of gas as may be required in the city and town of Norwich, for lighting streets, stores, buildings, or other purposes, and to enter into and execute contracts, agreements or covenants in relation to the objects of said company, and to enforce the same.
    “ And said company shall be capable of purchasing, taking and holding, and of granting, selling and conveying any estate, real or personal, necessary to give effect to the specified purposes of this company, and for the accommodation of their business and concerns, and to lay down their gas-pipes and to erect gas-posts, burners and reflectors in the streets, alleys, lanes, avenues, or public grounds of said city and town of Norwich, and to do all things necessary to light said city and town of Norwich, and the stores, dwellings and other places situated therein, provided, that said gas-pipes shall be laid down and tested before being covered, in the same manner in which similar pipes are now laid down and tested by the New Haven Gas Light Company, and under the superintendence and to the satisfaction of the Mayor of the city of Norwich, and that said streets, cross and side walks, public grounds and public avenues, and the trees of said city, shall not be injured, but all be left in as good and perfect condition as before the laying of said pipes, or the erection of said posts.”
    This company accordingly purchased of Treadway all his gas property and gas-works, and also whatever rights and interests he had by virtue of the resolves of the common council of the city of Norwich, and said property became vested, so far as it was by law capable of being transferred and vested, in the plaintiffs; who performed all the requirements of their charter, and of the resolutions of the common council, and expended large sums of money in completing their works, and extending their pipes through the city and town of Norwich; and were able and willing to supply all the gas required by the inhabitants of said city and town.
    On the fourteenth day of July, 1854, Leonard Ballou and several other signers of the independent petition preferred to the assembly as aforesaid, with others, including also Chapin, Treadwell & Co., of Springfield, Massachusetts, organized themselves into a joint stock company, pursuant to the statute laws of this State, in and by articles of association, and became a corporation, which corporation is the defendant in this case.
    Before said petitions were preferred to the general assembly, the common council passed certain resolutions revoking, or attempting to revoke, the privileges they had granted to Treadway, for the alleged reason that such privileges had been forfeited. But it was not proved that any inquiry or hearing upon the subject was had, or that Treadway was notified of any; and such resolutions, therefore, were not received as evidence of any such forfeiture.
    On the 14th day of September, 1854, said Norwich City Gas Company made a contract in writing with Chapin, Treadwell & Oo., who therein contracted, for the sum of sixty thousand dollars, to erect suitable works for the manufacture and distribution of gas through said city of Norwich.
    On the 25th day of September, 1854, the plaintiffs brought their bill to the superior court for the county of New London, praying for an injunction to restrain said Norwich City Gas Company, from interfering with the rights .enjoyed by the plaintiffs under their charter, and the aforesaid resolutions of the common council of Norwich, and upon said bill obtained a temporary injunction, which was duly served on the said Norwich City Gas Company ; said bill was duly returned to said superior court, and was there fully heard and upon such hearing dismissed.
    After the dismissal of said bill the Norwich City Gas Company proceeded to erect their works, and lay their pipes pursuant to the object of their organization.
    On the 20th day of April, 1854, the plaintiffs, by their agent, purchased of one Frink, a lot of land, fronting about forty feet on Main street in said city, and extending to the centre of the street, and had actual possession of it thereafter, subject to the easement of the public for a highway. It-was important to the defendants that their main pipe should pass in the highway over this land into the city, and the plaintiffs, knowing this, purchased the property for the purpose of preventing the defendants from laying their pipes upon said land, and thus of preventing them from laying their pipes in the city.
    On the 26th day of February, 1855, the Norwich City Gas Company preferred their petition to the common council of the city of Norwich, praying a grant of the privilege of laying down their gas pipes in the streets and public places of said city, which, on the 20th day of March, was granted.
    On the 21st day of April, next following, the Norwich City Gas Company, also brought their petition to the general assembly, then next to be holden at Hartford, praying said assembly to confer upon them the right to lay down pipes in the streets of said city of Norwich, for the distribution of their gas, which was duly served upon the city and town of Norwich, and returned to said assembly. And on the same day the plaintiffs preferred their petition to said assembly, praying for an amendment of their charter, which was duly served upon said Norwich City Gas Company, and returned to said assembly.
    During the pendency of these petitions before the assembly, and with full knowledge of all the aforesaid facts, the defendants entered upon part of the land so owned by the plaintiffs and laid their pipes in the same, and from thence continued and avowed their intention to continue to keep and maintain the same in said land. All which was done, against the prohibition and without the consent of the plaintiffs.
    The several petitions preferred to the general assembly in May, 1855, were duly heard, and the assembly denied the prayer of the petition of the respondents, but granted the prayer of the petition of the petitioners, and passed a resolve, amending their charter, which amendment was afterwards, on the 23d day of June, 1855, duly accepted by the stockholders of the Norwich Gas Light Company, and then became a part of their charter of incorporation.
    The second section of such amended charter was as follows:
    “ Sec. 2. The right of the Norwich Gas Light Company to lay down gas-pipes, and to erect gas-posts, burners, and reflectors, in and through the streets, alleys, lanes, avenues, and public grounds of the city and town of Norwich, and to distribute gas through the same for the purpose of lighting said streets, lanes, alleys, avenues or public grounds, and the stores, dwellings, and other buildings situated thereon, is, and is hereby declared to be exclusive, as against any and all persons or corporations, except such persons or corporations as may hereafter be invested by the general assembly of this State, with power to use said streets, lanes, alleys, avenues and public grounds for the same purpose. Provided, that nothing in this act contained, shall prevent any individual, corporation, or society from making or using gas on their own premises, and that the price of gas manufactured by said Norwich Gas Light Company shall at no time exceed four dollars per thousand cubic feet.”
    The defendants continued to lay their pipes in said land, but the court did not find that any great injury to the land or the enjoyment of the same by the plaintiffs, resulted from said pipes, the same being beneath the ground and without leakage.
    And the court further found that the business of the plaintiff’s would have been profitable and remunerative if it had not been interfered with by the competition of the defendants, but that it had ceased to be so. The defendants had laid about 22,000 feet of pipe, a large proportion of it in the streets where the pipes of the plaintiffs were laid, and sold a considerable quantity of gas, and seriously injured and would continue to injure seriously the business of the plaintiffs, and to depreciate the value of their property in said business. A portion of said pipe was laid and a portion of the customers of the defendants obtained gas of them since the passage of said resolve amending the charter of the plaintiffs, and the defendants, with a full knowledge of all the facts aforesaid, have persisted in disregarding the same.
    The question whether any and what relief should be granted in the case, and all questions arising therein were reserved for the advice of this court.

      Me Curdy, Wait, and E. Perkins for the plaintiffs.

      Halsey for the defendants.
    To entitle the plaintiffs to the relief they seek by injunction, they must show an injury to their rights in the character of an incorporated company.
    Their claim is based — 1st. Upon their having an exclusive right to light the city and town of Norwich with gas. And 2d. Upon their equitable ownership of the Frink lot on Main street.
    Have they an exclusive right? If so, it is derived from their original charter, or by the license to Treadway from the common council, or by both conjointly; or by the amended charter in connection with the foregoing.
    1st. The original charter itself conferred no such right. The principal object of the charter was to enable the plaintiff's, in a corporate capacity, to manufacture and sell gas; and as incidental to that, to use the streets for distributing it.
    There is no such exclusive right expressly given, nor is it necessary that they should have such right in order to exercise the power expressly granted, and therefore there is no ground for any implication of a grant of such exclusive powers. The exclusive right is claimed in the incident, and that.by implication, while it is not contended that there is any in the principal, — the right to manufacture and sell gas. The case of the Charles River Bridge v. The Warren Bridge, 11 Pet., 420. (12 Curtis Ed., 496,) is conclusive against the plaintiffs, as to the rule of construction. That was a case of governmental prerogative. This is a mere grant to transact ordinary business in a corporate capacity. Therefore the construction should be more strict. This is a grant wholly of benefits. The Attorney General v. The Sheffield Gas Consumers’ Company, 19 Eng. L. & E., 639. (S. C. in Gas Journal, vol. 3, p. 31, 32,60.) Chartered Gas Company v. The Central Gas Company, Gas Journal, vol. 1, 322. The plaintiffs liken their charter to bridge and ferry charters, but there is no analogy. “ Bridges and ferries are a common charge for the benefit of all the citizens, and are therefore provided for by, and are under the control of, the government.” 17 Conn. R., 64. It may well be doubted, if the point were now before the court, whether any such implied construction would be given to such charters. 18 Conn. R., 451.
    2d. The resolution of the court of common council of August 4th, 1851, conferred on Treadway no exclusive right. That court had no power to make any such grant. The utmost that it amounted to was a license to use the streets, and to protect him from prosecution under the city by-laws, or on behalf of the state.
    The whole powers of the common council were derived from the city charter, which embraces the following provisions. “ There shall be a court of common council, who shall have power to make by-laws” (among other things,) “relative to the streets and highways of said city,” — “relative to public lights and lamps,” and “ power to lay out streets, &c., &c.” Whatever powers they have, are derived from these sections, and are of a limited nature, and to be strictly construed. City of New London v. Brainard, 22 Conn. R., 552. Hodge v. City of Buffalo, 2 Denio, 110.
    They have power, also, to make by-laws. Where a particular mode is pointed out, that mode is to be pursued. But here is no by-law.
    The resolution is also void as creating a monopoly. A by-law which makes a monopoly is void. Jacob’s Diet., Monopoly.
    3d. There is no exclusive right acquired by virtue of the purchase from Treadway. The legislature did not intend to confer any new power upon the court of common council, or to validate their action; but simply to authorize the company to purchase of Treadway. They took by assignment only what rights he had. Charles River Bridge v. The Warren Bridge, 11 Pet., 420.
    4th. The amended charter is ineffectual to confer upon the plaintiffs an exclusive right, because, 1st, if it has the effect which the plaintiffs claim, it is an attempt of the legislature to construe their own grant, — to exercise judicial functions.
    The legislative and judicial powers are separated by our constitution. Art. 2.
    A legislature, cannot authoritatively declare what the law is, or has been, but only what it shall be. Ogden v. Blackledge, 2 Cranch, 272, (1 Curtis’ Ed., 490.) Dash v. Van Kleek, 7 John., 478. The Governor v. Porter, 5 Humph., 165, (4 U. S. D., 405.) Chestnut v. Shane, 16 Ohio, 599, (8 U. S. D., 71.) Houston v. Bogle, 10 Iredell, 496, (11 U. S, D., 971.) McLeod v. Bourroughs, 9 Geo., 213, (12 U. S. D., 120.) 1 Kent’s Com., 456, Notes. 2d. Because it creates a monopoly, contrary to common right and natural justice, and to the spirit and intent of the constitution of this state. That it creates a monopoly, 4 Black., 159. Ba. Abr., monopoly, A. Bouvier’s Dict., monopoly. Jacob’s Dict., monopoly.
    It is against common right and natural justice, and therefore cannot be granted by the legislature, independently of the constitution. De Bonham’s Case, 8 Co., 114. Calder v. Bull, 3 Dallas, 386. Bank of Columbia v. Okely, 4 Wheat., 244, (4 Curtis’ Ed., 390.) Varick v. Smith, 5 Paige, 137. Taylor v. Porter, 4 Hill, 140. Mather v. Chapman, 6 Conn. R., 58. Bradshaw v. Rogers, 20 John., 109. The principle was judicially declared in Ham v. McClaws, 1 Bay, 98, and Bowman v. Middleton, 1 Bay, 252. 1 Kent, 451. The same principle was laid down in Rice v. Foster, 5 Harring., 479, (10 U. S. D., 100.)
    It is in violation of the letter and spirit of the constitution of this state. Declaration of rights, Art. 1st

      5th. The facts found as to the lot on Main street, do not entitle the plaintiffs to an injunction. A mere trespass is never a ground for an injunction. There must be irreparable injury, or danger of it. Attorney General v. The Sheffield Gas Consumers’ Company, 19 Eng. L. & E., 639.
   Hinman, J.

The plaintiffs are a corporation under a charter granted by the general assembly, and the defendants are also a corporation, organized under the provisions of the statute in relation to joint stock corporations. Both companies are engaged in the business of making and supplying the city and town of Norwich and the inhabitants thereof with gas. The plaintiffs, under a grant or license to Frederick W. Treadway, the interest in which they have acquired by assignment from Treadway, and under their original act of incorporation and an amendment thereto, passed in 1855, claim the exclusive right to use the streets and public grounds of the city for the purpose of laying down gas-pipes and erecting gas-posts and burners therein.

The court of common council of the city of Norwich, on the 4th of August, 1851, passed a resolution which purports to grant to Treadway and his heirs and assigns the right to lay gas-pipes and erect gas-posts, &c., in the streets of the city, and it declares that the privileges thereby granted shall continue and be in full force, and may be enjoyed by said Treadway, and his assigns, for the period of fifteen years; and that during that time no other person, persons, or eorpotion shall, by the consent of the court of common council, lay gas-pipes in said streets.

The original act of incorporation gives the plaintiffs, among other things, authority to purchase of said Treadway his gas-works and gas-business, in the city of Norwich, with all the pipes, machinery, land and buildings connected therewith, and to manufacture and sell gas, and to furnish such quantities thereof as may be required, for lighting the streets and buildings, and for other purposes. It also gives them the right to lay down their gas-pipes, and to erect gas-posts, burners and reflectors in the streets and public grounds of the city and town of Norwich, and to do all things necessary to light the said city and town of Norwich, and the stores, dwellings, and other places situated therein; and by the amendment to the charter, it is declared that this right is, and is hereby declared to be exclusive, as against any and all corporations, except such persons or corporations as may thereafter be invested by the general assembly of the state with power to use said streets and public grounds for the same purpose. The amendment also provides, that it shall not be construed to prevent any person or corporation from making gas on their own premises; and that the price of gas, manufactured by the plaintiffs, shall not exceed four dollars per thousand cubic feet.

The defendants have obtained no grant or authority from the general assembly to lay their gas-pipes in the streets or public places of the city or town; but, on their application to the court of common council of the city, that body, on the 26th of March, 1855, without any notice to the plaintiffs, and without revoking, or otherwise noticing its former grant to the plaintiffs, granted the defendants the privilege of laying their gas-pipes &c., in the streets and public places of the city, on certain terms, upon which no question arises.

Upon these facts the question is, whether the plaintiffs have such an exclusive right to the use of the streets and public places in the city of Norwich, for the purpose of laying gas-pipes, and distributing gas therein, as to be entitled to an injunction against the defendants, who are engaged in the same business, and are using the streets for the same purpose.

In the determination of this question, the court will not undertake to define the rights or powers of cities, or other municipal corporations, or of individuals, to make use of the public streets, for the purpose of laying gas-pipes therein, or for other similar purposes, any further than it may become necessary, in order to determine the questions which are involved in the case. The right of the plaintiffs to an injunction, does not depend upon the question whether the defendants have the right to use the streets in the manner they are using them, in order to distribute their gas; but upon whether the plaintiffs have such an exclusive right to use them, that they can call upon the court to protect them in this right, by injunction. The plaintiffs’ case must stand upon the strength of their own title, and not upon any defect in that of the defendants; and it is obvious that if the plaintiffs have the exclusive right which they claim, they must have acquired it, either as the assignees of Treadway, under the resolution of the court of common council, of the 4th of August, 1851; or under the original charter to them, granted in 1854; or under the amendment to the charter, passed in 1855.

The plaintiffs however are the equitable owners of what is called the Frink lot, and if they have no exclusive right to the use of the streets, under any of these grants, then there will remain only the question, whether they are entitled to enjoin the defendants against laying their pipes in the street, in front of this lot.

1. Have the plaintiffs an exclusive right to the use of the streets as the assignees of Treadway ?

The resolution under which this right is claimed, purports to grant to Treadway and his assigns, for the period of fifteen years, the right to lay gas-pipes in the streets; and it declares that no other person or corporation shall, by consent of the common council, lay gas-pipes in said streets during that time. But the city does not own the streets. They are public highways, like any of the ordinary roads in the state; and although, by the city charter, they may be subject to certain regulations respecting police, side-walks, drainage, and repairs, yet the city, as such, has no interest in the soil. This belongs to the adjoining proprietors, or to other individuals, as in the case of other highways. Nicholson v. N. H. & N Y. R. R. Co., 22 Conn. R., 74. And the right of way over them, being public to all who may have occasion to use them, and the only power of the city over them being given by their charter in order to regulate such use, it seems clear that the city can make no grant which shall convey to the grantee any interest in them, which can, in any proper sense, be deemed property. Besides, if the resolution of the court of common council be viewed in the light of a grant of an interest in the soil, it should have been perfected by a deed. No title, as such, can be transferred by a mere vote of a corporation, which will enable any one to hold any permanent interest in real estate.

But if the whole effect of the resolution be merely to license Treadway and his assigns to use the streets, so as to protect them from a prosecution for a public nuisance for digging them up in order to lay down their pipes, it is obvious that it could only operate to protect themselves; and would give them no title by which they would be authorized to restrain the defendants from similar acts, provided those acts did not interfere with the works of the plaintiffs. We think, therefore, the plaintiffs can derive no aid from this act of the authorities of Norwich, in this application.

2. If no exclusive right to the use of the streets was acquired under the resolution of the court of common council, the next question is, whether any such right was acquired, under the plaintiffs’ original charter, either by itself alone, or in connexion with their assignment from Treadway?

The only part of the original charter which can have any bearing upon this question, is the second section. That authorizes the corporation to purchase of Treadway his gasworks and gas-business, with all the pipes, machinery, land, &c., connected therewith, and to make and sell gas, and furnish such quantities of gas as may be required for lighting streets, stores, and other purposes, and to make and enforce contracts in relation thereto, to purchase real and personal estate for the accommodation of their business, and to lay down their gas-pipes, and erect gas-posts, burners, &c., in the streets and public grounds of the city and town of Norwich, and to do all things necessary to light the city and town, and the buildings therein. This is the substance of all there is in the charter on the subject; and we discover nothing in it which can fairly be said to raise a plausible argument in the plaintiffs' favor. So far as any exclusive right to any of these privileges is concerned, we do not see how the plaintiffs’ ease can be made to differ from the chartered powers of any trading corporation. In regard to the use of the streets, it might operate to protect them from a prosecution, on the part of the public, for breaking them up. But in other respects, how do they stand on any different ground from an incorporated transportation company, with the right to use the highways with their carriages, or the public waters with their boats 1 And could it aid such a corporation, in a claim to an exclusive right to use the public highways, that it was also authorized to purchase the effects of some person who had formerly been engaged in the same business ? There is nothing that makes it necessary that the plaintiffs’ rights should be exclusive. Two or more companies may consistently use the same streets, for the purpose of laying down their pipes. Without resorting, therefore, to the rule that public grants are, in some cases, to be construed most beneficially for the public, and against the grantees, we feel no'hesitation in saying, that the legislature did not intend in the original charter to grant to the plaintiffs any exclusive right to use the streets for the purpose of distributing gas.

3. Have the plaintiffs the exclusive right which they claim under the amendment to their charter, passed in 1855 ?

The second section of the amendment provides that “ The right of the Norwich Gas Light Company to lay down gas-pipes, and to erect gas-posts, burners and reflectors, in and through the streets, alleys, lanes, avenues, and public grounds of the city and town of Norwich, and to distribute gas through the same for the purposes of lighting said streets, lanes, alleys, avenues or public grounds, and the stores, dwellings, and other buildings situated thereon, is, and is hereby declared to be exclusive, as against any and all persons or corporations, except such persons or corporations as may hereafter be invested by the general assembly of this state, with power to use said streets, lanes, alleys, avenues, and public grounds, for the same purpose. Providedthat nothing in this act contained, shall prevent any individual, corporation, or society from making or using gas on their own premises, and that the price of gas manufactured by said Norwich Gas Light Company shall at no time exceed four dollars per thousand cubic feet.”

The defendants do not claim to have procured from the general assembly any authority to use the streets, &c., of the city for the distribution of their gas, and thus to have brought themselves within the exception contained in this section ; and we are thus brought directly to consider, what additional privileges were conferred upon the plaintiffs, by this amendment of their charter. And it cannot be denied that the expressed intention of the section is to make the right of the plaintiffs to use the streets exclusive, for the purpose of distributing gas to light the streets, and buildings situated thereon. The question here, then, must be, whether this provision is one which the legislature could lawfully make, in the form in which it is here attempted to be made ? And however reluctant the court may feel, to be obliged to pass upon a question of this sort, yet, as it cannot be avoided without an entire disregard of duty, the question must be disposed of like any other which it becomes necessary to determine, though with all due respect to the legislative power of the state.

This provision must, w.e think, be taken either to be intended as a declaration and enactment, that the laying of gas-pipes in the streets of the city, for the purpose of distributing gas therein, to light the streets and buildings, should be a public nuisance in all other persons, except the plaintiffs; or to be intended as a grant to the plaintiffs of an exclusive property franchise in the streets, consisting in the right to use them for this purpose. The plaintiffs claim it in both these aspects; and they are necessarily driven thus to make their claim, because, if it be viewed as a mere enactment that the laying of gas-pipes in the streets by any persons other than the plaintiffs shall be unlawful, and amount to a public nuisance, without granting any exclusive right to the plaintiffs to do such acts — that is to say, without granting them some legal interest in the use'of the streets for this purpose other than such as would result from a mere license to do acts which would amount to a nuisance in other persons, then it would seem to follow from the decisions, that the plaintiffs would have no such interest in the acts of the defendants, as would enable them to apply for an injunction. A mere license to the plaintiffs to distribute gas in a mode which is a public nuisance in other persons, gives them no interest in the street, and they can only sustain their bill upon the idea that they have an interest there which has been, or is threatened to be interfered with. The fact that the parties are competitors for the custom of the city, and its inhabitants, for the sale of gas which they .manufacture, can give the plaintiffs no right to interfere in the defendants’ business, for the purpose of rendering the distribution of their gas so inconvenient as practically to prevent their doing it, and thus of . securing to themselves a monopoly of the business. The manufacturing of gas for the purpose of lighting buildings is a lawful business, which the plaintiffs obviously have no lawful right to interfere with, by throwing obstructions in the way of its distribution. On the contrary, the policy of the law is to encourage trade, by the free competition of all who may choose to engage in it, and it cannot recognize a right in the plaintiffs to interfere for the purpose of preventing a public nuisance, on the ground of an interest they have, as competitors with the defendants, for the public patronage in this business.

If the defendants were engaged in an extensive tannery, so located as to be a public nuisance, could the owners of a rival establishment found a right to interfere on behalf of the public and themselves, merely on the ground that their business was less profitable than it would be, if there were no competitors in the market? We presume no one would seriously make such a claim, yet we see no distinction in principle in the cases. In this aspect, then, the plaintiffs must be considered in the light of a person having no other interest in the subject matter than such as is common to the whole public, attempting by the process of injunction, on his application alone, to restrain the defendants from the commission pf a public nuisance. This, it is well settled, cannot be done. Bigelow v. Hartford Br. Co., 14 Conn R., 565. O’Brien v. Norwich & Worcester R. R. Co., 17 Conn. R., 372. Attorney General v. Sheffield Gas Consumers’ Co., 19 E. L. & Eq. R., 639.

Has then the amendment to the plaintiffs’ charter the effect of conferring on them an exclusive property franchise, in the streets and public places in the city of Norwich, for the purpose of laying pipes through which to distribute gas ? The plaintiffs insist that it has this effect, and they say it confers on them a franchise similar, in all respects, to the franchise which is sometimes granted to a ferry or bridge corporation, prohibiting any other ferry or bridge within certain specified limits.

A franchise is defined by Blaekstone to be a royal privilege or branch of the crown’s prerogative, subsisting in the hands of a subject. Being derived from the government, it is always supposed to have been originally granted by the government. It is property which may be transferred. by sale or devise, and it will descend to heirs like other property; and the owner has the same security for its protection under the constitution, as has the owner of any other property. Enfield Toll Br. Co. v. Hartford & N. Haven R. R. Co., 17 Conn. R., 40.

As this is a species of property derived by grant from the government, it follows, that if the government has no power to make the grant, either because it is contrary to public policy, or because the government had no title to the thing granted, no title will be conveyed to the grantee. This' grant appears to have been made without any consideration whatever for it. The plaintiffs are under no obligation to make gas, or to suffer the gas which they may make to be used. They are restricted in the price of what they do sell, but there is no provision that they shall sell to all, or to any who may apply for it, or to so many as they may be able to accommodate. In this respect there is a broad distinction between this and the grant of a bridge or ferry franchise. The most valuable interest in bridge and ferry grants is the right to take toll, and this right is never granted unless it is founded on an adequate consideration, which in the case of a ferry consists in an obligation to keep boats for the transportation of passengers, &c., and in the case of a bridge in erecting and keeping the bridge in repair, for the accommodation of all who may have occasion to use it. And we are told that the right of the crown to authorize the collection of tolls can not be imposed on the public, unless upon terms of this sort. 2 Steph. Bl. Com., 16. And if the right to tolls can not be granted, except upon the terms of an adequate consideration, in the facilities furnished to the public, ought the public, or any portion of it, to be deprived of the ordinary means of obtaining gas, unless the parties who claim an exclusive right to use those means, are under an obligation to furnish it ?

Again, it is the duty as well as the prerogative of the government to provide necessary and convenient roads and bridges; and, to enable it to accomplish this object, it has everywhere what is called “the right of eminent domain;” the right over individual estates to resume them for this and other public purposes. Such a prerogative connected with a corresponding duty, with the power to execute it by the exercise of the right of eminent domain, necessarily implies that it belongs to the government to determine what improvements are of sufficient importance to justify the exercise of the right, and when and how it shall be exercised; and if a particular bridge, or ferry, is considered sufficient for a particular locality, it may stipulate, that within such reasonable limits, the particular bridge or ferry tolls shall not be diminished by any other improvement of the sort. But it is no part of the duty of the government to provide the community with lights in their dwellings, any more than it is to provide them with the dwellings themselves, or any of the necessaries o'- luxuries which may be deemed important to the comfort or convenience of the community. And if it be assumed that there would be no impropriety in the lighting of the streets under the control and direction of the sovereign power, this would be merely as a regulation of police, or an incident to the duty to provide safe and convenient ways. And in this case, the power to provide for lighting the streets is of no importance, because nothing was done to secure the object, unless the plaintiffs chose to assume it; and whether they would do so, would probably depend upon whether it could be made profitable. As, then, no consideration whatever, either of a public, or private character, was reserved for the grant; and as the business of manufacturing and selling gas is an ordinary business, like the manufacture of leather, or any other article of trade, in respect to which the government has no exclusive prerogative, we think, that so far as the restriction of other persons than the plaintiffs from using the streets for the purpose of distributing gas by means of pipes, can fairly be viewed as intended to operate as a restriction upon its free manufacture and sale, it comes directly within the definition and description of a monopoly; and although we have no direct constitutional provision against a monopoly,"yiFthe"' wh oleTheory of afree government is opposed to such grants, and it does not require even the aid which may be derived from the Bill of rights, the first section of which declares “ that no man or set of men, are entitled to exclusive public emoluments, or privileges from the community,” to render them void. The statute of 21 James I., C. 3, which declares such monopolies to be contrary to law and void, except as to patents for a limited time, and printing, the regulation of which was at that time considered as belonging to the king’s prerogative, and except also, certain warlike materials and manufactures, the regulation of which for obvious reasons may fairly be said to belong to the king, has always been considered as merely declaratory of the common law. 4 Bacon’s Abr., p. 764, Tit., Monopoly. 4 Blk. Com., 160. Hindmarch on Patents, chap. 2, p. 7, et seq. A monopoly, in the sense in which this exclusive grant may be said to be such, is defined by Bouvier as “an institution or allowance by a grant from the sovereign power of the state, by commission, letters patent, or otherwise, to any person or corporation by which the exclusive right of buying, selling, making, working or using of any thing is given.”

While then we are not called upon to question the authority and power of the legislature to grant to the plaintiffs the right to lay down their own pipes for the distribution of gas through the streets, for their own private purposes, we think, considering that the streets, subject to the public easement, are private property, that it does not possess the power to exclude others from using them for similar purposes. And while we do not question its power to provide that the breaking up of the streets for this or other purposes shall be a public nuisance, we do not think the plaintiffs have such a special interest in the streets as will enable them to ask for an injunction against it. As was remarked in the case against the Sheffield Gas Consumers’ Company, above cited, the plaintiffs, having acquired a right to lay their pipes in the streets, are, in truth, seeking through this medium a higher and better right — a right to preclude all others from laying down their pipes. This, we think, they are not entitled to do.

Since this controversy has been pending, the plaintiffs, through the agency of one Caleb B. Rogers, have purchased a lot. of land which has been conveyed to said Rogers, but the plaintiffs, being the equitable owners, are in possession. This lot is so situated on the highway that it is important that the defendants’ main pipe should pass, in the highway, over a portion of it into the city, which being known to the plaintiffs, they purchased the property for the purpose of preventing the defendants from laying their pipes upon, or in it, and thus to prevent them from laying their pipes into the city; yet the defendants, without the consent of the plaintiffs, and against their prohibition, have laid their pipes across that part of said lot which is within the limits of the highway and continue to maintain it there, and avow their intention so to continue it.

Upon these facts we do not think the discretionary power of granting or refusing an injunction ought, under the peculiar circumstances of the case, to be exercised in favor of the plaintiffs, on account of their equitable ownership of this lot. The real, substantial controversy between the parties has been in respect to their rights to use the highways, irrespective of any title to the soil, which either of them might have in respect to any particular portion of them. And although it is important to the defendants to cross this lot with their pipe, yet this has nothing to do with the main controversy in the case, and its importance obviously arises from the present location of the defendants’ works. And we do not think that the voluntary purchase of the lot, after the controversy had arisen, as a sort of make-weight in the case, in the hope that it might enable the plaintiffs to secure a bill of costs, irrespective of the rights of the parties upon the real controversy, is entitled, in a court of equity, to any very favorable consideration. The defendants are liable in trespass for any damage that may be done to the land, and the injury at present does not appear to us of that irreparable character that requires the interposition of a court of equity, by way of injunction.

Upon the whole ease, therefore, we advise the superior . court to dismiss the bill.

In this opinion the other judges, Storrs and Ellsworth, concurred.

Bill dismissed.


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    The State vs. Mosier.
    On the trial of a complaint for keeping spirituous liquors with intent to sell the same, in violation of the ninth section of the statute entitled “ An act for the suppression of intemperance,” the defendant claimed that he bought the liquor in question in New York, and brought it into this state, as the agent of R. The prosecutor denied this and claimed to have proved that the defendant furnished to R., and demanded of him payment for, a part of the liquor, and acknowledged that he had a further quantity which he was keeping for him. The court thereupon instructed, the jury that upon such facts being proved by the state, the burden of proof was thrown upon the accused to show that he acted as the agent of R., and that the agency, if there was one, was one in fact and bona fide, and not of form merely, under cover of which the statute might be evaded. Held, that such instruction was erroneous and constituted a sufficient ground for granting a new trial.
    This was a complaint preferred by Prentiss Williams, a grand-juror of the town of Montville, to a justice of the peace, against Samuel Mosier, for selling and keeping spirituous liquor contrary to the statute. The complaint contained two counts; the first charging the defendant with having on the 28th day of August, 1855, sold spirituous and intoxicating liquor; and the second, with keeping such liquor with intent to sell the same.
    The defendant appeared at the justice’s court, and demurred to the complaint. The justice overruled the demurrer, and found the defendant guilty on both counts, and sentenced him to pay the fines imposed by the statute for each offence. From this judgment he appealed to the superior court, held in November, 1855, at which term the complaint was tried upon the plea of not guilty.
    In support of the second count of said complaint, the prosecutor introduced as witnesses, one Richards and his wfife, who testified substantially, “ that Mosier had called on said Richards, and said that he was going to New York to purchase liquor for himself and other parties, and intended to go backwards and forwards and accommodate the neighborhood, and wished to know if they desired him to procure any for them; and that Richards asked him to buy two gallons of liquor for him. That subsequently, on the return of Mosier,. Richards sent to him and received two quarts of liquor, which he understood Mosier had bought for him ; and afterwards the accused asked him to pay for what he had taken, and further inquired when he intended to call for the remainder.”
    The defendant claimed that the evidence did not prove a sale of spirituous liquor, or a keeping with intent to sell, but an agency merely; that it; did not appear that Mosier had any liquor except the two gallons purchased for Richards, and that that was purchased bona fide by Mosier for Richards in New York. He thereupon requested the court to instruct the jury in conformity with this claim.
    The judge did not comply with this request, but charged the jury substantially as follows: “At the time when the offence charged is alleged to have been committed, contracts for the sale and purchase of spirituous liquor were lawful in the state of New York, and any person might go there and purchase such liquor, if he chose. And when so purchased, if not intended to be sold, the purchaser might bring it into this state and keep it, without violating the statute. And what a person might do himself, he might do by another as his agent. If therefore, Mosier did purchase, bona fide, as the agent of Richards, two gallons of spirituous liquor, whether the money was advanced by Richards or not, and having so purchased it, had it his possession in this state, as agent only, there could be no keeping with intent to sell, and the prisoner should be acquitted. But while this is so, the agency must be one in fact, and not in form only; a real agency, and not a cover to evade the statute. It is for the jury to find whether there was any agency at all, and if there was, whether it was a real or pretended one. No reason is assigned why, if there was an agency for the purchase of two gallons of liquor, it was not delivered by Mosier, or called for by Richards; nor does it appear that that specific quantity was purchased by itself, or that it was otherwise purchased than as part of a cask-full, which was never measured out or set apart for Richards.
    I think that in this case, where the state, in connection with the other circumstances shown, proved the delivery of spirituous liquor by Mosier to Richards and the demand of payment therefor, and an acknowledgment that he had a further quantity, which he was keeping for him, the burden of proof was thrown upon Mosier, to show that he acted in all this as the agent of Richards, and that the agency, if there was one, was one in fact, and bona fide, and not of form merely, under cover of which the statute might be evaded.”

      The jury rendered a verdict of guilty on the second count, and the defendant moved for a new trial, on the ground that the charge was erroneous, and also that the verdict was against evidence.

      Wait and Converse in support of the motion.
    In criminal prosecutions, the onus probandi rests upon the prosecutor, of establishing the guilt of the accused. Making a prima facie case does not necessarily change the burden of proof, or take away from the accused the presumption of innocence. Therefore the instruction of the court to the jury that, certain facts having been proved by the state, it was incumbent on the accused to show that his agency was one in fact and not in mere form, was incorrect and calculated to influence the minds of the jury unfavorably to the accused. The United States v. Gooding, 12 Wheat., 460. Commonwealth v. Kimball, 24 Pick., 366. Commonwealth v. Dana, 2 Met., 329. People v. Bodine, 1 Denio, 281. 1 Stark. Ev., 449.
    Willey, (state’s attorney,) and Merriam, contended that there was no error in the charge, and cited Barry v. The State, 19 Conn. R., 398. Commonwealth v. Nichols, 10 Met., 259.
   Ellsworth, J.

We think there must be a new trial, in consequence of the manner in which the case was submitted to the jury. Upon the other point, whether the verdict is against evidence, we forbear to express our opinion, as the case must go back for another trial, and the evidence on the second trial may not be the same as on the first.

The difficulty with the charge is this. The judge stated, that under the circumstances enumerated, there was, in law, a prima facie case against the accused, and that the burthen of proof was on him, to show that he was not in fact guilty ; in other words, to show that he was the bona fide agent of Richards, and not one of form only, under cover of which the statute might be violated. The circumstances mentioned might in the minds of the jury have been satisfactory evidence as to the character in which the defendant had acted, and of his real guilt; and if the judge, in commenting on these circumstances, had presented them only in that view, as evidence tending to prove a fact in issue, and not as constituting a prima facie case in law, shifting the burthen of proof from the state to the accused, the error complained of would not have occurred; but this he did not do. After the evidence was all in, the jury should have been told, that it was the duty of the prosecutor to prove the material allegations set out in the complaint, and that if, after duly considering the evidence on both sides, they were satisfied of the guilt of the accused, they should return a verdict against him; but if not, then in his favor. It was not correct to take a portion of the evidence, and to say upon the strength of it, that the burthen of proof was on the accused, and that if he did not prove his innocence he was to be found guilty.

We advise a new trial.

In this opinion the other judges, Storks and Hinman, concurred.

A new trial to be granted.


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    The City of Norwich vs. Story and others.
    Where the charter oí the city of N. conferred upon the court of common council of said city power to lay out new highways, and to alter, extend or enlarge any public highway within the limits of said city; it was held, that the county court was not thereby divested of the jurisdiction over the same subject conferred by the statute entitled An act concerning highways and bridges.” [Rev. Stat. tit. 25. c. 2. § 297.]
    This was a petition founded on the 29th section of the statute relating to highways and bridges, brought to the county court in October, 1853, by Samuel Story and others, praying for a new highway within the limits of the City of Norwich.

      The respondents appeared and moved that the cause should be erased from the docket on the ground that the court had no jurisdiction. This motion was refused, and the court appointed a committee who made their report in June, 1855, laying out the highway prayed for.
    By legal remove and continuance, the cause came to the term of the superior court holden in August, 1855, when the respondents remonstrated against the acceptance of the report of the committee. But the court over-ruled the- remonstrance and accepted the report.
    The respondents, by motion in error, then brought the record before this court, assigning for error, that the court below had no jurisdiction over the subject matter of said petition, because the highway lay wholly within the limits of said city of Norwich, and by the act amending the charter of said city, passed in 1836, sole and exclusive jurisdiction over highways within the limits of said city was conferred upon the court of common council.
    The eleventh clause of said act is as follows:
    “ The court of common council of said city, shall have power and authority, as they shall judge needful, to lay out new highways, streets, public walks, public avenues, and public landing places in said city, and to alter, extend, or enlarge any highway, street, public walk, public avenue, or public landing place in said city, and to discontinue or exchange the same for other highways, streets, public walks, public avenues, or public landing places in said city, and to make and cause to be executed, all such orders, relating-thereto, as they shall judge proper.”

      E. Perkins and Halsey, in support of the motion.
    1. The act amending the charter of the city of Norwich, passed in 1836, invested the court of common council with absolute discretion in the matter of laying out highways in said city, and provided peculiar modes of compensation, by assessing benefits. This act was inconsistent with and repealed the act under which the plaintiffs claim to proceed. The jurisdiction of the common council must be taken to be exclusive. Otherwise we should have the selectmen of the town, the common council, and the superior court, each with full power over the same subject matter.
    2. The jurisdiction of the superior, court, if it has jurisdiction, is concurrent, and not appellate. The same matter had previously been decided by the court of common council, which appears upon the face of the record. The form in which the readjudication was had, is not so important as the fact. Webb v. Rocky Hill, 21 Conn. R., 468.

      Foster and Wait, contra.
    1. The twenty-ninth section of the statute relating to highways and bridges, Rev. Stat., 591, gives jurisdiction in this case to the county court. To the superior court that jurisdiction now legally appertains.
    The charter of the city of Norwich, as amended in 1836, was not intended to repeal or vary this section of the statutes. Even if it had so done, the re-enactment of this statute in the revision of 1848 revived it, and gave it force and authority paramount to any provisions of the city charter.
    2. It is contrary to the policy of the law to give to one tribunal power to refuse action in a given case, without any right of appeal. This is especially true in applications to the authorities of a city, who might refuse to lay out a way, even when necessary, because it would increase their own pecuniary burdens.
   Hinman, J.

This was an application originally brought to the county court by the plaintiffs, Story and others, inhabitants of the city of Norwich, praying that a new highway within the limits of the city, be laid out and established, for the special convenience of said city, under the 29th section of the statute relating to highways and bridges. Rev. Stat., p. 591.

The highway was established as prayed for, and the proceedings are admitted to be regular in point of form, but the claim is made on behalf of the city, that, by the act amending the city charter, which was passed in 1836, the court of common council of the city has the sole and exclusive jurisdiction over the subject matter of highways within the city limits, and consequently that the county court, at the time the plaintiffs brought the suit, and the superior court since the county court was abolished, have ho jurisdiction over the case, because they have none over its subject matter.

By the eleventh section of the amended city charter, the court of common council have power, as they shall judge needful, to lay out new highways, streets, public walks} public avenues, and public landing places in said city, and to alter, extend, or enlarge any highway, street, public walk, public avenue, or public landing place in said city, and to discontinue or exchange the same for other highways, streets, public walks, public avenues, or public landing places in said city, and to make, and cause to be executed, all such orders relative thereto as they shall judge proper; and the claim is that this section repealed the general statute, authorizing any inhabitant or inhabitants of a city or borough, whenever a new highway or common road is wanted within the limits of such city or borough, for the special convenience of the city or borough, to prefer a petition therefor to the county court. We suppose it is also involved in the claim, that not only the authority of the court to lay out highways for the special convenience of the city is taken away by the amended city charter, but the authority of the selectmen, and the court, to lay out and establish new highways which are of common convenience to the whole public, is also taken away within the city limits. Indeed the claim made in argument is, that the court of common council is invested with absolute discretion in respect to the laying out of highways, within the limits of the city. It is said that unless the jurisdiction of the common council is exclusive, we have the common council, the selectmen, and the superior court, each having full power over the same subject matter. This may be so, but we see nothing in the circumstance worthy of much consideration, as an argument in favor of an indirect repeal of the general statutes in respect to the laying out of highways. It appears to us quite obvious that the legislature did not intend to take from the courts any jurisdiction over the subject, by conferring this power upon the common council. It is very common for different courts to have concurrent jurisdiction in respect to many subjects. It was so with the county and superior courts, before the county court was abolished. And we believe it was never claimed, that by merely conferring jurisdiction upon one court, which had formerly exclusively belonged to the other, the latter was divested of its jurisdiction, unless such an intention was clearly expressed.

We are of opinion, therefore, that there is no error in the judgment complained of.

In this opinion the other judges, Ellsworth and Storrs, concurred.

Judgment affirmed.