concluded by said award, and also that the rule adopted by the appraisers for the determination of sound value was not the correct one. It further found that, by reason of a recent depreciation in values in the vicinity, the result reached by the appraisers was too large. It thereupon proceeded, upon independent evidence, to ascertain the market value and fix such ascertained value, to wit, $10,000, as the sound value. The plaintiff made no complaint of the award as to the fire damage, and the court made the same finding in that regard that the appraisers had made. Upon the basis of these conclusions, the court computed the defendant's liability under its policy to be $793.76, for which sum, with interest thereon from August 10, 1903,-making, in the whole, $849.32,-judgment was rendered. The defendant does not contest its liability to pay the amount which results from an apportionment of the loss upon the basis of the award, but stands ready to pay that sum. Other facts not pertinent to the conclusions of this court are not stated. Mr. Charles E. Gross for appellant. Mr. Theodore M. Maltbie, for appellee: The title of the plaintiff to the amount of the loss was given by the policy contract, and vested in the plaintiff when the loss occurred. Hall v. Fire Asso. 64 N. H. 405, 13 Atl. 648; Beach v. Fairbanks, 52 Conn. 167. As the title of the plaintiff is coincident with the origin of the claim, the conduct of the insured in reference to the loss and its adjustment, without the knowledge and consent of the plaintiff, could not prejudice the plaintiff's right to recover the full amount of the loss. Harrington v. Fitchburg Mut. F. Ins. Co. 124 Mass. 126; Hathaway v. Orient Ins. Co. 134 N. Y. 409, 17 L. R. A. 514, 32 N. E. 40; Hall v. Fire Asso. 64 N. H. 405, 13 Atl. 648; Brown v. Hartford F. Ins. Co. 5 R. I. 398; Bergman v. Commercial Assur. Co. 92 Ky. 494, 15 L. R. A. 270, 18 S. W. 122; Wilson v Hakes, 36 Ill. App. 547; Jones, Mortg. § 407. submission entered into by the defendant and the property owner, there is error in this case. The court ruled against this contention, and rendered judgment in favor of the contrary claim of the plaintiff, that it was not bound by said award. Two reasons are urged in support of the plaintiff's position, to wit: (1) That it was not a party to the submission, and has never acquiesced in or ratified it; and (2) that the appraisers applied an erroneous rule of law in their determination of the sound value of the property insured. The policy, whose provisions prescribe and define the defendant's liability, is the Connecticut standard policy, having indorsed thereon the so-called reduced rate or 80 per cent clause, and also the following: "Loss, if any, payable to the Collinsville Savings Society as their mortgage interest may ap pear." Said society is in no other way or place, either specifically or descriptively, mentioned in the policy or its indorsements, save as it is provided in the body of the policy that "if, with the consent of the company, an interest under this policy shall exist in favor of a mortgagee, or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached or appended hereto." The indorsement above recited, designating the payee of any loss, which, for the purposes of distinction, has been called the "open mortgage clause," did not bring the plaintiff and defendant into contractual relations with each other, either directly or through an assignment of the policy; neither did the plaintiff thereby become a person or corporation whose property or property interests were insured under the policy. The contract for indemnity remained one exclusively between the defendant and the property owner. The plaintiff was only a conditional appointee of the latter. As such appointee, it was entitled to receive so much of any sum that might become due under the policy as did not exceed Prentice, J., delivered the opinion of the its interest as mortgagee, and nothing more. Such is the accepted rule in this state, and, with few possible exceptions, elsewhere. Woodbury Sav. Bank & Bldg. Asso. v. Charter Oak F. & M. Ins. Co. 29 Conn. 374; Meriden Sav. Dunk v. Home Mut. F. Ins. Co. 50 Conn. 396; Franklin Sav. Inst. v. Central Mut. F. Ins. Co. 119 Mass. 240; Baldwin v. Phoenix Ins. Co. 60 N. H. 164; Biddeford Sav. Bank v. Dwelling-House Ins. Co. 81 Me. 566, 18 Atl. 298; Magoun v. Fireman's Fund Ins. Co. 86 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 poiGrosvenor 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. 165. 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. Phoenix Ins. Co. 60 N. H. 164. go no further for the overruling of the demurrer to the second count, and so the court said that it would go no further at that time and in that case. It is unnecessary to inquire into the logical consequences of what was then held, since it is quite clear that the plain and explicit provision of the "union mortgage clause," to the effect that the mortgagee's right of recovery under the policy, as the payee thereof, shall not be affected by the act or neglect of any person other than the mortgagee, his agent, or those claiming under him, must suffice to establish for a mortgagee under such conditions a status with respect to the insurance which is not only independent of, but also superior to, that of the property owner. The former's rights are thus expressly set free from the operation of those acts and neglects of the latter which would destroy the latter's insurance or limit the extent of his recovery. The rights of the mortgagee become not merely those of a substitute for the owner. He acquires rights of his own which are subject to no man's control, and which give him independent and aistinct protection. There is another stipulation appearing in or appended to policies issued to property owners, and designed to protect the interest of mortgagees, which it is important to notice. This has been variously denominated the "mortgagee clause" and the "union mortgage clause." It is embodied in the standard policies in some states, and is frequently used as a rider upon policies in other states. It embraces the provision, in substance, that no act or default of any person other than such mortgagee or his agent. or those claiming under him, shall affect the mortgagee's right of recovery. It has frequently been held that the effect of this clause, whenever it is made a part of or indorsed upon a policy, is to bring the insurer and mortgagee into relations of privity, to convert the mortgagee into a party to the contract of insurance. to give to the mortgagee separate and distinct protection to his interest, to create in him an interest under the policy distinct from that of the property owner, and to, in fact, make him an assured. Hastings v. Westchester F. Ins Co. 73 N. Y. 141; Magoun v. Fireman's Fund Ins. Co. 86 Minn. 486, 91 Am. St. Rep. 370. 91 N. W. 5; Hartford F. Ins. Co. v. Olcott, 97 Ill. 439; Phenix Ins. Co. v. Omaha Loan & T. Co. 41 Neb. 834, 25 L. R. A. 679, 60 N. W. 133; Ormsby v. Phenix Ins. Co. 5 S. D. 72, 58 N. W. 301; Syndicate Ins. Co. v. Bohn, 27 L. R. A. 614, 12 C. C. A. 531, 27 U. S. App. 564, 65 Fed. 165: Clement, Ins. 33; Elliott, Ins. § 341. This court has never gone to the full length of these decisions, nor need we do so now. In Meriden Sav. Bank v. Home Mut. F. Ins. Co. 50 Conn. 396, was presented a case in which the policy had attached to it the "open mortgage clause;" but the insurer and mortgagee had entered into a collateral agreement by which, in effect, the provisions of the "union mortgage clause" were made applicable to all policies issued or to be is sued by the defendant (the insurer), wherein the loss had been or might be made pay It requires no argument to demonstrate that, under such circumstances, the mortgagee's protection extends, as we have above assumed it to do, to the consequences of all the acts and neglects of the property owner both before and after loss, and that it therefore precludes a submission to appraisers which should be binding upon the mortgagee without his concurrence or ratification. The plaintiff's claim is dependent upon the proposition that, however unlike the essence and character of the two clauses discussed may be, and however much the consequences flowing from the acts and neglects of the insured prior to the occurrence of the loss may differ, according as the one or the other enters into or is indorsed upon the policy, the consequences flowing from acts and neg. lects subsequent to the loss are the same, regardless of which of the forms is used, so that in either event the mortgagee will not be bound by any adjustment of the loss in | which he does not participate or concur. In support of this proposition, six cases are cited. These cases are frequently referred to by legal writers and annotators as supporting the principle propounded by the plaintiff and accepted by the trial court. An examination of them, however, discloses that many, if not most, of them have no pertinence whatever to the proposition in support of which they are so often cited, and that the balance are not of such a character as to strongly commend them as authorities in this jurisdiction, at least. In Hathaway v. Orient Ins. Co. 134 N. Y. 409, 17 L. R. A. 514, 32 N. E. 40, the right of the mortgagee to participate in the adjustment of the loss was not in question. Both the policy and loss covered a building mortgaged, and machinery therein not mortgaged, save such as had become attached to the realty. What had become so attached was a matter of dispute between the owner and mortgagee. The latter's interest, therefore, in the sum to be paid by the insurance company, was not only a partial, but also an uncertain, one. The company and owner not only adjusted the loss, but also made a division of the amount of the adjustment, which was a single gross sum, between the owner and mortgagee, without consulting the lat- | ter. This latter attempt at a distribution of what had been determined upon as the amount due from the insurer, without the participation therein of one who had a vested right in some part of that amount, while suggestive of fraud and collusion, was also in plain violation of the mortgagee's right, and the court so held. What it determined was that the insurer "had no authority to agree with the owner as to the amount of the damages, and determine as between him and the mortgagee what sum was payable to each." impossible to gather from it with certainty what the terms of the policy in suit were. A standard policy containing the "union mortgage clause" was adopted by that state prior to June, 1886, and probably in 1885. The case was decided in December, 1887. It is altogether probable, therefore, that the situation there was identical with that in the Massachusetts case. Brown v. Hartford Ins. Co. 5 R. I. 398, was decided upon the proposition that the "open mortgage clause" indorsed upon a policy operated as an assignment of it, by reason of which the mortgagee acquired not only a right of action upon the policy as long as his debt was unpaid, but afterwards. This principle, entirely at variance in its every part with the law of this state, was propounded upon the authority of the superior court decision in Grosvenor v. Atlantic F. Ins. Co. 5 Duer, 517, overruled upon appeal, 17 N. Y. 391, and a dictum in King v. State Mut. F. Ins. Co. 7 Cush. 6, 54 Am. Dec. 683, which was plainly misinterpreted, and thus made to express the reverse of the settled rule in that jurisdiction. Fogg v. Middlesex Mut. F. Ins. Co. 10 Cush. 337; Hale v. Mechanics' Mut. F. Ins. Co. 6 Gray, 169, 66 Am. Dec. 410; Loring v. Manufacturers' Ins. Co. 8 Gray, 28; Franklin Sav. Inst. v. Central Mut. F. Ins. Co. 119 Mass. 240. There remains the Kentucky case of Bergman v. Commercial Assur. Co. 92 Ky. 494, 15 L. R. A. 270, 18 S. W. 122, which rests its decision upon the authority of Brown v. Hartford Ins. Co. 5 R. I. 398; Harrington v. Fitchburg Mut. F. Ins. Co. 124 Mass. 126, and a text-book reference not in point. But whatever may be said of the pertinence of these decisions, we are unable to accept the conclusion said to be supported by them. We find it difficult to harmonize the accepted proposition that a mortgagee, by force of the appointment clause in question, does not become a party to the insurance contract, and is not in privity with the insurer, with the other proposition, that nevertheless he acquires the right to intervene between the only parties having contractual relations, and to exercise the functions which are created by the contract to which he is a stranger, and which are exercised in pursuance of its provisions. It has been suggested that the explanation is that upon the happening of a loss the mortgagee acquires a vested right. True, he does, but what is the right which thus vests? Is it anything more than the right to have the payment made, of his rightful share of it? If more, how and what more, and how does the claimed right to participate in the ad In Wilson v. Hakes, 36 Ill. App. 547, the only question raised related, not to the adjustment, but to the payment of what was in fact paid. The contention successfully made was that a mortgagee, with whom the owner and mortgagor has in the mortgage covenanted to maintain insurance sufficient to secure the indebtedness, has such an equitable right to insurance money due by reason of a loss that the insurer, after notice, cannot pay the owner, except at its own risk. Massachusetts in 1873 adopted a standard form of policy, which embodied as one of its provisions the "union mortgage clause." Such must have been the policy in the oft-quoted case of Harrington v. Fitchburg Mut. F. Ins. Co. 124 Mass. 126 That case is not, therefore, authority for the doctrine which is credited to it. The re-justment under the contract so suddenly port of the case of Hall v. Fire Asso. 64 N. H. 405, 13 Atl. 648, is so meager that it is rise? It is said that he ought, for his own protection, to have the right. But con tract rights are not thus created. The law does not raise up contract rights and relations for the protection of every man who has failed to protect himself. But it is unprofitable to pursue this line of inquiry further, without first discovering what provisions there may be in the insurance contract into which the defendant entered which determine the rights of the parties in the matter under consideration, since it is clear that, in so far as the contract speaks, whether it be in the way of defining the extent of the defendant's liability for the loss in the abstract, or of prescribing the manner in which that liability in any given case should be measured, ascertained, and reduced to figures, it will be controlling. And it will be no less controlling of the rights of the mortgagee than those of the insurer and owner, since he takes his rights under and subject to the insurance contract. His right to take is limited to the insurer's obligation to pay, as determined by the provisions of the policy. Let us therefore see how far, if at all, the parties to the contract have themselves determined the questions pertinent to the present issue. or that the right of participation is by some other provision so given or to be implied that the term must be construed as including him. It is easy to understand how a mortgagee, having acquired the status which the "union mortgage clause" gives one, whatever that status, technically regarded, may be, might be fairly entitled to be comprehended within the descriptive term "the insured,” and, if not, that the express language of that clause so defines his rights and limits the rights and powers of the property owner that the right to participate in any adjustment of the loss is impliedly accorded him. On the other hand, it is not easy to discover upon what theory it can be reasonably claimed that a person who has not come into contractual relations with the insurer, who has obtained no insurance protection, and who is only an appointee of the owner as respects whatever may become due under the contract of insurance, to which he is a stranger, acquires the right, even by indirection, to assume the title of "the insured." If we look for other provisions which may serve, by way of implication or otherwise, to give him a standing in the adjustment of a loss, we find only that the word "insured," whenever used in the policy, should be construed to include the legal representatives of the insured, and nothing more. It appears, therefore, that the right to participate in an adjustment of a loss under this policy and indorsement has by the parties to the contract been limited to the insurer, the property owner, and his legal representatives. The plaintiff's second objection to the binding force of the award falls with the first. It having been determined that the owner had full power in the matter of ad No question arises as to the extent of the defendant's liability, abstractly considered. The policy promises indemnity to an amount not exceeding $2,000 for all direct loss or damage by fire, subject, however, to the exceptions named. These exceptions, which include the limitations upon the defendant's liability arising from concurrent insurance and the 80 per cent clause, concerning the effect of which no question arises, need not be considered. The controversy here relates solely to the means of obtaining an expression, in concrete dollars and cents, of the obligation whose statement in the abstract all concur in. Upon this subject the policy. first of all, provides that "the loss or dam-justment, whether by way of agreement or age shall be ascertained and established" upon a specified basis, and that such ascertainment or estimate shall be made by the insured and the company, or, "if they differ, by appraisers as hereinafter appointed." The subsequent provision for the event of a difference requires the appointment of two appraisers, one by the insurer and the other by the insured,-and the selection by the appraisers of an umpire. The award thus obtained is made final as to the amount of the loss. The policy, it will thus be seen. could scarcely be more clear and precise in committing and limiting to the insurer and owner not only the power and right of adjustment by agreement, but also the power and right to submit the adjustment to the final decision of third parties, unless it can be said either that the term "insured," as used in this connection, is of itself sufficiently comprehensive to include this mortgagee. arbitration, and that the mortgagee was not entitled to be a party thereto, it follows that the former had full power to accept the result of a submission, however erroneously arrived at it might have been, and that the latter has no standing to attack it for the cause alleged. The defendant strenuously complains that it is aggrieved because the court, after setting aside the award as not binding upon these parties, and finding that the determination of sound value therein was made upon an erroneous basis, which, under the peculiar circumstances of the case, gave too large a result, proceeded to accept the appraisal of the fire damage as correctly representing that item, without, as it is said, other evidence upon the subject than the discredited award, and the statement of one of the appraisers that he found the damage as stated therein. The contention is that the The facts are stated in the opinion. Messrs. Brandegee, Noyes, & Brandegee, for appellant: court thus found an important fact without | rights as owner of land abutting on navicompetent evidence, and unwillingly gave ef- gable water. Reversed. fect to a part of the award which was not only presumptively influenced by the element of sound value, but also based upon the same considerations of cost of construction which entered into the determination of that item; thus unjustly converting a 20 per cent damage into one of 35 per cent. This claim and others of an incidental character discussed at bar do not, in view of our conclusions above, call for consideration. The plaintiff was entitled to judgment for the sum of $510.28, the amount of the defendant's liability upon the basis of the award, together with interest on said sum from the time it was payable to the date of judgment, making, in the whole, $549.23, and was entitled to no more. There is error in so much of the judg ment as is in excess of $549.23, and it is set aside as to such excess. There is no error in the balance of the judgment, and the judgment is affirmed for said sum of $549.23. All concur. Hester RICHARDS v. NEW YORK, NEW HAVEN, & HART- (77 Conn. 501.) 1. Error in overruling a demurrer is A (January 4, 1905.) PPEAL by defendant from a judgment of the Superior Court for New London County in plaintiff's favor in an action to recover damages for injury to plaintiff's NOTE. As to right of owner of upland to access to navigable water, see also, in this series, State er rel. Denny v. Bridges, 40 L. R. A. 593, and note. The defendant has not interfered with the wharfage right, or any other private right or privilege, of the plaintiff. Ockerhausen v. Tyson, 71 Conn. 38, 40 Atl. 1041. The principle that riparian proprietors have the right to wharf out to the deep water or channel is applicable only where the body of water upon which they own property has a channel. The private rights of the plaintiff not being infringed upon, her other damages are damnum absque injuria. The title to the beds of navigable streams is in the state, and the state, in the absence of action by Congress under its power to regulate commerce, has authority to authorize the construction of bridges and other structures across such streams. Frost v. Washington County R. Co. 96 Me. 86, 59 L. K. A. 68, 51 Atl. 806; Davidson v. Boston & M. R. Co. 3 Cush. 106; Clark v. Saybrook, 21 Conn. 325; O'Brien v. Norwich & W. R. Co. 17 Conn. 372. The legislature has the power to authorize a railroad company to build a permanent bridge over navigable waters, and the riparian owners above are not only without remedy, but without a right to a remedy. Bailey v. Philadelphia, W. & B. R. Co. 4 Harr. (Del.) 389, 44 Am. Dec. 593; Homochitto River v. Withers, 29 Miss. 21, 64 Am. Dec. 126; Boston & W. R. Corp. v. Old Colony R. Corp. 12 Cush. 605; Brayton v. Fall River, 113 Mass. 229, 18 Am. Rep. 470; Blackwell v. Old Colony R. Co. 122 Mass. 1; Thayer v. New Bedford R. Co. 125 Mass. 253; Breed v. Lynn, 126 Mass. 367; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Passaic Bridges (Milnor v. New Jersey R. & Transp. Co.) 3 Wall. 782, Appx., and 16 L. ed. 799; Baldwin Am. Railroad Law, pp. 68, 105; Whitehead v. Jessup, 53 Fed. 709. The complaint in the present case contains no such allegations of special damage. Harvard College v. Stearns, 15 Gray, 1; Lansing v. Smith, 8 Cow. 146; Brightman v. Fairhaven, 7 Gray, 272. been impaired, the plaintiff has no right of As the navigation of Clark's cove has only action. Randolph, Em. Dom. 25; Blood v. Nashua & L. R. Corp. 2 Gray, 137, 61 Am. Dec. 444; As to right of riparian owner to wharf out. Jolly v. Terra Haute Drawbridge Co. 6 Mc see Madison v. Mayers, 40 L. R. A. 635, and note. Lean, 237, Fed. Cas. No. 7,441. Even if the weight of the railroad struc |