struck a large rock which laid nearer the center of the road than those previously passed, and which had been unlawfully left in the traveled part of the highway by the defendants. Up to the moment of the accident, the plaintiff's daughter was doing her best to manage the horse. There was evidence that the highway in question had been used for general public travel for about 37 years, during which time the town had kept it in repair. It also appeared that at the time of the accident the plaintiff's horse had become frightened, was beyond control, and was actually running away. At the close of the plaintiff's evidence, the defendants moved for a nonsuit, on the ground that the plaintiff had failed to establish the existence of a legal highway at the point where the accident happened. The motion was denied, and the defendants excepted. The defendants also excepted to the denial of their request for the following instructions to the jury: "(1) The defendants were not obliged to guard against some extraordinary condition not foreseen, in consequence of which the road became too rough or too narrow to meet all the exigencies of the situation. If the highway was in suitable condition for ordinary travel conducted in the ordinary manner, the plaintiff cannot recover. (2) If you find that the plaintiff's horse had taken fright at a locomotive, and at the time the accident occurred was running away, then the plaintiff cannot recover, although the alleged obstruction was within the limits of the road as traveled and used. (3) It is necessary, in order to enable the plaintiff to recover, that the alleged obstruction in the highway should have been the sole cause of the accident; no other cause contributing thereto. If, before the accident, the horse from any cause became actually uncontrollable, and was so when the accident occurred, the defendants are not liable, even though the rock in question may be found to have been within the limits of the traveled way. (4) Momentary loss of control by the driver means no more than loss of control due to the shying or sudden starting of the horse. Therefore, in order for the plaintiff to recover on the theory that the horse was only momentarily out of her control, the jury must be satisfied that the horse did not practically pass beyond the control of the plaintiff, except for an instant. In other words, unless you believe, upon all the evidence, that the driver could have immediately regained control of the horse but for the coming in contact with the rock, your verdict must be for the defendants."

Jesse F. Libby, for plaintiff. Rich & Marble, for defendants.

BINGHAM, J. The defendants contend that the verdict should be set aside for the following reasons: (1) That the plaintiff was permitted to show that the highway in question was a public highway, by evidence of general public travel for 20 years or over,

without first showing that it was not a highway of record; or, if it was, that the record could not be produced. (2) That, if the evidence was competent, it was not sufficient to warrant a finding of a public highway, because it did not appear that the public travel may not have included travel to and from a toll bridge or ferry. And (3) that certain requested instructions were improperly denied.

1. "Highways are only such as are laid out in the mode prescribed therefor by statute, or as have been used as such for public travel thereon, other than travel to and from a toll-bridge or ferry, for twenty years." Pub. St. 1901, c. 67, § 1. Two methods, at least, are prescribed by our statutes for laying out highways. One is by petition and hearing before the selectmen of the town in which the proposed highway is situated. Pub. St. 1901, c. 67, § 2; State v. Morse, 50 N. H. 9. The other is where the selectmen of a town on the Connecticut river, "acting in pursuance of a vote of the town, enter into a contract with the officers of the adjoining town or towns in Vermont and purchase the real estate, or the privilege, easement, or franchise of a bridge or ferry corporation, for the highway." O'Neil v. Walpole, 74 N. H. 197, 66 Atl. 119; Pub. St. 1901, c. 67, § 12, 13. But from time immemorial we have had highways by user. Such highways are not established according to certain prescribed statutory methods, but arise from the uninterrupted use of the land for public travel and the continued recognition by the town and the landowner of the right to make such use; and the provisions of section 1, c. 67, Pub. St. 1901, relating to highways of this character, simply define what shall be competent and conclusive evidence of their exist. ence. In Stevens v. Nashua, 46 N. H. 192, 199, it is said: "When our statute required 20 years' user to make a highway public, even though it might have been dedicated and accepted long before that time expired, we think it was intended that such public use for that length of time should be sufficient, not only to be conclusive against the landowner, but against the town or city in which such highway is located. In case of a dedication, such user is conclusive evidence of an ac ceptance; and in case there is no evidence of any express dedication, yet such use for that time, if uninterrupted, continuous, and adverse, would be conclusive evidence of a right thus to use it as a public highway, both against the landowner and the city or town." As we have highways of record and highways by user, each dependent upon distinct methods of proof, and as the same highway may in some instances be both a highway of record and by user, such fact does not deprive proof by the latter method of its original character and render it an attempt to prove a highway of record by secondary evidence.

2. The second contention of the defendants is evidently based upon an erroneous con

ception of the meaning of section 1, c. 67, of the Public Statutes of 1901. This statute was first enacted in 1842. It then read as follows: "No highway that has not been laid out agreeably to statute law shall be deemed a public highway, unless the same has been used by the public for a term of time not less than twenty years; and no highway thrown open to the public, the use of which would not be necessary for public travel, excepting for the purposes of travel over a tollbridge, shall ever be deemed a public highway, unless the same shall be laid out agreeably to statute law." Rev. St. 1843, c. 53, § 7. The language of the statute was not changed until the revision of 1867. It then assumed its present form. Comp. St. 1854, c. 57, §7; Gen. St. 1867, c. 69, § 8. But from the marginal note appended to the section by the commissioners in their report to the Legislature, it appears that, while different language was made use of from that previously employed, it was not the intention to change the meaning of the law. Com'rs' Rep. Gen. St. 1867, p. lv; Id., c. 69, § 8. This fact, taken in connection with the settled rule of construction that "the mere change of phraseology shall not be deemed a change of the law, unless such phraseology evidently purports an intention of the Legislature to work a change" (Jewell v. Holderness, 41 N. H. 161, 163; Stewart v. Harriman, 56 N. H. 25, 27, 22 Am. Rep. 408; Sleeper v. Insurance Co., 56 N. H. 401, 406), and there being nothing in the present statute indicating a change of intention so far as the effect of travel to and from a toll bridge or ferry upon the establishment of a highway is concerned, it follows that the law is to be construed as meaning the same as when first enacted. This being so, it is apparent that the meaning of the statute is that, when land is thrown open or dedicated to the public, the way will not become a public highway, however long it may be used, provided the travel upon it is limited to travel to and from a toll bridge or ferry; and that, if it is used for general public travel, although not exclusively for such travel, it may become a public highway by 20 years' user. The plaintiff's evidence tended to prove that the highway in question had been used for general public travel for more than 20 years during which time the town had kept it in repair, and was sufficient to warrant the conclusion that it was a public highway by user. Stevens v. Nashua, supra ; Campton's Petition, 41 N. H. 197, 198; Willey v. Portsmouth, 35 N. H. 303.

3. There was some evidence tending to prove that at the time of the accident the plaintiff's horse had become frightened, wa: beyond control, and was actually running away. And the defendants requested the court to charge the jury, in substance, that

they were not bound to anticipate that horses of travelers upon the highway would become frightened and uncontrollable; that if the accident to the plaintiff occurred while her horse was beyond her control, in consequence of the defendants having narrowed up the highway with obstructions, that would not make them responsible; that they were only bound to anticipate and provide against accidents to travelers while their horses were within their control; and that unless the alleged obstructions in the highway were the sole cause of the accident, no other cause contributing thereto, the plaintiff could not recover. Whether the defendants, in view of the above evidence, were entitled to have the first part of the request given to the jury, depends upon the question whether there was any evidence from which it could have been found that the defendants should have anticipated that horses of travelers passing along the highway in the vicinity of the accident might become frightened and uncontrollable, and that their conduct in narrowing up the highway might render it dangerous. If there was such evidence, then the fact that the plaintiff's horse was beyond control without her fault would be a mere condition which the defendants should have provided against, and the question was for the jury. Ela v. Cable Co., 71 N. H. 1, 3, 4, 51 Atl. 281; Brown v. Railroad, 73 N. H. 568, 573, 64 Atl. 194, and cases there cited. It appeared in evidence that the highway in the vicinity of the accident was located beside the tracks of the Boston & Maine Railroad, upon which locomotives were liable to be, and that the plaintiff's horse took fright at locomotives upon those tracks. From this evidence, if from none other, it could have been found that the defendants should have anticipated that horses of travelers passing along there might become frightened and uncontrollable, and that the defendants were negligent in not providing against such a contingency. This part of the request was properly denied, and the same is true of the portion that remains to be considered. It was not necessary, in order to render the defendants liable, that the jury should find that the plaintiff's injury was due solely to the defendants' negligence, if her conduct in no way contributed thereto. Hanson v. Railway, 73 N. H. 395, 62 Atl. 595; Nashua, etc., Co. v. Railroad, 62 N. H. 159; Winship v. Enfield, 42 N. H. 197, 215; Clark v. Barrington, 41 N. H. 44, 50; Norris v. Litchfield, 35 N. H. 271, 69 Am. Dec. 546.

No exceptions were taken to the charge of the court.

Exceptions overruled.

PARSONS, C. J., did not sit. The others concurred.

(106 Md. 335)

FILSTON FARM CO. OF BALTIMORE COUNTY v. HENDERSON & CO.

SPARKS v. SAME.

(Court of Appeals of Maryland. June 26, 1907.) 1. EQUITY-PLEADING-AMENDMENT.

Either party in equity, upon application to the court, has the right to amend the pleadings at any time before final decree, so as to bring the merits of the controversy fairly to trial, upon payment of such costs as the court may direct.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, §§ 541, 545.]

2. CONTRACTS - BUILDING

--

CONTRACT PAY

MENT ARCHITECT'S CERTIFICATE.

Where a building contract provides that payments are to be made only upon certificates of the architect, and that all payments shall be due only when certificates for them are issued, the production of the certificate is a condition precedent to the liability of the owner to pay for material and labor, unless its refusal is due to fraud or bad faith, or unless it is waived.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 1308.]

3. SAME-WAIVER OF ARCHITECT'S CERTIFICATE EVIDENCE.

In an action to enforce a mechanic's lien for the contract price of erecting a building, evidence examined, and held to show that the production of the architect's certificate was waived by the owner.

4. MECHANICS' LIENS-PROPERTY AFFECTED— EXTENT OF LAND.

Under the express provisions of Code Pub. Gen. Laws, art. 63, § 4, a mechanic's lien extends to the ground covered by the building, and to so much other ground immediately adjacent thereto as may be necessary for the ordinary and useful purposes of the building.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 310.]

5. SAME DESIGNATING BOUNDARIES-STATUTORY PROVISIONS.

Where, in a proceeding for a mechanic's lien, the boundaries of the land upon which the building is built have not been designated previous to the commencement of the building, Code Pub. Gen. Laws, art. 63, § 7, provides that the court may order a surveyor to designate the limits and extent of grounds necessary for the convenient use of the building for the purpose for which it was designed. Held, that the term "designed," as used, is equivalent to "adapted." 6. SAME-FARM LANDS SURROUNDING BUILD

ING.

Where a building was erected upon a tract of land comprising 1,293 acres, embracing a number of separate parcels, each with its own original dwelling and appropriate outbuildings still occupied for farming purposes, with the boundaries and fences between them maintained, the whole tract was not subject to a mechanic's lien.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 314.]

Appeals from Circuit Court, Baltimore County, in Equity; Geo. L. Van Bibber, Judge.

Consolidated actions to enforce a mechanic's lien by Henderson & Co. against the Filston Farm Company of Baltimore County and another, and Henderson & Co. against Laban Sparks, administrator, etc. From a judgment for plaintiffs, defendants appeal. Affirmed in part, and reversed in part, and remanded.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ.

W. Calvin Chestnut and Edgar H. Gans, for Filston Farm Company of Baltimore County and others. Leon E. Greenbaum, for Filston Farm Company of Baltimore County. Frank Gosnell and Osborne I. Yellott, for Henderson & Co.

PEARCE, J. This is an appeal from a decree of the circuit court for Baltimore county as a court of equity, establishing a mechanic's lien for the sum of $68,542.62, with interest on $53,542.62 from November 29, 1904, for the erection of a certain school building upon a tract of land near Glencoe Station, in Baltimore county, and ordering a sale of said building, together with 1,293 acres of adjacent land belonging to the owner of said building, for the payment of said lien. The case involves a very considerable amount of money. The record is voluminous, covering 1,650 printed pages. Eminent counsel have appeared on both sides, and numerous questions have been raised; that as to the extent of the mechanic's lien for the construction of buildings upon farming lands and to be used for farming purposes being for the first time before us. The statute being the same in all cases, however, the amount involved cannot alter or control the application of the legal principles to be applied. The bill states that the plaintiff, a corporation under the laws of Pennsylvania, being a contractor and builder, entered into a contract on June 10, 1904, with the defendants Henry D. Perky and the Filston Farm Company, a corporation under the laws of Maryland, to furnish the materials and labor required for the erection of a large building, or two connected buildings, designed for use as a school of agriculture and other pursuits, "to be maintained by and upon tracts of land located in the Tenth district of Baltimore county," and that there was then due the plaintiff for such material, work, and labor the sum of $77,307.46. That the said Perky and the Filston Farm Company were, at the beginning of the said work and labor and the furnishing of said materials, the owners of all the lands intended to be used for said school, including the land actually covered by said building or buildings. That part of said land so owned had been conveyed before said contract to one George C. Weddell of Philadelphia by sundry deeds from parties acting under the direction of said Perky and said Filston Farm Company, but that the purchase money was paid by them, and that said Weddell had no beneficial interest in said lands, and held the same in trust and at the pleasure of said Perky and said Filston Farm Company, and that other parts of said lands were conveyed by deed of mortgage by said Perky and said Filston Farm Company on October 22, 1904, to one Joseph Fels, of Philadelphia, to secure an alleged indebted

ness therein mentioned. That on November 4, 1904, said sum of $77,307.46 being then due and unpaid, the plaintiff filed in the clerk's office of the circuit court for Baltimore county "a claim for lien under and in accordance with the provisions of article 63 of the Code of Public General Laws of Maryland against the said building, the ground upon which it is erected, and the land immediately adjacent thereto, belonging in like manner to the owners of said building or buildings, which is necessary for the ordinary and useful purposes of said building or buildings and the convenient use of the same for the purpose for which the same was or were designed," and that said lien claim was filed therewith as Exhibit A. The prayer of the bill was that the land so conveyed to Weddell should be declared to be held in trust for said Perky and for said Filston Farm Company, and be so brought within the whole tract of which it was alleged to be a part, and was intended to be devoted to the use and maintenance and convenience of said school building or buildings.

The lien claim filed described by metes and bounds a number of tracts of land, containing in all about 1,700 acres, conveyed at different times and by different persons, some to said Perky and said Filston Farm Company, and some to said Weddell, by 10 distinct conveyances, some of which embraced several distinct tracts or parcels of land. The amount claimed is thus stated: Total price of original contract......... Amount of extras...

$64,357 00 27,372 46 $91,729 46

14,422 00 $77,307 46

-but no copy of the contract was filed with the bill, nor were its provisions set forth or referred to therein.

The defendants Perky and the Filston Farm filed a joint answer accompanied by a copy of the contract. The answer denied that the sum claimed, or any other sum whatever, was due under the terms of said contract, and alleged that the Filston Farm was at the time of the execution of the contract, and still continued to be, the sole owner of the land upon which said buildings stand, and of all the other land immediately adjacent thereto and necessary for the ordinary and useful purposes thereof; also, that one of said other tracts attempted to be included in said lien was used as a residence by Mr. Perky, and the remainder were used for farming and stock raising, a portion being in timber, and were so intended to be used. It admitted that Weddell had no substantial interest in the property conveyed to him as alleged in the bill, and declared that it was purchased by Perky and wholly paid for by him and had since been conveyed to him by said Weddell, and that they were purchased to be used in connection with other buildings

designed to be erected on one of said tracts near the line of the railroad, at a point distant more than one mile from the building erected by the plaintiff. It alleged that the mortgage to Joseph Fels mentioned in the bill was made by the Filston Farm alone, of lands belonging exclusively to it, and that it was made in good faith to secure an actual indebtedness. It alleged that the plaintiff had wholly failed to fulfill the terms of said contract, and charged that the buildings because of bad workmanship and improper materials done and provided by the plaintiff were defective and unsafe, and could not be used for the purposes for which they were de signed; that the plaintiff refused, after due notice by the architect under said contract, to make said work and materials conform to said contract, and stopped all work thereon on October 22, 1904, and since then had made no effort to complete the work as required by said contract. It alleged that the contract provided that payments should be made only on certificates of the architects, and that the architects had certified to the defendants that no money is due to the plaintiff by reason of faulty and unsafe construction, and that all certificates that were given by said architects had been promptly paid. It alleged, with reference to the claim for extras, that all bills for materials and labor were required to be approved by the architects, before any money should be due and payable therefor, and that no bills for any of such extras have ever been presented to or approved by said architects, and that a large part thereof is defective and improper and has been duly rejected by said architects, but the plaintiff has refused to make the same good. The other defendants, Weddell and Fels, adopt this answer as their own.

The contract between the parties was the form of building contract approved and adopted by the Institute of Architects and the National Association of Builders, and in general use throughout the country, and it was designed to afford equal protection to builders and owners, and to minimize the hazard of litigation as far as possible. The important provisions of this contract are the following: Article 2 provides that all work is to be done under the direction of the architects named therein, Esenwein and Johnson, in conformity with their drawings and specifications as part of said contract, whose decision in respect thereto is to be final between the parties. Article 3: No alterations to be made in the work except upon written order of the architect; the amount to be paid by the owner or to be allowed by the contractor to be stated in said order, or, if not then agreed on, to be determined by arbitration, as provided in article 12. Article 4: "The contractor shall at all times provide proper facilities for inspection of the work by the architects, and shall within twentyfour hours after written notice from the architects, remove from the ground and build

ings all materials condemned by him, whether worked or unworked, and take down all portions of the work by written notice condemned as unsound or improper, or in any way failing to conform to the specifications, and shall make good all work damaged or destroyed thereby." Article 5: If the contractor at any time refuse or neglect to supply sufficient skilled workmen, or materials of proper quality, or fail to prosecute the work with diligence, or fail in the performance of any agreement, such failure being certified by the architect, the owner may, after three days' written notice to the contractor, provide any such material and labor and deduct the cost from any money due or to become due to the contractor; or, if so determined by the architects, may terminate the employment of the contractor, enter upon the premises, and employ any other person to complete the work. Article 6 provides: "It is strictly understood that the buildings must be entirely completed ready for occupancy on the 1st day of September, 1904. The contractor agrees to pay the owner the sum of one hundred dollars for each day that the work shall remain unfinished after September 1, 1904. Such payment is not to be as a penalty, but as liquidated damages agreed upon by the parties hereto." Article 9 fixes the sum to be paid for work and materials at $64,357, such payment to be made only upon certificates of the architects, and to be made upon the 10th day of each month for the work done in the preceding calendar month, as estimated by the architects, the owner to retain 20 per cent. of the estimated value of each payment until final settlement, and the certificate of the architects is to be final as to this clause of the contract. This article also provides that "certain additions, as per amended plans and specifications, are to be made to the work provided in the original plans and specifications"; the work of said additions to be done on a percentage basis, as provided in said article, and "all bills for material and labor are to be approved by the architects." "The final payment to be made within sixty days after the completion of the work included in this contract, and all payments shall be due when certificates for the same are issued." Article 10 provides that no certificate given, or payment made, except the final certificate or final payment, shall be conclusive evidence of the performance of said contract, either wholly or in part, and that no payment shall be construed to be acceptance of defective work or improper materials. This contract bears date June 10, 1904, but was not fully executed until several days later, as it was necessary to send it to Mr. Henderson, who was then in St. Louis, for his signature, and the cornerstone was laid June 17th, 1904.

For several years previous to the execution of this contract, Mr. Perky owned and conducted in Worcester, Mass., a school of domestic science for girls or women, and in

1904 purchased from the receiver of the Filston Farm Company for $157,000 all the stock of that corporation, except a few shares, intending to transfer said school to Maryland and to erect school buildings upon some part of the land of the Filston Farm Company and to extend the system of instruction to boys. The Filston Farm Company had conducted a dairy business, and the property purchased by Perky from the receiver included several tracts of land known as the "Upper Farm," the "Meadow Farm," the "Lower Farm," and 109 acres of timber land, in all 1,167 acres, and he subsequently purchased from other parties other adjoining lands, increasing his holdings to about 1,700 acres. The building erected by the plaintiff stands upon the tract known as the "Lower Farm," shown by the testimony to contain about 200 acres. Mr. Perky's plan and purpose was to open the school in Maryland on October 3, 1904, and in order to insure this he required the contract to provide for its complete execution and fulfillment by September 1, 1904. The plaintiff's original bid for this contract was $59,857, but it was so vital to Mr. Perky's plans that there should be no delay in the completion of the buildings by September 1st that Mr. Esenwein, the architect, inquired of Mr. Swindells, who represented the plaintiff, if he had figured on night work, as Esenwein thought the building could not be completed by that time without night work. Swindells said he had not done so, and he at once communicated with plaintiff, and as a result the sum of $4,500 was added to cover the cost of night work, thus raising the bid to $64,357. Thereupon Mr. Perky issued and distributed over the country his catalogues providing for the opening of the school, to be known as the "Oread Institute," on October 1, 1904, and secured 65 pupils, who were to pay $500 apiece per annum, and these engagements he was obliged to cancel, because of the noncompletion of the building according to the contract. Mr. Perky testified that he paid $70,000 for the Worcester property, and had spent $55,000 in improving it, and that it was absolutely unincumbered until the plaintiff laid an attachment upon it after the litigation in this case began. He also testified that he was president of the Natural Food Company at Niagara, making the cereal known as "shredded wheat," and that he held $10,000 of the stock of that company paying regular annual interest of 6 per cent.; and that he had $35,000 invested in a patented enterprise in Worcester, a paper company, the foreign patents for which had been recently sold for $300,000 of which $100,000 was in cash and the balance in stock; also that he had paid for, and then owned 250 head of cattle and other personal property on the farm unincumbered, besides some other stocks. It is quite clear therefore that he was a man of independent means amply able to undertake such an enterprise and to perform the contract in question on his part.