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insufficient; thus demonstrating that the security did not
depend upon disobeying orders, but quite the reverse.

It would seem now in looking back upon the transaction
that all the probabilities pointed to that result. At the time
the first order to sell was given, (for it was twice repeated
subsequently,) cotton was unusually high ; but it soon com-
menced falling, and fell rapidly— declining seventy cents per
pound in the space of a few weeks. Some of it might have
been sold for the highest price, while nearly all of it could
have been sold for more than was actually realized.

The order to sell therefore, neither in fact, nor apparently,
infringed upon the rights of the consignees and should have
been obeyed. A failure to obey it having resulted in an ii\jury
to the respondent exceeding the amount of the note in suit,
we think he has a good defense*



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OCTOBER TEEM, 1870. 388

Weed V, Adams.

The petitioner's counsel claimed that the firm ot Weed,
Witters & Co., as consignees, were entitled to a lien upon
tlie entire shipments of the respondent to cover their advances,
and were not obliged to sever, and sell any special shipments,
such advances being unpaid, and that until they were paid
the factors could protect their lien upon the accumulated
shipments. The authorities cited in support of this proposi-
tion undoubtedly sustain the doctrine that a factor or other
party having a lien upon goods in his possession as security
for a debt or otlier liability, is not bound to part with the
goods or any portion of them to the detriment of his security.
We recognize this doctrine, but it fails to relieve the peti-
tioner. The factors were not required to part with any por-
tion of their security without an equivalent in cash, and
which was immediately available in payment of the debt
secured. The instructions contemplated an appropriation
of the security to that end. As the price of cotton was con-
stantly declining, each sale would have increased rather tlian
have diminished the relative value of the remaining security.-

We cannot perceive that the grant of a special lien upon
the crops of tlie plantation before consignment, conferred
upon the consignees any additional rights and powers afker
the consignment wad actually made.

We advise the Superior Court to dismiss the bill.

In this opinion the other judges concurred.



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884 FAIRFIELD COUNTY.



Smith p. Wildman.



Shebman p. Smith and wipe w. Pbedebick S. Wildman and

ANOTHER, TbUSTEES.

Where estate is given to tnistees to be disposed of by them at their discrKioa
for the support of a cestui que trust, a court of equity will not interfere to oon-

' trol that discretion unless there ha< been tfbnse of the trust

Where estate was left to trustees to apply so much as in their opinion might be
necessary for the support of the family of J, and for the support of S, who had
also a remainder interest in the estate after the death of J, and 5 brought a
bill in equity to compel the trustees to apply a smaller sum to the support of
the fomily of J, alleging that the sum so appropriated was too laige and that
there was great danger that the estate would be exhausted, and that the trus-
tees ,had refused to allow the petitioner a reasonable sum that had been de-
manded, — it was held that there was not such an abuse of the trust as would
justify a court of equity in interfering to control the discretion of the tmstem.

Where a trust of this character is reposed in two peraons their action should be
joint in appropriating the trust fund for the purposes specified in the trust.

Where one of two such trustees refuses to execute the trust according to its true
intent, or abuses it, the fact that he alone is responsible for the non-execatioii
or abase, famishes no reason why a court of eqaity should not interfere for

■ the relief of the cestui que trust.

The trustees were to apply tlie funds for the suj^rt in their discretion of " the
family of J." Held to mean J" and his wife, and such children as li^ed with
him as part of his household and were legally dependent upon him for support,
and that it did not include grown up children who wera married aod were not
living with him.

Bill in equity, brought to the Superior Court in Fairfield
county, and heard before Ghrangery J. The facts were found
by a committee and a decree passed for the petitioners. The
respondents brought the record before this court by a motion
in error. Tlie principles of law decided will be suflSciently
understood without a statement of the facts.

Todd and Taylor ^ for the plaintiffs in error.

WhitCy for the defendants in error.

Butler, C. J. Tlie bill in this case was brought by a ces-
tui-que-trust . to compel the performance of a trust. The
trustees are made parties and also certain residuary devisees*
Objection is made by those residuary devisees, of a technical



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OCTOBER TEEM, 1870. 885

Smith V. Wildman.

character, to the bill. Tliey allege that the bill does not
present a case on which the court could act, and for that
reason it should have been dismissed, and that therefore
there is error in the record. The trustees do not concur in
those objections, but desire the opinion of this court upon
the merits of the case, as presented by the findings of the
committee and the court. Tlie questions presented by the
trustees pertain to the execution of the trust, and the trus-
tees and cestui-que-trusts are alone interested in them, and
those will be considered.

By the will of Henry Taylor, Messrs. Wildman and Taylor
were made trustees of all his residuary estate, to be expended,
principal as well as interest, if required, for his only son
James Taylor and his family, and the representative of his
only daughter, who was deceased — Susan Betts, now Susan
Smith, the petitioner. The will provides that his entire
residuary estate shall vest in Wildman and Taylor, and the
survivor, and the executor or administrator of the survivor,
upon the special trust and confidence that they should apply
80 much thereof as in their opinion should be necessary for
the support of the family of his son James and his grand-
daughter Susan Betts, power being given them to sell ot use
the principal if necessary.

1. The trustees object to the action of the court below,
on the ground, first, that the court exceeded its jurisdiction,
inasmuch as the property was not devised to these cestui-que-
tmsts as property which vested in them, and to which they
had a vested right, but was entrusted and confided to the
trustees during the life of James Taylor, for the support of
hun and his family and Susan Betts, and was tlien to vest in
all his grand-children ; that the trust was therefore one of
pure discretion, over wliich the court of equity could exercise
no control, unless the trust was abused.

We are of opinion that the trustees are right in this claim.
It was said by Judge Waite, in giving the opinion of the
court in Leavitt v. Beimey 21 Conn.^ 8 : — ^' We think it in
the power of a parent to place property in the hands of tnuk
tees for the benefit of a son and hia wife and children^ with

Vol. xxxvn. — 49



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886 FAIRFIELD COUNTY.

Smith 17. Wildman.

ftiU power in them to manage and apply it at their discretion,
without any power whatever in the son to interfere in that
management, or in the disposition of it until it has been act-
ually paid over to him by the trusteeff. In such case a court
of chancery will never interfere with the exercise of that
discretion, until it is shown that there has been some abuse
'of the authority given to the trustees." That case was
decided by a divided court, but we do not understand that
there was any division of opinion upon that point. We con-
sider it settled law in this state that when estate is given to
trustees, to be disposed of by them at their discretion for the
support of a cestui-que-trust, a court of equity will not inter-
fere to control that discretion unless there has been abuse
of the trust. Had there been any such abuse at the time,
this petition was brought, as would then authorize the inter-
ference of a court of equity ? We think there had not. The
bill does not allege that the petitioner was then necessitous,
nor any abuse of the trust, except that too large a proportion
of the trust estate was being applied for the support of James
Taylor and his family, to the injury of the vested interests
of the petitioner. Nor does the finding show that at that
time she actually required the siun which she demanded.
We cannot say, under these circumstances, that the refusal
to grant her request was such an abuse of the trust as would
justify a court of equity in attempting to control the discre-
tion of the trustees. It sufficiently appears from the finding
that the petitioner mbsequently required support, and it does
not appear that any subsequent application was made to the
trustees and was refused. We do not think therefore that
the application was justified by any abuse of the discretion
given to the trustees when brought. The petitioner was the
representative of -one of two children of the testator and
apparently brought her bill because she felt aggrieved that so
much of the estate was being furnished to the son and none
to her, and tlie trustees may have erred in not duly consider-
ing her rights under the will, as well as tliose of James Tay-
lor. But we do not see in it an actual abuse of their discre-
tion. If they have since failed in their duty to her, through



1



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OCTOBER TERM, 1870. 387

Lockwood V. N. York & N. Haven R. R. Co.

want of appreciation of her rights under the will, upon a
proper bill with proper allegations she may be entitled to
relief.

2. It is undoubtedly true that where a trust of this char-
acter is reposed in two persons, their action should be joint in
appropriating the trust fund for the purposes specified. But
if one refuses to execute the trust according to its true intent
and meaning, or abuses it, the fact that he alone is responsible
for the non-execution or abuse, furnishes no reason why a
court of equity should not interfere and give the cestui-que-
trust the relief to which she is entitled.

3. We are further of opinion that the trustees are right
in their construction of the words " family of James Taylor,"
and that the testator meant the wife and such of the children
of James as lived with him as part of his household and
were legally dependent upon him for support. In this case,
upon tlie finding of facts, the household consisted of James,
his wife, and his infant son Lemuel. The other descendants
of James Taylor have no direct interest in the trust, and
cannot be considered by. the trustees as beneficiaries of it.

For these reasons we think there is error in the record,
and tliat the judgment must be reversed, and the Superior
Court advised to dismiss the bill, but without cost to either
party.

In this opinion the other judges concurred.



Peedebick Lockwood vs. The New York & New Haven
Railroad Company.

In this state the owners of land bonnded on a harbor own only to high water
mark, and whatever rights such owners have of reclaiming the shore are mere
franchises.



37 .-187
58 151



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888 FAIRFIELD COUNTY.

Lockwood V. N. York & N. Haven B. B. Co.

When however such reclamationa are made, the reclaimed portions in general
become integral parts of the owners' adjoining lands.

The principles governing the case are the same as those which prevail where the
sea recedes gradually through accession of soil to the land.

Where there is a right of way to and from a harbor, such right continues over
all accessions of soil which accrue between high and low water mark, whether
the line of high water mark is changed by natural or artificial causes.

Where a right of way granted by a deed to a railroad company across certain
land bounded upon a harbor, was described in the deed as '^ being in length
about 22 chains, and extending from said harbor on the west to the land of
N on the east, and four rods in width," with a reference to the survey of the
road for a more particular description, it was held that t^e right of way ex-
tended across the mud flats lying between the west line of the land at high
water mark and low water mark.

Petition for an injunction against the removal by the re-
spondents of certain structures erected by the petitioner upon
certain mud flats which had been reclaimed, which structures
were claimed by the respondents to be an obstruction of their
right of way ; brought to the Superior Court in Fairfield
County.

The shore land adjacent to the reclaimed flats was formerly
owned by Birdsey 6. Noble, who on the 13th of November,
1847, conveyed a right of way across the same to the re-
spondents, the important part of the deed being as follows : —

" I, Birdsey G. Noble, of the city of Brooklyn, in the state
of New York, for the consideration of Eighteen Hundred
Dollars, received to my full satisfaction of the New York &
New Haven Railroad Company, do give, grant, bargain, sell,
and confirm, unto the said New York & New Haven Railroad
Company, and its assigns forever, the right of way for the
construction and use of said railroad, across certain land
owned by me in the town of Bridgeport, in Fairfield County,
and state of Connecticut, on the east side of the harbor, as
the said road is located and established, the said right of way
being in length about twenty-two chains ; extending from the
said harbor on the west to the land of William H. Noble on
the east ; excepting the right of the public in a street run-
ning northerly between my land and the land of said William
H. Noble, and in a street running easterly from Noble's bridge,
so called ; said right of way being in width four rods, through



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OCTOBER TERM, 1870. 889

Lockwood V. N York 4. N Haven R. R. Co.

the whole length thereof, reference being had to the map and
Biirvey of said railroad made by 'the engineer for a more par-
ticular description.'*

The rights of Noble, the grantor, have become vested in
the present petitioner. The petitioner claimed that the
westerly line of the land through which the right of way was
granted was high water mark, and that tlie flats between
high and low water mark belonged to him except so far as
the respondents had gained rights by adverse use. The re-
spondents claimed that high water mark was not the westerly
boundary of their right of way, and that under the deed they
had the right to occupy the land between high and low water
mark adjacent to the grantor's upland for a space of four rods
in width.

Upon these facts the case was reserved for the advice of
this court.

Noble and Beardslet/y for the petitioner.

1. The words of the deed, " extending from said harbor
on the west about twenty-two chains to the land of W. H.
Noble on the east," give a definite western boundary. A har-
bor is that area and surface which is enclosed by the outer
line of its waters at their ordinary full tide. ** From the
harbor" means therefore from this outer line. NichoU v.
LewiSj 15 Conn., 137, 143. "About twenty-two chains"
must be taken as meaning substantially that length, and may
properly be taken to mean here that precise length ; and
measuring that distance either way will give a definite western
boundary. Davis v. Bainsford^ 17 Mass., 207 ; Blaney v.
Rice, 20 Pick., 62, 64.

2. Definite points and boundaries will exclude all the
territory that lies beyond them. Jackson v. Hathaway y 15
Johns., 447, 454 ; Hatch v. Dwighi, 17 Mass., 289, 298 ;
Bavin v. Raini^ord, id., 207 ; T^ler v. Hammond, 11 Pick.,
198 ; Flaffg v. Thurston, 13 id., 146 ; Storer v. Freeman^ 6
Mass., 485, 489-; Niekerson v. Crawford, 4 Shep., 246 ; 2
Hilliard Real Estate, 846; Angell on Tide Waters, 229 ;
Angell on Highways, §§ 316, 318.



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890 FAIRFIELD COUNTY.

Lockwood v. N. York & N. Hayen R. R. Co.

8. Owners of upland bordering upon tlie sea are owners
of the adjoining shore, subject only to the paramount rights
of the public. Hast Haven v. Hemingway^ 7 Conn.,* 202 ;
Chapman v. Kimbally 9 id., 41 ; Nichtls v. Lewis, 15 id., 143.

4. The grant of a right of way is not like a grant of a
fee of land, and will not carry riparian ownership or the right
to use and occupy beyond its limits. Perley v. CJiancUer, 6
Mass., 454. Nothing more passed by this grant than would
have been acquired if the right of way had been taken by
legal process with the same description of the land taken.
Redfield on Railways, 105.

Seeley and Child, for the respondents, cited Simons v.
French, 25 Conn., 346 ; Church v. Meeker, 34 id., 422 ; Mayr
hew V. Norton, 17 Pick., 857 ; Green v. Chelsea, 24 id., 71 ;
Peck V. Lockwood, 5 Day, 22 ; Hast Haven v. Hemingway, 7
Conn., 202 ; Bushnell v. Proprietors of Ore Bed, 31 id., 160;
Saltonstall v. Proprietors of Long Wharf, 7 Cush., 201 ;
Harlow v. Fisk, 12 id., 802 ; Boane v. WilcuU, 6 Gray, 328 ;
Commonwealth v. City of Roxbwry, 9 id., 451, 524; Niles v.
Patch, 13 id., 254, 257 ; Partridge v. Luce, 36 Maine, 16.

Sewiour, J. Tlie question in dispute between these parties
is whether the defendants' right of way for their railroad
covers the ground on which certain structures were erected
by the plaintiflF, which structures the defendants have removed
as interfering with the right of way claimed by them.

The case depends upon the construction and eflFect of a
deed, set forth at length in the finding of facts, made by the
plaintiflF 's grantor to the defendants ; so much of the deed
as is particularly applicable to the question under considei*a-
tion being that part which describes the land over which the
right of way is granted, as " extending from the harbor on
tlje west to the land of William H. Noble on the east." At
the time this grant was made the defendants' road had been
surveyed and located and the map of the road as thus located
is referred to in the grant. The road thus mapped continues
westerly across the harbor of the same width as on the plain-



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OCTOBER TERM, 1870. 891

Lockwood V, N. York & N. Haven R. R. Co.

tiflF's land. The structures above mentioned are within the
limits of the road as thus surveyed, but are on what at the
date of the deed were flats between high and low water mark.
The plaintifif has reclaimed a portion of these flats and erected
file structures, claiming that the right of way granted by the
deed extends only to high water mark as high water mark
was at the date of the deed, and that as owner of the fee he
may lawfully reclaim the flats between high and low water
mark, and that he may hold and occupy these reclaimed prem-
ises unincumbered of any right of way in the defendants,
except so far as the defendants have by actual occupation
acquired a right by possession and user.

The plaintiff is undoubtedly right in the claim that in Con-
necticut tlie owners of land bounded on a harbor own only to
high water mark, and that whatever rights such owners have
of reclaiming the shore are mere franchises. When however
such reclamations are made the reclaimed portions in general
become integral parts of the owners' adjoining lands. By
means of sucji reclamations the line of high water mark is
changed and carried into the harbor, and the owners' lands
have gained the reclaimed shore by accretion ; the principles
governing the case being the same as those which prevail
where the sea recedes gradually by accession of soil to the
land.

If the grant had been in terms of a right of way to and
from the harbor the grantees would be entitled to come to
the harbor, over whatever intervening accessions of soil might
accrue between high and low water mark. If the line of
high water mark should be changed by natural or by artifi-
cial causes the rights of way would follow the changed line
of the harbor, and this deed in connection with the map
shows that the object of the deed was to enable the grantees
to reach the harbor and by means of the right of way therein
gmnted to connect their road on the east with the harbor
and their road across the harbor on the west. The defendants
by their charter had received from the state the general right
to cross the public waters, and under this right so conferred
and under the rights conferred by the deed in question the



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892 FAIRFIELD COUNTY.

State V. Taff.

defendants have constructed their railroad and bridge and
have without objection occupied so much of the surveyed way
as they have had occasion to use. It is true that the actual
occupation of the defendants has not extended to the place
where the structures in dispute were placed, but we think
their rights extend to the harbor along the entire water
front of the land described in the deed, and that the map re-
ferred to truly marks the limits of the defendants' rights, and
that the plaintiff may not lawfully within those limits do any
act interfering with or interrupting the defendants' right of
way.

We therefore advise that judgment be rendered for the
defendants.



In this opinion the other judges concurred*



^



State vs. Henby Tapp.

The selectmen of a town laid out a highway, and made thdr report to ft town
meeting, which passed a vote accepting the highway, but the action of the
town was inoperative because no notice of such action was given in the wani*
ing of the meeting. In a prosecution for a nuisance upon the highway the
attorney for the state, for the purpose of proving the legal existence of the
highway either by laying out or by dedication, offered in evidence the pro*-
oeedings of the selectmen and the town, to which the defendant objected. The
eooTt admitted the evidence, but afterwards charged the jury that they could
examine the call for the meeting and if they should find that no notice was
given of any action of the town with regard to the laying out or dedication
of such highway, then the proceedings would be inoperative with regard to
Boch laymg out or dedication. Held that, though the proceedings of the town
should have been excluded as evidence, yet under the charge the defendant
could have sustained no injury by their admission, and a new trial should not
be granted in his favor.

The court also charged that an original dedication of luid fbr a highway may
be inferred as matter of law, and that where land has been thrown open to
the public for a time beyond memoiy, and the public have during all the time
TUed it as a public highway, the presumption of an original dedicatioii ii



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OCTOBER TERM, 1870. 898

State V. Taff.

almofit irresistible ; and that if the jury were satisfied that the land had been
clearly and intentionally dedicated by the owner as a pnblic highway, the use
of it as a highway by the public for a period of six or eight years would be a
sufficient acceptance. Held — that in the language used there was a lack of
clear discrimination between the question of dedication as one of fact and the
question as one of law, and that great care should be taken to aroid the use
of language open to possible misconstruction in such cases, but that, taking
the whole charge together, the juiy could not be supposed to have been misled
in the matter.
The town had voted, at a town meeting in the year 1677, that the land over
which the way in question ran should " lie common and not be used for any
other purpose without the consent of every individual proprietor." Held — 1.
That if die land belonged to the original proprietors and not to the town,
the vote was inoperative. 2. That if the land belonged to the town the vote
could not estop the town from afterwards claiming the land and dedicating it
to pnblic use as a highway. 3. That the use of the land as a common could
not be regarded as excluding all inference of a dedication of the land to the
public for a highway arising from the public use of the same as a highway.

Complaint by a grandjuror to a justice of the peace, charg-
ing the defendant with maintaining a common nuisance upon
a public highway in the town of Stamford by placing a build-
ing thereon by which the highway was obstructed ; appealed
by the defendant to the Superior Court, and tried to the jury,
on the plea of not guilty, before Minor ^ J.



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