to extreme carelessness or inattention on 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, amounted 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.

CEPTANCE EVIDENCE.

A plat of a town authorized by the Legislature 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 There was evidence that the public square square were distinctly shown on the plat. 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. 88 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-EsTOPPEL. the public without specifying the use. A plat of a town dedicated a square to

The town accepted the dedication. Individuals maintained buildings on the square, but there was nothing to show that the town had abandoned the square when those under whom the individuals 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,

8. 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.*1

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

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. Cum-1 berland, 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."

said: "That before buildings were there the square was a public thoroughfare; anybody could use it as they pleased; that he saw horses, mules, and anything but stables put on there until of late years; some wagons put on there: some people on there." Other witnesses testified to the same effect, and it was shown that the corporation had planted out a row of trees on the east side, two of which are still standing.

Of course it was impossible to obtain witnesses whose recollections went back to the date of the filing of the plat or of the first charter, and it would be difficult to prove the circumstances under which the stable and shed claimed by the defendants were built, as well as difficult, if not impossible, to explain just what occurred when the canal was built in 1833 or 1834. But the uncontradicted evidence is that there has been a roadway over the square from Commerce street to Potomac street as long as the oldest witnesses can remember. That has been maintained, drained, and cared for by the appellee. There was nothing on the plat or in the evidence to show that the square was dedicated for any particular purpose, but the plat shows enough to make it certain that it was expected and intended that the square could be used to pass over it. Commerce street, according to the plat and the explanatory notes, stopped at the square, Potomac street bounded it on the north, and the space which we have described above as probably being Water street ends at Potomac street above the northwest corner of the square, while Commerce street ends at the southeast corner. It could not therefore be contended that when the square was laid out it was not intended to have a roadway or roadways over it, but the location of them and other public user of the square were apparently left to the discretion of the town. The appellee certainly accepted so much of the square as has been occupied by the roadway as long as the oldest witnesses could remember, and there can be no presumption that it only accepted the part. So far as the record discloses, the appellee and the public made such uses of it as they saw proper, and, while the testimony does not show much use of any other than the part occupied by the roadway, there is sufficient to raise the presumption that the dedication of all the square was accepted.

This is not like Kennedy v. Cumberland where the court said that, because the city accepted some streets, it did not follow that all on the plat were accepted. If a municiLality actually only use a third or a half of the width of a street, it could hardly be contended that it had only accepted such third or half. See 3 Dillon on Mun. Cor. (5th Ed.) § 1088. This roadway runs diagonally across the square and apparently was used as was most convenient to the public.

this branch of the case, we think there was legally sufficient evidence of the acceptance, and hence the special exception to the plaintiff's first prayer was properly overruled, and the defendants' first and second prayers were properly rejected; the theory of both sides in the lower court being that that was a question for the jury.

[5] As the plaintiff only received a verdict for one cent, it is not necessary to refer to its third prayer which related to the measure of damages.

[6] By the proviso in the plaintiff's first prayer and the defendants' third and fourth prayers, the court left the question of abandonment to the jury, and the defendants cannot complain of the court doing what they asked it to do. The modification of the defendants' third and fourth prayers did not injure them as it lessened the burden they assumed in those prayers.

[7, 8] The defendants' fifth prayer sought to have the jury instructed that, if they found the facts therein mentioned, "then the jury is instructed that the plaintiff had abandoned said portion of said square and is estopped from asserting any claim thereto, and the verdict of the jury should be for the defendants." In other words, the defendants asked the court to say that there was an equitable estoppel which precluded recovery under the principles announced in Baldwin v. Trimble, 85 Md. 396, 37 Atl. 176. 36 L. R. A. 489. It is said in that case that: "Whilst an encroachment on a highway is conclusively settled in Maryland to be a public nuisance which can never grow by presumption into a private right (P. W. & B. R. R. Co. v. State, 20 Md. 157; N. C. Ry. Co. v. Mayor, etc., Balto., 21 Md. 93; Ulman v. Chas. St. Av. Co., 83 Md. 130 [34 Atl. 366]). yet it may be true and in perfect harmony and accord with that doctrine that cases concerning public streets can arise of such a character, and founded upon an actual and notorious abandonment of the highway by the public, that justice requires that an equitable estoppel shall be asserted even against the public in favor of individuals."

But in that case the appellant had acquired the interest in the property subject to an easement in the public to have a road over part of it, and the court said: "There is no evidence that this road was ever laid out by the municipal authorities, or that it was ever accepted by them or kept in repair at the public expense." It was also said that the easement had been abandoned, and "that the title of the appellant to the road does not depend on prescription as against the public, but upon his deeds and the fact of an abandonment of the public easement whereby the rights of the public over the road were extinguished." The abandonment by the public of the easement had induced innocent parties to expend money on the