FOSTER, J. Real actions, the defendants being the same in both. Each plaintiff claims title to one undivided half part in common of certain wild land in the town of Medford, in the county of Piscataquis, estimated at about 1,000 acres.

The defendants plead the general issue. The real question, then, is, which party shows the better title in himself.

In order to understand correctly the position of the parties, it becomes necessary to state the claims of title by which the plaintiffs, respectively, assert their rights of recovery against the defendants.

Samuel H. Blake, of Bangor, who owned the lands embraced in these suits, conveyed the same to Caleb Wentworth by warranty deed dated July 9, 1853, recorded January 6, 1854. Wentworth, being in failing circumstances, and attempting to shield his property from creditors, executed a warranty deed of the property to Amasa Stetson, dated January 4, 1854, and recorded January 6, 1854. Amasa Stetson died in 1859, leaving a will, by which, after sundry pecuniary legacies to relatives, he bequeathed and devised the balance of his estate, both real and personal, to his wife, Abigail J. Stetson, and appointed her and Robert Fernald executors of his last will and testament. These executors, by quitclaim deed dated October 14, 1886, recorded November 3, 1886, released all the title or interest which Amasa Stetson had in the lands at the time of his decease to C. A. Everett, the plaintiff in the first suit.

The deed from Wentworth to Stetson, as appears from the evidence, was never delivered. It was made and sent to the register of deeds to be recorded, by the grantor, without the knowledge of the grantee. The grantee, when informed of the transaction, repudiated it, and "said he would have nothing to do with it.".

Nor did he afterwards

receive it from the registry, or in any manner ratify the transaction.

But, in the view we have taken of the case, this does not become material. The plaintiff, not only in the first suit, but also in the second, claims title, not through Amasa Stetson or his legal representatives alone, but through a different source.

Samuel H. Blake having conveyed to Caleb Wentworth, as we have before stated, by deed dated July 9, 1853, recorded January 6, 1854, John D. Prescott, a creditor of Wentworth, brought suit against him, and attached his real estate, the attachment being made January 5, 1854,-one day before the record of Wentworth's deed to Stetson. Judgment was recovered June 14, 1855, and an extent made upon these lands July 12, 1855, the whole being set off to satisfy the judgment and costs of levy. August 12, 1856, the judgment creditor, John D. Prescott, conveyed the premises by warranty deed to Henry A. and James H. Burkett, the deed being recorded November 12,

1856. The Burketts, by warranty deed dated October 19, 1857, recorded October 24, 1857, conveyed the premises in question in both suits to Robert Thompson. Thompson died, and his heirs thereafter, on the 24th day of December, 1878, joined in a quitclaim deed to Enoch P. Thompson, another heir, of all their "right, title, and interest in and to any and all real estate and lands in Medford, county of Piscataquis," which they inherited from Robert Thompson. This deed was recorded July 2, 1880, and on the same day Enoch P. Thompson conveyed to C. A. Everett, plaintiff in the first suit, all his interest in the real estate which he acquired by inheritance from his father, Robert Thompson, and by deed from the other heirs. January 11, 1887, Everett, by warranty deed recorded the same day, conveyed to Frank Gilman, the plaintiff in the second suit, one-half part, in common and undivided, of the lands embraced in these two suits.

Such is the plaintiffs' claim of title in these suits.

Whatever claim the defendants have, by way of record title, is derived through and under the Prescott levy, and conveyance to the Burketts, and may be thus stated: James H. Burkett was owing Phillip Brown, and Brown attached the real estate of James H. Burkett on the 8th day of November, 1856, (understood to be one-half, in common and undivided, of the lands in question,) recovered judgment October 26, 1857, and on the 19th day of November, 1857, extended his execution upon Burkett's undivided half of the real estate. Afterwards, on the 29th day of November, 1858, Phillip Brown, the judgment creditor, conveyed to these defendants by warranty deed, recorded December 2, 1858, the land set off on execution against James H. Burkett.

This attachment of Brown against Burkett was 11 months prior to the deed from the Burketts to Robert Thompson, and had it been valid, and followed by due proceedings, and the levy been valid, the plaintiff's might have met with difficulty in maintaining their actions, as to any title by way of the Stetson deed.

But the attachment upon the writ of Phillip Brown against James H. Burkett was not valid. The writ upon which the attachment was made, at the time of service, contained a general money count, only, without any specification of "the nature and amount" of the claim to be proved under it. An attachment of real estate on such a writ is void, and creates no lien thereon. Rev. St. c. 81, § 59; Osgood v. Holyoke, 48 Me. 410; Neally v. Judkins, Id. 566; Hanson v. Dow, 51 Me. 165; Drew v. Bank, 55 Me. 450; Briggs v. Hodgdon, 78 Me. 514, 7 Atl. Rep. 387. The levy was not made until after the deed from the Burketts to Thompson had been executed and recorded. Conse quently, at the time the levy was made, the

judgment debtor had no real estate upon which there was any lien by way of attachment, and that which was levied on had been conveyed away to others, through whom the plaintiffs derive their title.

The deed from the two Burketts to Thompson, of October 19, 1857, conveyed all that was set off to Prescott by his levy against Wentworth. That embraced all the land in controversy in both these suits. That passed by the subsequent conveyances to Everett, who conveyed one-half part, in common and undivided, to Gilman.

The plaintiffs, therefore, have the better title in themselves, as against these defendants, and the entry must be, in each suit, Judgment for demandants.

CONDEMNATION PROCEEDINGS-DAMAGES TO ABUTTING OWNER-EVIDENCE.

1. Upon the question of damages for taking land in locating and establishing the side lines of a street, it appeared that the street had existed upward of 40 years, and the plaintiff's store had been erected over 30 years fronting on the street. The street was not widened, and the line established was close to the front of the building, which was allowed to remain the same as before. There was a wall three feet in front of and parallel with the building, with cross walls extending under flagstones to the foundations of the building. The flagstones, making a sidewalk over the cross walls, extended four feet into the street. There was no obstruction to the use of the street. Held, that the plaintiff had a right to erect the walls, and use them with the subterraneous spaces between so long as he keeps them safely and securely covered.

2. Also, that no new burden was placed on his land in thus locating and establishing the side line of the street, or any old burden enlarged, and that he is not entitled to damage. (Official.)

Proceeding by the city of Rockland to locate and establish the bounds of Main street in said city. Samuel Pillsbury, an abutting owner, appeals from the award of damages made him. Heard on an agreed statement of facts. Appeal dismissed.

The agreed statement of facts is as follows:

"Appeal from the award and proceedings of the city of Rockland establishing the bounds in Main street in said Rockland, in 1890.

"Prior to said proceedings in 1890, there is no record of the laying out or establishing of said street; nor were there any records or monuments by which the bounds of said street could be made certain.

"Said street had been used by the public as a street for more than forty years prior to 1890.

"At the time when said proceedings were

had, Samuel Pillsbury was the owner of a lot of land on the westerly side of said Main street, on which he had erected a brick building or block three stories in height, which had remained in the said location for more than thirty years, and now occupies the same position.

"When said Pillsbury built said block, he excavated for a basement, and constructed the front basement wall along what he then deemed to be the western line of said street, though more into or towards the street, as then used, than the adjoining (Farnsworth) building.

*

**

"The lower story of said block is divided into separate stores or rooms by brick walls; so also is the basement.

"The face of the lower story of said building, fronting on Main street, consists of an iron frame resting on granite pillars or posts for support. Said iron front and pillars or supports are back from the front basement wall about three feet, and cross-section walls of brick are built from said granite pillars to said basement wall.

"The iron front of said building is and always has been about fourteen inches and one-half back from the front of the adjoining building of Farnsworth.

*

"Said building is erected above the street, so that there are two steps, each from six to eight inches in height, from the walk to the entrance to the stores on the first floor.

"Immediately after the erection of said building said Pillsbury caused the space between said stone pillars and said basement wall, and also said basement wall and a space, more than four feet outside of the same, to be covered with cut granite flagstones, fitted so as to surround the openings,

* and leaving said openings for air, light, and steps to the basements aforesaid. "Said Pillsbury also built and has ever since maintained doors and windows between said granite pillars in said basement opposite said openings. At the same time said Pillsbury fitted plank coverings or shutters to said openings, which have ever since covered said openings, except as they have been removed by the tenants and occupants of said basements, as occasion might require, for purposes connected with their occupancy.

"The basements aforesaid have never been occupied separately from the stores in the lower story of the building.

"The space covered by said flagstones and shutters has always been used by the public as a sidewalk, except when such use has been interrupted by the removal of said shutters as before stated, though said Pills. bury has always maintained and repaired at his own expense, when needed, all of the walk in front of said building, until the laying out of the street aforesaid; and the granite flagstones aforesaid are now taken and used by said city for a sidewalk in the same position as formerly.

"The westerly line of said street, as estab

lished by said proceedings, runs close to the iron posts of said building. *

*

"The case is submitted to the law court upon the foregoing statement, upon which the court is to determine whether the complainant is entitled to damages. If entitled, what was, before and at the time of said proceedings, the western line of the street, under the provisions of section 95, c. 18, Rev. St.?-the damages to be assessed at nisi prius. If not so entitled, the complaint is to be dismissed."

The plaintiff claimed that the basement wall is to be deemed the true bound of the street, under Rev. St. c. 18, § 95, which provides that "when buildings or fences have existed more than twenty years upon any way, street or lane or land appropriated to public use, the bounds of which cannot be made certain by records or monuments, such buildings or fences shall be deemed the true bounds thereof."

Mortland & Johnson, for plaintiff. W. H. Fogler, City Sol., for defendant.

WALTON, J. The question is whether the proceedings of the city of Rockland in locating and establishing the side lines of Main street in front of Pillsbury block were such as to entitle the owner to damage.

We think not. The proceedings were in 1890. The street had then existed for over 40 years, and the block had been erected for over 30 years. Presumptively, the front of the block was the line of the street; and it is still the line of the street. At that point the street was not widened. It was allowed to remain precisely as it had remained for over 30 years. True, there was a wall about three feet in front of the block, with cross walls extending from it to the foundations of the building. But these walls were wholly beneath the surface of the sidewalk, and were covered with granite flagstones, and the sidewalk extended from the front of the building over these subterraneous walls and into the street four feet. As these subterraneous walls in no way obstructed the use of the street, the owner of the building had a right to put them there, and he will have the right to continue them there; and he will have the right to keep the spaces between the walls open and unobstructed so long as he keeps them safely and securely covered. Such areas are very common, and they are not unlawful, and the city authorities will have no right to fill them up.

We are unable to discover that any new burden was placed upon the complainant's land by the action of the city authorities in 1890, or that any old burden was enlarged, or that any possible inconvenience to him was thereby created, and our conclusion is that he is not entitled to damage. Appeal dismissed.

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

HIGHWAYS-DEDICATION-EVIDENCE-CONDEMNA

TION PROCEEDINGS

DAMAGES TO ABUTTING OWNERS-DEPOSITION-SUFFICIENCY OF NOTICE. 1. When the owner of land divides it into lots, designated by numbers, upon certain streets or ways, represented upon a plan of the lots of the land, made at the time, and conveys to third parties lots, by number, bounded by such streets so represented upon the plan, referring to the plan in the description of the lots as a part of such description, the land so designated as streets or ways becomes dedicated to the use of the purchasers and the public; and such dedication is irrevocable, and binding upon the proprietor of the land and his grantees, until it is proved by the subsequent acts of the owners that such dedication is extinguished.

2. The rule in this state is that, where a plan is referred to as a part of the description of a lot of land, it becomes binding upon the parties as to the boundaries of the land, and what there is upon the plan affecting the loca tion of the premises conveyed, and is admissible against the grantee, and any person taking the title under him, without proof of its record.

3. The plaintiff, a grantee under a title as above stated, claimed damages for land taken by the defendant for the extension of certain streets delineated upon said plan. At the points involved the streets had not been opened to the public when the grantee received his deed. Held, that the plaintiff is not entitled to damages for the land so taken.

4. Notice to take a deposition in perpetuam, under Rev. St. c. 107, § 22, is not sufficient, if served on the husband, when the wife, being the owner of the subject or premises to which the testimony relates, is not named in the statement or duly notified, although the husband appeared at the time of taking the deposition, and put interrogatories to the deponent. (Official.)

Report from supreme judicial court, Penobscot county.

Proceeding by the city of Bangor to extend Date and Somerset streets in said city. Mercy A. H. Danforth, an abutting owner, appeals from the award of damages made her. Heard on report. Appeal dismissed. A. W. Paine, for plaintiff. H. L. Mitchell, City Sol., for defendant.

LIBBEY, J. An appeal from the action of the city council of Bangor in awarding damage to the plaintiff for land which she claims was owned by her, taken for the extension of Date and Somerset streets on the 1st day of October, 1889. They appraised the damage to the plaintiff for the land taken at the nominal sum of one dollar, on the ground, as the city claims, that the land taken had been dedicated to the public use by Philip Coombs, who was the owner, in 1835. And the contention be tween the parties is whether there was such dedication to the public use as authorized the city to open the streets as it did in 1889, without the payment of the actual damage for the land taken. It is admitted by the counsel for the plaintiff that, if there was such dedication by the owner in 1835 which

tiff's claim for damages is not maintainable. On the 26th of March, 1835, Philip Coombs and three others, who had acquired some interest in the premises, conveyed a portion of the lands which they owned in the immediate vicinity to the city of Bangor, by the following description: "In consideration of one dollar to us paid, and also in consideration and upon condition that the parcel or tract of land herein intended to be conveyed to the corporation of the city of Bangor shall be inclosed as a common, and be kept by said city, unintersected by roads, for the proper use of the public forever, have granted, bargained, sold, released, and conveyed

unto the said corpora

tion of the city of Bangor, and their successors, the piece of land in the several portions held by us, respectively, called the 'City Common,' according to a plan of the premises drawn by Charles G. Bryant, marked 'A,' to be recorded, and which is embraced within the following boundaries, viz.: Cumberland street on the north, Somerset street on the south, Date street on the east, and Lime street on the west."

The validity of this conveyance for the use named was before this court in Bangor v. Warren, reported in 34 Me. 324, in which the court held that the conveyance was valid, and had been duly accepted by the city. Henry Warren, in that litigation, claimed to have acquired the title to the whole of the common and the premises surrounding it by virtue of a levy against Philip Coombs; and upon that claim a contention between the parties arose, and was determined. It is claimed that the plan by Bryant, referred to in the deed, not only embraces the land conveyed to the city, but a large portion of lands surrounding the common, in different directions, and that upon that plan streets and lanes for public use were marked, and the lands divided into lots bounded upon one side by the streets and designated by numbers.

The first question discussed arises upon the admissibility of the deposition of William Coombs, taken in perpetuam. With that deposition what is alleged to be a copy of the Bryant plan is produced. It is claimed by the counsel for the plaintiff that the deposition is not admissible, because no notice was given to Mrs. Danforth of the time and place of taking it, and the purpose for which it was to be taken. The notice was served upon Enoch C. Danforth, plaintiff's husband, and he appeared before the magistrate when the deposition was taken, and participated in taking tt. It is claimed on the part of the city at in equity the land was the property of the husband, and that he was the party in interest. It appears in the evidence, and is not controverted, that he bought the land, and paid a part of the consideration, and had the title conveyed to his wife. But we think that

not interested in the taking of the deposition, under the statute. The presumption is, in the absence of proof to the contrary, that the husband gave to the wife the land at the time it was purchased, and she certainly has the legal right to claim damages from the city for taking it. We are of opinion that the deposition is not admissible against her, because she was not notified.

That excludes from this case the evidence offered by the city to prove the plan and its contents. But we think there is enough in the case to prove the contents of the plan, independent of this deposition. Henry Warren took the title of Coombs by levy July 4, 1842. The attachment on the original writ was made October 12, 1837. Asa Warren, the plaintiff's grantor, took his title from Henry Warren December 11, 1849. The plaintiff took her title from Asa Warren December 7, 1885. Asa Warren was called by her counsel as a witness. He is a brother of Henry Warren, now deceased; and on crossexamination, with reference to the original plan, he testified as follows: "The original plan was suppressed. My brother had what was represented to be the plan. My brother could not get the original C. G. Bryant plan. He says the reason it was suppressed is because it was false, and he took the ground that it was suppressed; but he got somebody to make a copy of it, and I have that copy now. The copy will not vary much from the plan we have here, [the one testified to by Coombs in his deposition.] All the time I owned the land, and when I deeded the lots, I recognized Jefferson lane as dedicated, and I intended that every lot owner should have a chance to go around them, if he wished. I knew there was this claim, and I gave a release deed of whatever there was."

It is admitted "that after the deed of the city common was made to the city, the several lots around the common were conveyed by the proprietors to the different purchasers by description of number according to the plan of the city common by C. G. Bryant, not, however, including the locus, and that, as these lots have afterwards been sold, the same description has been uniformly adopted, down to the present time."

The plaintiff's lot, as shown by the plan, was bounded on one side by Date street, and on another by Somerset street. The description in her deed from Asa Warren is as follows:

"Beginning at the east side of Date street, at the dividing line of lots Nos. 1 and 2, Jefferson row, as laid down on a plan of the city common made by C. G. Bryant; thence running easterly on said dividing line one hundred feet, through to the east line of Jefferson lane; thence southerly on the east line of said lane straight to Wingate's land; thence westerly on said Wingate land and Bowler's land to Francis Casey's southeast

corner; thence northerly on said Casey's land to Somerset street; thence easterly on said Somerset street to the easterly line of Date street; thence northerly on the easterly line of Date street to place of beginning,-together with all my right, title, and interest in Date and Somerset street adjoining said premises." We think the testimony of Asa Warren sufficiently proves the existence of the Bryant plan, and that the copy produced at the trial is, in substance, a copy of that plan; and the existence of that plan is not only recognized by the conveyances of the surrounding lots to others, but also by the plaintiff's deed. Referring to the plan, it appears that Date street, referred to as one of the boundaries of the city common, is extended north to the northern limit of the land of the proprietors, and south to the southern limit, and that Somerset street is extended east and west to the east and west lines of the proprietors' lands, and that the lands along said streets are divided into lots designated by numbers, and bounded on one side by the street; bringing the case, so far as dedication is involved, directly within the authority of Stetson v. City of Bangor, 60 Me. 313; Bartlett v. Bangor, 67 Me. 460; and Stetson v. Bangor, 73 Me. 357.

It is contended, however, by the counsel for the plaintiff, that she is not bound by what appears upon the Bryant plan, because it was not recorded; and authorities are cited from some of the states holding that a plan referred to in a deed does not become a part of the deed, by which subsequent purchasers are bound, unless it is spread upon the record. No case is found in this state holding such to be the rule, and the practice has been uniformly, we think, the other way. Where the plan is referred to in a deed, our doctrine is that as to the boundaries of the land, and what there is upon the plan affecting the location of the premises conveyed, it is sufficient to prove the plan and its contents; and especially should this rule be applied to the plaintiff's deed, because the plan is referred to in a description of her land, and the existence of the streets and Jefferson lane upon it are made boundaries of her land. She is chargeable with full notice of the contents of the plan. So we think it clear that the land upon the plan embraced in Date street and Somerset street is dedicated to the use of the purchasers of the lots upon the plan, and the public, although not opened for public use as streets by the city at the time, and is subject to be taken by the city, and opened as streets and ways, at any time, without the payment to those claiming the land as embraced in the deeds more than nominal damages, if any at all. Stetson v. City of Bangor, Bartlett v. Bangor, and Stetson v. Bangor, supra.

If the plaintiff has entered upon the land embraced in those streets upon the Bryant

plan in erecting her buildings, it was her own folly or mistake, and she cannot require the city to pay her the expense that she may have to incur for their removal. The doctrine is too well established in this state that a dedication of the land, in a case like this, is irrevocable and binding upon the owners of the land at the time, and their subsequent grantees, unless it is proved that by the subsequent acts of the parties interested the effect of the dedication is extinguished.

There is nothing in the proof in this case which authorizes the court to find that the rights acquired by the dedication have been in any way impaired by adverse use of the land embraced in the streets by the plaintiff or her grantor.

Appeal dismissed.

PETERS, C. J., and EMERY, FOSTER, HASKELL, and WHITEHOUSE, JJ., concurred.

HURLEY V. ROBINSON, Judge, et al. Appeal of HURLEY. (Supreme Judicial Court of Maine. April 27, 1893.)

ALTERING DECREE OF PROBATE COURT-MANDAMUS-ADOPTION.

1. An application for the alteration of a record, which, if granted, would be futile, will be denied.

2. The record of the probate court showed that the judge made two decrees, substantially alike, granting leave to adopt a child,-one, in the form of a letter of adoption, addressed to the adopting parents, and the other attached to the petition, in the form of a memorandum. Upon the application of a third party, another child of the adopters, asking to have the record altered so that it would show the decree was made out of court, at a place other than where the court sits, the judge of probate refused to order the record to be changed, and the applicant appealed, and later applied to this court for a writ of mandamus, alleging in the petition for a writ that but one decree was signed by the judge of probate, and asking to have only one of the decrees amended. Held to be a fatal defect in the application, for if the prayer of the application should be granted, and the alteration asked for should be made, it would affect only one of the decrees, and the other, remaining intact, would be sufficient to sustain the legality of the adoption. (Official.)

Appeal from supreme judicial court, Knox county.

Petition by Frances E. Hurley, in the probate court of Knox county, for the alteration of a record of that court. The petition was dismissed, and petitioner appealed. Subsequently. the same petitioner filed a petition for mandamus to Reuel Robinson, judge of probate, and Edwin Sprague, register, to compel the alteration of the same record. The two cases were heard together on report. Decree appealed from affirmed, and petition for mandamus dismissed.