text:
    Noyes vs. Stillman and another.
    Where, in an action on the case for flowing back water, the declaration alleged, that the plaintiff wa3 “ lawfully possessed” of the land in question, and that “ said land had been overflowéd, and drowned, whereby the gras3 growing thereon had been spoiled, and said land made worse, and miry, and almost impassable;” it was held, 1. That the gist of the action was an injury to the possession, and that there could be no recovery for any injury to the reversion.
    2. That if the plaintiff intended to recover on the ground of her reversionary right as distinct from the possession, the declaration should have been adapted to such recovery.
    Where, in such action, it was proved, that the plaintiff, during the time for which she claimed to recover, had, by parol agreements, from year to year, rented said land for a pasture to different individuals, and the defendant thereupon requested the court to instruct the jury, that the plaintiff had thereby been wholly out of possession during said time, and could not maintain said action, but the court refused to comply with the request; it was held, that such course was correct.
    Where the court, in such action, after instructing the jury that the plaintiff could not recover for any usufructuary right in the tenants, further instructed them, that as the rest and residue of the title was in the plaintiff, she might recover for an injury to that, notwithstanding such tenancy, if all the other allegations in the declaration were proved; it was held, that as such charge was calculated to mislead the jury, a new trial ought to be granted, for a misdirection.
    The purchaser of a dam may lawfully use it, as it was when purchased, and had been customarily used by his grantor, until he is notified that such use is an encroachment upon the rights of others.
    In an action on the case against the purchaser of a dam with flash-boards upon it, for flowing back water upon the plaintiff’s land, it is for the jury to determine, whether such flash-boards are, or are not, a part of said dam.
    Therefore, where in such action, the plaintiff claimed that such flash-boards were put upon the dam, and removed from time to time, by the water or ice, or by the defendants, in order to save them, and that the defendants were liable for such renewing and replacing them, unless they had acquired the right thus to renew them, and the court instructed the jury, that if the defendants had no right to keep the dam, with flash-boards, as high as it was when the acts complained of were committed, and if said flash-boards caused the injury complained of, the defendants were liable for their acts, without previous notice to remove them; it was held, that such instruction was erroneous.
    This was an action on the case, brought to the term of the superior court for the county of New London, holden in March, 1855.

      The declaration alleged, substantially, that “on or about the first day of April, 1847, the plaintiff was, and many years before, and ever since, has been lawfully possessed of a certain tract of meadow-land situated in Stonington, bounded, &c., containing about five acres of land, which the defendants well knew, but contriving and intending to injure the plaintiff, and deprive her of the benefit of said meadow-land, on or about the second day of April, 1847, erected a dam, in and across said Pawcatuck river, below .the said land of the plaintiff, and caused the water of said river to fl.ow.back upon, and overflow, and drown, the said meadow-land of the plaintiff, and have ever since maintained and continued said dam across said river, whereby the grass of the plaintiff, growing on said land, has been spoiled within the time aforesaid, and said meadow-land has been made worse, has become miry and almost impassable, to her damage, &c.”
    Upon the trial to the jury, it was proved that during the time when the acts, complained of in the plaintiff’s declaration, were claimed to. have been committed, the plaintiff was, and long before had been, the owner in fee, of the land flowed, as set forth.
    It was also proved, that at least for the three years next before the date and service of the plaintiff’s writ, and she claimed to recover only for said three years, the plaintiff had, by parol agreements from year to year, rented her said lot for a pasture, to different individuals, who pastured the same under said agreements. Whereupon the defendants claimed, as a matter of law, that the plaintiff had thereby been wholly out of possession, during said three years, and that the action being, as they claimed, for an injury to the possessory right, the plaintiff could not sue, but the tenant must sue, if anybody. And the defendants asked the court so to instruct the jmT-
    The court did not comply with the request, but instructed them, that the plaintiff, as owner in fee, or as landlord, could not recover for an injury to the usufructuary right in the tenants, yet the rest of the title and interest is in her, and for an injury to that, she can recover, and hence she can recover in this case, and in this form of action, if all the other allegations in the declaration are true, notwithstanding said tenancy, but otherwise she can not.
    The defendants claimed no right to flow said land, by means of said dam, except that they insisted, that they, and those under whom they held, had used and enjoyed said dam exclusively, and adversely, for more than fifteen years before the plaintiff's action was brought; and the defendants insisted, that when they purchased said Water privilege, the dam was substantially the same, and of as great height, as it was during the three years complained of by the plaintiff; the defendants, however, admitted, and it was proved, that they and their grantors, had put and kept on said dam, flash-boards of about — inches in height, at the west end, and thence gradually growing less, so that at the east end, they were of little or no height.
    This increased elevation of the dam, the defendants claimed, was only bringing it up to a level, but the plaintiff" denied this, and insisted that these flash-boards were put on illegally.
    The defendants insisted that they bought the dam, already built with flash-boards of equal height, and had never, before this suit, had notice that said dam and flash-boards were too high, or so raised without right in their grantors, and that until such notice, they could not be sued, even if it was true, that their grantors had no such right.
    The plaintiff admitted the law to be so, that until notice, one who purchases a dam, and only continues to use it as it is, is not liable for the nuisance, but as it was proved and admitted, that these flash-boards were put on the dam from time to time, every year, and renewed as often as they were carried off by water, or ice, or flood-wood, or removed by the defendants themselves, as they were, in order to save them, the defendants were liable for such replacing and renewing, unless the defendants had acquired a right so to do. The defendants insisted that although they had, from time to time, and every year, renewed said flash-boards, yet the new ones were of no greater height than the old ones, and until they had notice that they were too high, the defendants were not liable, even if they strictly had no right, and they asked the court to instruct the jury to that effect.
    The court did not so instruct them, but did instruct them, that if the defendants had no right to keep the dam with flash-boards, as high as it was kept with them, when the acts were done for which this action was brought, and said flash-boards so renewed by the defendants from year to year, caused the injury sued for, the defendants were liable for their own positive acts, without previous notice, since they were not justified by the like positive, but unlawful acts of their grantors.
    The court instructed the jury, that fifteen years adverse enjoyment of a dam of a given height and capacity, or a water-privilege of a given extent, would give a complete right and title, so to continue to enjoy.
    The jury, having returned .a verdict for the plaintiff, the defendants moved for a new trial.

      Foster and Dixon, in support of the motion.
    1. The acts charged by the plaintiff on the defendants as having been done, and all the acts charged as so done, are acts injurious to the possession, and only to the possession of the land.

      2. During all the period for which a recovery is sought, the premises were in possession of a tenant to whom they had been let. As matter of law, the plaintiff therefore could not recover, and the jury should have been so instructed.
    This doctrine of the charge can not be supported, but is contrary both to principle and authority.
    On principle, an action for an injury to a reversionary interest in land, differs as really from an action to recover damages for an injury to the possession, as though the one action was founded in tort, and the other in contract.
    This action then, having been brought for an injury to the possession, can not be maintained; the plaintiff sets up no title whatever, and alleges nothing in herself but the lawful possession; proving an interest in the reversion, and an injury to that reversion under such circumstances, avails nothing.
    On authority; all our form books contain forms for actions for an injury to the reversionary interest.
    The plaintiff’s right as reversioner, is in all cases set out. Jesser v. Gifford, 4 Bur., 2141. Queen’s College v. Hallett, 14 East, 489. Leader v. Moxton, et al., 3 Wils., 461. Baxter v. Taylor, 4 B. & A., 72. Tucker v. Newman, 11 Ad. & El., 40. Randall v. Cleavelmd, 6 Conn. R., 328.
    It results, then, that the jury were misdirected, and that there should be a new trial for such misdirection.
    3. It appears, from the record, that the defendants purchased their mill privilege, with the dam already erected, and that the flash-boards, used upon it, were used after the purchase, as they were before; that when carried away or removed, they were replaced in the same manner, and to no greater height, after, than before the purchase.
    The instructions of the court, on this point, were inconsistent with the admission, that the law allows one who purchases a dam, to use it as it is, without liability to an action, until notice to remove it. The principle, decided in Penruddock’s case, 5 Rep., 101, controls this case.
    The right to use, enjoy and maintain, to keep a piece of property as it is, carries with it, manifestly, the right to repair. If the roof of Penruddock’s house became leaky, could he not stop those leaks without subjecting himself to a quod permittat ?

    In the present case, restoring the flash-boards that were casually carried away, or that were struck, as it is called, by the defendants themselves, to save them in a freshet, is clearly within the principle; it is but keeping the dam as it was when it came into their possession, which it is agreed they had the right to do.

      M’ Gurdy and Pomeroy, contra.
    1. The granting of a particular interest in and use of the plaintiff’s land, for a pasture, did not, as a matter of law, put her wholly out of the possession for three years. For every other purpose, the right and the fact of possession, might have remained, and did remain with her. 4 Mass. R., 266. 1 Sw. Dig., 522. 19 Verm., 517. 19 Conn. R., 188. Russell v. Scott, 9 Cow., 279.
    2. From the nature and purpose of the letting, it was limited to the season of pasturing.
    3. If the letting was nominally for the year, yet as the occupants were changed annually, there must have been an interval in which the possession reverted to her, so as to enable her to re-let; and upon resuming possession, she could sue for the intermediate damages. 1 Sw. Dig., 521. 1 Chit. PL, 177. 11 Mass. R., 519. 19 Verm., 517.
    4. If the injury was such as would reduce the rent, that would be sufficient. Sumner v. Tileston et at., 7 Pick., 198.
    5. The question of possession was not one of law, but of fact; as such, it was left to the jury, and they found that the plaintiff had a possession, which had been disturbed. 17 Conn. R., 402. A. K. Marshall, 515.
    II. The defendants having put on the flash-boards wrongfully, themselves, and so themselves committed the trespass, the fact that their grantors had been guilty of a like wrong, does not make it necessary to request a removal. 17 Conn. R., 402. ' 3 Harris & McHenry, 441. U. S. D., 1850. 323. No. 15.
   Hinman, J.

The plaintiff, in her declaration, seeks to recover for an injury to land, of which she claims to have been for several years lawfully possessed. The injury is claimed to have been caused by the defendants’ dam, setting back the waters of Pawcatuck river, so as to overflow the land. She alleges no title in herself, except such as is to be inferred from her lawful possession, and no permanent injury, except such as may be inferred from the allegation that the land has been overflowed and drowned, by means of which the* grass growing there has been spoiled, and the land made worse. We think, therefore, with the counsel for the defendants, that the gist of the action is the injury to the plaintiff’s possession of the land; and consequently, if she fails to show that she had the possession, she must fail in her action. It is true, undoubtedly, that overflowing and drowning land, and making it worse, may be an injury to the reversion as well as to the possession. It may destroy some valuable quality in the soil, or it may permanently injure or destroy wood and timber growing upon it, and if so, it would obviously be injurious to the reversion. But if the plaintiff intended to recover, on the ground of her reversionary right, as distinct from and disconnected with the lawful possession which she alleges, she should have added a count to her declaration adapted to a recovery for such an injury. Counts of this description are to be found in the books of forms, and the principle which will support such an action, is sufficiently recognized in the case of Randall v. Cleaveland, 6 Conn. R., 328, and the authorities there referred to.

The plaintiff proved, on the trial, that she owned the land in fee. This tended to prove her possession, because an owner is presumed to be in possession where nothing to the contrary is shown, and was therefore proper evidence in her favor : and, assuming that she had the possession as well as title in fee, she would have been entitled to recover full damages, as well for any permanent injury to the freehold, as for a temporary injury to the possession. But if the essential ground or object of the action, in other words, the gist of the action fails to be proved, there can be no recovery whatever. This, though not always the principal cause of the plaintiff’s complaint in point of fact, is, nevertheless, absolutely essential in point of law, as it is the main point on which the action rests. In this case, we have said, this main point on which the action rests is the plaintiff’s possession of the land. She has not declared for any injury to her reversionary right, and she can not therefore recover for any injury to that, unless by way of an increase, or addition to the damages, which she is proved to have suffered in consequence of being disturbed in the enjoyment of her possessory right. •

These principles are familiar, and if not expressly and fully recognized by the court, in its charge to the jury, were not in any sense denied, and the jury were explicitly told, that the plaintiff could not recover for an injury to the usufructuary right in the tenants. If the charge had stopped here, it would have been correct; and the court was under no obligation to go further, because the claim that was made by the defendants, being one that can not be sustained in point of law, the court might have disregarded it altogether.. This course, however, was not taken, and in the residue of this part of the charge, we are inclined to think the jury may have been misled. The charge, though not incorrect when properly understood and applied, yet, under the circumstances, as they appeared on the trial, and in reference to the claims made, was rather calculated to mislead, and on that ground it appears to us a new trial ought to be granted.

The motion states that it was proved, and not denied, that for at least three- years next before the date, and service of the plaintiff’s writ, (and she claimed to recover only for said three years,) the plaintiff had, by parol agreements from year to year, rented her said lot for a pasture to different individuals, who pastured the same under said agreements, whereupon the defendants claimed, as matter of law, that the plaintiff had thereby been wholly out of possession during said three years; and that the action being, as they claimed, for an injury to the possessory right, the plaintiff could not sue, but the tenants must sue, if anybody; and the defendants asked the court so to instruct the jury.

This request was, in substance, asking for a nonsuit, because it asked the court to decide, from the admitted fact, that during the three years for which the plaintiff claimed to recover, the land had been rented from year to year to different persons for a pasture, that she thereby was wholly dispossessed, whereas it appears to us that such a letting might be consistent with her retention of the premises during the whole of this period for every purpose, not inconsistent with the rights of the tenants to depasture there. The court, therefore, as we have intimated, was correct in refusing to sanction this claim, and might have disregarded it entirely. If wood, timber or fruit grew upon the land, the tenants, whose rights were confined to the right of pasturage, would have had no interest in them, and consequently they would belong to the plaintiff, and ordinarily she would retain possession, so far as it was necessary for her, in order to enjoy these productions. And so of anything else of value which the land might contain or produce, which did not come within the right of pasturage. In short, anything there might be upon the land, except the grass growing there, and which was not necessary or convenient to the enjoyment of the premises as a pasture, would belong to the general owner of the soil; and so far as it could be taken without injury to the pasture, might be ; and the plaintiff, for the purpose of taking it, must have had a qualified possession of the premises, even admitting that the renting of lands, by parol, for a pasture, necessarily means that the tenant is to have the possession at that season of the year when, ordinarily, there can be no use of them for such a purpose. It appears to us, therefore, that whether, by the renting of land for such a purpose, by parol, the landlord would be divested entirely of his possession, so as to prevent his suing for an injury to his possessory right, must depend upon the understanding and agreement of the parties, to be gathered from what was said at the time of letting, from the situation and condition of the land itself, as whether it was capable of any other use consistent with the right of the tenant; and, if to some extent, such other use would be injurious to the tenant, whether the injury would be appreciable, or trifling, or serious, in comparison with the value of the pasture; and we suppose that even professional men, who are not farmers, may be allowed to know, as a fact,' that most pastures in Connecticut are capable of being used, and are extensively used, for many other purposes. The meaning of such a renting might also be controlled by the custom of the country, if there was any on the subject.

In view of considerations of this character, the court, after informing the jury that the plaintiff could not recover for an injury to the usufructuary right in the tenants, further instructed them, that “ as the rest of the title and interest was in the plaintiff, she. might recover for an injury to that; and hence she might recover in this case, if all the other allegations in the declaration were true, notwithstanding said tenancy. By the expression, “ the rest of the title and interest,” was meant, undoubtedly, such possessory right as remained in the plaintiff, during the time the pasture had been rented to tenants. But although, as we have seen, it is very probable that there might have been such a right, yet we do not find that there was any evidence, before the jury, that would authorize them to find it, or that any evidence was offered for the purpose of proving it, or that the plaintiff relied upon anything, as a ground of recovery, except merely her title to the land. Besides, the word rented, aside from the qualification of it by the words with which it stands connected, naturally means that the tenant, to whom the property is rented, has the exclusive possession for the time. “ Rented for a pasture,” seems rather an equivocal phrase, which may be open to explanation, though it rather conveys the idea that the tenant has ah exclusive right, at least during the proper season for pasturing. If the same was used in conneetion with a building; as if it be said a building is rented for a dwelling-house, or store, or shop, it implies that the exclusive right of possession is in the tenant; and if this is not so as applied to a pasture, it is because the right of pasture is in its nature transient and less permanent, and more analogous to the. incorporeal right of way, than the right which one has to the house in which he resides. Still we do not think that the expression can be said -to imply that any other than the tenant has any right in the thing rented, during the time of the tenancy; and whether it would, or not, convey that idea, would, as we have said, depend upon other circumstances.

If we are correct in this, it is apparent that if this land was so situated that it could be used for nothing but a pasture, or if the agreement was that the tenants were to have the exclusive possession during the three years for which it was rented, then the plaintiff could have had nothing but her reversion alone, on which to found her right of recovery, and consequently the jury must have understood the charge as authorizing them to find in her favor, on that ground; and we are the more apprehensive that such might have been the situation of the case, from the fact that no claim of a concurrent possession in the plaintiff, or, indeed, of any possession in her during the time the land was rented, appears to have been made on the trial. Besides, in the elaborate brief of one of the learned counsel for the defendants, the ease, on this point, is put and rested here upon the sole ground of the right of a reversioner to recover for an injury to his reversionary right, and the difficulty, arising from the form of the action, does not seem to have occurred to him. On this point, then, we think that there ought to be a new trial.

Another point is made, by the defendants’ counsel, which may be important on another trial, and therefore ought to be determined. The defendants purchased their water privilege, including their dam, with what are called flash-boards upon it, which are used for the purpose of raising the water to a greater height than the dam itself would, without them, raise it, and they have been in the habit of using these flash-boards, or others of the same description, for this purpose. They claimed, on the trial, that they had never been notified that the flash-boards were too high, or that they, or their grantors, had no right to use them to raise the water to the height to which they did in fact raise it, and that, until such notice, they could not be sued, even if their grantors had no right to use them, and therefore conveyed no such right to the defendants. The plaintiff admitted the law to be, that one who purchases a dam, and only continues to use it as it was when purchased, and had been accustomed to be used by the grantor, is not liable to be sued, without first being notified that such use is an encroachment upon the rights of others. But she claimed, that as the flash-boards were put upon the dam, from time to time, every year, and renewed as often as they were carried away by water or ice, or were removed by the defendants in order to save them, that they were liable for such renewing and replacing them, unless the defendants had acquired the right thus to renew them. The defendants claimed, and requested the court to charge the jury, that as the new or renewed flash-boards were of no greater height than the old ones, they were not liable for renewing them as often as they were carried off by freshets. The court charged the jury that the defendants, if they had no right to keep the dam with flash-boards as high as it was kept with them, when the acts complained of were done, and the flash-boards so renewed from year to year caused the injury, the defendants were liable for their own positive acts, without previous notice, since they were not justified by the like positive, but unlawful, acts of their grantors.

The defendants insist that this ruling was inconsistent with the law, as it was admitted to be; that one purchasing a dam may lawfully use it as it was when purchased, until he has notice to remove it, or not so to use it, and as the law has always been held to be since PenruddocJe’s case, 5 Rep., 101.

The claim of the defendants, upon this point, is obviously founded upon the assumption that the flash-boards are, in fact and in law, a part of the dam itself. And on this assumption we do not see why the conclusion to which they arrive does not follow; because the right to use and maintain a dam must necessarily carry with it the right to repair, when it becomes defective, and if the flash-boards are but a part of the dam, it would seem that the grantee, without notice that the dam causes an injury which the party has no right to cause, might lawfully replace them if they become defective, or are carried away by accident. But, on the other hand, the court treated the flash-boards, as separate and distinct from the dam, and not constituting any part of it. And assuming this to be so, the ruling was obviously correct.

We are rather inclined to think, that the proper course for the court to have taken was to submit the question to the jury, for them to find whether the flash-boards were, or were not, a part of the dam, or an appurtenance to it, telling the jury that if they found them to be a part of the dam, then the defendants could not be sued for maintaining them, in the condition they were when purchased, without previous notice that they had no right to use them. But if they found them to be no part of the dam, and only placed upon it for occasional use, as the state of the water might make them convenient or necessary, then the raising the water by means of them to a greater height than they had a lawful right to raise it, to the injury of the plaintiff, would render the defendants liable without any such previous notice, although they originally purchased the dam with flash-boards upon it.

For these reasons, we advise the superior court to grant a new trial of the cause.

In this opinion, the other judges, Waite and Stokrs, concurred.


source: Caselaw Access Project

author: Waite, C. J.

license: Public Domain

text:
    Copp vs. The Town of Norwich.
    Land was conveyed to the plaintiff and his heirs forever, upon the following trust: “ to let the premises at his discretion, collect the rents, and therewith keep in repair the premises, insure the buildings, pay the taxes on the premises, and his reasonable expenses in managing the trust, and out of the balance of said rents, apply so much as he should deem suitable to the proper support, education and maintenance of the grantor’s three minor children, according as, in his judgment, shall be requisite, suitable, and best for each of them while in their minority; and when the youngest of them, or the survivors of them, if either should die previously, shall attain his majority, then to convey the premises to such of said children as shall then be living, their. heirs and assigns forever. If hut one o’f them shall survive, then the whole to be conveyed to the survivor. If either should die, leaving lawful issue, such issue to takejhe share which would have belonged to their parent.” Any surplus rents, beyond what might be needed for the purposes specified, were, by the trustee, to be invested, and holden upon the same trust as the property conveyed by the deed. In case all the children should die before the time appointed for the conveyance by the trustee, leaving no lawful issue, then he was to convey the premises, and the accumulated rents, to the heirs at law of such children, if any, and their heirs forever, and if there should be none such, then to the heirs of the grantor. In an action by such trustee, during the minority of said children, against the town, in which said land was situated, to recover the money, by him paid to such town, for taxes assessed upon such land, the plaintiff claimed that the land belonged to said minor children; that they were persons of color, and their estate exempt from taxation, under the act relating to the assessment of taxes; (Rev. Stat,, tit. 50, ch. 1, § 3 ;) it was held, that said land was not the property of the cestuis que trust, and was not exempt from taxation, and consequently that the plaintiff was not entitled to recover.
    This was an action of assumpsit, brought by the plaintiff, as trustee of three minor children, to recover moneys paid for taxes, imposed by the defendants, upon certain real estate, situated in the town of Norwich.
    The parties agreed upon the following statement of facts. The real estate, upon which the taxes were laid, was conveyed to the plaintiff by deed from the father of the minors, of Georgia, dated August 26,1852. The material provisions therein contained, are the following. The plaintiff was'/' to have and to hold the premises with the appurtenances thereof, unto him the said Belton A. Copp and his heirs forever, in trust, for the use and benefit of the persons hereinafter designated, and upon the trusts following,” viz., “ to let the premises at his discretion, collect the rents, and therewith keep in repair the premises, insure the buildings, pay the taxes on the premises, and his reasonable expenses in managing the trust, and out of the balance of such rents, apply so much as he should deem suitable to the proper support, education and maintenance of the grantor’s three children, then living in Groton, according, as, in his judgment, shall be requisite, suitable, and best for each of them, while in their minority; and when the youngest of them, or the survivor^ of them, if either should die previously, shall attain his majority, then to convey the premises to such of said children as shall then be living, their heirs and assigns forever. And if but one of them shall survive, then the whole to be conveyed to the survivor. If either should die leaving lawful issue, such issue to take the share which would have belonged to their parents.” Any surplus rents, beyond what might be needed for the purposes specified, were by the trustee to be invested, and holden upon the same trusts, as the property conveyed by the deed.
    In case all the children should die before the time appointed for the conveyance by the trustee, leaving no lawful issue,'then he was to convey the premises, and accumulated rents, to the heirs at law of such children, if any, and their heirs forever, and if there should be none such, then to the heirs of the grantor.
    The three children, named in the deed, are still living, and are all minors. Their father is a white man; their mother a mulatto woman, whose mother was of unmixed black, and whose father was of unmixed white blood; and the children correspond in complexion to their descent, being lighter than mulattos, and darker than whites.
    The plaintiff has paid two taxes upon the property, amounting to $117.99.

      The question reserved for the advice of this court is, whether upon these facts, under the statute of 1851, the property conveyed to the plaintiff, in manner aforesaid, is exempt from taxation. If it is, judgment is to be rendered in favor of the plaintiff, for the amount of taxes paid, with interest; otherwise for the defendants. >'■

      Crump and E. Perkins, for the plaintiff.
    1. The statute of this state, Rev. Stat., p. 838, it is agreed, exempts from taxation “ the personal and real estate of persons of color.”
    2. The fact that this property is held in trust by a white man, for persons of color, does not take it out of the exemption, because such a construction defeats the very object of this remedial law.
    It is true the estate of these cestuis que trust is an equitable one, but the land is none the less, on that account, their “ real estate.”
    This, moreover, is all the estate that has any value. It takes all the benefit, use and profit of the land, and especially it, and it alone, must pay these taxes if paid at all. The trustee is but an instrument. It matters not to him whether they are paid or not.
    3. The clause in the deed, which makes it the duty of the trustee “to pay the taxes in the premises,” does not affect this case, because the deed of course means lawful taxes, and the very matter in dispute is the lawfulness of these taxes. City Council v. St. Philip’s Church, 1 McMullen, Ch. Rep., 140. (U. S. Eq. Dig., 2, p. 606, No. 20.)

      Wait and Halsey, for the defendants.
    1. The deed, under which the plaintiff derives his title, and prosecutes this suit, makes it incumbent upon him to pay the taxes. The duties and liabilities of trustees, under a deed of trust, vary with the directions, liabilities, and restrictions contained in the instrument under which they act. 11 Humph. R., 333.
    2. The plaintiff is to receive the rents, and out of them to pay the repairs, taxes and insurance, before making any other use of the “ funds.” The land, when conveyed, was taxable, and remains subject to the same burthens. To reject that construction, would render inoperative a part of the deed. The deed conveyed to the plaintiff a complete legal estate in the premises. 2 Sw. Dig., 107. Doe. ex dem. Player v. Nichols, 1 B. & C., 336. And this was necessary to the execution of the trust. Lewin on Trusts, 234, 240, 247. Leavitt v. Beirne, 21 Conn. R., 1. Upham v. Varney, 15 N. H., 462. Duke of Cumberland v. Graves, 9 Barb., 595.
    3. The minor children of the grantor, have no present interest in the land. They have an interest in the rents, after the repairs, taxes, insurance, &c., &c., are paid, and that, by the deed, is the extent of their interest. They may, upon the happening of a future event, succeed to the estate ; but until that event happens, they are not the owners, legal or equitable. Without the direction contained in the deed, the lands would be subject to taxation in the hands of the plaintiff. He is the “owner,” within the meaning of Sect. 28, of Act of 1851, for the assessment and collection of taxes.
   Waite, C. J.

It is the policy of our law, to make all property, with few exceptions, liable to taxation, that it may be made to contribute to the support of government, by which it is protected, and secured to the owner. Among the kinds specifically exempted, is “ the real and personal estate of persons of color.”

The first enquiry is, whether the property, for which the plaintiff has been taxed by the defendants, is the estate of those persons, who are claimed to be persons of color, within the meaning of the statute.

That the legal title is not in them, but in the plaintiff, must be admitted. The conveyance was to him, and not to them. And whether they will have any interest in the property, is yet uncertain, depending upon their attaining the age of twenty-one years.

The property is not to be conveyed to them until the youngest becomes of that age, and, during their minority, they have no interest in it, except so much of the rents, as the plaintiff, in the exercise of his discretion, may think proper to allow them for their education and support. It is obvious, therefore, that, at present, they have no vested interest, beyond a claim upon the plaintiff, for a reasonable exercise of his discretion.

And it does not appear that their claim, in this respect, would, in any manner, be affected by the taxation of the property. The grantor, in his deed, seems to contemplate a surplus of rents, beyond what may be required for his children, which he directs to be invested and holden in trust. For aught that appears, these rents may be fully adequate for the support of the children during their minority, and the payment of all taxes.

If the children should all die before any one of them arrives at the age of twenty-one years, and without heirs, an event which seems also to have been contemplated by the grantor, then the whole property, including both that conveyed by the deed, and the accumulated rents, is to be conveyed to the heirs of the grantor.

We do not think it was the design of the legislature to exempt property, thus situated, from taxation. The general rule is, that all real estate shall be subject to taxation, and an exemption of any particular estate is an exception to that rule; and to entitle a party to the benefit of such exemption, he must bring his case clearly within the provision of the law; which we think the plaintiff, in the present case, has not done. He is not a person of color.

Whether the children of the grantor, having a preponderance of white blood, can be considered as persons of color, within the meaning of the statute, and whether the provision in the deed, relative to the payment of taxes, can have any effect upon the question, whether the property is, by law, liable to taxation, are questions which we deem it unnecessary to consider. But for the reason already stated, we are of opinion that, upon the facts admitted in the case, the plaintiff is not entitled to recover, and therefore we advise the superior court to render judgment in favor of the defendants.

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

Judgment for defendants.


author: Storrs, J.

text:
    Nash vs. Adams and another.
    The phrase, “ ground of action,” in our Statute of Amendments, (Uev. Stat., tit. i., chap. 8, § 102,) is not used in a technical sense, but refers to the real object of the plaintiff in bringing his suit.
    In deciding upon the admissibility of an amendment to a declaration, the court will look not merely at the face of the declaration, but also at the extrinsic circumstances of the case.
    Where, in an action on the case, it appeared that the ground of action was the non-delivery of gold, which the declaration alleged had been entrusted to the care of the defendants generally, and not in any particular capacity, it was held, that the plaintiff’s declaration might be amended by additional counts, with new averments, as to the manner, time, and place, of the reception of such gold.
    Where, in the other counts of the declaration, it was alleged that the gold was entrusted to the defendants as common carriers, to carry from A. to P.; it was held, that the declaration might be similarly amended.
    This was an action on the case, brought to the term of the superior court for the county of New London, holden in September, 1851.

      The declaration originally contained three counts.
    In the first count, it was alleged that the defendants were carriers of goods and chattels for him from the city of Norwich, in the state of Connecticut, to the city of Philadelphia, in the state of Pennsylvania, and that on the 8th day of October, 1850, the plaintiff delivered to them a bag containing 207 oz. and 10. pwts. of placer gold, marked U. S. Mint, Pa., to be conveyed from said Norwich to the U. S. Mint at Philadelphia.
    The second count was like the first, except that it did not allege the defendants to be common carriers. -
    The third count was general, and alleged that the defendants had the care and custody of a like bag of gold, which, through the neglect of the defendants, was lost.
    At the term of said superior court, holden in December, 1853, the cause was tried by the jury, on the general issue. On the trial, it appeared in evidence, that the bag of placer gold, for the loss of a part of which the plaintiff sought to recover, was delivered to the defendants, at the city of San Francisco, in the state of California, to be conveyed by them on a special contract, to the city of New York, in the state of New York, and there to be delivered to the plaintiff; that the defendants brought said bag of gold, to said city of New York, and (the plaintiff residing in the town of Preston, in the state of Connecticut) the said bag was forwarded to the town of Norwich, in said state, by the defendants, and was there delivered to the plaintiff, and the plaintiff there received the same, and delivered to the defendants the bill of lading.
    It further appeared, that afterward, on the same day, the plaintiff re-delivered said bag to the defendants, at the city of Norwich, and took a receipt therefor, to be conveyed by the defendants to the United States’ Mint, at the city of Philadelphia, in the state of Pennsylvania. The defendants conveyed the said bag to said mint, and there, for the first time, it was discovered that there was a difference between the true weight, and the weight marked on the said bag. It further appeared that the plaintiff originally brought his action, based on this last delivery of the said bag to the defendants, by the plaintiff, at the said town of Norwich, to be conveyed to the said mint as is set forth in the first three counts of the plaintiff’s declaration.
    The jury, being unable to agree on a verdict, the cause was continued to the March term of the said superior court, when the plaintiff moved for leave to amend his declaration, by the addition of three new counts, the first of which was substantially as follows: “ The defendants, before and at the delivery of the goods and chattels to them, as next hereinafter mentioned, were, and thence hitherto have been, and still are, common carriers of goods for hire, from San Francisco, in the state of California, to Norwich, in the state of Connecticut, and. the plaintiff, while the defendants were such common carriers as aforesaid, to wit, on the 30th day of August, 1850, caused to be delivered to the defendants, and the defendants then accepted, and received of and from the plaintiff, a certain other bag, or package, containing divers goods and chattels of the plaintiff, to wit, 208 ounces of placer gold, of great value, to wit, of the value of four thousand dollars, to be safely and securely carried and conveyed by the defendants from San Francisco aforesaid, to Norwich aforesaid, and there, to wit, at Norwich aforesaid, safely and securely to be delivered, for the plaintiff, for certain reasonable reward to the defendants in that behalf. Yet the defendants,” &c.
    The second new count alleged, that the defendants were common carriers from San Francisco to New York; that said gold was delivered, and received by them, to be carried by them, from San Francisco to New York.
    In the third new'count, it was alleged, that the defendants were common carriers, from the city of New York to Norwich, in this state, and received said gold to be carried from said New York to Norwich.

      The defendants objected to the allowance of the motion, claiming that it changed the ground of the plaintiff’s action. The court overruled the objection, and allowed the motion, and the plaintiff thereupon filed said new counts.
    The jury returned a general verdict in favor of the plaintiff, and the defendants -filed a bill of exceptions, and by motion in error, brought the case before this court.

      Foster, Park and Wait, in support of the motion.
    1. Though the statute now gives to our courts great discretionary power in allowing, amendments, both in form and in substance, at any stage of the proceedings before judgment, yet the alteration must be an amendment and not the institution, in fact, of a new suit, upon a new cause of action. Drake v. Watson, 4 Day, 37. Peck v. Sill, 3 Conn. R., 157. State v. Rowley, 12 Conn. R., 101. Town of Windham v. Litchfield, &c., 22 Conn. R., 236. Smith v. Palmer, 6 Cush. E., 513.
    2. Apply this rule to the present case, and it is plain that the new counts could not be added; because they embrace a claim, widely different from that stated in the first fcounts; a claim growing out of a different contract or agreement. Eev. Stat., tit. i., chap, viii., sec. 102.

      E. Perkins and Halsey, contra.
    1. It is manifest that justice required the amendment, and that the court exercised a sound discretion in allowing it. If the judgment is reversed, the plaintiff must try the case again, upon a similar declaration, when the result must be the same. The recovery was that, for which the plaintiff originally brought his action.
    Numerous cases are to be found, where the courts have stated that amendments were within their equitable power, and that they would exercise a salutary discretion in allowing them, or not, as the justice of each particular case should require. 1 Am. Com. Law, 330.

      2. The allowance of the amendment in this case, was not only within the justice and equity of the rule, but it was strictly legal and proper, in view of the best considered authorities. It did not change the “ form or ground of action.” The thing sought to be recovered in the original action, was the gold dust, or its value, that had been lost by the negligence of the defendants. The amendment did not depart from this, or set up a different cause of action. It sought the recovery of no new thing.
    The different counts are only different modes of stating the cause of complaint, or injury, for which the plaintiff sues. Smith v. Palmer, 6 Cush., 513. Ball v. Claflin, 5 Pick., 303. Swan v. Nesmith, 7 Pick., 220. Cassell v. Cook, 8 S. & R., 268. Anon. 15 S. & R., 1. Haskins v. Ferris, 23 Vt., 673. Parley v. Brown, 12 N. H., 493. Loring v. Proctor, 26 Maine, 18. 4 Eng. Law and Equity, 329. Baldwin v. Walker, 21 Conn. R., 168.
    3. The allowance of an amendment within the general power of the court, is not the subject of error. Merriam v. Bangdon, 10 Conn. R., 460. Whether an amendment, in a given case, is within the power of the court, is very much a matter of discretion, to be exercised upon the particular facts of the case, and courts have, with great propriety, been very liberal in allowing them, and, in this case, it would be in furtherance of the cause of justice.
    All the evidence, adduced in support of the declaration, as amended, could be, and was, introduced under the original declaration. A trial upon either of the original counts, involved the whole case. The third original count would support the verdict if all the others were struck out.
   Storrs, J.

The objection urged against the amendment of the declaration in this case is, that it changed the ground of the action ; its form was confessedly preserved. The statutes of amendment, and the decisions upon them, in other states, which have been very elaborately examined by the defendants’ counsel, obviously furnish but little light for our guidance in expounding our own statute on that subject. Ours is a very ancient law, and has continually been more and more liberally expounded, so as to further the beneficial purpose intended by it, which was to prevent the plaintiff from being put to a new action, where by accident, mistake, or inadvertence, or even by carelessness, he had, in his declaration, made a formal slip, or misdescribed the facts of his case ; subjecting him, however, if he does not amend within the short time allowed by the statute, to the payment of costs, at the discretion of the court. And, under the long and unquestioned practice of our courts, it has received such a broad construction, that we have no difficulty in sanctioning the amendment, which was allowed in this case. The third original count of the declaration was in the most general form, stating that the defendants, at their special instance and request, had the care and custody of the gold therein described, and by their neglect to take proper care thereof, a part of it was lost. If the declaration had contained only this count, the amendment allowed would only have been an amplification of it, making it more particular as to details, and would have been allowable on the strictest principles claimed by the defendants. But it is not necessary, in our opinion, to justify the amendment on that ground. If that count had not been inserted, we should still think that it might have been permitted. Many cases of amendments might be cited in which the objection, now urged, applied with quite as much force as in the present, but in which it was overruled and no exception taken. In a great proportion of the cases where amendments are allowed, the ground of action is, in one sense, changed; as where, for instance, the date of a note declared on, or its amount, is incorrectly described: but amendments, in such eases, are very frequent, where the court is satisfied that the error arose merely from mistake, or inadvertence, and that the action was intended to be brought on the instrument, or cause of action, as described in the amendment.

The phrase, “ ground of action,” is not used in this statute in any technical or narrow sense, but was intended to refer rather to the real object of the plaintiff in bringing the suit; and such a construction has always been given to it as would further that object. The face of the declaration merely, therefore, has never been held to determine whether it may be amended, the form of the action being preserved; but courts, in deciding upon the admissibility and propriety of an amendment, have uniformly, and, we think, properly, looked also at the extrinsic circumstances of the case, with a view of ascertaining the real purpose for which the suit was brought. In this case, we consider the ground of action, using that phrase as it is used in the statute, to be the nondelivery, by the defendants, of the gold which was entrusted to their charge, and that the superior court did not exceed its power in allowing the amendment, as to the manner, time, or place, of its reception by the defendants to be transported, which was substantially all that was done in this case.

The judgment complained of is therefore affirmed.

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

Judgment affirmed.


author: Hinman, J.

text:
    The Thames Steamboat Company vs. The Housatonic Railroad Company.
    . The master is not liable in an action of trespass, for the act of his servant, where such act was neither expressly ordered nor authorized to be done.
    Nor is he liable in such action, where the injury was not the natural and prob- | able result of the execution of the master’s orders, and could have been avoided joy the exercise of ordinary care on the part of the servant.
    The principle of law that subjects a master for the tortious act of his servant in the performance of his master’s business, within the scope of the general authority, is the same as that which subjects him for the act of his servant, done by his express direction; but the remedy for the injury in the former ease is by an action on the case; in the latter, by an action of trespass.
    The liability of a master, in an action of trespass for the act of his servant, done by his express direction, does not rest upon the relationship of master and servant, but upon the fact that the act was done by the master’s express direction.
    In an action of trespass vi et armis, it was proved that the plaintiffs’ steamboat took fire in the night season, while it was fastened by the plaintiffs’ cable to the defendants’ wharf, upon which stood an old wooden freight-house; .but before endangering said freight-house, and while the fire could have been extinguished, the cable was cut by the defendants’ watchman, and the boat drifted away and was burned. No evidence of any authority for the act of the watchman was introduced, other than such as might be implied from the watchman’s general employment as such, in the business of the defendants. The court rendered judgment as in case of nonsuit. Held, that such nonsuit was properly granted.
    This was an action of trespass vi et armis.

    The declaration charged, substantially, that the plaintiffs, on the 26th day of July, 1852, were the owners of a steamboat, called the Alice, which by two cables was secured to a wharf belonging to the defendants; that the defendants, by their servants and agents, with force and arms, cut in two said cables, and threw off the same from said wharf, and thereby wholly destroyed the same, and by reason thereof said steamboat was severed from said wharf, and was, by the current, swept into the harbor beyond the control of the plaintiffs and their servants, who were then extinguishing a fire, accidentally existing at the time, on board said boat, and was burned up and wholly destroyed.
    The defendants pleaded the general issue, with notice of special matter to be given in evidence.
    On the trial to the jury, the plaintiffs introduced the following testimony.
    1. Levi Wheeler, who testified as follows:
    1 was one of the watchmen of the city of Bridgeport, and was so employed, at the time of the burning of the steamboat Alice, in July, 1852; when I saw her, smoke was rising from between the wheel-houses; I ran for No. 5 engine, and my associate watchman ran for No. 4. No. 4 got first on the ground; the fire had burned but little, the wind was very light, almost a calm; the air blew off shore, away from the buildings on the wharf where she lay. The engines came down on the wharf close to where the boat lay. In passing along on the side of the depot, I met Lawrence Sheridan, with an axe in his hand, about the middle of the depot; this depot, or freight-shed, was like an farmer’s old corn-house, with two openings into it, one at the bow, and the other at the stern of the ’boat. Sheridan was a watchman for the Housatonie Eailroad’Company ; I had seen him there as a watchman, for a year and a half, or two years, before this time. Some one said to Sheridan, what are you doing with your axe 1 he replied, I have been cutting the boat loose ; to which the man said, you ought not to have done that. Sheridan then said, he had been put here to take care of the property of the road, that he had done it and should do it again. When No. 5 engine got there, which was the second engine on the ground, the fire could have been put out, without much loss, if the boat had continued to lie at the wharf; the t\yo pipes from the two engines would have put it out in a very little while; each engine could have taken a place at a gangway. I believe the property on shore would not have been burned from the boat, had she burned down at the dock. The boat drifted off from the wharf, and burned on the flats in the harbor. The wheel-house, which lay toward the west, was not burned. After the boat was cut loose from the wharf, and had drifted off, some one spoke as to her being hauled again alongside of the wharf, and Capt. Hawley, who, I understood, was superintendent of the railroad company, said, that she could not be hauled back again. The fire took place between twelve and one o’clock. Sheridan acted as watchman of the defendants for some six months after this time. Captain Hawley also continued in charge of the property of the company, and the wharf, &e. After this,
    On cross-examination, he testified : I first heard the alarm of fire ; heard the cry, fire! I could see no fire at the time ; There were two or three standing about, but I knew no one but Cogswell, the watchman; he said the Alice is on fire; the watchman went up Main street, the witness to Water street. The boat lay 'by the shed; it might have been fifteen or twenty minutes, possibly thirty or thirty-five, before he got to the fire with the engine; engine had a quarter of a mile to go ; engine went to stem of boat; a schooner lay above the stern of the boat; people on board of her; the stern of the boat was fast when he first got there; could have put out the fire in fifteen minutes, I think.
    2. John Cogswell, who testified, that he was in Hall street at the time,- and heard a halloo ; that he ran toward the boat and saw it; then ran to No. 4 engine, and gave the alarm; came down to the boat, and went on board at the after-gangway. The boat soon began to swing off; he ran forward, and when he came back, she was cut loose; there was no difficulty in putting out the fire when he went on board; there was but little fire; that was near the pipe; thought the property on shore was not hazarded by the boat’s remaining at the wharf; thought the shed had a tin roof; don’t know who cut the boat loose; saw Sheridan there. The Housatonic Railroad Company were in possession of the property there ; fire broke out between one and three o’clock; neither end of the boat was cut loose when we got there; it could not exceed ten minutes from the first alarm, to the time when No. 4 engine got there.
    On cross-exainination, he said he gave the alarm of fire; he heard a halloo ; went on board the boat, and came back to find the foreman of the engine; told some of the men to come back to the stern of the boat; she had swung off so, when they came back, that they could not get on board; then started forward, and found she had been cut loose there also; that, from all he saw, he thought there would have been no difficulty in putting out the fire, if the boat had remained at the wharf; has had experience in engines, having belonged to fire-companies for a number of years formerly; could not have been .many minutes between the time of his going forward and finding the boat fast, and then finding her cut loose.
    3. The deposition of Elbridge G. Allen, who deposed as follows:
    I was engineer on board the Alice, at the time she was burnt, at Bridgeport, on the night following the 21st day of July, 1852. The boat, for some time before she was burnt, had been running between New York and Bridgeport; she reached Bridgeport on the afternoon before she was burnt, at about three o’clock, and by four o’clock, all the fires in my department were out. Between twelve and one, I was aroused by an alarm of fire; I got up immediately, and discovered a blaze of fire coming up by the side of the gallows-frame; there was another blaze coming, up through the scuttle-frame, above the vise-bench ; took a pitcher of water and threw it on the fire, and it extinguished the blaze that came up by the side of the gallows-frame; I then went back to my room and put my pantaloons on, and then went out again, and sung out to the fireman to bring up the buckets as soon as he could; the blaze was then coming up around the casings of the cylinder. I went back to my room, put some of my clothes in my trunk, and hauled it to the door; then I went forward, and they had got the buckets and were passing- up water on to the forward deck. I took buckets also, and threw water on the fire, which somewhat kept the fire in check. After I had thrown water a few minutes, I went to my room again, and' handed my trunk to Thomas Crafts, and he put it ashore. When I got ashore, I found the boat separated or disconnected from the main line, and gradually swinging off, and about that time, one fire engine was brought on to the ground; the fire was then burning around the gallows-frame, and forward around the boiler; it had not got aft; the firemen ran their hose out, but the boat had swung out so far that the hose could not reach it, and some one sung out, put on another butt of hose. About that time the bow of the boat began to go off; the whole boat then swung off bodily; who cut the bow-line, or when it was cut, I do not know. My brother-in-law, Thompson, and another person, went aboard after the boat went off, to run a line ashore, so as to haul her in again, but they did not succeed, and came ashore, and the boat swung around to the edge of the flats. If the lines had not been cut and the boat had been allowed to remain where she was when the fire commenced, I have no doubt that the fire could have been extinguished in a short time, if the fire-engines that were there, were good ones, for water was handy, and there was plenty of it, and the engines, if they were good ones, could have flooded the boat in a very short time. After burning some time, the boat sunk. I think it must have been an hour and a half, or two hours, and perhaps more, after she went on to the flats, before she sunk. When she sunk, both wheel-houses were standing; the larboard one was burnt around the top some, but the outside of the starboard was scarcely burnt at all; the name of the boat was left undefaced, and was plain to be seen on that wheel-house. I do not know how the fire originated, but think it was the work of an incendiary, for there was no combustible matter on board anywhere near where the fire was, and at four o’clock, there was no fire in that part of the boat under my charge, or near where the fire originated, and the ashes were all wet down. We had no watchman on board that night, because we were up till near twelve o’clock. The hands belonging to the boat worked, getting out and in freight, till after eleven o’clock, and then some of them went ashore. When they returned I can not state, though one of them, whom we called Sandy, was there, and helped me at the fire. The breast-line was cut, and the stern-line thrown off some ten or fifteen minutes before the bow-line was thrown off.
    4. Samuel Jones testified, that he was foreman of engine company No. 5, at the time of the fire. Met the engine in the street going to the fire ; went down to the steamer; got there with engine, and got the suction-hose on ready to play. The boat drifted off out of reach; got a yawl-boat, and took the hose into the boat, but thought we could not do anything till the boat was brought back to the wharf. Capt. Hawley told Concklin not to bring the line ashore; Concklin then threw it off. The fire was between the wheel-houses, and had made but little progress; the engine would have played in less than three minutes, and could throw fifteen feet from an open butt, two hundred and forty gallons a minute; they could have put out the fire in a very few minutes. There was no danger in going on board, nor to the buildings ; we could have protected them. The air was very still. He thought the boat could have been saved, so as to go on her trip the next day.
    On cross-examination, he said that he had no interest in this case; that he had a claim against the Alice; that he did not know as to their property. Capt. Weeks was his brother-in-law ; saw him at the fire perhaps fifteen minutes after he got there.
    5. John Sherman testified, that he was a fireman, and had been so, fifteen years; that he heard the alarm, dressed and ran down to the wharf. The steamer was seventy-five to one hundred feet from the wharf, and if she had remained, they could have put out the fire, and saved the defendants’ property. One of the wheel-houses was standing the next day; think we could have thrown the water directly on the fire, as we had a good supply of help.
    6. John M. Concklin, testified, that he also resided at Bridgeport, and had been connected with the boat. Aclcee was mate; four deck hands; Paterson and his wife were the cooks.
    On cross-examination, he said, that the clerk slept on the upper deck. Capt. Hawley said, there was danger to vessels below, and they let go the line ; did not attempt, after Hawley forbade it, to bring her up. We paid wharfage for lying at this place, to the railroad company. Capt. Hawley or his clerks received it.
    7. S. D. Baldwin, testified as follows: I saw Lawrence Sheridan with an axe in his hand; there was no flame on the boat in sight; saw Sheridan commence cutting after-line; witness said, don’t, for God’s sake, cut line, she can be saved. She was loose very soon, and drifted off; fire was in line of the pipe; if boat moored at the wharf, no danger to the depot; the old fabric of shed might have caught; easily put out; top of the wheel-house about level with the top of the shed; the starboard wheel-house did not burn enough to deface the name. I think the engines would have put out the fire in a few moments; light work only was on fire.
    On cross-examination, he said that he did not see Sheridan cut more than one line; that he noticed he was there, before the engines came.
    8. Andrew E. Joy, testified, that he was a merchant at Bridgeport; was awake when first alarm was given; there were few persons standing at the after-gangway. He went on board, and the fire was in the center of the boat. He heard Capt. Baldwin call for an axe, and saw a man come from the other direction, who said he should cut her loose. He saw him cut the bow-line; he was an Irishman; another Irishman came up and said, you are the rascal who cut her loose. He thought it was the same man that cut the line forward, Larry Sheridan. There were high words. He thought that the engines would have put her out soon; was very little air, and that off shore.
    On cross-examination, he said, that he went to the bow of the boat, first; that he did not go to the stern till afterward. He protested against cutting the boat adrift, as he thought that there was no danger.
    The plaintiffs proved the due organization of the defendants, and also introduced much testimony, tending to prove that the fire could have been extinguished in a short time, by the fire-engines, which arrived upon the wharf before, or soon after, the cables were severed; and that the buildings of the defendants could have been protected.
    The plaintiffs having concluded their testimony, the defendants moved for a judgment, as in case of nonsuit, which motion was granted by the court. The plaintiffs thereupon filed a motion to set aside said nonsuit, which the court refused to grant, and thereupon they moved that the evidence offered by them, be certified by the court, and the case transmitted to this court for revision.
    Foster, Wait, and E. Perkins, in support of the motion.
    1. The plaintiffs’ boat was rightfully moored to the wharf and property of defendants, and they had a right to retain her there, when on fire, so long as there was a reasonable hope of extinguishing the fire, or until the property of the railroad company should be seriously endangered by her remaining longer.
    2. The railroad company would be justified in cutting the boat adrift whenever there was no longer a reasonable hope of saving the boat, and their own property had become seriously endangered, and if, in the exercise of this right, they are guilty of unreasonable and reckless negligence, and cut the boat adrift, without just cause, whereby she is lost and destroyed, they are liable to the plaintiffs for such damage.
    3. On the facts proved, the boat would have been saved, if she had been permitted to remain at the wharf, and she could have remained there, without any serious danger to the defendant’s property.
    4. It is equally clear, on the evidence, that the loss of property was caused by the acts of an agent and represenfative of the defendants, then, and for a long time before and since, in their employment, and claiming to be acting in their behalf, and by their directions, in this very matter. He was employed as a “ watchman,” to guard and protect the property of the defendants, alongside of which this boat lay, and to which it was attached.
    5. The defendants are answerable for the acts of their agent in this matter, who was placed there for the purpose of exercising his discretion, care and skill in protecting the defendants’ property, in just such an emergency as occurred, connected with the boat. In the bona fide exercise of this discretion, he is, to all intents and purposes, the railroad company, and his acts are their acts.
    6. The defendants are liable in this form of action. The injury was direct and immediate. If he had owned this property, and had done the acts complained of, in his own behalf, could there be any question that trespass would be the proper remedy ?
    If the corporation is liable at all, it must be in the same form of action, and on the same principles that the watchman would be.

      Hawley and M Curdy, for the defendants.
    I. The defendants are not liable for the conduct of Sheridan, the watchman, in any form of action. He was not ■ their agent, for the purpose in question. 1. They did not direct the act. 2. They did not ratify it, and their neglecting to dismiss him did not ratify it. . 3. The act was not necessary in the performance of his duty. 4. No authority to do the act is implied either in law, or in fact, from the term “ watchman.” Smith’s Law of Master and Servant, 72 Law Library, 144-193. 25 Eng. Com. Law, 175. 38 Eng. Com. Law, 261. 1 American Leading Cases, 465, 640, (or 2 N. H., 548.) 17 Mass. R., 509. 5 Wheaton, 326. 1 Met. R., 560. 2 Conn. R., 479. 1 B. Munroe, 96. 20 Conn. R., 284. 22 Conn. R., 1, 502, 530.
    IL If the defendants are liable at all, it is not in this form of action. 72 Law Library, 144.
    III. A nonsuit was the proper mode of disposing of the case. 1. The facts, being undisputed, the authority of the watchman was a question of law. 9 Shep., 254. 9 Gill, 331. 2. If it was a question of fact, the evidence was insufficient to sustain a verdict, and justified a nonsuit. 1 Sanford, Sup. Ct., 601. 3 M’Cord, 130. 2 Wend., 424-436. 3 Barbour, 360. 7 Hill, 529. 8 Mass. R., 336. 17 Mass. R., 1. Stat. of Conn.
   Hinman, J.

The plaintiffs, in this case, having closed their evidence, the defendants moved for judgment as in case of nonsuit; and the superior court, being of opinion that the plaintiffs had failed to make out a prima facie case, granted the motion; and the case is now brought before us for revision, under § 2 of the statute of 1852. Comp, statutes of 1854, p. 97. The question here is the same as in the superior court. Is the plaintiffs’ evidence sufficient, in point of law, to make out a prima facie case in their favor ?

From the evidence, it appears that the plaintiffs’ steamboat, called the Alice, in July, 1852, was moored alongside of the defendants’ wharf in Bridgeport, upon which the defendants had what the witnesses call a depot, or freight-shed, an old wooden shed, described as similar to a farmer’s corn-house. The boat was fastened to the wharf by means of cables, and on the night of the 21 st of July, the boat took fire, between the wheel-houses, near the smoke-pipe, and before the fire had so far progressed as to endanger the building upon the wharf, and while she was in such a condition that the witnesses supposed the fire could easily be extinguished by the engines just then arrived, or arriving, at the spot, she was cut loose from the wharf by the defendants’ watchman, Lawrence Sheridan, and drifted out upon the flats, and was consumed and destroyed. After the boat had drifted away from the wharf, Capt. Hawley, also in the defendants’ employment, as superintendent, on hearing it proposed to haul her alongside of the wharf again, said that she could not be hauled back again.

The action is trespass, vi et armis, for causing, by means of the defendants’ servants, the cables, by which the boat was fastened to the wharf, to be cut; by means of which the boat drifted away from the wharf, and thereby prevented the plaintiffs’ servants from extinguishing the fire, and thus saving the boat. It does not appear what Sheridan’s duty as watchman was. Nor does it appear that the defendants had any property to be watched at the place, except the wooden shed, which was upon their wharf. It is insisted, however, by the plaintiffs, that, as watchman, he had an unlimited discretion, to do everything that he might think necessary, in order to secure the plaintiffs’ property from injury, in any emergency like the one in question; and that as he exercised this discretion in an unreasonable manner, by cutting the boat loose, when there was a reasonable probability that she might have been saved, and especially, when there was no reasonable ground to apprehend danger to the defendants’ property, from her burning at the wharf, the wind at the time being in a direction to drive the fire from the wharf, and the building that was upon it, the defendants are liable, and in this form of action, for his acts.

The view which we have taken of the case, renders it unnecessary for us to determine the extent of the watchman’s discretionary power, and we therefore do not wish to be considered as expressing any opinion upon it, any farther than it is involved in the question which we do feel called upon to decide, in order to determine whether there was any error in the court’s granting the nonsuit. To hold, however, that his discretion was unlimited, as claimed by the plaintiffs; that he had power to do whatever he might think best, even to the destruction of the property of third persons, and without any reference to its comparative value to the property he was set to watch, is such a startling proposition that we can not for a moment sanction it.

If such a proposition could be sustained, then, indeed, the defendants might be liable in trespass for this injury, because to employ an agent, with such unlimited powers, might be tantamount to an express direction to the watchman, to cut the boat loose, given at or before the time when the act was done. The question, it is to be observed, is confined to the powers the law will imply, or infer to have been given to this agent, because there was no proof of any other powers having been given him, in point of fact. The books tell us that general agents must exercise a sound discretion, but precisely what this consists in, they do not inform us. It appears to us, that it is more correct to say, that the law will imply, in favor of agents, whether the agency is limited to one or more objects, the usual and appropriate means to accomplish the object, or objects of the agency. There must be some discretionary power in every agency, where the manner in which it is to be conducted is not specifically pointed out by precise and definite instructions, given before it commences, or has not become settled by known rules of law; and wherever there is any discretionary power, whether it is general or limited in its nature, it would seem that it ought to be exercised soundly. An unlimited discretion would give the watchman power to pull down, or blow up, with any means at his command, any buildings contiguous to a fire, which he might think, to some extent, endangered the property he was set to watch. If such powers were in fact given to a watchman, we do not see why the master should not be liable for its exercise. But a power so liable to be abused, and when abused, attended with such consequences, no prudent man would entrust to an agent of this description. And will the law, by implication, confer a power which no prudent man would entrust to his agent ? All powers are to be construed with reference to the subject-matter, which, in this instance, was to keep watch. As incident to the discharge of this duty, the watchman might have power to extinguish fires, and, in some instances, to remove combustible materials from the vicinity of the property watched, when it could be done without injury to others. But, at best, the power to remove the boat from the vicinity of the property watched, was only incidentafjand, on general principles, ought not to be so construed as IS empower the watchman to ruin his employers, by destroying her, without reference to the comparative value of the property watched, and the property destroyed.

The law is rather jealous of the exercise of unlimited powers of discretion, in subordinate agents and servants. In some cases, where the master is not at hand to be consulted, as is sometimes the case of the master of a vessel, in a foreign port, it will give very enlarged powers to an agent, but this is from the necessity of the case. Here it does not appear, we are aware, that the principal officers of the defendants’ company resided in Bridgeport; and that the company kept its office there; but the corporation is entirely within the state, and the principal terminus of the road is at Bridgeport, and it may fairly be presumed that there were officers there of a higher grade than that of night-watchman to one of their sheds; and if there was no one there, who could be consulted in such an emergency as this, we think, at least, it ought to be shown, before it is assumed, that it falls within the general powers of this subordinate agent, for a special purpose, to destroy a valuable vessel and cargo, in order to save property of very trifling importance, comparatively. The law will not presume that a principal, for any purpose, would authorize an agent to take and convert property to his own use, that did not belong to him; and if it will not confer this power on an agent, we see no more reason for its conferring on him a power to destroy, than to take property ; and we certainly should require some direct and controlling authority, before we should feel authorized to hold that where the principal’s property is to some extent threatened by a contiguous fire, though, in this case, it does not appear to have been even threatened to any considerable extent, that the agent has power to remove the property which threatened it out of the way, and by such removal, destroy it. No such authority has been produced, and we presume, therefore, none such can be. But however this may be, we are satisfied that the plaintiffs can not recover in this ease, even assuming the authority of the watchman, as the agent of the defendants, to cut the vessel loose, on the ground that it endangered the property he was employed to watch, to be unquestionable.

The principle that subjects a master for the tortious act of the servant, done in the performance of the master’s business, and within the scope of the general authority conferred, is the same as that which subjects him for the act of his servant, done by his express direction, given at the time. In both cases the maxim applies, qui facit per aliumfacit per se, and the master shall be responsible for the acts of his agent, to the same extent that he would be, if he personally committed the wrong. But the remedies, applicable to these several injuries, are entirely different. In the former case he is liable only in an action upon the case, founded upon the negligence of the servant in the performance of the master’s lawful business. Whereas, in the latter case, he is liable in an action of trespass, caused by the act of the servant. But his liability to be sued in trespass does not rest at all upon the relationship of master and servant which exists, but upon the fact that the act complained of was done by his express direction and command; and so, in reality, as well as in law, is his own act, though done through the instrumentality of another. A man shall not be made a trespasser against his will, though he may be made liable in an action on the case for the negligence of the servant, while engaged in the business of the master, however contrary to the master’s wishes such negligence may be ; and the reason is, because he, who is damaged, ought to be recompensed; and a man must so use his own, as to do no injury to another; and where one of two innocent persons must suffer, it is more reasonable that he should suffer whose act of employing an unskilful, or negligent servant, was the cause of the injury, than that the other, who has been wholly in the right, should be compelled to bear a loss, brought upon him through another’s want of care, in not attending to his own business, and in entrusting it to the carelessness of his servant.

The law never imputes malice, or a wanton and wilful trespass, to the transaction of any lawful business, contrary to the wishes of the party, any more than it will impute crime. These acts may be done through the instrumentality of agents; but it must be shown, as a fact, that they were ordered, directed or authorized to be done; the law will never infer this from the mere relation of master and servant. Undoubtedly, this relation may be a circumstance, proper to be shown in connection with other facts, tending to show that the act complained of, was done by the command of the master; but unless the act of trespass is the natural, or necessary, consequence of something which the master has ordered to be done, it will not alone be sufficient to subject the master. The old authorities on this subject were all i examined in the leading case of M’Manus v. Crickett, 1 East, 106, in which it was explicitly held that a master was not liable for the wilful act of his servant. The substance of these old authorities is very well condensed in the opinion of the court, as expressed by Lord Kenyon, in that case. “ It is a question,” says that learned judge, “ of very general concern, and has been often canvassed, but I hope at last it will be at rest. It is said in Bro. Abr., tit. trespass, pi. 435, 1 If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished.’ And in 2 Roll. Abr., 533, £ If my servant, without my notice, put my beasts into another’s land, my servant is the trespasser, and not I, because by the voluntary putting of the beasts there without my assent, he gains a special property for the time, and so for this purpose they are his beasts.’ And in Noy’s maxims, ch. 44, If I command my servant to distrain, and he ride on, the distress, he shall be punished, not I.’ And it is laid down by Holt, C. J., in Middleton v. Fowler, Salk., 282, as a general position, £ that no master is chargeable with the acts of his servant, but when he acts in the execution of the authority given him.’ Again, says Lord K., £ This doctrine does not militate with the cases in which a master has been holden for the mischief, arising from the negligence or unskilfulness of the servant, who had no purpose but the execution of the master’s orders ; but the form of their actions proves that this action of trespass can not be maintained.’ ”

The fact that the act of cutting the cables was a direct injury, which would render the watchman liable in trespass, had he been sued, makes no difference. This appears, negatively, from the fact, that no case can be found where an action of trespass has been sustained against a master, for the acts of a servant, where such acts were not expressly ordered or authorized to be done; or where they were not the natural or probable result' of something which the servant was ordered to do, which ordinary care in the execution of the master’s orders would not guard against; as was the case of Gregory v. Piper, 17 E. C. L., 454. The distinction between the trespass of the servant, and the liability of the master for negligence, arising from an act which might amount to a trespass in the servant, is very well illustrated by the case of Croft and another v. Alison, 6 E. C. L., 528. There, the action was case against the master, for the negligence of the servant in striking the plaintiff’s horses, and the plaintiff recovered. At the time when the horses were struck, the carriage of the plaintiff became entangled with the carriage of the defendant. The chief judge told the jury to find for the defendant, if the entangling was the result of the moving of the plaintiff’s horses, which were left without a driver, and the whipping was for the purpose of extricating himself from that situation ; but to find for the plaintiffs, in case the entangling arose from the fault of the defendant’s coachman. The court in sustaining this charge, say, if a servant, driving a carriage, in order to effect some purpose of his own, wantonly strike the horse of another person, and produced the accident, the master will not be liable. But if, in order to perform his master’s orders, he strikes, but injudiciously, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant’s employment.

The English cases on this subject are collected by Smith on master and servant, Law Library Edition, p. 172 and 193, inclusive, where the views which we have here expressed will be found to be fully sustained. Indeed, so long ago as the case of Morley v. Gainsford, 2 H. Bl, 442, it was said by the court, that it was difficult to put a case where the master would be considered as a trespasser for an act of his servant, which was not done at his command.

And we find nothing in our own reports, or in the reports of any of the states, which at all militates against the English cases. Wright v. Wilcox, 19 W., 343. Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480. Wilson v. Peverly, 2 N. H., 548. Vanderbilt v. Richmond Turnpike Co., 2 Comstock, 479. Church v. Mansfield, 20 Conn. R., 284.

As, therefore, there was no proof that the defendants ordered or directed- their watchman to cut the cables of the plaintiff’s vessel; and as this act was not a necessary, or natural, or probable result of anything that he was ordered to do, even in the emergency, as he considered it, when he did cut it, it appears to us that the defendants can not be made liable in trespass for this act; and the nonsuit was consequently correctly ordered. There was a question of evidence made on the trial, whether the declarations of Hawley, the defendants’ superintendent, were admissible, under the circumstances; but the result to which we have come, makes it unnecessary to consider that question, and we do not therefore intend to decide it. There is no error in the judgment complained of.

In this opinion, the other judges, WAITE and ~H~r4 concurred.

Judgment affirmed.