which has come to such experts by reason of special study and experience in such art, science, profession, or business. The value of such testimony depends upon the learning and skill of the expert and varies with the circumstances of each case. The jury should take into consideration the expert's means of knowledge and the reasons he assigns for the opinions he has given, and give credence to his testimony as they may find his qualifications sufficient and his reasons satisfactory. Such testimony is to be considered like any other testimony, and is to be tried by the same tests, and receive just as much weight and credit as the jury may deem it entitled to, viewed in connection with all the evidence in the case. (83 Conn. 137) STATE ▼. ANGUS. (Supreme Court of Errors of Connecticut. March 15, 1910.) EMINENT DOMAIN (§ 59*)-STATUTORY POW ER-ADJOINING"-"ADJACENT." Sp. Laws 1907, p. 564, § 7, authorizing the acquisition by purchase or condemnation prodeemed necessary, "adjoining or adjacent" to ceedings of such additional lands as may be the capitol building site, located between designated streets, contemplates that it may be necesthe boundaries, and the purchase or taking of sary to require various parcels of land within one parcel within the boundaries does not exhaust the power, but other parcels may be acquired, though the word "adjoining," in its etymological sense, means touching or contiguous, as distinguished from lying near or adjacent, and though the word "adjacent" means lying near, neighboring. You are to decide this case in accordance with the evidence produced before you and with the law as the court has stated it to you. If you believe from the testimony that the machine upon which the plaintiff was working at the time he was injured was not adapted to or equipped for the work in which he was engaged, and for that reason was not reasonably safe for doing such work, and that the injuries were caused thereby, and shall also believe that the plaintiff did not know that the machine was unsafe, and by the reasonable use of his senses could not have known it, and that the plaintiff was not guil-swer, defendant appeals. Affirmed. ty of any negligence that proximately contributed to such injuries, your verdict should be in favor of the plaintiff, and for such sum of money as will reasonably compensate him for his injuries, including therein his pain and suffering in the past, and such as may result to him in the future therefrom, and also for his loss of time and wages, and for any impairment of ability to earn a living in the future arising from such injuries as may be disclosed by the evidence. [Ed. Note.-For other cases, see Eminent Do main, Cent. Dig. §§ 143-145; Dec. Dig. § 59.* For other definitions, see Words and Phrases, vol. 1, pp. 184-190; vol. 8, pp. 7565, 7566.] Appeal from Superior Court, Hartford County; William S. Case, Judge. Application by the State of Connecticut for the appointment of a committee to assess damages for the taking of the land of William Angus under the right of eminent domain. From a judgment for the State, ren dered after sustaining a demurrer to the an If you believe from the testimony that the plaintiff knew or should have known of the dangers of the machine, if any there were, and the injury complained of resulted from the improper way in which he held or handled the skins in feeding the machine, or if you believe from the testimony that the plaintiff was properly warned of the danger and instructed in the manner of holding or handling the skins when feeding them to the machine, and the injury complained of resulted from his failure to heed such warning and to obey such instructions, your verdict should be for the defendant. If you believe from the testimony that the machine was reasonably safe and adapted to the purpose for which it was used, or if you believe from the testimony that the skin or hide upon which the plaintiff was working at the time he was injured was of a kind and was in a condition to enable the machine to be operated with reasonable safety, your verdict should be for the defendant. Verdict for defendant. Section 7 of a special act of the General Assembly passed at its January session, 1907, and approved July 30, 1907, reads as follows: "The commission appointed by the Governor under the resolution of the General Assembly, approved June 18, 1903, providing for a commission to make repairs on the capitol and to procure a site for a new building for state officials, namely, Morgan G. Bulkeley of Hartford, H. Wales Lines of Meriden, Willie O. Burr of Hartford, L. W. Robinson of New Haven, and Charles C. Cook of West Hartford, and continued by resolution approved July 18, 1905, are continued as a board of commissioners for the state of Connecticut, and the Comptroller of the state shall be a member of said commission, ex officio, with ample powers to contract for and fully complete, construct, erect, and furnish in the city of Hartford a building suitable for the use of the state as a state library, Supreme Court room, and memorial hall, also to contract for interior alterations and fireproofing of the roof and upper stories of the present state capitol building, except as already constructed, on plans adopted and now on file in the office of the Comptroller, and all at an expense of one million five hundred thousand dollars, or so much thereof as may be necessary. Said board of commissioners is hereby authorized to purchase such additional lands as said commissioners may deem necessary adjoining or adjacent to those already purchased as a site for said building, located on the south side of Capitol avenue between For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Washington and Oak streets, on the west | answer shows, and the demurrer must be side of Washington street between Capitol taken to admit, that on July 30, 1907, when avenue and Russ street, and on the east side the act referred to went into effect, this land of Oak street between Capitol avenue and was separated from the original building Russ street and adjoining lands now owned site by a lot of land then owned by and subby the state, and in case it is unable to agree sequently purchased from the defendant by with the owners of such properties as are the state. The claim is that the only land required for this purpose, it is authorized which the commissioners were authorized by through the Attorney General to condemn the the act to purchase or take for the state was same in the name of and on behalf of the land adjoining land then owned by the state, state of Connecticut, and in the event that that "adjoining" means touching or contiguthe Attorney General shall find it necessary ous, as distinguished from lying near or adhereafter to institute proceedings in the jacent, and that, as the lot of land now in name of the state to condemn such lands, question did not actually touch or adjoin the including the fee, he shall proceed in manner land then owned by the state and referred to and form as is provided in sections 4103 and in the act, the commissioners had no power 4104 of the General Statutes." Sp. Laws originally under the act to purchase it or 1907, p. 564. take it by condemnation proceedings, and that if they had such power originally they had exhausted their power by electing in September, 1907, to take the intervening land without taking that now in question, so that when they attempted to take the present parcel they had no power to do so. The complaint alleged that pursuant to said section the commissioners, deeming it necessary to acquire the land in question as an addition to the site for the building mentioned in the act, and being unable to agree with the defendant as to the amount to be paid him therefor, on September 10, 1909, voted to take and acquire the land, describing it as bounded on two sides and partly on the third by land of the state. The answer alleged that on the 30th day of July, 1907, when the act was approved, the land in question did not adjoin the cite then owned by the state, but was separated from it by other land, which was subsequently on the 30th day of September, 1907, acquired in behalf of the state by the commissioners by purchase. A plan showing the location and ownership on July 30, 1907, of the different lots of land included by the four streets mentioned in said section 7 was made part of the answer. It thereby appeared that the defendant at that date owned the land extending westerly from the state's building site to Oak street, that this land was divided into at least three building lots, and that one of these intervened between the state's site and the lot now in question. Arthur L. Shipman and Charles Welles Gross, for appellant. Marcus H. Holcomb, Atty. Gen., for the State. THAYER, J. (after stating the facts as above). The only question raised by the demurrer is whether the defendant's land has been properly condemned and taken by the state for the purposes indicated in the special act which is recited in the complaint. The defendant claims that it has not been, and that consequently, upon the authority of N. Y., N. H. & H. R. R, Co. v. Long, 69 Conn. 434, 437, 37 Atl. 1070, the court has no jurisdiction to appoint a committee to assess damages to the defendant as asked for in the prayer for relief. The complaint alleges that this land was taken pursuant to the act on September 10, 1907. It was then bounded upon two sides and upon a portion of the It is doubtless true that "the word 'adjoining,' when used in its etymological sense, means touching or contiguous, as distinguished from lying near or adjacent." But, if we were to adopt the defendant's construction of the act, how much of his land could have been taken? Very little of it was in contact with the original building site. He concedes, however, that all the land in the lot next to the site is to be considered as adjoining it. But if all the land included in this lot was adjoining land, why was not all the land included in his three lots between the site and Oak street adjoining land? The act speaks of lands, not of lots, adjoining the building site. But this inquiry need not be further pursued, for the act makes it clear that the Legislature did not intend to limit the commissioners' powers to taking lots immediately adjoining the original site. They are "authorized to purchase such additional lands as they may deem necessary adjoining or adjacent to those already purchased as a site for said building." Adjacent means lying near, neighboring. The act then proceeds: "Located on the south side of Capitol avenue between Washington and Oak streets, on the west side of Washington street between Capitol avenue and Russ street and on the east side of Oak street between Capitol avenue and Russ street and adjoining lands now owned by the state." All lands located within the block in which the building site was situated, which is bounded by the four streets named, are thus indicated as the adjoining lands from which additions to the site could be made. The Legislature having indicated what it intended by adjoining lands, it would be unimportant, if true, that some of the words employed are not used in their strict etymological sense. The act manifestly contemplated that it clerk of the superior court till January 4th, where the record does not show that the clerk had any connection with the matter, but does show that the appeal was filed January 3d, and that it was allowed and signed by the assistant clerk, who has the same powers and duties as the clerk. cels of land, situated within the boundaries | ing that the appeal was not in fact filed with the mentioned, from their various owners. Such purchases could not be made as a single transaction. Some would necessarily have to precede others. To hold that the purchase or taking of the first parcel exhausted the power of the commissioners, so that they could take no others, would defeat the purpose of the act. Clearly a single act of taking was neither prescribed nor contemplated; but it was intended that the commissioners should from time to time acquire such lands (83 Conn. 134) FARNHAM v. LEWIS. (Supreme Court of Errors of Connecticut. March 15, 1910.) 1. APPEAL AND Error (§ 364*)-TIME OF TAK ING APPEAL. Gen. St. 1902, § 788, as amended by Pub. Acts 1905, c. 112, provides that parties aggrieved may appeal to the Supreme Court of Errors next to be held after the filing of the appeal. Held, that the court would take judicial notice that the first Tuesday of January, 1910, was the fourth day of that month, and hence the January term commencing on that day was the term next after the filing of an appeal on January 3, 1910, and the appeal should have been taken to that term. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 364.*] 2. APPEAL AND ERROR (§ 364*)-TIME OF APPEAL-SUPREME COURT OF ERRORS. The fact that only one day intervened between the filing of the appeal and the term of the Supreme Court of Errors would not make the return of the appeal to the March term valid. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 364.*] [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 364.*] 4. APPEAL AND ERROR (§ 364*) – RETURN AMENDMENT. An amendment of an appeal making it returnable to a term to which it does not appear it was ever intended to be returned, and to which it cannot be returned because the term has expired, must be denied. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 364.*] Appeal from Superior Court, Litchfield County; Ralph Wheeler, Judge. Action by Charles T. Farnham against Charles W. Lewis. From a judgment for plaintiff, defendant appeals. Appeal dismissed. In this court the plaintiff (appellee) filed a plea in abatement. The appellant (defendant) made a motion to amend his appeal, and also answered the plea in abatement to which answer the appellee demurred. tained, the motion to amend denied, and the appeal dismissed. Demurrer sus Smith & Munn, for appellant. Warner & Landon and Walter Holcomb, for appellee. Howard F. Landon, in support of the plea in abatement. Wellington B. Smith and Frank B. Munn, in opposition to the plea in abatement. RORABACK, J. The plaintiff pleads in abatement upon the ground that the appeal was taken to the March term of this court instead of the January term, 1910. Gen. St. § 788, as amended by Pub. Acts 1905, c. 112. provides that parties aggrieved may appeal to the Supreme Court of Errors next to be held after the filing of the appeal. The statutes (Revision of 1902, § 480) provide that terms of the Supreme Court of Errors shall be annually held "In the First judicial district composed of Hartford, Tolland, Wind ham, Litchfield and Middlesex counties, at Hartford, on the first Tuesdays of January, March, May and October." The appeal was filed January 3, 1910, and made returnable to the first Tuesday of March, 1910. By taking judicial notice of the coincidence of the days of the week with the days of the month it appears that the first Tuesday of January, 1910, was the fourth day of that month. It needs no argument to show that the term of the Supreme Court of Errors Where, under Gen. St. 1902, 8 788, as commencing on the first Tuesday of March. amended by Pub. Acts 1905, c. 112, an appeal 1910, was not the next Supreme Court after filed on January 3, 1910, ought to have been re- the filing of the appeal upon Monday, Januturned to the term of the Supreme Court of Erary 3d. It does not matter that the appeal rors beginning on January 4, 1910, instead of to the March term, a plea in abatement of the apwas filed upon the 3d day of January, and peal was not successfully met by an answer alleg- that the next term of the Supreme Court was 3. APPEAL AND ERROR (§ 364*)-ABATEMENTPLEA ANSWER WHEN RETURNABLE CLERKS OF Court. •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 75 A.-40 upon the following day. There is no differ- | whereas, they were the owners of lots 69 and ence in principle between an appeal filed one day before the next Supreme Court and one fred a much longer time before the return day. The language of the statute leaves no chance for discretion as is given in the return of a writ to the superior court. The statute plainly directs that the appeal should be taken to the next Supreme Court of Errors; it cannot be taken to a later one. Pitkin v. N. Y. & N. E. R. Co., 67 Conn. 19, 34 Atl. 704. The substance of the defendant's answer to the plea in abatement is that the assistant clerk of the superior court for Litchfield county allowed the appeal in question upon the 3d day of January, 1910, and that the appeal was not filed with the clerk of the superior court until the following day. The record fails to show that the clerk of the superior court had anything whatever to do with this matter. By the provisions of section 469 of the General Statutes, Revision 1902, assistant clerks of courts have the same powers and duties as clerks. The record does show that the appeal was filed January 3, 1910, and that it was allowed and signed by the assistant clerk. For these reasons it follows that the demurrer as to the insufficiency of the defendant's answer should be sustained. The defendant cannot now amend his appeal by inserting the word "January" in place of the word "March" so that it will appear that the appeal was made returnable to the first Tuesday of January. The appellant intended to and did make his appeal returnable to the first Tuesday of March. The appellee by the appeal was notified and admonished to appear at the last-mentioned date. If this amendment were allowed the notice to appear would relate back to the first Tuesday of January, at a time when the appeal was never returned or intended to be taken, and to a court which sat a month before the motion to amend was made. It is unnecessary to enlarge upon this feature of the case, as it is controlled by the opinion in the recent action of Hull v. Thoms, 82 Conn. 391, 73 Atl. 793. The plea in abatement is sustained, and the appeal is dismissed. The other Judges concurred. 70, they, considering it will be of benefit to the "owners" of said two lots to lay out a 12-foot gangway between said lots, do agree, for the purpose of making such gangway, that each shall throw off from his lot 6 feet, commencing at the street front and extending back 88 feet, said gangway to be kept open for the joint use and benefit of A. and W., their heirs and assigns. From its creation, the way was used to reach said barn, and was the only means of reaching it, and for a long time was used for no other purpose, and was the only use ever made of it by A. Held that, considering the facts aud circumstances existing at the time and the subsequent use, it was intended to create a right of way appurtenant to the premises on which the barn was situated. [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 98-100; Dec. Dig. § 44.*] Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. (30 R. I. 403) WESLEY et al. v. M. N. CARTIER & SONS CO. (Supreme Court of Rhode Island. March 2, EASEMENTS (§ 44*)-RIGHT OF WAY-LAND TO A., owning the front 88 feet of lot 70, on which was no building, and W., owning lot 69, on which was a house, and the rear of lot 70, and land in the rear of lots 69 and 70, on which was a barn, made an agreement reciting that, 50 SMITH STREET 50 James A. Williams, for appellants. G. Ed- | veyed the southerly 88 feet of lot 70 to one ward Buxton, Jr., and Edwards & Angell (Eugene A. Kingman, of counsel), for appellee. PARKHURST, J. This cause is a suit in equity, brought by Ernest G. Wesley and Pattrick J. Fox to enjoin the use of a way. It was heard in the superior court upon bill, answer, replication, and oral testimony, upon agreed issues of fact, and a final decree was entered dismissing the bill of complaint. The cause is before the court upon the complainants' appeal from this decree. The material facts admitted on the pleadings and established by uncontradicted evidence may be summarized as follows: Prior to the year 1849 one Henry J. Angell was the owner of a tract of land bounding southerly on Smith street, in Providence, comprising two lots, extending 100 feet from Smith street, and numbered 69 and 70 on a certain plat, dated 1830, and surveyed by Isaac Mathewson. He also owned certain premises adjoining said lots 69 and 70 on the north. The latter premises, together with the northerly 12 feet of said lots 69 and 70, are now designated as lot 6 on a certain plat, dated 1903, called the "Pettee Plat," and are now owned by the defendant. For convenience, a reduction of each plat is submitted herewith. Upon the "Pettee Plat" lot 1 comprises the southerly 88 feet of said lot 69. Prior to said year 1849 the said Henry J. Angell con Nathaniel W. Westcott, who is the predecessor in title of the complainant Wesley. On June 16, 1849, the said Westcott and Angell entered into the following agreement establishing a gangway, which is the subject of this controversy: "This agreement, made and entered into this 16th day of June, A. D. one thousand eight hundred and forty-nine, by and between Henry J. Angell and Nathaniel W. Westcott, both of the city and county of Providence, in the state of Rhode Island, witnesseth: That, whereas, the said Henry J. Angell and Nathaniel W. Westcott are owners of two certain lots of land situate on the northerly side of Smith street, in said city of Providence, being lots numbers sixty-nine and seventy on plat of land on Smith's Hill, surveyed April 11, 1830, by Isaac Mathewson; and the aforenamed parties, considering that it will be a benefit to the owners of said two lots of land to lay out a twelve-foot gangway between said lots of land, do for themselves, their several heirs, executors, administrators, and assigns, covenant and agree each with the other that, for the purpose of making a gangway as aforesaid, he, the said Henry J. Angell, shall throw off from the said lot of land owned by him six feet, to be measured off from the west end of his said lot of land, commencing on said Smith street and extending back northerly eighty-eight feet, and that |