become favorably known to the public as complainants' trade-name, and that the use of the name "Page of London" by defendant is operative to deceive the public as to the identity of the several stores, and to lead patrons of complainants' business to make purchases from defendant's store, under the belief that that store is one of the stores operated by complainants.

On the application for a preliminary injunction, I summarized my view of the law controlling controversies of this class as follows:

"This court may appropriately protect a complainant against unfair competition when it is found that the defendant is conducting a business in such manner that there exists, upon the part of defendant, express or implied representations that the business conducted by defendant is that of complainant. The reputation and good will which a man acquires are property rights, which are entitled to protection against wrongful invasion; and the public is entitled to protection against fraud. A trade-name appropriately used to designate a particular business of certain individuals will, in consequence, be protected. See 28 American & English Encyclopedia of Law (2d Ed.) pp. 345 to 348. The present inquiry is therefore whether defendant has adopted a trade-name so nearly resembling the trade-name of complainants as to deceive the public and injure complainants. It is manifest that the extent of resemblance of the names used is not the sole criterion. A name quite similar may be so used as not to deceive or injure; a name quite dissimilar may be used in such manner as to deceive and injure."

Preliminary relief was refused, because it did not then appear with sufficient certainty that complainants' rights had been or would be materially invaded to justify this court in granting a preliminary injunction.

by him selected because of any possible resemblance it might bear to the trade-name used by complainants. The common desire of the parties to use the word "London" appears to arise from a belief that its use gives character to the business of a haberdasher, through the suggestion that the store is in some way connected with London, or is especially equipped with London goods. Neither the stores of complainants nor the store of defendant are in any sense London stores; and neither have substantial London connections. Their sole proprietors are residents of Atlantic City. They are, in fact, Atlantic City stores, but handle, in part, goods which have been imported from London. On well-established, equitable principles, it is manifest that to whatever extent complainants may seek to benefit from any suggestion which may be contained in their trade-name, to the effect that their stores are branches of a London store, this court can lend them no assistance.

[2] But, assuming that the name "London Shop," as used by complainants, is wholly free from any criticism of the nature suggested, I am unable to conclude that defendant has entered the field of unfair competition in the use of the name "Page of London." As already stated, there is no resemblance between the two names used by the respective parties, except such as arises from the common use of the word “London”; and the only danger of confusion from the use of the two names appears to me to arise from the possibility of a person observing the word "London" and paying little or no attention to the remaining part of either trade-name.

[3, 4] Complainants have received telephonic messages and mail relating to purchases made at defendant's store, and have received, by express and otherwise, goods which have been purchased at defendant's store, accompanied with requests for their exchange or a return of the purchase price. In one instance, a customer at one of the stores of complainants was sent to another store of complainants for a specific article. and the customer went to defendant's store by mistake. These occurrences disclose some confusion, which, it is urged, is to be at

names. It is quite possible that the confusion referred to has arisen from the use of the word "London" as a part of the tradename of both contending parties; but such confusion is, in my judgment, to be more appropriately attributed to extreme carelessness and inattention upon the part of the customers who have made the specific errors referred to. Complainants have no property right to the exclusive use of the word "London" in connection with their business. They are only entitled to protection against

the part of customers, are clearly inadequate to establish a similitude which does not in fact exist. I am unable to believe that the name "Page of London," used in the manner in which it is being used by defendant, is operative to deceive or mislead any reasonable person by reason of its resemblance to the name "London Shop," or to improperly divert complainants' trade. I will advise an order dismissing the bill.

(117 Md. 306)

CUSHWA et al. v. BURGESS AND COMMISSIONERS OF WILLIAMSPORT.

(Court of Appeals of Maryland. Jan. 11, 1912.)

1. DEDICATION (§ 18*) - PUBLIC SQUARE ACTS CONSTITUTING.

A duly filed and recorded plat of land into lots, streets, and alleys, and a public square described as extending from a designated lot to other designated lots and bounded on the north by a designated street and on the south by the first line of the town, and the end of another designated street, made by commissioners appointed by Acts 1786, c. 11, to survey land to be erected into a town, followed by a recognition thereof by the owner who leased a lot described by number on the plat and as bounded on the public square, amount

ed to a dedication of the public square under the rule that, in order that there may be a dedication, it is not necessary that a municipal corporation be then in existence, and when it comes into existence, whether by incorporation or extending the corporate limits, the right to take advantage of the dedication will vest therein unless the dedication has been previously revoked.

[Ed. Note. For other cases, see Dedication, Cent. Dig. §§ 33-36; Dec. Dig. § 18.*]

2. DEDICATION (§ 45*)-ACCEPTANCE-QUESTION FOR COURT AND JURY.

While the jury must pass on the facts of a dedication or acceptance, the court must determine what constitutes a dedication and an acceptance, and an instruction submitting the questions of dedication and acceptance to the jury is erroneous.

[Ed. Note.-For other cases, see Dedication, Cent. Dig. § 88; Dec. Dig. § 45.*]

3. APPEAL AND ERROR (§ 215*)-QUESTIONS REVIEWABLE-INSTRUCTIONS-OBJECTIONS. Under Code art. 5, § 9, providing that no instruction shall be defective because of any assumption therein of any fact, or because a question of law is submitted unless an objec

CEPTANCE EVIDENCE.

A plat of a town authorized by the Leg

islature was recorded in 1787. The first charter of the town granted in 1823 contained no description of the limits of the town, but the limits and the streets and alleys and a public square were distinctly shown on the plat. There was evidence that the public square was used like a common as early as 1854. A roadway over the square from a street bounding it on one side to a street stopping at the square on another side had existed as long as the oldest witnesses could remember, and had been maintained by the town. The plat and dedicated for any particular purpose. evidence did not show that the square had been Held,

to show an acceptance of the dedication. [Ed. Note. For other cases, see Dedication, Cent. Dig. §§ 73, 74; Dec. Dig. § 37.*] 5. APPEAL AND ERROR (§ 1068*) HARMLESS ERROR-ERRONEOUS INSTRUCTIONS.

Where plaintiff recovered a verdict for one cent, the court on defendant's appeal would not review the instructions on the measure of damages.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]

6. APPEAL AND ERROR (§§ 882, 1033*)—QUESTIONS REVIEWABLE-INVITED ERROR.

A party cannot complain of instructions requested by him nor of modifications therein lessening the burden of proof placed on him in the instructions.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610, 4052-4062; Dec. Dig. §§ 882, 1033.*]

7. DEDICATION (§ 39*) - ABANDONMENT-Es

TOPPEL.

Individuals

the public without specifying the use. A plat of a town dedicated a square_to The town accepted the dedication. maintained buildings on the square, but there doned the square when those under whom the was nothing to show that the town had abanindividuals claimed took possession or that they had any title to the part of the square occupied by the buildings subject to an easement in the public when they went into possession. A canal company, a railroad company, and a bridge company maintained their respective structures on the square, but there was nothing to show that they had not lawfully acquired the right so to do. The individuals, or those under whom they claimed, never had a deed to any part of the square, nor were they induced to expend money by the action of the town. Held, that the town was not estopped from suing the individuals for trespassing on the square.

Cent. Dig. § 77; Dec. Dig. § 39.*] [Ed. Note.-For other cases, see Dedication,

S. ADVERSE POSSESSION (§ 8*)-LIMITATIONS AS AGAINST MUNICIPALITIES.

An unauthorized possession of a square in a town dedicated to the public cannot ripen into a title by prescription.

Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. [Ed. Note. For other cases, see Adverse Dig. § 8.*]

Appeal from Circuit Court, Washington County; N. L. Keedy and Robert R. Hender

The following is a part of the plat:

Chas. D. Wagaman and Wm. J. Witzenbacher, for appellants. A. C. Strite and C. A. Little, for appellees.

BOYD, C. J. The burgess and commissioners of Williamsport sued V. Monroe Cushwa and others for trespassing on what is alleged to be a public square in that town. There are seven bills of exception in the record; the first was waived, the second, third, fourth, fifth, and sixth relate to rulings on the admissibility of evidence, and the seventh presents the rulings on the prayers. The plaintiff offered three prayers, the first and third of which were granted and the second rejected, and the defendants offered five, the third and fourth of which were granted with some modifications and the others were rejected. We will first consider the rulings on the prayers.

[1] By chapter 11 of the Acts of 1786, the Legislature of Maryland appointed five commissioners to survey a quantity of land not exceeding 150 acres contiguous to the mouth of Conococheague creek which empties into the Potomac river, who were directed to lay out the land into lots, streets, lanes, and alleys to be erected into a town to be called and known by the name of Williamsport, and to return a correct and accurate plat and

and alleys thereof. On May 18, 1787, the commissioners filed a plat with explanatory notes of 82 acres of land so laid out by them; there being 241 lots and a number of streets and alleys.

There are four streets which run east and west and are 80 feet wide, three which run north and south and are 66 feet wide, and one called Commerce street which runs "S. 30 degrees east, or nearly so," and is 78 feet wide. There is also mentioned in the explanatory notes what is called Water street, and the notes state that it "runs N. and S. or nearly so," and is 87 feet and 9 inches wide. That is not named on the plat, but there is a space between lots 223 and 224 running from the north boundary of the town to Potomac street which was probably intended as Water street. There is also a space on the plat which is 321 feet and 9 inches from east to west, and about 198 feet from north to south. Lot No. 241 is on the west side of that space and fronts on Potomac street, and lots Nos. 2, 3, and 4 front on the space on the east side thereof. The explanatory notes thus speak of it: "From lot No. 241 to lots Nos. 2, 3 and 4 is 321 ft. & 9 inches, laid off for a public square, bounded by Potomac St. on the north and on the south by the first line of the town and the end of Commerce St."

the definition itself." In Kennedy v. Cumberland, 65 Md. 514, 9 Atl. 234, 57 Am. Rep. 346, Judge Miller said: "The court below in its rulings upon the prayers.instructed the jury what facts it was necessary for them to find in order to entitle the plaintiffs to recover. In other words, the court treated the question of acceptance of the street by the city as a question of law, and in this we find no error. This point has not hitherto been directly presented to this court, but the ruling is sustained by our decisions in numerous analogous cases which it is unnecessary to cite." Then, after referring to Folsom v. Town of Underhill, 36 Vt. 580, where it was held that if the facts were undisputed the acceptance vel non of a street by a city is a question of law, in speaking of cases where the facts are disputed, the opinion went on to say: "The court in such cases leaves the finding of the facts to the jury with appropriate instructions as to their legal effect according as the jury may find them to be. And there is good reason why this rule should be applied in cases like the present, for, if the question of acceptance or adoption vel non should be left broadly to the finding of the jury, it would follow that the liability of a county or municipality would be left in uncertainty, depending upon the varying verdicts of different juries upon the same state of facts, instead of being, as it should be, settled and fixed by the law as declared by the courts." See, also, 13 Cyc. 485, 486; 9 Am. & Eng. . Ency. of Law, 52, 53.

But, while that is the law of this state, the appellant cannot now complain of the error in the prayer because section 9 of article 5 of the Code says: "No instruction actually given shall be deemed to be defective by reason of any assumption therein of any fact by the said court, or because of a question of law having been thereby submitted to the jury, unless it appears from the record that an objection thereto for such defect was taken at the trial." No objection does appear from the record to have been made because a question of law was submitted to the jury, and hence that error cannot be corrected by us, although, owing to the conclusion we have reached as to the fact of dedication and acceptance, it is perhaps immaterial. There was, however, a special exception to that prayer on the ground that there was no evidence "legally sufficient to show that there was any acceptance of the offer to dedicate the square as laid out on behalf of the public," and the defendants' first and second prayers asked the court to say that there was no evidence legally sufficient to entitle the plaintiff to recover; the first referring to the pleadings, and the second not doing so. It becomes necessary, therefore, for us to determine whether there was legally sufficient evidence to

[4] We have reached the conclusion that that must be determined in the affirmative. It is true that the evidence tends to show that very little use has been made by the public of this square outside of the roadway over it, but, as we have seen, the plat of the town authorized by the Legislature was put on record in 1787, and the first charter of the town was granted in 1823 when that plat was.on record. There is no description of the limits of the town in the act of 1823, but those limits and the streets, alleys, and this public square were distinctly shown on the .plat. In Kennedy v. Cumberland, 65 Md. 522, 9 Atl. 236, 57 Am. Rep. 346, in speaking of an amendment to the charter as affecting Shriver's addition to Cumberland, the court said: "If the amended charter had for the first time, brought the land so platted within the city limits, and it had been accepted by the city, a different question would have been presented. In that case there would have been some ground for contending that the acceptance of the amended charter operated as an acceptance or adoption of the streets so laid out and dedicated to the public by the owners." It would seem that when the Legislature had previously authorized a plat .to be made for a town, and with that plat on record had incorporated the town, there would be still stronger ground for such contention, and, in the absence of some positive act on the part of the municipality declining to accept the streets, alleys, and public square laid out on the plat and dedicated to the public (if, indeed, it could do so without the consent of the Legislature), it might well be presumed that it had accepted them without any further facts being shown.

But the testimony of some of the oldest residents of Williamsport shows acts, the effect of which it would be difficult to escape from. Mr. Melown, who was 87 years of age, testified that he had known this square all his life, and described its bounds in a way very similar to that given on the plat. He said that "it was used like a commons in 1854; that the boatmen would run their boats in the basin and stand their mules there; they would run into port, unhook from the boats, put their troughs on the square, and tied their horses there." He also said: "There was much traffic by wagons to Williamsport and to the warehouse; that the wagons would generally come down Potomac street and return by Commerce street to Salsbury so as to avoid the steep hill on Potomac, and do it yet; that there was a great trade with wagons before the railroad came; that the traffic on Potomac street and Commerce street was about equally divided; that it passed from Potomac street along the roadway on the square into Commerce street; that the corporation maintained this roadway and threw mud and slate upon it."