or improper concealment, misleading an innocent person to his prejudice, and rendering the assertion of the legal right as against such person an act of bad faith, amounting to constructive fraud. Moreover, it may be well added that to warrant the interference of the court with the legal right or title of a party, the case relied on to work the estoppel must be clear beyond doubt upon the facts. And the more stringently do these rules apply in a case such as this, where the effect of the estoppel, if allowed, will be to convert what was originally a bare privilege, temporary and revocable, into an easement in the licensor's land, perpetually binding it and transmissible from the licensee. It is a fatal infirmity in this branch of the complainant's case that there was nothing in all the communications had between the officers of the company and Jackson & Sharp, or in the conduct of these officers, to justify Jackson & Sharp in assuming that the company, by granting the accommodation applied for, intended to relinquish any right of property in the soil. It is agreed that no stipulation or promise to that effect was expressed. For reasons before fully stated and which need not be repeated, Jackson & Sharp were not warranted to infer so grave a conces sion by the company as the relinquishment of its proprietary control over its soil from the bare fact that on their application. the side-track was laid, nor from its importance as a right appurtenant to the car works; nor did the general usage connected with the granting of this sort of accommodation by the railroad company justify the inference that a perpetual easement in this track was conceded; but the usage was to the contrary. Looking to all the circumstances of the case, it is my conviction that although the connection of the car works with the railroad was doubtless contemplated on both sides as one to be in fact permanent, yet that no stipulation to that effect was asked or given, or supposed by either party to have been given; but that the arrangement was tacitly left to rest upon the general understanding with respect to such accommodations,-Jackson & Sharp either not anticipating the contingency which has now happened, or trusting to the mutual interest and good will of the parties as a sufficient guarantee for the permanence of the connection, without securing it as a legal right according to prescribed forms of law. Their disappointment certainly involves them in no little hardship. But hardship is not a ground for equitable relief, except in favor of one who, without any negligence in securing his rights by the appropriate legal modes, has been misled to his prejudice through some fraud or laches of the party against whom the relief is sought, or by such conduct of the latter as renders it an act of bad faith to take advantage of the mistake. The injunction must be dissolved and the bill dismissed. Superior Court of Connecticut. LANDOLT v. CITY OF NORWICH. There is a duty upon towns and cities to keep their highways in safe condition for travelling by foot passengers as well as others. But this duty as applied to ice and snow on a sidewalk is not a duty to keep the sidewalks absolutely free from ice, and the liability of the city for injuries received by a fall on the ice, is to be determined in each case by the particular circum stances existing in that case. THIS was an action for damages received by a fall on the ice. Wait & Swan and Holbrook, for plaintiff. Halsey and Pratt, for defendant. The opinion of the court was delivered by SEYMOUR, J.-The plaintiff claims damages for an injury suf fered by him on Sunday, Jan. 8th 1871, by reason, as he says, of a defective sidewalk in the city. About four o'clock in the afternoon of that day, while walking along Union street, he slipped and fell, receiving an injury of some severity. It is clear that the ice was the cause of the accident, and the only question in the case is, whether the condition of the sidewalk was such, as under the circumstances to subject the city to damages. The rule of law on the subject, as recently settled by the court of errors, is that some duties may devolve on cities and towns in regard to ice, and that what those duties are cannot be definitely defined by law, but must in each case depend upon all the circum stances of it, the general rule being that towns and cities must use reasonable care to make their streets safe for public travel, whether on foot or in carriages. The facts are briefly these: The street is one of considerable public travel; the plaintiff was walking upon a well-constructed pavement in front of premises occupied by Mr. Greenwood. The lands adjoining this street are such as to require more than ordinary care to prevent the water from overflowing the sidewalk, and prior to the winter when the accident happened the overflow had been troublesome; but in 1870 underdrains had been made. at considerable expense, by which most of the water was thoroughly carried off. At about the place where the accident happened the driveway of Mr. Nichols crosses the pavement, and water running along the sides of the drive-way had been frozen. There was no complaint on the part of the plaintiff that the pavement was not properly constructed in itself, or in reference to the adjoining grounds. On the other hand everything seems to have been done that could reasonably be required in making the pavement safe and convenient. Friday, the 6th, had been rainy. Saturday was pleasant but cold, the thermometer at 1 P. M. standing at 34 degrees. Sunday was fair in the forenoon, but between noon and 4 P. M. about half an inch of snow fell and covered the ice on which the plaintiff slipped. No one testified to having seen any ice on the pavement on Friday. Mr. Nichols, who seems to have had means of knowledge, testifies with confidence that there was not a particle of ice there on that day. He says that on Sunday morning he first noticed it, and he describes it as a thin scale of ice about a yard square, which appeared to be caused by water that during the night (or perhaps the afternoon of Saturday) had overflowed the surface drain of the drive-way. I am inclined to think Mr. Nichols's account is substantially correct. The plaintiff, indeed, and the gentleman who was with him at the time he fell, think the patch of ice was larger and thicker than described by Mr. Nichols. But their attention was absorbed by the hurt which the plaintiff had received, and by reason of the ground being covered with snow their means of knowledge are quite limited. The question then is, whether on these facts neglect is fairly imputable to the city. Could it reasonably be expected and required that this piece of ice should receive the attention of the street commissioner during the time it was on the walk? The plaintiff claims that by simply casting ashes or sand on the place it would have been made safe, and that the city ought to be en the watch for such dangerous places and apply the proper and easy remedy without delay. The defendant on the other hand insists that particles of ice. like that which caused this accident are ordinarily not damaging; that it probably did not extend across the sidewalk; that room was left for safe walking without going upon it, and that had it not been for the snow which was falling, and which hid the ice from the plaintiff's view, he would have passed in safety. The defendant also insists that the public authorities had no notice of the condition of the sidewalk, and that it would be unreasonable to require of them that they should be constantly on the watch for such places of slight peril, and apply immediate remedy to them. Such patches of ice on sidewalks are abundant during the winter weather, formed by rain and melting snow, and leakage of conductors and imperfect drainage, and the ice so formed is subject to rapid change of place and condition. The removal of it or covering with sand and ashes on all the sidewalks of the city, is a matter requiring time and involving no trifling expense. Conatant repetitions of the labor are usually needed every winter. During the past week, on three occasions, the walks here were no sooner cleared after a storm than a succeeding storm again covered the earth with snow and ice. In our country villages snow and ice are generally suffered to remain as they are left by the laws of nature. Volunteer forces of public-spirited citizens sometimes attend to places of more than usual peril or difficulty, but the selectmen, as such, seldom interfere. The pedestrian in the country is rarely in the winter exempt from perils by ice, but with good heed to his ways he seldom meets with an accident. The peril is not such as to warrant the great expense in a sparsely inhabited village, of attempting a preventive or a remedy; but in cities the aggregate of peril by reason of the numbers exposed to it becomes considerable, and the means of meeting the needful expense are ample; and hence in cities the public as such properly undertake the duty of doing the best they can to provide against the dangers to travel which winter in this climate necessarily brings with it. The city of Norwich has entered on the performance of this duty, and must be held to perform it with ordinary diligence and care. Well-cleared pavements are justly felt to be convenient and necessary, and VOL. XX.-25 I would not underestimate the importance of due attention to their safety, especially here where the peril of slipping is greatly increased by the grade of the streets. It cannot, however, be the rule of duty that all the sidewalks shall at all times be kept absolutely free from ice. Such a rule would involve expense disproportioned to the object to be accomplished. The street commissioner testifies that he first attends the front of public buildings and public squares and public places, and to the front of vacant lots, relying that by force of a city ordinance to that effect, individual citizens will promptly attend to the pavements adjacent to their occupied premises; the commissioner himself taking, however, a general oversight of the whole city, and applying the remedy in case of an occupant's neglect; and he probably does, what was not distinctly stated by him, direct his early and more particular attention to places where travel is most concentrated, as in the approaches to the post office, depots, market places, and the like. The course adopted by the commissioner seems to be correct and reasonable, and faithfully executed; and in view of all the facts and considerations applicable to the subject, I think the city is not chargeable with neglect in respect to the particular piece of ice in question. Such spots will escape the most careful vigilance for at least a few days. It is not reasonable to expect that every square yard of pavement in the city will be reached and cared for by the commissioner. No one has testified that he saw the ice. and regarded it as dangerous. Mr. Nichols, the only witness who testified to having seen it at all, evidently considered it as requiring no immediate attention. Under these circumstances I cannot say the city is in fault, and while I regret the injury the plaintiff suffered, must find the issue for the defendant. District Court of United States, District of Rhode Island. The majority in interest, of the owners of a vessel, are entitled to the possession and control of her, as against the master, although the master is a part owner. The majority in interest may dismiss the master though a part owner, at any time they see fit. The opinion of the court was delivered by |