evidence fails to show that any authority was sought or ob- for the purpose of showing that at the time plaintiff purchased the property, and went into possession of it, it was at least doubtful whether any attempt had been made to dedicate that portion of Third avenue to the public use. conditions, and the fact of the proximity of this property to In view of these the business center of the city; the fact that Third avenue, before it reaches the boundaries of plaintiff's property, has been during all these years practically cut off and terminated by a creek and slough, and that it will require great expenditure of time and money to improve it; the further fact that there is some evidence that the survey of the original townsite did not extend to the east line of the forty-acre tract, and therefore the city would be without authority to connect this avenue with any other street or alley, or, to speak more accurately, would be confronted with a strip of land from thirty to thirty-five feet in width, extending diagonally across this avenue, to which strip of land the plaintiff appears to have a good title-all lead us to entertain a serious doubt whether the city ever intended to assert any claim to this particular portion of Third avenue, so called, until this controversy arose. And in view of the fact that for more than twenty years the city has lain by and without objection has permitted plaintiff to occupy this portion of the so-called Third avenue, and at considerable expense to place permanent improvements thereon, and the fact that the plaintiff must sustain great injury in having a portion of his premises segregated from the rest, by the opening of this avenue, that he would be compelled to remove his barn and other outbuildings, and would suffer his trees, vines and shrubbery to be destroyed, it would seem extremely inequitable for the city at this late date to assert its right to devote to public use, without compensation to the plaintiff, a portion of this property which he has so long claimed and the undisputed possession of which he has so long enjoyed. Under these circumstances, we think the city should be, and is, estopped to assert the claim which it now makes. In 2 Dillon on Municipal Corporations, fourth edition, section 675, it is said: "The author cannot assent to the doctrine that, 235 as respects public rights, municipal corporations are impliedly within ordinary limitation statutes. It is unsafe to recognize such a principle. But there is no danger in recognizing the principle of an estoppel in pais as applicable to exceptional cases, since this leaves the courts to decide the question, not by the mere lapse of time, but upon all the circumstances of the case, to hold the public estopped or not, as right and justice may require." Acting upon the doctrine of this text, the courts have repeatedly applied to municipal corporations the doctrine of equitable estoppel, and we think it peculiarly applicable here: John Mouat Lumber Co. v. City of Denver, 21 Colo. 1, 40 Pac. 237; Baldwin v. Trimble, 85 Md. 396, 37 Atl. 176, 36 L. R. A. 489; Orr v. O'Brien, 77 Iowa, 253, 14 Am. St. Rep. 277, and note, 42 N. W. 183; Chicago & N. W. Ry. Co. v. People, 91 Ill. 251; Piatt County v. Goodell, 97 Ill. 84; Hamilton v. State, 106 Ind. 361, 7 N. E. 9; Paine Lumber Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108. Without determining whether the trial court was correct upon the theory which it adopted, we approve the result, but prefer resting our decision upon the application of the doctrine of estoppel in pais. The judgment and order are affirmed. Mr. Chief Justice Brantly and Mr. Justice Smith concur. The Doctrine of Estoppel in Pais can, according to perhaps the prevailing trend of authority, be appealed to effectively, as against a municipal corporation, only when it is acting in its private, as contradistinguished from its public or governmental, capacity: Philadelphia Mtg. etc. Co. v. Omaha, 63 Neb. 280, 93 Am. St. Rep. 442; Mobile Transp. Co. v. Mobile, 128 Ala. 335, 86 Am. St. Rep. 143; note to Schneider v. Hutchinson, 76 Am. St. Rep. 494, 495. But according to People v. City of Rock Island, 215 Ill. 488, 106 Am. St. Rep. 179, if a person acting in good faith under affirmative acts of a city has made such expensive and permanent improvements that it would be highly inequitable and unjust to destroy the rights acquired, the doctrine of equitable estoppel will be applied against the city. And in Davenport v. Boyd, 109 Iowa, 248, 77 Am. St. Rep. 536, it is affirmed that if a city taxes land and levies special assessments upon it for thirty years, and an individual occupies it under a claim of right in good faith for nineteen years, without deceiving or misleading the officers of the city, and its rights could have been easily ascertained at all times, the city is estopped to assert title to the land as against him. The Estoppel of a County or Municipal Corporation to Contest Illegal Claims or Expenditures forms the subject of a note, ante, p. 354. Am. St. Rep., Vol. 137-47 NORTHWESTERN IMPROVEMENT [41 Mont. 338, 109 Pac. 706.] NEGLIGENCE-Rescue of Person in Peril.-One who, observing another in peril, voluntarily exposes himself to the same danger in order to protect him or save his life, may recover for any injury sustained in effecting the rescue, against the person through whose negligence the perilous condition has been brought about, provided the exposure is not made under such circumstances as to constitute rashness in the judgment of prudent persons. (p. 741.) NEGLIGENCE-Rescue of Person in Peril.-Where one voluntarily exposes himself to danger to save the life of another, the incurring of the danger is not per se negligence. The question of his negligence is ordinarily to be answered by the jury, upon proof of the circumstances surrounding the attempt to rescue, such as the alarm, excitement and confusion usually present, and the uncertainty as to the means to be employed, the promptness required, and the liability to err in the exercise of judgment as to the best course to pursue. Great latitude of judgment must be allowed to one who is impelled by the dictates of humanity to decide and act in the face of emergencies. (p. 741.) NEGLIGENCE-Rescue of Person in Peril.-To warrant a recovery where one voluntarily exposes himself to danger to save human life, negligence toward the person rescued, or the person making the rescue after the attempt has been made, is essential. (p. 743.) NEGLIGENCE-Rescue of Person in Peril.-Where one sues for injuries sustained while voluntarily exposing himself to danger to save human life, the presumption that he was impelled by the dictates of humanity is of itself sufficient to send the case to the jury, unless it is apparent that when he encountered the danger, he ought, as a prudent person under the circumstances, to have known that he could not escape injury or death. (p. 743.) NEGLIGENCE-Rescue of Person in Peril.-Where the complaint in an action to recover for the death of a coal miner, who was overcome by gases while rescuing a fellow-workman, alleges that the death was due to the accumulation of gases spontaneously generated in unused workings which he entered, while the evidence discloses that the gases which caused his death were generated by a fire in the mine, the variance is such as amounts to a failure of proof, and brings the case within the rule that unless the evidence furnishes substantial support for the cause of action alleged, the plaintiff has failed to make out his case, even though the evidence shows negligence in other respects. (p. 746.) NEGLIGENCE-Pleading and Evidence. In an action for personal injuries the evidence must tend not only to show the negligence alleged, but also the causal connection between it and the injury. (p. 746.) Walsh & Nolan and Meyer & Wiggenhorn, for the appellants. William Wallace, Jr., John G. Brown and R. F. Gaines, for the respondents. 341 BRANTLY, C. J. This action was brought by Alice Bracey in her own right, as the widow and heir of J. E. Bracey, deceased, and as guardian of her minor children, for damages for the death of said Bracey, which it is alleged was caused by the negligence of defendants. The death of Bracey was caused by the inhalation of poisonous gases during an attempt by him to rescue miners in the employ of the defendant company, in its coal mine at Red Lodge, in Carbon county, who had themselves been overcome by inhaling such gases while engaged in an effort to extinguish fire then burning in the mine. The complaint is very long and somewhat indefinite in some of its allegations; but these may be epitomized as follows: The defendant Pettigrew was the superintendent and general manager of the defendant company and had full charge of its business operations. On and prior to June 7, 1906, there were in the mine gases, deadly and explosive. In order to expel them, the defendant company resorted to ventilation by means of electric fans, which drove currents of air into and through the passageways and out through other openings, thus expelling the gases, or, by reverse movement, drew them out by currents produced by suction, thus allowing fresh air to be forced in through other openings. In some of the passageways there were obstructions, created by debris. which was permitted to accumulate therein from falls of rock and earth. These obstructed the free passage of air currents. There were unused workings, from which the coal had been extracted. In these, gases accumulated from time to time, and, escaping therefrom when the fans were 342 not in operation, accumulated in the passageways. On and prior to June 7th a fire had for some days been burning in the mine. On June 6th one of the ventilating fans had been stopped, and for this reason gases accumulated in the passageways through. which men going in to subdue the fire must pass. This fan was started on the morning of the 7th, but had not been running a sufficient time to clear the passageways of the gases. The defendants did not examine these to ascertain their condition. Several miners were sent in by the direction of defendant Pettigrew to subdue the fire, without being informed, however, of the presence of these gases, and, being overcome by them, were in peril of their lives. Information of this condition was brought to the knowledge of defendants and was circulated in the vicinity of the mine, and the defendants knew that rescue parties were likely to go in to effect a rescue. The deceased, Bracey, did not know of the conditions prevailing. At the request of the defendants, and by reason of the information gained through persons in the vicinity, Bracey entered the mine to aid in the rescue. After stating these facts, the complaint proceeds: "That the defendants, wholly disregardful of their duty in the premises, negligently failed to inform and advise the said J. E. Bracey, so entering said mine in the manner hereinabove set forth and under the circumstances therein stated, and for the purpose specified, as to the existence of the poisonous gases that had accumulated in said mine and the workings thereof, and that were then existing through the negligent acts and conduct of the defendants, as above set forth, and negligently failed to advise the said J. E. Bracey of the lack of ventilation then and there existing as above set forth; and the said J. E. Bracey, then and there ignorant of the lack of ventilation, and then and there suspecting and believing that the only dangers and risks to which he was then exposing himself in the work of rescue, aforesaid, were the dangers and risks which arose from the gases then being created and existing on account of the prevalence of the fire in said mine, hereinbefore referred to, on the date named entered said mine and the workings thereof for the purpose of rescuing 343 the said named persons therein, and the said J. E. Bracey so entering said mine and the portions thereof where said work of rescue was to be performed by him, as aforesaid, and so engaged in said work, was overcome by the gases so negligently permitted to accumulate, as aforesaid, in consequence of which, on the day named, he died in said mines; and plaintiffs further aver, in that connection, that the gases then and there causing his death were gases other than those generated and developed by said fire and of whose existence he was then and there conscious." The answer denies all of the allegations of the complaint charging the defendants with the acts and omissions constituting the negligence alleged. It alleges that the deceased entered the mine as a volunteer, and that his death was due to his own contributing fault and negligence. At the close of plaintiff's evidence, the defendants moved the court to direct. a verdict in their favor, on several grounds, among others, in substance, the following: For that while it is alleged in the complaint that the death of Bracey was due to the inhalation of gases other than those generated by the fire, of which he had knowledge, the evidence shows conclusively that it was caused by gases generated directly by the fire. The motion. was sustained, and judgment entered accordingly. The appeal is from the judgment. The only question submitted for decision is whether the trial court properly withdrew the case from the jury. Recovery is sought upon the theory that the defendants are chargeable with the death of Bracey, by requesting or permitting him to enter the mine for the purpose of rescuing the imperiled miners, without informing him of the dangerous conditions known or which should have been known to them to exist therein, and thus exposing him to a peril of which |