[3] The third reason of appeal is because the court charged the jury as follows: "If you find that the land of the plaintiff was at all times lower than that of the defendant, so that rainwater flowing upon the defendants' land would naturally flow down upon the plaintiff's land, and that the gutters, leaders, and the concrete walk in no way contributed to a change in the natural flow of the surface water, then the defendants would not be liable for any damage which might result from the natural accumulation and distribution of surface water, but if the gutter, leader, or cement walk contributed to the artificial collection and distribution of surface water which caused damage to the plaintiff, the defendant would be liable." This is, in substance, instructing the jury that if the defendant artificially collected and distributed rainwater by her gutters and leaders and cement walk, so that it caused substantial injury to the land of her neighbor in flowing upon it, she would be liable. The law as stated above supports this instruction. [4] The fourth reason of appeal is that the court erred in the following instruction: "In substance, gentlemen, the law seems to be that, when rainwater is artificially collected by any means, it must be reduced to its original volume upon the land of him who has so collected it, before he can escape liability for damage which it causes to others before it is so reduced." The purport of this instruction is that when a land owner artificially collects water upon his own land, in order to avoid li ability, he must cause it to be so diffused that it will pass from his land upon that of his neighbor, as it would originally have done if not so collected. This statement of law is not accurate in detail, because the diffusion required of artificially collected surface water need only be to such an extent as to prevent this water passing in an increased volume upon the neighbor's land to his substantial injury. [5] There could be no substantial claim in this case that the artificially collected rainwater had been so diffused as to relieve the defendant of liability. It was not controverted that the defendant had collected rainwater in gutters and leaders from the roof of her house, closely adjoining the premises of the plaintiff, and poured it out of the leaders upon a cement walk close to the plaintiff's land, which walk so pitched as to direct the water directly upon the plaintiff's land. The case therefore was not one of artificially collected surface water, later diffused before being allowed to flow upon the neighbor's land. 1. Easements 37 Whether claim of right 2. Easements 36(1)-Claim of right may The trial court may reasonably have inferred as a fact that the use of a passway, partly on plaintiff's land and partly on that of his neighbors, through gates maintained in the fences, which use had continued for more than 30 years, was under a claim of right. WHEELER, C. J. The plaintiffs and their predecessors in title had owned and been in possession of certain premises on the southerly side of Pratt place in Waterbury, from April 2, 1886, to the date of trial. The deed to Christian Porzenheim, one of plaintiffs' predecessors in title, also granted a right to pass and repass over a strip of land 10 feet wide on the easterly end of Margaret Moran's land which bounded Porzenheim on the west, but this passway has never been used by Porzenheim or his successors in title. Instead they have used a passway which starts from a gate on Pratt place which is the north boundary of plaintiffs' The court elsewhere correctly charged the premises, and is 7 feet wide, of which 4 feet jury as to the law relevant to the situation is located on the Porzenheim land and about presented by the evidence in the case. The 3 feet on the Moran and Mertz land, and (115 A.) this passway runs from this gate to a gate in the rear of the Mertz northerly boundary, and thence to a gate in the fence between the rear of the Mertz lot and the Porzenheim lot. The Moran lot bounded that part of the Porzenheim lot lying next to Pratt place on the west and adjoining the Moran lot on the south and west of the Porzenheim lot was the Mertz lot. This passway was not granted or reserved in any of the deeds forming part of the plaintiffs' chain of title. The plaintiffs' claim to the passway is based upon a title by prescription. The defendant's appeal is without merit unless his motion to correct the finding be granted in some material part. If the finding stand, the plaintiffs' title by prescription in this passway is established. We have examined and weighed the evidence, and do not find that it supports paragraphs 9 and 47 of the finding, but we do not consider their findings essential to the determination of the case. The rest of the motion except as to the finding that the use of this passway has been "as a right" is not sustained by the evidence. [1] The appeal of the defendant rests upon his claim that the court improperly found that the use of this passway was under a "claim of right." This use had been continuous and uninterrupted for over 30 years, and so open and visible as necessarily to have been known to defendant and his predecessors in title since April 2, 1886. Alling Realty Co. v. Olderman, 90 Conn. 241, 247, 96 Atl. 944. The remaining element in the proof of this title by prescription, viz. that such use was under a claim of right, is found by the trial court, and his finding must, under our law, stand as a finding of fact. "Whatever the rule may be in other jurisdictions, the probative effect of a long-continued, unexplained use which does not wholly exclude or dispossess the owner of the legal title is, in this state, a question of fact and not of law." Shea v. Gavitt, 89 Conn. 359, 363, 94 Atl. 360, 362 (L. R. A. 1916A, 689). [2] From the nature and continuance of the use the court might reasonably have inferred as a fact that such use was under a claim of right. "The party claiming title to an easement by user must of course satisfy the triers that the use was under claim of right and acquiesced in as such, and no doubt the fact of 15 years' open and continuous use is important evidence, and may in many cases, under the circumstances of the use, carry conviction to the mind of the trier that it was under claim of right; yet we think the force of the evidence is matter of fact, and that the law does not give to it any peculiar effect." Shea v. Gavitt, supra. 1. Master and servant 303-Incompetency of negligent automobile driver immaterial. In an action against a master for his servant's negligence in driving an automobile, it is not a material fact that the servant was incompetent and inexperienced. 2. Master and servant 303-Employment of Incompetent automobile driver not actionable negligence. In an action against a master for the negligence of his servant in driving an automobile, an allegation that the servant was incompetent and inexperienced, though accompanied by an allegation that defendant negligently provided an incompetent and inexperienced operator of the car, and thereby caused the injury, is not an allegation of actionable negligence. 3. Master and servant 330(2)—Evidence of servant's incompetency inadmissible to prove specific acts of negligence. In an action against a master for the negligence of his servant in driving an automobile, an allegation or claim of incompetence and inexperience on the part of the servant does not permit the introduction of evidence thereof as tending to prove the specific acts of negligence alleged; the connection being too remote. 4. Highways 183-Owner of car driven by unlicensed driver not liable irrespective of negligence or contributory negligence. An automobile operated on the highway by an unlicensed driver is not an outlaw and a nuisance, so as to render the owner liable for all injury caused thereby irrespective of negligence in its operation or of contributory negligence on the part of the injured party. 5. Master and servant 332(4)-Instructions erroneous as imposing burden of showing servant's incompetence. In an action against a master for the negligence of his servant in driving an automobile, instructions held erroneous as imposing on plaintiff the burden of proving, in addition to other material facts, that the driver of the car was so incompetent and inexperienced in driving a car that defendant was negligent in permitting him to do so. 6. Trial 296(7)—Instruction, imposing additional burden on plaintiff harmful, though law correctly stated elsewhere. In an action against a master for the negligence of his servant in driving an automobile, an instruction, imposing on plaintiff the burden of proving that the driver of the car was so incompetent and inexperienced that defendant was negligent in permitting him to drive, was necessarily harmful, though the law as to the master's liability for a servant's negligence was elsewhere correctly stated. 7. Master and servant 330 (2)—Evidence to refute servant's incompetency irrelevant. In an action against a master for the negligence of his servant in driving an automobile, where plaintiff claimed that the servant was incompetent and inexperienced, evidence tending to prove that he was competent and experienced should have been excluded; the allegations of incompetence and inexperience being irrele vant. Appeal from Superior Court, New London County; John W. Banks, Judge. Action by Henry H. Black, administrator, against Edwin S. Hunt, to recover damages for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. Case tried to a jury, and verdict and judgment for defendant, and plaintiff appeals. Error, and new trial ordered. Frank L. McGuire, of New London, for appellant. operator for his car, and thereby caused the injury, would not be an allegation of actionable negligence. Carlson v. Conn. Co., 94 Conn. 131, 108 Atl. 531, 8 A. L. R. 569. [3] Furthermore, an allegation or claim of incompetence and inexperience on the part does not permit the introduction of evidence of a servant, in an action of this character. of incompetence and inexperience as tending to prove the specific acts of negligence alleged. The connection is too remote. Carlson v. Conn. Co., 95 Conn. 731, 112 Atl. 646. The assignments of error 1 to 5, inclusive, are all based on the claimed legal proposition that the allegation of incompetence or inexperience of the driver was a material fact in the cause of action alleged. We have already shown that under our law there is no foundation for this legal proposition. These claims of error are not tenable. [4] The sixth, seventh, and eighth assignments of error are based on the following claimed legal propositions: (1) That an automobile operated on the highway by an unlicensed driver becomes an unlawful trespasser on the highway and a nuisance. (2) That the owner of such an automobile who permits it to be so operated is liable for all injury caused by such nuisance, irrespective of negligence in the operation or of contributory negligence on the part of the injured. These legal claims, the plaintiff urges, are supported by the law as laid down in Mas Prentice W. Chase, of New Haven, for ap-sachusetts in Koonovsky v. Quellette, 226 pellee. CURTIS, J. On February 3, 1919, the plaintiff's intestate, a boy about 10 years of age, came into collision with an automobile of the defendant on a state road in old Saybrook, and was killed. [1] The plaintiff alleged in the complaint that the defendant was riding. in his car when the collision occurred, and that the car was being driven by his servant, one Hall, a minor of 15 years of age or less, in pursuance of the defendant's business and under his direction and that Hall was an incompetent and inexperienced operator of a car, and caused the collision by his unlawful operation of the car and by his negligent driving of the car in the several ways set forth in the complaint. Under the complaint the case presented is one of negligence by a servant of the owner in relation to a stranger, and it is not a material fact in such an action that the servant is alleged to be incompetent and inexperienced. Mass. 474, 116 N. E. 243, Ann. Cas. 1918B, 1146, to the effect that the owner of a motor car operated on the highway without its being registered according to law is liable for injury caused by a collision with such a car without proof that the operator was negligent: his liability being that of a wrongdoer maintaining a nuisance on the highway. The Massachusetts courts have held, however, in Bourne v. Whitman, 209 Mass. 171, 95 N. E. 404, 35 L. R. A. (N. S.) 701, and other cases that: while it is a punishable act, does not render the "The operation of a car without a license, car and the operator a trespasser and outlaw on the highway, but that the illegal element in the act is only the failure to have a license while operating it, so that if the operation and movement of the car contributed to an accident with which the want of a license had no connection, except as a mere condition, they would not preclude the operator as a plaintiff from recovery" -and that such operation of a car by an [2] Such an allegation in this class of unlicensed driver would not make the car a cases, although accompanied by an allega- nuisance on the highway with the attendant tion that the defendant had negligently pro- legal consequences to persons or property vided an incompetent and inexperienced injured by it. The ruling in this latter case (115 A.) is in accord with the well-established law gent careful man under like circumstances of this state. Broschart v. Tuttle, 59 Conn. 1, 21 Atl. 925, 11 L. R. A. 33; Monroe v. Hartford R. R. Co., 76 Conn. 201, 56 Atl. 498. These cases hold that: would permit to operate his automobile, and that this negligence continued to be negligence, on the part of the defendant up to the moment of the accident, and was the proximate cause of the accident. In other words, the defendant's act in permitting the Hall boy to drive his automobile was the sole cause of the injury to the Way boy" "In doing an unlawful act a person does not necessarily put himself outside the protection of the law. He is not barred of redress for an injury suffered by himself nor liable for an injury suffered by another merely because he is a-and as follows: lawbreaker" 1 -but that in actions for negligence the fact that the plaintiff or defendant was a lawbreaker at the time of the injury is ordinarily immaterial, unless the act of violating the law is in itself a breach of duty to the party injured in respect to the injury suffered. "The defendant, Edwin S. Hunt, cannot be held liable for the death of the Way boy unless he can be charged with legal negligence in permitting the Hall boy to drive his car under the circumstances in this case, and that this negligent act on his part led directly up to and was a proximate cause of the accident." The charge in these particulars cannot be sustained. It is obvious that these instruc There is in this case no claim, and there could be no claim, that the failure of the driver to possess a license directly contrib-tions do not correctly state the law relating uted to cause the collision. It was merely a condition attending the collision, not a cause of it. This principle of law may, of course, be modified by statute law, as was done in section 44, chapter 233, of the Laws of 1919, which provides, among other provisions, that no recovery shall be had in our courts by the owner of a legally registered motor vehicle for injury to person or property if it was being operated by an unlicensed person at the time of the injury. The sixth, seventh, and eighth assignments of error are therefore not tenable. The assignments of error numbered 9, 10, 11, 12, 13, 14, 16, 18, 19, 20, 21, 22, 23, and 24 are all based upon the correctness in law of the foregoing legal propositions urged by the plaintiff relating to the allegations and claims of incompetence and inexperience on the part of the driver and upon the admitted fact that the driver of the defendant's car was unlicensed. We have already shown that the plaintiff's claims in these particulars were not correct in law; hence these assign ments of error are not tenable. [5] In the course of the trial the plaintiff had claimed that the admitted age of the defendant's driver, less than 16 years of age, tended to prove, and conclusively proved, that he was incompetent. The defendant thereupon introduced evidence, over the plaintiff's objection, tending to prove that the driver was competent and experienced. Under this situation the court upon the defendant's request charged the jury as follows: "That the driver of defendant's car was a minor and not a licensed operator is not enough to establish the defendant's negligence, but you must go further, and find that the driver of the defendant's car, Frederick E. Hall, was an incompetent and inexperienced driver, and was not a person of such experience in the opera to the liability of the master for negligence of the servant while acting in pursuance of the master's business. The court had already correctly instructed material elements of the cause of action althe jury to the effect that the essential and leged, which the plaintiff must prove, were as follows: "(1) That the plaintiff's intestate was killed by a collision with the car of the defendant upon the highway. "(2) That the car was then being driven by a servant of the defendant acting in pursuance of his employment. by the, negligent driving of the servant in one "(3) That the collision and death were caused or more of the ways alleged. "(4) That the plaintiff's intestate was free from any negligence on his part which contributed to cause his injuries." By the instructions now under consideration the court, in effect, informs the jury that there is a further essential fact which the plaintiff must prove in order to recover, namely: "(5) That the driver of the car was so incompetent and inexperienced in driving a car that the defendant was negligent in permitting him to drive his car." The effect of these instructions would be that, although the jury should find that the car was being driven by a servant of the de fendant in pursuance of his business, and that the servant in driving the car was negligent in some one or more of the ways specified in the complaint, and so caused the collision and death of the intestate, and that the plaintiff's intestate was free from contributory negligence, yet unless they found that the driver was so incompetent and in dence in the situation of the defendant would, stated in the cases of Carlson v. Conn. Co., not have permitted him to operate his car, the plaintiff could not recover. It requires no demonstration to show that the placing of the burden of establishing this additional essential fact upon the plaintiff in order to recover has no support in the law relating to the liability of a master for the negligent acts of his servant while acting in pursuance of his employment. [6] Although the law as to the master's liability for a servant's negligence is correctly stated elsewhere in the charge, these explicit directions could not have failed to be harmful to the plaintiff. These reasons of appeal are sustained. [7] The reasons of appeal numbered 25 to 33, inclusive, relate to exceptions to the admission of evidence offered by the defendant over the plaintiff's objection as tending to prove that the driver of the defendant's car was competent and experienced. We have shown above that under the law as the allegations in the complaint of the incompetence and inexperience of the driver of the car are not material allegations, and that evidence in support of or in refutation of such allegations is not relevant. This evidence therefore should have been excluded. One reason for its exclusion stated by the plaintiff, to wit, that the driver of the car because of his age, less than 16 years, was incompetent as a matter of law, and therefore that the car was an outlaw on the highway, could not be supported. This evidence was apparently offered by the defendant to lay the foundation for the defendant's requests to charge, discussed above; but, as the legal proposition underlying these requests is not tenable, the evidence should have been excluded. These reasons of appeal are sustained. There is error, and a new trial is ordered. |