climbing trees in public streets came in contact with improperly insulated wires strung through the branches.

In Simonton v. Light & Power Co., 28 Tex. | 924, the defendant companies were held liaCiv. App. 374, 67 S. W. 530, a child seven ble for injuries sustained by boys who in years of age was injured by falling from the defendant's pole which it was climbing by means of spikes arranged like those in the present case. It was contended that the provision thus made for ascending the pole constituted an attraction to children, but the court rejected this theory and sustained a demurrer to the declaration.

The averments of the declaration do not, in our opinion, present a state of facts which, upon any just theory, can be held to impose liability upon the defendants, and we concur in the action of the trial court in sustaining the demurrer.

Judgment affirmed, with costs.

(123 Md. 6)

In all of the cases we have examined on this subject in which the asserted liability was enforced the persons involved in the accidents were not trespassers or mere licensees on the defendant's property, but were in There is a very broad difference between adjacent positions where they could rightthe case now under consideration, where the fully be, and where they might be reasonably injury occurred at a place intended for ex- expected to come in close proximity to the clusive possession by those maintaining the source of danger. Where, however, as in the fixtures alleged to be unsafe, and the class present case, those engaged in the distribuof cases in which the appliances causing the tion of electric current have placed their injury were so placed as to be dangerous to wires above and beyond the sphere of peril persons who might be reasonably expected to to the public and to the occupants of neighcome in close proximity to them while occu- boring premises, it would be subjecting pying adjacent premises or positions. The them to an unduly strict responsibility to case of Ziehm v. United Electric L. & P. Co., require them to provide against the possibili104 Md. 48, 64 Atl. 61, illustrates this distinc-ity that their own appliances might be utiliztion. In that case several wires of the lighted by strangers as a means of access to the and power company were strung quite near conditions which prove to be injurious. a telephone pole, and while a lineman of the telephone company was descending the pole his hand struck against one of the former company's wires, which was defectively insulated at that point, and he was injured by the current. In his suit against the light and power company it was held that the plaintiff was in the exercise of a duty that required him to go upon the pole, and that it was incumbent upon the defendants to have its lines so placed and insulated as to enable him to perform his work in safety. The same rule was applied to analogous facts in Hipple v. Edison Electric Illuminating Co., 240 Pa. 91, 87 Atl. 297. In Brown v. Edison Electric Co., 90 Md. 400, 45 Atl. 182, 46 L. R. A. 745, 78 Am. St. Rep. 442, a boy who was engagNonuser of an easement for more than 20 ed in cleaning a rain spout at the edge of a years does not afford conclusive evidence of narrow roof over the front window of a abandonment, but nonuser for the prescriptive store was injured as the result of accidental-period with an adverse use of the servient esly touching with his head an uninsulated tate inconsistent with the easement extinguishpart of an electric light wire suspended about [Ed. Note. For other cases, see Easements, seven inches from the roof. The company Cent. Dig. 88 77-79; Dec. Dig. § 30.*) owning the wire was sued on account of the 2. EASEMENTS (§ 24*)-CREATION, EXISTENCE, accident, and the court said that the nature of the business conducted by the defendant "imposed upon it a legal duty toward every person who, in the exercise of a lawful occupation in a place where he had a legal right to be, was liable to come in contact with the wires charged with this invisible but deadly power." It was held that, as the boy was engaged in a service which he had a right to perform, at a place where he was entitled to be when he was injured, and the evidence did not prove contributory negligence on his part, the case was a proper one for submission to the jury. In Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54, 77 Atl. 1108, and Temple v. McComb City Elec. L. & P. Co., 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas.

BAUGH v. ARNOLD. (No. 3.) (Court of Appeals of Maryland. March 18, 1914. On Motion for Reargument, May 14, 1914.)

1. EASEMENTS (§ 30*)-CREATION, EXISTENCE, AND TERMINATION-ABANDONMENT OR NONUSER.

es it.

AND TERMINATION-TRANSFER OF RIGHT. No special reference in a deed to an easein order to convey such easement. ment appurtenant to the land was necessary

[Ed. Note.-For other cases, see Easements, Cent. Dig. 88 64-69; Dec. Dig. § 24.*]

3. EASEMENTS (§ 32*)-CREATION, EXISTENCE, AND TERMINATION-ADVERSE POSSESSION.

The plowing up of a right of way and the sowing and cultivation of crops thereon year the owner of such easement, and such obstrucafter year was inconsistent with the rights of tion, continuing for 35 years, extinguished the right of way.

[Ed. Note. For other cases, see Easements, Cent. Dig. § 84; Dec. Dig. § 32.*]

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr., and Jas. R. Brashears, Judges.

"To be officially reported."

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Action by Alton R. Arnold against Edwin | fused, and, the evidence being submitted to P. Baugh, Jr. From a judgment for plaintiff, defendant appeals. Reversed.

upon the lands of the defendant the right of way mentioned and described in the grant from Arnold to Sheckells dated November 19,

of the servient estate inconsistent with the existence of the easement, will extinguish it. Washburn on Easements, §§ 551, 552; 14 Cyc. 1195; 10 A. & E. Ency. of Law, 436; Wood-1853, as "the original road" through the farm ruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021; Matter of City of New York, 73 App. Div. 394, 77 N. Y. Supp. 31; Smyles v. Hastings, 22 N. Y. 224; Smith v. Langewald, 140 Mass. 205, 4 N. E. 571; Spackman v. Steidel, 88 Pa. 453; Horner v. Stillwell, 35 N. J. Law, 307; Bently v. Root, 19 R. I. 205, 32 Atl. 918; McKinney v. Lanning, 139 Ind. 170, 38 N. E. 601; Lathrop v. Elsner, 93 Mich. 599, 53 N. W. 791; Louisville v. Quinn, 94 Ky. 310, 22 S. W. 221.

at that time owned by Elijah R. Arnold, the grantor, and, at the request of the defendant, located the said right of way upon a plat, which the reporter is requested to insert in his report of this case. The original road as located by him is designated on said plat as A, B, C, D, E. The point A is on the county road at or near the present entrance of the defendant's property, and is the place at which the obstruction complained of is located, and the point E is on the bank above Chaney's creek. The line from D to F upon the plat represents a private road leading from D to the Severn river and over which the plaintiff claims no right of way, although he and others have frequently used it, by the permission of the prior owners of the land now owned by the defendant. The bank of Chaney's creek at point E is variously estimated by the witnesses to be from 30 to 60 feet.

The right of way in this case is claimed by the plaintiff under a grant dated the 19th day of November, 1853, from one Elijah R. Arnold, the then owner of the servient estate, to one Levi Sheckells, the owner at such time of the dominant estate, as claimed by the plaintiff, whereby the grantor therein conveyed unto the grantee "his heirs and assigns, the right and privilege of the original road through his (the grantor's) farm lying in Anne Arundel county that leads to Chaney's creek." [3] The evidence of the plaintiff discloses The grant by which Sheckells became the that about 35 or 40 years ago Sheckells used owner of the dominant estate, if there was a the road or way from A to E in hauling dominant estate, is not in evidence, but by a wood to Chaney's creek; that, upon reaching deed executed on the 23d day of October, the point E, they would throw the wood down 1877, by Ann M. Insley and Caroline E. the bank into the water below. The plainSherbert, the only children and heirs at law tiff states that he recalls the use of this road of Sheckells, certain lands therein described, by Sheckells for the purposes aforementionsaid by the defendant to have been the dom-ed, but he (the plaintiff) never used the way inant estate, were granted to Thomas H. Arnold, the grantor of the plaintiff; and in said deed reference is made to the fact that the land thereby conveyed "was a part of the same land that is described in a deed executed on the 19th day of November, 1853, by E. R. Arnold and wife to Levi Sheckells," and recorded among the land records of Anne Arundel county in liber N. H. G. No. 2, folio 626, etc.; and in this deed were granted to Thomas H. Arnold the right and ways, etc., appurtenant to the lands so conveyed, "especially the right of way granted to the said Levi Sheckells and assigns by deed from E. R. Arnold, dated the 19th day of November, 1853, and recorded among said land records in liber N. H. G. No. 2, folio 630.

[2] The lands mentioned in the deed from Ann M. Insley and Caroline Sherbert to Thomas H. Arnold were thereafter conveyed, on the 23d day of February, 1885, by the said Thomas H. Arnold unto his son, Alton R. Arnold, the plaintiff, together with the ways, appurtenances, and advantages thereto belonging. In this deed, however, no special reference is made to the right of way granted on November 19, 1853, by Elijah R. Arnold to Levi Sheckells, nor was special reference thereto necessary to convey such right had it existed at such time. The failure to mention it specially is referred to only as reflecting upon the fact whether or not at such time it existed.

The plaintiff, when upon the stand, located

from D to E, nor has he ever heard of any one else using that part of said road, since it was used by Sheckells 35 or 40 years ago, and, in fact, he never knew of the alleged right of way over the land of the defendant until about 3 years ago, when he discovered it in the grant above referred to from Elijah R. Arnold to Levi Sheckells. He further testified that the land between D and E has been continually plowed up, sowed, and cultivated in crops-that is, such part of it as lies between D and the wooded lands bordering upon the bank of the creek-and that it is now impossible to distinguish at such place exactly where the road once ran.

John Day, a witness produced by the plaintiff, testified that he was 82 years old; that he had lived near the defendant's property all his life; that he knew Mr. Sheckells, also knew his daughters, the grantors in the deed to Thomas H. Arnold; he was also familiar with the alleged right of way over the lands of the defendant as located by the plaintiff, and that Sheckells used this right of way to haul wood to Chaney's creek "as long as there was any wood to be hauled"; that he had recently seen the road, but he could not locate it over the field, because it had been cultivated over; that it had been cultivated for "a good ways back" in rye, corn, and other crops; he could not say that Mr. Arnold had cultivated it or that Mr. Baugh had, but it had been cultivated by Mr. Revell.

John Y. Hall, another witness produced by

"An adverse and hostile use of the servient estate inconsistent with the rights of the owner CONSTABLE, J. The sole question involvof the easement will start the statute of limi-ed in this appeal is whether or not, under the tations running to defeat his right, and a continuous adverse use for the period of the stat-powers in the will of Thomas W. Slater, the ute will establish a right by prescription in the trustees had power to make sale of the leaseadverse claimant." Jones on Easements, § 865. hold property, the subject of this case.

Judgment reversed without a new trial, under the residuary clause was the leasehold with costs to the appellant.

confers no power upon them 'to sell the real his lifetime,' and which forms a part of the estate of which the testator took title during rest, residue and remainder of the estate."

After a thorough review of the authorities the opinion concludes:

"We therefore think that it can be inferred from the power given, under the will, to the trustees 'to invest and reinvest, in their judgment and discretion, the said rest, residue and remainder' of his estate, that it was the intention of the testator to confer upon such trustees the power to sell, in their judgment and discretion, the property of the estate, real the testator died seised and possessed, as well or personal, including the property of which as any property thereafter acquired by the trustees.'

was acting as the agent of the Pennsylvania | coming into the hands of the trustees,' and Railroad Company. Thereafter, upon the purchaser refusing to pay the purchase price upon the tender of a deed by the trustees, the trustees filed a petition praying that the purchaser be compelled to comply with the terms of sale. Julian S. Carter and the Manor Real Estate & Trust Company answered, disclosing that the said Carter was acting as agent for the Manor Real Estate & Trust Company in the purchase, and claiming that the trustees had no power under the will of Thomas W. Slater to make sale of the said property, and therefore the court was without jurisdiction to ratify the same, and denying that the court could ratify the sale under its general chancery jurisdiction, since the requirements of the act of 1868, c. 273, or of section 198 of article 16 of the Code (Bagby's Code, § 228, art. 16), had not been complied with. The court thereupon decreed that the said Carter and the Manor Real Estate & Trust Company pay the amount of purchase money, and the trustees convey the property, and, upon the failure of the purchaser to comply before a certain day, that the writ of fieri facias issue. This appeal was thereupon prosecuted.

So much of the residuary clause as is important for the purpose of a determination of this question is as follows:

"In trust and confidence nevertheless that they will invest the same, so far as the same may be uninvested, and collect and invest the rents, issues, and profits thereof in such manner as to increase the corpus or principal thereof."

To the same effect is the case of Preston v. Safe Deposit & Trust Co., 116 Md. 211, 81 Atl. 523, Ann. Cas. 1913C, 975.

When, therefore, the testator, for the purpose of enabling the trustees "the better to execute the several trusts hereinbefore provided,” empowered them to invest the "trust funds in their hands," we think, upon the authority of the above cases, that it is clear that his intention was to arm them with full powers to sell the property of the estate, irrespective of whether or not the title to that particular portion had been held by the testator in his lifetime. That the words used were "trust funds," instead of trust estate, we do not think indicates that he intended that only money accruing by way of income was to be used for investments for all through the will the words are used in the sense adopted by us. A study of the language

In a subsequent clause there is this pro- of the whole will shows that by the use of vision:

This court has so recently, in two carefully considered cases, reviewed the authorities on the question here involved and announced the law applicable that we deem an extended discussion unnecessary. The appellants contend that by the last clause "the testator had reference only to the income, which he had already given them power to invest so as to increase the corpus, and the moneys he had bequeathed for investment by them," and did not refer to that part of the corpus which was invested in the lifetime of the testator. In the case of Schloendorn v. Schmidt, 115 Md. 74, 80 Atl. 309, the same contention was made.

"It is contended by the appellee that the power conferred upon the trustees in this case, under the will of Frederick W. Schloendorn, 'to invest and reinvest said rest, residue and remainder of my estate, in their judgment and discretion, and to pay the net income, etc., has reference only to the 'trust moneys

** *

the language "so far as the same may be uninvested" the testator did not intend to limit the power of the trustees to invest, and, even though it should appear that he had done so, yet it becomes apparent that such was not his intention, when, in the effort to remove any doubt that might arise from the expressions used in the different clauses, he adds the general clause to enable them the better to execute the several trusts-not all but the one under the residuary clause but "the several trusts herein before provided."

The case of Ball v. Safe Deposit & Trust Co., 92 Md. 503, 48 Atl. 155, 52 L. R. A. 403, relied upon by the appellants, is readily distinguishable, from the fact that in the will in that case the testator expressly said that the property in question was not to be sold.

Since the appointment by will had been sanctioned by the court upon assuming jurisdiction, it was proper and necessary that the sale should have been made subject to the ratification by the court.

The decrees appealed from will therefore be affirmed; but under the circumstances of this case we think it proper that the costs of these proceedings in this court be paid by the trustees out of the estate in their hands.

Decrees affirmed, appellees to pay the costs in this court.