former in bringing before the Supreme Court LOWANCE AND FILING OF BILL OF EXCEP- plaintiff that the negligence of the defendant | sense, and of a writ of error, but is unlike the in the care of the shade tree was the proximate cause of her injury, it is enough to say that there is no finding that the neglect to properly care for the shade tree was the proximate cause of the plaintiff's injury; but it is expressly found that the sidewalk at the time of the injury was not in a state of good and sufficient repair, and that the plaintiff's injury was caused by such want of repair, and no exception is taken by the plaintiff to the court's failure to find that the defendant was guilty of a shortage of duty in the care of the tree in question. When a bill of exceptions is allowed and filed, the judgment of the court is not vacated, but remains valid until reversed or annulled. 7. PUBLIC SERVICE COMMISSIONS Emm 32PLAINTIFF'S APPEAL AS BRINGING UP DEFENDANTS' ASSIGNMENTS OF ERROR. Appeals from the Public Service Commis There was no error in the judgment ren- sion have the same standing in the Supreme dered on the facts found. Judgment affirmed. (93 Vt. 537) ESSEX STORAGE ELECTRIC CO., Inc., v. (No. 165.) Court as cases brought there on exceptions, and plaintiff's appeal does not bring up defendants' assignments of error. 8. PUBLIC SERVICE COMMISSIONS *mm 32FAILURE TO BRIEF EXCEPTIONS AS WAIVER. Failure to brief exceptions on appeal from the Public Service Commission amounts to a waiver thereof. (Supreme Court of Vermont. Essex. Oct. 9, 9. APPEAL AND ERROR 249, 250-SAVING 1919.) 3. TIME 9(8) APPEAL FROM AWARD OF PUBLIC SERVICE COMMISSION. Where, in a proceeding to condemn land brought before the Public Service Commission, order was made and filed June 21st, plaintif filed its appeal with the clerk of the commission on July 11st, and defendant on that day filed an appeal with the county clerk, but on July 12th filed an appeal with the clerk of the commission, plaintiff's appeal was timely, but defendants' appeal was too late; July 11th being the last day for filing. EXCEPTIONS IN CHANCERY CASES. In chancery cases, if the case is tried before'a master, questions as to the exclusion of evidence are not available unless saved by the exceptions to the duly filed report, in view of G. L. 1520, and if tried by a chancellor such questions are available on appeal as in cases tried by the court under G. L. 1511 and 1609. 10. APPEAL AND ERROR 1078(1)-RECALL ING OF WAIVER OF EXCEPTIONS. A waiver of exceptions for failure to brief cannot be recalled without leave of the Supreme Court. 4. APPEAL AND ERROR 21, 22-JURISDIC- 13. EMINENT DOMAIN 262(4) POWER OF APPELLATE COURT TO EXAMINE TRANSCRIPTS TO SUPPLY OMISSIONS. mission in condemnation proceedings, the SuOn appeal from the Public Service Compreme Court cannot examine the transcript to supply the fact not appearing in the finding, that the landowner established the claim that separate parcels of real estate constituted one enterprise. (108 A.) 14. EVIDENCE 20(1)-JUDICIAL NOTICE OF [ requires a written motion filed with the clerk within 20 days from the date of the decree appealed from. G. L. 1561. When the appeal is from an order of the commission, the motion is to be filed with it or its clerk, and not with the clerk of the court. Hyde Park V. St. Johnsbury & L. C. R. Co., 83 Vt. 562, 77 Atl. 913. These provisions are statutory, and neither the commission (Hyde Park v. St. Johnsbury & L. C. R. Co., 84 Vt. 326, 79 Atl. 873) nor this court (Gove v. Gove's Adm'r., 87 Vt. 468, 89 Atl. 868) has any power to extend the time or modify the requirements. On appeal from the Public Service Commission in proceedings to condemn realty for a storage reservoir, where it was contended that the land had only a softwood mill in operation on the property to be condemned, and part of the timber was hardwood, a special finding as to whether the same machinery could be used for both kinds of wood held unnecessary to sustain award including allowance for the hard-tiff filed with the clerk of the commission wood. 16. EMINENT DOMAIN 136 [3] The record before us shows that the order of the commission was made and filed June 21, 1918. On July 11, 1918, the plain its appeal therefrom. On that day, the deDETERMINA- fendant filed with the clerk of Essex county an appeal from this order, and on the next day, July 12, 1918, it filed an appeal with the clerk of the commission. It thus appears that July 11th was the last day for filing an appeal, and the attempted appeal of July 12th In condemnation proceedings to take part of property, the market value in determining damages is the difference between the tract before the taking and its value thereafter. 17. EMINENT DOMAIN 136-METHOD OF ASSESSING VALUE IN CONDEMNATION PROCEED ING. In assessing damages in a condemnation proceeding, the commissioners may properly arrive at the difference between the value of the entire tract before taking and its value afterwards, by adding, to the value of the land taken, the injury to what remained. Appeal from Public Service Commission. Proceeding before the Public Service Commission by Essex Storage Electric Company, Incorporated, against the Victory Lumber Company and others, for the condemnation of land for a storage reservoir. From the decision of the Public Service Commission, both parties appeal. Order affirmed, and cause remanded. Argued before WATSON, C. J., HASELTON, POWERS, TAYLOR, MILES, JJ. and and was too late to be effective. It follows that the plaintiff's appeal is properly before us, but that the defendant's will have to be dismissed. [4] Nor is this result affected by the stipulation filed since the argument of the case, wherein it is agreed that all motions to dismiss the cause from this court are withdrawn and all grounds thereof waived. The well-established rule that jurisdiction cannot be conferred by waiver, consent, or agreement (State v. Hirsch, 91 Vt. 330, 100 Atl. Atl. 480) applies. For, the requirements of a 877; Miner's Ex'x v. Shanasy, 92 Vt. 111, 102 tion of this court depends upon a compliance valid appeal being statutory, the jurisdicment or waiver, express or implied. Wynn therewith, and cannot be conferred by agreev. Tallapoosa County Bank, 168 Ala. 469, 53 South. 228; McKenzie v. Jensen (Ala.) 75 South. 939; Bolton v. Cummings, 200 Mich. 234, 167 N. W. 19; Land v. Johnston, 156 Cal. 253, 104 Pac. 449; John v. Paullin, 24 Okl. Dunnett, Shields & Conant, of St. Johns- 642, 106 Pac. 838; National Union F. Ins. Co. bury, for petitioner. v. Martin (N. D.) 170 N. W. 880; Keyes v. Baskerville (S. D.) 170 N. W. 143; Atty. Gen. v. Barbour, 121 Mass. 568; King v. Penn, 43 Ohio St. 57, 1 N. E. 84; Perkins v. Perkins, 173 Mich. 690, 140 N. W. 161; Kenyon v. Probate Court, 17 R. I. 652, 24 Atl. 149; POWERS, J. This is a proceeding brought Humphrey v. Employer's Liability Assur. Corp., 226 Mass. 143, 115 N. E. 253. John G. Sargent, of Ludlow, Walter S. Fenton, of Rutland, J. Rolf Searles, of St. Johnsbury, and Alfred S. Hall, for petitionees. to the Public Service Commission pursuant to G. L. 4984, wherein the plaintiff seeks to condemn, for the creation of a storage reservoir, certain property of the defendant in the town of Victory. Both parties appealed (or attempted to appeal) to this court pursuant to G. L. 5038. [1, 2] An appeal from the final order of the Public Service Commission is to be taken and entered in this court in the same manner as a chancery appeal. G. L. 5038. The latter It does not of necessity follow, however, that, in the circumstances of this case, the defendant is seriously prejudiced by the failure of its appeal. The plaintiff also appealed. So it remains to consider what ef fect, if any, this fact has upon the defendant's situation. The determination of this question depends upon the character and effect of such appeals. [5] With us, an appeal in chancery par For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes takes of the nature both of an "appeal" in its full and civil law sense, and of a writ Yet it differs from each in essential particulars. It is unlike the former, in that it brings before this court for review questions of law, only; and it is unlike the latter, in that it brings before this court for review the whole case. In such appeals, we have nothing to do with the facts, but take them as found below (Middlebury Electric Co. v. Murkland, 89 Vt. 10, 93 Atl. 291) and sit in error, only. Stefanazzi v. Italian Mut. Benefit Society, 91 Vt. 538, 101 Atl. 1010, L. R. A. 1918B, 308. But the decree of the court of chancery is vacated by the appeal, and consequently the whole case is brought up by it; and all exceptions properly saved -those of the appellee as well as those of the appellant-are presented for consideration in this court. Cooley v. Hatch, 91 Vt. 128, 99 Atl. 784, and cases cited. [6] On the other hand, when a bill of exceptions is allowed and filed, the judgment of the court below is not vacated, but remains valid until reversed or annulled. Snow v. Carpenter, 54 Vt. 17. Therefore the whole case does not come here for review, and only so much of it stands for consideration in this court as is covered by the assignments of error of the excepting party. Stratton v. Holden & Martin, 91 Vt. 1, 99 Atl. 272. The effect upon the judgment below being the determinating factor, it is not difficult to say to which of these classes appeals from the Public Service Commission belong. For it is expressly provided by G. L. 5038, that the order of the commission shall not be vacated by the appeal. [7] It must be held, therefore, that, in the respect now under consideration, these aprespect now under consideration, these appeals stand in this court like cases here on exceptions, and that the plaintiff's appeal does not bring up the defendant's assign ments of error. [8] We are told that various exceptions were saved by the plaintiff to the admission and exclusion of evidence. These are not briefed, and the plaintiff says that it lost the benefit of them by lack of opportunity to file them with the commission. The failure to brief these exceptions amounts to a waivto brief these exceptions amounts to a waiver of them, and ordinarily we should say no more concerning them. But, lest others be misled, we consider it worth while to refer to the method by which such exceptions are to be saved and presented for consideration in this court. The statute requires the commission to state its rulings, when excepted to. G. L. 5036. The procedure whereby such exceptions are saved and brought to this court is, as we have seen, that of the court of chancery. Bacon v. Boston & Maine R. R., 83 Vt. 528, 77 Atl. 858. [9] There are now two ways of saving ex tried before a master, questions as to the admission or exclusion of evidence are not available in this court, unless saved by exceptions to the report duly filed in the court of chancery. G. L. 1520. If the case is tried before a chancellor, such questions are available on appeal as in cases at law tried by the court (G. L. 1511), and the excepting party has 30 days from the day on which the judgment order is filed in which to file his exceptions (G. L. 1609). Considering the fact that the commission hears the evidence and finds its own facts, therein sitting as a chancellor does in cases tried before him, both alike acting as a court, we think that it was the intention of the Legislature that exceptions in hearings before the commission should be saved in the manner provided by the statute for trials before a chancellor. These parties, then, had 30 days from June 21, 1918, in which to file their exceptions. This holding does not improve the defendant's situation, for exceptions are brought up to this court only by force of an appeal, and, when the defendant's appeal failed, its exceptions went with it. Nor does it improve the plaintiff's situation, unless waiver resulting from a failure to brief is neutralized by the stipulation herein before referred to, wherein it is agreed that the exceptions of both parties shall stand for consideration. the [10] Such a waiver cannot be recalled It is just as without leave of this court. effective as an express waiver, which is binding unless leave is granted to withdraw it. Fadden v. McKinney, 87 Vt. 316, 89 Atl. 351. It stands like a waiver of objection to evidence, which the court may hold a party to or allow to be withdrawn, in its discretion (In re Martin's Est., 92 Vt. 364, 104 Atl. 100); or a concession of counsel, which is binding until the court exercises its discretion and relieves the party from this effect. United States v. United States Fidelity & Guaranty Co., 83 Vt. 278, 75 Atl. 280. No application has been made to this court to recall the waiver referred to. But treating the filing of the stipulation as such an application, which is the most we can do, we think relief ought to be denied. For reasons already given, the defendant's exceptions cannot be saved to it; and it seems so unfair to give effect to an agreement that can only operate to the advantage of one party though intended to benefit both, that in the exercise of our discretion we disregard the stipulation and dispose of the case on the record before us. We have left, then, nothing for consideration but the plaintiff's objections to the assessment of damages. [11] The plaintiff insists that the item of $10,500 on account of increased cost of cutting and marketing the hardwood standing (108 A.) allowed. In discussing this claim, we will the question whether these lands were used assume that all of this hardwood was stand- as one project is one of fact, and that, being ing on land owned by the defendant but prima facie separate parcels, the burden lies wholly separated from the land sought to be on the defendant to establish its claim in taken by lands owned by others. The argu- this behalf. So, unless this fact appears, ment is that it is only contiguous lands that the award as made cannot stand. Nor can can be considered as one piece in the assess- we examine the transcript to supply the fact. ment of damages in condemnation cases, and, In re Bugbee's Will, 92 Vt. 176, 102 Atl. 484. inasmuch as the hardwood does not stand It must appear from the findings. That this on land contiguous to the land taken, nothing fact is not expressly found is apparent from can be allowed for its depreciation. While an inspection of the commissioner's report. there are cases apparently supporting this But when its findings are read in the light claim, and expressions are to be found in of the geography of that section and the our own cases consistent with it, contiguity well-known course of business usual in such is not always the controlling question. Gen-enterprises, of which we take judicial notice erally speaking, the rule contended for by (15 R. C. L. 1080, 1122), we think it appears the plaintiff affords a correct basis for the as an inference fairly to be drawn from assessment of damages, but it does not in what is shown, and necessary to support all cases. Where two or more pieces of real the decision below. The defendant's projestate, though separated even by an interven- ect was on a large scale. It consisted of ing fee, are used as one enterprise, and con- a large lumber manufacturing plant with stitute fairly necessary and mutually de- machinery and equipment. It was located in pendent elements thereof, they are in the eye the midst of a vast natural basin. Nearly of the law a single parcel, and the taking of 40,000,000 feet of hard and soft timber beone necessitates payment for the injury to longing to the defendant stands on the slopes the others. To state the proposition in its of this basin, not counting that on the land usual form, the damages in such cases are to be submerged. It is found that so much to be assessed by comparing the value of the of this as stands on the west side can be whole enterprise before the taking with the manufactured without additional expense by value of what remains of it after the tak- the location of a mill on the so-called "Bog ing. This rule is recognized in the follow- Mill site"; that the softwood on the east ing cases, some of which are cited by the side can be marketed without extra expense plaintiff: Potts v. Penn., etc., R. Co., 119 Pa. by floating it across the proposed lake; but 278, 13 Atl. 291, 4 Am. St. Rep. 646; Kenne- that it will cost more to market the hardbec Water Dist. v. Waterville, 97 Me. 185, 54 wood on the east side on account of floodAtl. 6, 60 L. R. A. 856; Monongahela Nav. ing the land. The unmistakable inference Co. v. United States, 148 U. S. 312, 13 Sup. from these findings is that a new central Ct. 622, 37 L. Ed. 463; White v. Metropol- plant was contemplated by the commission itan, etc., R. Co., 154 Ill. 620, 39 N. E. 270; at which this lumber was to be manufacturChapman v. Oshkosh & Miss. R. R. Co., 33 ed, which plant was to take the place of the Wis. 629; Charleston & S. S. Bridge Co. v. one heretofore used. From all this it would Comstock, 36 W. Va. 263, 15 S. E. 69; West- be quite reasonable to infer that all these brook v. Muscatine, etc., R. Co., 115 Iowa, lands were used in connection with the mill 106, 88 N. W. 202. as a part of one industry. Indeed, it would be unreasonable to regard the defendant's property as two separate and district enterprises-one a logging enterprise, and the other a manufacturing enterprise. It sufficiently appears that it was a single undertaking consisting of a mill depending on the timberland for its stock, and a tract of timber depending on the mill for its profitable manufacture. Such parcels can be considered as one only when they are so inseparably connected in the use to which they are devoted that the taking of one necessarily and permanently injures the other. 2 Nichols, Em. Dom. § 241. See, also, Lewis Em. Dom. § 698 et seq. The subject is well covered by a note to Sharpe v. United States, 57 L. R. A. 932, where the cases are reviewed and the hold. ings summarized to this effect: Where property is so situated that it is used as a unit, and each part is dependent upon the other, damages for the taking of a particular piece will not be limited to the value of that piece, but will be extended to the whole. [15] But it is argued that the findings do not show that this mill was equipped with hardwood machinery so as to make it available for the manufacture of the hardwood in question. A sufficient answer to this is that it does not appear that special machinAnd this is the logic and the justice of it. ery is required for the manufacture of hardIn no other way can the damages awarded wood. And if appeal is made to our generbe an "equivalent in money," for in no other al information on such subjects, we should way can the owner be made whole for the reply that the same saw and the same edger taking. are used in the manufacture of hard and [12-14] We agree with the contention that soft wood, and this is as far as the manu facture of hardwood usually goes at moun- | formed to accord with the contract that was in tain mills. A specific finding on this point was unnecessary. It is further argued that it is not found and did not appear that the defendant is now cutting any of the hardwood on the east side. But this fact, if it be such, would not of itself prevent the lands being considered a single parcel for the assessment. Operations on the hardwood on the east side generally may have been interrupted or postponed for one reason or another without affecting the defendant's right to damages, or prevent the east side from being a necessary part of the common enterprise. [16, 17] Nor was the award rendered illegal by the method by which it was arrived at. The law measures the damages by the market value rule. This value is, as claimed, the difference between the value of the entire tract before the taking and its value thereafter. But the commissioners could properly arrive at this result by adding to the value of the land taken the injury to what remained. Board of Education v. Corn fact made. 441(2)-EVIDENCE SUFFICIENT TO SHOW INTENT TO WARRANT TITLE. Evidence regarding the amount of the purchase price, the delivery of possession, the form of the conveyance, together with the vendor's testimony that absolute title was to be given, held to establish that it was intended that such was the real contract, although the conveyance warranted only the vendor's right, title, and interest; so that the intention not to warrant title was not proved. Minturn, J., dissenting. Appeal from Court of Chancery. Bill by Richard J. Motley against Henry I. Darling. From a decree requiring complainant to give a credit on the amount due, complainant appeals. Affirmed. See, also, 86 N. J. Eq. 185, 98 Atl. 384; 88 N. J. Eq. 487, 102 Atl. 853; 106 Atl. 892. Joseph Anderson, Sr., of Jersey City, for appellant. Charles E. S. Simpson, of Jersey City, and George J. McEwan, of West Hoboken, for respondent. ing (Sup.) 175 N. Y. Supp. 278. To itemize the damages as the commission has is but another way of stating the difference in the SWAYZE, J. [1-3] The complainant filed market value before and after the taking. his bill to establish Darling's liability on two It is evident that this is what the commis-promissory notes which plaintiff claimed had sion intended the result to be. Order affirmed, and cause remanded that a new time of payment be fixed and such further proceedings had as may be required not inconsistent with the views herein ex pressed. (91 N. J. Eq. 76) MOTLEY v. DARLING. (No. 88.) (Court of Errors and Appeals of New Jersey. Nov. 17, 1919.) 1. SALES 267-IMPLIED WARRANTIES EXCLUDED BY CONTRACT INDICATING CONTRARY INTENTION. There being in a sale contract under Sale of Goods Act, § 13, an implied warranty of right to sell, of quiet possession, and against incumbrances, unless a contrary intention appears, a bill of sale conveying only seller's "right, title, and interest" would ordinarily be cogent, and even, in a proper case, conclusive, evidence of such contrary intention, since ordinarily it would not be open to the buyer to contradict the been fraudulently destroyed; notes being substituted with the defendant's name indorsed, but not by him or his authority. Motley v. Darling, 86 N. J. Eq. 185, 98 Atl. 384. The complainant succeeded in establishing the defendant's liability, but was required by the Vice Chancellor to give a credit on the amount due. This credit the complainant disputes, and we are to decide whether it was equitable. Divested of some of the circumstances unnecessary for the decision of this question, the facts are as follows: Motley held a bill of sale of certain automobiles and an assignment of the lease of a garage. Both were absolute in form. were absolute in form. They were in fact held by Motley as security for a debt of $900. By an arrangement in which Darling participated the chattels were conveyed by Motley to Flynn by bill of sale, and the lease assigned, for a consideration of some $1,479, of which some $279 was paid in cash, and $1,200 secured by the notes indorsed by Darling. Darling was secured by a chattel mortgage from Flynn conveying the same chattels conveyed by Motley's bill of sale. Darling seems to have relied and might properly rely, under the circumstances of the case, upon the validity of the title conveyed by Motley to Flynn. In fact, there were prior liens which it was necessary to discharge, and it is the cost of discharging them which the Vice Chancellor required Motley to credit on Darling's liability. Motley says that he was not liable for the goodness of the title conveyed by him to Flynn, because he only assumed to convey |