prices. Let me see how these items come out.' Mr. Fox objected to my having this paper, but I told Runyon, and he volunteered in handing me his book. I took it. Mr. Fox, in the meantime, had looked over and seen the sum of the sound value of Runyon's figures, and he says: 'Well, there is no use. I am satisfied to take your figures. Your figures we will stand by.' I said: 'Hold up. I have something to say about this matter. If I am a party to this appraisal, I want something to show to the companies what they are paying for. They expect me to do that.' And I took up two items with Mr. Runyon, and Fox said: "There is no use bothering with this.' And he said: 'You and I will sign it.' And I said: 'All right.' I said: 'Do you want to sign it, Mr. Runyon?' He says: 'No; I won't sign it.' I said: 'I think this thing is off. I resign from this appraisement.' And Mr. Gebhardt-they sent for him-he came up and said: 'Go ahead with it. Proceed with it.' I said: 'No; I am done.'" He also testified that on a prior occasion, the first day he met Fox, the latter told him the amount of the loss was more than the policy, and that he might then have said "we never can agree." He was asked why he called in the services of Runyon and conferred with the umpire, to which he replied: "I will tell you the reason why, because the umpire had been regularly appointed by the court, and it is just as I before stated, when I met him I made this statement to Mr. Runyon. I said: 'Mr. Fox is a farmer. He is a very good citizen and all that, but he is not a competent man to take hold of this thing and figure out the damage to the building; but,' I said, in order that you can understand this situation, if you afterwards come into this thing, I will take this list of items, and we will go over and see if it is covered'-which we did, and agreed all was in, with the exception of two or three items and some doors that Mr. Garrebrant called my attention to. Of course, we put them all in." The trial judge charged the jury that, even if they believed the burning of the paint increased the risk, yet the policy was not avoided if they believed that repainting was in reason required, and that in executing the work the removal of the old paint was reasonably required, and the method adopted for its removal was a reasonably safe and proper and a usual way to accomplish the work; that the naptha (or gasoline) was used on the premises, but that the question was whether the use was so reasonable and usual in the execution of this kind of work that the contract of insurance must be regarded as executed in view of that fact; that the umpire became entitled to join in making and signing an award only in case the two appraisers disagreed as to the amount of the foss, and that if what Gibson said to Fox was that he would not consent to saying that the

loss was up to the amount Insured off-hand, but would make his estimate from the data which he had made, there was then no disagreement, but that, if Gibson refused to agree with Fox that the loss was the face of the policy, the jury had a right to find that the two appraisers did disagree; that, if Gibson resigned in good faith, the award was invalid, but, his conduct in withdrawing was in bad faith, endeavoring to prevent the signing of the award, and to postpone further consideration for some arbitrary purpose, then Fox and Runyon had the right to make the award.

William C. Gebhardt, for plaintiff in error. Edward A. and William T. Day, for defendant in error.

SWAYZE, J. (after stating the facts). We think the case does not call for a decision of the question whether within the meaning of the policy the use of gasoline in the manner in which it was used increased the hazard, nor whether gasoline was kept, used, or allowed on the premises in contravention of the policy. Even if the contention of the defendant in these respects is correct, the policy is not avoided. In construing a writing, the whole must be construed together and in view of the reasons which led to the use of the language employed. The paragraph in the policy that contains the clauses above referred to provides, also, that the policy shall become void "if mechanics be employed in building, altering, or repairing the within described premises for more than fifteen days at any one time." This can hardly be construed otherwise than as permitting mechanics to be employed for the specified time. Prior to the adoption of the standard policy, it had been held by several courts that ordinary repairs did not avoid the policy, even where the fire hazard was obviously increased.

In Dobson v. Sotheby, 1 Moo. & M. 90, the policy was issued at a low rate payable for buildings wherein no fire was kept and no hazardous goods deposited. The buildings required tarring, a fire was lighted in the inside, and a tar barrel brought into the building for the purpose of performing the necessary operations. The tar, by reason of the negligence of the plaintiff's servant, took fire and the premises were burnt. Lord Tenterden said: "The common repairs of a building necessarily require the introduction of fire upon the premises, and one of the great objects of insuring is security against the negligence of servants and workmen. I cannot therefore be of opinion that the policy in this case was forfeited." This decision was quoted with approval by the Supreme Court of New York in Grant v. Howard Insurance Co., 5 Hill (N. Y.) 10. The question was thoroughly discussed in a Maryland case quoted at length in May on Insurance, § 224

(Jolly's Adm'rs v. Balt. Eq. Soc., 1 H. & G. [Md.] 295, 18 Am. Dec. 288), and by Justice Clifford in James v. Lycoming Fire Ins. Co., 4 Cliff. C. C. 272, Fed. Cas. No. 7,182. The effect of these decisions was to make it a jury question in each case whether the repairs were reasonable, and that regardless of the time taken, To meet this, a clause was introduced in some policies expressly forbidding repairs without the consent of the company, and sometimes a limited time was allowed for repairs in each year. In 1874 the construction of such a clause came before the Court of Appeals of New York. Rann v. Home Insurance Co., 59 N. Y. 387. In that case the policy allowed five days in each year for incidental repairs without notice or indorsement. The assured had procured a special mechanic's risk for two months, which expired two weeks before the fire. After its expiration the assured began putting on new siding in place of the old, which had become decayed and dilapidated, and this work had been in progress less than five days when the fire occurred. It was held that putting on new siding came within the definition of incidental repairs and the policy was not avoided.

Such was the state of the law in New York when the standard policy was prepared. It was prepared for use in that state. Richards on Insurance, 133. We have no doubt the object of this clause was to define and limit the right of the insurer and the assured, and to do away with the uncertainty that had prevailed. This is the view expressed in a recent case in the Circuit Court of Appeals for this circuit (German Insurance Co. v. Hearne, 117 Fed. 289, 54 C. C. A. 5271), and seems to be the view taken by the Court of Appeals of New York (Newport Imp. Co. v. Home Ins. Co., 163 N. Y. 237, 57 N. E. 475). In Michigan the court has gone so far as to hold that the provision does not apply to painters because they are not mechanics, and that the question of the reasonable time occupied in painting is still open, notwithstanding the limitation to 15 days. The distinction between painters, who are employed only to embellish and decorate, and carpenters, who are employed to construct, does not seem to us valid, in view of the object of this clause of the standard policy to permit building, altering, and repairing. These words seem sufficient to include such a betterment as repainting. It has never been supposed that in our statutory language mechanics' liens did not include liens for painting. If the word "mechanics" in the policy includes painters, as we think it does, the policy was not forfeited, for the repairs had been in progress only two days. If, however, the word "mechanics" does not include painters, the policy contains no provision limiting the right to repaint, and the question actually submitted was open for the jury under the authorities above cited.

159 L. R. A. 492.

The right to repair must include the right to make repairs in a reasonable, proper, and usual way. The fact that the method used may involve an increase of risk is not a valid argument to the contrary, since increase of risk is involved in the very fact of repair, and, as Lord Tenterden said, common repairs necessarily require the introduction of fire upon the premises. By permitting repairs, the company assumes the ordinary risk attendant if they are done in a usual and proper way. It contracts in view of the ordinary business methods. The words contained in another clause of the policy, "any usage or custom of trade or manufacture to the contrary notwithstanding," have no application to the clause permitting repairs. The clause in which they are found must be read as if an express exception of the right to repair for 15 days had been inserted therein. In this way effect is given to all the words of the policy and to the intent of the parties. The same result has been reached in Michigan and Massachusetts. Smith v. German Ins. Co., 107 Mich. 270, 65 N. W. 236, 30 L. R. A. 368; First Congregational Church v. Holyoke Mutual Fire Ins. Co., 158 Mass. 475, 33 N. E, 572.2 In the latter case it was said that if the use of naphtha at the time, and in the manner in which it was used, was reasonable and proper, in the repair of the building, having reference to the danger of fire, as well as to other considerations, it would not render the policies void, and that the proper question for the jury was: "Was such a use of naphtha a reasonably safe and proper way of making repairs on this building, under the circumstances?" This was the question submitted in the present case; we think rightly submitted.

With reference to the award, it was essential for the plaintiff to show that the award was made in compliance with the policy (Wolff v. Insurance Co., 50 N. J. Law, 453, 14 Atl. 561), especially in this case, since, unless the award is binding, the plaintiff is without proof of the amount of his loss. The question submitted to the jury was whether the conduct of the company's appraiser in withdrawing was in bad faith, and the judge expressly said that the umpire could join in making and signing the award only in case the appraisers disagreed, and he called attention to the testimony as to their estimates of the loss. The effect of this charge, taken as a whole, is in accord with the rule adopted by this court in Broadway Insurance Co. v. Doying, 55 N. J. Law, 569, 27 Atl. 927. In that case, however, the appraisal agreement differed from the policy in failing to require that the appraisers should submit their differences to the umpire. It only provided that the award of any two of them in writing should be binding. In the present case the agreement requires that the appraisers shall estimate and appraise the loss stating separately sound value and damage, and, failing to agree, shall submit their 219 L. R. A. 587, 35 Am. St. Rep. 508.

differences to the umpire. In a proper case it would be a question for the jury whether the appraisers submitted their differences to the umpire as the agreement requires; but no request was made to put this question to the jury, nor was exception taken to what the court said upon the subject. Accepting Gibson's version of what occurred, which is the most favorable view for the defendant, we think both he and Fox did in fact submit the whole matter to the umpire-Fox, because he was satisfied with the figures made by Runyon; Gibson, because he thought that Fox was incompetent, and that he and Runyon could probably agree. He says he volunteered to take the matter up with Runyon, and he actually did so, apparently ignoring Fox. His attempted explanation that he took it up with Runyon in order that he might understand the situation, if he afterward came into the thing, does not account for Gibson's conduct. The very fact that he conferred with Runyon brought the latter into the case, and amounted to a submission on Gibson's part, and Fox's subsequent expression of agreement with the umpire to a submission on his part. It was too late then for Gibson to withdraw. The suggestion that there was misconduct on the part of the umpire cannot be entertained in the present action which is a suit at law. Ruckman v. Ransom, 35 N. J. Law, 565. The same principle has been recently applied by this court to an award under a policy of insurance. Kaplan v. Niagara Fire Ins. Co. (N. J. Err. & App.) 65 Atl. 188. We find no error in the record, and the judgment is affirmed, with costs.

Defendant's predecessors took possession of a lot formerly belonging to a city, and maintained a stable thereon for more than 20 years. The lines of the lot were marked out by the city's officials as appurtenant to the stable, and then assessed to such occupants according to the square feet in the lot so marked out, after which the occupants paid the taxes thereon for six successive years. Held, that they thereby acquired a valid title to such lot by adverse possession.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 82-89.] 2. SAME-DISCLAIMER.

Where defendant's predecessors disclaimed all title to a portion of the property in controversy in the return of their property for taxation under oath, such disclaimer operated as a waiver of any claim to such property by adverse possession as against the city.

3. MUNICIPAL CORPORATIONS-CHARTER PROVISIONS-SALE OF REAL ESTATE.

Baltimore City Charter, p. 272, § 7, providing that the title of the mayor and city council in and to the city's water front wharf prop

AVENUE

erty was inalienable, only applied to water front in the possession and use of the city at the passage of the act, and not to such as was never subject to public use, and was therefore subject to sale under section 13 (page 274), declaring that nothing contained in the article should prevent the city from disposing of any parcel of land no longer needed for any public use.

Cross-Appeals from Circuit Court of Baltimore City; Alfred S. Niles, Judge.

Proceedings by the mayor and city council of Baltimore City against Lucia H. Rowe, administratrix, etc., for the condemnation of certain lands for the benefit of the city. From an order awarding distribution of the damages assessed for the land so taken, both parties prosecute cross-appeals.

The following is a copy of the plats referred to in the opinion:

MAYOR & CITY COUNCIL OF BALTO. CLAIMED BY

· 174'2".... AND BY

W. LEWIS ROWE

164 TO BLOCK STREET

630 A

S

46.6

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. Joseph S. Goldsmith, and Edgar Allan Poe, for Mayor and City Council of Baltimore. W. Thomas Kemp and George Whitelock, for Rowe.

ROGERS, J. These are cross-appeals arising out of proceedings instituted in the circuit court of Baltimore City on February 1, 1906, by the mayor and city council of Baltimore City under the provisions of section 827, c. 123 p. 555, of the Acts of 1898 (Baltimore City Charter), for the purpose of obtaining title to a lot of ground on West Falls avenue in said city, upon paying into court the sum of $6,932.64, the amount of damages finally awarded for said lot in certain condemnation proceedings theretofore had in Baltimore City court. The lot of ground in controversy is shown on a plat marked "Exhibit No. 1," whereon it is indicated by the letters A, B, C, A. In the bill of complaint the lot is described by metes and bounds, and reference is made and the lot is marked 630A. In the answer of W. Lewis Rowe and wife it is claimed that the lot in question is a por

tion of a large tract of land described in these deeds to W. Lewis Rowe, copies of which appear in the record. The lower portion of said larger tract (to which title in W. Lewis Rowe was conceded by the city) is referred to as lot 631. Pending the hearing of the case W. Lewis Rowe died; but his administratrix, Lucia H. Rowe, and his three infant children and sole heirs at law, were made defendants. The cross-appeals now before this court were taken from the final decree of the circuit court of Baltimore City, passed January 2, 1907, whereby the said sum of $6,932.64 was apportioned among the parties hereto in such manner that Lucia H. Rowe, administratrix of the estate of W. Lewis Rowe, received the sum of $2,500, the conceded value of that portion of the lot, title to which the lower court found vested in W. Lewis Rowe in fee simple at the time of the condemnation aforesaid, and the mayor and city council of Baltimore received the remaining $4,432.64, the value of that portion of the lot which the lower court decided was owned by the city. The portion of the lot thus found to have been owned by Rowe is best indicated on a plat marked "Exhibit No. 5,"

as lot No. 11, and the portion awarded to the city as lot No. 12. The case was submitted for hearing upon the bill, answers, exhibits, and an agreed statement of facts, with exhibits and plats accompanying the same, the right of appeal being expressly reserved, both sides have appealed. The lower court has so clearly stated the facts and the law in its most lucid discussion of the same that we may be pardoned for using largely its opinion, in the affirmance. In 1818 the mayor and city council of Baltimore acquired in fee simple the bed of Liffy street (now West Falls avenue). This street then bordered upon the Falls, and was described as "bordering on with the water of said Falls and extended therefrom westwardly for breadth 40 feet" and southwardly "to the water of the basin." By this same deed the mayor and city council of Baltimore was granted "the exclusive right to charge and receive wharfage, tonnage, or other duties on said street," with the right also to widen said street or any part thereof by extending the same to the east side into the Falls. By accretion and artificial improvements there had been formed considerable land to the east side of Liffy street, and at the south end thereof. Out of such accretions the bed of what is now known as "Block street," to the present drawbridge, was formed, but the rest of the land so formed by accretion, etc., was not used either as street or wharf, but in or about 1856 it was subdivided into 10 lots and leased to various persons.

The lot on the extended north, triangular shape, with its apex to the north, was leased to one under whom the Rowes claim, and so was the ground reserved, so now the Rowes have a conceded title to that portion of the land so made, designated on the plat filed with the agreed statement of facts as Exhibit No. 1 by the letters B, D, E, C. and marked with the number 631. This lot is composed in part of land made between 1818 and 1856, and in part of land so made since 1856. Its northern boundary is 54 feet 6 inches wide, and its southern boundary is 73 feet and 11⁄2 inches, with a frontage of 44 feet 7 inches on West Falls avenue; but it is only a small wedge of this on the western side coming to a point at the northern end that the defendants have paper title under the lease before referred to; the balance being by accretion only. But the Rowes present fee-simple title in this lot is not disputed, or was not when it was taken by the city for dock improvements, and the money allowed therefor awarded them. While this lot, which will be designated hereafter as "lot 631," was being extended to the east, there was being formed by the very same process a triangle of land to the north, resembling in shape the southerly lot, as it was when conveyed in 1856. This last-mentioned triangle was formed in part by accretion, and in part by filling in incident to the erection

of the improvements known as the "Jones Falls retaining wall." This lot, in 1904, which we will hereafter call lot 630A, had a frontage of 174 feet 2 inches on West Falls avenue, a base line of 54 feet 6 inches, running to the retaining wall of the Falls, and a frontage on that retaining wall of 176 feet 6 inches to the beginning. Lot 630A was also taken by the city for dock improvements; but title to it is claimed by both the city and the Rowes, and is the subject of dispute in this case. The damages allowed have been paid into the circuit court of Baltimore as aforesaid. An agreed statement of facts was filed in this case, and it was agreed that the fund should be distributed according to the rights of the parties; and the question for this court to determine is, who was the owner of 630A, at the time of its condemnation?

The learned court below decided that the Rowes were entitled to lot No. 11, in Exhibit No. 5, 21 feet 3 inches on West Falls avenue, and running with an even width to the Falls by adversary possession, and we think that the judge correctly so decided; and, as to the balance of lot 630A, the court also decided that title thereto had never been lost to the city, by adversary possession or otherwise, and we think that also correct. The facts are as to lot No. 11, Exhibit No. 5, it being the southern portion of lot No. 630A, Exhibit No. 1: The Rowes and their predecessors in the title built a frame stable thereon prior to 1882, and substituted for it a brick stable of practically the same size, and for more than 20 years a brick or frame stable was maintained upon this lot No. 11, Exhibit 5. As to the remaining part of 630A, Exhibit No. 1, the Rowes and their predecessors in title used to stow sails, boats, anchors, dredge chains, lumber, etc., for more than 20 years. Up to 1896 no taxes were paid on any part of lot No. 630A. In that year Prendergast, one of the predecessors of the Rowes in title, made return of the real property under the new assessment law. He returns one double brick building 45 feet square, valued at $3,500, and one horse stable 25 feet square, valued at $250, known as 651 and 653 West Falls avenue, stable known as 649 West Falls avenue. To this he annexes the required oath that it was a full and complete list of all real estate owned by him in the state of Maryland, and affixed his signature. Upon that return the city officials made the following assessments: Lot No. 10, Exhibit 5, to P. F. Prendergast, lot 44 feet 6 inches by 73 feet at south end, irregular, at $45. $2,003. Improvements, $1,200. Lot No. 11, P. F. Prendergast, lot 21 feet and 3 inches by 44 feet and 4 inches at the north end, irregular, at $45, $956. Improvements, stable $250. Lot No. 12, city's lot, a triangular lot, 139 feet and 4 inches on the southern line to a point on northern, no assessment. Lot No. 11, upon which a stable had been built and