Connecticut. Supreme Court of Errors.

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of the state from Sandy Hook to Lyons Point. Welles, J.,
however, in his opinion suggested two modes of defining the
line indicated by the words in the statute, one of which he
thought should be adopted. " The first is to start from Sandy
Hook and run the line by straight courses so as to include
the islands mentioned, making with a direct straight line frt>m
Sandy Hook to Lyons Point an irregular figure, the exterior
of which shall consist wholly of straight lines with angles
of unequal quantities, and with the vertex of each angle
pointing outward from the interior of tiie figure. This would
run the northern line of the figure or tract from some
point on Fisher's Island to Lyons Point in a direct course.
The second is to run the line directly from Sandy Hook



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SUPPLEMENT. 618



Keyser V. Coe.



to'the pUce of beginning, in tlie mouth of By ram river (Lyons
Point), diverging from a direct course so far, and so far only,
as is necessary to include the islands, etc., mentioned, and
as soon as that object is attained to return to the original
straight direction. By this mode it is intended to include
tiie whole of the Sound lying east of the first mentioned
direct line from Sandy Hook to Lyons Point, and consequently
ttte place where the offence was committed. I am inclined
to adopt the latter of these modes." The learned judge
then states his reasons for that preference, which it is not
necessary for us to cite here. By an examination ot the map
of the territory and Sound, in connection with the statute
and the opinion just cited, it will be seen that a straight line
from Fisher's Island to Lyons Point is the furthermost north-
em limit assigned to the boundary of New York in the Sound
upon any construction of her own statute. This line would
leave Goose Island within the state of Connecticut.

In the case of Mahler v. The Transportation Company^ (36
N. York B., 352,) the same subject is discussed by Porter, J.
That case arose out of a collision between vessels in the
Sound " between tlie shores ot New York and west of tlie
Connecticut boundary." Bot the discussion in that case
sheds no light on the question now before us, and lends no
support to tlie claim set up by the defendant here that Goose
Island is within the limits of New York. In both the cases
which we have cited, as well as in that of the sloop Elizabeth,
(Paine's C. C. R., vol. 2, p. 10,) the question was, what war
ters of Long Island Sound were included within the territorial
limits of New York, and therefore subject to her exclusive
civil and criminal jurisdiction. The titles to no islands were
in dispute, though in tracing the boundary of the state over
the waters of the Sound, of course the islands would be in-
cluded or excluded as the case might be. But, an we have
already seen, no Ime was suggested which would include
Goose Island within the territory oi New York.

It will be noticed that the statute of New York in describ-
ing the boundary line includes within it not only Long Island,
but also ^^ the Isle of Wight, now called Gktrdiner's Island,



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614 SUPPLEMENT.



Keyaer v. Ooe.



Fisher's Island, Shelter Island, Robin's Island, Bam Islandj
and the Gull Islands." Some confusion has at times arisen
out of the fact that Ram Island was thus included in that
act, as it was also in the act fixing the limits of Suffolk county.
(Rev. Stat. N. Y., 6th ed., vol. 1, p. 129.) Now there are
three islands known by the name of "Ram Island," one in
Gardiner's Bay a little soutli of Gardiner's Island, one just at
the mouth of the Mystic river between Fisher's Island and
the Connecticut shore, sometimes called Mystic Island, and a
third opposite the town of Norwalk and a little to the west-
ward of Goose Island. It is obvious that the Ram Island
referred to in the New York statutes is the one in Gardiner's
Bay. Both acts name this island in immediate connection
with others in the vicinity of the east end of Long Island. It
cannot be said -that some other Ram Island than that in Gard-
iner's Bay was meant, because that is located in waters con-
fessedly within the limits of the state of New York and Suf-
folk county ; for Shelter Island and Robin's Island are both
named, and are both still more land-locked than Ram Island.
Robin's Island is in Great Peconic Bay, a sheet of water
almost entirely inclosed by the main-land of Long Island.
We conclude therefore that the Ram Island mentioned in the
statutes referred to is the one in Gardiner's Bay, instead of
either the one at the mouth of Mystic river or that off Norwalk,
both of which are very near the Connecticut shore. This
point is not very material, but we have alluded to it to correct
an error which has sometimes arisen by confounding the Ram
Island in (Jardiner's Bay with one or the other of the two of
the same name, which lie far distant, and nortli of any bound-
ary line ever claimed by New York sinc^ she became a State.
From these views it will be seen that the fact set up by the
defendant in hid plea to the jurisdiction of this court is un-
supported by proof of any kind, and his plea therefore fails
and must be overruled. Goose Island, where the alleged
nuisance has been created by the defendant, is within the
territorial limits of the state of Connecticut, and therefore
within this judicial district and the jurisdiction of this court.



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SUPPLEMENT. 615



Landolt r. City of Norwich.



r. E, DooUttUj with whom were A. B. Woodward and L.
F. Beers J for the petitioner.

L. Warner, Jr., with whom was O. S. WatrouSy for the re-
spondent.



^— •»



Landolt vs. City op Norwich.

How far a city is liable for ice on a side-walk, and what is reasonable care in le-
movingit.

Case, for an injury to the plaintiff from falling on ice upon
a sidewalk of the defendant city. Tried in the Superior
Court for New London County at its December term, 1871,
holden at Norwich, upon the general issue, closed to the
court, before Seymour, J, The case is sufficiently stated in
the opinion.

Wait, EoJhrooh and Swan, for the plaintiff.

Hahey and Pratt, for the defendants.

Sbymodb, J. The plaintiff claims damages for an injury
suffered by him on Sunday, January 8th, 1871, by reason, as
he says, of a defective sidewalk in the city. About 4 o'clock
in the afternoon of that day, while walking along Union
street, he slipped and fell, receiving an injury of some severity.
It is clear that the ice was the cause of the accident, and the
only question in the case is, whether the condition of the
sidewalk was such as under the circumstances to subject the
city to damages.

The rule of law on the subject, as recently settled by the
Court of Errors, is, that some duties may devolve on cities
and towns in regard to ice, and that what those duties are



I 87 616(

1 72 enl



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616 SUPPLEMENT.



Landolt o. City of Norwich.



cannot be definitely defined by law^ bnt must in each case
depend upon all the circumstances of it ; the general rule
being that toiKcns and cities must use reasonable care to make
their streets safe for public travely whether on foot or in car-
riages.

The facts are briefly these : The street is one of consider-
able public travel. The plaintiff was walking upon a well-
constructed pavement in front of premises occupied by Mr.
Greenwood. The lands adjoining this street are such-as to
require more than ordinary care to prevent the water from
overflowing the sidewalk, and prior to the winter when the
accident happened the overflow had been troublesome ; but
in 1870 underdrains had been made at considerable expense,
by which most of the water was thoroughly carried off. At
about the place where the accident happened the drive-way
of Mr. Nichols crosses the pavement, and water running along
the sides of the drive-way had been frozen. There was no
complaint on the part of the plaintiff that the pavement was
not properly constructed in itself, or in reference to the ad-
joining grounds. On the other hand everything seems to
have been done that could reasonably be required in making
the pavement safe and convenient.

Friday, the 6th, had been rainy. Saturday was pleasant
but cold, the thermometer at 1 P. M. standing at 34 degrees.
Sunday was fair in the forenoon, but between noon and 4 P. M.
about half an inch of snow fell and covered the ice on which
the plaintiff slipped. No one testified to having seen any ice
on tlie pavement on Friday. Mr.^ Nichols, who seems to have
had means of knowledge, testifies with confidence that there
was not a particle of ice there on that day. He says that on
Sunday morning he first noticed it, and he describes it as a
thin scale of ice about a yard square, which appeared to be
caused by water that during the night or perhaps the after-
noon of Saturday had overflowed the surface drain of the
drive-way. I am inclined to think Mr. Nichols's account sub-
stantially correct. The plaintiff, indeed, and the gentleman
who was with him at the time he fell, think the patch of ice
was larger and thicker than described by Mr. Nichols. But



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SUPPLEMENT. 617



! Landolt v. City of Norwich.



their attention was absorbed by the hurt which the plaintiff
had received, and by reason of the ground being covered with
snow their means of knowledge were limited.

The question then is, whether on these facts neglect is
fairly imputable to the city. Could it reasonably be expected
and required that this piece of ice should receive the attention
of the street commissioner during the time it was on the walk ?

The plaintiff claims that by simply casting ashes or sand
on the place it would have been made safe, and that the city
ought to be on the watch for such dangerous places and apply
the proper and easy remedy without delay.

The defendants on the other hand insist that particles of
ice like that which caused this accident are ordinarily not dan-
gerous ; that it probably did not extend across the sidewalk ;
that room was left for safe walking without going upon it ; and
that had it not been for the snow which was falling, and
which hid the ice from the plaintiff's view, he would have
passed in safety. The defendants also insist that the public
authorities had no notice of the condition of the sidewalk,
and that it would be unreasonable to require of them that
they should be constantly on the watch for such places of
slight peril, and apply immediate remedy to them.

Such patches of ice on sidewalks are abundant during the
winter weather, formed by rain and melting snow, and leakage
of conductors, and imperfect drainage, and the ice so formed
is subject to rapid change of place and condition. The re-
moval of it, or covering it with sand and ashes on all the
sidewalks of the city, is a matter requiring time and involv-
ing no trifling expense. Constant repetitions of tlie labor
are usually needed every winter. During the past week, on
three occasions, the walks here were no sooner cleared after a
storm than a succeeding storm again covered the earth with
snow and ice.

In our country villages snow and ice are generally suffered
to remain as they are left by the laws of nature. Volunteer
forces of public spirited citizens sometimes attend to places
of more than usual peril or difficulty, but the selectmen, as
such, seldom interfere. The pedestrian in the country is

Vol. XXXVII. — 78



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618 SUPPLEMENT.



Landolt v. Citjr of Norwich.



rarely in the winter exempt from perils by ice, bnt with good
heed ho seldom meets with an accident. The peril is not such
as to warrant the great expense in a sparsely inhabited Til-
lage, of attempting a preventive or a remedy ; but in cities
the aggregate of peril by reason of the numbers exposed to
it becomes considerable, and the means of meeting the need-
ful expense are ample ; and hence in cities the public as such
properly undertake the duty of doing the best they can to
provide against the dangers to travel which winter in this
climate necessarily brings with it. The city of Norwich has
entered on the performance of this duty, and must be held to
perform it with ordinary diligence and care. Well cleared
pavements are justly felt to be convenient and necessary, and
I would not under-estimate the importance of due attention
to their safety, especially here where the peril of slipping is
greatly increased by the grad6 of the streets.

It cannot, however, be the rule of duty that all the side-
walks shall at all times be kept absolutely free from ice.
Such a rule would involve expense disproportioned to the
object to be accomplished. The street commissioner testifies
that he first attends to the front of public buildings and to
public squares and places, and to the front of vacant lots,
trusting that, by force of a city ordinance to that effect, indi-
vidual citizens will promptly attend to the pavements adjacent
to their occupied premises ; the commissioner himself taking,
however, a general oversight of the whole city, and applying
tlie remedy in case of an occupant's neglect ; and he probably
does, what was not distinctly stated by him, direct his early
and more particular attention to places where travel is most
concentrated, as in the approaches to the post-office, depot,
market places, and the like.

The course adopted by the commissioner seems to be cor-
rect and reasonable, and to have* been faithfully executed;
and in view of all the facts and considerations applicable to
the subject, I. think the city is not chargeable with neglect
in respect to the particular piece of ice in question. Such
spots will escape the most careful vigilance for at least a few-
days. It is not reasonable to expect that every square yard



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SUPPLEMENT. 619



Roles of Ckmrt.



of pavement in the city will be reached and cared for hy the
comniissioner. No one has testified that he saw the ice and
regarded it as dangerous. Mr. Nichols, the only witness who
testified to having seen it at all, evidently considered it as
requiring no immediate attention.

Under these circumstances I cannot say the city is in fault,
and while I regret the injury the plaintiff suffered, must find
the issue for the defendants.



RULES



WTTH REGARD TO THE PREPARATION OP OASES FOR THE SUPREMB
COURT OF ERRORS.

Adopted at the October Term, New London County, 1870.



I.

The questions intended for revision by the Supreme Court
must* be questions of law. The court will not revise any
question of fact, whether it be the principal fact or issue in
the case, or any otlier.

n.

Those questions must appear on the record, either, first, in
the finding of the court, or second, in a bill of exceptions, or
thii-d, in a motion for a new trial. Bills of exception how-
ever are not favored, and the question should appear in the
finding of the court, or in a motion for a new trial.

III.

It must further appear on the record that the question was
disthictly raised as a question of law on the trial below, and
was decided by the court adversely.

IV.

The statutory motion in error is a shoii; substitute for a
writ of error, and is of the same nature, and is a process and
not part of the record. Errors existing in the record may



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'620 APPENDIX.



Obittuuy notice of Judge Dntton.



be assigned, that is, pointed out, in it, but thej cannot be
raised in it by allegations in relation to what took place at
the trial. What is called the general assignment of error,
that the judgment should have been the other way, is not nec-
essarily an assignment of errors in law, and cannot be re-
garded. A special assignment of each particular error
should be made.

It is apparent from the foregoing that when counsel pro^
pose to carry their cases to the Supreme Court, they should
see whether the finding distinctly shows that the questions
of law intended for revision were raised and decided on the
trial. If it does, they may move in error, or file a motion
for a new trial, embodying so much of tlie finding as may be
necessary to show that the questions were raised and decided.
But if it does not clearly appear in the finding that the ques-
tions were, in fact, raised and decided, a motion in error is
not proper and will be fruitless. The question in such a case
should be raised and presented on the record by a motion for
a new trial.



APPENDIX^



OBITUARY NOTICE OF JUDGE BUTTON.*

Henrt Button, late a Jadge of the Supreme Court of Errors and of
the Saperior Court of this state, and a former Chief Magistrate of the
state, died at his residence in the city of New HaTcn on the 2€th day of
April, 1869. A sagacious lawyer, a successful advocate, one of the leaders
of the Connecticut bar, and, later,' an able and honored Judge, it is
eminently fitting that these pages should embody a brief tribute to his
memory.

Judge Button was bom in Watertown, in this state, on the 12th of Feb-
ruary, 1796. His early opportunities for education were limited to the

•Prepared at the request of the Beporter, by Louis H. Bristol, Esq., of tlM
New Haven County bar.



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APPENDIX. 621



Obitoarj notice of Judge Dutton.



advantages ordinarily possessed l^ a farmer's boy, but an eager desire for
self-improrement led him to qualify himself for admission to Yale College^
where he was graduated with honor in 1818.

After gradnation he studied law with the Hon. Boger Minott Sherman,
in Fairfield, at the same time teaching in the village academy in that place.
Subsequently he filled the position of tutor in Yale College for two years,
and in 1823 commenced the practice of his profession at Newtown in
Fairfield County. From that time down to the date of his elevation t9
the bench Judge Dotton's professional life was, in a pre-eminent degree,
an active and laborious one. Associated at the outset of his career with
such men of distinguished ability as Roger M. Sherman, Thaddeus Betts,
Charles Hawley, Beuben Booth, and others who then composed the bar
of Fairfield County, Judge Dutton never doubted his own ultimate suc-
cess. The event justified his anticipation. Entirely devoted to the duties
imposed upon him by his profession, he grew steadily in knowledge, power
and reputation, until he at last became the acknowledged head of the bar
<^ his adopted county.

In 1837 Judge Dutto)? removed from Newtown to Bridgeport. His
life in the latter place was one of great professional activity, as will be
readily seen by a reference to the Connecticut Reports. The purity of
his private life, the eminence of his legal acquirements, and his professional
successes, gave him a deep hold on the confidence of the community, and
he was, in consequence, made the recipient of many public offices ; among
others he held the position of State Attorney for Fairfield Cminty, and on
numerous occasions represented the interests of Bridgeport in the State
legislature.

In 1847 Judge Duttox accepted an invitation from the Corporation
of Yale College to fill the chair of Kent Professor of Law in the Yale Law
School, and thereupon removed to New Haven. In addition to the duties
of his professorship. Judge Dutton continued after his removal to engage
in active practice both in Now Haven and Fairfield Counties, and during
one year acted as Judge of the New Haven County Court He also, dur-
ing the same period prepiU*ed and published his Revision of Swift's Di-
gest, and asnsted in preparing the Revisions and Compilations of our
Statutes in 1849, 1854, and 1866. He also found leisure to devote to po-
litical affairs, and in 1854 was elected Governor of the state by a vote
of the legislature, the people having failed to effect a choice at the pre-
ceding spring election.

In 1861 Judge Dutton was chosen a Judge of the Supreme Court of
Errors, and of the Superior Court, to fill the vacancy occasioned by the
retirement of the late Judge Ellsworth. He remained on the bench as
associate Judge of the Supreme Court until he reached the age of seventy,
upon the 12th of February, 1866. After leaving the bench he devoted his
energies chiefly to duties connected with the Law School, though engaging
V> some extent in general practice, until his death in the spring of 1869.



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J



622 APPENDIX.

OMtnary notice of Judge Datton.

Jndge DuTTON devoted lumielf most earnestly and usidooosly to his
profession, and few men in the state have ever achieved higher distinction
in it Without being a profound student of the law he had a mind well
stored with legal principles, a remarkably extensive and accurate knowl-
edge of adjudged cases, wonderful readiness in their application, great
quickness of perception, much fertility of resource, and a happy audacity
in asserting and maintaining new lines of legal thought which made him
a most formidable antagonist.

As an advocate he possessed great power, nol only in presenting ques*
tions of fact to a jury, but also in the discussion of purely legal questions '
before the court. His devotion to the interests of his clients was unbounded
and no labor was too arduous if he could thereby protect their rights or
secure their success. His mind was eminently a practical one. Trained
by a large and varied experience in the ordinary affairs of life, it discarded
mere theories, and yet was ready to accept of any innovations upon estab-
Hshed usage that approved themselves to his common sense. To his prac-
tical sagacity while a member of the legislature is laigely due that fun-
damental change in our law of evidence permit{pg parties in interest to
testify — an improvement in the law which the state of Connecticut had
the honor to pioneer.

As a Judge he was always courteous, accommodating and prompt in the
despatch of business ; quick to reach conclasions, his mind readily received
new impressions and was not tenacious of an opinion once formed. By
his impartiaHty, intelligence and ability he commended himself in the dis-
charge of his judicial duties to his brethren of the bendi and bar.

To his wordi as a man no tribute need be paid; his character in every
relation of life was most exemplary ; he was everjrwhcre an upright, gen-
erous and kindly hearted man ; be lived an useful and successM life, and,
dying, left an honored name.



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INDEX TO THE THIRTY-SEVENTH YOLUME.



ABANDONED PROPERTY.
BCannre which had accmniilated in a freqnented
pbMM in a public street of a borough, where
* the fee of the street belonged to the borongh,
was raked into heaps bj the plaintiff in the
evening, and left in* that condition, to be car-
ried awBj by him«the next evening. Daring
the forenoon of the next day the iefendant,
Ending the manure in heaps, loaded it into
his cart and carried it awaj. In an action
of trover brought by the plaintiff for the value
of the manure it was held — I. That the ma-
nure was not to be regarded as so incorpo-
rated with the soil as to be real estate, but
was personal property. 2. That it belonged
originally to the owners of the animals that
dropped it, but was to be regarded as aban-
doned by them. S. That feing abandoned
property the first occupant who took it would
nave a right to appropriate it. 4. That after
the plaintiff had added materially to its value
by nis labor in raking it into heaps, he was to
be regarded as entitled to it against any per-
son Imving no title. 5. That he was to bo
allowed a reasonable time to take it away.
6. That twenty-four hours, the time allowed
by statute for the removal of sea-weed gath-
ered into heaps, was not an unreasonable time
to be allowed in such a case. Hasiem v. Lock-
wood, 500

ACCORD AND SATISFACTION.
See Satisfaction.

ACCOUNT fACTION OF.;

1. In actions of account judgment against the
defendant that he do account is not required

. in all cases. By consent of parties auditors
may be appointed without such judgment.
Sliding v. Da^. 427

2. On the trial liefore auditors the parties were
required to furnish each other copies of their
respective dairos, no bill of particulars having
been previously filed by either party. Held
that this proceeding was correct. ib.



2. It is not a sound rule of law that an open
and continuous use of a way for fifteen years
unexplained, is presumed to be under a claim
of right and adverse. ib,

3. The same significance is not to be given to
such a use under all drcumstancee. The con-
dition of the land, whether it lies open and
uncultivated and the passing over it works no



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