the road thus "laid out." It extends a distance of 92 rods on the northerly side of the bridge and 278 rods on the southerly side. It is 4 rods in width opposite the plaintiff's premises, and the westerly line of the way is within 4 feet of the northerly end and within 3 feet of the southerly end of the plaintiff's house. In either direction the new location terminated at a previously located county road or highway.

The defendants claim that by force of their proceedings a strip of land 27 feet wide at the southerly end and 32 feet wide at the northerly end of the plaintiff's premises was legally subjected to the public easement, and the street widened to that extent on the westerly side.

It is not in controversy that the location of the sidewalk which the defendants propose to construct is within the limits of the highway thus "widened" and "laid out" in 1861. But the plaintiff contends that these proceedings of the county commissioners were ineffectual and void for several reasons: First, because the petition was too indefinite and vague to confer jurisdiction; second, because a petition for an alteration of an old road gives no authority to lay out a new one; third, because the old road must be deemed a town road, and the duty of altering a town road devolves solely upon the selectmen of towns; and, fourth, because these proceedings of the county commissioners were not closed and recorded until the second term after their report was filed.

How far these objections are open to the plaintiff in this proceeding it is not necessary to consider, for, in the view here taken of the case, a correct decision of it does not depend upon a solution of all or any of the difficulties thus suggested respecting the jurisdiction of the commissioners or the regularity of their proceedings. No objection appears to have been interposed to the validity of these proceedings at the time, no appeal was taken, and no proceedings for certiorari instituted. On the northerly side of the river the owners of abutting lots accepted the damages awarded, amounting in the aggregate to $220. A building standing upon one of these lots within the limits of the new location was removed, the lots upon the casterly side of the road cut down, and the fences moved back onto the lots, to conform to the line of the new location. South of the plaintiff's lot, on the same side of the street, the new location cuts off more or less from 15 lots.

About the year 1871, on the westerly side of the road leading southerly from the river, a sidewalk was built over a ledge by the abutters, who were authorized by the town to appropriate so much of their highway tax as was necessary for that purpose, and this walk has since been maintained and kept in repair by the town. The southern terminus of this sidewalk is about five rods

from the plaintiff's lot, and with this, the projected sidewalk over the plaintiff's lot is designed to be connected. All of the abutters along this sidewalk over the ledge have maintained bank walls, upon which terraces have been made, running back from the street. In 1884 the town made an excavation in the ledge within the limits of the new location, and thus widened the street for the purposes of public travel to the extent of 10 or 15 feet. Thus, after a clear and definite description of the bounds and admeasurements of this way had been recorded in 1861, all adversely interested acquiesced in the location then made for 31 years, and the way was used for public travel without interruption, and maintained and kept in repair by the town the same as before that location, except that actual modifications were made as above stated by removing obstructions and widening the traveled way as the needs of public travel seemed to require.

* *

It is undoubtedly accepted as a general rule that when a public or private easement is sought to be established by adverse use alone its limitations will be determined by what is actually used and enjoyed. But in Sprague v. Waite, 17 Pick. 309, Chief Justice Shaw said: "If it is intended to say in regard to ancient highways that the right of the public is limited to that portion of the highway usually called the 'traveled path,' * it is a misapplication of the rule. Where a tract three or four rods wide, such as is usually laid out as a highway, has been used as such, although twenty or thirty feet only have been used as a traveled path, still this is such a use of the whole as constitutes evidence of the right of the public to use it as a highway, by widening the traveled path or otherwise, as the increased travel and the exigencies of the public may require."

The principle involved in this decision was further developed, and the correct rule formulated, in the recent case of Pillsbury v. Brown, 82 Me. 450, 19 Atl. Rep. 858. It was there held that when a way is commenced under an actual and recorded location clearly defining its width, though the proceedings may not have been in all particulars strictly conformable to law, "the use is presumed to be coextensive with the location, precisely as possession under an invalid deed is presumed to be coextensive with the land purporting to have been conveyed by it." In the opinion, Judge Walton says: "The true rule of law is this: That after the lapse of twenty years, accompanied by an adverse use, a location de facto becomes a location de jure."

It is contended by the plaintiff, however, that Pillsbury v. Brown is clearly distinguishable from the case at bar, because in that case the use of the way orginally commenced and afterwards continued by virtue of the location there in question, while in this case

a way had existed and been used for nearly 20 years before the proceedings of the commissioners in 1861. It is accordingly claimed that the travel upon the way thereafter was but a continuation of the prior use, and in no way founded upon the recorded location of 1861; and that the only easement the public acquired in the plaintiff's land had its origin in the "acceptance" of a way by the town in 1841.

But in the light of the facts already stated it is not perceived that this distinction is a material one in this case. The important structural changes made at different points in the way after the new location were unmistakable evidence of an intention to subject the entire extent of it to public use, as the exigencies of travel might require. It was not necessary that a new form of servitude should at once be imposed on every abutting lot throughout the length of the new location. Using any part of the four rods of the road was in effect using the whole of it. As stated by Peters, C. J., in Heald v. Moore, 79 Me. 274, 9 Atl. Rep. 734, "the widened road became a new road. * The moment the traveler passed over the usual traveled track afterwards, the new road-all of the road-became dedicated to the public use."

For 31 years there had been no occasion to widen the traveled way in front of the plaintiff's house. But in the progressive development of public enterprises and improvements increased facilities for travel and new modes of using the highways and streets have been demanded. In the summer of 1892 an electric railway was duly located on this street past the plaintiff's premises, the westerly line of it being practically identical with the westerly line of the street as then actually wrought and used. Prior to this time, the plaintiff's lot being higher than the street, a bank wall had been maintained in front of it on the line of the street as then used, but in constructing the railway this wall was removed with the plaintiff's consent, and the embankment newly graded and sodded. At the front of the house the lot is from 9 to 11 feet above the grade of the street as now wrought, and slopes down to the bank, the top of which is about 5 feet above the present grade.

The building of the street railway also made it necessary to remove the only sidewalk then existing upon this street except the one over the ledge above described. Thereupon a town meeting was held in the town of Rockport, July 6, 1892, "to see if the town will vote to locate the sidewalk on Commercial street in said Rockport, from Hoboken schoolhouse to the iron bridge, on the westerly side of said street, and instruct the road commissioner to build said walk at once from said schoolhouse to E. H. Bower's house," and it was voted that "the sidewalk should be located and built upon the

right-hand side of Commercial street, from the iron bridge to Hoboken schoolhouse, and instruct the road commissioner to build it at once."

It is not in dispute that the location of the sidewalk described in this vote extends across the lot occupied by the plaintiff on the westerly side of the street, and that it is proposed to construct it wholly within the limits of the street as "widened" and "laid out" in 1861. But the plaintiff still contends that this vote is not sufficient authority for the construction of the sidewalk, because it does not prescribe how much of the street shall be used for that purpose, and because the town has not by any ordinance or by-law set off any portion of the street as a sidewalk.

The location of the proposed sidewalk is within the limits of the highway, and when constructed it will still be a part of the highway. In Hunt v. Rich, 38 Me. 195, the power of a highway surveyor to change the course of travel within the located limits of a highway, by virtue of his official authority alone, was distinctly recognized; and in Cyr v. Dufour, 68 Me. 492, where there had been an alteration of an existing way, the action of the highway surveyor in preparing the newly-located portion for public travel was sustained by the court, although the work was done without the authority of a vote of the town or special directions from the selectmen. The provisions of Rev. St. c. 3, § 59, par. 6, that "towns may make by-laws or ordinances for setting off portions of their streets for sidewalks," etc., and of section 17, c. 18, Rev. St., of similar purport, were designed to confer a power or capacity to do the acts mentioned. They are not mandatory or restrictive. The control which a town has over its streets under the paramount authority of the legislature is not lost or impaired by an omission to pass a general ordinance respecting sidewalks. That control involves duties and responsibilities which, under our statutes, are largely delegated to highway surveyors and road commissioners. These officers, however, are amenable to the instructions of the town. By a vote passed at a legal meeting the inhabitants may de termine the exact location of a sidewalk, and prescribe all the details of its construction. They may intrust the less important features to the discretion of the road commissioner, or may impose upon him the entire responsibility.

In the case at bar the vote of the town locates the sidewalk on the westerly side of the street, and instructs the commissioner to build it at once. It was competent for the town to intrust to the commissioner the execution of the details. The vote is sufficient to authorize the construction of the sidewalk as contemplated.

The proposed action of the road commissioner in building a sidewalk within the limits of the highway with the co-operation of

1. A contract of insurance, like any other, is to be construed in accordance with the intention of the parties, and this is to be ascertained from an examination of the whole instrument.

2. The face of the policy, while insuring the property destroyed to the amount of $700 against loss or damage by fire, expressly limited such insurance to an amount "not exceeding in any case or under any circumstances the sum aforesaid, nor more than two-thirds of the actual destructible value of the buildings at the time the loss may happen."

3. The same provision was contained in one of the conditions annexed to the policy, as also in one of the by-laws of the company, both of which were referred to and became a part of the contract between the parties.

4. Held, that the plaintiff was not entitled to recover more than two-thirds of the actual value of the building destroyed, notwithstanding another condition annexed to the policy provided that, "in settling a loss, the damage is to be paid in full, not exceeding (in any case or under any circumstances) the whole amount insured, and is to be estimated according to the fair value of the property at the time of the fire."

5. The term "damage," as therein used, may, when considered in connection with the whole contract, properly be construed as referring, not to the amount of loss which the plaintiff has sustained, but rather to the recompense or compensation to which the plaintiff is entitled from the company.

(Official.)

Exceptions from supreme judicial court, Lincoln county.

Action on a policy of insurance by Edmund R. Blinn against the Dresden Mutual Fire Insurance Company. Plaintiff had judg ment for a part only of his claim, and brings exceptions. Exceptions overruled.

George B. Sawyer, for plaintiff. W. H. Fogler and J. F. Libby, for defendant.

FOSTER, J. The defendant company insured the plaintiff's house and ell against fire in the sum of $700. A total loss occurred, and this suit was brought, the plaintiff claiming to be entitled to the full amount named. The court instructed the jury that the plaintiff could recover, if at all, only two-thirds of the fair value of the house and ell above the cellar, not exceeding the amount insured, with interest. To this instruction the plaintiff excepted.

The only question presented is whether,

entitled to recover only two-thirds the value of the property destroyed.

The by-laws of the company and conditions annexed to the policy are referred to therein and become a part of the contract. A contract of insurance, like any other, is to be construed in accordance with the intention of the parties, and this is to be ascertained from an examination of the whole instrument.

By article 8 of the by-laws it is provided that "in no case shall the insurance exceed two-thirds the real value of the property insured." The same provision is found in the second condition annexed to the policy, and is in these words: "And no property insured for more than two-thirds of its value." Upon the face of the policy itself, the company, while insuring the property destroyed to the amount of $700 against loss or dam. age by fire, expressly limits such insurance to an amount "not exceeding in any case or under any circumstances the sum aforesaid, nor more than two-thirds of the actual destructible value of the buildings at the time the loss may happen." There is also a further provision that the loss or damage is "to be estimated according to the fair valuation of the property at the time of the fire."

Notwithstanding these express stipulations contained in the body of the policy, the bylaws, and the condition before referred to, the plaintiff contends that he is entitled to recover the full amount insured, and bases his claim principally upon the language of the ninth condition annexed to the policy, which provides that, "in settling a loss, the damage is to be paid in full, not exceeding (in any case or under any circumstances) the whole amount insured, and is to be estimated according to the fair value of the property at the time of the fire.”

While, at first glance, it might appear, with some degree of plausibility, that this language would entitle the plaintiff to the full amount of his claim, yet, upon an examination of the contract as a whole, and giving a fair and reasonable construction to the whole instrument, and to each clause such a construction as will give effect to every other part of the instrument, if possible, we are not inclined to believe that the language of this last condition is in conflict with the other portions of the policy to which we have referred. The body of the policy expressly states that the company shall not be liable for more than two-thirds of the actual destructible value of the buildings at the time the loss may happen. The condition and by-law already mentioned declare that no property shall be insured for more than two-thirds of its value. This language is so plain that but one interpretation can be given to it,-that in no event is the coinpany liable for more than two-thirds the fair cash value of the property at the time

True, the language of the condition relied upon by the plaintiff is that, in "settling a loss, the damage is to be paid in full." But the word "damage," as there used, considering the intention of the parties as disclosed from an examination of the whole instrument, may properly be construed as referring, not to the amount of loss which the plaintiff has sustained, but rather, in its legal acceptation, to the recompense or compensation to which the plaintiff is entitled from the company,-not the amount of loss, but the amount recoverable by reason of the loss. The damage "is to be estimated according to the fair value at the time of the fire," the obvious meaning of which is that the fair cash value of the property is to be ascertained, and the damage-the amount for which the company is liable-is to be estimated therefrom. Nor can this exceed two-thirds the value of the property at the time the loss occurs, and in no event "exceeding the whole amount insured," however great may have been the value of the property destroyed, or the actual loss to the party insured.

Such a construction harmonizes all the dif .ferent parts of the contract, effectuates the intentions of the parties, and is supported by reason as well as authority.

"The design is to prevent frauds and negligence, by making it an object with the owner to guard his property from exposure to fire, and to preserve it from destruction when the calamity comes, and, by this increased security, to induce honest persons, who are men of property, to become members of such companies, and who will be able and willing to contribute in event of loss." Holmes v. Insurance Co., 10 Metc. (Mass.) 211.

In Insurance Co. v. Housinger, 10 Ohio St. 10, the insurers were to pay "all loss or damage," not exceeding the sum insured, the loss or damage to be estimated according to the true and actual value of the property at the time of loss, and to be paid at the rate of two-thirds of its actual cash value. The court held that the two clauses, construed together, meant that the insurers should pay two-thirds of the actual value of the property at the time of the fire, not, however, exceeding the sum insured.

So where a policy insuring the plaintiff's barn against fire contained the following clause: "This company shall in no event be liable beyond the sum insured, nor beyond three-fourths of the actual cash value of the property insured at the time of the loss or damage," the court held that the amount recoverable was three-fourths of the actual cash value at the time of the fire, to be determined by the jury on the evidence. "It is an express contract," say the court, "between the parties, limiting the liability of the company to three-quarters of such actual

396. To the same effect may be cited Huckins v. Insurance Co., 31 N. H. 238; Post v. Insurance Co., 12 Metc. (Mass.) 555. Exceptions overruled.

PETERS, C. J., and WALTON, LIBBEY, and HASKELL, JJ., concurred.

GOVE v. CITY OF BIDDEFORD. (Supreme Judicial Court of Maine. April 24, 1893.)

SPECIFIC PERFORMANCE-REMEDY AT LAW-MUNICIPAL CONTRACT.

1. If municipal authorities make contracts in relation to sewers, or other similar structures, which are binding on the municipal corporations, and the latter neglect or refuse to perform them, redress must be sought, as a general rule, in actions at law.

2. A bill praying for specific performance, in which the aid of a court of equity may be properly sought in such case, must contain a full and clear statement of the circumstances which create the exception, and render the assistance of the court necessary.

(Official.)

Report from supreme judicial court, York county.

Bill in equity by Charles G. Gove against the city of Biddeford for the specific performance of a contract. Heard on report. Bill dismissed.

The bill was filed January 6, 1891, against the city of Biddeford, the mayor, aldermen, and common councilmen. Its material allegations are that "on the 24th day of February, A. D. 1888, said city of Biddeford, by its written agreement under seal, for a good and sufficient consideration, to it moved, agreed with your complainant to maintain the drain or sewer herein described, and to extend said drain or sewer within a reasonable time from said date.

* Your complainant further alleges that said city of Biddeford has neglected and refused, from said 24th day of February, A. D. 1888, to the date of this bill of complaint, to extend said sewer or drain over and across said land, as aforesaid; and your complainant alleges, upon information and belief, that a reasonable time to build and extend said sewer or drain has long since elapsed.

"Your complainant further alleges that, by reason of the nonperformance of said agreement by said city of Biddeford, his property is greatly damaged, and he is prevented from using his land in said Biddeford, over which said city agreed, as aforesaid, to extend said sewer or drain, for building lots, as he otherwise would do."

The bill then alleges that the defendants, personally named, are the mayor, aldermen, and common councilmen, and charges them with the same neglect and refusal which are charged against the defendant city, etc.

Hamilton & Haley, for plaintiff. Charles T. Read, City Sol., for defendants.

WALTON, J. This is a suit in equity. Annexed to the plaintiff's bill is a paper signed by the plaintiff and four other persons, the latter professing to act as a committee of the city of Biddeford, in which, among other things, it is agreed that the city shall extend a sewer through the plaintiff's land; and the plaintiff avers that a reasonable time has elapsed, and that the city has neglected and refused to extend the drain through his land, as it agreed to do, and he prays that the court will decree a specific performance of the agreement.

The city denies that the persons who undertook to act as its committee had authority so to do, and denies that their action is binding upon the city; and it says, further, that the plaintiff has a plain, adequate, and complete remedy by an action at law, and that he has in fact commenced such an action, and that it is now pending in court; and the city demurs to the bill.

We think the demurrer must be sustained. It has been denied that a municipal corporation can bind itself by such a contract. In a recent case in Wisconsin, the city of Hartford had agreed to erect a city hall on a lot of land which the plaintiffs had conveyed to the city for that purpose, and the plaintiffs asked for a decree to compel a specific performance of the agreement; but the court refused to grant it, on the ground that the judgment and discretionary authority of the city council could not be bound by such an agreement; that if such an agreement had been made, still, if, upon further consideration, it was deemed best to build upon another lot, the city had a right so to do, and that it would be highly improper for a court of equity to interfere with the quasi judicial or legislative power of municipal corporations in matters which concern the welfare and convenience of all their citizens; that in such matters municipal corporations must be left at all times free to exercise their powers, untrammeled by the private interests of individuals. Kendall v. Frey, 74 Wis. 26, 42 N. W. Rep. 466.

In a case in Tennessee it was held that a court of equity had no power to compel a city to build a sewer; that the building of a public sewer by a municipal corporation is the exercise of a legislative discretion, which the courts cannot rightfully coerce or control. Horton v. Mayor, etc., 4 Lea, 39. And to the same effect is Mills v. City of Brooklyn, 32 N. Y. 495.

If municipal officers or duly-authorized committees make contracts in relation to sewers, or other similar structures, which are binding upon their towns or cities, and the latter refuse or neglect to perform them, we think redress must, as a general rule, be sought in actions at law; and if an exceptional case arises, in which the aid of a court

of equity may properly be sought, (and we do not mean to say that such a case is impossible,) the bill praying for a specific performance must contain a full and clear statement of the circumstances which create the exception, and render the assistance of the court necessary, or the relief prayed for will not be granted. In fact, this court has recently held that, in all cases in which decrees compelling the specific performance of contracts are asked for, the bills must contain allegations sufficient to show that actions at law will not be plain, adequate, and complete means of redress.

The bill now before us contains no such allegations. It avers that, by reason of the nonperformance of the agreement of the city to extend the sewer, the plaintiff's property is greatly damaged, and that he is prevented from using his land for building lots, as he otherwise would do. But these are only such general allegations as could be made in every case. They show no specific circumstances, such as would be necessary to justify a decree for specific performance. Porter v. Water Co., 84 Me. 195, 24 Atl. Rep. 814. And see Atwood v. Cobb, 16 Pick. 227, 26 Amer. Dec. 661, and note. Bill dismissed, with costs.

PETERS, C. J., and LIBBEY, FOSTER, and HASKELL, JJ., concurred.

EVERETT v. CARLETON et al.
GILMAN v. SAME.

(Supreme Judicial Court of Maine. April 25, 1893.)

EJECTMENT-PLEADINGS -Burden of PROOF-ATTACHMENT LIEN.

1. Where the only plea in a real action is the general issue, the question is, which party shows the better title in himself.

2. Where a party claims title by virtue of an attachment and levy, and the writ contains only the general money count, with no specification of the "nature and amount" of the claim to be proved under it, such attachment is void, and no lien is created thereon.

3. In this case the plaintiffs' predecessors in title had obtained title by deed prior to the levy made under such attachment.

4. The title, therefore, by deed, in the plaintiffs' predecessors, and transmitted to the plaintiffs, is a better title than that of the defendants, derived under the levy made subsequent to the plaintiffs' title by deed.

(Official.)

Report from supreme judicial court, Piscataquis county.

Action by Charles A. Everett against Samuel D. Carleton and others to recover land, and an action for the same purpose by Frank Gilman against the same defendants. The two actions were heard together on report. Judgment for plaintiff in each

case.

C. A. Everett and Davis & Bailey, for plaintiffs. A. M. Robinson and Wilson & Woodard, for defendants.