brace and support all walls where directed." The plans do not show any support under this partition, but leave it without any; and it is admitted that no direction was ever given to Mr. Reeve to put a support there. The sagging took place, as I understand the evidence, after Reeve had abandoned the building, or at least had not shown itself at that time. Under these circumstances I think he ought not to be charged with the cost of restoring the walls where they had cracked, and the amount of the cost of that work of restoration must be deducted from Wood & O'Donnell's bill, and the charge was faintly supported by counsel. The items are: Papering, $30.94; mason, $11.20; carpenter, amount not proven. He should, however, be charged with the work of putting in the support, the cost of which was trifling in comparison with the work of restoration.

The repairs put upon the old part of the stable is another item of contention. Nothing on that was done by Mr. Reeve, and Messrs. Wood & O'Donnell did what amounted to making complete new stalls for the horses, with new flooring and drip trough. The flooring was somewhat dilapidated, and the partitions between the stalls were too low, so that the horses' heads came together. Complete new partitions were put in, and new floors. Now, it is admitted that Mr. Reeve was to use old material for this purpose, and I am satisfied that Mr. Windolph promised him, in order to reduce the cost of the building, to make all those unspecified details as light as possible. I think he should not be charged with the full cost of those repairs to the old stable, and with not more than half of them. So with regard to the cost of the ice house and corncrib. think he should not be charged with those. As we have seen, they are not mentioned in the contract proper, and that casts the burden on Mr. Isaacs to show that they were included within the actual parol contract. This he does by producing the mention of them in the specifications; but under the evidence, as we have seen, the specification did not in fact contain the contract between the parties; and Mr. Reeve swears positively that they were to be dispensed with, and I think that the contrary evidence is not sufficient to overcome his denial. The proof shows that the cost of the ice house was $31, and the materials for the corncrib $22. I estimate the labor on it $8, and allow $30 for it.

I

Part of O'Donnell's charges is for furnishing blinds for all the windows of the house. This is claimed under a clause on page 11 of the specifications, as follows: "Outside shutters for new windows, except those on hall and dormers." It will be seen at once that these do not include rolling blinds, which are more expensive than shutters, and does not cover shutters for the old windows. But the fact is that new blinds were procured for

nearly all the windows in the house, as well new as old, and their cost is included in the $1,465.16 item. The proofs show that when the alterations were commenced the old blinds were taken off of the old windows, and stored in the stable, and Mr. O'Donnell says that they used such of them as were capable of being used, and furnished new where they were lacking for the old windows. This was clearly not within the contract, except to the extent mentioned in the clause above recited.

Another item of complaint of Mr. O'Donnell's bill is that a great deal of time is charged for which was spent in scraping the hardwood floors for the final touch of the painter. It is proven by the complainant that when this work came to be done-which was some time in June-the floors were in a bad condition from not having been properly protected by paper from dirt and gravel being carried in on the men's shoes. To determine whether Mr. Reeve should be charged with the whole of this cost it is necessary to take into consideration the circumstances. The contract in this case was signed on the 17th of February, and provided that the building should be completed on the 1st day of May. Most of the work, therefore, was to be done in the winter time and in the stormy month of March, and was necessarily subject to the delays due to the inclemency of the weather. No clause was put in the original contract providing for penalty in case of delay, but a supplemental contract was made between the parties and filed on the 9th of April providing for such penalty. When the 1st of May arrived, the building was not quite completed. Reeve left it about May 7th. It was the 17th of May before Messrs. Wood & O'Donnell commenced to finish it, and their whole work was done in about a month. But Mr. Isaacs, relying upon the house being finished on the 1st of May, made arrangements which made it almost imperative that he should occupy it on that day or shortly afterwards. Now, some of the delays which occurred in the work I think Reeve is not responsible for. In the first place, the old roof was to be taken off of the part of the house not entirely destroyed, and a new roof put on, and the architect would not permit him to do that work when the weather was threatening, and he was somewhat delayed by that. In the next place, the architect insisted on the stable being finished as rapidly as the house, and required Mr. Reeve's foreman to take mechanics away from their work on the house to build the new stable, thus interfering with him in his mode of conducting work under his contract. In the next place, the question of the flooring came up, and Mr. Reeve and Mr. Isaacs and his wife, and I think the architect, went to Green's lumber yard in Madison, and there picked out some well-seasoned flooring, which they agreed they would permit Reeve to use, although not

quite so narrow as the specifications required, and under that agreement the flooring was actually delivered at the house, and was about to be laid, when Mrs. Isaacs changed her mind, and refused to permit it to be laid, and it was all carted back to the lumber yard, and lumber of the required width-then difficult to obtain-was obtained and put down. This caused a further considerable delay. For these reasons I think that Mr. Reeve was not responsible for the delay in the work of the house whereby it was not substantially finished on the 1st of May. This is a different question from his failure to complete the house and throwing up the job. Very soon after the 1st of May, and before Reeve left, Mr. Isaacs moved a part of his furniture into the house, and at his request Mr. Pulver, the foreman, took up the paper and swept the floors, before the painter had treated them. Isaacs moved in and commenced to live there about the 21st or 22d of May, some time before it was finished. Then Mr. Reeve had nothing to do with the heating apparatus,-the placing of steam heat pipes and radiators throughout the house. This was done by Mr. Isaacs himself by special contract with a steam-heat fitter, and before Mr. Reeve had thrown up the job, as I recollect the evidence. The heater men took up the floor covers. Now the weight of the evidence is clear that the floors were at one time fully protected, and there is good reason to believe, and some proof to the effect, that in moving in the new furniture, and in putting in the steam-heating apparatus, and moving into the house before it was finished, this protection was disturbed and torn, without the fault of Mr. Reeve. I think, under these circumstances, that Mr. Reeve should not be held responsible for the whole of the cost of scraping and taking out the grit from these floors, and some allowance must be made him on that account.

Another small item is a charge of $6.43 paid to the mason for work at the base of the cellar walls of the old house. As I understand his evidence, the cellar of the part which was left standing was deepened several inches, so that its bottom was lower than the original foundation of the house, with the result that the water, in heavy rains, ran down the outside of the foundation and under it into the cellar. This charge was for cementing at the sides between the new cellar bottom and the old foundation to keep this water out. I am unable to see how that was part of Mr. Reeve's contract, and I feel constrained to disallow that item.

Other objections are made to work by Wood & O'Donnell in taking down some of the door trimmings, and perhaps window trimmings, in one of the upper floors, and replacing them. Their reason for doing that was the allegation that the original job was not done in a workmanlike manner. The evidence satisfies me that in the finishing of

this job Messrs. Wood & O'Donnell, under instructions from Mr. Windolph and the new specifications and plans prepared by him (which I am sorry were not produced before the court), finished the building in a style and on a standard of excellence which was not in accordance with the letter and spirit of the verbal agreement between Mr. Windolph and Mr. Reeve when he was induced to reduce his bid to the amount fixed upon, namely, $3,520. I am entirely satisfied that Mr. Windolph promised Mr. Reeve to ease up on him in matters of detail and not of great importance, and that Mr. Reeve relied upon that promise, and that when Wood & O'Donnell were put on the job they were required, as I have said, to finish it on a standard quite above that agreed upon between Mr. Windolph and Mr. Reeve. But the objection just mentioned, and others of a like character, which I will not mention in detail, are not, in my judgment, sustained by a sufficient weight of evidence to justify me in making any allowance to Mr. Reeve on that account.

Two other items of contest between counsel I decide against Mr. Reeve. One is the item for wire screens. This is specially inserted in manuscript in the contract and also in manuscript in the otherwise typewritten specifications. Counsel for the defendants contends that it was an omission. Counsel for the complainant contends that it was an addition, and I agree with him. The other is a matter of hardware. The specifications contain a clause which means as follows: that the contract price includes $50 for the hardware of the doors. The result is that the owner may, at his option, put in such hardware as he chooses, and have a deduction from the contract price of $50. Counsel for the defendant took just the contrary view. I agree with the counsel for the complainant. But complainant must not charge for the actual cost of the hardware which is included in Wood & O'Donnell's bill.

The next item is the charge of the architect of $100 for new plans and specifications and his own supervision of the work. As I recollect, no inquiry was made of Mr. Reeve when on the stand as to what had become of the plans which he had for use at the building. Naturally they would be left there, and I should be much surprised to hear that either Mr. Reeve or his foreman, Mr. Pulver, took them away. But, be, that as it may, if Reeve did have them in his possession, and they were not immediately accessible to the architect, no demand was made on Reeve to hand them over. Mr. Windolph justifies himself for not making such demand on the ground that he had found that Mr. Reeve was a dilatory man. He immediately put his clerk to work to make from the original draft in his office a complete new set of plans for the use of Wood & O'Donnell in finishing the building, and for this and his supervision he charges $100, and the complainant charges

that against Mr. Reeve. Now, I think Mr. Reeve ought not to complain of suffering somewhat by reason of his failure to complete this building, but I think the charge of $100 is excessive, and that $50 will be ample compensation to Mr. Windolph under the circumstances.

This brings us to the charges for extra work by Mr. Reeve against Mr. Isaacs. I think Mr. Reeve's charges for the extra work are inflated from beginning to end. The most important item is the work done on the barn or stable. Mr. Reeve in his bill of items claims that he put between $400 and $500 of new material in the barn. I cannot believe this, but I think the claim is one of merit. I have already remarked on the absence of any plans or specifications for the building of the barn, and on the promise made by Mr. Windolph to make it as simple as possible, and that Mr. Reeve might use old materials in it. The entire specifications in that respect are included in these words, which I repeat: "Build addition to barn 18′0'x20'0" with cellar 6'0" high; carriage house on ground level, and coachman's room over same; use old materials, and repair barn." When it came to the actual work, Mr. Pulver, Reeve's foreman, tells us that there was an entire want of old materials which would satisfy Mr. Windolph's demands, and that very little if any were used in it; that Mr. Windolph instead of being satisfied with cheap vertical barn boards for a side covering, required the best novelty siding, and ceiling to the walls of the sleeping chamber, and other matters in a style for a first-class stable. Mr. Reeve swears that in the preliminary figuring upon the cost, in the interview between him and Mr. Windolph, he concluded that his work on it could be done for $50. I do not recollect that this was denied by Mr. Windolph, and I think it would be inequitable and unjust for Mr. Isaacs to refuse to allow Mr. Reeve for the increased cost on the stable due to Mr. Windolph's requiring it to be made of new and such expensive materials and in such an expensive style. I will allow Mr. Reeve $200 for that extra work, and think I have erred, if at all, in favor of complainant.

The next item is, "enlarging kitchen one foot across the whole side." Mr. Windolph says that this was done as an offset against the failure of the mason to put into the outside wall of the cellar wash brick according to the specifications. The cost of the enlargement I think, according to the evidence, would be at least $35 as against $115 charged by Reeve, which latter I think is extravagant. Reeve was not recalled to deny Mr. Windolph's statement, and while it seems a severe penalty to impose upon Mr. Reeve for the failure of his mason in a very trifling matter, I shall decline to allow that.

The next item is for new parlor sliding doors, which Mr. Pulver is positive were or

Then there is the cost of seven doors specially ordered after a special pattern, in place of those kept in stock by the manufacturers, which stock doors are notoriously cheaper. This order was undoubtedly given, and Reeve is entitled to the difference in cost; but I cannot fix the amount from the evidence.

The next item is extra cost in the building of the front stairs over and above what Mr. Windolph promised Mr. Reeve. Windolph admits that he promised to simplify the detailed plans, and in his estimate of how the bid was reduced from $5,500 to $3,520 he makes a large allowance for that item; but he says he did simplify the plan of the stairs and reduced the expense. I am in doubt on this point. I will give the benefit of the doubt to the complainant, and allow nothing.

Then there is the question of extra trim for the doors, windows and base boards used in the second and third stories. The allegation of Mr. Reeve and Mr. Pulver is, and it was supported by Mr. O'Donnell, who was called upon to make a second bid, that the old trim, base, etc., from the first floor should be used in the second and third floors. I think Mr. Reeve should be allowed something for the item, but I am unable to determine the amount. The same remark applies to the claim for new doors ordered in place of old ones first agreed upon. An allowance should be made, but I am unable to determine the amount.

Another item of extra work arises out of the finishing of the servants' bathroom and water-closet in the basement. That was located in one corner of the cellar, and was formed on two sides by the outside walls of the building, and on two sides by a board partition. The only reference to that in the specifications that I can find is as follows: "Build cellar partition work indicated on plan with planed "x6" matched and beaded, tightly fitted at head to floor above." The plans show the board partition on the two sides, but do not give the least indication of any ceiling, by boards or otherwise, against the cellar walls, or of any flooring. The specifications require that all the cellar floor should be made in the usual way of cement. Mr. Windolph required Mr. Reeve to ceil the walls on the two sides, and floor it. I can find no warrant for this work. The specifications and plans, in my judgment, are incapable of a construction to warrant this expense, and the charge of $6 for ceiling and $10 for flooring must be allowed.

KNOWLTON v. NEW YORK, N. H. & H. R. CO.

(Supreme Court of Errors of Connecticut. Aug. 1, 1899.)

RAILROADS-RESERVATION IN GRANT-EXTINGUISHMENT OF EASEMENT OF CROSSINGESTOPPEL-EVIDENCE-JUDICIAL NOTICE

EASEMENTS-WAYS OF NECESSITY-CONCLUSIONS OF LAW.

1. A clause in a conveyance of a right of way to a railroad, providing that the grantor shall have a right of way across the road when built, is a reservation, not an exception.

2. Defendant company obtained a right of way through plaintiff's land, the track cutting the land in two tracts. A clause in the deed granting the right of way reserved a crossing "to pass to the back land" (the north one of the two tracts). The evidence disclosed no way to the back tract except this crossing from the front tract. Held, that the court should find the back tract inaccessible except by the way reserved in the deed.

3. Plaintiff conveyed a right of way to a railroad company through his tract of land by deed providing that he should have a crossing "to "to pass to the back land, with cart or otherwise.' Held, that this was a way reserved to the owner of both lots, and, when the unity of ownership was destroyed, the way was extinguished.

4. A court may take judicial notice of the date of the opening of a railroad in its jurisdiction. 5. Plaintiff, having conveyed a right of way to a railroad company across his land, reserved a way across the track. By subsequent conveyances the way was extinguished. Later, plaintiff granted another strip of land to the company, reserving "any right of way or crossing which may exist." Held, that this clause did not estop the company from denying that any right of way existed.

6. On a question as to the existence of a right of way across a railroad track, the decision of the court that the right exists either as an exception in a deed or by prescription, and the decision that the right of way is appurtenant to the entire premises, as bearing on the question whether the way is an exception or a reservation, are all conclusions of law, and not findings of fact.

Appeal from superior court, Fairfield county; George W. Wheeler, Judge.

Action by Miner R. Knowlton against the New York, New Haven & Hartford Railroad Company to close a farm crossing. From a judgment for plaintiff, defendant appeals. Reversed.

These facts appeared from the finding: In 1847 Philo Curtis, owning a nine-acre tract of land in Stratford, bounded southerly on highway, conveyed a strip four rods wide, running east and west across the middle of it, to the New York & New Haven Railroad Company. After the description of the granted premises in the deed came these words: "Reference being had to map No. 8; said company to build a crossing over said railroad to pass to the back land with cart or otherwise. And, furthermore, the said grantor do for myself and my heirs and assigns hereby covenant and agree with the said company and its assigns, forever, to erect and maintain forever all such fences as may be necessary upon the lines between the land hereby conveyed and the land adjoining the same now owned by said Curtis." The grantor had no access to the highway mentioned from his land north of the strip conveyed except across the latter. It did not appear from the evidence whether there were other means of access to the back lot, and therefore it was not found that any way of nccessity arose upon the conveyance. Nor did it appear from the evidence when the railroad was built, but, if the court could take judicial notice of it as an historic fact, the railroad was completed and opened from New Haven to New York by January 1, 1849. A proper farm crossing was constructed by the grantee when the railroad was built, and kept planked ever after, except during the winter months, until 1893. Every winter the grantee and its successor in title, the defendant, took up this planking, replacing it in the spring; and the crossing was used annually as a farm crossing, as often as necessary for farm purposes, without interruption, by the grantor's successors in title, under a claim of right, until September, 1893, when the defendant raised its roadbed 10 feet, and replaced the old bar way by a tight fence. Curtis conveyed both parcels to George Pratt in June, 1848. In

1880 one Booth, to whom they had come through sundry mesne conveyances, conveyed the southerly parcel to one Chambers. In 1885 he conveyed the northerly parcel to Danforth Knowlton, with other land adjoining it on the north, and bounded on a highway, and the plaintiff acquired the same premises soon afterwards. Down to September, 1893, all parties to the title believed, and acted on the belief, that the plaintiff and his grantors had full right to use the crossing as a farm crossing by virtue of the Curtis deed of 1847. In July, 1893, the plaintiff conveyed to the defendant a strip of land adjoining the railroad on the north, being part of the original northerly parcel owned by Curtis; the deed containing this proviso: "Provided, however, "Provided, however, that any rights of way or farm crossing that may exist in favor of said Knowlton over said railroad shall extend over the land herein conveyed from said railroad to the land of the grantor, and this conveyance is not to affect any such rights. The grantee is to build a divisional fence along this strip, and make any necessary ditches and culverts or any retaining walls that may be necessary by the acts of the grantor." The court found that, unless the facts above set forth showed that the plaintiff had the right to use said crossing by virtue of the Curtis deed, and prevented the finding that the use of this crossing by the plaintiff and his grantors was adverse, such use since the railroad was built, and since the plaintiff and his grantors ceased to have any legal right by virtue of said deed to use said crossing, had been an adverse use by the plaintiff and his grantors; and, as an inference of fact from the foregoing facts, that the parties intended by the provision in the Curtis deed to retain in him not a temporary and personal, but a permanent, right for the benefit of the premises he continued to hold, and that such right was intended to be appurtenant to the said premises, and vest in said Curtis, his heirs and assigns; that said passway and crossing were necessary to the enjoyment of said premises retained by Curtis, and from the time the railroad was laid out down to the preventing plaintiff using said crossing were open, visible,-such as would be apparent to an ordinary observer,-and such as naturally and necessarily belonged to said premises; that, as an inference of fact from the foregoing facts, the defendant had notice of the use by the various grantors subsequent to Curtis of this crossing, under claim of right, and as a matter of law; that the public records were notice to defendant; that the use was not personal to Curtis after his conveyance to Pratt; that no actual notice was brought home to defendant of these facts except as stated herein; that from these facts, as matter of law, this crossing became annexed to and appurtenant to said premises; that the language in the Curtis deed created an exception; that, if this is not true as a matter of law, the plaintiff acquired a title by prescription in said crossing; and that no

claim of adverse user was made to the defendant by any of these grantors, so far as appeared in evidence. The defendant claimed on the trial that a way of necessity was created upon the conveyance by Curtis, in 1847, across the land he conveyed to the railroad company, and that this way ceased upon the acquisition by Danforth Knowlton, in 1885, of the adjoining land on the north running to a highway; that the clause respecting the crossing in the Curtis deed did not amount either to a reservation or an exception, but at most to a license to Curtis and his successors in interest; and that a disclaimer was necessary before any claim by adverse user could be set up. These claims were overruled. Curtis had acquired title to the original tract, containing nine acres, in 1825, the deed describing it as bounded southerly on a highway, and in all other directions on land of private owners. The same boundaries were followed in his deed of 1847 to the railroad company, and of 1848 to George Pratt. The defendant claimed that from these deeds (there being no other evidence to qualify or explain these boundaries) it was entitled to a finding that the parcel north of the railroad did not bound on any highway, and had no means of access to any, except by passing over the southerly parcel to the highway on which that was bounded. The court refused to make such a finding, and this refusal was made one ground of appeal.

William D. Bishop, Jr., and William B. Boardman, for appellant. Stiles Judson, Jr., for appellee.

BALDWIN, J. (after stating the facts). The clause in the deed of 1847 by Curtis to the railroad company respecting a crossing could not constitute an exception. The office of a provision of that description is to exclude from the grant and retain to the grantor some portion of his estate, whatever is thus excluded remaining in him as of his former right and title, because it is not granted. Chappell v. Railroad Co., 62 Conn. 195, 207, 24 Atl. 997. A reservation, on the other hand, is a new creation of something not previously existing. Barnes v. Burt, 38 Conn. 541. The grantee under the deed was subjected by its terms to the duty of building a crossing over the proposed railroad, to be used "to pass to the back land, with cart or otherwise." The railroad was yet to be constructed. Whatever was thus to be done was to be done as a new thing in the future, and the words in question therefore are to be construed as a reservation. Whether a reservation without words of limitation inures to the benefit of successors in title is to be determined from the language employed, read in the light of the surrounding circumstances. One material circumstance was the situation in which the construction of the railroad would leave the back lot. Would there be any other means of access to it than that over the strip of land granted? As bearing