estop the defendant from denying that there was any such right. Not only is it spoken of merely as something that "may" exist, but this is coupled with the provision, equally operative in favor of both parties, that the "conveyance is not to affect any such rights." It is urged that the trial court has found as a fact that the intent of the Curtis deed was to retain in him and his heirs and assigns a permanent right of way over the railroad as an appurtenance to the land on each side of the granted premises, and that such an inference of fact from other facts is not the subject of review on appeal. The judgment obtained by the plaintiff is finally rested by the finding in the alternative upon one or the other of two inconsistent grounds, either that the provision in the Curtis deed as to a on this point, the defendant's exception is well taken to the refusal of the trial court to find that this northerly parcel was surrounded on all sides by lands of private owners, across which it had no appurtenant rights of way. The only evidence as to this, adduced by either party, was the three deeds to and from Curtis. These disclosed no rights of way, and none were to be presumed. No other conclusion could be legally drawn from them than that the back lot was left by the deed in an inaccessible condition, except so far as either the deed itself or the law provided otherwise. No harm, however, was done to the defendant by the refusal to find this fact. If a way of necessity existed in favor of the back lot, it ceased when the necessity ceased, and that was when Danforth Knowlton, in 1885, acquired title to the adjoining land to the north-crossing constituted an exception, or, if this ward, bounding on a highway. But whether one ever existed or not did not affect the duty of the railroad company under the deed. The terms of that instrument required of it the construction of a crossing for a single purpose, and that was to allow some one, not named, "to pass to the back land, with cart or otherwise." This reference to the "back land" naturally imports that the reservation was for the benefit of the owner of both lots, to enable him to go from one part of his farm to another. It was not a way between the back lot and the highway that the parties had in mind, but one between the back lot and the front lot. So long as there was unity of ownership as respects these two parcels, such a way was reserved to the grantor and his heirs or assigns. To limit it to his life would not satisfy the obvious purpose of the conveyance. But, when the title was severed by the conveyance of the front lot by Booth to Chambers in 1880, the obligation of the railroad company to permit the use of the crossing came to an end. The two lots were thenceforth held by different owners, and there could be no occasion to go as a matter of right from one to the other. The adverse user by Booth and his assigns since 1880 is unimportant, as it was stopped by the act of the defendant which is complained of before the lapse of 15 years. The superior court had the right to take judicial notice of the historic fact that the railroad between New Haven and New York was opened by January 1, 1849. The opening of a new railroad for public use is one of those events of public notoriety which are to be taken as known by the courts because they are known to everybody. It is a great geographical change, like the bursting out of a new river from the earth, to serve as a highway of commerce in new directions. But the user of the crossing after that date down to 1880 could found no prescriptive right, since it was authorized by the Curtis deed. The reference in the deed of July, 1893, from the plaintiff to the defendant to "any right of way or farm crossing that may exist" in his favor over the railroad did not be not so, that the plaintiff had a prescriptive title by adverse use. These are expressly stated to be conclusions of law, and the preliminary finding as to a right of way under the Curtis deed, appurtenant to the entire premises, while described as an inference of fact, is essentially one of law, for it must be read in connection with the final adjudication that this right is of the character of an exception. The terms of the deed are before us, and also the situation of the premises, and the acts of the parties in the nature of a practical construction of the right reserved. The main question is as to the meaning of the words they used, and proceedings in error would often be but an illusory remedy were an appellate court to be considered as bound in determining such a question by the opinion of the court below whenever that is based in part on circumstances attending or following the transaction, notwithstanding these are fully spread upon the record. Whitman v. Arms Co., 55 Conn, 247, 249, 10 Atl. 571; Nolan v. Railroad Co., 70 Conn. 159, 174, 176, 39 Atl. 115. There is error, and the judgment is reversed. The other judges concurred. BOTSFORD v. WALLACE. JUDGMENT — RES ADJUDICATA—INJUNCTION-- ACT-COMPLAINT-AMENDMENT. 1. A judgment against the plaintiff, declaring that a deed could not be varied by parol evidence of an oral agreement between the parties as to the right to use a passway, in an action involving land to which he claimed legal title, is not a bar to a suit in equity to reform such deed on the ground that defendant bought the land with notice of the agreement. 2. An injunction will not lie to restrain the erection of a building covering a passway of the plaintiff to a building on his land, and preventing the light and air from entering his building, as he has an adequate remedy at law. 3. The division of a general defense in an action in equity into separate defenses is unnecessary under the practice act, by which the formalities of common-law pleading are abolished. 4. Where a demurrer has been sustained to a complaint in an action to restrain the erection of a building on plaintiff's land, it is error to disallow an amendment adding a claim for damages. Appeal from superior court, New Haven county; Alberto T. Roraback, Judge. Action by Stanley Botsford against Frank A. Wallace. From a judgment for defendant, plaintiff appeals. Reversed. A demurrer having been sustained (Prentice, J.) to the original complaint, a substituted complaint was filed, stating this case: The plaintiff was a grantee of land in Wallingford by deed from Lewis A. Young. Young's title came from Lorenzo Lewis by a deed containing a certain provision as to a 20-foot wide back yard and a 10-foot passway. The plaintiff had refused to buy of Young, unless Young could get a conveyance from Mary E. Lewis, the successor in title to Lorenzo Lewis, which would assure Young and his assigns against any interference with their use of this 20-foot space to build on, or of the passway. Young told this to Mary E. Lewis, and she thereupon agreed to convey to him an absolute right of way over said passway. The conveyance was drawn and executed on December 17, 1883, but the scrivener by mistake omitted to include the right of way, though he informed both parties to the deed that it was thereby conveyed, and such was their intention. Young thereupon gave the plaintiff a warranty deed of the premises bargained for, including the right of passway. The plaintiff at once put up an expensive brick building on the land, occupying part of the 20-foot space, and extending to within 1 foot of the passway, and deriving a large part of its light on the south side from the passway; which passway he has ever since used daily, under a claim of right. In 1890, Mary E. Lewis sold to the defendant the land covered by the passway, he having full notice of all the foregoing facts. He thereupon refused to allow the plaintiff to use the passway, or to join in rectifying the error in the deed of 1883, and since the commencement of this action has erected a permanent building, covering the passway, and also part of the plaintiff's land adjoining thereto, which wholly prevents light and air from entering the first-story windows on the south side of the plaintiff's building; and he intends to maintain said building. The claims were for (1) a reformation of the deed of 1883, and (2) an injunction against obstructing the passway, or (3) the plaintiff's said windows, and (4) against erecting or maintaining a building upon land of the plaintiff, and adjoining said windows. A demurrer was filed to the fourth prayer for relief, because there was remedy at law, and also because the building was already erected, and sustained (Roraback, J.) on the latter ground. An answer was then 1 This and the other deeds in question are described in the report of Botsford v. Wallace, 69 Conn. 263, 37 Atl. 902. filed specifying three separate defenses. The first was res adjudicata, based on the judgment in the former cause between the same parties, reported in 69 Conn. 263, 37 Atl. 902. The second was mainly a series of denials, fortified as to certain points by a repetition of the claim of res adjudicata. The third defense set up that the plaintiff, before the defendant's purchase, had built on most of the south half of the 20-foot space, and fenced up the residue of it so as to exclude the defendant's grantors from any use of it, and the plaintiff had no right to a passway at the time of said purchase. A demurrer to the first and third defenses was overruled (Roraback, J.), and leave granted to amend the complaint. Thereupon the plaintiff filed an amendment by adding as a fifth claim for relief, "$5,000 damages." This amendment the court disallowed, and thereupon rendered judgment for the defendant. Henry G. Newton, for appellant. John W. Alling and Oswin H. D. Fowler, for appellee. BALDWIN, J. (after stating the facts). In the former action between these parties (Botsford v. Wallace, 69 Conn. 263, 37 Atl. 902), the plaintiff asserted in his complaint a legal right to the passway in question by virtue of a paper title under sundry conveyances from Lorenzo Lewis, Mary E. Lewis, and Lewis A. Young. The decision was that he had no such right. He also sought upon the trial to affect the construction of the deed of December 17, 1883, from Mary E. Lewis to Lewis A. Young by evidence of an oral agreement on her part to convey thereby a right to use the passway, notwithstanding anything that might be done in building on the 20-foot back yard, and that she so agreed because Young told her that otherwise the plaintiff would not buy of him. The decision was that the deed could not be thus varied by parol. The main object of the present action is to reform the deed of December 17, 1883, by making it what the parties to it intended it should be; the averment being that the defendant bought with notice of the plaintiff's equity. In one suit the plaintiff declared that he had a legal title; in the other he declares that he has none, but that the defendant is equitably bound to give him one. These causes of action are radically different, and the demurrer to the "first defense" should have been sustained. The "third defense" rested on the legal effect of the deed from Lorenzo Lewis, under which the passway was originally created. The complaint alleged an agreement on the part of Lewis' successor in title to surrender any reserved rights, and make the right to use the passway absolute and unconditional. If there was such an agreement, and the defendant purchased with notice, equity would require him to abide by it; and the fact that the plaintiff had no legal title would be the very reason why he should be given one by order of court. There was also error, therefore, in overruling the demurrer to this defense. It is urged that in the pleadings in the former action the defendant set up in his rejoinder that he was a purchaser without notice, and that the plaintiff, by not denying this allegation, admitted its truth, and so is precluded from now raising the same question again. Such would be the case if the questions were the same. But the averment thus admitted to be true was that there was "no agreement in writing between Lewis A. Young and Mary E. Lewis" for her releasing her right to use the 20-foot space, so as yet to leave the right to use the passway in full force in favor of Young and his assigns, and that the defendant bought without notice of "any such agreement." The present action counts on no agreement in writing, but on notice of one resting in parol, evidence of which was properly excluded in the former suit. The division of the answer into three separate defenses, each entitled as a separate piece of pleading, was unnecessary. Our practice act has more resemblance to the English judicature act than to the codes of civil procedure of most of the United States. Its great object was simplicity. With this view, it discarded the technical formalities of pleading at common law, and followed in the main the practice in equity. Each party is to tell his story in plain and concise terms, and to divide it into short paragraphs. Gen. St. § 880. The denial of any paragraph containing a material allegation constitutes an issue of fact. No issue is to be joined on a demurrer. Practice Book, p. 17, § 12. Different and distinct causes of action, if joined in one suit, should be set out in separate counts, and in such case matters of defense appropriate to one of them only are to be separately pleaded. Id. § 8; Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 563, 29 Atl. 76. But in ordinary cases, brought upon a single cause of action, or one founded on a transaction which may give several causes of action not clearly distinguishable from each other, the old rules of equity procedure are to be followed, and all matters of fact involved in the defense combined in a single answer, divided only by paragraphs. Appeal of Freeman, 71 Conn. 708, 43 Atl. 185. An answer in chancery often contained matters in avoidance, some of which were untrue, and others impertinent or insufficient. The defendant could except to the latter and deny the former. He had no right to ask for a separation between them, so that those of each description should be grouped into a separate and single defense or piece of pleading. However advisable, in early days of English history, it might have been to divide up legal pleas in this way, so as to narrow the issue to a single point easily to be comprehended by a jury, the courts of chancery saw no occasion for embarrassing their own procedure by such artificial refinements. They preferred to have the parties state their case in the natural way. Any point of law which might thus appear could be taken up separately, and, if dis closed on the face of the bill, would properly be raised by a demurrer; but such a demurrer rarely ran against the whole pleading. The present practice in the chancery division of the high court of justice, under the orders of court resting on the judicature act, is even simpler. No demurrer is allowed. If either party disagrees with the other as to the legal effect of an allegation in the "statement of claim" or "statement of defense," he asks to have the point of law thus raised set down for argument. Its disposition may simply clear the way for a trial of the facts, or it may control the judgment. Thus, in a case arising soon after the promulgation of the orders of court of 1883, by which demurrers are abolished, the plaintiff alleged that the defendant had certain lands under a devise absolute in terms, but really subject to a secret trust, which was void under the law of mortmain. He therefore sued, as the heir of the devisor, to enforce a resulting trust. The "statement of defense" (a single piece of pleading) was: First, that there was no secret trust; and, second, that, if any, it was valid under a certain statute of 43 Geo. III. The plaintiff had the point of law thus raised set down for argument. It was decided against him, and thereupon final judgment was rendered for the defendant. O'Brien v. Tyssen, 28 Ch. Div. 372. It is these principles of equity pleading that our practice act has preferred to the rigid and artificial methods of the common law. Gen. St. § 877. We have given this explanation of their application at greater length than might otherwise have seemed necessary had not the present case been one of several which have recently come up on appeal in which the provisions of the practice act have been disregarded in a way indicating a radical misapprehension of their purpose and effect in unifying and simplifying all pleadings in civil actions. In the case at bar it was claimed in defense that by excluding the defendant's grantors from any use of the 20-foot back yard the plaintiff had destroyed his right of way, if any he ever had; that this had been decided in the former case; and also that several of the averments in the complaint were untrue. In one sense, these are several and separate defenses. In another, they are one general answer to the plaintiff's case, and as such they could be most simply presented and most conveniently considered if grouped together, under suitable paragraphs, in a single and otherwise undivided statement. There was no error in sustaining the demurrer to the fourth claim for relief. If the defendant had placed a building on land of the plaintiff, there was adequate remedy at law. This was not the particular ground upon which it was sustained, but it was properly presented, and supports the judgment. That the building had been erected pending the suit was not, of itself, any bar to a claim for an injunction against its continued maintenance. Enfield Toll-Bridge Co. v. Hartford & N. H. R. Co., 17 Conn. 40, 65. There was error in disallowing the amend-, The court found, as claimed by the defendment adding a claim for damages. It is true ant, that in the presence of certain other perthat for a wrong committed pending the suit sons, who were witnesses on the trial, he paid by building upon the plaintiff's land they $490 to said Louis Spiro upon the note, and could not properly be awarded. Woodbridge afterwards paid the remainder of the note by v. Pratt & Whitney Co., 69 Conn. 304, 334, 37 check before the same was indorsed by the Atl. 688. But if he had built upon his own plaintiff. Such payment was denied by the land, in such a way as to infringe the rights payee. The trial judge found the following of the plaintiff by darkening his windows further facts: "The plaintiff, Benjamin Spiro, and obstructing his passway, it might be that claimed to have paid his brother, Louis, the pecuniary compensation would be a remedy sum of $135, in five different payments, for more appropriate than an injunction to com- said note, and that he was the good-faith pel the removal of the structure, or one that holder of the same; but the evidence, and all might be given as an alternative to that. the facts sworn to connected with the case, The plaintiff lost any right to a review of did not convince me that he was an innocent the ruling that the original complaint was in- bona fide holder for value. On the cross-exsufficient when he filed his substituted com- amination of Louis Spiro, the plaintiff's witplaint. Goodrich v. Stanton, 71 Conn. 418, ness, defendant's attorney asked him if he 424, 42 Atl. 74. There is error. The judgwas the same person who had a lawsuit with ment is set aside, and the cause remanded, his brother, the present plaintiff, in 1890, in with directions to vacate the order disallowing this court. The plaintiff objected to this the addition of the fifth claim for relief, and question as being immaterial and irrelevant. to allow the same, and to reverse the orders Defendant's counsel stated that the case reoverruling the demurrer to that part of the ferred to was tried before his honor, Judge answer contained in the first and third deCowell, and that at that trial said Louis Spiro fenses. The other judges concur. committed rank perjury, and that he was not entitled to belief in the present case. Plaintiff's counsel protested against this statement, and said it was not proper to attempt to influence the court in that way. The court admitted the question for the purpose of identification, without comment, the plaintiff duly excepting. The witness answered that he did have a case with the present plaintiff in 1890. On the argument of the case, defendant's counsel stated to the court that the same Louis Spiro had committed perjury before his honor on the case alluded to as having been tried in 1890, and that the court should take judicial knowledge of that fact, as not entitling him to credence in the present case. Plaintiff's counsel protested against this line of argument, but the defendant's counsel was allowed to proceed without rebuke or comment by the court. When the arguments in SPIRO v. NITKIN. (Supreme Court of Errors of Connecticut. TRIAL ADMISSION OF EVIDENCE-CROSS-EX- court. 2. A statement by defendant's counsel while attempting, by a question, to identify the witness as the same person who had a lawsuit with his brother, the present plaintiff, at a former time, before the same court, to the effect that the witness on such former trial had committed "rank perjury," is not sufficient ground for a new trial where the case was not tried before a jury. 3. Where findings show that, after the arguments were closed, defendant's counsel placed on file and handed to the court a brief in which he discussed questions material to the case, and that the court read the brief before deciding the case, and it does not appear that the brief was ever submitted to the opposing counsel for examination, or that they had any knowledge of its filing or its contents, plaintiff is entitled to a new trial, though the trial judge said, in rendering his decision, that he was not influenced by such brief, as such an irregularity amounts to a denial of the right of plaintiff to be heard in court. Appeal from district court, New Haven county; George H. Cowell, Judge. Action by Benjamin Spiro against Abraham Nitkin on a note. There was a judgment for defendant, and plaintiff appeals. New trial granted. The defendant was the maker of the note in question. The payee was one Louis Spiro, who indorsed the same to his brother, the plaintiff, before the maturity of the note. said case were closed, October 5th, defendant's counsel placed in the file, with the other papers and exhibits used in the trial, and handed to the court, a written brief which he had prepared in the case (Exhibit XX), plaintiff's counsel making no objection, and the court making no ruling thereon. The court placed its copy on the file also, and did, as a matter of fact, read said brief prior to rendering its decision on October 8, 1898. The court had formed its judgment in the case at the time said arguments were finished, and said brief had no influence whatever in causing a decision for the defendant." Albert P. Bradstreet and Charles G. Root, for appellant. John O'Neill, for appellee. HALL, J. (after stating the facts). Upon the trial of an action, the parties, as a general rule, are permitted to present only such evidence as will affect the questions which are within the issues framed. An exception to this rule is that which renders, admissible in a suit with his brother upon a former occasion before the same court which tried this case. We do not regard the statement of defendant's counsel to the court that the witness Louis Spiro committed "rank perjury" upon the trial of the former case as sufficient ground for granting a new trial, especially as this case was not tried to the jury. While new trials are sometimes granted for permitting such remarks in the presence of the jury, transgressions of those rules of professional propriety which should govern attorneys during the trial of causes usually furnish reasons for action by the trial court, rather than grounds for an appeal to this court. State v. Hamilton, 55 Mo. 522. The finding shows that when the arguments in the case were closed counsel for defendant placed in the file, with other papers and exhibits, and handed to the court, a written brief, in which he discussed the question of the alleged perjury of Louis Spiro in the former case, and the questions relating to the plaintiff being a holder in due course of said note, and other questions material to the case, and that the court read this brief before deciding the case. The finding states that the plaintiff made no objection, but it does not appear that this brief was ever submitted to opposing counsel for examination, or that they were informed that it was proposed to file such a brief, or that permission of the court was asked to file it, or that counsel for plaintiff had, until after the decision of the cause, any knowledge of the matter, excepting that they may, without knowing its character, have seen the document placed in the files. In their brief in this court plaintiff's counsel insisted that the brief in question was not referred to in the oral argument in the trial court, and that it was submitted to that court without their knowledge. We find no denial of these claims. in the brief of the defendant. It is an undoubted right of the parties to an action to be heard by argument upon fairly debatable questions of fact raised by evidence in the case. This right is subject to certain reasonable limitations by the court. But the parties are always entitled, before the decision of their case, to a fair opportunity for discussion by their counsel of the questions so presented. Boone's Weeks, Attys. at Law, p. 240, § 110; Douglass v. Hill, 29 Kan. 527. To permit the counsel upon one side of a case to argue it in the absence of his opponent, and without his knowledge, or notice to him, and without giving him an opportunity to reply, would be such a denial of the right of a party to be heard in court, and such a departure from the usual and regular methods of procedure, as would warrant the granting of a new trial. As we interpret the finding before us, that was the practical effect of the filing by counsel and the reading by the court of the brief in question. Assuming that there was no intention to conceal the filing of this brief from plaintiff's counsel, and that |