fered him the deed at the time, but he would not stretch forth his hand to receive it. Under more than one decision of this court his cause of action then accrued, and from that date did the statute of limitations begin to run. See Baker v. County of Johnson, 33 Iowa, 154; Prescott v. Gonser, 34 Iowa, 175; Ball v. Railway Co., 62 Iowa, 751; Hintrager v. Hennesy, 46 Iowa, 600."

In Freeman v. Ingerson, 143 Mich. 7, we held:

"Where a demand is necessary to create a cause of action, such demand must be made within a reasonable time, which, by analogy to the statute of limitation, will be deemed to be six years.'

But the right of the State to rely upon the ordinary statutes of limitation will not avail the State unless there is some statute which might be pleaded as a defense if the suit were between private parties. If the contract conceded in this suit were between private parties, the remedy of the purchaser would be by bill for specific performance if he wished to obtain a deed of the land, and the statute relied upon by respondent would present no obstacle to such a suit.

It is contended, however, on the part of the respondent that, even though there be no statute of limitations barring the action, the laches of relator has been so great that he ought not to be granted the relief sought. The general rule undoubtedly is, as contended by relator, that mere delay would not defeat the right to have performance of the contract as between private individuals. 3 Pomeroy on Equity Jurisprudence (2d Ed.), § 1408. But, as said by Justice COOLEY in rendering the decision of the court in Smith v. Lawrence, 15 Mich. 499:

"The specific performance of contracts must always rest in the sound discretion of the court; to be decreed or not as shall seem just and equitable under the peculiar circumstances of each case. It is frequently ordered in favor of a party who has been for a considerable period in default, if he has never abandoned the contract, and the other party has suffered nothing from the delay for which he cannot be compensated in the decree. If, however, succeeding the default, there has been a considerable

change in the value of the property, this may be reason sufficient for denying the specific relief, inasmuch as the contract would thereby become an unequal one, and to enforce it would be to encourage delays by enabling the party to take advantage of changes in his favor, though he might have delayed performance intentionally and not meaning to perform unless favorable changes should oc

cur.

I think that this court, in the absence of evidence to the contrary, should presume that swamp lands, as well as other lands in the Upper Peninsula, have increased in value in the period between 1872 and 1905. At all events, in my opinion the relator to entitle himself to the discretionary writ of mandamus, has the burden of showing that there has been no material increase in the value of the lands which he now seeks to have patented to him. Furthermore, the State has suffered loss through not receiving taxes upon these lands, as it would have if they had been selected within a reasonable time, as, in my judgment, it was intended that they should be. Act No. 101, Laws of 1869, strongly indicates such intention. Sections 1 and 2 of the act are as follows:

"SECTION 1. The People of the State of Michigan enact, That whenever any person of [or] persons shall be entitled to State swamp lands, by reason of the performance of any labor, or the fulfillment of any contract, it shall be the duty of the commissioner of the State land office to cause to be issued such patents, and deliver the same to the person or persons entitled thereto, if applied for at the State land office; and in case no such application is made within thirty days from the time such person or persons shall be entitled to such swamp lands (then, in such case), the said commissioner shall file such patent or patents in his office, subject to the order of the person or persons entitled to the same.

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SEC. 2. It shall be the duty of such commissioner to furnish to the several county treasurers, in each year, and in time for assessment, a list of all such lands so patented, according to the provisions of section one of this act; and such lands so patented, shall be subject to assessment and taxation as other assessable and taxable lands. Lists of all lands now subject to be so patented, shall be furnished

by said commissioner to the county treasurers, and by the county treasurers to the supervisors of the proper townships, in time for the assessment of the year eighteen hundred and sixty-nine, so far as the same may be practicable."

See, also, section 1485, 1 Comp Laws.

The act itself also indicates that the parties contemplated that these lands should be selected within four years, afterwards extended to six years, and during that period the State held the lands in trust for the fulfillment of its grant and could not dispose of them. Lemoine v. Dunklin County, 51 Fed. 487. But, after the expiration of the six-year period of reservation, the trust expired, and the State was at liberty to dispose of these lands as it saw fit. The trust relation having been terminated, laches might be imputed to the respondent for an unreasonable and inequitable delay. Lemoine v. Dunklin County, supra. It was held by this court in People, ex rel. Mabley, v. Judge of Superior Court of Detroit, 41 Mich. 31, that "the writ of mandamus is not a writ of right, and is not usually allowed to parties who have been culpably dilatory." The relator and his assignors have waited for 33 years before applying for their patents. The delay is wholly unexplained. The State has been deprived of the revenue which it would have received if the lands had been selected within a reasonable time. Timber which was ignored and treated as worthless in 1872 is eagerly sought for now, and, presumably, the lands in question are of greater value.

Under such circumstances, I think this court ought to decline to exercise its discretion in favor of relator, and the writ should be denied.

MCALVAY, C. J., concurred with BLAIR, J. GRANT, J., did not sit.

IAMURRI v. SAGINAW CITY GAS CO.

NEGLIGENCE-TRESPASSERS-CHILDREN-ATTRACTIVE DANGERS.
In this case, involving the liability of the owner of a tank
wagon containing explosives, for injuries inflicted upon a
young child by explosion of the tank while the child was at
play thereon, the wagon having been left unattended in the
public highway, a judgment for plaintiff is affirmed by a
divided court; Chief Justice MCALVAY and Justice MONT-
GOMERY, with whom concur Justices CARPENTER and MOORE,
writing for affirmance on the ground that the attrac-
tiveness of the wagon to children, and its unguarded situa-
tion, constituted an invitation to children to play thereon
and excused what would otherwise have been a trespass;
and Justices OSTRANDER and HOOKER, with whom concur
Justices GRANT and BLAIR, writing for reversal on the ground
that the owner of property owes no duty to trespassers ex-
cept to refrain from willful injury.

Error to Saginaw; Snow, J. Submitted February 16, 1906. (Docket No. 178.) Reargued January 16, 1907. Decided April 30, 1907.

Case by Thomas Nicolas Iamurri, by next friend, against the Saginaw City Gas Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Affirmed by divided court.

Humphrey, Grant & Smith, for appellant.
Weadock, Purcell & Weadock, for appellee.

MCALVAY, C. J. Defendant is a Michigan corporation, located at Saginaw, engaged in the manufacture and sale of illuminating and fuel gas. Plaintiff, by his next friend, recovered a judgment for injuries received by the explosion of a drip wagon used by defendant in and about its business, which had been left upon a street of the city of Saginaw. This drip wagon consisted of a platform

wagon upon which was a boiler, iron or steel tank, 7 feet long and 24 feet in diameter, extending lengthwise and firmly fastened. On the front end of the wagon, and above the end of the tank, was a seat for the driver. On the top of the tank, 1 feet back of the seat, was a venthole 14 inches in diameter, closed by the means of a metal plug which screwed into place. At the rear end of the tank was a pump, by means of which the drip or refuse from the sink pots along the gas mains was pumped into the tank. This drip wagon was used by defendant for this purpose. A rubber hose attached to the pump being fastened to the pipe from the drip pot, the drips were pumped into the tank, which when filled was driven to the Saginaw river and emptied. When the tank was being filled the vent was unstopped to allow the air to escape; and when full, it was closed to prevent the drips from splashing out and running down the outside of the tank. This wagon was drawn by one horse. It was the proper and usual appliance for the purpose for which it was used. This work is necessary to keep the gas pipes free from water which may leak into, or become condensed in, the pipes, and also from an oily substance, known as "hydrocarbons," which accumulates in them. In removing the drips a greater or less amount of illuminating gas would necessarily be taken into the tank. Vapors arising from the substances pumped out also are generated in the tank. Neither the gas nor the vapors are explosive in themselves, but when mixed with a proper proportion of air an explosive mixture is formed, and when this mixture is brought in contact with fire in any way an explosion will follow.

On July 7, 1904, an employé of defendant was engaged with this appliance in collecting these drips. When he quit work at night the tank was about one-third filled with drips. As was his custom he drove to the barn, near which the wagon was kept when not in use, intending to continue work the next day. The wagon was left standing in the street near the curb, and the horse put in the