ing the value of the land as appraised, either in cash, or in deferred payment protected by good security, in proportionable shares, to those entitled to the land), and included in the terms of the transaction the provision that upon the death of one of the parties, being a minor (whether before the time of the deferred payment, or at any time, is perhaps doubtful), his share (not of any intestate estate, but of the proceeds of the sale of land paid for that purpose, and standing in the form of a secured obligation, or cash in the hands of his guardian) should go to his surviving brothers and sisters, the other parties to the transaction. It is altogether unlikely that the general court contemplated a possibility of the surviving brothers and sisters not being all the next of kin to such deceased minor; but, under one construction of the language, it is possible that the division of such sum among the deceased minor's brothers and sisters, children of his father, might not include some half-brother on his mother's side, who at that time, and for nearly a century afterwards, were next of kin equally with brothers of the whole blood. The existence of such a possibility in a particular case might induce the court to exercise its discretion in not authorizing the transaction, but it does not turn the provision into a statute of descent, made in the alternative, depending for its operation on the discretion of the court of probate, and the assent of a possible heir. This power of authorizing a sale of land for the benefit of all the children and the survivors of those who might die in infancy was the only remnant given to the court of probate of that discretionary power to provide for the equities of special cases so freely exercised by the general court and particular court. It had been a not infrequent practice in distribution of intestate estates, where there were minor children, to transfer to one of the heirs, and sometimes to a stranger, a portion of the estate, in consideration of his obligation to pay, at times limited, the share belonging to each child, dividing among the survivors the share of a deceased minor. In 1640 the particular court, on application of the administrator of an intestate, distributed real estate amounting to £130 to the five children, the amount specified "to be paid into court when each comes to the age of 16 years," and authorized the widow, charged with their support, to sell the land, provided she give sufficient security for payment of the children's portions, and "provided also if any one or more of the children depart this life before they come to the age of 16 years, his or their portion is to be divided equally among those that survive." Estate of Brundish, 1 Col. Rec. 45. In 1645 the court settled the land of an intestate on Nathaniel Willette (not an heir), "in consideration whereof he is to pay £40 to the eldest son when he shall attain 21 years of age, and £20 apiece to the three daughters when they shall attain the age of 18 years; if any die in the

meane the portion is to be divided betwixt the survivors; the land to stand ingaged for the performance thereof." Estate of Wakeman, 1 Col. Rec. 135. It was doubtless such ancient practice that suggested the proviso in the act of 1699. In accordance with the strong conservatism which has characterized our legislation, this remnant of a prevailing practice when probate jurisdiction was administered by the omnipotent general court has been continued through successive revisions, and in that of 1875 appears unchanged in meaning in the proviso contained in sections 6 and 7, under discussion.

This is not a statute of descent. Any practice that may have grown up under it, of including in every case of distribution the portion of a minor child dying between the death of the intestate and distribution, in the estate divided between the surviving children, must be confined to cases where such surviving children are the next of kin to the deceased minor. It is significant that the proviso now claimed as altering the law of descent is not mentioned by Chief Justice Swift in his Digest, and is not referred to by Chief Justice Reeve in his careful treatise on Descents; that such claim has not been brought to the attention of the court of last resort during the two centuries the proviso has remained on our statute book; and that, so far as known, the general course of descent has never been altered by an application of this proviso, except in a single instance. Some 20 years ago the court of probate of the district of New Britain distributed the estate of an intestate minor equally to a brother of the whole blood and two brothers of the half blood, justifying such distribution under this proviso. The case furnished a harsh illustration of the rule preferring kindred of the whole blood, first adopted by our law in 1784. The probate judge, in pursuance of the statute, called to his assistance in the trial a judge of the superior court, selecting Judge Carpenter, who at that time was also a judge of this court. A brief memorandum of the grounds of the decision appears in a supplement consisting of two nisi prius cases printed in 48 Conn. 584. As appears by the opinion, the learned judges based their conclusions mainly on a number of decisions of courts of other states, and a mistake naturally followed a misapprehension as to the application of these decisions to our law. The Massachusetts act of 1692, before mentioned, contained a proviso in the same language as that used in our act; but that language did not remain substantially unchanged, and in 1805 an act was passed, different from the law of 1692, and plainly a statute of descent. In Nash v. Cutler, 16 Pick. 492, Chief Justice Shaw bases his opinion upon the clear and precise language of this statute, dismissing from consideration the provincial statutes as "obscure and ambiguous." In 1839 the territorial legislature of Wisconsin adopted the Massachusetts stat

Quinnipiac river, in said town, connecting Ferry street, in the city of New Haven, with Meadow street, in the town of New Haven; and the repair and maintenance of said bridge was on said day in the care and charge of the defendants. (2) The said bridge was daily used by a large number of persons in crossing said river at said place. (3) On said day there was a draw in said bridge, which opened for the passage of vessels. Said draw was operated by steam power, located in an engine house above and over the floor of the draw. From said engine house a vertical shaft descended through the floor of the draw to the gearing under said draw, and within a short distance of the sidewalk on the east side of said bridge. (4) On said July 10, 1896, said shaft was not boxed up or inclosed so as to prevent contact with it by persons crossing said bridge. (5) On said day it was not possible for the servant of the defendants who operated said draw by means of the engine in said engine house to see persons located on said draw, and adjacent to said shaft, while he was engaged in opening and closing said draw. (6) The said shaft revolved with great rapidity when said draw was being opened and closed. (7) Said draw was operated by steam power for about two years prior to and on said July 10, 1896, it having previously been operated by horse power; and when said steam power was to be first applied to said draw the defendants' plans and specifications for said engine and shaft required that said shaft should be boxed up to a sufficient height to prevent contact with it by persons using said bridge. (8) On said day, between 5 and 7 in the afternoon, the plaintiff's intestate, a child under eleven years of age, was crossing said bridge, when the engine and shaft were put in motion to swing said draw around, and she was close to said shaft when it was thus put in motion. (9) Her clothing became entangled with said shaft, and her body was violently hurled against the trusses of said bridge and against an iron pipe running from said engine house through the floor of said draw and near to said shaft, and because thereof both of her thigh bones were broken and crushed, and her collar bone was broken, from which said injuries she died on July 12, 1896. (10) During the whole time that the plaintiff's intestate was on said bridge on said July 10, 1896, she was in the exercise of due care. (11) It was the duty of the defendants to have had said shaft so boxed up on said day that the clothing of the said Margaret Daly could not have come in contact therewith while in motion; and to have had such an opening in the floor of said engine house, or other arrangement, that the operator of said engine, while operating said engine and shaft, could have seen the said Margaret Daly, deceased, while she was on the floor of said draw, and near said shaft; and the defendants were negligent and careless in accepting said shaft, and in constantly using the same without boxing up, which the original specifications and plans for said engine and shaft called for, and which or

dinary care and prudence demanded. (12) The injuries thus sustained by the said Margaret Daly, deceased, were caused by the negligence and carelessness of the defendants, as above set forth."

The complaint does not, in express terms, allege that the bridge in question was a public bridge forming part of a public highway; nor does it expressly allege that it was the duty of the defendants to keep it in repair; but it does allege facts which clearly show that it was a public bridge connecting two public streets, forming part of a public highway, and in substance it alleges that the duty to keep it in repair rested upon the defendants. It is also alleged that this bridge had a draw in it for the passage of vessels, and it thus appears that there was a highway, of which the bridge formed a part, over another highway up and down the river. Under these circumstances, if any duty whatever rests upon these defendants either to keep the bridge in sufficient repair for public travel or to open and operate the draw, it is imposed by statute, or it does not exist; and if any liability for a breach of either of these duties, in favor of an individual injured thereby, rests upon them, it is imposed by statute, or it does not exist at all. And the duty to provide and maintain this bridge as part of a public highway over the river, and the duty to build, maintain, and operate a suitable draw in the bridge for the benefit of the public highway up and down the river, are public governmental duties. Chidsey v. Town of Canton, 17 Conn. 478; Borough of Stonington v. States, 31 Conn. 214; Beardsley v. City of Hartford, 50 Conn. 529; Lounsbury v. City of Bridgeport, 66 Conn. 360, 34 Atl. 93; French v. City of Boston, 129 Mass. 592; McDougall v. City of Salem, 110 Mass. 21; Butterfield v. City of Boston, 148 Mass. 544, 20 N. E. 113. The case of Greenwood v. Town of Westport, decided in the United States district court for the district of Connecticut (62 Conn. 575, 53 Fed. 824, and 63 Conn. 587, 60 Fed. 560), one of the cases upon which the plaintiff relies, is not in conflict with the foregoing authorities upon the point that the duties aforesaid are public and governmental; for that decision rests upon the somewhat peculiar and exceptional state of facts of that case, and upon principles of maritime law that have no application here. Whatever, then, the defendants negligently did or omitted to do, as charged in the complaint, was done or omitted in the performance of a public governmental duty. The duty to keep the bridge in sufficient repair for public travel is quite distinct from the duty to provide and properly operate the draw. The former relates to the bridge as and when it forms part of a public highway open for the passage of persons, animals, and vehicles; the latter to the movable part of the bridge, when it has in aid of navigation temporarily ceased to be a part of such highway; and it does not necessarily follow that the party charged with the former duty is also charged with the lat

ter. It is somewhat difficult to determine I from the complaint whether the pleader intended to charge a breach of the former or of the latter duty; but we think the complaint must and can only be regarded as charging a breach of the latter, and not of the former, duty. It does not allege that the bridge, as a highway, was defective, dangerous, or unsafe for public travel. The negligence which it alleges is mainly the failure to box the shaft, and the failure to construct the house at the draw so that the bridge tender, when operating the draw, could see persons who might be near the shaft; and these matters relate solely to the construction and use of the draw as draw, and not to the draw as part of the highway. The only defect complained of is the danger from the shaft when revolving to operate the draw. This danger exists only when and so long as the draw is being operated, and is caused solely by such operation. When and so long as the draw is in place as a part of the highway, open for public travel, the bridge appears to be perfectly safe for such travel.

Regarding the complaint, then, as charging a breach of the duty to provide a suitable draw, or of the duty to properly operate the draw as such, we think it fails to show that any liability to the decedent rested upon these defendants for the alleged breach of these duties. The act (7 Sp. Laws, p. 370, of which our courts are by statute bound to take judicial notice) under which this bridge appears to have been built imposed upon the city of New Haven and the town of East Haven the duty to build and maintain this drawbridge, and imposed upon them also the expense "of opening the draw therein." It was provided that the bridge should be built by seven commissioners, and it was made their duty "to locate said bridge, and to direct in regard to the materials and manner of its construction and to superintend the same." Afterwards, in 1881 (9 Sp. Laws, p. 270), the duties resting upon East Haven with reference to this bridge devolved upon the town of New Haven, But the act under which this bridge was built does not impose upon these defendants any liability to a private individual injured by a breach of the duty to provide a suitable draw, or to properly operate the same; nor are we aware of any statute, public or private, which does impose upon them any such liability for any such breach. If we assume, then, that at the time the injury complained of it was the duty of these defendants to provide a draw that could be safely operated, and also to properly operate the same, and that the complaint shows this, and also a breach of that duty, still the complaint utterly fails to show that these defendants are liable for such breach at the suit of a private individual injured thereby. Nor, under such circumstances, would the defendants be liable for the negligence of their servant and agent, the gate tender, assuming that he was such. Judge v. City of Meriden, 38 Conn. 90; Jewett v. City of New Haven, Id. 368.

If, on the other hand, the complaint can, by any possibility, be regarded as charging a breach of the statutory duty to keep the bridge, as a highway, in a reasonably safe condition for public travel, then it is defective, in that it does not show any breach of that duty. It does not allege in terms that the bridge, as a highway, was defective, out of repair, or dangerous to public travel; nor does it state any facts which necessarily show this to be its condition. On the contrary, we think it fairly shows that, so long as the draw is a part of the highway, open for public travel, the shaft is not dangerous to such travel, and the bridge, for such travel, is perfectly safe. Under such circumstances these defendants would not be liable, under the statute, as for a defective highway, when it appears that the injury was caused in operating the draw. Butterfield v. City of Boston, 148 Mass. 544, 20 N. E. 113. We think the complaint in either aspect fails to state any cause of action. There is error in the judgment complained of, and it is reversed. The other judges concurred.

ROGERS v. PHILADELPHIA TRAC

TION CO. (Supreme Court of Pennsylvania. Oct. 11, 1897.) NUISANCE-OPERATION OF MACHINERY-SPECIAL INJURY.

A street-railway corporation authorized to construct and operate motors and cables, but not invested with the power of eminent domain, is liable for special injury to the property of another caused by the jarring and vibration of machinery operated by said corporation on its own premises, though no actual negligence be proved.

Appeal from court of common pleas, Philadelphia county.

Action by John I. Rogers against the Philadelphia Traction Company to recover for damage to plaintiff's buildings, depreciation in their rental value, ete., caused by the jarring and vibration of machinery operated by defendant in its power house. From a judgment for plaintiff, defendant appeals. Affirmed.

The assignments of error are as follows, to wit: "First. The court below erred in overruling the demurrer to the amended declaration. Second. The trial judge erred in not charging the jury as requested in the first point presented by the counsel for the defendant: '(1) The defendant, by its letters patent in evidence, and the acts of assembly by virtue of which the same were issued, had full authority to build, construct, and operate a cable for the traction of cars, and for that purpose to erect and operate upon its own land such stationary engines as are necessary to furnish power to said cable, without liability to the plaintiff for consequential damages to his property; the uncontradicted evidence being that no part of plaintiff's property has been taken, nor is any portion of the two buildings in contact, there being no use by the defendant of a party wall, but, on the contrary, its wall hav

any such special damage resulting to the plaintiff from the operation by the defendant of the defendant's works in that building, whereby the plaintiff lost rent, or suffered in some other ways that have been described, he is en

(3)

cautions known to the state of the art having been taken by defendant to prevent the transmission of noise or vibration, excepting as they may be conveyed by the bed of the earth beneath all foundations, or by the atmosphere. The verdict should be for the defendant.' Third. The trial judge erred in not charging the jury as requested in the second point presented by the counsel for the defendant: '(2) The defendant is incorporated for the purpose of, and is engaged in, operating a public work, to wit, the carriage of passengers along the public streets in cars drawn by an endless cable. The necessities of this operation and the character of the business compel it to seek the heart of the city, as much for the convenience of the public as for its own. Hence the maintenance of a power house and stationary engines as near the center of its line through the center of the town as possible is in the direct line of its duty, and is part of the lawful enjoyment of its property and franchises; and, as it appears by the evidence this was done without negligence or malice, it entails no legal liability. If unavoidable inconvenience falls upon neighbors, the same is damnum absque injuria, and your verdict should be for defendant.' Fourth. The trial judge erred in not charging the jury as requested in the third point preserted by the counsel for the defendant: The injury complained of is alleged to be exclusively due to the operation of the machinery, not to the construction of it or the power house. As the operation is lawful and without negligence, and conducted upon the defendant's own land, without contact or encroachment upon plaintiff's, there can be no recovery, and your verdict should be for defendant.' Fifth. The trial judge erred in not charging the jury as requested in the fourth point presented by the counsel for the defendant: (4) This is not the case of a private individual maintaining upon his premises, in the heart of a dwelling quarter of the city, objectionable machinery, which could be equally well placed in a more secluded spot, but it is the case of a cable railway authorized by law to maintain a cable road in one of the most important and busy thoroughfares of Philadelphia; and as it appears that this machinery must necessarily be placed upon that thoroughfare, and has been built upon the company's own property, and isolated from adjoining buildings, its maintenance is lawful, and your verdict should be for the defendant.' Sixth. The trial judge erred in not charging the jury as requested in the fifth point presented by the counsel for the defendant: '(5) Under all the evidence, the verdict should be for the defendant.' Seventh. The trial judge erred in his instruction to the jury as shown in the bill of

that injury.'"

David W. Sellers, for appellant. George P. Rich and Henry C. Boyer, for appellee.

STERRETT, C. J. Defendant company's fourth point for charge was affirmed, and all the others, which contained binding instructions for defendant, were refused. In thus refusing to affirm either of the latter points the learned trial judge was so clearly right that neither of the questions involved therein requires discussion, and they are accordingly dismissed without further comment.

In view of the testimony of plaintiff's witness Hogan, and the admissions made on cross-examination by defendant's witness Craig, the learned judge might well have submitted to the jury the question of defendant's negligence in the construction and operation of its machinery, and sustained a verdict on that ground; but, instead of doing so, he stated to the jury that he recalled no evidence of negligence on the part of the defendant, and proceeded to instruct them that if, in consequence of the operation by defendant of its machinery in the building, there was necessarily a special damage or injury suffered by the plaintiff apart from what was common to the neighborhood and to people generally, the plaintiff might recover to the extent of the injury thus specially sustained. The correctness of this instruction is challenged in the seventh specification. In addition to that, the defendant demurred to the second and third counts of the statement because neither of them contained any averment of negligence either in the construction or operation of defendant's machinery, etc. Refusal to sustain the demurrer is the subject of complaint in the first specification. Under that ruling and the foregoing instructions, the jury found, on quite sufficient evidence, that plaintiff was specially damaged by the operation of defendant company's machinery, and a general verdict for the amount of the damages thus sustained by him was accordingly rendered, and judgment entered thereon. This necessarily involves the question of defendant's liability in the absence of evidence of actual negligence, and that is the controlling question in this case. By its charter act of incorporation of June 13, 1883, § 6 (P. L. 123), the defendant company was created "for the construction and operation of motors and cables, and the necessary apparatus and mechanical fixtures for applying and operating the same." So far as relates to this case, that is the extent of its powers. Its authority to hold real and personal estate necessary for its purposes does not in any way extend its char