Decree reversed and cause remanded, the costs to be paid out of the funds.

wife, Ellen, $1,000." The court held that | in 36 Md. In this way only can that distrithe limitation over to Greenbury M. Wat-bution be reconciled with the principle dekins was of the class of contingent interests clared in subsequent well-considered cases on which would pass by descent, and said, "If the subject. For the reasons stated, the dethe sons die under twenty-one he is to get cree of the lower court will be reversed, and their estate charged with this legacy, and the cause remanded with directions to disher right becomes perfect to the $1,000 as tribute the funds in accordance with the soon as he succeeds to the property." The opinion, the costs to be paid out of said court also was of opinion that by the true funds. construction of the will of R. W. Watkins this bequest to his wife was a vested legacy, saying that "the bequest vested in her life time and then became transmissible." Whether the court meant that this legacy was vested in the wife in the ordinary and proper acceptation of that term, or whether it was vested sub modo only as in case of contingent remainders to a named person, it is not necessary for us to inquire; but it is 1. JURY (§ 10*)-RIGHT TO TRIAL BY-CONquite evident that that case can have no controlling effect upon the question we are dealing with, because Thomas Meredith Jenkins had no vested remainder in the estate held by the trustees for the life of Mrs. Jenkins, and nothing was charged by the will of Austin Jenkins upon that estate in his favor. Besides, the clauses in the two wills are totally dissimilar.

In Hambleton v. Darrington, supra, the question was, as stated by the court: "Whether the estate or interest devised or bequeathed by Rachel Watson to Zachariah Woollen passed by the will of the latter to the trustees therein named, to be distributed under its provisions, or devolved upon his heirs at law and next of kin; or, in other words, whether Zachariah Woollen died testate or intestate as to the property bequeathed by Mrs. Watson." The contest in that case was one between the devisees under the will of Zachariah Woollen on the one side, and his heirs at law and next of kin and the admin

ROY et al. v. MOORE.

(Supreme Court of Errors of Connecticut. Feb. 9, 1912.)

STITUTION.

Under Const. art. 1, § 21, providing the right to a jury trial shall remain inviolate, the plaintiff has a right to a jury trial if the right tion of the Constitution. in the particular case existed prior to the adop

[Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 15, 16; Dec. Dig. § 10.*] 2. JURY (§ 31*)-RIGHT TO TRIAL BY-ABRIDG

MENT.

Gen. St. 1902, § 720, as amended by Pub. Acts 1905, c. 56, § 1, providing that, at the request of either party, civil actions involving an issue of fact, which prior to January 1, 1880, would not present a question properly cognizable in equity, shall be entered as jury cases, does not abridge the constitutional right of trial by jury, and so a plaintiff may in a single action seek the remedy of trespass to secure damages and an injunction to restrain ed on the jury docket if the action is one the trespasses, and cause the case to be enterwithin the scope of the statute.

[Ed. Note.-For other cases, see Jury, Dec. Dig. § 31.*]

3. JURY (§ 13*)-EQUITABLE ACTIONS-"PROPERLY COGNIZABLE IN EQUITY.”

Plaintiff sued to recover damages for trespass and for an injunction to restrain trespasses which the complaint alleged were being committed under a claim of ownership. Defendant, in his answer, set up title to the property. Gen. St. 1902, § 720, as amended by Pub. Acts 1905, c. 56, § 1, provides that civil actions presenting an issue of fact, which, prior to January 1, 1880, would not present a question "properly cognizable in equity," may be entered on the docket as jury cases. Section 722, as amended by Pub. Acts 1905, c. 56, § 3, provides that if more than one issue of fact be joined in a cause upon the docket as a jury case, either party may file written notice of what issues he desires tried to the jury. Held, that such action is not now and was not prior to January 1, 1880, one "properly cognizable in equity," that term meaning "capable of being judicially heard and determined in equity," since it involves title, possession, and damages, subjects not proper for equity, and hence plaintiff was entitled to have such cause placed upon the jury docket, the only equitable relief permissible in such action being a temporary injunction to prevent irreparable injury pending determination of the title.

istrator of his deceased wife on the other. Neither in the argument of counsel nor in the opinion of the court is there any discussion of the rights of the deceased wife. The court decided that the will of Zachariah Woollen did not pass the estate, or property mentioned in the will of Rachel Watson, and that as to that property he had died intestate, and directed that, "in distributing so much of said estate as is personal, the auditor should assign to the administrator of Rebecca Woollen, deceased, one-third, and the residue to the next of kin of Zachariah Woollen as in cases of intestacy." It appears reasonably certain that this direction as to distribution was made by consent of the children of Zachariah Woollen, who were claiming adversely to the will. There was no contest, or dispute, as to the rights of the deceased widow, and the report shows that the appellants were willing and consented that Ler administrator should share in the distribution. See page 437 of the reported case

[Ed. Note. For other cases, see Jury, Cent. Dig. 88 35-83; Dec. Dig. § 13.*

For other definitions, see Words and Phrases, vol. 6, p. 5692; vol. 8, p. 7768.]

Injunctive relief cannot be used to take land from the possession of one and put it into the possession of another.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 82-84; Dec. Dig. § 36.*] 5. ADVERSE POSSESSION (§ 85*)-EVIDENCE.

4. INJUNCTION (§ 36*)-PROPERTY-RIGHT TO | court found the equitable issues in favor of POSSESSION. the defendant, and adjudged that the plaintiffs are not entitled to an injunction nor to damages. The parties went to trial upon the issue of the ownership and possession of a strip of land lying on the east side of the Wakefield Boulevard, and being about 600 feet in length by about 20 feet in width at the northerly end and 45 feet in width at the southerly end, upon a part of which strip the trespasses complained of were alleged to have been committed. The plaintiffs seek to recover damages for the trespasses, and for an injunction against their further continu

Acts of ownership by plaintiff and his predecessors are admissible to show adverse possession and the bounds of the land affected, and so plaintiff could show that he had permitted another to use a spring on the land and that his grantor had cut the grass and made a garden.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 501; Dec. Dig. § 85.*] 6. WITNESSES (§ 268*)-CROSS-EXAMINATION. ance. Where defendant asserted ownership of land adversely to plaintiff, it was permissible, on cross-examination of defendant, to inquire whether he asked his grantor whether such grantor was in possession of the property conveyed.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 931-948; Dec. Dig. § 268.*] 7. EVIDENCE (§ 230*)-HEARSAY.

Declaration of defendant's grantor that he owned the land in controversy is incompetent as hearsay.

[1] The plaintiffs' constitutional right to a jury trial depended upon whether it existed prior to the adoption of the Constitution. Article 1, § 21; La Croix v. Co. Com., 50 Conn. 321, 327, 47 Am. Rep. 648.

[2] General Statutes 1902, § 720, as amended Public Acts 1905, c. 56, § 1, providing that at the request of either party "civil actions involving such an issue of fact as, prior to January first, 1880, would not present a question properly cognizable in equity," shall be entered in the docket as jury cases, was not

[Ed. Note. For other cases. see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. § 230.*] 8. APPEAL AND ERROR (§ 1050*)-REVIEW-intended to and did not abridge this right. HARMLESS ERROR.

In an action involving the title of land, error in the admission of verbal declarations by defendant's grantor that he owned the land is prejudicial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160; Dec. Dig. § 1050.*]

Appeal from Court of Common Pleas, Litchfield County; Gideon H. Welch, Judge. Action by Jerry J. Roy and others against

Burton E. Moore. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Richard T. Higgins and Thomas J. Wall, for appellants. Warner & Landon and Samuel A. Herman, for appellee.

It was permissible for the plaintiffs to seek both remedies-trespass to secure damages, and injunction to restrain the trespasses— in a single action, and to cause the case to be entered on the jury docket within 30 days after the return day provided the action was a "civil action involving such an issue of fact as, prior to January first, 1880, would not present a question properly cognizable in equity." Nowsky v. Siedlecki, 83 Conn. 109,

112, 75 Atl. 135.

[3] "Properly cognizable in equity" means capable of being judicially heard and determined in equity. Under this statute when a single issue of fact is joined after said 30day period in a civil action which prior to January 1, 1880, would not present a question properly cognizable in equity, the case may, within 10 days thereafter, be entered as a jury case upon the request of either party to the clerk. Under section 722, as amended Public Acts 1905, c. 56, § 3, "If more than one issue of fact be joined in a cause upon the docket as a jury case either party may, and the party placing it upon the docket as a jury case shall, within three weeks after the issues are joined," file with the clerk a written notice of what issues he desires tried to the jury. Whether or not the plaintiffs were entitled to a jury trial on some or all of the issues of fact in the case depended upon whether these were properly triable to the jury under section 720, and whether they had seasonably brought themselves within the procedure of the statute.

WHEELER, J. One ground of error is alleged to be the refusal of the court to grant to the plaintiffs a jury trial of the questions of fact in issue. This case was duly placed on the jury docket by the plaintiffs, issues were joined, and the plaintiffs seasonably filed their notice requesting that all the issues of fact therein be tried to the jury. The case was regularly assigned for trial as a jury case, and the trial about to begin, when the defendant moved that the equitable issues be tried to the court before the trial to the jury of the other issues. The motion was granted and the case continued. Amendments to the pleadings were subsequently filed, and after issue was again joined the plaintiffs again duly gave notice that they desired all the issues of fact tried to the jury. Thereafter on motion the court order- The issues of fact upon which a jury trial ed: "Equitable issues to be tried to the court is claimed are those of title, possession, and and to be tried first." After trial had, the damages. The controversy is thus confined

injunction will be granted notwithstanding a dispute, or even pending litigation as to the title. (2) Where an action has been already commenced to try the title the injunction will be only temporary, to be dissolved or made perpetual according to the results of the action. (3) Where no action has been already begun, an injunction will be granted and continued to give the defendant an opportunity to bring an action which, being brought and successfully prosecuted to judgment against the complainant in possession, will entitle him to a dissolution of the injunction; but if the action at law has an opposite result the injunction will be perpetuated."

to a single inquiry, Were the plaintiffs prior | irreparable damage, or is in its character to January 1, 1880, entitled, as of right, to and tendency destructive to the inheritance, try the issues of title, possession and dam- or to that which gives it its chief value, an ages to the jury? The issue of damages is controlled by those of title and possession. Ordinarily equity will not try title. It extends its protection to undoubted rights, and leaves doubtful or contested rights to be first adjudicated at law, and, if the emergency warrants it, restrains the continuance of the trespasses pending the decision. Injunction is not a form of equitable relief designed to try title. It cannot be made the substitute for an action of trespass or ejectment. The adjudication upon the issue of the trespasses involves the issues of title and possession. When the trespasses complained of work irreparable injury injunction may lie. Lawton v. Herrick, 83 Conn. 417, 425, 76 Atl. 986; Gorham v. New Haven, 82 Conn. 156, 157, 72 Atl. 1012. And will lie provided the complainant's title is not in doubt or conflict and he has the actual possession. Under the modern doctrine of equitable interference to restrain continuing trespasses, equity will act only in a case where the complainant's title is either admitted or not denied, or is established at law, or has been long enjoyed and where the complainant is in actual possession, or perhaps in cases where irreparable injury will be likely to result from noninterference, which is not this case. When the title and possession are not in dispute, the court having jurisdiction may proceed to final judgment. When the title is in dispute, or doubtful, or has not been long enjoyed, or the possession is not in the complainant, equity will leave the parties to settle the title and possession at law, and pending such adjudication will issue a temporary injunction restraining the continuance of the trespasses. In the case at bar the complaint sets up that the trespasses complained of were committed under a claim of ownership, and the second defense specifically sets up the defendant's title. Further, the defendant claims to be in possession of the part of the premises where the trespasses are alleged to have been committed and upon a considera-equity to protect his alleged legal right by ble part of the premises no trespasses are alleged to have been committed. The plaintiffs' title and actual possession were both contested, hence the greatest exercise of equitable power by the court in view of the dispute as to title and possession and the motion of the plaintiffs for a jury trial of the issues of fact, duly made, would only | Erhardt v. Board, 113 U. S. 537–539, 5 Sup. permit the issuance and continuance of a temporary injunction preserving the status quo pending the adjudication at law of title and possession.

The authorities are numerous and generally support these conclusions. Spelling on Extraordinary Remedies, § 367, summarizes clearly and accurately the prevailing view and practice of the present day: "(1) Where the bill states facts which show that a threat

Our own court early announced its agreement with this doctrine. In Falls Village Water Power Co. v. Tibbetts, 31 Conn. 165, 168, in discussing a claim that the facts did not show such a title as would justify the interposition of the court by injunction, we said: "Unquestionably the interference of a court of equity by injunction, in a case of trespass to land, and when an action at law will lie, is of modern origin, and an exercise of power to be justified only in a case of great and irreparable injury. Doubtless, too, the petitioner who invokes it, in conformity with principle and precedent, should show at least a strong prima facie case of a right. In the earlier cases the title was not in dispute, and in the later ones, when it has been, and has been doubtful, the court have refused to interfere. In Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352, this court said that they would not interfere when the right was doubtful; and to that principle we adhere." We gave express sanction to this practice in Spencer v. N. Y. & N. E. R. Co., 62 Conn. 242, 243, 25 Atl. 350, 351-an action for obstructing a way with a prayer for an injunction pendente litewhen we said: "It is certainly competent for a party to invoke the aid of a court of

staying the hand of the opposite party from destroying it pending litigation; and it is equally his privilege to have the questions as to the existence of his legal right tried and determined by a jury." Washburn v. Miller, 117 Mass. 376, 377; Cummings et al. v. Barrett et al., 10 Cush. (Mass.) 186, 190;

Ct. 560, 28 L. Ed. 1113; Irwin v. Dixion, How. 6, 9, 10, 13 L. Ed. 25; Cosmos Co. v. Gray Eagle Co., 190 U. S. 301, 305, 23 Sup. Ct. 692, 47 L. Ed. 1064; N. J. R. R. v. Woodward, 61 N. J. Eq. 1, 2, 47 Atl. 273; Paterson v. East J. W. Co., 74 N. J. Eq. 49, 59, 70 Atl. 472; Imperial Realty Co. v. West Jersey & S. R. Co. (N. J. Ch.) 77 Atl. 1041; Cragg v. Levinson, 238 Ill. 69, 87 N. E. 121, 21 L. R. A. (N. S.) 417; Cemetery Ass'n v.

912; Clayton v. Shoemaker, 67 Md. 219, 9| pute concerning the title and the possession. Atl. 635; Bishop v. Baisley, 28 Or. 120, 142, The judgment upon the equitable issues up143, 146, 41 Pac. 936; Mendenhall v. School on its face did determine the issues of fact Dist. No. 83, 76 Kan. 173, 90 Pac. 773; Bod- upon which the damages for the trespasses well v. Crawford, 26 Kan. 292, 40 Am. Rep. rested, and if these issues had been properly 306; Doige v. Bruce, 141 Iowa, 210, 119 N. before the court for disposition, its concluW. 625, 626; Williams v. Riley, 79 Neb. 554, sion that a jury trial could not thereafter 113 N. W. 136, 137; Hall v. Henninger, 145 be had would logically follow from the Iowa, 230, 121 N. W. 6, 9, 10, 139 Am. St. terms of section 722. The right to a jury Rep. 412. trial of the issues of title and possession existed prior to the adoption of our Constitution, and hence exists now. La Croix v. Co. Com., 50 Conn. 321, 327, 47 Am. Rep. 648.

The complaint construed in the most favorable light in support of the plaintiffs' contention makes it apparent that the defendant has asserted ownership over a part of the premises in question, and threatens to continue such assertion, and has interfered with their possession, and threatens to continue such interference. In short, the defendant has either dispossessed the plaintiffs or put their possession in doubt. The record indicates that the defendant's purpose is not to injure the inheritance, but to assert his title and maintain his possession.

The court in Bishop v. Baisley, 28 Or. 139, 141, 41 Pac. 936, states succinctly the reason why a court of equity cannot determine disputes concerning a complainant's title or possession. "The underlying reason for remitting a suitor to a court of law is that the right of trial by jury may not be denied any person under the pretense of equitable cognizance."

The plaintiffs having complied with G. S. 720, 722, as amended P. A. 1905, c. 56, were entitled to a jury trial under section 722, since the issues of trespass and damage involving the disputed issues of title and possession were prior to January 1, 1880, cognizable in law and not in equity. Their motion for a jury trial as to the issues involv ing title, possession and damages should have been granted and the legal issues tried preceding the trial of the equitable issues.

[4] Injunctive relief cannot be used to take land from the possession of one and put it into that of another. The Supreme Court of the United States in Lacassagne v. Chapuis, 144 U. S. 119, 124, 12 Sup. Ct. 659, 661, 36 L. Ed. 368, thus states the doctrine of that court: "The plaintiff was out of possession when he instituted this suit; and by the prayer of this bill he attempts to regain possession by means of the injunction asked for. In other words, the effort is to restore the plaintiff, by injunction, to rights of which Our conclusion in no way conflicts with he had been deprived. The function of an the unquestioned rule that, while a court of injunction is to afford preventive relief, not equity may, in the exercise of its discretion, to redress alleged wrongs which have been permit a jury finding of equitable issues, committed already. An injunction will not this can never be obtained as of right. Savbe used to take property out of the posses-ings Bank v. McCormack, 79 Conn. 260, 262, sion of one party, and put it into that of an- 64 Atl. 338. Upon the trial to the jury all other." the issues-legal as well as equitable-may be disposed of, since the court may, as to the equitable issues, order appropriate issues made up and submit these to the jury, and upon their finding thereon grant appropriate relief.

"In order to justify the interference by the court," says Spelling on Extra. R. § 368, "the complainant must be in actual possession, or have established his right at law, or have brought an action to recover possession, or his exclusive right must be admitted by the defendant, and the court will act with great precaution. It will not take jurisdiction to try title, and ordinarily will not decree that the defendant surrender possession." Id.; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801; Bishop v. Baisley, 28 Or. 139, 141, 41 Pac. 936; Hume v. Burns, 50 Or. 124, 90 Pac. 1009, 1010; Bay Paint Mill Co. v. Saunders, 58 Fla. 390, 50 South. 984; Lehigh V. R. Co. v. N. Y. & N. J. W. Co., 76 N. J. Eq. 504, 74 Atl. 970, 972; High on Injunctions (2d Ed.) § 355. The great weight of authority and the better reason make the conclusion inevitable that prior to January 1, 1880, controverted issues of title and possession could not have been finally disposed of in a court of equity against the seasonable objection of either party. Necessarily the adjudication upon

We perhaps ought to notice before passing this subject the defendant's claim that our conclusion is not in harmony with Cox v. McClure, 73 Conn. 486, 47 Atl. 757. We perceive no antagonism between the two positions. In Cox v. McClure the court dealt with a case where the equitable issues had by order of the court, been disposed of first, and no objection taken to this course and no appeal taken, and the disposition of the equitable issues directly adjudicated the le gal issue, hence we held that the legal issue of damages, involving the same issues already disposed of, could not be again litigated in a jury trial.

Presumably Public Acts 1901, c. 101, attempted to change the rule laid down in Cox v. McClure, but in the Revised Statutes of 1902, § 722, the rule of Cox v. McClure was substantially re-enacted. Neither the