Bishop v. Seeley

| Conn. | Jul 15, 1847

Hinmas, J.

The property mentioned in the declaration, is land occupied as a canal, between the village of Stamford and Stamford harbour. The plaintiff’s title to it was by deed from Abraham Davenport to Alfred Bishop, and a subsequent deed from Bishop to the plaintiff. Davenport, at the time he executed his deed, owned the land now claimed by both parties, who are adjoining proprietors ; and the question in the superior court, was, whether a wall, erected by the defendant, as he claimed, within the line of his own land, or, at any rate, on the line between him and the plaintiff, was in fact an encroachment upon the plaintiff’s canal property l

The deed from Davenport describes the plaintiff’s land as half an acre, more or less, occupied as a canal, and bounded, i1, North-Easterly by a line parallel with the North-Easterly line of said canal, two feet therefrom.” The defendant insisted, that the line thus designated was two feet from the water-line by the canal. The plaintiff, on the other hand, claimed, that the word “canal,” as used in this deed, meant the whole excavation made for the purpose of the canal; and, therefore, that two feet therefrom was two feet from the top of the canal bank where the excavation commences : and this claim was. adopted by the court, in committing the cause to the jury,

We think this was right. The meaning of the word “eu--nal,” when applied to artificial passages for water, is, “a trench or excavation in the earth, for conducting water and confining it to narrow limits.” Webster’s Diet. It is unlike the words river, pond, lake, and other words, used to designate natural bodies of water ; the ordinary meaning of which is confined to the water itself; but it includes also the banks, and has reference rather to the excavation or channel, as a receptacle for the water. It is an artificial thing ; and the cases, therefore, of lands bounded upon natural bodies of water, in which it has been held, that the land conveyed extends to the water, and in some instances, to the centre or thread of a river, have no bearing upon this case. The intention of the grantor was, to convey the canal, and two feet of ground along the side of it, and beyond its limits.

We do not advise a new trial.

In the taxation of costs, in this case, a question arose in respect to which it is understood the practice has not been uniform. The point does not appear upon the motion ; but the importance of a uniform rule renders it proper that it it should be settled ; and it has been argued before us with that viewc

The plaintiff recovered less than thirty-five dollars damages ; and by the act of 1838,{Slat. 79. ed. 1838.) he is not entitled to any more costs than damages, “unless the title of land, the right of way, or the right to the use of, water, was in question.” The plaintiff insists, that the title to land was in question, the whole dispute being as to the true line between his and the defendant’s land ; that this sufficiently appears from the motion ; and, if it did not so appear, it is the duty of the judge to find and certify that fact, and then tax full costs.

By the record, nothing appears to have been in question but the plaintiffs possession of the land and the entry upon it of the defendant. The declaration and the general issue pleaded, put nothing else in issue. Scovill v. Seeley, 14 Conn. R. 238. It is true, the title to land did, in a certain sense, come in question, incidentally ; but it was not so in question as that it could be decided, and the dispute between the parties settled. The suit might have been brought before a justice of the peace, instead of the superior court, and the same defence made as was made on this trial; and his decision and the record of it would have, done just as much towards settling the rights of the parties, as will this record. Indeed, it is no uncommon thing for the title to land to come in question, in an action for an assault and battery, just as it did come in question here ; but we presume no one ever expected full costs in such an action, unless he recovered more than thirty-five dollars. A majority of the court think it was not the hr terition of the legislature to give full costs, merely because the title to land &c. might be incidentally involved in the trial of the cause, but only in those cases where it so comes in question that it may be decided.

We advise, therefore, that no more costs than the amount of damages recovered, be taxed in this cause.

In this opinion the other judges concurred, except that Waite, J. dissented on the last point.

New trial not to be granted.

Full costs not to be taxed.