Occum Co. v. A. & W. Sprague Manufacturing Co.

34 Conn. 529

• Court: Supreme Court of Connecticut
• Decided: March 15, 1868
• Status: Published

Opinion

Carpenter, J.

It is apparent from the record'in this case that three general questions, mainly of fact, were raised by the defendants for the consideration of the jury.

1. Did the defendants’ grantors erect the dam complained of under a license from the lessors of the plaintiffs?

2. Did the defendants merely continue the dam as previously erected, or did they by means of flash-boards raise the water higher than it was raised by the former proprietors ?

3. Were the plaintiffs in commencing and prosecuting this suit acting within the scope of their corporate powers ?

Under each branch of the case a question of law is raised for the consideration of this court.

1. The evidence mainly relied on to prove a license was a paper writing signed by Ebenczer Waldo, who was then a tenant in common of the premises now held by the plaintiffs, and one of the plaintiffs’ lessors, in which he recited the intention of William Sprague, under whom the defendants claim, to erect a dam across Shetucket river for manufacturing purposes ; and agreed for a consideration therein named, after the erection of the dam, to convey to Mr. Sprague all his water rights and water privileges in the premises, for such sum as should be awarded by referees therein agreed upon. This instrument was neither acknowledged nor recorded. To its admission in evidence the plaintiffs objected, and the court excluded it. Precisely upon what ground the objection was placed does not appear ; but it does appear that the plaintiffs were particular to insist that the purposes for which it was offered should be specified; and it was stated by the defendants’ counsel that it was offered, among other purposes, for that of proving a license or permission to the defendants’ grantors. We are led to infer therefore that it was objected to and excluded as not tending to prove a license. It seems to us quite clear that the paper in question not only tended to prove á license, but, uncontradicted and unexplained, was of itself sufficient evidence for that purpose. It was therefore clearly admissible, unless there is something in the peculiar circumstances of the case which rendered it inadmissible.

The fact that it was not executed with all the formalities requisite to convey real estate cannot have that effect. It is not essential to the validity of a license that it should be acknowledged and recorded. It may be by parol, and may be even inferred from conduct. Johnson v. Lewis, 13 Conn., 303. To what extent, if any, a bona fide purchaser without notice would be affected by such a license, is not a question here ; for the defendants offered to prove, in connection with this paper, that the plaintiffs at the time of taking their lease had full knowledge of it, and of the action of the licensees under it. For the purposes of this question, then, we must assume the existence of these facts.

Nor will the fact that the paper was signed by only one of the tenants in common be sufficient to exclude it. Independently of any presumption that might arise from the circumstances of the parties and of the case, that Elizabeth Waldo acquiesced in the action of -Ebenezer Waldo, we think the paper authorized Mr. Sprague to build the dam and use such rights and privileges as Ebenezer Waldo had in the premises; whereby he became, in respect to such rights, a tenant in common at least with Elizabetli Waldo. Precisely what rights tenants in common have as against each other, and what is the remedy for an infringement of those rights, are questions not necessary now to be considered. It is sufficient for the purposes of this case that the defendants, succeeding to the rights of William Sprague, had an interest in the riparian rights of the Waldo property, equal at least to that of the plaintiffs • and if the facts are as the defendants claim them to be, w' io not see how this action can be maintained.

mt we do not care to pursue this inquiry further. The y ground upon which the plaintiffs now attempt to vindicate, this ruling is, that the pleadings do not raise this issue. If it distinctly appeared that the evidence was rejected in the court below for that reason, it would be worthy of serious consideration whether it wTas not rightly excluded. But it is obvious from the record and the course of the argument that that was not the ground of the objection. If it had been no one can doubt that the .learned counsel for the defendants would at once have removed the objection by amending the pleadings. We are inclined to think therefore that the objection now urged was waived in the court below. If so, substantial justice requires that-the defendants should now have an opportunity to make this defense before a jury.

The record presents another question in this part of the case which we will briefly notice. The principal evidence relied on to prove a license had been excluded by the court, as we have just seen. There was however some slight evidence remaining, namely, the' fact that Waldo was living within three miles of the dam and knew of its erection, and from that time .to the time of his death made no claim for damages or that the dam was illegally erected, which the defendants claimed should go to the jury as tending to prove a license, “ to be weighed by them as they should think just.” The court told the jury that these facts and circumstances “ did not furnish evidence enough of a license to require the court to state the law to the jury upon the subject of a license.” The jury must have understood from this that all the evidence on the subject of a license was taken from them by the court, not because it was irrelevant, or inadmissible under the pleadings, but because in the opinion of the court it was insufficient.

As a general rule it is safe for the court to let the jury pass upon the evidence in a cause. This court is not disposed to lend its sanction to the practice of withdrawing from the jury any question of fact, on the ground that the court is of opinion that the evidence is not sufficient. Morris v. Platt, 32 Conn., 75. It is the province of the jury exclusively to determine the weight of evidence. To this rule we know of no exception prior to the statute of 1852. By that it was provided that, whenever the plaintiff shall have produced his evidence and rested his case, a nonsuit may bo granted if in the opinion of the court the plaintiffs shall have failed to make out & prima facie case. We are not disposed to extend the operation of that statute. In all other cases the power of the superior court to return the jury to a second and third consideration, and of this court to grant a new trial for a verdict against evidence, will furnish all the security practicable against verdicts founded upon insufficient evidence. Whether we should grant a new trial upon this point alone, or in any other case where the evidence was manifestly insufficient to sustain the verdict, need not now be determined. Nor is it material to inquire into the sufficiency of this evidence, as the particular question now under consideration can hardly arise in any subsequent trial of this case.

2. The defendants further claimed that they came into possession of the dam described in the declaration by purchase, and that they had a right to use and occupy the same in the same manner and to the same extent as the same liad been customarily used and occupied by their grantors, until notice was given them of an encroachment, or of any injury done by such use and occupation; and they asked the court so to charge the jury. The court charged the jury that if they should “ find that the dam kept and maintained by the do-fondants was no higher during the time covered by the plaintiffs’ declaration than it was when the defendants came- into possession of it, such notice, as claimed by the defendants, was necessary, and the plaintiffs cannot recover.” Whether the flash-boards wore a part of the dam or not was submitted to the jury as a question of fact. In relation to that the court said, “ If at that time the flash-boards had previously been placed upon the dam only for occasional use, as the state of the water might make them convenient or necessary, and not as a part of the dam, then they were no part of the dam; otherwise they were a part of the dam, and so the jury should consider them, and notice in that ease was necessary, as the defendants claim.” We see nothing objectionable in this part of the case, The charge of the court -syas in harmony with the doctrine of Penruddock's Case, 5 Rep., 101, as explained and applied by this court in Noyes v. Stillman, 24 Conn., 15.

3. The motion finds that “ the defendants further offered evidence to prove, and claimed that they had proved, that the mill and works described in the plaintiffs’ declaration, and which they claimed had been injured by the dam of the defendants, were of a trifling and frivolous character, so situated as to be, and in fact were, absolutely worthless for manufacturing or mechanical purposes, or for any business connected therewith; and that the same were procured and the lease obtained by the plaintiffs for the express purpose, and only for the purpose, of commencing a suit against the defendants and harrassing them under the forms of law. And the defendants prayed the court to instruct the jury that such proceedings were not warranted by the plaintiffs’ charter; and that if the jury should find such facts proved, the plaintiffs could not recover. The court omitted so to charge the jury, and gave no instruction to them on the question.” The counsel for the plaintiffs contend that the motive with wliicli the plaintiffs leased this property can have no effect upon their legal rights, and that, no matter what purpose they had in view, they had a right to institute a suit for the infringement of those rights. In support of this position they cite Mc Cune v. Norwich City Gas Co., 30 Conn., 521, and Benjamin v. Wheeler, 8 Gray, 409. We have no disposition to question the authority of those cases. They do not seem to us however to meet the question involved here. There is a manifest distinction between the motive with which an act is done and a legal right to do the act itself. This distinction seems to have been overlooked, both by the court below and by the plaintiffs’ counsel. They treat it purely as a question of motive, whereas the defendants’ claim cuts deeper, and denies the legal right to do the act itself. They deny the plaintiffs’ power under their charter to lease the property and erect the mill for the purpose named; and consequently the right to maintain an action for an injury to the property. This distinction is clearly recognized in both the cases cited. In the case of Mc Cune v. Norwich City Gas Co. the action was brought to recover damages for cutting off the supply of gas. The plaintiff claimed that the defendants did it maliciously and wantonly and with intent to injure him. The court held that the defendants had a legal right to do the act, and that the motive with which it was done was immaterial. The court say: “ Where a party has a legal right to do a particular act at pleasure, the motive which induced the doing of the act at the time in question can never affect his legal liability for the act.” In Benjamin v. Wheeler the plaintiff sought to recover damages for an injury occasioned by digging a water course in the highway in front of his land. The defendants justified under authority from the highway surveyor. The plaintiff claimed that the act was done wantonly and for the purpose of injuring him. The court held that the action could not be maintained. Thomas, J., who delivered the opinion of the court says : “ Nor was it competent to show that the thing done was done for the purpose of injuring the plaintiff. An act done within the scope of the officer’s authority does not become illegal by reason of the motive which may have influenced his mind in doing it.” The question before us is, whether the plaintiffs were acting within the scope of their authority. Concede that and the intent is immaterial. But in determining that question the use they intended to make of it, and did in fact make of it, is material. The intentions and purposes of the party in leasing, and erecting- a mill, not only qualify and give character to the act, but enter into and become a pari of the act itself.

The plaintiffs are a corporation. Their rights and powers are created and limited by their charter. They can do no act unless therein expressly or impliedly authorized. Any act done or attempted to be done not so authorized, will not lay the foundation for a suit in their behalf. N. York Firemen's Insurance Co. v. Ely, 5 Conn., 560; Goodspeed v. East Haddam Bank, 22 Conn., 530.

We are not aware of any principle of law that will allow) corporations, chartered and'organized for specific purposes, toj purchase or lease property, having no connection with theirj legitimate business, for the sole purpose of commencing and prosecuting a suit, and liarrassing another under the forms of law. We think therefore that it was competent for the defendants to show, if the fact was so, that the plaintiffs in these proceedings were acting outside the limits of their corporate powers, and that the omission of the court to submit this question to the jury with proper instructions was erroneous.

A new trial is advised.

In this opinion the other judges concurred; except Park, J., who having tried the case in the court below did not sit.