text:
    Isbell vs. New York and New Haven Railroad Co.
    The qualities of an object in dispute, may be shown by a comparison thereof with the known qualities of some object not in dispute; and evidence directed to such a comparison is not inadmissible as irrelevant or as tending to raise collateral issues.
    A witness having testified as to the condition at a former time of a certain ience, its condition at such former time being the subject of controversy, was asked on cross-examination as to the present condition of a certain neighboring fence, for the purpose of instituting a comparison between the present condition of the one and the former condition of the other. Held, that such inquiry was within the foregoing rule and proper.
    A record by a town clerk of the proceedings of a town meeting in enacting a by-law, authorized by statute to be enacted by towns at meetings specially warned for that purpose, stating that, at a special meeting of the inhabitants of the town, legally warned and held for the purpose of making the by-law in question, it was voted &c., is prima facie evidence that such meeting was specially warned for the purpose of making such by-law.
    Action on the case, for the destruction of certain cattle of the plaintiff by the negligent act of the defendants in running over them with their cars.
    The plaintiff in his declaration alleged that the cattle in question were at the time of the injury lawfully passing along the highway in the town of Milford, near the railroad of the defendants ; that at the place where the injury occurred there was no fence between the highway and the road of the defendants, but that the space between was open and unin closed, and that it was the duty of the defendants to keep and maintain a fence along their road, and between it and said intervening space, so as to prevent cattle from passing from the highway to the railroad, and that the want of such fence was owing to the negligence of the defendants. That at the time of the injury, the cattle in passing along the highway, came to said uninclosed space, and without the fault or knowledge of the plaintiff, and in obedience to their instincts, wandered in search of grass upon and across said inter» vening space to the railroad track, where by the careless and negligent management of the locomotive and cars of the defendants by the servants of the defendants in driving them over said road, the cattle were killed, &c.
    The defendants pleaded the general issue, with notice that they should offer evidence to prove that the cattle, at the time of the alleged injury, were at large from the plaintiff’s premises by his negligence and in consequence of his insufficient fences, and were permitted by the plaintiff to be at large, and to stray upon the public highways of said town of Milford, in violation of the by-laws of said town and of the laws of the state ; said by-laws being set out in the notice.
    The case was tried before the jury at the term of the superior court holden in New Haven county, in December, 1856.
    It appeared on the trial that the cattle had escaped from a lot of the plaintiff, at some distance from the road of the defendants, into which they had been turned the evening before the injury; that the lot adjoined the highway, into which they had escaped, and which they had followed to the unenclosed space between the highway and the railroad, across which they passed to the railroad. The plaintiff claimed and offered evidence to prove that they so escaped in consequence of the act of a trespasser in letting down his fence, and without any fault on his part. The defendants on the contrary claimed that their escape was owing wholly to the insufficiency of the plaintiff’s fence, and that consequently his negligence in not properly confining his cattle had substantially contributed to the injury. The plaintiff introduced evidence to prove that the fence in question was well and substantially erected, partly of stone about three feet, and partly of stakes and poles, making the entire erection about four feet high, and was in good condition and adequate to restrain the cattle. On the cross-examination of one of the plaintiff’s witnesses, who had testified to the above, the defendants’ counsel inquired if the witness had measured the height of the fence; to which he replied that he had not. The counsel then proposed to ask the witness what was the character, height and condition of a certain other fence, on the opposite side of the highway, for the purpose of instituting, by this witness, in connection with other witnesses, a comparison between said fence and the fence of the plaintiff, in order thereby to show the actual character, height and condition of the latter. To this inquiry, for the purpose proposed, the plaintiff objected, on the ground that it was irrelevant, and tended to raise a collateral issue. The court sustained the objection, and refused to permit the inquiry to be made. Subsequently the defendants introduced direct evidence of persons who had seen the plaintiff’s fence, tending to show what were its actual character, height and condition at the time in question, and that it was insufficient and not well and substantially erected.
    For the purpose of proving the existence, at the time in question, of the by-law set up in their notice, the defendants offered in evidence a copy of the same and of the record of the town meeting at which it was passed, from the town records of the town of Milford, duly certified by the town clerk of said town, accompanied with proof of the publication of the by-law four weeks successively in a newspaper generally circulated in said town, but offered no other proof thereof, or of the warning of the town meeting at which it was passed. This evidence was received subject to any objections which might exist against its admissibility; and the plaintiff subsequently requested the court to charge the jury, that standing by itself it did not prove the existence of the by-law.
    The court in its charge directed the jury to lay the evidence out of the case, as in the opinion of the court it did not sufficiently appear from the record that the town meeting at which the by-law was passed was legally warned forth at purpose.

    The record of the vote of the town establishing the by-law, was preceded on the town records, by the following record of the meeting by the clerk, which was also embraced in the copy offered in evidence on the trial.
    “ At a special meeting of the inhabitants of the town of Milford, legally warned and held at the town hall on the 25th day of July, 1858, for the purpose of making a by-law for the purpose of restraining neat cattle, horses, and horse kind, sheep and geese, from going at large on the highways and commons of said town :
    “John K. Bristoll, Moderator; David L. Baldwin, Clerk.
    “Voted, &c.”
    The by-law provided that any cattle &c., found going at large without a keeper on any highway, common, or unenclosed land in the town of Milford, might be lawfully impounded and that the owner should pay afine of twenty-five cents for every beast so impounded, with a proviso that no single penalty should exceed four dollars.
    The jury having returned a verdict for the plaintiff, the defendants moved for a new trial for error in the rulings of the court. Various other exceptions were taken, which, in the result at which the court arrived, it is not necessary to notice.

      R. I. Ingersoll and Dutton, in support of the motion.
    1. The statute having prescribed the structure and height of a sufficient fence, [Rev. Stat., tit. 15, see. 1,] it became material to ascertain as nearly as possible the structure and height of the fence around the plaintiff’s enclosure, from which the cattle had strayed. The witnesses introduced by the plaintiff’ to prove the sufficiency of this fence, never haying measured it to ascertain its height, the point was left in doubt. It was for the purpose therefore of bringing the evidence nearer to the exact point here in issue, and that the jury might the better judge of the sufficiency of the fence, that the defendants proposed to ask the witness on his cross-examination, how it compared in structure and height with another fence in the same vicinity, the condition and height of which the defendants had ascertained and were prepared to prove.
    2. The court should have admitted the certified copy of the town records to prove the by-law. The record itself shows prima facie, that the town meeting was specially warned and held for the purpose of passing the law. It obviates the difficulty that the case of Hayden v. Noyes, 5 Conn., 391, presented, and has all the requirements indicated by the court in Willard v. Killingworth, 8 Conn., 247, where the court say, “ It must appear, that the meeting of the town had been specially warned for the purpose; and this not appearing on the doings of the town in this case, nor from any proof aliunde to establish the fact, the judgment is erroneous. Perhaps it should appear on the face of the proceedings, &c.” The penalty is twenty-five cents for each creature found at large. This is clearly within the statute limit, fixed and determinate. And the subsequent provision that no penalty shall exceed four dollars, is immaterial; even if this part of the law is void, the others are good. A law may be void in part and valid in part. Fisher v. McGirr, 1 Gray, 1. See also, Am. Law Reg., for February, 1857, p. 214. The evidence thus excluded was not only important to the defendants on the question, whether the cattle were trespassing on the railroad track, but also in reference to the care required of the defendants in running their trains.

      Harrison and Watrous, contra.
    1. The question “ what was the character, &c., of a certain other fence ” (not in dispute) was proposed for the avowed and single purpose of “ instituting a comparison ” between the fence in dispute and the fence not in dispute. It was properly objected to, as not admissible “for the purpose proposed.” 1st. The question was an inquiry, not into the comparative character of the two fences, but into the positive character of the fence not in dispute. Proof of the positive character of a fence not in dispute, could of itself throw no light upon the character of the fence in dispute; certainly not until the comparative characters of the two had been ascertained. No question was put or evidence given, in any part of the case, tending to ascertain the comparative characters of the two fences. Hence the proposed question stands upon this record as an isolated, unconnected inquiry into the character of a fence which had nothing to do with the ease. 2d. If the question had been put, (as it was not) for the purpose of establishing a basis of comparison between the fence in dispute and a fence not in dispute, it would still have been inadmissible. Firstly, as opening the door to numberless collateral issues. If the defendants could put in issue the character of a second fence, the plaintiff for a similar purpose could have put in issue the character of a third fence, and so on. In the next place, as a surprise upon the plaintiff. The defendants, without notice to the plaintiff, selected as their basis of comparison, a fence in Milford. On the same principle they might have selected a fence in Litchfield. The plaintiff could not, without notice, be expected to come prepared for the trial of an issue thus arbitrarily made» 3d. The defendants can not have been injured by the rejection of this testimony. Indirect and vague at best, it would cnave had no effect except in the absence of direct and positive evidence. But the defendants subsequently introduced direct and positive evidence on the same point. Kelsey v. Hummer, 18 Conn., 311. Cowles v. Coe, 21 Conn., 220.
    2. The evidence offered in relation to the by-law was properly excluded. 1st. There was no evidence that the meeting which passed the supposed by-law was ever warned at all; certainly none that it was warned according to law. 2d. No excuse was proved or suggested for the non-production of such evidence by the defendants, although, if the meeting was ever warned, a copy of the warning could have been produced from the very records from which the copy of the pretended by-law was taken. Rev. Stat., tit. 3, sec. I 9. Hayden v. Noyes, 5 Conn., 391. Willard v. Killingworth, 8 Conn., 247. Higley v. Bunco, 10 Conn., 436. 3d. The supposed by-law was void on its face, for attempting to authorize a fine of four dollars. Rev. Stat., tit. 3, sec. 30,
    3. But the by-law, if proved, was inadmissible. 1st. It did not tend to show that the plaintiff’s fence was insufficient, the only negligence with which the plaintiff was charged by the defendants. 2d. It did not tend to prove that the defendants were careful in running their train, the only other point made by the defendants in this part of the case.

         The statute which authorizes towns to pass by-laws on the subject, is as follows. “ Every town at a lawful meeting warped for that purpose, shall have power to make by -laws for restraining horses, cattle, asses, mules, swine, sheep and geese from going at large, and for regulating such as shall go at large; provided that no penalty for any breach of such by-law shall exceed three dollars ; and that such by-laws shall not be in force till published four weeks successively in a newspaper published in such town or in the town nearest to such town in which a newspaper is published, or in some other newspaper generally circulated in the town where such by-law is made, as the town shall direct.” Rev. Stat., tit. 3, sec. 30.

   Ellsworth, J.

Several questions have been discussed which we have no occasion to decide and shall pass them, confining ourselves to two objections which are decisive against the correctness of the judgment below.

And the first is, that the judge ruled that the defendant’s counsel should not inquire of the plaintiff’s witness the character, height and condition of a certain fence. The witness had testified in chief that the plaintiff's lot was inclosed by a fence, well and substantially erected, partly of stakes and poles and partly of stones, but he knew not its height, having never measured it. Upon his cross-examination he was inquired of, how the fence in the above particulars compared with another which stood close by on the other side of the highway. The judge, on objection taken, ruled that the inquiry was irrelevant and would raise a collateral issue and rejected it. We think that he erred in so ruling.

Testimony is not irrelevant because it is comparative. This may be and often is the very best and only evidence the case admits of; and if otherwise, yet, it may be entirely appropriate and satisfactory. The judge will see that the inquiry is properly restricted, and put in the proper stage of the trial, and then there is no danger of its leading to any abuse, or raising unnecessary and collateral issues.

Suppose we wish to know the height of a building, may we not compare it with a building or tower near by, the height of which has been measured and is known ? So the quality or durability of materials, wood, marble, stone and iron, may be ascertained by comparison ; so also the capacity and adaptedness of machinery or mechanics’ tools. Indeed, much of all that testimony which is derived from analogy or experience, is of this nature. If the inquiry is kept within reasonable bounds, this is satisfactory testimony, and just such as governs mankind in the daily transactions of life. In this view of the evidence, we think the inquiry was proper, and that the court erred in holding otherwise.

As to the by-law of the town of Milford, wé think it should not have been rejected because of the want of proof aliunde that the town meeting was warned specially for that purpose. Such warning may be necessary and wé believe it is, but we think the record of the town clerk is prima facie evidence that the meeting was so warned, for he declares that fact in the record of the meeting and of the very vote itself, and he is a sworn officer to keep the record truly, as he undoubtedly did in this instance. The language is, “ at a special meeting of the inhabitants of the town of Milford, warned and held for the purpose of making a by-law,” &c. He had the evidence before him, and could certify to the fact as it was better than any other person. It was his duty to record the fact if it was so ; and although it may be true that he makes a record of a fact which precedes the action of the meeting, and is not strictly the act of the meeting, still it is a part of the proceedings which he is officially to notice and duly to enter of record. The moderator might have been appointed, as is usually the case, before the clerk, but the clerk can make a record of the appointment; and so of his own appointment and of his taking the oath required by law. This point was decided in the case of Willard v. Killingworth Manuf. Comp., 20 Conn., 457, where the clerk of a corporation recorded his own resignation after he had resigned. The principle adopted there is strictly applicable here.

If then it is proper for the town clerk to make the record in the manner he has done in this instance, the record may be received as presumptive evidence of the truth of the fact; and hence we decide that the by-law should not have been rejected for the want of evidence aliunde, as to the legal warning of the town meeting.

The case of Hayden v. Noyes, 5 Conn., 291, and Willard v. Killingworth Borough, 8 Conn., 250, which have been pressed upon us, as conclusive in the defendants’ favor, contain no doctrine inconsistent with what we have stated. The first of these cases does not raise the present question at all, and the second one, so far as it goes, seems to favor the doctrine we have laid down. In Hayden v. Noyes, the question was, whether a warning for an annual meeting and “ to do other business then thought proper by said meeting,” was sufficient to render it legal to transact any special business not named. This question arose on demurrer and the court held the notice insufficient. In Willard v. Killingworth Borough, the question was, whether a bare naked vote of the town, a certified copy of which was produced, counting simply on a “legal” meeting, was prima facie evidence that the meeting had been specially warned to give its consent, as the law required it should do, to the passage of the by-law. The court held that such a vote was not proof of the necessary notice; but their language is to be remarked. They say, “ the special warning not appearing on the doings of the town, it was not enough, and perhaps it should appear on the face of the proceedings.” In the present case the records of the proceedings do show that a special warning was given. See further the case of Brownell v. Palmer, 22 Conn., 108.

For these reasons we advise a new trial.

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

New trial advised.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Magie vs. Stoddard.
    The acceptance of the office of constable of a town, by a person holding at the time the office of justice of the peace, is of itself a surrender of the latter office.
    Therefore, whore a person holding the office of justice of the peace, is elected during his term of office to that of constable in the same town, which office he accepts, his tenure of the latter office is not invalidated by the statute which provides that “ no judge or justice of the peace shall hold the office of sheriff, deputy sheriff or constable,”
    This was an action of book debt originally brought before a justice of the peace for the county of New Haven.
    The writ was served by one Charles R. Wheadon as con» stable of the town of New Haven.
    The defendant before the justice pleaded in abatement that the writ was not otherwise served than by Charles E. Wheadon, who undertook to serve the same on the 9th day of December, 1856, as a constable of the town of New Haven, but who, on the first Monday of April,'1856, had been elected by the electors of said town a justice of the peace for two years from the fourth day of July, 1856, and had taken the oath of office of justice of the peace, as by law prescribed, and that therefore he could not by law hold the office of constable of the town of New Haven, at the time when he undertook to serve said writ.
    To which the plaintiff replied, that the said Charles R. Wheadon was, on the 27th day of November, 1856, duly elected a constable of the town of New Haven, and on the 2d day of December, 1856, he transmitted to the governor of the state his resignation of said office of justice of the peace, which resignation was by said governor duly received and accepted, and that on the same day he transmitted a like resignation of said office to the secretary of the state, by whom the same was received and lodged on file, and on the same day a like resignation to the town clerk of the town of New Haven, by whom the same was received and lodged on file, and on the same day a like resignation to the county clerk of the county of New Haven, by whom the same was received and lodged on file, and that subsequently thereto and prior to his service of said writ, he took the oath of office prescribed by law for constables, and therefore was not a justice of the peace on the 9th day of December, 1856.
    To this replication the defendant demurred and the justice held the same insufficient and rendered judgment for the defendant to recover his costs. From this judgment the plaintiff appealed to the superior court for the county of New Haven, at its term in December, 1856, at which term the question arising on said demurrer was reserved for the advice of this court.

      Osborn, in support of the demurrer.
    1. If Wheadon was a justice of the peace at the time he undertook to serve the writ in this case, he was prohibited by statute from holding the office of constable, and of course could exercise none of the duties of that office. The statute provides, that “ no judge or justice of the peace shall hold the office of sheriff, deputy sheriff or constable.” Rev. Stat., tit. 5, sec. 77.

      2. He had not resigned his office of justice of the peace. Having been elected a justice by the electors of the town, he could resign the office only to the body electing him, in whose power alone it was to accept his resignation, and provide for the vacancy. And the resignation should have been made to the electors at an electors meeting.
    3. The statute referred to does not conflict with the constitution of the state. An elector, notwithstanding the statute, continues to be eligible to both the offices of justice and constable. If elected to both he must abandon the exercise of one or the other. The option is with him.

      C. R, lngersoll, contra.
    1. Wheadon’s acceptance of the office of constable was, ipso facto, a surrender of the office of justice of the peace. “ If two offices can not be held by the same person, at the „ same time, the acceptance of the latter office vacates the former.” Milward v. Thatcher, 2 T. R., 81.

      2. His office of justice of the peace was vacated by his resignation. Although the statutes do not specifically provide a mode in which the resignation of that or any other judicial office shall be made, they still contemplate, and provide for, the contingency of a resignation. See Stat. Comp., 1854, p. 300. Bess. Stat., 1856, p. 80.
    3. Notice of the resignation was given to the proper authority.
    4. The statute in question prohibiting a justice of the peace from holding the office of constable, is in violation of the constitution of the state, which declares that “every elector shall be eligible to any office in this state, except in cases provided for in the constitution.” Cons. Art. VI., sec. 4. United States v. Wright, 1 McLean R., 509. People v. Carrique, 2 Hill, 93. Van Orsdall v. Hazard, 3 ib., 243. Page v. Hardin, 8 B. Monr., 648. State Bank v. Curran, 5 Eng. (Ark.,) 142.
   Hinman, J.

The defendant in this case pleads in abatement, that the officer who undertook to serve the writ as a constable of New Haven, had, a few months previous to his election as such constable, been duly elected and qualified as a justice of the peace, and on this ground it is claimed that he could not by law hold the office of constable, and therefore his attempted service of the writ is no service, and the same should abate and be dismissed. The replication sets up the attempts of the officer to resign hi§ office of justice of the peace, in various ways, before he was qualified as a constable. But it is hardly necessary to discuss the question whether he really succeeded in divesting himself of his judicial functions, in any of the modes in which he attempted to do so; or whether he had a constitutional right to hold the office of constable, even if he was unsuccessful in attempting to resign; because, assuming that the statute which provides that no judge or justice of the peace, shall hold the office of sheriff or constable, is a valid act under the constitution, or that the two offices are so incompatible that the same person can not at the same time hold both of them, which amounts to about the same thing, we still think that the acceptance of the office of constable would of itself be a surrender of the office of justice of the peace.

In the case of Milward v. Thatcher, 2 T. R,., 81, it was held that accepting the office of town clerk vacated the office of jurat of the corporation of Hastings, although the office of clerk was inferior to that of jurat, the jurats sitting as judges in a court of record.

This decision, which appears to us to be founded upon correct principles, is sufficient to dispose of the case. We omit therefore to discuss the question whether the service would not be good on the ground that the officer was a constable de facto, whose acts are good as between third persons, although he might himself be disqualified from holding the office. We advise the superior court to render judgment for the plaintiff.

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

Judgment for plaintiff' advised.


text:
    Williams vs. Ives and another.
    A writ of attachment, not returned to the court to which it is returnable, constitutes, after the time limited by law for its return, no justification of an officer who has attached and removed property under it.
    By the omission of such return, such officer becomes a trespasser ab initio.

    And the duty of the officer to make such return, and its necessity to his justification, are the same, although he discovers after the attachment that such writ was issued and placed in his hands for service without authority from the plaintiff, who repudiates the proceeding, and although he immediately on such discovery returns the property to the owner.
    And the officer in such circumstances is liable for the actual damage caused by the trespass.

      It is the duty of an officer in such circumstances, on discovering that the writ was issued without authority from the plaintiff, to restore the property to the owner, and make a true return of the facts on liis process to the court.
    This was an action of trespass de bonis asportatis, brought against Wooster Ives and Frederick W. Bartholomew.
    The defendants pleaded the general issue, with notice that they should offer evidence to prove that the defendant Ives, at the time of the alleged trespass, was a constable of the town of Wallingford, and that one Alvin Hull had shortly before put into his hands for service a lawful writ of attachment in favor of the defendant Bartholomew against the plaintiff, returnable to the superior court for the county of New Haven, signed by a justice of the peace for New Haven county, and directed to the sheriff of New Haven county, his deputy or either constable of said town of Wallingford, and that the defendant Ives, in pursuance of the precept of said writ, attached by virtue thereof the property described in the plaintiff’s declaration, and made service thereof according to law.
    The cause was tried to the jury upon an issue closed upon the above plea, at the term of the superior court held in the county of New Haven, in December, 1856.
    On the trial the plaintiff introduced evidence to prove that the defendant Bartholomew had prayed out a writ of attachment in his own name against the present plaintiff, on the 20th of November, 1854, and that Ives, the other defendant, being a constable of the town of Wallingford, in obedience to the requirements of the writ, had attached and removed the personal property named in the declaration, had kept it in his possession from four to six days and had then returned it; and had never completed the service of the writ by leaving a copy with the defendant, or by a return thereof to the court to which it was made returnable.
    The defendant Ives claimed to have proved, that one Alvin Hull had placed the writ in his hands, with directions to serve it according to its precept, and that it was issued by legal authority, and was prima facie a legal writ; that, in obedience to its precept, he proceeded to attach by virtue thereof, the property described in the plaintiff’s declaration, as a lawful constable of the town of Wallingford; that he attached and removed the property and kept it in his custody for two or three days, when Bartholomew told him that he had never authorized the issuing of the writ, and would not authorize the service thereof by him, and requested him to proceed no further in the service, and return the property to the owner; that having satisfied himself that Bartholomew had never prayed out the writ, and that the justice who issued it had no authority from Bartholomew, acting in good faith, he immediately restored the property and stopped all further proceedings in the service of the writ.
    The defendant Bartholomew claimed to have proved, that he had no knowledge either of the issuing of the writ, or of the attachment of the property, until after the attachment had been made by the officer, when he totally repudiated the issuing or further service of the writ.
    The plaintiff further claimed to have proved, that by the attachment he had been broken up in his business, and that the property itself had been greatly injured, and that he had thereby sustained damage to the extent set forth in his declaration.
    Upon the whole case the plaintiff asked the court to charge the jury, that if they found the facts as claimed by the defendant Ives, still he was liable in this action of trespass, for all the damages the plaintiff had sustained.
    The said Ives asked the court to charge the jury as follows:
    1st. That upon the conceded facts, he was not liable in trespass, but only in an action on the case for neglect of duty in not completing the service of the writ. 2d. That when a writ of attachment, apparently legal, and in fact issued by a magistrate having authority to issue writs of attachment, is placed for service in the hands of the officer to whom it is directed, it is his duty to serve the same by an attachment of the property of the defendant namedin the writ; and that if an officer has commenced the service of such writ by an attachment of property, and afterward discovers that the person named as plaintiff in the writ, in fact never prayed it out and requests the officer to proceed no further in the service thereof, these facts constitute a sufficient legal excuse for proceeding no further in the service of the writ. 3d. That having made the attachment as constable in pursuance of the writ, and having in good faith, on learning that the writ was issued without authority, returned the property to the owner, and stopped the further service thereof, he was liable only for damages arising from the neglect to return the writ, which were nominal.
    Upon the various claims the court charged the jury as follows:
    1st. That an action of trespass may be maintained against an officer who has attached property and neglected to return the writ by virtue of which he made the attachment. 2d. That when an officer attaches personal property upon a writ, good on its face, he must complete the service and make return of the same to the court described therein, or show some legal excuse for not so doing. That if the person described as plaintiff in the writ never authorized the issuing of the same, and had no knowledge thereof, and the knowledge of the fact came to the officer after the attachment, still this would not be a legal excuse. Neither would such knowledge coming to the officer, together with the request from the nominal plaintiff to proceed no further in the service of the writ, and return the property to the owner, be a legal excuse. 3d. That in this case the defendant Ives was liable for the actual damages, and the jury might take into consideration the necessary expense of prosecuting the suit over and above the taxed costs. And if he had committed the acts charged with malice, then the jury might give exemplary damages.
    The jury returned a verdict against the said Ives and in favor of the said Bartholomew; whereupon the said Ives moved for a new trial,

      Doolittle., in support of the motion, contended,
    1. That the officer under the circumstances of this case was not liable in this form of action. A mere omission to perform his duty will not render him liable in trespass. Waterbury v. Lockwood, 4 Day, 257.
    2. The officer had a sufficient legal excuse for proceeding no further with the service of the writ, viz.: The plaintiff had never prayed out the writ. Jordan v. Gallup, 16 Conn., 536, 543. Parker v. Walrod, 16 Wend., 514. Earl v. Camp, 16 ib., 562. There is no reason why the writ should have been returned to court. The defendant could recover no cost. The case would have been at once stricken from the docket. The officer could have no better excuse than the fact that the process should never have been served. The officer would have been liable to Bartholomew if in defiance of his directions he had completed the service of the writ.
    3. The officer was liable for nominal damages only. Rich v. Bill, 16 Mass., 294. Jordan v. Gallup, Supra. Clark v. Smith, 10 Conn., 1, 6.

      Ives, contra.
    1. An officer justifying under mesne process after the time appointed for its return, must show that he has returned it, and either offer his return in evidence, or give some legal excuse for not doing so.
    2. Inability to return process, arising from inevitable accident, or other cause beyond the control of an officer, will alone legally excuse him for not returning it. In this case the officer having seen fit to disregard the mandates in the writ when but half performed, can not justify under it. If he relies upon civil process to protect him, he must obey its precepts.
    3. The leaving of a true and attested copy of a writ with an indorsement of his doings by an officer, in case of an attachment, and a return of the process properly indorsed to the proper court, are consummating acts without which no attachment can be made, and the absence of which renders an officer a trespasser ab initio in case he has removed property.
    4. In this case the officer can not justify under process not served upon the defendant in the original suit, and properly indorsed and returned, and therefore he is a trespasser, and as such liable in damages to the same extent as other and private individuals. Bond v. Wilder, 16 Verm., 393. Layton v. Cooper. 1 Penning., 63. Jordan v. Gallup, 16 Conn., 536. 2 Greenlf. Ev., sec. 629. Pierce v. Benjamin, 14 Pick., 356.
   Hinman, J.

The defendants ask for a new trial on three grounds; 1st. Because an action of trespass will not lie against the officer, who, it is said, has only been guilty of a mere omission to perform his duty in not returning his process ; 2d. Because he had a sufficient legal excuse for not proceeding further with the service of his process; and 3d. Because the damages should have been merely nominal, and the court ought so to have charged the jury.

On the first point we are referred to the case of Waterbury v. Lockwood, 4 Day, 257, as showing that trespass will not lie against an officer for a mere neglect of duty. But the neglect in that case was not a neglect to return the process ; but a neglect to take such care of the property levied upon, a horse, as to prevent its straying away, in consequence of which the officer could not sell it at the time appointed for that purpose. The case was similar to that of Gates v. Bayley, 2 Wils., 313, where it was held that the mere neglect to take such care of cattle impounded as to prevent one of them from dying, was not such an act as would render the impounder liable as a trespasser db initio. In such cases the neglect of duty has reference to the care which is taken of property which is lawfully in the officer’s custody; and for such neglect he can not be sued in trespass, because he has been guilty of no positive wrong; and the rule is, that in order to render an officer liable as a trespasser, he must either do some positive wrong, such as using property lawfully taken as his own, instead of keeping it merely as in the custody of the law; or he must omit to do that, without which he is precluded from showing that the original act of taking was lawful, as in the case under consideration, to make return of his process. He must justify by his process, or he stands in the condition of a naked trespasser without process. And he can not prove by parol, that he had a legal warrant, but he must show it, and must show by his return upon it what he did under it, that the court may see whether his acts are justified or not.

That a mere nonfeasance is not such an abuse of an authority given by law as renders a party liable as a trespasser from the beginning, was one of the resolutions of the court, in The Six Carpenters' Case, and has been held as law ever since, but it does not affect this question, in which the defendant Ives, by neglecting to return his writ, is unable to show that he had any process which would justify the original taking of the property. That mesne process must be returned, or acts done under it will be deemed to be tortious, is sufficiently shown by the case of Rowland v. Veale, Cowper, 18, which, on this point, was decided on the authority of Freeman v. Blewitt, 1 Salk., 409, and a case in 2 Rol. Ab., 569, and has been followed by Cheasley v. Barnes, 10 East, 73, and our own case of Jordan v. Gallup, 16 Conn., 543, and is now believed to be law wherever the common law prevails. If there is no return of the process, it is, at least after the time limited by law for its return, the same in effect as if there was no process, because none can be shown. The act therefore, whether it be a taking of the body, or an attachment of property, being forcible and direct, is of course a trespass.

The second point made by the defendants, is involved in the decision of the first. Had the officer, when he discovered that the writ was issued without any authority from the plaintiff, returned the property to the owner, and made a true return of the facts upon his process to the court, he would then have been in a condition to claim that his acts were excusable under the circumstances. But as he made no return of process he is precluded from showing that he had any; and as he could only justify his original taking by his process, he stands, as to acts done under it, in the light of a trespasser.

The charge of the court in respect to damages, so far as it relates to the question of whether nominal damages only should be given, appears to us to be unexceptionable. It is true the jury were told that they might take into consideration the necessary expense of prosecuting the suit over and above the taxed cost, in their estimate of damages. We presume there was sufficient evidence of wantonness on the part of the officer to justify this part of the charge, or counsel would have made a point of it, which has not been done. That the jury may consider the expense of a plaintiff in obtaining redress for a wanton or malicious injury, has been too often and too recently decided to be now made a question. We only allude to this subject therefore, that it may not be considered that the court intend to sanction the idea, that vindictive damages are to be given in all cases of trespass, or that the expenses of litigation, which the jury are usually advised they may take into consideration in cases of wanton, malicious or culpable injuries, are in fact any thing strictly recoverable by way of damages. But they are only to be considered as a reasonable ground for increasing the vindictive damages, recoverable in a class of cases, in order that a plaintiff in this class of cases may not be impoverished by the expense of the litigation necessary to obtain justice.

We do not advise a new trial on any of the grounds on which it is asked.

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

‘New trial not advised.


author: Ellsworth, J.

text:
    Clark vs. Merriam.
    The defendant, by an indorsement in blank, had guarantied a note payable in one day from date. The plaintiff alleged in his declaration that the defendant by such indorsement had promised that the note should be collectible for a reasonable time, and introduced parol evidence to prove such promise. The jury returned a verdict for the plaintiff and the defendant moved for a new trial for a verdict against evidence. Held, 1st. That though the indorsement, taken by itself, imported a guaranty that the note should be collectible when due, yet that it was but prima facie evidence of the defendant’s agreement, which might be shown by parol evidence to be of the character alleged. 2d. That the jury might infer this agreement from the circumstances under which the note and guaranty were taken, and which clearly showed that a credit for more than one day was intended.
    Notice to such a guarantor of the default of his principal before bringing suit, is not necessary.
    What is unreasonable delay in bringing suit against the principal in such a case, must depend on circumstances indicating the intention of the parties. Whether, where there is no proof of such intention, it be not a reasonable rule that the holder is not bound to sue till requested by the guarantor. Qu.

    This was an action of assumpsit by Belina Clark against Noah Merriam as guarantor of the following note.
    “ West Meriden, April 2, 1853.
    “ $300. One day after date I promise to pay to the order of Belina Clark, three hundred dollars at my store in cash, value received. Levi Merriam.”
    Endorsed — “ Noah Merriam.”
    The plaintiff in his declaration alleged that on the 1st day of January, 1853, one Levi Merriam and one Beloster Clark, then and for a long time before copartners in trade, dissolved their copartnership, at which time said firm was indebted to the plaintiff in the sum of $800, for money previously lent to be used in their copartnership business, and remained so indebted until the 2d day of April, 1853, when it was agreed between said Clark and said Levi, that said Clark should pay the plaintiff the sum of $500, and the said Levi the sum of $300, in satisfaction of the debt; and that in consideration that the plaintiff, at the special request of said Levi and the defendant, would postpone and delay the payment of said sum of $300, the said Levi executed and delivered to him the above note; and that in consideration of the premises, the defendant did then and there, by his indorsement on the back of said note, undertake and faithfully promise the plaintiff that said note should be good and collectible for a reasonable time thereafter; that the defendant did not at any time after the execution of said note require the plaintiff to collect the same of said Levi, nor give him notice that he was no longer willing to be holden for the collectibility of said note ; that the plaintiff, by the consent of the defendant, did forbear, and gave day to said Levi for the payment of said note, until the 26th day of November, 1853, when said Levi became insolvent, and wholly destitute of property, and that said note was not, nor had since been collectible of said Levi, and remained wholly due and unpaid, of all which the defendant on said 26th day of November, had notice.
    The case was tried to the jury on the general issue at the term of the superior court holden in the county of New Haven, in December, 1856.
    On the trial the plaintiff testified as follows: “ I am the owner of the note. In August, 1852, I lent Clark and Merriam $800. In the spring after, they wanted to close business, and Levi Merriam said that he would pay $300 of it, and that Clark, who is my son, would pay $500. He wanted me to wait a few days, or a short time, and would give me good security. I told him I should like the money, but could get along. He gave me the note. I told him I wanted it drawn the same way as the old note, (alluding to a joint and several note signed by the said Levi and Noah, and then held by the witness,) as principal and surety. I told him I did not want the note. He said it was good, just as good as the old one. I took the note. The second or third day after it was given, I told the defendant it was due, and should be paid. He said, I will tell Levi what you say, and he will make it all right with you. Levi afterward said, if I would wait, he should like it, that he wanted to use his money; and it passed along from time to time. Levi Merriam failed 26th November, 1853.”

      Beloster H. Clark testified as follows : “ I am 'son of the plaintiff, was in the co-partnership with Levi. We were indebted to father in the sum of $800. I gave him my note for $500, and Levi his note for $300. Levi handed it to father. Father declined to take it. Levi said it was as good as the old one, and would be paid soon.”
    It was admitted that the indorsement was made by Levi Merriam, in the name and by the direction of the defendant, who was his father; and that the defendant at the time was blind, or nearly so: also, that at the time the note was given, Levi was in good credit, and had ample property, real and personal, to pay the note, and so continued till the 26th of November following, when he failed in business and became insolvent, and had so continued to the time of the trial.
    On the foregoing evidence the jury returned a verdict in favor of the plaintiff, and the defendant moved for a new trial for a verdict against evidence.

      It. I. Ingersoll and Platt, in support of the motion.
    1. The legal effect of the defendant’s indorsement is, that the note being payable on time, shall be good and collectible when due by the use of due diligence. Castle v. Candee, 16 Conn., 223. In such case the plaintiff is bound to commence a suit by attachment against the maker, if property can be found, as soon as the note becomes payable. 1 Swift, 435, and authorities there cited. But the plaintiff sets up a different contract. It is, that the defendant, by his indorsement, agreed that the note should be good and collectible for a reasonable time, irrespective of the time named for payment in the note itself. There is nothing in the evidence to sustain any such allegation. The indorsement was made by Levi as agent of the defendant, and his authority went no further than to indorse the note in the usual way, the legal effect of which is entirely different from the promise averred. That Levi told the plaintiff that the note so indorsed was just as good as the joint and several note, can not alter the case, for there was no evidence of any authority from the defendant, to obligate him in any such way.
    2. Even if Levi had been authorized by the defendant to give that effect to his indorsement, that is, to make it as obligatory as the old note; it would not sustain the averment. The old note was a direct promise of payment in a given time, but the declaration sets forth a guarantee for a reasonable time.
    3. If there was such a guarantee, the delay of the plaintiff to take any measures to collect the debt out of the maker, from April, when the note fell due, till after the failure of the maker in November following, was unreasonable.
    4. There was no evidence of notice to the defendant before the commencement of the suit. But the contract of guarantee, if there was any such, entitled the defendant to notice before he was sued. This is expressly so laid down in 1 Sw. Dig., 435, et. seq.

      Buell and Doolittle, contra.
    The verdict is not against the evidence.
    1. It was admitted that Levi Merriam had authority as agent of the defendant to make the indorsement in question.
    2. The defendant was not present when the contract was made.
    3. The contract was therefore such as Levi Merriam, the agent, did in fact make ; and in the absence of any evidence to the contrary, the presumption is that the agent had authority to make such contract, and so the jury had a right to infer.
    4. The contract was a guarantee of the note beyond the time specified in it, and this is proved by all the testimony. By that of the plaintiff and his son ; by the declaration of Levi Merriam that the note was as good as the old one ; and by the defendant’s recognition of the contract as claimed by the plaintiff.
    5. The verdict far from being against the evidence, is abundantly sustained by it. Clark v. Whitaker, 19 Conn., 319. Citing also generally, Bulkley v. Waterman, 13 Conn., 328, Castle v. Candee, 16 ib., 224, and Lockwood v. Crawford, 18 ib., 361.
   Ellsworth, J.

It is claimed in this case, that the verdict is without evidence and positively against evidence.

It is said that if the plaintiff will follow up and support his declaration, he must prove “that the defendant did then and there by his indorsement on the back of said note, undertake and faithfully promise the plaintiff that said note should be good and collectible for a reasonable time thereafter,” and further that the plaintiff had used due diligence, and given the defendant notice before bringing the action.

The first claim is that there is a variance between the proof and the allegation ; that the allegation is that the guaranty is for a reasonable time, while the proof is that the guaranty is for one day. The argument is, that inasmuch as the note is drawn payable in one day, the guaranty is necessarily of the same import, although it is in blank. But we do not think this a necessary inference. It may be prima facie of this import, but is not conclusively so, nor does the form of the indorsement preclude parol proof of what the contract was as to the time to which the warranty was to extend.

The face of the note presents the contract of the drawer of the note, and the indorsement proves that of the guarantor, when filled up according to the agreement of the parties. And although in the absence of all proof aliunde, the latter may be inferred from the former, it may be proved to extend to a longer period, if it was so intended. This was declared to be the law in Beckwith v. Angel, 6 Conn., 316. Perkins v. Catlin, 11 ib., 213. Castle v. Candee, 16 ib., 223, and 1 Sw. Dig. 433.

If this is the rule, then the inquiry here is, was the evidence offered relevant to the issue; and if so, from it might not the jury find that the note was guarantied for a reasonable time, rather than for one day only ?

The circumstances show that a guaranty for one day was not the guaranty in the contemplation of the parties. The maker of the note was then in good circumstances and credit, and why was a guaranty for one day asked for? The creditor, Belina Clark, was, as a matter of personal accommodation, about to divide the note of $800 due him from Clark and Merriam, so that Clark might give his note for $500, and Merriam his for $300. The very object of this was to give a reasonable time to the two debtors who were about dissolving their partnership. Had the note been made payable with interest, as in Castle v. Candee, that circumstance as there held, would have proved that forbearance was contemplated, though the note itself was payable on demand ; but is this endorsement under the circumstances less indicative of intention than that? This note is payable one day from date as a matter of accommodation and not for immediate payment, for if that was intended, the old note would have been collected at once. One day was inserted most probably, because the draftsman had the idea, somewhat prevalent, that without a fixed time of payment the note would not draw interest. It should require clear proof, that a note drawn and guarantied as this was, under the circumstances, was not intended to lie some reasonable and convenient time, but be instantly paid.

Besides, the guaranty of this note was made by the hand of Levi Merriam, the authorized agent of his father the defendant, and he very well knew that the note was to lie, and the jury might well presume that the father knew it likewise. The father’s reference to his son, saying, “ I will tell Levi what you say and he will make it all right with you,” is evidence that the- father had authorised his son to act in his stead, in any manner that would most promote his interest.

As to the reasonableness of the forbearance which was given, we think that the jury might well find as they have. The defendant learned the existence of the note within two or three days after it was given, and that it was unpaid and might remain so, when he referred to his son as the person who would arrange the business to the satisfaction of the creditor. The debtor as the jury might have found, let the note lie unpaid, with the knowledge and consent of the father.

Now what is a reasonable delay, where the note is payable on demand, or one day afterdate, and where there are no circumstances to prove the intention of the parties, we have no occasion to decide. The cases are not uniform. In the case of Castle v. Candee, the court declined to lay down a uniform and absolute rule, preferring to decide each case as it might arise ; but Judge Waite thought the rule ought to be, that until a request to bring suit was made by the guarantor of a note payable on demand, the delay was not unreasonable. This may be as satisfactory as any other general rule, but as we are not called upon to establish any rule, we prefer to follow the example of the court in Castle v. Candee. This verdict can stand well enough without any rule. There is in most cases no great difficulty in ascertaining the real intentions and expectations of the parties, and these should be inquired after, and followed when satisfactorily established by proof.

It is said there is no evidence that notice of the default was given to the defendant before suit brought. Had this been a negotiable note, there must have been a regular demand and notice, but this is a mere guaranty by a stranger, and in such a case the diligence required by law is the immediate institution of a suit by attachment, if the maker of the note is possessed of property.

We are not aware that any notice from the plaintiff is necessary in such a case as this. It is the duty of the guarantor to notice the default himself, for knowledge of that fact is not peculiar to the plaintiff, as this court decided in the cases of Ward v. Henry, 5 Conn., 595, and Hammond v. Gilmore, 14 Conn., 479.

But if the law were otherwise, and notice before suit was held to be necessary, we think the jury were fully authorized from the evidence in the case, to find that the defendant had knowledge of the failure and default of his son, long before this suit was instituted.

We do not advise a new trial.

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

New trial not advised.


author: Storrs, C. J.

text:
    Brown and others vs. Illius.
    The plaintiffs brought an action against the defendant for corrupting the water of their well by means of noxious matter placed by the defendant on his adjoining land and in close proximity to the well, which was in part washed by the rains along the surface of the ground into the well and in part soaked into the ground and found its way under the surface into the well. The defendant claimed that, so far as the injury was done by corrupting the subterraneous currents that supplied the well, he was not liable therefor; but offered no evidence that the injury was done in this mode, rather than by merely soaking through the earth directly into the well. The plaintiff had given the defendant immediate notice of the effect produced upon the well. The court charged the jury, that if the injury was effected by corrupting such subterraneous currents, the defendant would be liable after such notice, for a continuance of the injury, if by reasonable care in the use of reasonable means it could be prevented. In denying a motion for a new trial by the defendant, — it was held by one of the judges that this charge was correct, and by the two others, that upon the whole evidence (which was before the court on an accompanying motion for a new trial for a verdict against evidence,) it was manifest that the question was of no practical importance in the ease, and that the defendant had suffered no injury by the charge even if it was erroneous, upon which they gave no opinion.
    Action on the case for a nuisance, tried to the jury oh the general issue at the term of the superior court holden in the county of New Haven, in December, 1856.
    The plaintiffs owned and conducted an extensive manufacturing establishment in the town of Waterbury, having on their premises a large well which supplied water for a steam engine, and for the use of their workmen. While the plaintiffs were so owning and occupying the premises, the defendant purchased a contiguous lot and erected gas works thereon in close proximity to the building and well of the plaintiffs, and proceeded to manufacture gas in large quantities at said works. . The plaintiffs in their declaration alleged, and on the trial offered evidence to prove, that noxious stenches arising from the manufacture of gas by the defendant penetrated into their mill, rendering the same unwholesome and uncomfortable, so that their workmen could not labor therein with comfort or profit, and were thereby hindered in their work; that the defendant’s gas works were negligently and unskillfully constructed and carried on, and improperly located ; that the defendant negligently and improperly placed upon the surface of his lot, along the line of the plaintiff’s land, and near their well, large quantities of coal tar, gas lime, and other noxious and offensive materials used in and resulting from the manufacture of gas, which were washed by the surface water into the well, and also soaked and penetrated into the ground and thence into the soil around and adjoining the well, and into the well, whereby the water therein was corrupted and rendered permanently unfit for drinking purposes and ablution, and for the use of their steam engine; that the well cost about §1,500 and that they had incurred great expense in supplying their workmen with drinking water by hand from neighboring wells, and in digging other wells in the attempt to supply themselves with a substitute for the well so corrupted.
    It was admitted that immediately after the defendant commenced the manufacture of gas, the plaintiffs gave him notice of the fact that the water of their well was thus corrupted.
    The defendant claimed that he had a right, as the lawful proprietor of his land, to erect gas works thereon, and use the same for the purpose of manufacturing gas, and also for the purpose of placing refuse material connected with the business thereon; and claimed that whatever damage had accrued to the well of the plaintiffs resulted from the lawful use of his premises; and that the gas materials, deposited upon the surface of his lot, by filtration and percolation below the surface of the earth, mingled with the subterranean streams or water courses that supplied the well, and thus were carried to and incorporated with the waters of the well and injured the same; and requested the court to charge the jury, that if they should find that the well was injured in consequence of his placing coal tar, impure lime, or other material, in or upon his land, which had soaked into and penetrated the earth and from thence been carried into the plaintiffs’ well by means of percolation, filtration, chemical attraction, or subterranean currents, it was damnum absque injuria, and the plaintiffs had no cause of action therefor.
    The court upon this point instructed the jury as follows : A nuisance signifies anything that worketh hurt, inconvenience or damage to another. This is a general definition. But when we speak of the liability of a man for erecting or maintaining a nuisance, or both, it does not follow that whatsoever worketh hurt, inconvenience or damage to another, is a nuisance for which an action will lie. Injuries are sometimes produced in the carrying on of lawful business, to which the law applies the maxim, “ damnum absque injuria,” a loss without an injury, meaning an injury without legal redress. Whether the maxim will apply in a particular case, depends upon the circumstances of the particular case.
    Suppose a man, desirous of carrying on the business of manufacturing gas, should locate his establishment a half mile out of town, for the purpose of avoiding all danger of detriment to others. A place is selected where a prudent man, well versed in the business, acquainted with the nature of the deleterious substances that such an establishment produces, with knowledge how far they would be likely to infest the neighborhood, either above, along, or under the earth, would say that such an establishment could be located and the business carried on, without detriment to the person or property of any human being. After the establishment has been erected at great expense and the business carried on for a season, it is found that the noxious substances from the manufactory have filtered through the earth, and corrupted an underground water course leading directly to the town and supplying many wells there, by means of which they have become corrupted and spoiled. In such a ease, I think there can be no question that the owner of the establishment would not be responsible for the mischief, especially before he has knowledge of the fact. After he has such knowledge, if by the exercise of reasonable care in the use of reasonable means, a continuance of the mischief could be prevented, I think he would be bound to exercise such care, and use such means; but not otherwise.
    You will inquire by what mode the well became affected : whether the noxious substances filtered through the earth to the well, in consequence of ordinary rains, in the usual mode of the spreading of such substances, without corrupting the underground water course that supplied the same; or whether they filtered through the earth and corrupted the underground water course that supplied the well, and in that mode, and that only, spoiled the same. If the well was corrupted in that mode, it is difficult to see how the defendant could be guilty of negligence in corrupting the same. He had no means of knowing that the water course was there. No prudence could guard against such a result, and without negligence the defendant would not be liable. But the plaintiffs claim that soon after the mischief began, they complained to the defendant respecting it. This is not denied by the defendant. You will then inquire, whether the exercise of such care as I have described would have prevented a continuance of the mischief. If it would, the defendant was in fault that he did not exercise such care, providing he did not, and for the injury resulting from such neglect (if any) he is responsible.
    The jury returned a verdict for the plaintiffs, and the defendant moved for a new trial for error in the charge of the judge. He also moved for a new trial on the ground that the verdict was against the evidence, but the details of this part of the motion are omitted as involving no question of general interest.

      Blackman and Webster, for the defendant.
    1. The defendant, as owner in fee of his land, has a right to use the same for all useful purposes, without any liability for consequential damages, resulting from injuries accidentally caused by the subterranean currents of water, passing under the surface of his land. The construction of gas works upon the defendant’s land, was not a nuisance per se, and must be presumed to have been for a useful purpose. Whitney v. Bartholomew, 21 Conn., 213.
    2. The defendant, as such owner, might lawfully erect his gas works, and had a lawful right to all the privileges incident to such ownership, and resulting therefrom. One of the privileges incident to such ownership, was the right to place the ordinary materials produced by the manufacture of gas, upon or below the surface of his land, notwithstanding any casual injury which might result to the plaintiffs’ well. He may so use his land to any extent without liability for damages resulting from subterranean currents of water passing through or out from his land, and into his neighbor’s land. Wheatley v. Baugh, 25 Penn. S. R., 528. Greenleaf v. Francis, 18 Pick., 117. Acton v. Blundell, 12 M. & W., 324, 351. Roath v. Driscoll, 20 Conn., 533. Greatrex v. Hayward, 20 Eng. L. & E. Rep., 377. Rawstron v. Taylor, 33 ib., 428. Broadbent v. Ramsbottom, 34 ib., 553.
    3. The law does not require any degree of care, to prevent injuries resulting from subterranean currents of water. And the judge, in instructing the jury that the defendant was bound, after notice, to use reasonable care to prevent a continuance of the injury, imposed upon the defendant a duty not known or required by the law. The jury were misled by being told that the defendant was responsible in any degree for injuries resulting from the flow of under currents of water.
    4. The verdict is against the evidence in the case.

      Ingersoll and Buell, for the plaintiffs.
    1. There was no error in the charge. The court laid down the law relating to subterranean streams as settled in Acton v. Blundell, 12 M. & W., 324, and Roath v. Driscoll, 20 Conn., 533. But this case stood upon different ground. The plaintiffs’ claim was, that the defendant, by the negligent and improper erection of his gas works, both as to location and construction, and the negligent and improper mode of conducting the same, had produced the injury. The court charged the jury, that after the defendant had knowledge of the mischief, if by the exercise of reasonable care in the use of reasonable means, a continuance of it could be prevented, he would be bound by the law to exercise such care, and use such means, but not otherwise; and in applying this principle to the case, the court say, “ You will then inquire whether the exercise of such care as I have described would have prevented the mischief. If it would, the defendant was in fault, that he did not exercise such care, providing he did not, and for the injury resulting from such neglect (if any) he would be responsible.” This proposition is abundantly sustained by the authorities. In Acton v. Blundell, above cited, the court say, “ If the defendants have proceeded and acted in the usual and proper manner, on the land, for the purpose of working a coal mine, they may lawfully do so.” This was the only point of that case as ruled on the circuit, and sustained in the exchequer court. In Wheatly v. Baugh, 25 Penn. S. R., 528, the court say, “ If it should also appear that it (the spring) could have been preserved without material detriment to the owner of the land through which it flowed, the destruction of it might be attributed to malice or negligence. In that case the law would furnish relief, because the injury would be unjustifiable.” Again the court say, “ Nor was there any testimony tending to show either malice or negligence in conducting the mining operations. There was nothing to show that the mining company had been guilty of anything beyond the proper use of their own property.” In Dickinson v. Grand Junction Canal Co., 9 Eng. L. & Eq. R., 521, the court say as to the underground currents, “ If indeed it had appeared that the company were ignorant, and could not by any degree of care have ascertained before making the well, that it would have the effect of obstructing the water, and when they discovered that it did, could have repaired the mischief, it might have raised a question whether this action was maintainable.” See also Bellows v. Sackett, 15 Barb., 96. Parker v. Boston and

      Maine R. R. Co., 8 Cush., 114. The instruction of the court as to the degree of care to be used in the selection of location, construction of works, and mode of carrying on the business, was applicable to the case before the court, and rests upon the principles of the highest equity.
    2. The verdict was not against the evidence, but is fully-sustained by it.
   Storrs, C. J.

This case comes before us on a motion for a newtrial,on the ground that the verdictis unsustained by the evidence, and for error in the charge of the court to the jury. We are satisfied that the verdict is sufficiently supported by the evidence, and that a new trial should not be granted upon this part of the motion. And the charge of the court, with perhaps a single exception, is obviously correct, and deals only with well settled principles of law, of very common application. A majority of us, however, are not entirely satisfied that the judge laid down the law correctly as to the defendant’s liability after notice for corrupting, in the mode supposed, the subterraneous streams or currents that may have supplied the well of the plaintiffs. The court very properly said to the jury, that if the injury to the well of the plaintiffs was caused by the noxious matter, placed by the defendant on his own land, penetrating the earth and corrupting the underground water-course that supplied the well, and only in thai mode, it was difficult to see how the defendant could be guilty of negligence in producing the injury, since he had no means of knowing that the water-course was there. But the court then proceeds to say, that soon after the mischief began, the plaintiffs informed the defendant of the effect which the noxious matter was producing on their well, and adds, that if after receiving this information, he could have prevented a continuance of the injury by the use of reasonable care, he was liable for the damage resulting from his neglect to use such care; and in a previous part of the charge the court had laid down the general principle which is here applied.

The question here involved is one of some difficulty, but the majority of the court consider it unnecessary to decide it in the present case. The whole evidence in the case is detailed in the motion, and since a motion for a new trial in some measure addresses itself to the discretion of the court, it is very proper for us, and indeed our duty, to look at the whole case and see whether any injustice has been done to the defendant by the charge of which he complains. And looking thus at the whole case, we are satisfied that the question made by the defendant and upon which he requested the charge of the court,, as to his non-liability for corrupting, in the mode stated, the underground water-course supplying the well of the plaintiffs, was of no substantial relevancy or importance. It savors rather of a speculation, than of a serious practical inquiry. It is true that the plaintiffs claimed that the noxious matter placed by the defendant on his land, was not only washed along the surface into the well, but also soaked into the ground and thence into the soil around the well and into the well, but the plaintiffs here manifestly contemplated nothing more than its transmission by means of the surface moisture and along with the surface water produced by rains, and claimed nothing from the corruption thereby of any underground current or stream of water that may have supplied the well. The well was in close contiguity to the noxious matter, and the communication of the latter with the former was obviously direct and immediate. There is no substantial difference between the migration of the particles of corrupt matter along the surface upon the temporary currents caused by the rain, and their penetration into the soil in connection with and by the agency of the same water. Both are entirely different from the corrupting of subterraneous streams and currents. The nuisance is wholly one of the surface, producing its noxious effect by modes of communication incident to the surface, and under the action of superficial agencies, although its operation may be in some measure beneath the surface.

The question as to the liability or non-liability of the defendant for any injury that might be caused by the corrupting of underground streams, was made wholly by the defendant, and we do not see that any evidence was offered by him to show that the injury was caused in this manner, rather than by the diffusion of the poisonous matter along or near the surface as claimed by the plaintiffs. We think, therefore, that whether this portion of the charge-was correct or not, the defendant was not injured by it, and is not entitled to a new trial on the ground of error therein, even if, which we do not decide, such error may exist.

We therefore do not advise a new trial on either of the grounds on which it is asked.

In this opinion, Hinman, J. concurred.

Ellsworth, J. I do not perceive that any novel or doubtful principles of law were laid down in the court below. The case, in my view, presents little else than the question, whether under the circumstances the defendant was conducting his business with a due regard to the rights of the plaintiffs ; or in other words, whether the defendant had violated the maxim familiar to every professional man, and approved by every moralist, sic utere tuo ut alienum non locdas.

From the record it appears, that after the plaintiffs’ works were erected, (which are extensive, and of great value,) the defendant erected his gas-works immediately adjoining the premises of the plaintiffs. A part of the plaintiffs’ works consisted of a well of some 16 feet diameter, built near the line of their lot, and near the gas-works subsequently built by the defendant^ which, before it was injured, supplied the plaintiffs’ works with water. On the trial, the plaintiffs claimed that the stenches and smells arising from the manufacture of gas, penetrated their rolling-mill, and rendered it uncomfortable and inconvenient, as well as unwholesome; that their workmen would not labor, and were seriously hindered and delayed; and that the gas-works were built in an improper location, in an unskillful and improper manner, and were carried on negligently, especially in this, that the defendant and his agents placed on the ground around his works and near to the well, large quantities of coal tar, gas lime, and other noxious and offensive materials, used in and resulting from the manufacture of gas ; from which materials impure water was drained along the surface of the defendant’s yard into the plaintiffs’ well, and under the surface by percolation, so as to render it unfit for use.

The plaintiffs did not put their right to recover, on the ground that the defendant had not a right to use his own premises in a suitable and proper manner for any business which he could be allowed to carry on at that place; but they denied the propriety of the defendant’s business as it was carried on, and placed their claim particularly on the fact, that the business at best was a nuisance, and was made more so by an unnecessary accumulation of filth and noxious matter, which, by exposure to heat and rain, injured the well by corrupting the water which passed over or through the defendant’s yard into it.

The defendant on his part claimed, that as proprietor of his lot, he had a right to put on it his gas-works and manufacture gas as he pleased, since that business was allowed to be lawful; and had a right, in pursuing it, to keep the refuse or noxious materials spoken of by the plaintiffs, upon his premises, according to his own convenience and pleasure ; and that he was not responsible, if the water in the well was spoiled thereby; for that water passing through the soil of his lot by filtration or percolation, and thereby carrying impurities into the subterranean streams that supplied the well and corrupted it, would not lay the foundation of an action; and to that effect asked the judge to instruct the jury.

He refused; and in my judgment with entire propriety. If indeed the law be as claimed by the defendant, that any use to which a man puts his land can not, by effects under the surface, work a nuisance, then the charge is obviously wrong and injurious to the defendant; for the plaintiffs insisted that their evidence proved that the defendant had ruined iheir well through the percolation, filtration or soaking of corrupted water from the defendant’s land ; that the rain soaked through the accumulated filth left on the defendant’s land through his neglect and inattention, and with full knowledge on his part. If the jury believed this, (and I have no doubt they did, as I feel confident they ought to have done, if I may draw an inference from the evidence detailed in the other motion,) the charge does the defendant palpable injustice, for the judge not only omitted to charge as requested by him, but charged the contrary; that if the defendant had knowledge, and was guilty of carelessness in using his land, and the mischief arose from percolation and filtration, he was liable. But I am confident that the lawis notas claimed by the defendant, and that the judge was right.

I confess I see not why the defendant asked a charge in this specific form, embracing streams of water, for no such point had been raised by the plaintiffs, and no facts appeared to show that it could be of any practical importance to the defendant. Subterraneous currents, as something different from water mixed with and a part of the earth itself, not passing in currents, but by percolation or chemical attraction, have very little to do with the merits of this case, which is one of filth and poison infused into land and the water in it, through neglect, to the injury of others, Still, if the defendant had a right to ask instructions upon the law of “ subterranean streams and currents,” as distinct from percolating water, and has done it, for myself I must say, I see no error in the charge, for the judge told the jury, that if the defendant had knowledge of the facts, and the nuisance arose from the manner in which he was conducting his business, that is, corrupting and rendering useless a “ subterraneous current of water which supplied the plaintiffs’ well,” which injury he could avoid by using due diligence, but would not, and would let the injury be continued and perpetuated, he would be liable for the damages ; and this 1 believe is the law in this state, and elsewhere so far as I am acquainted. It is a nuisance, and has nothing to do with the lawful use of water. 2 Green. Ev., 381. 1 Com. Dig., tit. Nuisance. The law of running streams on the surface of the earth, in fixed and defined channels, so as to become currents of water, is certainly well established; so is the law of under-ground water, in a state of combination with the earth, percolating it without fixed and defined channels, under the power of chemical affinities, capillary attraction, or some other unknown and imperceptible influence of a like character.

In the latter case, this court correctly held, in the recent case of Roath v. Driscoll, 20 Conn., 533, in accordance with Acton v. Blundell, 12 M. & W., 324, Dickerson v. The Grand Junction Canal Company, 9 E. L. & Eq., 520, and Wheatly v. Bough, 25 Penn. S. Rep., 530, and other cases which might be cited, that water in the earth,a part of it, partaking of its character only, belongs to the soil as much as the soil itself, and the owner may do with it as with the soil, and any mere use of it, as in Roath v. Driscoll, is lawful and proper; but I conceive, that if, through carelessness and unnecessarily, he poisons his land and the water in it, and thereby poisons his neighbor’s land and crops, and the water that enters it and supplies his. well, as was claimed to be proved in this case, it is a different thing.

The distinction is not, as has been intimated, between streams running on the surface and those running below it, but it is whether the waters are streams, i. e., water running in fixed and defined channels, or water in combination with the earth, either in a state of quiescence or percolation, and not under the power of a uniform law, as surface streams under that of gravitation, but moving under influences unknown and unappreciable. If there be a clearly defined continuous stream in the earth which is appreciable, and can be known and is known, I see not why it may not fall within the law of surface streams, as well as any other stream. It was so held in the two last cases above cited, and read on the trial. Lewis, C. J., in the case from Pennsylvania, says, “ But to entitle a stream to the consideration of the law, it is certainly necessary that it should be a water-course, in the proper sense of the term. A spring-gutter on the surface, is none the less a watercourse, although it is not equal in volume to a river. Small as it may be, if it have a clear and well defined channel, it can not be diverted to the injury of the proprietor below. So a subterranean stream which supplies a spring with water, can not be diverted by the proprietor above, for the mere purpose of appropriating the water to his own use.” See Smith v. Adams, 6 Paige, 434. Ch. J. Lewis says again, In limestone regions, streams of great volume and power pursue their subterranean courses for great distances, and then emerge from their courses, furnishing power for machinery of every description, or supplying towns and settlements with water, for all the purposes of life To say that these streams might be obstructed, corrupted or diverted, because they run through subterranean channels, is to forget acknowledged rights and duties in relation to flowing water.” And again, “ Where the filtrations are gathered into sufficient volume to have an appreciable value, and to flow in a clearly defined channel, it is generally possible to see it and to avoid diverting it, without serious detriment to the owner of the land through which it flows. But it is otherwise with percolations spreading in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land. Accordingly, the law has never gone so far as to recognize in one man a right to convert another’s farm to his own use, for the purposes of a filterer.” Parke, J., in the case of Dickerson v. The Grand Junction Carnal Co., p. 521, says, “ And indeed, if the course of a subterranean stream were well known, as is the case with many which sink under ground, pursue for a short distance a subterraneous course, and emerge again, i't never would be contended that the owner of the soil under which the stream flowed, could not maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover, if the stream had been wholly above ground.”

If, then, in the case under consideration, it be conceded that the defendant’s counsel had introduced such evidence as made it proper for them to ask the judge to lay down the law as to “ subterranean streams and water-courses,” he properly met the claim of the defendant, by saying, that the doctrine of reasonable care in the use and working of the defendant’s gas-works, where knowledge had been brought home to him, was justly and strictly applicable to the use of “ subterranean streams and water-courses ” connected therewith.

I have already said, that upon the real merits of this case, the plaintiffs sought to recover of the defendant, upon the maxim’ that the defendant must so use his own as not to injure another, and that he can not continue to do or enjoy that which is a nuisance, because it may be convenient and profitable to himself, especially where reasonable care and attention would remove the evihj In my judgment, the judge laid down the law with entire correctness on this point. He told the jury, that if the defendant did not exercise ordinary care in selecting the place of his business, or in constructing his works, or prosecuting his business, and this negligence brought injury upon the plaintiffs, the defendant would be liable in damages.

It can not be claimed, I think, that because the defendant is the owner of his lot of land, he may appropriate it to any use or business he pleases. This can not be, unless, in the midst of a dense population, a person, to suit his own convenience or interest, may erect a pig-sty, a slaughter-house, a tannery, a tallow-furnace, a steam engine, or a smith’s forge, which in their use will infect the atmosphere, produce unhealthy vapors or offensive smells or noises, so near dwellings as materially to affect them and render them unhealthy or uncomfortable as residences. Nor can it be claimed for a moment, that if gas-works are not necessarily a nuisance in particular places, if well constructed and carefully attended, yet they may not become such if not well constructed and carefully attended. Whether the nuisance be effected on or under the surface of the defendant’s lot is immaterial, in my judgment, if it be a nuisance. The defendant’s works were claimed to be a nuisance viewed in any and every light, and the fact whether they were so or not, was submitted to the jury under proper instructions. The general subject of nuisances is elaborately discussed and with great ability, by the late Chief Justice Church, in Whitney v. Bartholomew, 21 Conn., 218. My own views on the subject can not be more fully expressed than they are in the opinion in that case.

I think the verdict is not against the evidence, unless it be as to the amount of damages. They are higher than I should have given, but not so much so as to justify the setting aside the verdict and granting a new trial.

New trial not advised.