Schietenger v. Bridgeport Knife Co.

hired by them there was and ever since has been a rule of their company known to the plaintiff as follows:-" All employees not engaged for a definite time must give two weeks notice before leaving the employ of the company, to the foreman in charge, as well as to the timekeeper. In case any such workman shall leave the employ of the company without having given and worked out such two weeks notice in full, all wages which might have otherwise been considered as earned at the time of leaving will be forfeited to the company and will not be paid. Any employee giving his two weeks notice and working it out in full will be paid in full at the expiration of such notice."

The defendants claim that by the operation of this rule the plaintiff, having left without having given two weeks notice, forfeited the claim which he now makes for his unpaid wages.

It seems clear that the rule has no application to the facts of this case. Up to the 23d of January the plaintiff was working under a contract fixing his compensation. If he had then left of his own motion, without giving the notice required by the contract and working till its expiration, he might have lost the right to recover his unpaid wages.

The defendants and not the plaintiff put an end to the contract of service. They refused to pay the plaintiff for future services the only price for which he had agreed or was willing to perform them. Thereupon the relation between them as employer and employee ceased. In effect the plaintiff was discharged. It is true that the defendants told him that they were willing to pay him a reduced price for his labor in future, but the plaintiff in the exercise of his undoubted right declined to work upon the terms they proposed.

The rule in question is a reasonable and proper one for the protection of the defendants against the loss which might result from the sudden and unexpected leaving of their workmen without cause, but is not to be so construed as to subject an employee to forfeiture of his unpaid wages

Wetherell v. Town of Newington.

who declines at their dictation to work for a smaller compensation than he has ever agreed to receive.

The somewhat remarkable claim is made in behalf of the defendants, that because the plaintiff violated the contract between the parties under that clause in the rule which provides that "an employee giving two weeks notice and working it out in full will be paid in full at the expiration of the notice," he might, in defiance of the defendants' refusal to be longer governed by the contract, have recovered the contract price if he had given notice and worked two weeks longer. Assuming, what is by no means clear, that the plaintiff might have done this, it does not aid the defence. If he might have insisted that the contract was in force when the defendants declared it was not, he might also take them at their word and join with them in rescinding it. There is no error in the judgment appealed from.

In this opinion the other judges concurred.

LYMAN WETHERELL vs. THE TOWN OF NEWINGTON.

Hartford District, Jan. T., 1886. PARK, C. J., CARPENTER, Pardee, LOOMIS AND GRANGER, Js.

The defendant town instructed its selectmen to open and grade as a part of the highway a strip of land in front of the plaintiff's dwelling house, which he claimed as his private property and on which trees and shrubs were growing. The selectmen were proceeding to do this, acting solely under the instructions. No lay-out of this part of the highway was shown, but it was claimed to have been established by dedication. An old fence had stood between the strip in controversy and the plaintiff's house for over forty years. The plaintiff brought a suit for an injunction against the town. The court below found that

the strip was the property of the plaintiff free from the public easement, and granted the injunction. Held-.

1. That the court did not err in not holding, as matter of law, that the old fence was to be taken as the line of the highway, as dedicated, the question being wholly one of fact.

Wetherell v. Town of Newington.

2. That the injunction was properly issued against the town, since the selectmen, though agents of the law in removing nuisances from highways, were yet the agents of the town and acting solely under its vote in attempting to commit the trespass threatened.

3. That the court below having found that the acts threatened would, if committed, work irreparable injury, it was a proper case for an injunction.

[Argued January 7th-decided February 5th, 1886.]

SUIT for an injunction against the removal of trees and fences and the appropriation of land for a highway; brought to the Court of Common Pleas of Hartford County, and heard before Calhoun, J.

The judgment rendered embraced the following finding :The court, having heard the parties, finds the issues for the plaintiff, except as to the western boundary of the land described in said complaint, and also finds that the plaintiff is the owner in fee simple, free from any public easement, of the following described piece of land, with buildings thereon, situated in said town of Newington, namely: bounded north by an old highway and land of Elisha Whaples, east on land of Edward Wetherell, south on the highway; that part of the west boundary running northerly from the wood shop standing on the land of the plaintiff, being as follows, [describing it,] said line being west of a row of maple trees standing on the plaintiff's land; the above described piece of land being the same land described in said complaint, except as to the portion of the west boundary thereof which is above described.

The court made the following separate finding :-The plaintiff became the owner of the premises described in the complaint on May 4th, 1859, by deed from Charles S. Francis. Prior to 1807 a highway, by the dedication of the former adjoining proprietor, existed in front of and west of the premises, which, running from the south, past the plaintiff's present premises, at the northern end thereof turned and ran westerly. A highway also existed by dedication, on the north side of the premises, which led to the house of Elisha Whaples and to Cedar Mountain. This highway was sold by the town in 1817, and that part of the same which ad

Wetherell v. Town of Newington.

joined the plaintiff's land was sold to said Whaples, and thereafter the highway was closed up by the town and abandoned.

The eastern limits of the highway in front and west of the premises was and is west of a row of maple and other trees standing on the land of the plaintiff, and is the same line described in the judgment file as being the west boundary of the plaintiff's land free from any public easement.

In 1807 the County Court passed a decree establishing a highway west of this highway and running through the land of Jemima Welles.

At the time of the purchase of the premises by the plaintiff the remains of an old fence existed thereon, which was situated about one rod back of the row of maple and other trees, and extended nearly across the premises in a substantially straight line. This fence, or one in the same line, had stood for more than forty years, but the evidence did not disclose when it was first erected; which old fence was about six and one half feet east of the line of the highway fences of the adjoining proprietors on the south. This fence was removed by the plaintiff in the year 1868.

Between this line of fence and the eastern limits of the highway, as defined by this court, the ground has always been occupied by the plaintiff and his predecessors as far back as the testimony extended, by setting out fruit and ornamental trees and by other trees and shrubbery, and the surface of the ground and the character of the occupation. have been such as to make it impracticable for the public to use it as a highway, and it has never been dedicated to or used by the public for highway purposes, and it is not needed for the convenient use of the highway.

The town of Newington at a legal town meeting held on the 7th of September, 1885, passed the following votes:"Voted, That the selectmen be instructed to fence in the green in front of the premises of Lyman Wetherell, leaving a roadway on the north and east sides, and to grade the ground and set out ornamental trees, as they may deem best, for the purpose of making a public park.

Wetherell v. Town of Newington.

"Voted, That the road north of the park be forty feet wide, and east of the park two rods wide from the street line in front of Wm. Hubbard's.

"Voted, That the selectmen be instructed to proceed at once to carry out the foregoing votes."

The selectmen of the town, claiming to act solely under the authority of these votes, threatened and were about to enter upon the plaintiff's land described in the judgment file, and upon which stands the row of maple and other trees, for the purpose of grading the same, and of doing anything thereon that might be necessary to be done to make a park and roadway, according to the votes of the town, including the removal of so many of the trees as might be found necessary for the purpose and the digging up of the ground, and for the purpose of appropriating the same for the uses of a park and roadway, and so informed. the plaintiff; but their present intention is to remove only one apple tree; which threatened acts, if permitted to be done, would cause irreparable injury to the plaintiff.

Upon the trial of the cause the defendant claimed as mat ter of law upon the above facts-1. That relief by way of an injunction was not the proper remedy. 2. That no injunction should be adjudged against the town of Newington because the selectmen of the town did not act in the premises as agents of the town, but as agents of the law solely. 3. That the old fence conclusively determined the limit of dedication for highway purposes, and defined and marked. the eastern bound of the highway in front of and west of the premises of the plaintiff. The court overruled these claims and rendered judgment for the plaintiff. The defendant appealed.

R. Welles, for the appellant.

1. An injunction is not the proper remedy. The main question was, whether the strip of land in question was subject to the public easement as a part of the highway. The title itself is not in question. The whole trouble has arisen from the illegal act of the plaintiff in setting his fence out