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concluded by said award, and also that the submission entered into by the defendant rule adopted by the appraisers for the de- and the property owner, there is error in termination of sound value was not the cor- this case. The court ruled against this conrect one. It further found that, by reason tention, and rendered judgment in favor of of a recent depreciation in values in the vi- the contrary claim of the plaintiff,—that cinity, the result reached by the appraisers it was not bound by said award. Two reawas too large. It thereupon proceeded, up- sons are urged in support of the plaintiff's on independent evidence, to ascertain the position, to wit: (1) That it was not a parmarket value and fix such ascertained value, ty to the submission, and has never acquito wit, $10,000, as the sound value. The esced in or ratified it; and (2) that the applaintiff made no complaint of the award as praisers applied an erroneous rule of law in to the fire damage, and the court made the their determination of the sound value of same finding in that regard that the ap- the property insured. praisers had made. Upon the basis of these The policy, whose provisions prescribe and conclusions, the court computed the defendo define the defendant's liability, is the Conant's liability under its policy to be $793. necticut standard policy, having indorsed 76, for which sum, with interest thereon thereon the so-called reduced rate or 80 per from August 10, 1903,-making, in the cent clause, and also the following: “Loss, whole, $849.32,-judgment was rendered. if any; payable to the Collinsville Savings The defendant does not contest its liability Society as their mortgage interest may apto pay the amount which results from an appear.” Said society is in no other way or portionment of the loss upon the basis of the place, either specifically or descriptively, award, but stands ready to pay that sum. mentioned in the policy or its indorsements, Other facts not pertinent to the conclusions save as it is provided in the body of the of this court are not stated.

policy that "if, with the consent of the com

pany, an interest under this policy shall Mr. Charles E. Gross for appellant. exist in favor of a mortgagee, or of any

Mr. Theodore M. Maltbie, for appel person or corporation having an interest in lee:

the subject of insurance other than the inThe title of the plaintiff to the amount of terest of the insured as described herein, the the loss was given by the policy contract, conditions hereinbefore contained shall apand vested in the plaintiff when the loss oc-ply in the manner expressed in such procurred.

visions and conditions of insurance relating Hall v. Fire A880. 64 N. H. 405, 13 Atl. to such interest as shall be written upon, at648; Beach v. Fairbanks, 52 Conn. 167. tached or appended hereto."

As the title of the plaintiff is coincident The indorsement above recited, designatwith the origin of the claim, the conduct of ing the payee of any loss, which, for the the insured in reference to the loss and its purposes of distinction, has been called the adjustment, without the knowledge and con. “open mortgage clause," did not bring the sent of the plaintiff, could not prejudice the plaintiff and defendant into contractual replaintiff's right to recover the full amount lations with each other, either directly or of the loss.

through an assignment of the policy; Harrington v. Fitchburg Aut. F. Ins. Co. neither did the plaintiff thereby become a 124 Mass. 126; Hathaway v. Orient Ins. Co. person or corporation whose property or 134 N. Y. 409, 17 L. R. A. 514, 32 N. E. 40; property interests were insured under the Hall v. Fire Asso. 64 N. H. 405, 13 Atl. policy. The contract for indemnity re648; Brown v. Hartford F. Ins. Co. 5 R. I. mained one exclusively between the defend398; Bergman v. Commercial Assur. Co. 92 ant and the property owner. The plaintiff Ky. 494, 15 L. R. A. 270, 18 S. W. 122; Wil- was only a conlitinnal appointee of the latson v Hakes, 36 Ill. App. 547 ; Jones, Mortg. ter. As such appointee, it was entitled to $ 407.

receive so much of any sum that might be

come due under the policy as did not exceed Prentice, J., delivered the opinion of the its interest as mortgagee, and nothing court:

Such is the accepted rule in this The plaintiff concedes that, by the as- state, and, with few possible exceptions, wigment from the property owner of his elsewhere. Woodbury Sav. Bank & Bldg. claim under the policy sued upon, it has not, Asso. v. Charter Oak F. & M. Ins. Co. 29 under the facts of this case, acquired any Conn. 374; Meriden Sav. Cunk v. Home right which it did not previously have, save Mut. F. Ins. Co. 50 Conn. 396; Franklin the right to maintain in its own name an Sav. Inst. y. Central Mut. F. In-8. Co. 119 action against the defendant. That assign Mass. 240; Baldwin v. Phænix Ins. Co. 60 ment may therefore be disregarded.

N. H. 164; Biddeford Sav. Bank v. DwellIf, as the defendant contends, the plain- | ing-House Ins. Co. 81 Me. 566, 18 Atl. 298; tiff is bound by the award made under the Magoun v. Fireman's Fund Ins. Co. 86

more.

Minn. 486, 91 Am. St. Rep. 370, 91 N. W. 5; | able to the plaintiff as mortgagee, or had Hartford F. Ins. Co. v. Olcott, 97 Ill. 439; been or might be assigned to it. The mortWilliamson v. Michigan F. & M. Ins. Co. 86 gagee brought suit against the insurance Wis. 393, 39 Am. St. Rep. 906, 57 N. W. company to recover for a loss, the policy 46; Van Buren v. St. Joseph County Village being one bearing the appointee indorseF. Ins Co. 28 Mich, 398; Martin v. Franklin ment. The first count was on the policy and F. Ins. Co. 38 N. J. L. 146, 20 Am. Rep. 372; indorsement alone; the second, upon the puiGrosvenor v. Atlantic F. Ins. Co. 17 N. Y. | icy, indorsement, and collateral agreement. 391; Syndicate Ins. Co. v. Bohn, 27 L. R. A. The defendant demurred to each count. The 614, 12 C. C. A. 531, 27 U. S. App. 564, 65 court, after holding that recovery could not Fed. 105. It is universally held that a pol. be had upon the first count for want of icy so indorsed may become forfeited, and privity between the parties, decided not only the mortgagee deprived of all protection that the agreement created such privity, but thereunder, by any act or default of the also that the mortgagee was thereby "made property owner before loss. Moore v. Han. a party to the contract of insurance.” The over F. Ins. Co. 141 N. Y. 219, 36 N. E. 191; exigencies of the case required the court to Baldwin v. Phænix Ins. Co. 60 N. H. 164. go no further for the overruling of the de

There is another stipulation appearing in murrer to the second count, and so the court or appended to policies issued to property said that it would go no further at that time owners, and designed to protect the interest and in that case. It is unnecessary to inof mortgagees, which it is important to no- quire into the logical consequences of what tice. This has been variously denominated was then held, since it is quite clear that the the “mortgagee clause" and the "union plain and explicit provision of the “union mortgage clause.” It is embodied in the mortgage clause," to the effect that the standard policies in some states, and is fre. mortgagee's right of recovery under the polquently used as a rider upon policies in icy, as the payee thereof, shall not be afother states. It embraces the provision, in fected by the act or neglect of any person substance, that no act or default of any per other than the mortgagee, his agent, or those son other than such mortgagee or his agent. claiming under him, must suffice to estabor those claiming under him, shall affect lish for a mortgagee under such conditions the mortgagee's right of recovery. It has a status with respect to the insurance which frequently been held that the effect of this is not only independent of, but also superior clause, whenever it is made a part of or in- to, that of the property owner. The former's dorsed upon a policy, is to bring the insurer rights are thus expressly set free from the and mortgagee into relations of privity, to operation of those acts and neglects of the convert the mortgagee into a party to the latter which would destroy the latter's incontract of insurance, to give to the mortga- surance or limit the extent of his recovery. gee separate and distinct protection to his The rights of the mortgagee become not interest, to create in him an interest under merely those of a substitute for the owner. the policy distinct from that of the prop. He acquires rights of his own which are erty owner, and to, in fact, make him an as. subject to no man's control, and which give sured. Hastings v. IVestchester F. Ins Co. him independent and uistinct protection. 73 N. Y. 141; Magoun v. Fireman's Fund It requires no argument to demonstrate Ins. Co. 86 Minn. 486, 91 Am. St. Rep. 370. that, under such circumstances, the mortga. 91 N. W. 5; Hartford F. Ins. Co. v. Olcott, gee's protection extends, as we have above 97 II]. 439; Phenix Ins. Co. v. Omaha Loan assumed it to do, to the consequences of all E T. Co. 41 Neb. 834, 25 L. R. A. 679, 60 N. the acts and neglects of the property owner W. 133; Ormsby v. Phenix Ins. Co. 5 S. D. both before and after loss, and that it there72, 58 N. W. 301; Syndicate Ins. Co. v. fore precludes a submission to appraisers Bohn, 27 L. R. A. 614, 12 C. C. A. 531, 27 which should be binding upon the mortgagee U. S. App. 564, 65 Fed. 165: Clement, without his concurrence or ratification. The Inz. 33; Elliott, Ins. & 341. This court plaintiff's claim is dependent upon the prophas never gone to the full length of osition that, however unlike the essence and these decisions, nor need we do so now. character of the two clauses discussed may In Meriden Sav. Bank v. Home Mut. F. be, and however much the consequences Ins. Co. 50 Conn. 396, was presented a case flowing from the acts and neglects of the in which the policy had attached to it the insured prior to the occurrence of the loss “open mortgage clause;" but the insurer may differ, according as the one or the other and mortgagee had entered into a collateral enters into or is indorsed upon the policy, agreement by which, in effect, the provisions the consequences flowing from acts and neg: of the "union mortgage clause" were made lects subsequent to the loss are the same, applicable to all policies issued or to be is. regardless of which of the forms is used, so sued by the defendant (the insurer), where that in either event the mortgagee will not in the loss had been or might be made pay- / be bound by any adjustment of the loss in

which he does not participate or concur. In | impossible to gather from it with certainty support of this proposition, six cases are what the terms of the policy in suit were. cited. These cases are frequently referred A standard policy containing the "union to by legal writers and annotators as sup- mortgage clause” was adopted by that state porting the principle propounded by the prior to June, 1886, and probably in 1885. plaintiff and accepted by the trial court. The case was decided in December, 1887. An examination of them, however, discloses It is altogether probable, therefore, that the that many, if not most, of them have no per situation there was identical with that in tinence whatever to the proposition in sup- the Massachusetts case. Brown v. Hartford port of which they are so often cited, and Ins. Co. 5 R. I. 398, was decided upon the that the balance are not of such a character proposition that the “open mortgage clause” as to strongly commend them as authorities indorsed upon a policy operated as an asin this jurisdiction, at least.

signment of it, by reason of which the In Hathaway v. Orient Ins. Co. 134 N. Y. mortgagee acquired not only a right of ac409, 17 L. R. A. 514, 32 N. E. 40, the right tion upon the policy as long as his debt was of the mortgagee to participate in the ad- unpaid, but afterwards. This principle, enjustment of the loss was not in question. tirely at variance in its every part with the Both the policy and loss covered a building | law of this state, was propounded upon the mortgaged, and machinery therein not mort | authority of the superior court decision in gaged, save such as had become attached to Grosvenor v. Allantic F. Ins. Co. 5 Duer, the realty. What had become so attached | 517, overruled upon appeal, 17 N. Y. 391, was a matter of dispute between the owner and a dictum in King v. State Mut. F. Ins. and mortgagee. The latter's interest, there.Co. 7 Cush. O, 54 Am. Dec. 183, which was fore, in the sum to be paid by the insurance plainly misinterpreted, and thus made to excompany, was not only a partial, but also an press the reverse of the settled rule in that uncertain, one. The company and owner not jurisdiction. Fogg v. Middlesex Mut. F. only adjusted the loss, but also made a divi. Ins. Co. 10 Cush. 337; Hale v. Mechanics' sion of the amount of the adjustment, which | Vut. F. Ins. Co. 6 Gray, 169, 66 Am. Dec. was a single gross sum, between the owner 410; Loring v. Manufacturers' Ins. Co. 8 and mortgagee, without consulting the lat. Gray, 28; Franklin Sav. Inst. v. Central ter. This latter attempt at a distribution of Mut. F. Ins. Co. 119 Mass. 240. There rewhat had been determined upon as the mains the Kentucky case of Bergman v. amount due from the insurer, without the Commercial Assur. Co. 92 Ky. 494, 15 L. R. participation therein of one who had a vest- A. 270, 18 S. W. 122, which rests its decied right in some part of that amount, while sion upon the authority of Brown v. Hartsuggestive of fraud and collusion, was also ford Ins. Co. 5 R. I. 398; Harrington v. in plain violation of the mortgagee's right, Fitchburg Mut. F. Ins. Co. 124 Mass. 126, and the court so held. What it determined and a text-book reference not in point. But was that the insurer “had no authority to whatever may be said of the pertinence of agree with the owner as to the amount of these decisions, we are unable to accept the the damages, and determine as between him conclusion said to be supported by them. and the mortgagee what sum was payable We find it difficult to harmonize the acto each."

cepted proposition that a mortgagee, by In Wilson v. Hakes, 36 Ill. App. 547, the force of the appointment clause in question, only question raised related, not to the ad does not become a party to the insurance justment, but to the payment of what was contract, and is not in privity with the inin fact paid. The contention successfully surer, with the other proposition, that nevermade was that a mortgagee, with whom the theless he acquires the right to intervene owner and mortgagor has in the mortgage between the only parties having contractual covenanted to maintain insurance sufficient relations, and to exercise the functions to secure the indebtedness, has such an which are created by the contract to which equitable right to insurance money due by he is a stranger, and which are exercised in reason of a loss that the insurer, after no. pursuance of its provisions. It has been tice, cannot pay the owner, except at its own suggested that the explanation is that upon risk. Massachusetts in 1873 adopted a the happening of a loss the mortgagee acstandard form of policy, which embodied as I quires a vested right. True, he does, but one of its provisions the "union mortgage what is the right which thus vests? Is it clause.” Such must have been the policy anything more than the right to have the in the oft-quoted case of Harrington v. payment made, of his rightful share of it? Fitchburg Mut. F'. Ins. Co. 124 Mass. 126 If more, how and what more, and how does That case is not, therefore, authority for the the claimed right to participate in the addoctrine which is credited to it.

The re

justment under the contract so suddenly port of the case of Hall v. Fire Asso. 64 N. Wrise? It is said that he ought, for his H. 405, 13: Atl. 648, is so meager that it is own protection, to have the right. But contract rights are not thus created. The law or that the right of participation is by some does not raise up contract rights and rela- other provision so given or to be implied tions for the protection of every man who that the term must be construed as includhas failed to protect himself.

ing him. But it is unprofitable to pursue this line It is easy to understand how a mortgagee, of inquiry further, without first discovering having acquired the status which the what provisions there may be in the insur: “union mortgage clause" gives one, whatever ance contract into which the defendant en- that status, technically regarded, may be, tered which determine the rights of the par- might be fairly entitled to be comprehended ties in the matter under consideration, since within the descriptive term “the insured," it is clear that, in so far as the contract and, if not, that the express language of speaks, whether it be in the way of defining that clause so defines his rights and limits the extent of the defendant's liability for the rights and powers of the property the loss in the abstract, or of prescribing the owner that the right to participate in any manner in which that liability in any given adjustment of the loss is impliedly accorded case should be measured, ascertained, and him. On the other hand, it is not easy to reduced to figures, it will be controlling. discover upon what theory it can be reasonAnd it will be no less controlling of the ably claimed that a person who has not rights of the mortgagee than those of the come into contractual relations with the ininsurer and owner, since he takes his rights surer, who has obtained no insurance prounder and subject to the insurance contract. tection, and who is only an appointee of the His right to take is limited to the insurer's owner as respects whatever may become due obligation to pay, as determined by the pro- under the contract of insurance, to which he visions of the policy. Let us therefore see is a stranger, acquires the right, even by inhow far, if at all, the parties to the contract direction, to assume the title of "the inhave themselves determined the questions sured.” If we look for other provisions pertinent to the present issue.

which may serve, by way of implication or No question arises as to the extent of the otherwise, to give him a standing in the addefendant's liability, abstractly considered. justment of a loss, we find only that the The policy promises indemnity to an amount word “insured,” whenever used in the polnot exceeding $2,000 for all direct loss or icy, should be construed to include the legal damage by fire, subject, however, to the ex. representatives of the insured, and nothing ceptions named. These exceptions, which more. It appears, therefore, that the right include the limitations upon the defendant's to participate in an adjustment of a loss liability arising from concurrent insurance under this policy and indorsement has by and the 80 per cent clause, concerning the the parties to the contract been limited to effect of which no question arises, need not the insurer, the property owner, and his be considered. The controversy here relates legal representatives. solely to the means of obtaining an expres- The plaintiff's second objection to the sion, in concrete dollars and cents, of the binding force of the award falls with the obligation whose statement in the abstract first. It having been determined that the all concur in. Upon this subject the policy. owner had full power in the matter of adfirst of all, provides that “the loss or dam. justment, whether by way of agreement or age shall be ascertained and established” up arbitration, and that the mortgagee was not on a specified basis, and that such ascer entitled to be a party thereto, it follows that tainment or estimate shall be made by the the former had full power to accept the reinsured and the company, or, "if they differ, sult of a submission, however erroneously by appraisers as hereinafter appointed.” | arrived at it might have been, and that the The subsequent provision for the event of a latter has no standing to attack it for the disserence requires the appointment of two cause alleged. appraisers, one by the insurer and the The defendant strenuously complains that other by the insured,--and the selection by it is aggrieved because the court, after setthe appraisers of an umpire. The award ting aside the award as not binding upon thus obtained is made final as to the amount these parties, and finding that the determiof the loss. The policy, it will thus be seen. nation of sound value therein was made upcould scarcely be more clear and precise in on an erroneous basis, which, under the pecommitting and limiting to the insurer and culiar circumstances of the case, gave too owner not only the power and right of ad- large a result, proceeded to accept the ap justment by agreement, but also the power praisal of the fire damage as correctly repreand right to submit the adjustment to the senting that item, without, as it is said, final decision of third parties, unless it can other evidence upon the subject than the disbe said either that the term "insured," as credited award, and the statement of one of used in this connection, is of itself sufficient. the appraisers that he found the damage as ly comprehensive to include this mortgagee. stated therein. The contention is that the

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court thus found an important fact without rights as owner of land abutting on navicompetent evidence, and unwillingly gave ef- gable water. Reversed. iect to a part of the award which was not The facts are stated in the opinion. only presumptively influenced by the ele. Messrs. Brandegee, Noyes, & Brandement of sound value, but also based upon gee, for appellant: the same considerations of cost of construc The defendant has not interfered with the tion which entered into the determination of wharfage right, or any other private right that item; thus unjustly converting a 20 per or privilege, of the plaintiff. cent damage into one of 35 per cent. This Ockerhausen v. Tyson, 71 Conn. 38, 40 claim and others of an incidental character Atl. 1041. discussed at bar do not, in view of our con: The principle that riparian proprietors clusions above, call for consideration. have the right to wharf out to the deep

The plaintiff was entitled to judgment for water or channel is applicable only where the sum of $510.28, the amount of the de- the body of water upon which they own fendant's liability upon the basis of the property has a channel. award, together with interest on said sum The private rights of the plaintiff not befrom the time it was payable to the date of ing infringed upon, her other damages are judgment, making, in the whole, $549.23, damnum absque injuria. and was entitled to no more.

The title to the beds of navigable streams There is error in so much of the judg. is in the state, and the state, in the absence ment as is in excess of $549.23, and it is set

of action by Congress under its power to aside as to such excess. There is no error regulate commerce, has authority to author. in the balance of the judgment, and the ize the construction of bridges and other judgment is aflirmed for said of

structures across such streams. $549.23.

Frost v. Washington County R. Co. 96

Me. 86, 59 L. K. A. 68, 51 Atl. 806; DavidAll concur.

son V. Boston & M. R. Co. 3 Cush. 106; Clark v. Saybrook, 21 Conn. 325; O'Brien

v. Noruich & W. R. Co. 17 Conn. 372. Hester RICHARDS

The legislature has the power to author

ize a railroad company to build a permaNEW YORK, NEW HAVEN, & HART- nent bridge over navigable waters, and the FORD RAILROAD COMPANY, Appt. riparian owners above are not only without

remedy, but without a right to a remedy. (77 Conn. 501.)

Builey v. Philadelphia, W. & B. R. Co. 4 1. Error in overruling a demurrer is

Harr. (Del.) 389, 44 Am. Dec. 593; Homonot available to defendant after a vol

chitto River v. Withers, 29 Miss. 21, 64 Am. untary default and hearing in damages there Dec. 126; Boston & W. R. Corp. v. Old

on, unless the complaint is bad in substance. Colony R. Corp. 12 Cush. 605; Brayton v. 2. The wharfage

reclamation | Fall River, 113 Mass. 229, 18 Am. Rep. 470; rights of the owner of land on a cove

and

Blackwell v. Old Colony R. Co. 122 Mass. leading off from a river are not destroyed

1; Thayer v. New Bedford R. Co. 125 Mass. or impaired by the construction of an embankment across the mouth of the cove.

253; Breed v. Lynn, 126 Mass. 367; Pound 3. No recovery can be had by the owner

v. Turck, 95 U. S. 459, 24 L. ed. 525; Gil. of land on a cove leading off from a river

inan v. Philadelphia, 3 Wall. 713, 18 L, ed. for interference with his right of access from 96; Passaic Bridges (Milnor v. New Jersey his land to the river by the construction of a R. & Transp. Co.) 3 Wall. 782, Appx., railroad track across the mouth of the cove.

and 16 L. ed. 799; Baldwin Am. Railroad where the access is not entirely cut off, and, because of the limited extent of the cove.

Law, pp. 68, 105; Whitehead v. Jessup, 53 and the shallowness of its waters, the right

Fed. 709. is not essentially impaired.

The complaint in the present case con

tains no such allegations of special dam(January 4, 1905.)

age.

Harvard College v. Stearns, 15 Gray, 1; the Superior Court for New London Lansing v. Smith, 8 Cow. 146; Brightman County in plaintiff's favor in an action to

v. Fairhaven, 7 Gray, 272. recover damages for injury to plaintiff's been impaired, the plaintiff has no right of

As the navigation of Clark's cove has only NOTE.--As to right of owner of upland to

action. access to navigable water, see also, in this se Randolph, Em. Dom. 25; Blood v. Nashua ries, State es rel. Denny v. Bridges, 40 L. R. A.

& L. R. Corp. 2 Gray, 137, 61 Dec. 444; 593, and note.

As to right of riparian owner to wharf out. Jolly v. Terra llaute Drawbridge Co. 6 Mcsee Madison v. Mayers, 40 L. R. A. 635, and

Lean, 237, Fen. ('as. No. 7,441. note.

Even if the weight of the railroad struc

A PEA Jubxr defendante from a judgment of

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