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consequences of his act, the respondent should be presumed as intending to miss the complainant, and not to hit him. The judge correctly ruled, we think, that the principle invoked by the defense does not apply where a criminal act was intended, but not accomplished. The maxim appealed to is not of universal application. A person does not intend to do an act unintentionally. It would lead to the absurd proposition of saying that if a man intended to hurt another, but accidentally hurt himself, instead of the other person, he consequently intended to hurt himself. Anything done accidentally cannot be done intentionally. the respondent hit a person standing where the key-board was, although he aimed his rock at the head of the complainant, and there were an indictment against him for an assault on such other person, then the presumption invoked here would be applicable. State v. Gilman, 69 Me. 163. In fact there is no such legal presumption. It is merely a presumption of fact which the law sometimes sanctions or approves, or allows a jury to act upon; and the admission that it is an inference of fact, and not of law, proves that its application depends on varying circumstances. Whart. Cr. Ev. (8th Ed.) § 734, and following sections.

It is urged that the terms an assault with intent to commit murder, or to commit manslaughter, are illogical, and not intelligible to common minds. But we think the difficulty disappears when accompanied with the explanation that an assault of that kind means with the intention to commit such criminal acts as would, when committed, amount to the one crime or the other. It is not to be supposed that any criminal really appreciates in his own mind, when meditating the commission of crime, the exact degree of the offense he may be guilty of,-whether murder in the first or second degree or manslaughter, -and that can only be determined by the result of his criminal act; and here it is where the presumption before discussed has an application, and where a jury would be authorized to say that he intended to do the particular act actually done by him. Exceptions overruled.

DIBBLE et al. v. DEERFIELD RIVER CO. (Supreme Court of Vermont. Bennington. July 31, 1897.)

VENDOR AND PURCHASER-ASSUMPSIT-PLeas

REPLICATION.

1. In special assumpsit, on allegations that plaintiffs contracted to convey to defendant by quitclaim deed certain land in their possession to which they had color of title, and that they had tendered the deed thereof, which had been accepted, but the consideration not paid, five pleas were filed, four of them denying possession of the lands by plaintiffs, as well as any interest or title to them, while the other denied the acceptance by defendant of the deed. Held, that the four pleas were good, but the other insufficient.

2. To the above pleas a general replication was filed, denying "each and every material fact" in the pleas. Held, that the replication was bad 38 A.-11

for duplicity, not coming within the exception provided for by V. S. § 1151, which allows a general replication only to pleas in confession and avoidance.

3. Upon above allegations, a plea that, although the defendant took possession of the land, he did so under another deed, conveying an interest adverse to that of plaintiffs, is not a plea in confession and avoidance, within said exception.

Exceptions from Bennington county court; Thompson, Judge.

Special assumpsit by Dibble & Canedy against the Deerfield River Company. A demurrer to the replication was overruled, and the cause passed to the supreme court on defendant's exceptions before final judgment. Reversed.

Henry A. Harman, for plaintiffs. Charles S. Chase and Batchelder & Bates, for defendant.

MUNSON, J. It is alleged in both special counts that the plaintiffs were possessed of a certain parcel of land under color of title derived from a certain warranty deed, and that, in consideration of their undertaking to execute to the defendant a quitclaim deed conveying all their right, title, interest, and estate in and to said parcel, and to forward the same to the Wilmington Savings Bank for the defendant, the defendant undertook to accept said deed, and pay a specified sum for such right, title, interest, and estate, and that the plaintiffs did execute such a deed, and delivered the same, as required, and that the defendant. with knowledge of these facts, took possession of said land. In the first count it is alleged that the defendant would not accept the deed, nor pay for the interest conveyed. In the second count an acceptance of the deed is alleged, and the assignment of the breach is confined to the nonpayment. In the first plea to the first special count, it is alleged that the plaintiffs were not possessed of said parcel, and that, although the defendant took possession of it, it did so under another deed, conveying an adverse interest. In the second plea to the same count it is alleged that the plaintiffs had neither possession, nor right, title, interest, or estate. The first plea to the second special count alleges that the defendant did not accept the deed. The second and third pleas to that count are substantially the same as the pleas to the first count, with a further allegation denying that the defendant took possession of the deed. The replication is to all these pleas, and is that the plaintiffs "deny each and every material fact so by the said defendant pleaded, as aforesaid." The replication is demurred to, the causes specially assigned being its failure to deny and put in issue any single and material fact stated in the plea, and its duplicity in putting in issue two or more several and distinct matters. Both counts disclose a cause of action. They show that the defendant agreed to pay a specified sum for a quitclaim deed of certain land of which the plaintiffs were in possession under the color of title afforded by a warranty deed, and that the plaintiffs executed and delivered a quitclaim deed of all their right, title, interest, and estate in and unto said land.

Both pleas to the first special count and the second and third pleas to the second special count are good in substance. They allege that the plaintiffs were not in possession of the land described in the deed tendered. If this was true, the tender of the deed did not fulfill the plaintiffs' agreement, and the defendant was not bound to accept it. The plaintiffs undertook to give a quitclaim deed of land of which they had not only obtained a warranty deed, but of which they were in possession. Their possession of the land was a material element of what they undertook to convey. That possession might give value to the quitclaim, even though the previous warranty was worthless.

The first plea to the second special count is bad. The denial of an acceptance of the deed does not answer the count. The defendant was liable if the plaintiffs had tendered a deed which the defendant was bound to accept.

It is clear that the replication is bad at common law, and we do not understand counsel to claim the contrary. V. S. § 1151, permits a general denial only as against matter pleaded in confession and avoidance. So, if these pleas are held to be not of that character, the insufficiency of the replication is established. None of the pleas admit the facts alleged, and avoid their effect by the introduction of new matter. All the pleas held good deny the possession of the plaintiffs, and the allegation of some of the pleas that, although the defendant took possession of the land, it did so under another deed, conveying an adverse interest, does not admit a taking of possession in the sense charged. pleas not being in confession and avoidance, the replication is clearly insufficient.

The

Judgment reversed, and demurrer sustained. Judgment that the replication and third plea are insufficient, and that the first, second, fourth, and fifth pleas are sufficient, and cause remanded, without costs to either party.

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source.

2. Where a covenant in a deed to land granting water privileges connected with a dam provided that the covenantee should "be at one-half the expense of keeping the dam in repair," equity would not compel the grantee to contribute to building a new dam after the old one was swept away, since equity will not in the least enlarge the fair scope of such a covenant.

3. Plaintiff, owning a water privilege connected with a dam, cannot recover from defendant, owning another privilege, connected with the same dam, on a covenant of defendant with his grantor to contribute to the rebuilding of said dam when necessary, where such grantor was not plaintiff's grantor.

4. A deed granting water privileges, not to be used "to the injury of privileges granted hereto

fore," creates no burden upon such previously granted privileges, and hence the owners thereof are not bound to contribute to the rebuilding of a dam upon which depend all of said privileges. 5. A deed granting merely the right of drawing water from a dam imposes no obligation upon the grantor or his assignee to rebuild the dam when swept away.

Appeal from chancery court, Orleans county; Taft, Chancellor.

Bill by Israel Trudeau against Clarissa Field and others. From a decree sustaining a demurrer and adjudging the bill insufficient, orator appeals. Affirmed.

W. W. Miles, for appellant. John Young, for appellees.

ROSS, C. J. The demurrer challenges the sufficiency of the facts set forth in the bill to entitle the orator to the relief prayed for. The bill sets forth: That on August 26, 1827, Calvin Harmon and D. W. Harmon owned land on both sides of Black river, in Coventry, on which there stood a saw mill and a grist mill, operated by a water power created by a dam across the river immediately above the saw mill. That on that day, by a deed containing the usual covenants, they conveyed the grist mill, with the land on which it stood, and certain rights in the water power, to Elijah Cleveland & Co., which company was a partnership, consisting of Cleveland and three others. In the descriptive portion of the deed is this clause: "Cleveland & Co. to be at one-half of the expense of keeping the dam in repair." That by subsequent conveyances by Cleveland alone his right and title in the grist-mill property and water rights vests now in the defendant Clarissa Field and the other defendants interested with her. The bill does not show whether or how the rights of the other three partners, if at all, became vested in Cleveland, but it alleges that the condition or agreement in regard to bearing one-half the expense of keeping the dam in repair was in the subsequent conveyances. The bill then states that on April 6, 1836, Calvin Harmon, without stating whether he had become possessed of the rights and title of D. W. Harmon therein, conveyed another portion of property by metes and bounds, and therewith certain water rights connected with the water power and dam, to Elijah Cleveland. This conveyance was by deed poll, and contained in the descriptive part of the property and rights conveyed this provision: "Provided, nevertheless, that it is understood and agreed that the said E. Cleveland shall be holden and bound to be at one-twentieth part of the expense of keeping the dam in repair from which the above water is to be taken." This right is called the "Starch Factory Right," and is restricted to be so used as not to damage the grist-mill right. The bill alleges that this right is now in defendant George D. Walworth. It does not show whether Cleveland owned the grist mill and

its rights and privileges when he owned the starch-factory premises and its rights and privileges. In the chain of title of the starchfactory premises, Cleveland conveys to Aldrich & Burbank, but no subsequent conveyance by Aldrich is alleged or set forth. The deed from Cleveland to Aldrich & Burbank contains the provision in his deed in regard to being at one-twentieth of the expense of repairs of the dam, and adds thereto, "or of building a new dam, should it become necessary." The bill further sets forth that Calvin Harmon alone, by deed, June 11, 1842, conveyed to Benjamin F. Herbert, his heirs and assigns, forever, certain premises, denominated in the deed "a certain piece of land," described as follows: "The right of drawing water from the dam across Black river just above Bean's clothier shop, for the purpose of doing all things that may be done by water power in carrying on the tanning and dressing of leather: provided, at all times, that said water shall not be used for any other purpose, nor to the injury of privileges granted heretofore for other purposes." The deed contains the usual covenants by the grantor of ownership, right, and title to convey, and that the premises are free from incumbrance. It then sets forth a deed by the administrator of Charles F. Herbert to the orator of a tannery and land on which it stands (describing it), "with the privileges and appurtenances thereof." It is not claimed that the last deed conveys what was conveyed by the deed from Calvin Harmon to Benjamin F. Herbert otherwise than what may be included in "the privileges and appurtenances thereof." Although not stated in the bill, it is conceded, on agreement, that Charles F. Herbert took the water rights of Benjamin F. Herbert, and that the former had died intestate before the making of the administrator's deed. The bill then states that Calvin Harmon, by quitclaim deed, conveyed the saw-mill premises to Elijah Cleveland, which, by like conveyances, have come to defendant George D. Walworth; that one of the intermediate conveyances from E. H. Taylor to Henry Hays contains the clause, "And said Hays agrees to do 9/20 of the expense of keeping the dam across the river at the head of the aforesaid mill." All the conveyances are by deed poll. None of them are alleged to have been recorded. Nor is it directly alleged that the conveyance of the right to the water from the dam had ever been put to use, and connected with any tannery works. The dam existing at the time of the several conveyances was swept away, and rebuilt mostly by the orator.

From these conveyances the orator avers and contends that by virtue of the deed from Calvin Harmon-the common source, whence all the water rights sprang-to Benjamin F. Herbert of the tannery rights, and that he, his heirs and assigns, should forever enjoy the rights, an implied covenant arose on the part of the common grantor that there should

forever thereafter be kept and maintained a dam substantially like the one existing at the time of the grant, from which Herbert, his heirs and assigns, could take water as provided in the deed; that the grant was an easement in the premises and water rights then owned by Harmon, consisting of the saw-mill premises, the right to make the owner of the starch-factory premises contribute one-twentieth of the expense of keeping the dam in repair, and the right to make the owner of the grist-mill premises contribute one-half such expense, and that thereby the saw-mill premises, grist-mill premises, and starch-factory premises became burdened with the easement, and bound to keep the dam in repair in such a manner that Herbert, his heirs and assigns, forever thereafter might fully enjoy the rights and privileges conferred by the deed to him from Calvin Harmon. Is this contention sound? In considering the soundness of this contention, we need not consider the nice questions and distinctions which have been taken and established in regard to covenants which run with land, and which are available to the covenantee's assigns, such as whether such covenants can arise on the part of the grantee in a deed poll, whether a privity of estate ex ists between the parties, and whether the covenant on the part of Harmon to Herbert was personal, or a covenant in gross; many of which have been presented in argument, and authorities in support of them cited. This is a proceeding in equity. Equity enforces contracts and covenants in regard to property entered into between prior grantors and grantees in regard to the use of the property, especially if common property, or property descending from a common source, against subsequent owners affected with actual or constructive notice of such contracts and covenants. Pom. Eq. Jur. §§ 689, 1295, 1342. Although not so alleged in the bill, it is probable that all the conveyances set forth of these several properties and rights, surrounding and connected with this water power, were duly recorded, so that the parties to this suit have constructive notice of the contents of the several deeds. It is also probable that the right to take water from the dam given by the deed from Calvin Harmon to Benjamin F. Herbert was in use and connected with some tannery works which were conveyed to the orator by the administrator of Charles F. Herbert, so that the water right then in use would be appurtenant to the tannery premises conveyed. Such use. once established under the deed from Calvin Harmon to Benjamin F. Herbert, would be notice to or put upon inquiry (which would be equivalent to notice) all persons subsequently taking a conveyance of the water rights connected with the saw mill, and probably of the water rights connected with the grist mill and starch factory, because arising from a water power in which all had some common rights. The bill is clearly demurrable as now

framed. For the purpose of passing upon the sufficiency of the bill, if amended, as it probably could be in regard to notice of the orator's rights, we shall consider it as though the amendments. were made. The parties have desired us so to treat it.

The orator's contention is that he has a right in equity, through Calvin Harmon, from whom, in part at least, all parties to the bill derive title to their interests in the water power and water rights, to compel those interested in that power connected with the grist mill and with the starch factory to contribute towards the expense of putting in a new dam in the same proportions which Calvin Harmon, if alive and still owning the saw mill and its privileges, could have compelled them. Granting, for present purposes, without conceding it, that the orator has succeeded to the rights of Calvin Harmon in this respect, could Calvin Harmon have compelled the owners of the grist-mill property and of the starch-factory property to contribute towards building a new dam across the river at that point, in case the old dam should be swept away? We think not. By accepting the property under the deeds from Calvin Harmon, the grantees did not directly nor impliedly covenant nor agree to contribute towards building a new dam in case the old one should perish, or be swept away. They only covenanted or agreed to contribute towards the expense of keeping the existing dam in repair. This is all the record of Harmon's deeds of these rights would notify subsequent purchasers that the grantees had agreed to do. An agreement to contribute towards the building of a new dam is a different thing, and involves different considerations, from an agreement to contribute towards the expense of keeping an existing dam in repair. The former would be for all time during which, by change of conditions and circumstances, the property might have no use, or no profitable use, for the water rights, and might involve large expense. The latter would ordinarily involve much less expense, be limited in duration, and leave the owner of the property the right to elect whether he would further use the power, and so make himself liable to contribute towards its creation and maintenance. Equity does not make contracts for parties; it only enforces those made by them. It does not treat such contracts between prior grantor and grantee, in regard to the use of property, as the personal obligations of subsequent owners, but treats the property as charged with the expenses incurred in accordance with such contracts. Pom. Eq. Jur. supra. The English courts of equity confine relief to such portions of those agreements as are restrictive of the use of the property, and refuse relief when the payment and expenditure of money is required. Manufacturing Co. v. Staples (Mass.) 41 N. E. 441, and cases cited in opinion. But in the United States generally relief is granted against assignees which involves the doing of

positive acts and the payment of money. Manufacturing Co. v. Staples, supra. The ground on which equity furnishes relief, being that an action of law might not be available because the agreement might not be a technical covenant running with the land, inhibits the court from enlarging in the least the fair scope of the original agreement when applied to the circumstances and the property. We think it is clear that Calvin Harmon, against his grantees of the grist-mill premises and the starch-factory premises, if they were now alive and owning the property, had no agreement with them to contribute towards the expense of erecting a new dam if the one existing at the time of the conveyances should be swept away. Much less has the orator against the assignees of such grantees. The orator does not, on any principle in law or in equity, stand so related to the conveyance by Cleveland to Aldrich & Burbank and to the conveyance by Taylor to Hays that he can take advantage of the clauses inserted therein in regard to building a new dam, or keeping the dam. As concerns the orator, those were provisions which apply between the grantors and grantees in those deeds. On these views the orator, on the facts set forth in his bill, if amended as indicated, would have no right to the relief prayed for against the owners of the grist mill and owner of the starch-factory premises.

Has the orator any equitable right arising from the conveyances set forth in the bill to compel the owner of the saw-mill premises and rights to contribute towards building the new dam? By his deed to Benjamin F. Herbert, Calvin Harmon could not impose, and did not undertake to impose, the burden of any easement upon that portion of the common water power and water rights which he had before conveyed with the grist-mill and starch-factory premises. The description of what that deed conveys is peculiar, and should receive attention. It reads: "The right of drawing water from the dam across Black river just above Bean's clothier shop, for the purpose of doing all things that may be done by water power in carrying on the tanning and dressing of leather: provided, at all times, that said water shall not be used for any other purpose, nor to the injury of privileges granted heretofore for other purposes." The privileges before granted by Harmon were the grist-mill and starch-factory privileges. The privilege granted by the deed was not to create a burden upon such privileges, and so become an injury to them. Notwithstanding the deed in the granting part speaks of the premises as "a certain piece of land," the thing described as granted is the right of drawing water from the dam,-clearly an easement, as characterized by the orator in his bill. The deed conveys nothing more; no land; nor does it limit the place whereon the water taken is to be used. From the deed the easement granted cannot be determined to be an appurtenance to any other particular premises. From the ree

ord of the deed no subsequent purchaser of other rights in the water power would receive actual or constructive notice that the right granted was an appurtenance of any certain premises. It was an easement to which, by the terms of the grant, the dam then in existence was servient, and only to the extent the grantor was owner thereof. The dam existing was subject to decay, and to destruction by decay, or by being swept away by the water. The easement arose from the power created by that dam. It was an easement or right to use for service a structure which of itself was perishable. The grant by Harmon to Herbert of this right forever was a grant of it only so long as it continued in existence. It was not unlike the grant of a way through a part of a building which one owns to another part of the same building which the grantee has the right to use. When the building decays, or is destroyed by fire, no grant to rebuild it would be raised by implication. The deed says nothing in regard to Harmon, or his heirs or assigns, being obliged to replace the existing dam by a new one when it should from any cause cease to exist, and no implication arises of such an obligation. It is clear that no such obligation was intended to be incurred. The consideration for the deed, as expressed therein, is only $10. A covenant or agreement never arises by implication out of a transaction against the intention of the parties to it. The right to take water is neither land nor tenement, and covenants made in conveying such right are not covenants which run with land, and are not available, at law, to the assigns of the covenantee. Mitchell v. Warner, 5 Conn. 515, in which the question is fully considered. By such conveyance the grantee acquires only an incorporeal hereditament. Gould, Waters, § 299; Tuttle v. Harry, 56 Conn. 194, 14 Atl. 209; Reservoir Co. v. Mackenzie, 132 Mass. 75. By the deed from Harmon to Benjamin F. Herbert, the latter, his heirs and assigns, acquired the right to take water for the purposes named from the then existing dam only so far as the grantor or his assigns had rights therein, and could become thereby obligated. Linthicum v. Ray, 9 Wall. 241. Hence the bill, on the basis on which it is drawn and seeks relief, is insufficient. What right to use the water from the present dam in his tannery arising from the fact that he was allowed to rebuild the dam under his arrangement with Mrs. Field under a claim of the right, and what rights, in equity, he has to require contribution towards the expense of rebuilding the dam of those owners who are using the power thereby created, under our decisions, especially under Hill v. Shorey, 42 Vt. 614, Webb v. Laird, 59 Vt. 108, 7 Atl. 465, and Tullar v. Baxter, 59 Vt. 467, 8 Atl. 493, and how his agreement with Mrs. Field may affect his equitable rights against the mortgagees of the grist mill and its water rights, we have not considered, and do not decide. The bill is not drawn with reference to a determination of his rights, if any, under such cir

cumstances. The decree sustaining the demurrer and adjudging the bill insufficient affirmed, and cause remanded.

STATE ex rel. GOODELL v. MCGEARY. (Supreme Court of Vermont. Chittenden. July 17, 1897.)

MUNICIPAL ELECTIONS-ELIGIBILITY OF CANDIDATES-BALLOTS-VALIDITY-QUO WARRANTO-JUDGMENT OF OUSTER.

1. Under Burlington city charter, providing that the "legal voters in each ward shall annually elect one alderman * ** from among the legal voters therein, and shall also vote for mayor and city judge," an alderman, to be eligible for office, must be a legal voter of the ward for which he is elected.

2. A provision of Burlington city charter requiring residence in a certain ward is not fulfilled by one who, while owning a house in such ward, and preparing it for his own occupation, and moving furniture into it, still actually continues his dwelling in another ward.

3. One who voted for an ineligible candidate must be clearly shown to have purposely done so, before the vote can be thrown aside, and not counted, in determining whether the opposing candidate received a majority of the votes cast.

4. When the eligibility of an alderman of a large city to hold his office is contested, and the unexpired term is nearly two years, leave will be granted to file an information in quo warranto against him, and a judgment of ouster thereon will be rendered, if the information be sustained, notwithstanding no one has been elected to the office.

Complaints by the state, and also upon the relation of J. W. Goodell, praying that a writ of quo warranto be issued against J. W. McGeary as usurping the office of alderman. Writ granted, and judgment of ouster ordered.

Roberts & Roberts and W. L. Burnap, for relator. Seneca Haselton, for respondent.

ROSS, C. J. The disposition of this case involves several inquiries. Was J. W. McGeary duly elected alderman of ward 5 in the city of Burlington at the annual meeting holden March 2, 1897? He received a majority of the votes cast for such officer at that meeting. Was he, then, eligible to the office? The answer to this question depends upon the ascertainment of the length of residence in ward 5 which the charter of the city then required to render him qualified to hold the office, and whether he had resided in that ward for the required length of time. There is no contention in regard to his qualifications for the office in other respects. The charter of the city, as it was March 2, 1897, divided the city into five wards. The same section of the charter which makes the division provides: "The legal voters in each ward shall annually elect one alderman, and the ward officers hereafter named, from among the legal voters therein, and shall also vote for mayor and city judge." We think that this requires a person, to be eligible to the office of alderman, to be a legal voter in the ward. This the ordinary and natural meaning of the

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