Sixteenth School District v. Eighteenth School District.

decree set aside the action of the town but passed no further decree in the matter. Held not to be such a fixing of the lines of the district by the decree of the court as precluded the town from making any alteration of the same at the same place.

[Argued May 25th-decided June 18th, 1886.]

APPLICATION to the Superior Court to set aside the action of the town of Stonington in annexing a part of the plaintiff school district to the defendant school district. Demurrer to application; demurrer sustained and judgment rendered for the defendant, (Beardsley, J.,) and appeal by the plaintiff. The case is sufficiently stated in the opinion. S. Lucas, for the appellant.

J. Halsey and C. Perrin, for the appellee.

GRANGER, J. The plaintiff alleges that on the seventeenth day of July, 1882, the town of Stonington, at a legal town meeting held on that day, voted that a new school district, to be called the Seventeenth School District, be formed from the Sixteenth School District in that town, giving its boundaries, and that an appeal was taken from this action of the town by the latter district to the Superior Court for New London County, and that that court adjudged and decreed that the action of the town in the matter should be "reversed, annulled and set aside." It is also alleged that the town of Stonington on the 30th day of April, 1883, after the decree just mentioned, at a legal town meeting then held, voted that the same tract of land with the inhabitants residing thereon, which had before been taken from the Sixteenth to form the Seventeenth district, be added to and included in the Eighteenth school district of the town.

The plaintiff, the Sixteenth School District, appealed from this action of the town to the Superior Court, on the ground that such action was illegal and beyond the power of the town to take. The court sustained the action of the town; the school district appeals to this court from that judgment; and the sole question in the case is, whether the town had power to take the action in question.

Sixteenth School District v. Eighteenth School District.

The plaintiff rests its claim upon the provisions of the seventh section of the General Statutes, title 11, chap. 5.

The first section of that statute provides that each town shall have power to form, unite, alter and dissolve school districts within its limits. The sixth section provides that when application shall be made to any town to form, alter or dissolve a school district, any district aggrieved by its action may appeal to the Superior Court. The seventh section is as follows:-" Said court shall have the same power to act upon said application that said town had, and may appoint a committee to report the facts and its opinion thereon; and the final decree of the court shall be recorded in the records of said town. * * * And unless the town shall thereafter abolish all the school districts within its limits, no alteration of the lines fixed by said decree shall be made, except by the Superior Court."

The plaintiff contends that the decree of the court fixed the lines of the Sixteenth district within the meaning of the above statute, and that as the present action of the town assumes to make an alteration of those lines it is in conflict with the statute.

But the court on that decree did not undertake to fix the lines of the Sixteenth district. The appeal of that district from that action of the town alleged "that the division of said Sixteenth School District was illegal and unjust, and against the best interest of said district and of the public;" and its sole prayer was that that action might be set aside. The parties were at issue only upon that question of fact, and the court in sustaining the appeal simply adjudged that the action of the town should be "reversed, annulled and set aside." The decree establishes nothing; it simply annuls the action of the town, and leaves both districts in statu quo. The subject of fixing the lines of either district is nowhere alluded to in the allegations of the appeal or in the pleadings, finding or decree, and so far as those lines are established they are so in no manner by force of the decree, but purely by force of their original establishment, which remained undisturbed.

Bristol Manufacturing Co. v. Barnes.

The statute should receive a liberal construction, but should not be extended to apply to cases where the court does not by its decree fix the lines of a district specifically and definitely.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.

THE BRISTOL MANUFACTURING COMPANY vs. WALLACE

BARNES.

Hartford District, Jan. T., 1886. PARK, C. J., Carpenter, Pardee,
LOOMIS and GRanger, Js.

A warranty deed described certain property conveyed, being part of a
larger tract belonging to the grantors, as "the horse shed on the west
side of the highway, with the land covered by the same; the grantee
to have the right to go on land of the grantors around the shed for the
purpose of repairing the same." Held that the highway referred to as
the eastern boundary was the apparent highway, and not the line of
the highway as found by actual survey, and that the land conveyed
was that actually covered by the shed, without reference to its situ-
ation in relation to the true line of the highway.
The question was regarded as one wholly of the construction of the
language of the deed, and the provision in the deed that the grantee
was to have the right to go around the shed on the land of the grant-
ors for the purpose of making repairs, was regarded as showing clearly
that the parties did not intend to convey or acquire any other land
than that actually covered by the shed.

The statute (Gen. Statutes, p. 445, sec. 8,) provides that in all actions
of tort brought to the Superior Court or Court of Common Pleas, if
the damages found do not exceed fifty dollars, the plaintiff shall re-
cover no more costs than damages, unless the title to land, or a right
of way, or to the use of water, is in question, the value of which
property is found to exceed fifty dollars. Held-

1. That the title must be so put in issue as to be settled, but that it makes no difference whether it is put in issue by the nature of the complaint or by the pleadings on the part of the defendant.

2. That as, under the Practice Act, the complaint for disseizin contains substantially the same allegations of fact as were required in the old action of disseizin, the title is put in issue by it.

Bristol Manufacturing Co. v. Barnes.

3. That it is for the court and not for the jury to find the value of the property, the title of which is determined in the case.

A plaintiff in a complaint for disseizin may recover less land than he demanded.

And it is enough to bring the case within the exception of the statute if the part of the demanded premises as to which the title is put in issue is of the value required, and is so described in the pleadings or in the verdict as to be identified and to admit of valuation.

[Argued January 6th-decided January 22d, 1886.]

ACTION to recover possession of land and for damages; brought to the Court of Common Pleas of Hartford County, and tried to the jury upon a general denial before Calhoun, J. Verdict for the plaintiffs and appeal by the defendant for error in the rulings and charge of the court. The case is fully stated in the opinion.

T. E. Steele and E. Peck, for the appellant.

C. E. Gross and J. J. Jennings, for the appellees.

LOOMIS, J. It appears from the finding in this case that prior to January 27th, 1857, the plaintiff owned a large tract of land in the town of Bristol, situated on both sides of Main street, which runs north and south, and on that day conveyed by warranty deed to one Welch a portion of the land, namely, one lot on the east side of the street with a building used for a store standing thereon, also a horse shed with the land covered by it situated on the other side of the highway. The horse shed was removed by the grantee in the year 1870, and in 1875 the title of Welch in the land was conveyed to the defendant. The plaintiff is still the owner of all the tract first mentioned, except the portion conveyed to Welch. The deed to Welch under which the defendant claims, after describing by metes and bounds the land on the east of the highway upon which the store was situated, contains this additional description which covers the land in controversy :-" Also the horse shed on the west side of the north and south highway, westerly of said store, together with the land covered by the same;

Bristol Manufacturing Co. v. Barnes.

reserving however the right and privilege of using said premises, so far as the same may be necessary, for the purpose of repairing the race-way of the grantors westerly of said shed; the grantee to have the right and privilege to go on land of grantors around said shed for the purpose of repairing the same."

There was no dispute between the parties as to the quantity of land conveyed by this deed. It was conceded that the foundation lines of the old shed, which was thirty-six feet by eighteen, indicated the precise extent of the land purchased.

The plaintiff contended that the land conveyed to Welch and now belonging to the defendant must be confined to the actual site of the old shed, while the defendant insisted that he might take other lands of the plaintiff to make his thirtysix feet by eighteen, provided it should appear from the evidence that the legal western line of the highway should be found upon actual survey to cross the land conveyed. farther to the west than the front or east line of the old shed.

It appeared that the defendant, pursuant to his claim, had constructed a new building of the same size as the old shed, and had located it so that it covered a piece of land seven feet and one and a half inches wide on the north end, and five feet one and a half inches wide on the south end, and thirty-six feet long, of the adjoining land of the plaintiff not covered by the old shed, and extending over the plaintiff's race-way.

The defendant asked the court to charge the jury that the recitals and covenants in the deed were conclusive evidence against the plaintiff that the horse shed stood wholly westerly of the legal western line of the highway as it was on January 27th, 1857, and that they could render no verdict inconsistent with this conclusion, and he had previously upon the same ground objected to the plaintiff's evidence showing where the horse shed stood. The court charged the jury that the question was wholly one of fact; that they were to decide from the evidence where the old horse shed really stood, and render their verdict accordingly.