Connecticut. Supreme Court of Errors.

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namely five hundred and ninety-one feet, while the plaint-
iffs record title extends only eight rods. That fact however
does not seem to affect the question, as we discover no
claim by the defendants to any right in the flats west of their
west line as described in the deeds, and the plaintiffs title
is not questioned.

We come then to the test question, where is the dividing
line between the parties for eight rods south of Water
street? The question is even narrower that that; for it is
conceded that from Water street it follows the east bank of
the wall to its end — a distance of six rods. The real queS'
tion then is this — in what direction does the line run from
the south end of the wall? The plaintiff claimed that it
was a straight line from Water street, following the course
of the wall uqtil it intersects the parallel line eight rods
from Water street, and that it runs from that point on a
line at right angles to Water street to the channel. The
defendants claimed that the line deflected at the end of the
wall and ran towards the channel at right angles to Water
street from that point. The court sustained the plaintiffs
claim and overruled the defendants'. The distance between
the two lines eight rods from Water street is three feet and
eight inches. The line contended for by the defendants



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148 DECEMBER, 1889.



Ladies' Seamen's Friend Society v. Halstead.



crosses the parallel line just one hundred and sixty-two feet
easterly of the Brown street slip ; and that is the southeast
corner of the plaintiffs property as fixed by the deed to
Rowland.

The two deeds from Daggett and others, one to Rowland,
and one to the trustees of Eli Whitney's estate, are the im-
portant ones. Of these two the former is more specific.
There is very little that is ambiguous or uncertain about
that. The north, south, and west lines are definite as to
courses and distances. The east line is definite as to dis-
tance, and the course for six rods is clearly shown by the
deed to the Whitney trustees — along the east side of the
wall. From the south end of the wall the course only is
uncertain. The uncertainty however is slight, as it is nearly
removed by the Rowland deed, which makes the south line
just one hundred and sixty-two feet long. That makes it
reasonably certain that the east line terminates at a point
one hundred and sixty-two feet east of the Brown street
slip. That construction is consistent with both deeds. The
only criticism that can be made is that the east line is not
perfectly straight. But there is nothing in the deeds neces-
sarily requiring a straight line; while if the east line is
straight it makes the south line three feet and eight inches
longer than the deed requires ; and that is more objection-
able than the slight angle in the east line. Besides, the
point in the parallel line one hundred and sixty-two feet
from the Brown slip is definite and certain, as much so as
any bound or monument could be. It is more reasonable
that such definite boundaries and exact distances should
control an uncertain course than that an uncertain course
should extend distances and remove boundaries. We are
therefore of the opinion that the court eiTcd in so construing
the deed as to make that south line one hundred and sixty-
five feet and eight inches long. We think the line contended
for by the defendants is the coiTect one.

In considering the demands of the deed of Daggett and
others to Rowland, under which the plaintiff claims, and in
giving a construction to it, we have not thought it necessary



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DECEMBER, 1889. 149

Ladies' Seamen's Friend Society v. Halstead.

to give a construction to the deed to the Whitney heirs un-
der which the defendants claim; for the plaintiff must stand
upon its own title, and not upon any want of title in the
defendants.

But if it should be regarded as necessary to determine the
exact location of the western line of the defendants' land,
for the two rods below the end of the wall, then we feel no
hesitation in regarding the deed of Daggett and others to
Rowland as legitimate evidence on the subject. They were
the same grantors who had ten months before conveyed the
east lot to the Whitney heirs. If that conveyance did not
carry their west line to the point now claimed by the defend-
ants, then the land intervening between that line and the
other more eastern one remained the property of those grant-
ors; and when by their deed to Rowland they described
the west line as the Whitney line, they were making an ad-
mission against their own interest, and conceding that that,
which would otherwise be their own property, was the pro-
perty of the Whitney heirs. This admission, in the absence
of all other evidence on the subject, and in the uncertainty
as to the location of that line by the deed to the Whitney
heirs, might be decisive of the point.

But the defendants further claim that their right of wharf-
age commences on Water street at the plaintiffs northeast
comer, and that their west line extends from that point at
right angles with Water street to the channel. That would
cross the parallel line ten feet further west than the corner as
established by the deed. Pursuant to that claim the defend-
ants have actually filled the flats to some extent up to that
line south of the parallel line. Whether they had a right to
do so is the next question in the case.

This claim is based largely on the assumption, which seems
to be taken as conceded, that the filling of the fiats by the
plaintiffs grantors, near Water street, and east of the alleged
line, was an encroachment upon the rights of the defendants'
grantors ; and upon that assumption the argument is urged,
with much force, that a disseizor, by the act of dissiezin, can
acquire no right still further to disseize. But as we under-



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160 DECEMBER, 1889.

Ladies' Seamen's Friend Society v, Halstead.

stand the record, the assumption is without foundation; con-
sequently the argument fails. When the wall or wharf now
on the plaintiff's premises was constructed, both estates were
owned by the same parties; consequently there was and
could have been no disseizin. The plaintiff, and those under
whom it claims, had title, not by adverse possession but by
deed. The deed in each case limits and determines the ex-
tent of the grant. The deed to the Whitney estate conveyed
nothing south of the eight rods limit in terms ; the deed from
Ward to Larkin and Bishop, and also from Bishop to the
defendants, conveyed simply a strip two hundred and eighteen
feet wide, more or less, fronting on Water street, and five
hundred and ninety-one feet, more or less, in depth ; bounded
westerly by " land and flats formerly belonging to Elnathan
Atwater." That deed cannot be construed as conveying
anything westerly of that line. The only implication must
be in the direction of the channel. In some instances an
incidental right to wharf to the channel may be conveyed by
such deeds ; but the grant will not be extended laterally.

We have assumed that these deeds were operative. In
Simons v. French^ 25 Conn., 346, it was held that the title
to the upland and the appurtenant rights in the shore were
separable, and that either might be conveyed without the
other. In Church v. Meeker^ 84 Conn., 421, the validity of
a deed, given in 1828, of a portion of the shore, bounded by
a highway as this is, where it did not appear that the grantor
had any interest in the highway, or in the upland on the
other side, was recognized. In New Haven Steamboat Co, v.
Sargent ^ Co,^ 60 Conn., 199, this court recognized and
gave effect to the validity of a deed given in 1807 of the
premises now in dispute south of Water street, by a com-
mittee of the proprietors of the common and undivided lands
and the selectmen. The nature of the property in the
shore suggests sufficient reasons why such deed should be
considered operative. In East Haven v. Hemingway^ 7 Conn.,
186, it is described as ownership of the soil for the purpose
of constructing wharves and stores thereon. In Church v.
Meeker it is the right to cut sedge grass ; and we suppose



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DECEMBER, 1889. 151

Ladies' Seamen's Friend Society v. Halstead.

the property may be used for any purpose which does not
interfere with navigation. Like other property it may be
alienated freel}\

The contention that the Whitney deed, conveying prem-
ises abutting on the upland, conveyed the riparian right to
reclaim the flats to deep water, and that that right is co-
extensive with the line on Water street, is somewhat plaus-
ible. But manifestly no such intention was in the minds of
the parties, as the express grant is limited to eight rods. It
looks as though the principal thing regarded by them was
the right to convert a portion of the shore into upland. At
that place the land reclaimed is valuable mainly by reason
of its frontage on the street. A wharf is valuable by reason
of its frontage on deep water. It cannot be presumed there-
fore that a conveyance of a few feet of flats between the
street and the wall carried with it any right on the chan-
nel, especially as a portion of the land and wharf of the
grantors intervened. Suppose this wharf and land had been
natural upland ; in that event it will hardly be contended
that the grantees' riparian rights would leap over that and
attach itself to the flats between such land and the channel.
Riparian rights ordinarily pertain to land nearest deep water
to the exclusion of land at a greater distiince. But portions
of the shore lawfully reclaimed become upland for most if
not all purposes. Lockwood v. N. York ^ JV. Haven R, R.
Co.^ 37 Conn., 387 ; New Haven Steamboat Co. v. Sargent
^ Co., 60 Conn., 199.

In the court below the defendants claimed " that the de-
posit of the material of which the wharf was built over their
exact and true line of wharfage, but in the navigable waters
of the state, between high and low water mark, was not a
trespass, and that inasmuch as the plaintiff has not filled in
the flats south of its lot, the fact that the defendants, or
their grantors, in the exercise of their rights of wharfage,
had encroached upon what would be the line of the right of
wharfage belonging to the plaintiff, when it should come to
exercise such right of wharfage, was not a disseizin of the
plaintiff," etc. The court oveiTuled this claim.



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152 DECEMBER, 1889.

Ladies' Seamen's Friend Society v, Halstead.

The acts of the defendants in depositing materials were
done by them while exercising their own right of wharfage,
and must be regarded as an assertion of a right which was
inconsistent with, and an invasion of, the plaintiff's right.
As such acts continued would ultimately deprive the plaint-
iff of its right, they must be regarded as legally wrong.

In JEdst Haven v. Hemingway^ 7 Conn., 186, this court
held that the proprietor of land on navigable water has an
exclusive right to the soil between high and low water mark
for the purpose of erecting wharves and stores thereon.
That right may be sold and conveyed by metes and bounds,
and, so far as we know, is uniformly conveyed by deed ex*
ecuted with all the formalities required in deeds of real estate.
Such property is in the nature of realty, — ^is in fact real
estate; and when the owner's right therein has been invaded,
and he has been dispossessed, it is trespass to real estate and
disseizin. This point was expressly decided in Nichols v.
Lewis, 15 Conn., 137. Williams, C. J., says in that
case : — '' Now although the state prima facie is owner of the
shore on the sea coast, yet we think that if a wharf is legally
erected thereon it cannot be maintained that the freehold
is not in the hands of the proprietor. The law which per-
mits him to build a wharf there, not injuiious to the public
interest, surely does not consider him as without interest in
the soil ; and wherever there is an interest in the soil, this
action [ejectment] will lie."

There is error in the judgment appealed from, and it is
reversed and a new trial granted.

In this opinion the other judges concurred; except Pben-
TICK, J., who dissented.



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DECEMBER, 1889. 168

-

Piatt V. Hubinger.



John H. Platt and another vs. John C. Hubinger. ^.*w|

New Haven Co., June T., 1S80. AKdbews, 0. J., Cabpenteb, Pardbb,
Looms and Bbabdslet, Js.

The defendant ordered of the plaintiffs various wall papers, for a house
that he was building, and gave them a plan of the rooms, requesting
them to confer with a paper-hanger whom he had engaged and esti-
mate with him what would be required and send them to him. The
estimate was made and the quantity needed of each kind was marked
on the plan, whieh, with the paper, was sent to the defendant. In a
BUit to recover the price of the paper, it was held not necessary for the
plaintiffs to notify the defendant to produce the plan and to lay it in as
proof of the quantity of paper ordered.

The entries on the plan were a contemporaneous memorandum that would
have been admissible and useful; but the plaintiffs could prove the
facts by other evidence.

[Argued June 12th^decided December 0th 1889.]

Action to recover for goods sold; brought to the Court
of Common Pleas of New Haven County, and tried to the
court, upon a general denial, before Studley^ J, Facts found
and judgment rendered for the plaintiffs, and appeal by the
defendant. The case is sufficiently stated in the opinion.

TFI K. Totonsend and (?. 2). Watrous^ for the appellant.

G. R. Cooley^ for the appellees.

Andrews, C. J. The complaint contains only the com-
mon counts in assumpsit. The bill of particulars specifies
goods sold and delivered to the defendants. The answer is
a general denial.

The goods mentioned in the bill of particulars consist of
certain wall and decorative papers which the defendant or-
dered of the plaintiffs at their store in New Haven and di-
rected to be sent to him at Keokuk, Iowa, at which place he
was then building a dwelling house. The plaintiffs sent the
paper as directed to Keokuk, Iowa, where it was received by



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154 DECEMBER, 1889.

Piatt ©. Hublnger.

the defendant in good order. The quantity of paper so or-
dered by and sent to the defendant and received by him
was worth the amount charged in the bill — that is, $1,207.02.
Of this amount the defendant had paid before trial $500.

When the defendant ordered the goods of the plaintiffs
he furnished them with a plan of the house he was then
building, told them he had employed one Skinner, a paper-
hanger of New Haven, to hang the papers, and directed the
plaintiffs to confer with him, and to send such quantities of
the various kinds of paper which he had ordered as should
be estimated by them and Skinner to be necessary for the
several rooms in the house. The plaintiffs did confer with
Skinner and sent the quantities of paper estimated by him
and them as necessary for the house. The figures denoting
their estimate of the quantities of paper required were. put
on the plan, which was returned to the defendant, and it
was in his possession at the time of the trial. The quanti-
ties of paper sent were in fact necessary for the house ac-
cording to the plan. By a change in the construction of the
house subsequently made it became unnecessary to use a
portion of the paper so sent, amounting to $200 worth of
stock paper, and eight and one half rolls of parlor paper, at
$10.50 per roll. This parlor paper was manufactured by the
plaintiffs expressly for the defendant.

The papers were ordered by the defendant in April, 1887,
and were sent to and received by him at Keokuk thereafter
in the due course of transportation. On the 18th day of
August, 1888, the defendant wrote a letter to the plaintiffs
as follows, (omitting date and heading) : — " Gentlemen : I
find there are ten rolls of parlor papering left. Shall I
send it back ? " The plaintiffs received the letter but did not
reply to it. No other offer to return any part of the paper
was ever made. It is found that there is a custom in the
paper trade to take back unbroken rolls of wall-paper of
such kinds as are usually kept in stock, if returned in a rea-
sonable time ; but that this custom did not extend to such
kinds of wall-paper as are not kept in stock and did not in-
clude any paper made expressly to the order of any customer.



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DECEMBER, 1889. 166

Piatt V. Hubinger.

It is found that the defendant was not entitled to return the
parlor paper, and that if he was, he had never undertaken to
do so except so far as his letter was an offer to return it, and
that that was not within a reasonable time.

Upon the trial the plaintiffs did not allude to the plan of
the house above referred to. The defendant's counsel, in
their cross-examination of Mr. Thompson, one of the plaint-
iffs, having called out the fact that there was such a plan
and that the figures were on it, insisted that it was the duty
of the plaintiffs to produce it in evidence. The plaintiffs
then called upon the defendant for it. It was in Keokuk,
Iowa, and could not be produced. The plaintiffs had never
before notified the defendant to produce it.

The finding of facts seems to dispose of the whole case.
For it shows that the defendant ordered certain goods of
the plaintiffs; that the goods were sent to and received by
the defendant in due time and in good order ; and that they
were worth the amount charged.

There is no objection to any evidence on either side.

There are eleven reasons of appeal. Neither the first nor
the second point out any error in law. The third, fourth,
fifth and sixth reasons are predicated on a claimed error of
the court in respect to the custom of the trade permitting
the return of unused paper. As to the stock paper the find-
ing is that custom permitted the defendant to return so
much of it as was not used, but that he has never done so.
Surely the defendant is not injured by any ruling as to a
custom of which he has not undertaken to avail himself.
As to the parlor paper it is found that there is no custom
allowing any part of it to be returned. Whether or not a
custom is reasonable is a question of law, or may be so :
but whether or not a custom exists is necessarily a question
of fact. Here it is found that the custom did not exist.

The seventh, ninth and tenth reasons are based on the
fact that the plan of the house on which were the figures of
the estimated quantities of paper, was not produced in e^vi-
dence on the trial. The question on this part of the case
was whether or not more paper had been sent than had been



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156 DECEMBER, 1889.

Daniels v. City of New London.

ordered. The figures on the plan were in the nature of a
contemporaneous memorandum, useful indeed but not in-
dispensable. Its presence might have enabled the court to
come to a conclusion more readily and perhaps more satis-
factorily. But if by other evidence the plaintiffs were able to
satisfy the court that all the paper sent to and received by the
defendant had been ordered by him, he has not been harmed.

As to the eighth and eleventh reasons it is not very clear
what they mean. They seem to imply a claim that the
court erred for the reason that the contract alleged is an
implied one while the contract proved was an express one.
As there was no objection to any evidence, a variance of
this kind, even if it existed, would be waived.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.



Lewis Daniels and others vs. The City op New
London.

New London Co., May T., 1889. Andrews, 0. J., Pabdee, Looms, ToB-
BAKCB and F. B. Hall, Js.

An appeal from a city assessment by sundry land-owners was pending be-
fore a judge of the Superior Court under Gen. Statutes, § 172, when
the parties agreed to submit the matter in controversy to arbitration.
A submission was drawn by the attorneys for the appellants, and signed
by both parties, which provided that the arbitrators should ** be gov-
erned by the laws applicable to such cases and by the rules of practice
obtaining in the trial of causes in the Superior Court," that the award
should be " in writing and returned to the Superior Court," and that
the court should " render judgment pursuant thereto." The judge be-
fore whom the appeal was pending was made the arbitrator, another
judge by agreement being afterwards associated with him. After the
case had been fully heard, the counsel on both sides, upon the sugges-
tiou of the arbitrators, agreed to amend the submission by adding the
following: — "It is further agreed that the arbitrators shall have full
power to decide all the matters submitted as they shall consider right
and just, and that their judgment shall be final and conclusive upon all
the parties." The counsel for the appellants had no express authority



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DECEMBER, 1889. 157

Daniels v. City of New London.

to make the amendment, and the appellants did not know of it until
after the award was published. They then repudiated the action of
their counsel and brought a suit to set aside the award. Held —

1. That the change made by the amendment was a material one.

2. That the submission was to be regarded as made in pais, and not under

the authority and direction of the court.

3. That the counsel for the appellants had no implied authority, by virtue

of their retainer, to make the amendment.

[Argued May 28th— decided September 27th, 1889.]

Suit to set aside an award and for an injunction ; brought
to the Superior Court in New London County and heard
before Fenn^ J. Facts found and judgment rendered for the
defendant, and appeal by the plaintiffs. The case is fully
stated in the opinion.

S. Imcos and A. P. Tanner^ for the appellants.

1. Mr. Thresher had no power, by virtue of his position
as attorney, to make the change in the submission. There
was no suit pending. The application to a judge of the Su-
perior Court in the matter of the city assessments was not a
suit in the ordinary sense and the judge did not sit as a
court. Trinity College v. City of Hartford^ 82 Conn., 466 ;
Clapp V. City of Hartford^ 35 id., 222; LaCroix v. County
Commissioners^ 49 id., 691. And where no suit is pending
an attorney has no implied powers to submit a matter to ar-
bitration. Morse on Arbitration, 16 ; Billings on Awards, 58 ;
Weeks on Attorneys, § 233. The submission by an attorney,
even in a pending suit, must be with the approval of the
court and appear of record. Mitchell v. Harris, 2 Ves. Jr.,
137, note 2 ; Miller v. Criswell, 8 Penn. St., 449 ; Stokely v.
Bobinson, 34 id., 815 ; Evars v. Kamphaus, 59 id., 379 ; Bates
V. ViscTier, 2 CaL, 355, There is a well recognized distinc-
tion as to the position of an attorney in relation to proceed-
ings in and out of court. Derwort v. Loomer, 21 Conn., 245 ;
Perry v. Simpson Waterproof Mfg. Co., 40 id., 317 ; Rock-
weU V. Taylor, 41 id., 57 ; Tiffany v. Lord, 40 How. Pr., 481 ;
Lockwood V. Black Hawk Co., 84 Iowa, 235 ; Starr v. Hall,
87 N. Car., 381 ; Herbert v. Alexander, 2 Call (Va.), 503 ;



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168 DECEMBER, 1889.

Daniels v. City of New London.

Brooks V. Kearm^ 86 111., 547 ; Sperry v. Reynolds^ 66 N.
York, 179; Commissioners of San Jose v. Younger^ 29 Cal.,
147; Madison Ins. Co. v. Griffen^ 8 Ind., 277; HannunCs
Heirs v. TFaKflk?^, 9 Humph., 129; 2 GreenL Ev., § 186; 1
Wait's Act. & Def., 439. An attorney in a case in court
cannot enter a retraxit when it is a final bar, nor stipulate
not to appeal, nor that a decision shall be final. 1 Wait's
Act. & Def., 437; People v. Mayor, 11 Abb. Pr., 66: Howe
V. Lawrence, 22 N. Jer. Law, 99 ; Jenkins v. Oillespie, 18
Miss., 31 ; Arthur v. Homestead Fire Ins. Co,, 78 N. York,
462. An arbitration is not one of the modes of legal pro-
cedure which clients are presumed to authorize when they
place their business in the attorney's hands. The appear-
ance of the attorney before arbitratoi-s is that of a mere
agent. 6 Wait's Act. & Def., 516 ; Billings on Awards, 53 ;
Sperry v. Reynolds, 65 N. York, 179. On the other hand a
statutory submission under the control of the court is a pro-
per mode of conducting the suit in another form. 1 Am. &
Eng. Encycl. of Law, 661 ; Williams v. Walton, 9 Cal., 142 ;
Inhah. of Btickland v. Inhab. of Conway, 16 Mass., 396. The



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 14 of 60)