text:
    Marlborough vs. Sisson and others.
    In an action on the case, by the town of M, for illegally transporting a pauper into said town, the defendants offered, in evidence, certain bills in the hand-writing of one of the selectmen of said town, that were found deposited among important papers and files of said town, and purporting, on their face, to be for small supplies of food and fuel, sold at various times, by said selectman, to the town. Held, that such bills were admissible, as conducing to prove, not only that they were received by the town, but also, from the character and quantities of the supplies, that they were furnished, from time to time, by the town, for the support of some of its paupers; and as the name of the person, for whom the articles were furnished, was not mentioned in the bills, that they were also admissible for the purpose of rebutting evidence offered by the plaintiff, by which he claimed to have proved that, during the time to which such bills related, the town was in the practice of entering the names of all paupers for whom it furnished support, in its books or papers.
    In such action, the plaintiff offered in evidence, the lists of the town of W, in the stsfte of Vermont, for the purpose of showing that said pauper had been charged with the taxes of that town, (during the two years that he resided there,) in connection with evidence that, after those lists were made, they were, in conformity with the laws of said state, duly returned, that taxes were granted and assessed thereon, by the town, during those years, and warrants for their collection duly issued to the collector, that said pauper, upon a demand of payment, made by the collector, paid said taxes to him, without dissent, and that the collector paid the taxes, so collected, into the treasury of the town, and that the town had ever since retained the same, without objection, or demand of repayment, by said pauper; but said lists did not contain a particular enumeration of the polls and taxable estate of the inhabitants of said town, as was required by the laws of said state, which informality was known to said pauper. Held, that such lists were admissible, for the purpose of showing that said pauper had been charged with taxes of said town, during the two years that he resided there, and, therefore, acquired a settlement therein, under thp laws of said state.
    A new trial having been granted in this cause, (ante p. 44,) it again came on for trial, before the jury, at the term of the superior court, holden in September, 1854. The main question made upon the trial, related to the settlement of Samuel Ingraham. It was admitted and proved that said Ingraham’s original settlement was in Marlborough; that he was born there in the year 1774, and resided there until he was twenty-one years of age; that in the year 1797, he removed with his family to the town of Weybridge, in the state of Vermont, and resided there for the period of three years, then next following; that during that period there were in force in said state, the following regulations relating to the assessment and collection of taxes in Vermont:
    “ Sec. 1. It is hereby enacted by the general assembly of the state of Vermont, that every person who shall purchase a freehold estate of the value of one hundred dollars, and shall have bona fide paid therefor, and shall actually occupy and improve the same for the term of one whole year, or shall actually and bona fide, have rented and occupied a tenement of the yearly value of twenty dollars and upwards, for the term of two whole years, and actually paid such rent; and every person who shall inhabit in any town or place within this state, and shall, for himself, or on his own account, have executed any public office or charge in such town or place during one whole year, or shall have been charged with and paid his or her share of the public rates or taxes of such town or place, for the space of two years; and every person who shall have been bound an apprentice or servant by.indenture, or by any deed, contract or writing not indented, and shall, in consequence of such binding, have served a term not less than three years, next preceding the time of such apprentice’s arriving at the age of twenty-one years, if a male, or at the age of eighteen years if a female, in such town or place, shall be deemed and adjudged to have obtained a legal settlement in such town or place. And every other healthy, able-bodied person coming and residing within this state, and being of peaceable behavior, shall be deemed and adjudged to be legally settled in the town or place in which he or she shall have first resided, for the space of one whole year.” [Vermont Stat., vol. i., pp. 383, 384. Passed March 31, 1797.]
    “ Sec. 14. That the inhabitants of each town in this state, qualified to vote as aforesaid, at any meeting duly and legally warned and holden in such town, may grant and vote such sum or sums of money as they shall judge necessary, for the maintenance of the poor, for laying out and repairing the highways, for building and repairing bridges, and for all other incidental charges, within said town, to be assessed on the polls and rateable estates in the same town, as the law directs.” [Vermont Stat., vol. i., p. 414. Passed Feb. 28, 1797.]

      “ Sec. 1. That every inhabitant of this state except such as are, or shall by law be exempted, shall contribute to the public charges and expenses thereof, and shall be-compelled thereto, if need be, by distress.
    “ Sec. 11. That all taxes and rates which shall be granted by the general assembly, and all other rates and taxes of counties, towns, societies or other communities, which are, or shall by law be enabled to grant taxes, shall be assessed by the same rule, that is to say, in proportion to the general list of the polls and rateable estates from time to time given in, and made according to law, except where some other rule of granting and levying rates, taxes or assessments, is or shall by law be provided.” [Vermont Stat., vol. i., p. 433. Passed Oct. 17, 1797.]
    “ Sec. 3. It shall be the duty of the inhabitants of each town in this state, respectively, at their annual meeting, duly warned and holden as aforesaid by a majority of votes, to choose a moderator to govern said meeting, (and the town clerk, or one of the selectmen, shall preside in such meeting until the moderator be chosen.) They then shall proceed by a majority of votes to choose a town clerk or register, (who shall, if present, immediately take the oath of office, but if absent, a clerk, pro tern., shall be appointed by nomination and duly sworn,) three or more persons, not exceeding five, to be selectmen, to superintend the prudential affairs of the-town, who are hereby made and declared to be overseers of the poor of such town, unless the town shall appoint other overseers in their stead, which they are hereafter empowered to do, a town treasurer, three or more listers, not exceeding five, one or two constables, collectors of town rates or taxes, one or more grand jurors, surveyors of highways, fence-viewers, one pound-keeper to each district in said town, sealers of leather and sealers of weights and measures,- all of which officers shall be freeholders and inhabitants of said town, and every other officer which the laws of this state may, or shall direct.” [Vermont. Stat., vol. i., pp. 407, 308. Passed Feb. 28, 1796.]
    “ Sec. 13. That the listers of the several towns shall return a general list, in the form as is hereinbefore prescribed, to the general assembly, on or before the fifteenth day of October,' annually, with a certificate from a justice of the peace or the town clerk of the same town, respectively certifying that they were duly sworn to a faithful discharge of their office and duty, previous to the 5th day of the preceding May. And the listers of every town who shall neglect to make return of such general list to the general assembly, as aforesaid, shall forfeit and pay to the treasury of this state the sum of seventeen dollars.
    “ Sec. 16. That the said listers shall, some time in the month of October, annually make out and deliver, a particular and fair list of the polls, estate, and property of the several inhabitants of their respective towns, certified under their hands to the town clerks of the several towns, taking their receipts' for the same; on penalty, severally, of forfeiting' and paying the sum of ten dollars to the treasury of such town.” [Vermont Stat., vol. ii., p. 168. Passed March 20, 1797.]
    “ Sec. 24. That the selectmen of the several towns in this state be, and are hereby authorized, empowered and required, reasonably to assess the polls and rateable estates within such towns, according to the rules and directions of law, their just and equal portion of all state, county, town and other taxes, which they may, by any law of this state, be authorized, empowered or required to assess.” [Vermont Stat., vol. i., p. 418. Passed Feb. 28, 1797.].
    The plaintiff claimed that, lor two years of his residence in said Weybridge, said Ingraham was charged with and paid his share of the public rates and taxes of said town and place, and so acquired a settlement in said town of Weybridge, and lost his original settlement in said town of Marlborough. And in support of said claim, the plaintiff offered in evidence the sworn and duly authenticated copies of the general list of said town of Weybridge, in the years 1798 and 1799, which were as follows:
    “ Samuel Smith, . ... . . . §162.50
    David Goodale, ..... 164.25
    Samuel Ingraham, ..... 59.25
    and many other inhabitants of the town of Weybridge.
    “ Fourth grand list for the town of Weybridge for the year 1799.
    “James Heaton, Silas Weight,
    Amos Marsh,
    ZlLLAR StICIINEY,
    Simeon Dickinson,
    - Listers.”

    “ William Brewster, . . . . §264.50
    Clark Stone,......163.25
    Samuel Ingraham, ..... 50.00
    and many other inhabitants of the town of Weybridge.
    Grand list for the town of Weybridge, for the year 1798. To §8,364.66 cents.
    “ Amos Marsh,
    Simeon Dickinson,
    ZlLLAR StICKNEY,
    Silas Wright,
    James Heaton,
    > Listers.”

    Said lists were accompanied with an offer to prove, that the same were the general lists of said town; were made in conformity with the general use of the town of Weybridge, at that time; that the listers therein named, were duly chosen by the inhabitants of said town, and made return of said lists according to the law; that taxes were duly granted and assessed on said lists; that collectors were appointed, and warrants duly issued for the collection of the taxes assessed on said lists; that the collector of taxes in the said town of Weybridge, called on said Ingraham, in the years 1798 and 1799, and made demands of the taxes imposed on him, upon the aforesaid lists; that said Ingraham paid said taxes to said collector, without protest or dissent; that said collector paid the taxes so collected into the treasury of said Weybridge; that said Weybridge has ever since retained the same, without objection or demand of repayment by said Ingraham. The defendants objected to the introduction of said lists in evidence, on the ground that the same did not contain an enumeration of the polls and taxable estate of the inhabitants of said town. The court sustained said objection and rejected said lists.
    It was further proved that said Ingraham returned to Marlborough in the year 1800; that from 1805 to 1812, while residing in various places, he received occasional relief and support from said town, and also from 1820 to 1850, while, residing in Hebron, Marlborough, Colchester and other places, he received from said Marlborough, like occasional relief and support, particularly at such times as he or any member of his family were sick. From 1812 to 1820, during which time he resided constantly in the town of Hebron, the plaintiff claimed, and offered evidence to prove, that he supported himself and family, without their becoming chargeable to said Hebron or Marlborough, and that during that time he neither neglected nor refused to pay any legal taxes imposed on him, and therefore the plaintiff claimed that if he had not gained a settlement in Weybridge, he had, by such residence in Hebron, gained a settlement in that town, and had thereby lost his original' settlement in Marlborough.

      This was denied by the defendants, who claimed and offered evidence to prove, that from 1812 to 1820, Ingraham was destitute of property, and unable to support himself and his family, and several times, received aid and support from said town of Marlborough. And in connection with other evidence tending to show his necessitous circumstances, and that said town of Marlborough both previously and subsequently to said times, had been in the habit of furnishing him with articles for his family, similar to those charged in certain bills of Eoger Foot, (which were found among the files and papers of said town of Marlborough, and were accompanied with proof that, at the times, when said articles were charged by said Foot and said bills were rendered to the town, said Foot was a selectman of said Marlborough,) the defendants offered said bills in evidence, for the purpose of showing that some of the articles mentioned therein, were furnished by said Foot, selectman as aforesaid, for the use of said Ingraham or his family. To the introduction of said bills in evidence, the plaintiff objected, but the court overruled said objection, and admitted said bills, not however for the purpose of showing that said articles or any of them were furnished to said Ingraham’s family, unless the jury should be of that opinion, from other evidence in the case, but to rebut a claim of the plaintiff, that during said period to which the said bills had relation, the town of Marlborough was in the practice of entering the names of all paupers, for whom it furnished support, on some of the books or papers of said town, and that there was no entry of the name of said Ingraham as a pauper for whom any support was rendered, during said time.
    But the defendants offered no evidence other than the bills themselves, that said documents were in the hand-writing of said Foot, nor that the articles named therein were furnished by said Foot, nor that any of said articles were furnished tosaid Ingraham, nor that said bills had been paid by said Marlborough.

      The jury, having rendered a verdict in favor of the defendants, the plaintiff thereupon moved for a new trial, on the ground that the court erred, in rejecting the testimony offered by them, and in admitting the testimony offered by the defendants.

      T. C. Perkins and R. D. Hubbard for the plaintiff.
    1. The bills of Foot, most favorably considered, were nothing but the entry of a third person not under oath, and were not admissible in evidence. The original entries were on the books of Foot, and were not proved to have been in his hand-writing. They were never paid by the town, nor in any way recognized as a just bill against the town.
    2. Even if these writings are evidence of the truth of the contents, they did not conduce to the proof of the proposition to be established, because there is nothing to show that the supplies in question were furnished to a pauper. If furnished to a pauper, there is no evidence that it was done by authority. The proof is the other way.
    3. The real question, as to the admissibility of the lists of the town of Weybridge, is, were these papers admissible, in connection with the other evidence offered, as conducing to show that Ingraham was in fact charged with taxes ? The only objection to this is, that items of property were not enumerated. The statute of Vermont merely requires that he shall have been charged with, and paid his share of taxes. The payment of the taxes in question is very different from a mere volunteer payment to a person claiming to be collector, when there is no vote of the town to lay taxes. The spirit of the whole section is in our favor. The object of the statute is to attract settlers by privileges offered, and to afford facilities of gaining settlement. The object is not to be unfavorably restrained by technicalities. The people to whom this law is of most importance, would not be expected to understand, or investigate technicalities..
    The principle of construction, claimed by the defendants, if applied to other clauses of the same section, would lead to hardship and absurdity. The authorities to be cited by the defendants, are not necessarily opposed to us—they only show what is technically irregular, if objected to at the time.

      Bulkeley and W. D. Shipman for the defendants.
    1. In order to prove that the pauper in question gained a settlement in Vermont by the payment of taxes under the statutes of 1797, the plaintiff must show that such taxes were legally assessed. Starksboro v. Hinesborough, 13 Verm. R., 215. Adam v. Litchfield, 10 Conn. R., 127. Middletown v. Berlin, 18 Conn. R., 189.
    2. It is essential to the legality of such assessment, that the kind of property embraced in the valuation of the assessors or listers should be specified in the list, and in this, as in other particulars, the statute must be strictly complied with. Statutes of Vermont, vol. i., 418. Statutes of Vermont, vol. ii., 160-168. Howard v. Shumway, 13 Verm. R., 358. Thames Man'g Co. v. Lathrop, 7 Conn. R., 550.
    3. The paper, offered by the plaintiff to prove such assessment, was inadmissible for that purpose, because it was not made in compliance with the statutes of Vermont, and especially as it contained no specification whatever of the property, or estate of the inhabitants.
    4. The bills, offered in evidence by the defendants, were properly received for the purpose stated in the motion.
   Storrs, J.

1. We are of opinion that the bills of Foot were admissible for the purpose for which they were received on the trial. Those bills, having been found deposited among the important papers and files of the town of Marlborough, and purporting on their face to be for small supplies of food and fuel sold at various times by Foot to the town, conduced to prove, not only that they were received by the town, although they were unaccompanied with any other evidence that they were paid for by the town or furnished by Foot, or that they were in his handwriting; but also, from the character and quantities of the articles, that they were furnished from time to time by the town for the support of some of its paupers. And as the name of the person for whom the articles were furnished was not mentioned in the bills, they were also admissible for the purpose of rebutting the- evidence of the plaintiff’, by which it was claimed to have been proved, that during the time to which said bills related, the town was in the practice of entering the names of all paupers for whom it furnished support on its books or papers. This evidence having been admitted only for these purposes, a new trial should not be granted on this ground.

2. The remaining question respects the admissibility of the lists of the town of Weybridge. It is the prevailing opinion of the court that those lists were, in connexion with the facts offered to be proved by the plaintiff,' admissible for the purpose of shewing that Ingraham had been charged with the taxes of that town during the two years while he resided there, and that he therefore acquired a settlement therein. Those facts were, that after those lists were made, they were, in conformity with the laws of Vermont, duly returned; that taxes were granted and assessed thereon by the town during those years, and warrants for their collection duly issued to the collectors of those taxes; that Ingraham, upon a demand of payment thereof made by the collector, paid said taxes to him without protest or dissent, that the collector paid the taxes so collected into the treasury of the town, and that the town has ever since returned the same without objection or demand of repayment by Ingraham. The defendants objected to the introduction of these lists, on the ground that they did not contain a particular enumeration of the polls and taxable estate of the inhabitants of the town, as was required by the laws of Vermont, and that therefore Ingraham could not be deemed to have been charged with the taxes imposed on them.

We have no doubt that the want of such a particular enumeration was a defect in these lists which would have justified Ingraham in refusing to pay those taxes, or entitled him to recover back the amount of them, if they had been collected of him against his consent. But it does not hence follow that a payment of them by him voluntarily, and with a knowledgé of such defect, would not amount to a waiver of the defect, which would preclude him afterwards from disputing the validity of the lists. A list may be so defective in substance, either for want of jurisdiction in the listers, or on account of some substantial departure, in the mode of making it, from that prescribed by law, that it would be absolutely void, and consequently furnish no foundation for a tax laid upon it. In such case the list would be a nullity, and the defect therefore could not be waived. Or, on the other hand, there may be, in the form of a list, such an unsubstantial or unimportant deviation from the mode prescribed, that the defect would be deemed immaterial, in which case the defect would not invalidate the list, nor would it be voidable. It would produce intolerable mischief and inconvenience, if every merely literal or trifling mistake in the form of a list should be held to render it absolutely void to all intents and purposes, and the rights of those affected by the proceeding requires no such rigid and narrow rule. There is, also, ,in our opinion, a class of cases falling within neither of these, descriptions, where the defect in the list does not render it .absolutely void, and yet is not of an immaterial character, and where the person against whom it is made out may, at his option, avoid the tax laid on it, or waive the defect: and in the case of such a waiver he can not afterwards take advantage of the defect. It is not easy, nor do we deem it, in this case, necessary, to lay down, in terms, a rule by which it can, in all cases, be determined whether the defect is of such a kind that it renders the list void or only voidable. In the lists now in question, we are of opinion that the defect is of the latter description. The requirement, that the lists should contain a particular enumeration of polls and rateable estate, was introduced for the sole benefit of the owner of such estate. It was introduced as a check against the exercise of arbitrary power by the listers, and to enable the owner to take the necessary steps for a correction of the list, if it is erroneous. He only is interested in the fulfillment of that requirement, and if he is satisfied, there is no good reason why others should interpose to object to this list, for a want of this formality. As to him the maxim, Quilibek potest renunciare juri pro se introducto, would seem clearly to apply. To treat a list defective only in this particular as absolutely void, and therefore a nullity to all intents, when the owner of the property embraced in it is willing to forego this formal objection to it and to consider it as valid, is not required by any principle of policy or justice, nor, as we think, by any rule of law. The plaintiff offered to prove, in connexion with these lists, that Ingraham having knowledge of this informality in them, voluntarily paid to the collector the taxes assessed upon them, that the collector paid them into the treasury of the town of Weybridge, and that that town has ever since retained them without any claim or objection on the part of Ingraham. On these facts we are of opinion that he should be held to have been charged with the payment of those taxes, that they should be deemed to have been legally assessed, and that he thereby became a settled inhabitant of that town. Our decision in this case at the last term is not applicable to the question now before us. The only point then decided, was that, as all the requisites necessary to a legal assessment of taxes exist of record, they can be proved originally only by the records of the town as the best evidence, and therefore that the parol evidence which had been received in the first instance for the purpose of proving the assessment, was inadmissible. Nor do any of the other authorities cited by the defendants, conflict with the view which we have taken of this case. Those cases were decided on the ground that the listers had exceeded then jurisdiction, or that there was such an irregularity or defect in their proceedings that they were absolutely void, or that there was no legal payment of the tax.

A new trial, therefore, is advised.

In this opinion the other judges concurred, except Hinman, J., who was disqualified.

A new trial granted.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Richards vs. Eno.
    In an action of trespass, quare clausum fregit, brought to the county court, demanding seventy dollars damages, and to which the defendant pleaded the general issue, with notice that he would prove that the locus in quo was his soil and freehold, the plaintiff obtained a verdict, and the defendant thereupon appealed the cause to the superior court, but no record was made by the county court, that the title to land was in question. On motion made in the superior court, to erase the cause from the docket; held that such plea and notice were not sufficient to show that the title to land was in question on the trial.
    This was an action of trespass, quare clausum fregit, brought to the county court of Hartford county, demanding seventy dollars damages, with costs of suit.
    The defendant pleaded the general issue, with notice that he would prove on the trial that the locus in quo, at the time of the grievances complained of in the plaintiff’s declaration, was his soil and freehold. The cause was tried before the jury, who returned a verdict in favor of the plaintiff. The defendant then appealed the cause to the superior court, no record having been made in the county court, that the title to land was in question. The plaintiff moved in the superior court, that the cause be erased from the docket, on the ground that it did not appear that said superior court had jurisdiction of said cause.
    The motion was sustained, and the cause stricken from the docket of the superior court, and remanded to the county court.
    The defendant thereupon filed a motion in error, and the cause was brought before this court.

      Fellowes and Chapman Sf Drake, for the plaintiff in error.
    By the Rev. Stat., p. 67, § 69, where the title to lands is drawn in question and determined, an appeal is allowed. If the damages are less than $70, if the title is in question, the court are to make a record. But the statute does not authorize a record in this case, where the damages demanded are exactly $70.
    1. The general issue and notice show, that the title was drawn in question and determined. Mansfield v. Church, 21 Conn. R., 73. Radley v. Brice, 6 Wend., 539. Rider v. Hathaway, 2 Met., 96.
    2. The allowance of the appeal, under these pleadings and notice, shows by implication, that the title was drawn in question and determined; otherwise, the county court would not have allowed the appeal. Curtiss v. Beardsley, 15 Conn. R., 518.
    3. As the statute, does not authorize the county court to make a record, in a case like this, if the order of the superior court was right, the result will be, that a party can never appeal, in such cases, although the decision, in fact, turns on title alone, unless he has pleaded a special plea of tille. This would be to impair the effect of the statute, allowing title to be given in evidence under the general issue with notice.

      T. C. Perkins and Nash, for the defendant in error.
    1. It was the design of the statute to confine cases of minor importance to inferior courts. Where the title of land was determined below, so that the pleadings would make the decision conclusive, it is within the general scope of the statute to allow an appeal. But not so that upon coming into the higher court, the question of title could be abandoned, and the verdict made to turn upon a slight trespass.
    2. In a case like the present, demanding exactly $70 damages, no appeal is allowable, unless the title was “ determined.” Rev. Stat., § 69. This means that the record should show it was so decided, as to be conclusive.
    3. A notice, is not such part of the pleading, that averments therein are passed upon by the jury.
   Hinman, J.

The damages demanded by the plaintiff in this action, being seventy dollars only, the cause was not appealable, under that provision of the statute which requires “ the debt, damage, or matter in dispute,” to exceed that sum to make it so. Stat., ed. 1854, p. 71, § 69. 14 Conn. R., 238. There was no plea of title, and we do not think the general issue, with notice that the defendant would prove title in himself in the locus in quo, though for some purposes tantamount to such a plea, sufficient to show that the title was, in fact, drawn in question on the trial. It merely shows that it might have been, not that it was; and, as there was no record made by the county court that it was in question on the trial, the cause was not appealable on any ground; and the superior court, not having jurisdiction of it, was correct in erasing it from the docket. It is claimed that the county court had no authority to make a record that the title to land was in question, the demand in the writ being exactly seventy dollars, and the statute only providingfor such a record where the demand is less than that sum. We think this is rather sticking in the bark. It is true, reading the statute literally, it provides for an appeal in all actions demanding more than seventy dollars, and also for an appeal in all actions of trespass, quare clausum fregit, demanding less than seventy dollars, provided a record is made that the title to land was in question in such action, thus leaving a class of actions, where the demand is exactly seventy dollars, unprovided for. But it is quite obvious that this was not the intention of the legislature, which was to provide for an appeal, in all cases where the title to land is in'question on the trial. But statutes are seldom drawn up with technical accuracy and precision ; and hence, the rule that, in construing remedial statutes, we are to look at the reason, spirit, and object of them, in order to get at the intention. We think it was the duty of the county court in this case, if it had been called upon to do so, and the facts would have justified it, to have made a record that the .title to land was in question; and on such a record only could the case be appealed.

The cases cited by the defendant, relating to the taxation of costs, are not applicable to this question. We think there is no error in the judgment complained of.

In this opinion the other judges concurred, except Ells-worth, J., who was disqualified.

Cause not appealable, and remanded.


author: Waite, C. J.

text:
    The Town of Granby vs. Thurston and others.
    In 1786, the legislature having incorporated the town of G., previously a part of the town of S, and having provided in the act of incorporation, that “ the said town of G shall ever hereafter keep and maintain a good and convenient bridge across Farmington river, between Pickerel cove and Windsor line, if ever hereafter ordered by this assembly”—in 1799, passed a resolution by which it was resolved, “ That the inhabitants of the town of G do build and hereafter maintain a good and sufficient bridge, at their expense, across said river,” referring to the place described in the former resolution, and where it was the dividing line between said towns. Held, that such resolutions were not invalid, either as being unconstitutional, or on the ground that the general assembly had no right to compel the town of G to support a bridge situated in part, in the town of S ; nor because said resolutions were passed without notice to said town of G; nor because the towns interested were not legally made parties; nor because, at the time of passing said resolutions, there was a public statute law in force providing that, where a river is the dividing line between two towns, the bridges across the same, should be supported equally by the two towns.
    This was a petition to the county court, for the county of Hartford, brought by sundry inhabitants of the towns of Sims-bury and Granby, representing that a certain bridge, across Farmington river, had fallen down and become impassable ; that the river, at the point where it was located, was the dividing line between those two towns; and that the town of Granby was, by law, liable to maintain the bridge, but had neglected so to do: praying that an order might be made, pursuant to the provisions of the statute, requiring the defendants to rebuild the bridge.
    Upon the hearing, before the county court, the petitioners, in order to show the defendants’ liability, offered in evidence a petition to the General Assembly, and a resolution passed therein in 1786, and a subsequent resolution, passed in 1799. "By the former, the town of Granby, previously a part of the town of Simsbury, was incorporated into a new town, and among other provisions, in the act of incorporation, is the following: “ The said town of Granby shall ever hereafter keep and maintain a good and convenient bridge across said river, between Pickerel cove and Windsor line, if ever hereafter ordered by this assembly.”
    By the latter resolution it was resolved “that the inhabitants of the town of Granby do build, and hereafter maintain a good and sufficient bridge, at their expense, across said river,” referring to the place described in the former resolution. The defendants thereupon built the bridge referred to in the petition, and maintained the same until it was carried away by a recent flood.
    To the admission of these documents in evidence, the defendants objected, upon the ground that the resolutions were unconstitutional and void; that the General Assembly had no-right to compel the defendants to support a bridge situated in part in the town of Simsbury ;'that, at the time of passing these resolutions, there was a public statute law of this state, providing that when a river is the dividing line between two towns, the bridges across the same, should be supported equally by the two towns, and that, such public law could not be repealed by a mere resolution. .' .
    The county court admitted the revidence, and made the required order. The defendants filed a bill of exceptions, and brought the case, by motion in error, to the superior court, where the judgment of the county court was affirmed. The defendants thereupon brought the case upon motion in error, to this court.

      T. G. Perkins and Holcomb.

      1. The testimony was inadmissible because the resolutions of the legislature in question, were unconstitutional. Stat. 1786, p. 1.

      2. The resolutions were passed .without notice to the town of Granby. It can make no difference in principle, that the power to order the bridge in question to be built, was reserved when the town of Granby was incorporated. The act might have been passed as well at any other time.
    3. If these are mere resolutions, they can not’ repeal, pro tanto, the public act in force at the time they were enacted, which imposed the liability on Simsbury. A public act can only be repealed by a public act. If they were public acts, they were repealed by.the revision of the statute laws of this state, made in 1849. Rev. Stat., p. 416.

      Phelps and R. D. Hubbard.

    1. The legislature had power to divide towns, and therefore had jurisdiction of the matter in controversy.

      2. The legislature, in dividing towns, had ■ the right to apportion the corporate property and burthens at its pleasure,
      Hartford Bridge Co. v. East Hartford, 16 Conn. R., 172. And having sole jurisdiction of the apportionment, any mere errors of judgment in the equities of the apportionment, can not be revised, and should not be if they could be.
    3. These acts are not void, because passed without notice to Granby. Granby, as subsequently incorporated, was a part of the old town of Simsbury, and as such, constituted a part of the petitioners, and so needed not to be notified. The legislature might, upon resolution, divide a town of its own motion, if the public good required it. The benefits and burthens apportioned, are the counterparts of each other, and a burden is supposed to be imposed in all such cases, in compensation for a benefit conferred.
    4. These resolves were not void, as being repugnant to a pre-existing public statute. The statute (Rev. Stat., tit. 24, § 2) does not impose a joint liability where “it shall be otherwise agreed by said towns.” Granby, by accepting its charter, assented and agreed to the condition of supporting the bridge in question. The legislature may, by a private statute, except from the operation of a public act. 8 Mass. R., 332.
   Waite, C. J.

The resolutions, in the present case, were passed long before the adoption of our present constitution. .Their validity, therefore, does not depend upon their being in conformity with the provisions of that instrument.

But were it otherwise, and had they been subsequently passed, the result, in our opinion, would be the same. The legislature of this state have immemorially exercised the power of dividing towns at their pleasure, and upon such division, apportioning the common property and common burdens, in such manner as to them shall seem reasonable and equitable.

This principle has been repeatedly recognized by this court. The Willimantic School Society v. The First School Society in Windham, 14 Conn. R., 469. The Hartford Bridge Com pany v. East Hartford, 16 Conn. R., 172. Indeed, the power of the legislature to create new towns, is virtually admitted in the constitution itself, in the section, which allows but one representative to a new town thereafter incorporated. Constitution, art. iii., § 3.

What particular reason may have operated upon the legislature, in imposing upon the town of Granby, the whole burden of making and maintaining the bridge in question, does not appear, nor is it necessary that it should. It is enough that the legislature have made an apportionment of the property and burdens of the old town, as they may have thought proper.

It may have been so made, because it was deemed necessary to equalize the burden of supporting the requisite number of bridges within the limits of the old town, or for some other sufficient reason.

It is said that the resolutions are not binding, because the towns interested were not legally made parties. There might be weight in this objection, were the legislature, in passing them, acting in a judicial capacity. But we know of no law, rendering it necessary to the validity of an act of the legislature, respecting public corporations, such as towns, cities, and school societies, that the corporations interested, should formally be made parties. It may be very proper that they should have notice and an opportunity to be heard, before any action of the legislature is had affecting their rights; and such notice at the present time is generally, in some form, given.

Again, it is said that, as there was a general statute, requiring that all bridges over a river, constituting the dividing line between two towns, should be made and supported at the joint expense of the two towns, it was not competent for the legislature to change that statute by a simple resolution.

But as before remarked, these resolutions were passed long before the adoption of our constitution, and of course, are not affected by any provisions in that instrument relating to the form of legislative enactments.

But in the present case, no change in the general law was made or contemplated, beyond its operation in reference to a single bridge. In a resolution incorporating a turnpike company, it is often provided that the company shall make and support certain bridges on the. line of their road, which had previously been supported by the towns in which they were situated. Yet no one, to our knowledge, ever claimed that such provision was void because made by a resolution, in opposition to a general statute.

We are therefore of opinion that there is nothing erroneous in the judgment complained of.

In this opinion the other judges concurred, except Hinman, J., who was disqualified.

Judgment affirmed.


text:
    Whittlesey vs. The Hartford, Providence and Fishkill Railroad Company and others.
    Injunctions will be granted at the discretion of the court, and only for great and irreparable injuries, and where adequate relief can not be had at law.
    The plaintiff, and his nine brothers and sisters, were the owners in fee, in equal proportions, of two pieces of land, subject to the life-estate of their father. In September, 1848, the plaintiff mortgaged his interest therein to D, one of his said brothers, and in December, 1852, D executed to him a release of the same. In April, 1849, the New York and Hartford Railroad Company located a portion of their road across said pieces of land, and said location, having been submitted to the commissioners and notice given to all-' the owners, including the plaintiff, was approved in the same month. Said company afterwards made application to the superior court, for the appointment of appraisers of the damage done by taking said land, and gave notice thereof to all persons interested therein, except the plaintiff, who was omitted, in consequence of a mistake as to his interest in the same. In May, 1849, three freeholders, who were appointed for that purpose, assessed the damages of the respondents in said application, as follows: to D, $164.65; R, $15 ; S, $10; and to the other seven, five cents each, being $190 in the whole. Said amount was intended, by said appraisers, to be the full value of all the damages, occasioned by taking said land, and the same was deposited by the company according to the requirements of their charter, with the treasurer of the county, and was afterwards paid over to the parties to whom it was assessed, except the assessment of five cents, which remained on deposit for the use of the parties to whom it was assessed. For the purpose of making an equitable distribution of the whole amount, so assessed, D afterwards voluntarily shared with his brothers and sisters, including the plaintiff, the amount of his.assessment, in such manner as to make all their shares equal, deducting nothing from the plaintiff’s share on account of said mortgage. In November, 1851, the whole of said two pieces of land, except what had been so taken by said company, and the mortgaged interest of the plaintiff, became vested in the plaintiff and his two brothers, W and E. In July, 1849, in pursuance of a resolve of the general assembly, the New York and Hartford Railroad Company was merged in the Hartford, Providence and Fishkiil Railroad Company. The plaintiff, having remained silent for more than two years from the time said land was taken, and until after said road was completed, although he knew of the progress of its construction, brought a bill in equity against said Hartford, Providence and Fishkiil Railroad Company, and W and E, praying for an injunction against the use of said land by said company. The committee to whom the cause was referred, found that the damages to the plaintiff’s interest in said land, including the use of the same, estimated according to its value at the time of taking it, would be $40 ; estimated according to its present value, $50; and that the injunction, if granted, would produce great injury to the company, and inconvenience to the public. Held 1. That the court exercised a sound discretion in refusing an injunction for an injury so trivial, when, if granted, it would be productive of so much damage to the principal defendant. 2. That the reception, by the plaintiff, of the company’s money, and his subsequent silence, in relation to any claim on his part, was a waiver of any irregularity in the appraisal of said land. 3. That the franchise of the New York and Hartford Railroad Company had been merged in the Hartford, Providence and Fish-kill Railroad Company.
    Where such bill alleged that the plaintiff and his brothers and sisters, as the heirs at law of their mother, were the owners of the land in question, and that the company had never made him any compensation for his interest therein; and it was alleged, in the answer of the company, that all the damages, arising from taking the same, with the exception of thirty-five cents, were paid over to the heirs of said R, of which the plaintiff was one; and the committee, to whom the cause was referred, found that D voluntarily divided the sum, awarded to him, among his co-heirs, for the purpose of making an equitable distribution; it was held, that such finding was consistent with said allegations.

      This was a bill in chancery, setting forth that the plaintiff was the owner of three undivided tenth parts of two certain pieces of land, situated in the town of New Britain, over which the railroad company had constructed their road which they were using, without ever having caused the plaintiff’s interest therein to be appraised, or any damages paid to him, for the land taken by the company, and praying for an injunction against the further use of the land, by the company for railroad purposes. William Whittlesey and Eliphalet Whittlesey, the other co-tenants, were made defendants.
    The bill, and the several answers of the defendants, were referred to a committee, whose report embraced the following facts.
    The plaintiff and his nine brothers and sisters, as children and heirs at law of their mother, Eebecca Whittlesey, deceased, were owners in fee, in equal undivided proportions, of the two pieces of land described in the bill, subject to the life estate of their father, David Whittlesey, therein, as tenant by the curtesy; and, on the 20th day of September, 1848, the plaintiff mortgaged all his interest in the two pieces of land, of the value of $1,000, to his brother David W. Whittlesey, to secure the payment of a promissory note for the sum of $300; and the said David afterwards, on the 31st day of December, 1852, gave back to, the plaintiff a release deed of the property, so mortgaged.
    By virtue of several deeds, executed between September 20, and November 1,1851, the whole of said two pieces of land, except such part as had been taken by the railroad company, as hereinafter stated, and the interest of the plaintiff mortgaged as aforesaid, became vested in the plaintiff, and his two brothers, William and Eliphalet, defendants in the suit ; the plaintiff owning three undivided tenth parts.
    On the first of April, 1849, the New York and Hartford Eailroad Company, in pursuance of their charter, laid out, and located, a portion of their road, across the said two pieces of land, taking "about two acres of the same. The directors of the company submitted such location to the commissioners, for their approval, and caused due notice to be given to all the parties interested, including the plaintiff, and such location, on the 24th day of April, 1849, was, by the commissioners, duly approved, none of the persons interested in the land, appearing before them.
    The directors of the company, afterwards, made an application to the superior court for the appointment of appraisers, and gave due notice to all the persons interested in the land, except the plaintiff, to appear, and be heard therein. The omission to make the plaintiff a party to that proceeding, was in consequence of the mistake and misapprehension of the company, as to his title, they having been informed, by the town clerk, that he had conveyed away his entire interest in the property, and they were unaware of their mistake, until a claim was made upon them by the plaintiff, in September, 1851.
    The superior court thereupon appointed three freeholders to assess the damages done to the respondents in said application, who accordingly, on the 24th day of May, 1849, assessed to them damages as follows: to David W. Whittlesey $164.65, David Whittlesey $15, Sarah T. Whittlesey $10, and to the other seven respondents 5 cents each, the whole amounting to ,$L90, and made return of their assessment to the superior court.
    The sum of $190, assessed as aforesaid, was considered and intended by the appraisers to be the full amount of the whole value of the land, taken by the company, and of all damages occasioned thereby, and in the distribution of the amount among the several owners, they acted under a misapprehension, as to their legal and equitable interests.
    The plaintiff, at that time, was the owner of one undivided tenth-part of the two pieces of land, subject to the life estate of his father, and his mortgage to his brother; but no notice was taken of his interest, and no damages were assessed to him.

      David W. Whittlesey was in the actual possession of the land, as tenant from year to year, and so continued, until the company entered upon the part by them taken. Daniel Whittlesey, the father, died July 21, 1851, at the age of seventy-six years.
    The sum of $5190, assessed as aforesaid, was afterwards duly deposited with the treasurer of the county of Hartford, agreeably to the directions contained in the charter of the company, and was paid over to the parties, to whom the same was assessed, and accepted by them, with the exception of thirty-five cents, the amount of the five cent assessments, which sum still remains in the treasury, for the use of the parties, to whom it was assessed.
    David W. Whittlesey afterwards voluntarily shared with the other joint owners, including the plaintiff, the sum so assessed to him, in such manner that the owners of each tenth part received an equal amount, no deduction being made from the plaintiff’s share, on account of his mortgage; and the division was so made by the said David W., for the purpose of an equitable distribution of the whole amount, so assessed, among the parties interested.
    From the time the lands were taken as aforesaid, until the 16th day of September, 1851, a period of more than two years, the plaintiff made no claim of title to the land taken by the company, or any compensation therefor; and although he resided in a distant part of the state, yet he knew the progress of the construction of the road, and that the company were expending large sums of money thereon.
    On the 23d day of July, 1849, the New York and Hartford Railroad Company was united with, and merged in the Hartford and Providence Railroad Company, and the two companies have since been known as the united company, under the name of the Hartford, Providence and Fishkill Railroad Company, which has thereby succeeded to, and become possessed of all the property, right, interest and estate of the New York and Hartford Company, according to a resolve of the general assembly, amending the charter of the Hartford and Providence company, passed in May, 1849.
    If the injunction prayed for should be granted, it would produce great injury to the company, and inconvenience and loss to the public, of the important facilities furnished by the road for travel and transportation.
    The committee found, that the damages done to the plaintiff’s interest in the land, including the use of the same, estimated according to its value at the time of taking the same, would be $40, but, if estimated according to its present value, they would amount to $50.
    The superior court, at the January term, 1855, accepted the report of the committee, found the facts therein stated to be true, and dismissed the bill. The case was brought before this court, by a motion in error.

      Fellowes, for the plaintiff.
    1. The superior court had no jurisdiction as to the plaintiff, because he was not a party, and had no notice, and had no jurisdiction at all, because the act of incorporation confers no power to sever the joint interests, and to assess separate damages; in other words, to determine the value of the shares of the copartners, and to determine their mutual rights and estate. Ross v. Elizabethtown and Somerville R. R. Co., 1 Spencer, 230. Railroad Co. v. Beecher, 1 Watts, 33-35. Merrill v. Inhabitants of Berkshire, 11 Pick., 269. It follows, therefore, that as the amount of damage to which each coparcener is entitled, depends on the total damage done to all, each one must be a party, and notified, before the court, or appraisers, have any jurisdiction. If the appraisers can assess separate damages, still all the owners must be made parties, and notified, before they have jurisdiction. The appraisers, in assessing separate damages, exceeded their jurisdiction, and therefore their acts are void. The assessment is not an assessment of the entire damage to all, in effect, and the appraisers have done what they had no authority to do. The ease is therefore within the principle, that where a special limited authority is exceeded, the act is void. But if the court, and appraisers, had jurisdiction, and did not exceed it, still their doings ought to be set aside for material mistakes and errors. (1.) Because of the inequality of the assessment, without reason, and (2.) because the assessment was so inadequate, being not half of the actual damage.
    2. If the New York and Hartford Company had a good title, whether the legislature could or could not vest that title in another distinct corporation, by its mere sovereign power, depended on the extent and nature of the franchise. If the right be personal, and nottransmissible, the legislature could not vest it in another corporation, without a new assessment and compensation. This inference is inevitable. Constitution U. S., art. v., p. 23. Constitution Conn., § 11, p. 29.
    3. The proper relief is a perpetual injunction. (1.) Because the injury is irreparable, and, (2.) because, if it were not irreparable, the company are exceeding their jurisdiction.
    4. As to the acquiescence claimed by the defendants, there was no concealment of title, and it was on record. The plaintiff gave notice of his claim to the defendants, as soon as he came into possession, two months after the termination of his father’s life estate. The plaintiff had no power till then, to keep the defendants from the land. His father had the right of possession. Moreover, the company have power to obtain the right, by appraisement, but they have utterly neglected to take any steps to procure the title.
    5. As to the question of evidence stated by the committee. The committee find matters not referred to them. The only matters referred to them, are the facts put in issue by the pleadings.

      Hungerford & Cone, and Bulkeley, for defendants.
    1. An application for an injunction is addressed to the sound discretion of the court, and the court will not grant it, as matter of right, or without good and satisfactory reasons therefor.
    2. If there was any defect in the proceedings of the appraisers, which is denied by the defendants, the plaintiff has waived such defect, by receiving and retaining his proportion of the money, at which the land was appraised, and it is proper to have the interest of each assessed separately. 4 Eng. Rail. Ca., 616. 5 Eng. Rail. Ca., 263.
    3. The plaintiff has lain by, for a period of two and a half years, and during all that time, witnessed the operations of the company, and their expenditures in the construction of the road, and has forfeited, if he ever had, any claim to equitable relief, and especially to an injunction. 1 Eng. Rail. Ca., 120. Greenhalgh v. Man. & Bir. R. W. Co., 1 Railway Ca., 68. Attorney General v. Man. & Leeds R. W. Co., 1 Eng. Rail. Ca., 436. Illingworth v. Man. & Leeds R. W. Co., 2 Eng. Rail. Ca., 194. 3 Mylne & Craig, 748. Rochdale Land Co. v. King, 7 Law & Eq. R., 208. Ten Eyck v. Simpson, 5 John. Ch. R., 184.
    4. The court, in the exercise of its discretion upon the subject of granting an injunction, will look to the probable consequences of granting or withholding it, to the respective parties, and if the damage occasioned by granting it, would be very serious to one, and by withholding it, small to the other, the court will withhold it. Attorney General v. The Eastern R. W. Co., 3 Rail. Ca., 337. Langford v. Brigton R. W. Co., 4 Eng. Rail. Ca., 69. Rigley v. Great West. R. W. Co., 1 Cooper’s Cases, Temps. Cottingham, 96.
    5. In regard to things devoted to public use, the court will consider the inconvenience to the public, if the injunction is granted. Spencer v. London & Bir. R. W. Co., 1 Eng. Rail. Ca., 159. Hilton v. Granville, Craig & Philip, 297. Carey v. Yarmouth R. W. Co., 3 Hare, 593. 2 Eng. Rail. Ca., 812.
    6. The New York and Hartford Railroad Company lawfully conveyed their franchises to the Hartford, Providence and Fishkill Railroad Company, which lawfully became vested with the same. (1.) The charters of both companies were subject to alteration, amendment and repeal, by the general assembly, at their election. (2.) The franchise granted to the New York and Hartford Railroad Company, consisted in the liberty and authority to take the land, construct the road, and use it, during the continuance of the franchise, and that might continue' always, unless repealed by the legislature, or declared forfeited by the proper court, upon a quo warranto. (3.) Admitting the land to have been property, the right was taken to use the land for a period of time, commensurate with the duration of the franchise, inasmuch as the right to use the land for the purposes of the road, and the franchise, are words of synonymous import. (4.) Neither the union and merger of the rights of the New York and Hartford Railroad Company in the Hartford, Providence and Fishkill Railroad Company, nor the authority given for that purpose by the legislature, constitute any extinguishment, or any resumption of the franchise. The authority to merge, and an execution of that authority, was, in effect, no more than an authority to the New York and Hartford Company, to assign the franchise to the Harford, Providence and Fishkill Company, and an assignment made in conformity with that authority. Harrison and wife v. Lexington & Frankfort R. R. Co., 9 B. Monroe, 470, a very pertinent authority. Law Magazine, vol v., p. 286, et seq. Troy and Rutland R. R. Co. v. Ken, 17 Barb., 581. Forward v. H. & H. Canal Co., 22 Pick., 462. Chase v. Sutton Manufac. Co., 4 Cush., 152. Benedict v. Goit, 3 Barb. Sup. Ct. R., 459. 5 Eng. Rail. Ca., 263.
    7. Although the bill prays for an account from the defendants, as tenants in common with the plaintiffs, the claim has not been hitherto insisted upon, on trial, and we presume it will not be hereafter. Should it be, we refer the court to Weston v. Foster, 7 Metcalf, 297. 5 Eng. Rail. Ca., 263. 9 Smedes & Marshall, 294, 431.
   Waite, C. J.

Jurisdiction, in matters of equity, was conferred upon the courts in this state, with very great hesitancy, on the part of the legislature. For more than a century after the organization of our government, that power was retained and exercised by the general assembly.' And when it was finally conferred upon the courts, it was done with very great caution. It was not given to any chancellor or separate tribunal, erected for the purpose, but to the courts as then constituted.

The very first act, upon that subject, limited the jurisdiction of the highest court to cases, where the matter in demand did not exceed one hundred pounds, to be exercised only where remedy was not to be had at law. And even that act was to continue in force only for a period of three years. Gradually, however, jurisdiction in all matters of equity was conferred upon the courts, and, by a recent statute, is now vested entirely in the superior court.

The grant of this power was accompanied with an important provision, that the courts, in the exercise of it, should proceed according to the usage of the general assembly in such cases. Hence arose the practice of referring cases in equity to committees, to find and report, not the evidence in the case, but the facts; in other words, how far the allegations in the bills and answers are true.

This practice has many advantages over that which prevails in England, and in most of our sister states. It renders proceedings in equity less voluminous and expensive to the parties, and enables those, who hear the witnesses, to determine the degree of credit to be given to their testimony.

The report is very much like a special verdict found by a jury, and when accepted, it becomes the duty of the court to apply the law and determine what decree shall be made.

In conformity with the practice which prevailed in the general assembly, it is competent for the court itself to hear the evidence, and make the finding, or refer it to a committee for that purpose. But a finding, in one of those modes, is essential to the foundation of a decree. The statute says, “ Courts of equity shall cause the facts on which they found their decrees, to appear on record.” Statutes, 1854, p. 471.

This enables either party, if dissatisfied with the decision, to have the case reviewed, by writ, or motion in error, as was done in this case.

This great caution on the part of the legislature, in conferring the power, requires a corresponding caution, on the part of the courts, in the exercise of it, that the fears, formerly entertained that it might be abused, may not be realized.

It has been holden that the law of congress, providing “that suits in equity shall not be sustained in either of the courts of the United States, in any case, where plain, adequate and complete remedy may be had at law,” is merely declaratory, making no alteration in the rules of equity, on the subject of legal remedy. Boyce's Executors v. Grundy, 3 Pet., 215.

This may be true of that law, embraced in an act, creating the courts, and defining and limiting their powers. But the same construction has not been given to our law. Thus, in a suit in equity, calling for an account from the defendant, a former guardian of the plaintiff, Daggett, C. J., remarked, “ In my judgment, the plaintiff has adequate remedy at law, and if so, the superior court is prohibited by express legislative enactment from holding jurisdiction,” and the bill was dismissed. Stannard v. Whittlesey, 9 Conn. R., 559.

Perhaps the most useful and important branch of equity jurisdiction is that relating to the granting of writs of injunction, and at the same time, it is one most liable to be abused, and perverted to purposes of extortion and oppression.

For an illustration of the correctness of that position, we need but look at the facts, found by the committee in the present case. The plaintiff and his nine brothers and sisters were the joint owners of .two pieces of land, under the incumbrance of the life estate of their father, and even the plaintiff’s interest in the property was mortgaged to a brother, to secure the payment of a note of much greater amount, than the value of all his interest.

Across these two pieces of land, the railroad company located their road, and, for that purpose, took about two acres of the land. They then applied to the superior court, for the appointment of appraisers to assess the damages done to the owners. All of them were duly notified, with the exception of the plaintiff, whose name was omitted in the citation, through mistake, in consequence of information from the town clerk, that he had conveyed away all his interest in the property, instead of giving a mortgage of the same.

The appraisers assessed the whole damages done to the owners, at the sum of one hundred and ninety dollars, and apportioned that amount among the other proprietors. According to that valuation, the plaintiff’s share, at most, could not have amounted to the sum of twenty dollars. He remains silent for a period of more than two years, and until after the company have completed their road.

He now calls upon the court to enjoin the company against the use of their road, over the land, in which he had an interest, simply because that interest has not been legally taken. This, as the committee have found, and as all must see, can not be done without great injury to the company, and serious loss and inconvenience to the public, in being deprived of the railroad facilities, furnished by the company. It probably would be more for their interest to pay the plaintiff ten fold, or even an hundred fold, the amount of his share, of the damages, according to the assessment of the appraisers, than have their operations stopped, in the manner prayed for in the bill.

We will not say that the plaintiff, in applying for an injunction, intended thereby to take an undue advantage of the company, and extort from them unreasonable damages, as no such fact has been found. Yet it is perfectly obvious, that a decree to that effect would place the company in a situation, in which they must either submit to such terms as the plaintiff might exact, or to great loss and damage in their business.

“ An injunction,” says Hosmer, C. J., “ is not en debito justitiw, for any injury threatened or done to the estate, or rights of a person, but the granting of it must always rest in sound discretion, governed by the nature of the case.” Enfield Toll Bridge Co. v. Conn. River Co., 7 Conn. R., 50.

Were then, this the whole case, we should be of opinion, that the superior court exercised a sound discretion, in refusing an injunction, for an injury so trifling, when, if granted, it would have been productive of so much damage to the principal defendants. It was better, far better, to leave the plaintiff to his remedy at law, by action of trespass, or ejectment, as the facts might require.

Indeed, in one of our earliest reported cases upon this subject, a decree of the superior court was reversed, because the plaintiff had an adequate remedy at law, by an action of ejectment. Willet v. Overton, 2 Root, 343.

And we take this occasion to say, that writs of injunction are not to be granted for every trifling cause, nor made substitutes for every action of trespass or ejectment. When wisely and cautiously granted, they may be rendered highly beneficial; but they are not to be so used as to impose harsh and oppressive restraints upon the liberties of the people, and thereby rendered odious in public estimation. They ought not to be issued, except for the prevention of great and irreparable mischbf, and, in the language of our present statute, in cases only, in which adequate relief can not be had in the ordinary course of law.

But, upon another ground, the decision in the court below can be vindicated. The plaintiff has no equity. The principal objection to the validity of the assessment of damages, is the want of notice to him to appear and be heard relative to the appointment of the appraisers, and their assessment.

But this omission to give the plaintiff notice, was by mere mistake, arising from wrong information from the town clerk, relative to the plaintiff’s title. The appraisers, acting under the belief that the property belonged to the other owners, assessed all the damages occasioned by the location of the road, and apportioned the whole amount among them. And this amount was paid to the treasurer of the county for the use and benefit of the owners.

There was, indeed, through some mistake, an unequal apportionment of the damages, which probably a court of chancery, upon a proper application, would have corrected. But David "W. Whittlesey, to whom the greater share of the damages was awarded, as an honest man, voluntarily divided his share among all his brothers and sisters, including the plaintiff, in such manner, as to make all their shares equal.

The plaintiff, having thus received his full share of the damages awarded to the owners of the land, suffers the company to go on for a period of more than two years, building their road, and putting it in operation, without objection or claim for further compensation. It is true, for the principal part of that period, the property was under the incumbrance of his father’s life estate, but it is found that he' knew what the company were doing, and could, at least, have given them notice that he claimed an interest in the land, which had not been legally taken.

Under these circumstances, the reception by the plaintiff of the company’s money, and his subsequent silence in relation to any claim on his part, must be considered as a waiver of any irregularity in the proceedings relating to the appraisal. It is too late now for him to say, that he had no notice of the time and place for the appointment of appraisers, or of making their award, when he has accepted his share of the damages, by them awarded, and suffered the company to go on with their road in the same manner, as if everything had been legally and satisfactorily done.

Had the appraisers assessed to him his share of the damages, and had it been paid to him, as such, by the company, no question could arise but that he would be estopped from making the present objection. But it can make no difference, whether the damages were paid directly to him by the company, or indirectly, through the medium of the county treasurer, and his brother. It is enough that he has received their money, as his share of the damages.

It is further said, that the assessment is void, because the damages were awarded to the proprietors severally, and not jointly, and were not apportioned according to their respective interests.

As to the mistake in the apportionment, as we have already said, it might have been corrected upon a proper application to a court of chancery. But the necessity for such an application was removed by the voluntary action of the proprietors, in making the division, as it should have been made.

Whether it was the duty of the appraisers to have assessed the damages jointly, or severally, it is unnecessary for us to enquire. Because, if there were any irregularity in that report, or in the apportionment, the proprietors have waived it, by receiving the damages awarded, and suffering the company to go on and build the road, and treat the right of way as legally obtained. To permit them now to retain those damages and recover back the land, would clearly be inequitable and unjust, and would operate as a fraud upon the company.

By an act of the general assembly, passed at their May session, in 1849, the New York and Hartford Railroad Company was united with, made part of, and merged in the Hartford and Providence Railroad Company, and the two companies constituted one united company, under the name of the Hartford, Providence and Fishkill Railroad Company, one of the defendants in the present suit.

It is claimed that the franchise of the first mentioned company was not assignable, and that consequently the last named company acquired no title thereto. But there is no just foundation for this claim. It is a very common practice for railroad companies to mortgage their roads, and all their franchises, to secure the payment of their bonds; and such bonds, to the amount of many millions of dollars, are now holden by creditors, relying for their security upon the mortgages given by the corporations.

And who- ever heard it claimed that such mortgages were void, and that the mortgagees could acquire no right to the use of the road, without a new assessment of damages ? And if a corporation can mortgage its road, why not transfer it directly? The assignee can acquire no greater interest than the corporation had; but we see no reason, why all that it possessed may not be assigned.

But in the present case, the New York and Hartford Railroad Company has not been annihilated, but merged in, and united with another company, and the two made one company, with a new name. This union does not affect the rights of either company, nor do we see how the land owners are injured by the union. Their land is to be used only for the purpose for which it was taken, and whether used by the original company, or their assignees, cán make little difference with them.

Again, it is said that the committee and the court have found facts not put in issue by the pleadings. They have found that David W. Whittlesey voluntarily divided the sum awarded to him, among his co-heirs, for the purpose of making an equitable distribution, when no such matter was in issue.

The plaintiff, in his bill, alleges that he and his brothers and sisters, as heirs of their mother, were the owners of the land, and that the company had never made him any compensation for his interest. The company, in their answer, say that all the damages, with the exception of the thirty-five cents, were paid over to the heirs of the said Rebecca, of whom he was one. The report merely specifies in what manner the payment was made, and is therefore consistent with the allegations.

It is finally said that the court erred in dismissing the bill without passing a bill in form. But the court found the facts, set forth in the report, to be true, and thereupon dismissed the bill. This is in conformity with our practice, and is all the law requires.

In our opinion, therefore, there is no error in the decree of the superior court.

In this opinion the other judges concurred.

Decree affirmed.


author: Sanford, J.

text:
    Neal vs. Gillett and others.
    In an action on the case, for damage caused by the negligence of the defendants, who were severally of the ages of thirteen and sixteen, at the time of the injury, where the plaintiff claims only actual damages, the youth of the defendants is not to be taken into consideration, in determining the question of their negligence.
    If the youth of a defendant would, in any case, be a defence to such an action, yet persons of the above ages must he considered, in the absence of proof to the contrary, as emancipated from childish instincts, and hound to exercise their rights with ordinary care.
    Whether, in such an action, the youth of a defendant excuses his negligence to the same extent that the youth of a plaintiff excuses want of care on his par.t—Qu.

    Where the defendants were guilty of gross negligence, causing damage to the plaintiff, and the plaintiff had been guilty of want of ordinary care, contributing essentially to the injury, it was held that the plaintiff could not recover.
    This was an action of trespass, tried before the jury, at the term of the superior court for Hartford county, holden in January, 1855.
    On the trial upon the general issue, the plaintiff claimed to have proved, that on the first Monday of October, 1850, he was riding over a public highway, leading through a common, in the town of Suffield; that the, defendants were there engaged in the game of ball, at the distance of one or two rods from said highway; that, by the acts of the defendants in playing said game, or by some other thing connected with said game, his horse became frightened, ran away and threw him out of the wagon, and that he was thereby seriously injured in his person and property. Upon these facts, the plaintiff claimed to recover on the ground of the negligence of the defendants.
    The defendants denied that they were guilty of negligence in the premises, but insisted and offered evidence to prove that the plaintiff was guilty of negligence, and that his negligence was the cause of the injury complained of. It was admitted and proved, that of the defendants, two were thirteen years of age, and one of them sixteen years of age, at the time of the injury complained of. The defendants thereupon requested the court to instruct the jury, that in determining the question of negligence, they were at liberty' to take into consideration the age of the defendants, in connection with the other circumstances of the ease, and that the law would not require the same acts of caution, and prudence, in a child, as in a man. The plaintiff claimed to recover actual damages and no-other. The court did not so instruct the jury, but did instruct them that the age of the defendants was not to be taken into account by the jury, as they were only to allow in any event actual damages, this being all the plaintiff claimed.
    The plaintiff also claimed that the defendants were guilty of gross negligence, as the cause of the injury, and that if the jury should so find, the plaintiff was entitled to recover, notwithstanding there had been, on his part, a want of mere ordinary care, which might have essentially contributed to produce the injury complained of. The court charged the jury in conformity to this claim of the plaintiff.
    The jury having returned a verdict for the plaintiff, the defendants moved for a new trial, claiming that the court erred in instructing the jury as aforesaid, and in not instructing them as requested by the defendants.

      It. D. Hubbard, in support of the motion.
    1. The court erred, • in ruling that the youth of the defendants was not to be taken into account, in determining the question of .negligence. Negligence is the doing, or omitting to do an act with a lawful design, the consequences of which the actor or delinquent knows, or should know, would prove injurious to others. A child has not, and can not have, the same knowledge, and therefore is not, in law, chargeable with the same knowledge, as' an adult, of the relations and nature of things, of the duties which grow out of those relations, and of the consequences of acts done, or omitted to be done. To suppose therefore that, on a question of negligence, the jury are to make the same requirements of the one, as of the other, is to suppose the law of the land to be a transgression both of right reason, and the law of nature. The ruling in question is contrary to the law, as it has been repeatedly settled. Lynch v. Nurdin, 41 E. C. L. R., 422. Vasse v. Smith, 6 Cranch, 226. Birge v. Gardiner, 19 Conn. R., 507.
    2. The court erred, in instructing the jury that gross negligence in the defendants would excuse the plaintiff from exercising ordinary care. The true rule on this subject is, that where the injury complained of is the compound result of mutual negligence, the court will not attempt to apportion the injury, but will leave the parties as it found them. If the plaintiff might, by the use of ordinary care, have avoided the effect of the defendants’ negligence, (however gross their negligence may have been,) he is in part, at least, the author of his own injury, and can not recover. Butterfield v. Forrester, 11 East, 60. Pluckwell v. Wilson, 24 E. C. L. R., 368. Vanderplank v. Milber, 22 E. C. L. R., 280. Woolf v. Beard, 34 E. C. L. R., 435. Davis v. Mann, 10 M. & W., 548. Beers v. Housatonic R. R. Co., 19 Conn. R., 571. Birge v. Gardiner, 19 Conn. R., 509.

      Hooker and Philleo contra.
    I. The age of the defendants was not a proper matter for consideration, in determining the question of their negligence.
    I. A person is liable for all the actual damage committed by him,—even if a deranged man,—or if the injury be accidental,—and pn the same principle a child, not old enough to exercise intelligent volition, is liable. Volition has nothing to do with the question. 2. The cases, where extreme youth has been held to excuse a child from the exercise of ordinary care, are exclusively eases, where the child has been a plaintiff ; and no case can be found where this fact was held to excuse the negligence of a defendant. 3. If the extreme youth of a defendant would excuse his negligence, yet in the present case the defendants were of such age as to be bound to exercise the same care as adults. One of them was thirteen and the other sixteen years of age. 1 Sw. Dig., 531. 17 Verm., 499. Moore v. Crawford, 10 Verm., 71.
    The true distinction is, that imbecility, non-age, and incapacity, shall be a protection against any injury, but shall not be a protection from the just consequences of doing wrong, or inflicting injury.
    II. The defendants, having been guilty of gross negligence, the plaintiff can recover, even though guilty of slight negligence himself. 1. Gross negligence is a reckless disregard of consequences, morally criminal and but little short of legal criminality. It is therefore in the highest degree just, that a person, guilty of it, should make good to another the damage caused' thereby, even though that other may have Been slightly negligent. 2. No person is bound to expect, and thus be prepared for, the gross negligence of others; consequently, in being slightly negligent, that is, negligent as to ordinary events, he can not be regarded as in fault as to this extraordinary event. 3. The reason, usually given in the books, why a plaintiff whose negligence has contributed to the injury can not recover, viz., that the jury can not discriminate between the damage caused by the defendant, and that caused by the plaintiff, is simply absurd. It would be a libel on the law, if it were so, that a party, who has been injured, can recover nothing, simply because a jury can not ascertain how much to assess the damage.
    But juries are every day called upon to assess damages, in cases of precisely the same complication. As where a person, injured by another, by imprudent exposure becomes sick, and thus greatly aggravates the injury, yet a jury must decide how much of the injury was caused by the act of the defendant, and how much by the imprudence of the plaintiff. So, where a criminal resists an officer, and is overpowered by him, and injured, and sues for damages; if the officer has used an excess of force, he is liable for it, and a jury must discriminate between the injury resulting from the necessary, and that from the unnecessary force. Johnson v. Patterson, 14 Conn. R., 363. Birge v. Gardiner, 19 Conn. R., 507. Rathburn v. Payne, 19 Wend., 399. Hatfield v. Roper, 21 Wend., 615, 619.
   Sanford, J.

This is a motion for a new trial. In the first count of his declaration, the plaintiff alleges that the defendants threw a ball, with great force, near to the head of the plaintiff’s horse, and thereby frightened the horse, so that he ran, and caused the injury complained of.

In the second count, the plaintiff avers that the defendants were playing ball, in the highway on which he was driving, and that they so carelessly and negligently so near to the head of the plaintiff’s horse frightened thereby, and ran, &e.

The defendants pleaded the general is^i the plaintiff claimed that the defendafi gross negligence, and by it caused the ir

The defendants denied that they were ¡ genee, and contended that the injury was caused by the negligence of the plaintiff himself.

The plaintiff claimed to recover only his actual damages, and it was admitted that two of the defendants were of the age of thirteen years, and one of them of the age of sixteen.

'The court charged the jury, that inasmuch as the plaintiff claimed to recover only his actual damages, the age of the defendants was not to be taken into the account, by the jury, in determining the question of negligence, and that if they should find the defendants guilty of gross negligence, as the cause of the injury, the plaintiff was entitled to recover, notwithstanding there had been, on his part, a want of mere ordinary care, which might have essentially contributed to produce the injury complained of. To the charge on both of these points, the defendants take exceptions.

Upon the first point, a majority of the court are of opinion that the charge was right; though we do not intend to decide whether the distinction taken by the plaintiffs’ counsel in regard to the protection which infancy, or “ non-age,” affords, when claimed by a plaintiff, and when set up by a defendant, is well taken or not, and only remark, that we have been referred to no authority, which directly sanctions such distinction. We place our determination upon a different ground.

The youngest of these defendants was thirteen years of age, and in the absence of all proof to the contrary, must be presumed to have been emancipated from the dominion of mere “childish instincts;” and we think it would be mischievous to hold that persons of the age of thirteen years are, on account of their youth alone, absolved from the obligation to exercise their rights with ordinary care.

It may not be easy to fix upon the exact age when “ childish instinct,” and thoughtlessness, shall cease to be an excuse for conduct, which in an adult would be considered, and treated, as a want of ordinary care, but it is sufficient for the determination of this point, that these defendants had clearly passed that age.

The question, presented upon the second point, is, whether a plaintiff is entitled to recover for an injury, produced by the combined operation of his own want of “ ordinary care,” and the gross negligence of the defendant. The exact boundaries between the several degrees of care, and their correlative degrees of carelessness, or negligence, are not always clearly defined or easily pointed out. We think, however, that by' “ ordinary care,” is meant “ that degree of care which may rea} sonably be expected from a person in the party’s situation,’b (41 E. C. L. R., 425,) that is, “reasonable care,” (19 Conn. R., 572;) and that “gross negligence” imports not a malicious intention or design, to produce a particular injury, but a thoughtless disregard of consequences ; the absence, rathelV than the actual exercise, of volition with reference to results.

What is the measure of “reasonable care” must of course depend upon the circumstances of the particular situation, in which the party at the time is placed. But “reasonable care” every one, in the enjoyment of his rights, and the per- ; formance of his duties, is bound to exercise, at all times, and under all circumstances. When he has done that, he is answerable to no one, for any consequences which ensue, for he has done all his duty; when he has done less than that, he is in fault, and if an injury ensue to another, in consequence of such fault, he is responsible for it: if to himself, he must bear it. If in the enjoyment of their lawful rights by two persons, at the same time and place, reasonable care is exercised by both, and an injury accrues to one of them, it must be borne by the suffering party as a providential visitation. If such care is exercised by neither party, and an injury accrues to one of them, he must bear it, for he was himself in fault. And we hold that when the gist of the, action is negligence merely,—whether gross or slight, the ■ plaintiff is not entitled to recover, when his own want of ' ordinary, or reasonable care, has essentially contributed to ! his injury; because he is himself in fault, and because of the ' difficulty, if not impossibility, of ascertaining in what proportions the parties respectively, by their negligence, have contributed to the production of the injury, and whether it would have been produced at all, but by the combined operation of the negligence of both. When the injury is intentional, and designed, other considerations apply.

For any thing this court can see, the negligence of the defendants, however gross, might have been entirely harmless, but for the plaintiff’s own wrongful contribution to the combined causes which produced his injury. And so too, for any thing this court can see, although the defendants’ negligence was gross, and fully adequate to the production r.of the injury, yet the plaintiff’s exercise of reasonable care 'Would have saved him from its consequences.

In the recent case of Park v. O'Brien, 23 Conn. R., 339, this court said, “ It is necessary for the plaintiff to prove first, negligence on the part of the defendant, and, secondly, that the injury to the plaintiff occurred in consequence of that negligence. But in order to prove this latter point, the plaintiff must show that such injury was not caused, wholly, or in part, by his own negligence: for although the defendant was guilty of negligence, if the plaintiff’s negligence contributed essentially to the injury, it is obvious that it did not occur by reason of the defendant’s negligence.” “Hence, to say that the plaintiff must show the latter,” (the want of the plaintiff’s concurring negligence,) “is only saying that he must show that the injury was owing to the negligence of the defendant.”

The same reasonable doctrine is sanctioned by other decisions, in our own court, and elsewhere. Birge v. Gardiner, 19 Conn. R., 507. Beers v. Housatonic R. R. Co., 19 Conn. R., 566, and cases there cited.

We think therefore that the charge of the court, on this point, was wrong, and that a new trial ought to be granted.

In this opinion the other judges concurred, except Ells-worth, J., who was disqualified.

New trial to be granted,


text:
    Imlay vs. The Judges of the City Court of the City of Hartford.
    The statute passed in 1854, regulating appeals from the county to the superior court, is applicable to the city courts of the city of Hartford.
    Where the plaintiff brought Iris action of assumpsit to the term of the city court of the city of Hartford, holden in December, 1854, demanding $1,000 damages, which action by legal continuances cairie to the April term of said court in 1855, when judgment was rendered in favor of the plaintiff; it was held, that the defendant was not then entitled to an appeal to the superior court.
    This was a writ of mandamus, directed to the judges of the city court of the city of Hartford, requiring them to allow the complainant an appeal from a judgment of that court, or to show reasons to the contrary.
    The complaint alleged that one Nelson Mowry,in November, 1854, brought an action of assumpsit against the complainant, 1 demanding one thousand dollars damages, and before that court at the term holden in April, 1855, recovered judgment therein. The complainant thereupon moved for an appeal to the next superior court, which was denied by the judges of the city court.
    The defendants made return, admitting their refusal to allow the appeal, assigning as a reason, that the cause, in their opinion, was not legally appealable.
    The superior court dismissed the application for a mandamus, and the complainant brought the case before this court, by motion in error.

      Fellowes and Hooker 3f Hawley, for the complainant.

      Bulkeley and R. D. Hubbard, for the defendants.
   Waite, C. J.

The only question in the present case, is, whether the complainant, Imlay, was entitled to an appeal from the judgment rendered against him in the city court, in the suit brought against him by Mowry; and this depends upon the construction of the statutes regulating appeals from the city and county courts.

By an act of the general assembly, passed in 1784, incorporating the city of Hartford, it is provided that “ there shall be holden, on the second Tuesday of every month, a city court,” having jurisdiction of certain cases prescribed in the act, “ and said city courts shall, as to causes by them cognizable, to all intents and purposes, have the same powers and authorities, and proceed in the same manner, and grant executions, as said county courts now or hereafter, by law, shall have, proceed and grant”—“and an appeal shall be allowed from the judgment or determination of said city courts to the next superior court, to be holden in the county of Hartford, in all cases, in which an appeal now or hereafter, by law, shall be allowed from said county courts.”

And by the statute, then in force, an appeal was allowed from a judgment of the county court to the superior court, in all cases where the value of the debt, or matter in dispute, exceeded the value of seventy dollars, except in suits on bonds and notes vouched by two witnesses. Stat., ed. 1796, pp. 64, 28.

Had the latter statute remained unchanged, the complainant would undoubtedly have been entitled to an appeal, and the refusal of the city court to allow it would have been error.

By the statute, passed in 1854, and before the commencement of the suit against the complainant, the right of appeal was allowed only to the defendant, during the first term of the county court to which the suit was brought, and before any trial was had to the jury therein.

As the appeal, in the present case, was not taken at the first term of the court to which the suit was brought, the question is, whether the latter statute applied to appeals in the city courts, as well as to those in the county courts. And we are of opinion that it did, and that the city court did not err in refusing the allowance of an appeal, in that stage of the proceeding, in which it was offered.

The design of the legislature, in creating and establishing the city courts, was to confer upon them all the powers, in relation to the eauses, over which they had jurisdiction, that were then possessed or might thereafter be exercised, by the county courts, and appeals were to be allowed in the same manner as they were then allowed, or might, by law, be thereafter allowed in the county courts. Such is the obvious import of the language used.

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

In this opinion the other judges concurred, except Stores, J., who was disqualified.

Mandamus not to be issued.