no legally sufficient evidence to show that the property would be benefited. It results from what we have heretofore said that the exceptions should have been sustained and the prayer refused. We find no error in grant

pellee.

[7] Under the power contained in section 179 of the Acts of 1912, c. 32, the court sent the jury of inquest to view the land condemned. There is a broad distinction between the nature and effect of a view of the premises by a jury in a condemnation case and that of an ordinary action at law. In the first class of cases the jury is not confined to the duties and limitations which the principles of the common law impose upon a common-law jury. This subject has been fully treated in Tidewater Canal Co. v. Archer, supra. While we are not to be understood as holding that all the principles announced in that case upon the subject we are now considering are applicable to this case, we do hold that the jury may be very properly influenced as to the value of the property and the damage that would be done by the opening of the proposed street by their view of the property.

In Kurrle v. Baltimore City, 113 Md. 63, 77 Atl. 373, the court said:

"In eminent domain proceedings, the jury goes upon the land for the purpose of ascertaining its value, and their view should have more effect than in ordinary cases where they are generally and primarily permitted to go to the locus in quo so as to better understand and apply the evidence."

The effect of the modifications made by the court to the appellants' third and twelfth prayers was to confine the jury to the evidence produced at the trial, and to shut out from their consideration the effect which the view of the property may have had upon their minds. In this the court fell into an error. The appellants have abandoned their exception to the refusal of their fourteenth prayer and to the modification thereto made by the court, and they do not insist upon their fifteenth prayer..

Their fourth, fifth, and thirteenth prayers relate to "benefits." As the question of benefits could not be determined under the circumstances of this case, there was no error in refusing these prayers, and they should not have been granted as modified. tenth and eleventh prayers have reference to the opening of Twenty-Fifth street, and, for the reasons already stated, were properly rejected.

The

What we have said disposes of all the questions presented, and for the errors pointed out in the rulings of the lower court, the

case must be remanded for a new trial. Rulings reversed, and new trial awarded; the appellee to pay the costs.

(88 Conn. 528)

WALSH v. CITY OF BRIDGEPORT. (Supreme Court of Errors of Connecticut. Oct. 8, 1914.)

1. APPEAL AND ERROR (§ 724*)—ASSIGNMENTS OF ERROR-FINDINGS.

Where the allegations of a complaint and in several particulars, assignments of error the findings of fact were materially different assuming that the record showed that the allegations of the complaint had been found proven were improper.

Error, Cent. Dig. §§ 2997-3001, 3022; Dec. [Ed. Note.-For other cases, see Appeal and Dig. § 724.*]

2. MUNICIPAL CORPORATIONS (8 199*) -FIREMEN-SALARY-DEDUCTION FOR SICKNESS

ORDINANCES.

§ 134, provides that the board of fire commisBridgeport City Ordinance March 15, 1909, sioners may continue, in their discretion, the salary of any officer or member of the fire department who shall have received any injury while in the performance of his duty, incapacitating him from performing his usual duties in the department. Held, that such provision gives rise to a conclusive inference that firemen will not be entitled to salary during absence because of incapacity to perform their duties not received while in the performance of duty.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 546; Dec. Dig. § 199.*]

3. MUNICIPAL CORPORATIONS (§ 199*)—FIREMEN-ORDINANCES-REPEAL-SALARY.

Bridgeport City Ordinance March 15, 1909, § 134, provides for the regulation of the fire department of the city by a board of fire comtheir salaries, and declares that the board may missioners, prescribes the manner of paying continue the salary of a member of the department unable to perform his duties by reason usual duties of the department. In April, 1910, of incapacity received while performing the the city adopted an ordinance by which members of the fire department were divided into three classes, section 2 of which provided the yearly salaries of each grade, but made no reference to the method of compensation, the time when it was to be paid, or the power of the commissioners to continue the salary of a member when incapacitated from service. Held, that such later ordinance did not operate as an implied repeal of the former, so as to warrant payment of salary to a fireman while absent from duty because of illness not contracted in the service of the department.

[Ed. Note. For other cases, see Municipal

4. MUNICIPAL CORPORATIONS (§ 116*)-ORDINANCE-IMPLIED REPEAL.

Where a later ordinance contains no repealing clause, it will not repeal a former ordinance unless the later one is clearly intended as a substitute for the earlier, or there is an irreconcilable conflict between them, and then only so far as the inconsistency extends.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 268-271; Dec. Dig. § 116.*]

5. MUNICIPAL CORPORATIONS (§ 199*)-FIRE DEPARTMENT-ORDINANCES-COMPENSATION OF FIREMEN "SALARY"-"WAGES."

The word "salary," as used in a city ordinance providing for the compensation of firemen, is synonymous with "wages," though the word "salary" is sometimes understood to relate to compensation for official or other services, as distinguished from "wages," which is the compensation for labor.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 546; Dec. Dig. § 199.*

For other definitions, see Words and Phrases, First and Second Series, Salary, Wages.]

Appeal from City Court of Bridgeport; Thomas C. Coughlin, Judge.

Action by Thomas Walsh against the City of Bridgeport, to recover money alleged to have been withheld from plaintiff's salary as a fireman. Judgment for defendant, and plaintiff appeals. Affirmed.

Hugh J. Lavery and Lawrence S. Finkelstone, both of Bridgeport, for appellant. John S. Pullman, of Bridgeport, for appellee.

RORABACK, J. This is an action brought by Thomas Walsh, a fireman of the city of Bridgeport. The plaintiff alleges in his complaint that there is a certain sum of money due him as a portion of his salary as a fireman of the defendant city, which it, through its board of fire commissioners, refused to pay. The record shows that this case was tried in the city court of Bridgeport at its March term, 1914; that the court, having heard the parties, found the issues for the defendant, and it was adjudged that the defendant recover of the plaintiff its costs. The plaintiff appealed, and the parties agreed to a finding of facts in the case, which the trial court adopted.

Upon appeal to this court the only errors assigned are:

(1) "That the court erred and mistook the law in ruling that, upon the allegations of the complaint alleged and proved, said Thomas Walsh was not a salaried public officer of the city of Bridgeport."

(2) "That the court erred and mistook the law in ruling that, upon the allegations of the complaint alleged and proved, the said Thomas Walsh was not entitled to his salary during the time he was absent from duty by reason of ill

ed on March 15, 1909, as gives the fire commissioners the power to deduct pay from the salary of the said Thomas Walsh, while the said Thomas Walsh was absent from duty by reason of illness."

The plaintiff, in his assignment of errors, assumes that the record showed that the allegations of the complaint have been found to be proven. This assumption is not true. The record discloses no foundation for any such claim.

[1] The allegations of the complaint and the finding of facts in several particulars are materially different. Assignments of

error should be supported by the record. Palmer v. Hartford Dredging Co., 73 Conn. 182, 190, 47 Atl. 125.

The third reason of appeal, although improperly framed, we shall treat, as both parties have treated it, as if properly made for the purpose of considering the action of the trial court in holding that the ordinance which took effect in April, 1910, raising the firemen's pay, did not repeal section 134 of the ordinance of 1909, which requires "an accurate semimonthly pay roll of the officers and members of the fire department, in which shall be designated the date and period of service of each officer and member and the

amount due each of them to the 1st and 16th days of each month, respectively."

thorizes the common council to make, alter, and repeal orders and ordinances regulating the fire department and fixing the salaries of its members. Pursuant to this power the common council has from time to time passed ordinances changing the pay of the city firemen and regulating the manner in which the pay rolls of the fire department should be made up.

The charter of the city of Bridgeport au

In May, 1907, the plaintiff was duly appointed a fireman of the city of Bridgeport, and is still a member of that department.

[2] On March 15, 1909, the ordinance upon this subject was amended to read in part as

follows:

"Sec. 134. The board of fire commissioners shall keep a record of the officers and members of the department and of each separate company thereof. They shall also keep an accurate semimonthly pay roll of the officers and members of the fire department, in which shall be designated the date and period of service of each officer and member and the amount due each of them up to the 1st and 16th days of each month, respectively, and said pay roll Ishall be delivered to the city auditor on or be fore the 1st and 16th days of each month to be kept on file. The city clerk is hereby authorized and empowered to draw his order on the city treasurer on the 1st and 16th days of each month, respectively, for the amount of such pay rolls in favor of the clerk of the board of fire commissioners or of the president of the board of commissioners, and the amount so received by said clerk of the board of fire commissioners shall be disbursed by him to the officers and members of the fire department in the manner herein provided, but, in the absence or disability of said clerk, by the president of the board of fire commissioners or such person as

presumed where the old and new may stand together." Windham County Savings Bank v. Himes, 55 Conn. 433, 12 Atl. 517; Bissell v. Dickerson, 64 Conn. 61, 29 Atl. 226; Kallahan v. Osborne, 37 Conn. 488; Central Ry. & E. Co.'s Appeal, 67 Conn. 197, 35 Atl. 32.

"If both the earlier and the later statute can be reconciled, they must stand and have concurrent operation." Goodman v. Jewett, 24 Conn. 588; Kallahan v. Osborne, 37 Conn. 488; Tallcott v. Glastonbury, 64 Conn. 575, 30 Atl. 764.

"The repugnancy between the two statutes must be clear and manifest, to warrant a court in holding that the later repeals the former." Hartford Bridge Co. v. East Hartford, 16 Conn. 149; Middletown v. New York, N. H. & H. R. R. Co., 62 Conn. 492, 27 Atl. 119. "A statute is not repealed by a later affirmative one containing no repealing clause, unless there is irreconcilable conflict, or the later statute is clearly intended as a substitute for the earlier." Red Rock v. Henry, 106 U. S. 596, 1 Sup. Ct. 434, 27 L. Ed. 251; Henderson's Tobacco, 11 Wall. 652, 20 L. Ed. 235.

"Repeals by implication extend to only so much of the prior statute as is within the reason of repeal. They are never extended further than the inconsistency compels." New Haven and Fairfield Counties v. Milford, 64 Conn. 568, 30 Atl. 768.

It is impossible to read the two ordinances together, and come to the conclusion that there was any intention, either express or implied, by the act of 1910 to change the method of regulating the compensation of the members of the fire department, or to deprive the board of fire commissioners of the discretionary power vested in them to disallow a claim for services which have never been rendered. The act of 1910 deals with no such subjects directly or indirectly.

[5] The word "salary" has not that inflexibility which the plaintiff claims for it. According to some lexicographers, the words "wages" and "salary" are synonymous. The words seem to be synonymous, convertible terms, though use and acceptation, under certain circumstances, may have given the word "salary" a significance somewhat different from the word "wages" in this: That the former is understood to relate to compensation given for official or other services, as distinguishable from "wages," the compensation for labor. In the present case it makes but little difference whether the distinction here suggested be recognized or not. We are dealing with a case where the board of fire commissioners of Bridgeport, in their discretion, had the right to continue the salary of a member of the fire department when it should appear that he was injured while in the performance of his duty.

The finding shows that Walsh became ill from eczema which did not arise out of his employment, and that, by reason of such illness, he did not report for duty or render any services during the time for which he now claims to recover for services. The omission of the city of Bridgeport to pay was on this account.

There is no error. The other Judges con

cur.

(88 Conn. 515)

NEW YORK, N. H. & H. R. CO. v. CELLA. (Supreme Court of Errors of Connecticut. Oct. 8, 1914.)

1. EVIDENCE (§ 372*)-ADMISSIBILITY—ANCIENT DOCUMENTS.

In an action by a railroad company to recover possession of land condemned by it in 1833, in which defendant claimed that the company had abandoned its easement therein, conveyances of the land and distributions of it as a part of the estates of deceased owners, most of which were made more than 30 years prior to the trial, and none of which recognized any title in the railroad company, were admissible to prove possession by those claiming under the former owner, since a party will be required, and within the limits of sound reasoning permitted, to present the best and fullest case within his power to offer, and where the fact in question comes from a time beyond living memory placed at 30 years, there is an exception to the rule rejecting hearsay evidence allowed in cases of ancient possession and in favor of the admission of ancient documents in support thereof.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. § 372.*1 2. EASEMENTS (§ 36*)-ABANDONMENT-EVI

DENCE.

constitute abandonment of an easement, but Mere nonuser and lapse of time does not abandonment may be inferred from circumstances or presumed from long-continued neglect, and lapse of time and nonuser are competent evidence of an intent to abandon, and entitled to great weight when considered with other circumstances.

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 77, 78, 88-93; Dec. Dig. § 36.*] 3. RAILROADS (§ 82*)-RIGHT OF WAY—ABANDONMENT-SUFFICIENCY OF EVIDENCE.

cover possession of land condemned in 1833, eviIn an action by a railroad company to redence held sufficient, in connection with the company's long-continued neglect, to assert any claim to the party to support a finding that it had abandoned its rights.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 213-219; Dec. Dig. § 82.*] 4. RAILROADS (§ 82*)—OwNERSHIP OF LAND

EVIDENCE-ADMISSIBILITY-LETTERS AS No

TICE.

In an action by a railroad company to recover possession of land condemned by it in which defendant claimed that the company had abandoned its easement, a letter written by the company by a person acting for the then owner of the property offering it for sale to the company was admissible in connection with the company's reply asking for a sketch of the prop erty to show notice to the company that a third party was then claiming the property. Cent. Dig. §§ 213-219; Dec. Dig. § 82.*] [Ed. Note. For other cases, see Railroads,

5.

RAILROADS (§ 17*)-AGENTS—AUTHORITY— EVIDENCE-PRESUMPTIONS.

Where a letter was addressed to the land agent of a railroad company and was answered the following day by a person assuming to act for the company, it should be presumed that the answer was made by one whose duty it was to act in the matter until the contrary appeared. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 36-38; Dec. Dig. § 17.*]

6. APPEAL AND ERROR (§ 499*)-RESERVATION OF GROUNDS OF REVIEW-QUESTIONS NOT RAISED BELOW.

An alleged error in admitting in evidence the contents of a letter, the loss of which it