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Upon the trial the attorney for the state, to prove the ex-
istence of the highway in question, offered in evidence a
copy of the town records of the town of Stamford, purporting
to be a survey, description, and lay-out of a highway by the
selectmen of the town in 1855 at the place in question, which
was upon and over uninclosed land adjoining Stamford harbor,
together with a copy of the records of the annual town meet-
ing held in Stamford in October, 1855, showing that at the
meeting a vote was passed accepting the laying out of the
highway ; but the attorney did not offer the call of the meet-
ing in evidence, and it did not appear by the copy of the
records, nor in any other way, that the owners of the land
through which the highway was claimed to have been laid
out were notified to be present, or were present, when the
lay-out was made, nor that the damages done to such owners
were in any way agreed upon or ascertained, or satisfaction
made therefor ; and for these reasons the defendant objected

Vol. XXXVII. — 50



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894 FAIRFIELD COUNTY.



State V. Taff.



to the admission of the evidence. He furthermore offered to
show that the call of the town meeting contained no reference
to the matters aforesaid, but the attorney for the state in the
presence of the court and jury admitted the fact to be so,

Tlie attorney for the state claimed that the objections made
were immaterial, on the ground that the town was the lawful
owner of the land in question, which the defendant denied.

The attorney also clauned that if the highway was not
lawfully laid out by this action of the selectmen and town, it
had nevertheless become a lawful highway by a dedication of
the land by the town to the public use as a highway by the
same proceedings, and by an acceptance thereof by the pubUc,
and offered the copy of the lay-out and record in evidence
for the further purpose of showing such dedication. The
defendant objected to the evidence when offered for this pur-
pose, for the same reasons as before, and also because, as he
claimed, the town was not the owner of the land. The court
admitted the evidence, but charged the jury " that unless the
town meeting was called for that purpose the lay-out could
not be lawfully accepted, and that unless the meetuig was
called for the purpose it could not lawfully dedicate land to
the public use for a highway, and that the jury might exam-
ine the call for the meeting, which would be before them,
and if thty should find that it was not called for the pur-
pose of accepting the highway, then the action of the town
meeting in accepting the highway was illegal and void, and
if it was not called for the purpose of dedicating the high-
way to the public, then there was and could be no legal
dedication of the highway by the meeting."

To show that the title to the land in question, and the
original title to all the lands embraced in the township, was
in the town of Stamford, the attorney for the state offered in
evidence a large amount of documentary and historical proof,
which in the view of the case taken by the court it is not
necessary to state, to the admission of all which for the pur-
pose of showing that the town of Stamford had title to the
land in question, the defendant objected, but the court ad-
mitted it. *



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OCTOBER TERM, 1870. 395

State V, Taff.

The defendant claimed that the original title to all the
common and undivided lands in Stamford, including the land
in question, was vested in the Proprietors of Common and
Undivided Land, and laid in a large amount of documentary
evidence not necessary to be stated, and asked the court to
charge the jury that the evidence so laid in showed that the
title was not in the town of Stamford, but was vested in the
Proprietors.

Tlie court did not so charge the jury, but instructed them,
jpro/orwrf," that the title to the common and undivided lands
in the town of Stamford was by virtue of the original deeds
from the Indian proprietors and of the patent from the state
vested in the town of Stamford.'*

The attorney for the state introduced evidence to prove the
existence of an old traveled path over the same tract of land,
commencing at the eastern terminus of the present alleged
highway, and running in a westwardly course to the road
leading from Stamford to Old Greenwich, substantially in the
same place as the present alleged highway, and to show that
that old traveled path had been used by the public as a public
highway from the time when the memory of man runneth
not to the contrary down to the present time ; and claimed
from such evidence that there was an ancient dedication by
the owners of the land, for the purposes of a public highway,
of the land used for such traveled path, and an acceptance
by the public ; and also claimed that the town was the owner
of the land in question.

The defendant denied the existence of any ancient highway
at the place in question, and offered evidence to prove, and
claimed that he had proved, that if any such highway ever
existed it was farther to the north than the present alleged
highway, and that the building could have been no obstruction
to the ancient highway, and that the part of the ancient
highway westward of the dwelling-house had been inclosed
by the selectmen of the town, or under their direction, as a
part of a park or common in 1855, or shortly thereafter, and
had remained inclosed and been disused as a highway since
that time.



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893 FAIRFIELD COUNTY. '

State 9. Taff.

r And the defendant claimed, anil asked the court to charge
the jury, that no dedication could be inferred against the
town,- and that if there had been or could be an ancient high-
way by dedication where the attorney for the state claimed
that it was, the disuse and inclosure thereof at the time and
in the manner stated, with an entire cessation of the travel
thereon since, in connection with the use of another alleged
highway in lieu thereof, was sufficient evidence of the aban-
donment of the original higliway by the public, and that, at
any rate, if the jury should fail to find the present alleged
highway to be a lawful highway, the defendant could not be
found guilty of an obstruction to the ancient highway, when
the same was so inclosed tliat it could not be used and was
not used by the public.

The defendant also offered in evidence the following vote
of the town, passed in a town meeting held on the 1st day
of February, 1677, which it was admitted had reference to
the land in question : " 1 Feb. 1677. Voted, That all that
land from the bridge by the mill unto the brook commonly
called Hardy's Hole, to ye cart path west and ye river east,
shall lye comon, not to be disposed, nor any part of it, to any
other use without the consent of every individual proprietor."
Tlie defendant claimed to the jury that this vote was proof
of the purpose to which the land had been originally set
apart by the proprietors and that it had so remained, and he
claimed, and asked the court to charge the jury, tliat the vote
estopped the town of Stamford from claiming any title or
interest in the land, or in any way controlling the same, and
also repelled any inference that might otherwise be drawn
of a dedication thereof as a highway, and that, if the jury
should find that this was the origin of the use of the land by
the public, since they had no right to infer a dedication to a
purpose different from that so proved, the town was thereby
estopped from dedicating the> land to the public use as a
highway ; and that, in order to find a dedication to the public
use as a highway, they must find proof of such facts as
showed a clear intent on the part of the owners of the soil
to so dedicate the same, and that they would not be justified



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OCTOBER TEEM, 1870. 897

State t;. Taff.

in finding such intent from the mere use of the land by the
public in traveling over it, especially if, as was here claimed,
there was evidence to repel any presimiption of such intent.

Tlie court, after stating the various clauns of the parties,
charged the jury as follows :

"A public highway may be created by dedication and ac-
ceptance. The question of dedication is one of intent. If
the owners of the land in question clearly intended to dedi-
cate it to the public as a highway, and did so in fact dedicate
it and throw it open to public use, and the general public
have accepted it, that is, have used it for a great number of
years, and now use it as a public highway, and the same is
of common convenience and necessity, then it is a public
highway ; and a town being the owner of land, can, as well
as any otlier owner, dedicate the same as a public highway.

" If the juiy are satisfied that the premises in question
were clearly and intentionally dedicated by the owners thereof
as a public highway, then the use thereof as a public highway
by the general public, for a period of six or eight years, will
be a sufficient acceptance.

''An original dedication may be inferred as matter of law.
Where land has been thrown open to the public for a great
number of years, for a time whereof the memory of man
runneth not to the contrary, and the general public have,
during all of that time, used the same as a public highway,
the presumption of an original dedication is ahnost irresisti-
ble ; and if you are satisfied that, as the attorney for the
state claims, there was an ancient public highway running in
substantially the same place as the present highway, on which
the claimed obstruction stands, and that the same has been
used by the general public as a public highway, then an orig-
inal dedication may be inferred, and you may take into con-
sideration the ancient use of the highway, as well as its use
down to the present time, on the question of its acceptance.

"And if you are satisfied that the premises in question
have been dedicated by the owners thereof to the public to
be used as a public highway, and that the public have ac-
cepted the same, and that it had continued to be a public



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898 FAIRFIELD COUNTY.

State i> Taff.

highway down to the commencement of this action, and
the highway has been obstructed by the building of the ac-
cused, then it will be your duty to bring in a verdict of
guilty."

In reference to said town vote the court told the jury " that
as the town were the owners of the land in question they
were not thereby estopped from claiming any title or interest
in the land, or from dedicating the same as a highway, and
that the vote would not repel an inference of dedication that
might be properly drawn from other testimony, but that the
jury might properly consider the vote as to the question of
interest on the part of the town in so dedicating the premises
as a public highway."

The jury found the defendant guilty, and he moved for a
new trial for error in the rulings and charge of tlie court.'

Chirtis and Woodward^ in support of tlie motion.

Olmsteadj with whom was Whitey contra.

Park, J. The public had been in the quiet and uninter-
rupted use of the way in question as a public highway for a
period of nearly fourteen years next preceding the conmience-
ment of proceedings against the defendant, and their user
appears in tlie case without any explanation on tlie part of
the owner tending to rebut the inference of a dedication of the
way to public use as a highway. Evidence arising from these
facts was mainly relied upon by the state, in the court below,
to prove the existence of the highway in question by dedica-
tion when the defendant committed the acts complained of.

It was conceded on tlie trial that the way was not legally
laid out by the town as a highway, although it attempted so to
do in 1855. During that year the selectmen of the town
laid out the way, and their action was approved and ratified
in town meeting, but the warning for the meeting did not
state that the voters of the town would be called upon to act
on the matter, and the doings of the town meeting were there-
fore inoperative. The counsel for the state admitted these



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OCTOBER TERM, 1870. 899

State V. Taff.

facts in the presence of the court when objection to the evi-
dence was made, and therefore the technical error committed
by the court in allowing the action of the town meeting to go
to the jury to be considered by them in connection with the
warning, after stating to them that it was necessary in order
to establish a legal lay-out of the way that the warning of the
meeting should contain a notification of such proposed action,
could not have injured the defendant. Tlie court ought to
have excluded the evidence from the consideration of the
jury, but we are satisfied that the action of the court under
the circumstances must have been harmless, and therefore a
new trial should not be advised on account of the technical
error of the court in this particular.

The action of the selectmen and the doings of tlie town
upon this subject were further offered in evidence to show a
dedication of tlie way to public use as a highway ; not that
the town voted directly to so dedicate the way, but that their
action in accepting the doings of tlie selectmen in laying out
the way had that effect. The charge of the court upon this
point was favorable to the defendant, provided the town was
the owner of the land over which the way was attempted to
be laid.

It is manifest that the town supposed it was the owner
of the land, for when the selectmen laid out the way they
cited no parties before them to be heard in relation to the
matter ; neither did they appraise any land damages to any
one on account of the way, but they acted precisely as they
would have acted if the town was the owner of the land.

Tlie state claimed upon the trial that the town was the
owner and offered record evidence to that effect, and the
court decided the question, pro formdy in favor of the state ;
but whether the claim of the state and the decision of the
coui-t were correct upon this question we deem it unnecessary
to determine, for we think it clearly appears that the jury
must have found that the way was dedicated to the public
for a highway by whomsoever was the owner ; and therefore
the decision of the court upon this question could not have
injured the defendant, whether the town was the owner of the



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400 FAIRFIELD COUNTY.

State 9. Taff.

land or not. If the ownership of the land was in the propri-
etors of the common and imdivided lands of the town, a9 the
defendant claimed, it is manifest that the evidence of a dedi-
cation of the way by them to public use as a highway, arising
from tlie long continued and uninterrupted use of the same
by the public as a highway, without any explanation of the
use consistent with non-dedication of the same, was as stax)ng
and conclusive that they had so dedicated the way, as it
would have been that the town had so done provided the land
had belonged to the town. We tliink it therefore a matter
of no importance in this case whether the town or the pro-
prietors were the owners of the land, for the jury must have
found, under the charge of the court upon this subject, that
the land was dedicated to the public for the purposes of a
highway by whichever of these parties may have been the
owner.

We are not called upon to consider the weight of the evi-
dence. It was clearly admissible, and important to be con-
sidered by the jury upon the question of dedication, but
whether it was strong enough to justify the jury in coming to
the conclusion they did is no part of the present inquiry.

But it is said that the court misdirected the jury in the
charge upon the question of dedication. That part of the
charge complained of is as follows : ^' Where land has been
thrown open to the public for a great number of years, for a
time whereof the memory of man runneth not to the contrary,
and the general public have during all of that time used the
same as a public highway, the presumption of an original
dedication is almost irresistible ; and if you are satisfied, as
the attorney for the state claims, that there was an ancient
public highway running in substantially the same place as the
present highway, on which the claimed obstruction stands,
and that the same has been used by the general public as a
public highway, then an original dedication may be inferred,"
&c.

It is said that the expression, ^' the pi*e8umption of an orig-
inal dedication is almost irresistible," gave the jury to under-
stand that this was so as a matter of law and not as a matter



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OCTOBER TERM, 1870. 401

State V. Taff.

of fact. But we think the jury must have understood the
court to mean by the expression that the force of the evidence
on the question of fact for them to consider was almost irre-
sistible in the opmion of the court, for in the latter part of
the charge quoted, and in other clauses of the general charge,
the court expressly submits to the jury the question of dedi-
cation as a question of fact. We see in this objection no
substantial cause for a new trial, although the language of the
court was doubtless unfortunate. Great care should be taken
in submitting questions of fact for the consideration of the
jury. They should be clearly stated, so as not to be open to
objections of this character.

Great reliance seems to be placed by the defendant for a
new trial upon the vote of the town, passed in town meeting
on the first day of February, 1677, in which it is declared
that the land over which the highway in question runs shall
lie common, and shall not be used for any other pui*pose
without the consent of every individual proprietor. It is said
that the vote estops the town from claiming any interest in
the land, and repels any inference of a dedication thereof as
a highway on the part of the town or of the proprietors.

It is difficult to see what foundation there is for this claim,
so far as it applies to the case tried by the court below.

If the land belonged to the town, the inference of an ac-
knowledgment by the vote that the land belonged to the
proprietors could not estop the town from subsequently
claiming the land and dedicating it to public use as a high-
way. If the land belonged to the proprietors, the vote of the
town was nugatory. On a question of ownership, whether in
the town or proprietors, the vote might be important evidence
for the proprietors ; but we have seen that that question is
not necessary to be determined in this case. Tlie use of
land as a public common is very different from the use of a
way as a public highway. The uses have but little in com-
mon, and we think the court did not err in refusing to charge
the jury as requested by the defendant, that as a matter of
law the use of the land as a common rebutted all inference
of a dedication of the way to the public for the purposes of a

Vol. XXXVII. — 51



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402 FAIRFIELD COUNTY.

Buckinghxim v. Jacques.

highway, aiising from the use of the same as a highway.
The question was one of fact for the jury to determine from
all the facts and circumstances of the case.

On tlie whole we are satisfied that a new trial ought not to
be advised.

In this opinion the other judges concurred.*



John A. Buckingham and wipe vs. Amos J. Jacques.

Under the statute with regard to the distribution of ancestral estate, the " ances-
tor*' intended is the one from whom the estate immediately, and not the one
from whom it remotely, descended.

Amicable submission to the Superior Court in Fairfield
comity upon an agreed statement of facts.

Certain real estate in controversy in the suit belonged in fee
in the year 1825 to Samuel Burr, who died in that year leaving
all his estate to his three daughters, Lucretia Weeks, Clarissa
Ells, and Abigail Nichols. Lucretia Weeks acquired by convey-
ance the shares of the two others, and afterwards died, leaving
one daughter, Ann, who died leaving aeon, Everitt Weeks, who
soon after died without issue. Clarissa Ells died, leaving one
daughter who died without issue. Abigail Nichols died, leav-
ing one daughter, Georgiana A. Buckingham, who with her
husband is the plaintiff in the case. The land in question
was hiherited by Ann Weeks from her mother Lucretia Weeks,
and from Ann Weeks it descended to her son, who died in-
testate, and as before stated witliout issue. Tlie land in
question being ancestral estate, the question was whether
under the statute with regard to the distribution of ancestral
estate Ann Weeks, tlie nearer ancestor, or Lucretia Weeks,
the remoter ancestor, was to be regarded as the ancestor

* This case and the remaining cases of the term were heard at an adjcmmed
session, at which Judge Paboeb of the Superior Court sat in the place of Judge
FosTEB, who was absent.



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OCTOBER TERM, 1870. 403



Backingham v. Jacqaes.



whose " brothers and sisters or their legal representatives"
were to take the property ; tlie plamtiff Georgiana being the
sole representative of the remoter, ancestor, and the defend-
ant having acquired by conveyance the rights of the repre-
sentatives of the nearer ancestor. The case was reserved for
the advice of this court. The statute is given in full in the
opinion.

E. Rally for the plaintifis, cited Bell v. Dozier, 1 Hawks,
833 ; Burgwyn v. Devereux^ 1 Ired. (Law), 683 ; Wilkerson
v. Bracken, 2 id., 315, 320 ; 4 Kent. Com., 450, 452 ; 2 Bla.
Com., 241.

Bearddey for the defendant, cited Gardner v. Collins j 2
Peters, 58 ; Curren v. Taylor, 19 Ohio, 36 ; Lessee of Prickett
Y.Parker, 3 Ohio S. R., 394; Valentine v. WetheriU^ 31
Barb., 655 ; Eyatt v. Pugsley, 33 id., 373.

Seymour, J. We are called upon in this suit to give a
construction to that part of the statute of distribution which
relates to ancestral estate. The language of the statute is as
follows :

"All the real estate of the intestate which came to him by
descent, gift or devise from his parent, ancestor, or other
kindred, shall belong equally to tlie brothers and sisters of
the intestate and those who legally represent them of the
blood of the person or ancestor from whom such estate came
or descended ; and in case there be no brothers or sisters or
legal representatives as aforesaid, then equally to the children
of such person or ancestor and those who legally represent
them ; and if there be no such children or representatives,
then equally to the brothers and sisters of such person or
ancestor and those who legally represent them ; and if there
be none such, then it shall be set off and divided in the same
manner as other real estate."

The intestate, Everitt Weeks, died in 1840, unmarried,
without issue and without brothers or sisters or representa-
tives of them. Tlie real estate in controversy, situate in
Bridgeport, was owned by him in fee at the time of his death.



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404 PAmPIELD COUNTY.

BttokiiigiMiii 9. Jaoqnet.

He inherited it from his mother Ami, and she inherited it
from her mother Lucretia. On his death his father, bang
next of kin to his son, and claiming as his heir, conveyed
the property to the defendant, who is now in possession. The
plaintiff, Mrs. Buckingham, claims that on the death of Ever-
itt Weeks the title vested in her. She is the daughter and
only surviving representative of Abigail, a sister of the said
Lucretia. The whole question between the parties resolves
itself into this : — from whom, within the meaning of the
statute, did the estate come by descent to the intestate, Everitt
Weeks ? The plaintiff says it came to him from his grand-
mother Lucretia, atid if it did, then it now belongs by the
express words of the statute to Mrs. Buckingham as the rep-
resentative of her mother, sister of Lucretia. The defendant
says it came to the intestate from his mother, and if it did,
then by the expi*ess words of the statute, there being no
brothers or sisters of her or representatives of them, the
estate is to be set off and divided in the same manner as other
estate not ancestral.

It is clear that the statute provides only for the relatives
of the one ancestor from whom the estate came. It makes
no provision for the relatives of more than one such ancestor,
and either the mother is that ancestor in exclusion of the
grandmother or the grandmother is that ancestor in exclu-
sion of the mother ; so that if we decide tliat the estate came
from the grandmother we do necessarily decide that it did



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