climbing trees in public streets came in contact with improperly insulated wires strung through the branches. In Simonton v. Light & Power Co., 28 Tex. [924, the defendant companies were held liaCiv. App. 374, 67 S. W. 530, a child seven ble for injuries sustained by boys who in years of age was injured by falling from the defendant's pole which it was climbing by means of spikes arranged like those in the present case. It was contended that the provision thus made for ascending the pole constituted an attraction to children, but the court rejected this theory and sustained a demurrer to the declaration. conditions which prove to be injurious. The averments of the declaration do not, in our opinion, present a state of facts which, upon any just theory, can be held to impose liability upon the defendants, and we concur in the action of the trial court in sustaining the demurrer. Judgment affirmed, with costs. (123 Md. 6) In all of the cases we have examined on this subject in which the asserted liability was enforced the persons involved in the accidents were not trespassers or mere licensees on the defendant's property, but were in There is a very broad difference between adjacent positions where they could rightthe case now under consideration, where the fully be, and where they might be reasonably injury occurred at a place intended for ex- expected to come in close proximity to the clusive possession by those maintaining the source of danger. Where, however, as in the fixtures alleged to be unsafe, and the class present case, those engaged in the distribuof cases in which the appliances causing the tion of electric current have placed their injury were so placed as to be dangerous to wires above and beyond the sphere of peril persons who might be reasonably expected to to the public and to the occupants of neighcome in close proximity to them while occu- boring premises, it would be subjecting pying adjacent premises or positions. The them to an unduly strict responsibility to case of Ziehm v. United Electric L. & P. Co., require them to provide against the possibili104 Md. 48, 64 Atl. 61, illustrates this distinc-ity that their own appliances might be utiliztion. In that case several wires of the lighted by strangers as a means of access to the and power company were strung quite near a telephone pole, and while a lineman of the telephone company was descending the pole his hand struck against one of the former company's wires, which was defectively insulated at that point, and he was injured by the current. In his suit against the light and power company it was held that the plaintiff was in the exercise of a duty that required him to go upon the pole, and that it was incumbent upon the defendants to have its lines so placed and insulated as to enable him to perform his work in safety. The same rule was applied to analogous facts in Hipple v. Edison Electric Illuminating Co., 240 Pa. 91, 87 Atl. 297. In Brown v. Edison Electric Co., 90 Md. 400, 45 Atl. 182, 46 L. R. A. 745, 78 Am. St. Rep. 442, a boy who was engagNonuser of an easement for more than 20 ed in cleaning a rain spout at the edge of a years does not afford conclusive evidence of narrow roof over the front window of a abandonment, but nonuser for the prescriptive store was injured as the result of accidental-period with an adverse use of the servient esly touching with his head an uninsulated tate inconsistent with the easement extinguishpart of an electric light wire suspended about [Ed. Note.-For other cases, see Easements, seven inches from the roof. The company Cent. Dig. 88 77-79; Dec. Dig. § 30.*) owning the wire was sued on account of the 2. EASEMENTS (§ 24*)-CREATION, EXISTENCE, accident, and the court said that the nature of the business conducted by the defendant "imposed upon it a legal duty toward every person who, in the exercise of a lawful occupation in a place where he had a legal right to be, was liable to come in contact with the wires charged with this invisible but deadly power." It was held that, as the boy was engaged in a service which he had a right to perform, at a place where he was entitled to be when he was injured, and the evidence did not prove contributory negligence on his part, the case was a proper one for submission to the jury. In Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54, 77 Atl. 1108, and Temple v. McComb City Elec. L. & P. Co., 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. BAUGH v. ARNOLD. (No. 3.) (Court of Appeals of Maryland. March 18, 1914. On Motion for Reargument, May 14, 1914.) 1. EASEMENTS (§ 30*)-CREATION, EXISTENCE, AND TERMINATION-ABANDONMENT OR NONUSER. es it. AND TERMINATION-TRANSFER OF RIGHT. No special reference in a deed to an easein order to convey such easement. ment appurtenant to the land was necessary [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 64-69; Dec. Dig. § 24.*] 3. EASEMENTS (§ 32*)-CREATION, EXISTENCE, AND TERMINATION-ADVERSE POSSESSION. The plowing up of a right of way and the sowing and cultivation of crops thereon year the owner of such easement, and such obstrucafter year was inconsistent with the rights of tion, continuing for 35 years, extinguished the right of way. [Ed. Note. For other cases, see Easements, Cent. Dig. § 84; Dec. Dig. § 32.*] Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr., and Jas. R. Brashears, Judges. "To be officially reported." For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes in the circuit court for that county, attested by the oath of three of the petitioners, alleging, in substance, that the board of shell fish commissioners had, on the 1st day of July, 1908, filed in the office of the clerk of the circuit court of Somerset county the charts of the natural oyster beds in that county and the adjacent waters, and a written report of the survey made by it of the natural beds, bars, and rocks, describing the same by courses and distances; that on one of the charts a large body of barren bottom, containing more than five acres of adjacent lands covered by water, had been included as a part of a natural bar, and describing said alleged barren bottom as: "All that section of Carmol Bar as laid down on said chart No. 7 and described in said report of survey which lies southeasterly of a straight line connecting a position six hundred yards northwest by west of Carmol Point and a position five hundred yards west northwest of a point known to these petitioners and the general public as well as to the said board of shell fish commissioners as St. Pierre Point." petition was filed without the knowledge or consent of at least 14 of the petitioners, none of whom signed the petition. The prayers were that the order of 1908 be vacated, that the leases to the appellants be vacated and annulled, and that the appellants be enjoined from obstructing the appellees and all residents of the county in the exercise of the privilege of catching oysters on said bars. The board of shell fish commissioners answered, setting up the proceedings under the petition and the leases made in pursuance thereof. The appellants filed a plea of res adjudicata to so much of the bill as alleged that the lots of ground covered by the leases were natural bars, and an answer, under oath, supporting the plea and especially denying the fraud. Answers were filed by 12 of the original petitioners, admitting that the bottoms, declared to be barren by the 1908 proceedings were natural bars, and denying that they ever admitted, or intended to admit, that all of said bottoms were barren. Answers were filed by 22 of the original petitioners, denying that the petition was filed without their knowledge and consent. It appears that in several instances the same defendant signed both classes of answers. The appellees had the plea of the appellants set down for argument, and the court overruled the plea, with leave to file an amended answer. [1] We have no doubt but that this was a proper ruling. It will be noticed that the relief prayed in the bill did not embrace any prayer that the bars, declared in the proceedings of 1908 to be barren, should be determined to be natural bars, but that the order declaring them to be barren should be vacated, because procured through fraud. The effect, upon such relief being granted, would have been merely to set aside the original order and the leases made in pursuance thereof. It was not proper, therefore, to raise any defense they might have had under the proceedings of 1908 by a plea thus presenting a question of law, but to have availed themselves of this defense by way of an answer. See Mill And further alleged that no part of the section of Carmol Bar southeasterly of said straight line was a natural bed, bar, or rock, but that that section was composed entirely of barren bottom. The prayer of the petition was that that section of Carmol Bar might be declared to be barren bottom, and be excluded from the said survey of natural bars. The board of shell fish commissioners appeared, through its attorney, and filed an answer, admitting all of the allegations, and admitting specifically that the section of Carmol Bar alleged to be barren bottom was in fact barren bottom, and consenting that an order be passed as prayed in the petition. On the 5th day of August, 1908, the circuit court for Somerset county, "after hearing testimony," passed an order declaring that section of Carmol Bar, as described in the petition, to be barren bottom, and excluding it from the survey of natural oyster bars, beds, and rocks. In April, 1912, the appellants herein made application to the board of shell fish commissioners for leases to each of 30 acres of the land declared in the proceedings of 1908 to be barren bottom, for the purpose of culti-er's Equity, § 147. vating oysters. In May, 1912, leases were reg- In our opinion the only question presented ularly granted to them each for a tract of 30 acres and for a period of 20 years. On the 22d day of November, 1912, the appellees filed a bill against the original petitioners and the board of shell fish commissioners, alleging, in substance, that they were residents of Somerset county and directly and indirectly interested in the oyster industry of said county, and in the security and protection of their common right of fishery in the waters thereof; that the tracts leased to the appellants were natural bars, beds, and rocks; that the appellants applied for said leases well knowing they covered natural bars, but fraudulently pretended the bottoms applied for were barren; that by false and fraudulent representations the court and shell fish by the pleadings is whether the court had [2-4] The appellees contend that the lower (1) Because the petition contained insuf- the petition had asked the court to determine ficient location; (2) because it was not signed in an open proceeding, and which that court by the petitioners; and (3) because the had so determined as recited in its order "afchanges in location were not marked upon the ter hearing testimony." To have the court chart, and the amended chart not filed in the say, because certain witnesses now testify office of the clerk of the court. The first of that this section is contrary to what the court the reasons is, in our opinion, without merit. previously found it to be, that that in any way Section 93 of article 72, quoted in full above, gives ground or reason for imputing fraud provides that upon a petition being filed, to those who previously alleged, and now either for including bars within or excluding support, the court's original view, would be barren bottoms from the lines of the sur- to permit fraud to be shown in a way difvey, a plat designating the location shall be ferent from any adjudged case that has filed, or in the absence of a plat, the loca- come to our attention. But we are not to tion shall be designated with reasonable cer- be understood as saying that fraud must tainty by landmarks. A plat was not filed, necessarily be shown by direct evidence alone. but the designation contained in the petition It appears from the evidence that before was a full compliance with the alternative the petition was presented to the court 40 requirement. As to the second contention, residents of Somerset county, practically all of whom were those mentioned as the petitioners, signed a paper of the following tenor: "We, the undersigned tongmen, reside in Somerset county and are engaged in tonging for oysters in Manokin river and vicinity. We hereby affirm that the ground located between Carmen Point and San Pierre Point, which is now designated by the shell fish commission as natural oyster bar, is not properly designated as such, but should have been made subject for lease for oyster culture." we are of the opinion that, when a petition, in the name of at least 24 residents of the county, is signed by attorneys of the court, the requirement that the petition should be filed in writing is met without the actual signing by the petitioners. The presumption is that the attorney has authority to act, and the court thereupon assumes jurisdiction. Henck v. Todhunter, 7 Har. & J. 275, 16 Am. Dec. 300; Kelso v. Stigar, 75 Md. 376, 24 Atl. 18; Benton v. Stokes, 109 Md. 117, 71 Atl. 532. The third reason assigned why that Carmen Point was admittedly meant for court did not acquire jurisdiction does not Carmol Point. This plain and unequivocal raise a jurisdictional fact at all. The amend-statement was prepared by the secretary of ed plot, under the terms of the act, is not to be filed until after the finding of the court, and then is to be considered as conclusive evidence. The failure to file cannot vitiate the finding. the commission at the request of one of the appellants, and circulated for signatures by another appellant. And although several of the signers testified they signed it under a misrepresentation of facts, yet it is dif[5] We have examined all the testimony ficult to see how there could be any such mismost carefully, to ascertain whether the representation as to induce any one to attest charge of fraud has been so established as to such a plain statement of fact as was conto induce a court of equity to set aside its tained therein, unless at the time of so signdecree, passed almost five years previously, ing they believed the truth of the written and have reached the conclusion that fraud statement. Several of the petitioners testihas not been shown in anything like the sat- fied that the misrepresentation consisted of isfactory and clear manner in which, un- the appellant, who circulated the paper, statder all of the decisions of this court, it musting that he wanted to take up 10 acres for be shown in order to obtain the drastic re- a dumping ground. While that appellant delief prayed for in this bill. nied having stated such a reason, yet if we assume he did, one is met with the fact that at that time, under the law then in effect, one person was limited to a lease of 10 acres. The testimony establishes that shortly after the filing of the survey one of the appellants visited the commission at its office in Annapolis, at a full meeting of the board, and informed the members of the mistake he thought had been made; that he was advised by them to file the petition as the only way of correcting the survey. also appears that the engineer of the coinmission gave in writing the description of the location which was later embodied in the petition. This writing was filed as an exhibit. It would be difficult to have a proceeding more open and frank than this one, from the record, appears to have been, and we therefore are of the opinion that the appellees have failed to establish fraud. The greater part of the testimony is upon the question, of whether the lots in question are composed of natural bars or barren bottoms. This was not the point to be determined in the inquiry. That had been settled by the proceedings of 1908, and was to be considered as final, unless the charge of fraud was established, and in that event it was an open question to be later established as a fact by appropriate proceedings. Was or not the action of the appellants so tinged with fraud in those proceedings as to vitiate the finding therein, was the question to be determined, and the testimony should have had bearing upon that phase. The fact that testimony could be and was produced to the effect that this section was a natural bar would not show that these appellants were guilty of fraud because they had alleged the contrary as a fact. That was the fact that It MAYOR AND CITY COUNCIL OF BALTI- OF BALTIMORE CITY. (No. 38.) Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Robert F. Leach, Jr., Asst. City Sol., and Robert P. Graham, both of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellant. Wm. Pepper Constable and Thomas G. Hayes, both of Baltimore, for appellees. URNER, J. The Forest Park Company is the proprietor of a residence development in the suburbs of Baltimore city. The property included in the project consists of a tract of land containing about 42 acres, bounded by Liberty Heights avenue on the south and by Garrison avenue on the east. An important feature of the development was the establishment of a sewerage system. As the natural slope of the ground was towards the south, it was necessary to conduct the drainage in that direction. On the southern side of Liberty avenue were other suburban develop Plaintiff company, engaged in residence development in defendant city, entered into a written contract with two other development companies, reciting that plaintiff had constructed a storm and waste water drain, and that a connection with the lower drainage system of the other two companies was subject to the terms of the agreement, and for the sole purposements under the ownership of the Park Land of providing a drain for storm and waste water Corporation and the West Forest Park Comoriginating upon the property of plaintiff com- pany. The two last-mentioned corporations pany the area of which was particularly de- had jointly installed a system of concrete fined, that no other property should be permitted to drain through, over, or under the prop- and terra cotta drains, extending southwarderty of the plaintiff company, into its drains, ly through their properties from Liberty and that no one should connect with or use Heights avenue to an outlet in an open water such drains without the written consent of the course. The Forest Park Company, in conother two companies and a resolution by plaintiff company authorizing the same. Thereafter structing the sewerage system for its propdefendant city entered into an agreement witherty north of the avenue, depended upon the the other two companies, authorizing it to connect a drain connecting with the system below the point where it was joined by plaintiff's drain. Held, in an action to enjoin the city from acting upon such permission, on the ground that the system was not of sufficient capacity to carry the additional flow, and that if overcharged the utility of plaintiff's system would be destroyed, that the agreement did not prevent the other companies from permitting a connection by the city, or require the consent of plaintiff company thereto, and hence that injunction would not lie. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 184, 186-188; Dec. Dig. § 158.*] use of the drains and outlet of the two companies operating to the south. An agreement for such user was effected upon terms which are set forth in an instrument dated June 1, 1909, executed by the three companies and duly acknowledged and recorded. It was recited in the written agreement that the Forest Park Company had constructed a concrete storm and waste water drain along and across the Liberty turnpike road (now know as Liberty Heights avenue) to connect with the drainage system south of the highway belonging to the other cor 2. WATERS AND WATER COURSES (§ 1581⁄2*)-porations, and that permission for the makDRAINAGE AGREEMENTS-ACTION TO ENJOIN -ADMISSIBILITY OF EVIDENCE. In such action, where the defendant city establishes a right to connect with the drain, its evidence, offered to meet plaintiff's contention that the utility of its system would be thereby destroyed, to the effect that the system was of sufficient capacity to prevent any injury to plaintiff's right, was material and admissible. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 189; Dec. Dig. § 1582.*] ing and maintenance of the connection was given upon the understanding that its use by the Forest Park Company should be subject to the terms of the agreement, and "for the sole purpose of providing a drain for the disposal, carriage and emptying of the storm and waste water as now used that would originate upon the property of the party of the third part (the Forest Park Company) and of George R. Webb," the area of which There was a re Appeal from Circuit Court of Baltimore was particularly defined. City; Henry Duffy, Judge. "To be officially reported." Action for injunction by the Forest Park Company of Baltimore City against the Mayor and City Council of Baltimore City and the Sewerage Commission of Baltimore City. Judgment for plaintiff, and defendant appeals. Reversed and remanded. cital also that: "It was understood and agreed between the parties hereto that no other property except as aforesaid, should be permitted to drain through, over or under the property of the said Forest Park Company or of George R. Webb as aforesaid, into its said storm and waste water drains, nor permission granted any other person or body corporate whatsoever except as aforesaid, to connect with, use or drain in sewer belonging to the developments south of the highway. That proceeding has not yet been brought to a conclusion. Since it has been pending the city and its sewerage commission have entered into an agreement with the companies owning the lower drainage system by which the city was authorized to connect its drain directly with the system below the point where it was joined by the drain of the Forest Park Company; all the questions involved in the condemnation suit being reserved without prejudice for future judicial determination. The Forest Park Company seeks to have the city restrained from acting upon the permission thus secured, and it has filed the present bill for that purpose. The bill objects to the proposed connection on the ground that the drains of the companies operating to the south are not of sufficient capacity to carry the flow from the city drain in addition to that contributed by the Forest Park and other properties originally intended to be served, and that if the conduits should be allowed to be thus overcharged, the efficiency and utility of the plaintiff's sewerage system would be destroyed. It is stated in the bill that the right of the city to connect with the drain of the plaintiff or of the other companies, and the compensation to be paid for such a privilege, are questions which can properly be decided in the pending condemnation suit. The answer of the city and the sewerage commission avers that the drain which has been constructed by the commission under the bed of Liberty Heights avenue, and for which an outlet is desired through the existing sewers of the development companies, was intended for the relief of objectionable drainage conditions in that vicinity, and that the capacity of the drain furnishing an outlet to the south is more than sufficient to accommodate the flow from the city sewer and the present tributary systems as well, and that no damage or injury would result to the plaintiff from the connection which the bill seeks to prevent. The right of the city to connect its drain with the sewer of the Park Land Corporation and the West Forest Park Company while the condemnation proceedings are pending is predicated in the answer on the agreement to which we have already referred. to said storm and waste water drains without | Company just above its junction with the the written consent of the board of directors of the Park Land Corporation of Baltimore city and the written consent of the board of directors of the West Forest Park Company through whose lands the aforesaid storm and waste water drains are extended and a resolution passed by the board of directors of the Forest Park Company, authorizing the same." After a further statement in the preamble, to the effect that it was to the interests of the parties that their rights with respect to the drains should be accurately defined, the agreement proceeded to formally provide, in consideration of the premises, and of the sum of $1 paid by each of the parties to the other, that the Forest Park Company, its successors and assigns, should have and enjoy, at all times thereafter, the right to maintain and use the connection existing between its concrete storm and waste water drain with the system of drainage to the south for the sole and exclusive purpose of carrying and disposing of the storm and waste water originating upon its property and that of George R. Webb, as previously described. It was further agreed that the Forest Park Company, its successors and assigns, should "not permit nor allow any other person or body corporate, except as aforesaid, to connect with, use, or drain any other property through, over or under its property, or in any other manner, into its said storm and waste water drains as now or hereafter constructed, without the consent in writing of the board of directors of the Park Land Corporation of Baltimore city and the West Forest Park Company, through whose lands the aforesaid storm and waste water drains are extended, and a resolution of the board of directors of the Forest Park Company of Baltimore city, authorizing the same." There was a stipulation that if the Forest Park Company, its successors or assigns, should violate any of the terms or conditions of the agreement, "or allow any person or body corporate, except as aforesaid, to drain their property through, over or under its property, or in any other manner, into any of its storm or waste water drains," the other contracting companies should have the right, upon 30 days' notice, to discontinue the connection between the two systems. The final provision in the agreement was to the effect that the Forest Park Company and George R. Webb, and those who succeeded them in title, should have the right and privilege to authorize any purchasers of lots included in their respective properties to connect with and use the drains in the manner and for the purposes specified. The city of Baltimore, through its sewerage commission, has constructed a storm water drain under the bed of Liberty Heights avenue, and has instituted condemnation proceedings, under Act 1912, c. 117 and Act 1904, e. 349, against all the corporations interested in the sewerage systems described, with a view to acquiring the right to connect the city drain with that of the Forest Park 91 A.-10 In the trial of the case below the plaintiff proved its right to use the sewer of the two neighboring companies as an outlet for its own drain, and offered evidence tending to show that the probable flow from the city sewer, when added to the volume of drainage already receivable by the lower system, would overtax its capacity. The city then sought to sustain the defense stated in its answer by producing evidence that the discharge from its drain would not overcharge the system upon which the plaintiff is dependent, and by proving the agreement under which the city was authorized by the cor |