was

also state that it was fully heard. The phrase on which it relies, "and said parties were fully and finally heard on said lastmentioned date," is susceptible, grammatically, of two constructions: One making it apply only to the statutory parties—that is, to the appellee and the two towns-and the other making it apply both to them and the appellant. But there is no reason apparent why the appearance of the appellant should have been thus explicitly recorded, unless it was thought by the commissioners important to show that it had been accorded a “day in court," and was a party to their final order. It is obvious that it may have had important interests to protect. It may have been the proprietor of one of the three industries located on the line of the Bethel Branch. It is to be presumed that sufficient cause shown to the commissioners to induce them to recognize its appearance. They were about to hear an application of an unusual character. Their approval was sought for removing 16 grade crossings by the method, not of altering the grade either of railroad or highway, but by lessening the use of the crossings for railroad purposes, while maintaining the tracks precisely as they were. Their use for through traffic was to be discontinued, but as a stem for spur tracks their use was to be maintained. Under these circumstances it was, to say the least, within the power of the commissioners to hear any one whose pecuniary interests would be affected by such a change in the operation of the railroad. That the nature of the interest of a party so affected, and who was allowed to appear, was not made a matter of record cannot lessen his rights. That the appellant became fully a party to the proceedings before the railroad commissioners, therefore, sufficiently appears; and this established its right of appeal, under Gen. St. 1902, § 3747.

known as the "Bethel Branch," running | set for the hearing. Their records recite straight from a station in the town of Beth- this fact, and the appellant insists that they el to Hawleyville in the town of Newtown, for a distance of about six miles. It also operates a railroad, known as the "Danbury Branch," from the Bethel Station to a station in the city and town of Danbury, and a railroad from thence to Hawleyville. The Bethel Branch is one side of a triangle, of which the other sides are the Danbury Branch and the section of the appellee's Western Division, between Danbury and Hawleyville. Gen. St. 1902, § 3713, provides that the directors of any railroad company on whose road there is a grade crossing may petition the railroad commissioners for "an alteration of such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing of a highway crossing and the substitution of another therefor, not at grade, or the removal of obstructions to the sight at such crossing, and praying that the same may be ordered; whereupon the commissioners shall appoint a time and place for hearing the petition, and shall give such notice thereof as they judge reasonable to such petitioners, the company, the municipalities in which such crossing is situated, and the owners of the land adjoining such crossing and adjoining that part of the highway to be changed in grade; and after such notice and hearing, the commissioners shall determine what alterations, changes, or removals, if any, shall be made and by whom made." Gen. St. 1902, § 3718, provides that the decision on any such petition "shall be communicated to the petitioners and to all persons to whom notice of the hearing on said petition was given, within twenty days after the final hearing; and any person aggrieved by such decision, who was a party to said proceeding, shall have the same right of appeal therefrom as is given by section 3747 concerning appeals from decisions relating to depots." The right of appeal given by Gen. St. 1902, § 3747, is one in favor of "any person aggrieved by any order of the railroad commissioners, upon any proceeding relative to the location, abandonment, or changing of stations to which he was or ought to have been made a party.”

The appellant is a corporation of this state, located and having its principal place of business in Bethel, and avers that it was a party to the proceedings before the railroad commissioners, that their final order is "improper, inexpedient, illegal, and not in conformity with the statutes in such cases provided," and that it is aggrieved thereby. It is not claimed that it owns land adjoining any of the railroad crossings mentioned in the petition to the commissioners, or adjoining any highway the grade of which might be changed by their order. But, while not one of those whom a petitioner for the removal of a grade crossing is required to make a party, it in fact appeared before the rail

We intimate no opinion as to whether the case presented to the commissioners by the appellee falls within the provisions of Gen. St. 1902, § 3713; nor as to whether the appellant had a right to appear before them as a party, by virtue of its location in the town of Bethel.

The motion to dismiss filed in the superior court contained an averment that, in the month following the order appealed from, the railroad company brought a second petition before the commissioners, alleging that it had failed to include, in the list of grade crossings contained in the former petition, another on Greenwood avenue in Bethel, and praying for their approval of its elimination, that an order to that effect was passed, after notice to the company and the town, which order was similar in terms to the former one, as to the mode of its elimination, and that no appeal had been taken from such order. These facts had no place in such a motion, the office of which is not to allege

tions already apparent on the face of the plaintiff herein, before a justice of the peace. record.

There is error, and the cause is remanded, with instructions to overrule the motion to dismiss.

(82 Vt. 172)

FARWELL v. BEAN. (Supreme Court of Vermont. 13, 1909.)

Windsor. April

1. COVENANTS (§ 130*)-BREACH OF WARRANTY-DAMAGES.

alleging that he was in possession of said premises, "which he holds unlawfully, and against the right of the plaintiff." On notice from his grantee of the pendency of that suit the grantor, the defendant herein, appeared and defended the same. On trial it was found that the society was entitled to the possession of the premises, and judgment was rendered in its favor for the possession thereof, and for $50 as rents, and its costs taxed and allowed at $2.81. No appeal was taken from that judgment. The grantee thenceforth remained in possession of the premises under an arrangement with the society. Subsequently the suit at bar was brought for [Ed. Note. For other cases, see Covenants, breach of the covenant of warranty in the Cent. Dig. §§ 245-252; Dec. Dig. § 130.*] defendant's deed to the plaintiff, and in the 2. COVENANTS (§ 121*) - BREACH CONCLU-trial of the case a certified copy of the recSIVENESS OF JUDGMENT AGAINST COVENAN- ord of the judgment in the ejectment case was introduced in evidence, and made a part of the referee's report. Judgment was rendered on the report for the plaintiff to recover $450 (the value of the premises), and interest thereon since August, 1904, and his costs. To which judgment defendant ex

On a breach of warranty against all lawful claims, the grantee may recover the value of the premises at the time of his eviction, with interest, and his costs and expenses, if any, in the

action of eviction.

TEE.

The grantor, having had notice of the action of ejectment by a third person against the grantee, the judgment therein is conclusive on him in the grantee's action for breach of his covenant of warranty.

[Ed. Note. For other cases, see Covenants, Cent. Dig. §§ 221-223; Dec. Dig. § 121.*]

Exceptions from Windsor County Court; George M. Powers, Judge.

Action for breach of covenant of warranty by John Farwell against Joseph Bean. Plaintiff had judgment, and defendant brings exceptions and petitions for new trial. firmed.

Af

cepted.

Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ.

Pingree, Pingree & Pingree, for plaintiff. Gilbert S. Davis and Jas. G. Harvey, for de

fendant.

WATSON, J. Only one question is presented in argument on the exceptions. It is urged that an erroneous rule of damages was adopted in the court below in allowing the plaintiff to recover the amount of the value of the premises at the time of his eviction and interest thereon. Herein the defendant has no cause of complaint. The rule applied is the one established in this state, except that there may be added to the value of the land the costs and expense of the action of the eviction, when any are shown. Williams v. Wetherbee, 2 Aikens (Vt.) 329; Park v. Bates, 12 Vt. 381, 36 Am. Dec. 347; Pitkin v. Leavitt, 13 Vt. 379; Brown v. Taylor, 13 Vt. 631, 37 Am. Dec. 618; Keith v. Day, 15 Vt. 660; Turner v. Goodrich, 26 Vt. 707. The

It appears from the record that on September 29, 1832, the Society for the Propagation of the Gospel in Foreign Parts, a corporation established and existing according to law, leased the premises described in the plaintiff's declaration to Elisha Parkhurst, his heirs, executors, administrators, and assigns, so long as wood grows and water runs, at an annual rent of $18 payable on the 1st day of February, with the right of re-entry in case the rent reserved, or any part thereof, should remain unpaid for the space of 10 days after the same should become due; that on March 18, 1893, the defendant acquired by deed the lessee's right in the premises, subject to said lease, in and by which deed it is stipulated that the grantee therein "agrees | defendant brings his petition for a new trial

to assume and pay the rent due on the 1st day of February last, and all future rents as they may become due"; that he paid the rents up to February 1, 1895, but not later; that on August 29, 1902, the defendant sold and conveyed to the plaintiff the same premises for the sum of $450, the conveyance being by warranty deed in common form with the usual covenant, including the covenant of warranty against all lawful claims whatever, the plaintiff at the same time taking possession of the premises. July 18, 1904, the Propagation Society brought its action of ejectment under the statute, against the

on the ground of newly discovered evidence, tending to show that the land conveyed by him to the plaintiff is not in fact any part of the land owned by the Propagation Society. But the fact that the land conveyed to the plaintiff by the defendant was the same land held by him subject to the lease from the society and the payment of rent thereunder was determined by the judgment in ejectment; and the defendant here being vouchee in that suit, the judgment is conclusive upon him in this subsequent action against him for breach of his covenant of warranty. Keith v. Day, Pitkin v. Leavitt, and Brown v. Taylor, cited

of $850 was the total amount of the loss or damage by fire to the property described in the policy, or the amount which Mrs. Rolfe, the insured, was to receive for her loss under the terms of the policy." To this inquiry the jury made answer: "The amount Mrs. Rolfe was to receive for her loss."

The case is now before this court upon report which includes all the evidence submitted to the jury, with the stipulation that "upon the whole case judgment is to be rendered in accordance with the rights of the parties."

the issue should be submitted again to Jury.

The verdict is set aside and the bill dismissed for want of equity and lack of evi dence to show otherwise. Decree to be entered accordingly.

(105 Me. 54)

INHABITANTS OF NORWAY v. WILLIS. (Supreme Judicial Court of Maine. Dec. 30, 1908.)

1. TAXATION (§ 260*)-PERSONALTY-PLACE OF TAXATION.

Under Rev. St. 1903, c. 9, § 13, par. 1, which enacts that "all personal property employed in trade, in the erection of buildings or vessels, or the mechanic arts, shall be taxed in the town where so employed on the first day of each April; provided, that the owner, his servant, subcontractor or agent, so employing it, occupies any store, shop, mill, wharf, landing place or shipyard therein for the purpose of such employment," the personal poperty which may or may not be taxable is property wholly distinct from the store, shop, mill, etc., which by virtue of the proviso must be occupied for the purpose of such employment.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 260.*]

2. TAXATION (§ 260*) - PERSONALTY - PLACE OF TAXATION.

The personal property which may or may not be subject of taxation under Rev. St. 1903, c. 9, § 13, par. 1, is movable property wholly distinct from the "store, shop, mill, wharf, landproviso, must be occupied "for the purpose of ing place or shipyard," which, by virtue of the such employment" by the owner or other person under him so employing it, in order to render it legally taxable in the town where it is employed. One and the same thing cannot at the same time serve as personal property employed and as the building or place in which it is employed.

It is well settled that the verdict of a jury upon an issue framed in equity is merely advisory, and must be such as shall satisfy the conscience of the court to found a decree upon. Otherwise it will be set aside. The vital question presented is whether there be sufficient legal evidence to sustain a decree in favor of complainant. Larrabee v. Grant, 70 Me. 79, 83; Metcalf v. Metcalf, 85 Me. 473, 478, 27 Atl. 457; Duffy v. Insurance Co., 94 Me. 414, 47 Atl. 905; Redman v. Hurley, 89 Me. 428, 434, 36 Atl. 906. Every presumption is in favor of the validity of an award, and the burden of proof is upon the party who would impeach it to show the grounds for such impeachment (Burchell v. Marsh, 17 How. 344, 351, 15 L. Ed. 96; Bigelow v. Newell, 10 Pick. [Mass.] 348, 354), and the evidence must be clear and convincing (Young v. Kinney, 48 Vt. 22). See, also, Fessenden v. Ockington, 74 Me. 123, 125; Linscott v. Linscott, 83 Me. 384, 387, 22 Atl. 253; Bridgeport v. Eiserman, 47 Conn. 34, 37. The answer, as we have seen, denies any mistake. The evidence submitted consisted of the testimony of the two referees and of other witnesses offered as tending to corroborate one or the other of the referees. The testimony of the referee summoned by complainant is to the effect substantially that he intended in signing the award to fix the sum which complainant is to be paid by defendant or two-thirds of the entire destructible loss, while the other summoned by defendant testified that the sum named in the award was the amount of the total loss, two-thirds of which would be payable to complainant. No advantage will follow a detailed discussion of the evidence. Nor is it needful to consider whether, if each of the principal witnesses be correct, the mistake is such as may be remedied in a court of equity. Assuming, without expression of opinion, that it might be, a careful examination of the evidence does not satisfy the court that the evidence of the referee testify- Action in the Norway municipal court by ing in behalf of complainant and that in the Inhabitants of Norway against L. F. Willcorroboration is of such clear and convin- is. The municipal court rendered judgment cing character as to overcome the presump- for plaintiff, and defendant appealed to the tion in favor of the validity of the award Supreme Judicial Court in the county, and and sustain a decree in favor of complain- the case was reported to the law court for ant. Nor is it the opinion of the court that determination. Judgment for defendant.

[Ed. Note. For other cases, see Taxation, Dec. Dig. 260.*]

(Official.)

3. WORDS AND PHRASES-"MILL."
primary and secondary: (1) A complicated en-
gine or machine for grinding and reducing to
fine particles grain, fruit, or other substance,
or for performing other operations by means of
wheels and a circular motion as a grist mill for
grain, a coffee mill, cider mill, and bark mill.
The original purpose of mills was to comminute
grain for food, but the word "mill" is now ex-
tended to engines or machines moved by water
or steam for carrying on many other purposes,
as oil mills, saw mills, slitting mills, bark mills,
fulling mills, etc. (2) The house or building
that contains the machinery for grinding.
and Phrases, vol. 5, pp. 4506-4508.]
[Ed. Note.-For other definitions, see Words

The word "mill" has two definitions, a

Report from Supreme Judicial Court, Oxford County.

Kimball & Son, for plaintiffs. Wright & machinery for grinding, etc. Wheeler, for defendant. more, 44 N. H. 386, 387 (1862). The first definition is an apt description of the personal property claimed to be taxable in plaintiff town, while the word “mill" as used in the proviso of the exceptions falls within the terms of the second definition. In the latter sense it is used in Rev. St. c. 128, § 8, and chapter 94, §§ 1-6. See Farrar v. Stackpole, 6 Me. 154, 156, 158, 19 Am. Dec. 201; Crosby v. Bradbury, 20 Me. 61, 65; Baker v. Bessey, 73 Me. 472, 479, 40 Am. Rep. 377.