an error in form, insufficient to be made ground of reversal.

In the case of Henry S. Chase et al., administrators, against Aaron A. Benedict et al., there is no error.

In the case of Louis D. Griggs et al., appeal from probate, there is no error.

The other judges concurred.

JUDD et al. v. CITY OF HARTFORD. (Supreme Court of Errors of Connecticut. Oct. 27, 1899.)

MUNICIPAL CORPORATION-SEWERS-NEGLIGENCE-LIABILITY FOR OVERFLOW.

A municipality is liable for damages sustained by the flooding of a basement, during a severe but not extraordinary rainfall, caused by an obstruction left in a sewer by the city's workmen,-placed there for a temporary purpose while they were altering the sewer, and which they negligently omitted to remove when the alterations were completed.

Appeal from superior court, Hartford county; John M. Thayer, Judge.

Action by Henry C. Judd and another against the city of Hartford to recover damages for injuries sustained by the overflow of a sewer. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

The finding stated the following facts: The plaintiffs owned a store on High street, in Hartford. The defendant city in 1873 laid a sewer in the street, with which the store was connected, and which was adequate to drain the area that it was built to drain. The owners of the store were assessed for benefits, and paid the assessment. On July 29, 1897, the city was engaged in building an intercepting sewer to divert the sewage from the High street sewer and other sewers from an outlet theretofore used into Park river, and send it into the Connecticut river. For this purpose the city had cut off the High street sewer 100 feet below the plaintiffs' store, and constructed a manhole there, with a 12inch pipe at the bottom, running into the intercepting sewer, and a 24-inch brick stormwater sewer at the top, running under High street, in the line of the old sewer to the Park river. A stone was set as a dam in the lower part of this storm-water sewer, to keep all sewage out of it, leaving only the storm water to flow over the dam. These sewer connections on High street were completed by July 1st, and were adequate to the purposes for which they were designed. The The city's agents had previously used a wooden "center" in constructing the 24-inch storm sewer, on which to turn the arch forming the upper half of said sewer at the point where it left the manhole. This center had a solid semicircular board head, measuring 24 inches across the base. After the arch was built, instead of removing the center, as should have been done, it was negligently left by the defendant's agents lying across the lower portion of the storm sewer, so as to obstruct

the flow of water. A fortnight before July, 29th the defendant's agents also blocked up the outlet from the manhole in the intercepting sewer with bags of sand, to prevent any sewage or water from flowing through it into another manhole situated below it, which they were then constructing. By these two obstructions the capacity of the outlet of the High street manhole near the plaintiffs' store was reduced to a quarter of the capacity of the sewer leading into this manhole. No notice of these obstructions was given to the plaintiffs. There was a severe rainstorm on July 29th, which filled the High street sewer, so that by reason of these obstructions the water and sewage were forced into the plaintiffs' store, doing serious damage. The defendant claimed that the storm was an act of God, for the consequences of which it could not be held liable; that leaving the center in the sewer was an error of judgment, for which it was not liable in damages; that the service performed by the defendant in the construction of said sewer was one in which the defendant had no particular interest, and from which it derived no special benefit, in its corporate capacity, and that negligence of the employés of the defendant in the construction of said sewer was not imputable to the defendant; that it was authorized to build sewers for the public when the public necessity required, and assess the expense upon properties, specially benefited, and that no obligation rested upon the defendant to make the sewers and drains constructed under such authority sufficient and ample, and no obligation thereafter existed to keep the same free from defects and obstructions; that the contractors, employés, and appointees of the street department and public works are not the agents and servants of the city, charged with a public service, for whose negligence in the discharge of a governmental duty an action lies against the city without being expressly given; that no right of action existed against the city because none was given by charter or statutes, and that the construction of this sewer was a public, governmental duty, to remove a nuisance; and that it is not liable for the negligence of some or all of its agents, whom it is obliged to employ, and not liable for the negligence of the agent, if any, in the construction of the sewer, or in a matter outside of such construction and entirely collateral thereto. The court, however, rendered judgment against the city for $2,940 damages.

William J. McConville, for appellant. Arthur L. Shipman, for appellees.

BALDWIN, J. (after stating the facts). The city was held liable to the plaintiffs, not because it planned and constructed an inadequate sewer, but because, after planning and constructing an adequate sewer, it left obstructions in it, placed there for temporary purposes, which its agents carelessly omitted to remove after those purposes had been ac

complished. For negligence in such matters a municipal corporation cannot escape responsibility on account of its public character. It is a person in law, capable of inflicting injuries, and liable to suit by him who suffers them, unless they flow from, or are incident to, the performance of a governmental duty. Municipal duties are governmental when they are imposed by the state for the benefit of the general public. They may sometimes have that character, also, when imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for the particular advantage of the inhabitants of the municipality, and only through this and indirectly for the benefit of the people at large. Jewett v. City of New Haven, 38 Conn. 368. Whether an instance of this nature is furnished by the provisions of the defendant's charter respecting the construction and maintenance of sewers, it is unnecessary to inquire. The injury to the plaintiffs was due to no fault of plan or construction, and to no omission to make proper repairs. It was of the same nature as one that might be suffered by the occupant of a new house who strikes his foot, in a dark passage, against an ax, or stumbles over a heap of shavings, which the builder's workmen have carelessly left upon the floor. The failure to sweep out the shavings or pick up the tools is something distinct from the work of building the house. It could only occur after the building was finished. So, even if the charter duty of the defendant as to the construction or alteration of the sewer with which the plaintiffs' store was connected was governmental, its duty, after that had been performed, to clean up and remove any temporary appliances which, if left where they were, would render the sewer unserviceable or inadequate, was a new and ministerial one. It was a simple and definite duty, arising under fixed conditions, and implied by law. State v. Staub, 61 Conn. 553, 568, 23 Atl. 924. No one else could perform it. The sewer was part of the defendant's property, and under its exclusive control. Its functions in regard to its construction or reconstruction had been discharged; the occasion for an exercise of those as to its repair had not arrived; and, if its agents had before been acting as agents of the law, they now acted, or neglected to act, as its proper servants, subject to the full application of the rule of respondeat superior. Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 530, 28 Atl. 32. "Municipal immunity does not reach beyond governmental duty." Weed v. Borough of Greenwich, 45 Conn. 170, 183. Had the city authorities expressly directed the workmen employed upon the sewer not to remove the "center" or the sand bags, when to allow them to remain was to turn this piece of city property into a nuisance to those who had paid for the right to share in its use, and were dependent upon its efficiency for the enjoyment of the houses and stores which it

was built to serve, an action could certainly have been maintained for any resulting injury. Mootry v. Town of Danbury, 45 Conn. 550, 556; Hoyt v. City of Danbury, 69 Conn. 341, 351, 37 Atl. 1051; Morgan v. City of Danbury, 67 Conn. 484, 496, 35 Atl. 499. It lies equally in the absence of such directions. The cause of action is the failure to remove the obstructions. Whether this was an intentional or an unintentional omission of duty is immaterial. Nor is it of any consequence that the city, in altering its sewerage system, was relying upon funds derived from bonds issued under an amendment to its charter (Sp. Acts 1893, p. 429), which provided that the sums thus borrowed should be used for such alterations, or for purchase of real estate for parks, "and for no other purposes whatsoever." It cannot avoid a judgment for a common-law liability by pleading that it has no money on hand out of which it can be paid. That the storm which was the immediate occasion of the flooding of the plaintiffs' cellar was a severe one can constitute no defense. It was severe, but not extraordinary. Diamond Match Co. v. Town of New Haven, 55 Conn. 510, 526, 13 Atl. 409. There is no error. The other judges concurred.

In re NEWPORT READING ROOM et al. (Supreme Court of Rhode Island. Oct. 11, 1899.)

CORPORATIONS-TAXATION-COLLECTION
AGAINST PERSONAL PROPERTY.

1. A return by a corporation that it has "no ratable personal property," and "owns none of the chattels mentioned in Gen. Laws 1896, c. 45, § 11," is a sufficient compliance with Gen. Laws, c. 46, 7, requiring a person returning an account to make oath before an assessor that it contains, to the best of his knowledge and belief, a true and full account and valuation of all his ratable estate; and on failure to do so, if overtaxed, he shall have no remedy.

2. An incorporated social society, whose capital stock is divided into shares, is a business corporation, in so far as its classification is necessary to bring it for the purposes of taxation, within the provisions of Gen. Laws 1896, c. 45, providing to whom property is taxable.

3. A separate tax upon the personal property of an incorporated social society, where the resident stockholders are assessed individually upon their ownership of stock, is void, and not collectible, as being double taxation.

4. The nonresident members of a corporation, not being liable, through their ownership of corporate stock, to pay taxes upon corporate personal property not specifically mentioned in Gen. Laws, c. 45, §§ 9, 11, a tax upon a mortgage owned by the corporation is not collectible.

5. A tax upon the personal property of a corporation is not collectible where the assessment roll fails to show that the assessment was limited to the kind of personal property mentioned in Gen. Laws. c. 45. § 11, which provides for taxing certain kinds of personalty.

Petition by the Newport Reading Room and Edward W. Higbee, collector, for abatement of taxes. Petition granted.

Saml. R. Honey, for Newport Reading Room. J. Stacy Brown, for Edward W. Higbee, clector.

TILLINGHAST, J. The agreed statement of facts in this case shows: That the Newport Reading Room is a corporation, whose capital stock is divided into shares of the par value of $100 each, and that 294 shares of said stock have been issued. That said corporation owns a lot of land in Newport, with buildings thereon, together with a mortgage on real estate in Newport for $25,000, and that it also owns furniture, a library, billiard tables, and various paraphernalia for the amusement of its members and subscribers. That the market value of its stock is upwards of $250 per share. That in pursuance of the notice issued by the assessors of taxes of Newport in January, 1899, under Gen. Laws R. I. c. 46, § 6, said corporation returned an account of its ratable estate as follows: "No ratable. personal estate. The corporation owns none of the chattels mentioned in section 11 of chapter 45 of the General Laws of 1896." It is also agreed: That said corporation does not own any of the articles mentioned in sections 3, 9, and 11 of said chapter 45, and that, if the assessment upon its said mortgage of $25,000 is valid and lawful, said corporation is assessed for the value of all its property. That on the 31st day of August, 1899, and within the time limited for the payment of said tax, the corporation tendered to said collector of taxes the sum of $222.20, the same being the amount of the tax assessed upon the real estate of said corporation in February, 1899. That the assessment roll or tax list of said city relating to said corporation is as follows:

It is further agreed between counsel that the corporation has not exercised the power, conferred upon it by section 2 of its charter, 1 to divide its real and personal property into shares, but that it has simply divided its capital stock into shares.

In view of these facts, the question submitted for our decision is "whether or not the said Newport Reading Room is liable to pay the tax assessed against it for twentyfive thousand dollars upon its personal estate, as hereinbefore described."

The first question to be determined is whether the account aforesaid, rendered to the assessors, was a compliance with Gen. Laws R. I. c. 46, § 7. The city solicitor of Newport contends that it was not; that the word "ratable," as used in the statute, is not equivalent to the word "taxable," as held in Coventry Co. v. Assessors of Taxes of Coventry, 16 R. I. 240, 14 Atl. 877; and that, as the Newport Reading Room owns certain ratable personal estate, the account exhibited is not sufficient, and hence the petitioning corporation is without remedy. This contention is partly right and partly wrong. It is right in so far as it alleges that the word "ratable," as used in the statute, is not equivalent to the word "taxable," but it is wrong in alleging that, under the agreed facts, the Newport Reading Room owns certain ratable personal estate. The account rendered by the corporation distinctly states that it does not, and also, specifically, that it owns none of the chattels mentioned in Gen. Laws R. I. c. 45, § 11. If the return or account had simply said, "No ratable personal estate," it would not have been a compliance with the statute, any more than was the return in Coventry Co. v. Assessors of Taxes of Coventry, supra. But it says more than this, namely, that the corporation owns none of the chattels mentioned in Gen. Laws R. I. c. 45, § 11. This being so, what personal property did said corporation have which was either ratable or taxable? In Manufacturing Co. v. Newell, 15 R. I. 233, 2 Atl. 766, this court held that, under our statutes, business corporations having capital owned in shares are taxable only for real estate and such personalty as is described in Pub. St. R. I. c. 42, § 11, which is identical with Gen. Laws R. I. c. 45, § 11. Chemical Works v. Ray, 19 R. I. 302, 33 Atl. 443, follows Manufacturing Co. v. Newell. The agreed facts in this case show that the capital stock of said corporation is divided into

1"Sec. 2. The said corporation shall have power to have and use a common seal, and the same to break, alter and renew; to make and ordain such constitution and by-laws, not repugnant to the constitution and laws of the state and of the United States, as they may think proper, and the same to modify and repeal at pleasure; to take, hold, and convey real and personal property to an amount not exceeding fifty thousand dollars, and which real and personal property may be divided into such a number of shares and of such amount as may be determined by the said corporation, and which shares shall be deemed personal property, and be transferred as such, according to such rules and conditions as the said constitution and by-laws may prescribe."

shares; and hence, although it is not a manufacturing corporation, or perhaps a business corporation, strictly so called, yet, as it falls within the class of corporations whose capital stock is divided into shares, it is governed, for the purposes of taxation, by the provisions of said chapter 45. The theory upon which the statute is based evidently is that all of the personal property of manufacturing and business corporations, other than that enumerated in section 11, is represented by its corporate stock, and that this is taxed to the individual stockholders. That a large amount of property does, in fact, escape taxation under this system, is matter of common knowledge, corporations not being required to make returns to the assessors of the amount of stock held by individual stockholders, unless specially requested so to do. Gen. Laws R. I. c. 46, §§ 11, 12. But this is a matter where the remedy lies solely with the general assembly. We may here remark that, when the statute relating to taxing manufacturing corporations was originally framed, it was probably not contemplated that social clubs and societies, like the one before us, would have capital stock divided into shares, and hence no special provision was made for them, nor has any subsequent legislature attempted to classify them. But as they are clearly not religious or charitable organizations, and are, to a certain extent, business corporations, and divide their capital stock into shares, we think they must be classed as aforesaid. The expression "business corporations," as used by Durfee, C. J., in Manufacturing Co. v. Newell, supra, is not now, and, so far as we are aware, never has been, known in our statutes regulating the levy, assessment, and collection of taxes. But it probably was intended to include all corporations "having capital owned in shares," and which are not religious or benevolent corporations. As well argued by the counsel for said Newport Reading Room, "two principles are embedded in the Rhode Island system of taxation of corporations; one being that double taxation shall be avoided, and the other that nonresidents of the state shall not be called upon to pay taxes upon personal property (through their ownership of corporate stock) other than upon the specific personal property which is mentioned in the second clause of section 9 and in section 11 of chapter 45 of the General Laws. It is quite clear that both of these principles would be invaded if the tax in dispute should be declared to be valid. Eighty-eight of the 147 stockholders are nonresidents of Rhode Island. If a tax is imposed upon the personal property of this corporation, each of these 88 nonresidents would have to pay his proportionate share of such tax; and, similarly, all of the 59 resident stockholders, besides paying their respective taxes as individuals (presumably a part of which falls upon their ownership of the stock of this corporation), would be compelled to pay (through the cor44 A.-33

porate tax) a tax upon personal property which has already borne its share of the burden of taxation. It is to be presumed that the assessors have discharged the duties imposed upon them by Gen. Laws R. I. c. 46, §§ 11, 12, and that every resident stockholder has been assessed for the "difference between the cash market value of each share by him held and the proportionate amount per share at which the real estate" of the corporation was last assessed. Another reason why the tax in question is not collectible is that the assessment roll fails to show that the assessment was limited to the kinds of personal property mentioned in Gen. Laws R. I. c. 45, § 11. Manufacturing Co. v. Newell, supra; Chemical Works v. Ray, supra; Hall v. Bain, 18 R. I. 413, 28 Atl. 371. For the reasons above given, our opinion is that the tax assessed on the personal estate of said Newport Reading Room is illegal, and hence not collectible.

JOHNSON et al. v. STITT et al. (Supreme Court of Rhode Island. Oct. 7, 1899.) EASEMENTS-ABANDONMENT.

Where the grantee under a deed is, by the same instrument, given an easement in land adjoining, his mere acquiescence in the occupancy and control of such land by others for a shorter period than 20 years, unaccompanied by other and active evidences of an intention to abandon same, will not, of itself, constitute an abandonment of the easement, and estop him from claiming a right thereto.

Bill for injunction by Frederick P. Johnson and others against Seth B. Stitt and others. Writ granted.

The following is a plat of the land in con

of the respondents. The case shows that on March 3, 1879, the respondent Seth B. Stitt conveyed to William H. Smith, the complainants' ancestor in title, the lot of land delineated on the plat or sketch hereto attached as "Lot A." At the time of the making of the conveyance to said Smith, Stitt was the owner of all the land delineated on said plat, and, in connection with others, who formerly owned the land with him as tenants in common, had previously caused a plat thereof-of which the one above delineated is a reproduction in so far as it concerns the questions raised by this bill to be recorded in the records of land evidence of the city of Newport. In the partition deed of the premises represented by said plat, made on March 30, 1878, it is stated that "Touro Park Place is for the exclusive use of the estates partitioned hereby abutting thereon." It is also referred to therein as a "way." In the deed from Stitt to Smith the lot is bounded "east on a way twenty feet in width, then measuring sixty-eight feet and nine-tenths." And in a previous agreement to sell said lot, made on July 31, 1878. Stitt says that he "has sold to Wm. H. Smith a lot of ground on Pelham St. adjoining the property of said Smith and R. R. Hazard and the court, as per map on file in this city," etc. Although the answer denies that it was the intent of the grantor to convey any rights of way by said deed to Smith, yet this position is not seriously urged in argument, nor do we see how it could be, as the language of the agreement to sell and of the deed, taken in connection with the conduct of the grantor in the making and recording of said plat, conclusively shows that he intended to convey a right of way in said "Touro Park Place." See Chapin v. Brown, 15 R. I. 579, 10 Atl. 639. And, moreover, not only was a right of way conveyed by said deed to Smith, but also the deed bounding him on said way-a fee in the land itself to the center of said way. Anthony v. City of Providence, 18 R. I. 699, 28 Atl. 766; Bentley v. Root, 19 R. I. 205, 32 Atl. 918; Jones, Easem. § 421.

It clearly appearing, then, that Smith acquired a right of way in the whole of said strip of land, as well as the fee to the center thereof, by virtue of his deed from Stitt, the next and only other question in the case-and this is really the only question before us-is whether he subsequently abandoned the same, or, by acquiescing in the occupancy and control thereof by the respondents, estopped himself from claiming a right in said way. The substantive facts bearing upon the question of abandonment are these: The strip of land designated as "Touro Park Place" has never been used as a way. In 1879-80 Mr. Stitt erected an expensive summer residence on his said land, laying out the grounds thereof so as to include all of said way. He also erected an iron fence on his lot, which extended across the end of said way next to Pelham street, and this fehce has since been maintained as thus erected. At the time the fence

was erected Mr. Smith lived in his house near by, and knew of the building of the fence, and made no objection thereto. After the iron fence was erected, the slat fence around Smith's lot (purchased of Stitt) was removed, except in front, and a post was set in the ground in the place of the fence post removed at the southeast corner of the lot, Stitt and Smith being present when it was set. Since then the Smith and Stitt lots have been as one, so far as fences are concerned. The driveway from the west entrance of the Stitt estate to the stable crosses the southeast corner of said way. No building or structure of any kind has ever been erected on said way, although it has been laid out and occupied by Stitt as a part of his estate ever since the erection of said fence. He has cut the grass growing thereon, and also cultivated flowers thereon to some extent, and has used a part thereof in connection with his driveway, as aforesaid. In 1878 the land included in said "Touro Park Place" was taken off the city tax list by the assessors, since which time it has not been assessed to any one, and no one has paid taxes thereon. The Smith lot has been unimproved beyond the growing of trees thereon and the cutting of the grass, and Smith has held it for sale, except a strip 10 feet wide on the west, as shown by his letters to Stitt soon after its purchase, and by the following advertisement of the same for a month in 1896 in a Newport newspaper, viz.: "For Sale. For sale, lot on Pelham street, opposite band stand; about 4,828 square feet. Way 20 feet wide to be opened beyond east line, used free of cost. Part can remain on mortgage at 5 per cent. Inquire at 135 Pelham street." In view of the foregoing facts, respondents' counsel argues that, the complainants' ancestor in title having stood by and seen respondents lay out their grounds, and erect an expensive residence thereon, together with an iron fence, which cuts off said way, the case falls within the equitable rule of abandonment of the right of way. The question of abandonment, in a case of this sort, is one of intention, and must, therefore, be determined by the particular facts which are made to appear therein. Washb. Easem. (4th Ed.) 709. Mere nonuser of a way, while it may be evidence of an intention to abandon it, will not operate to extinguish the same unless the nonuser has continued for at least 20 years. Steere v. Tiffany, 13 R. I. 568. And many cases hold that, where the easement is created by grant, it cannot be lost by mere nonuser for any length of time. These cases are collected in 10 Am. & Eng. Enc. Law (2d Ed.) p. 436, in note 2. See Welsh v. Taylor, 134 N. Y. 450, 31 N. E. 896; also, Snell v. Levitt, 110 N. Y. 595, 18 N. E. 370; Jones, Easem. § 863. In the case before us the proof shows that the nonuser has not continued for 20 years. It also fails to show any acts on the part of the owner of the dominant estate which clearly indicate an intention to abandon the way in question. And