o'clock, and within a few minutes after he entered the room, the mud-drum of the boiler exploded and he was severly injured; and he brings this suit to recover damages, alleging negligence on the part of the defendants.

The evidence showed that the shell of the mud-drum was at the time of the explosion reduced in thickness by corrosion both internally and externally to about the thickness of brown paper; it had been in use for upwards of thirteen years, and during that thirteen years the plaintiff had been the engineer in charge of this machinery. As to the plaintiff's duties in the premises he testified as follows:

A.

Q. You say you have been working at Reymers' for about thirteen years? A. About thirteen years. Q. When you went to Reymers' was this same boiler there? That boiler was there, yes, sir. Q. And that same mud-drum? A. Yes, sir. Q. Then you say your duties were to keep up the machinery? A. Yes, sir. A. Yes, sir. Q. And to keep up the boilers too? A. No, sir. Q. Whose duty was it to keep up the boiler? A. The boiler maker. Q. Did you examine the boiler from time to time and see when it was out of order? A. Why, certainly I looked at it so far as the external inspection was concerned, I don't profess to be an expert boiler inspector. Q. And then whenever the boiler was out of repair in anyway you sent for the boiler makers to repair it, did you? A. No, sent for the boiler inspector, and if he said it ought to be repaired, it was repaired. Q. You did that along during the thirteen years you had been there. A. Yes, sir. Q. This muddrum, as I understand it, was to collect the sediment out of the boilers? A. Yes, sir. Q. It was your duty to clean out the muddrum? A. Yes, sir. Q. How did you get the sediment out? A. Took a scraper and put it in there and took the hydrant hose and washed it out clean. Q. How often would you do that? A. Once a month. Q. That was a part of your regular employment? A. Yes, sir, that was a part of my regular employment.

It is clear that this plaintiff, so far as the defendants, his employers, are concerned, was in charge of this machinery, and that it

was his duty for them from time to time to know the condition of the boiler, engine and mud-drum. He was an expert machinist and engineer. He says he was not a boiler inspector, but he was the expert which his employers put in charge of this machinery not only for the purpose of running it but for the purpose of keeping them informed as to its condition from time to time. It was his duty as much as theirs to know the condition of this mud-drum, and his failure to ascertain its condition and know that by corrosion it had gotten into such a condition that it was unfit for use was negligence on his part, and he cannot recover in this case. The non-suit was therefore properly entered.

For plaintiff, T. C. Pitcairn and Marron & McGirr.

For defendant, W. W. Wishart and Leander Troutman.

Court of Quarter Sessions,

WASHINGTON COUNTY.

INCORPORATION OF CIRCLEVILLE BOROUGH.

Boroughs-Petitions for incorporation--When petition dismissed.

Petition for incorporation of a new borough will be dismissed where it appears that the applicants have adopted boundaries which are not the best and no good reason is presented for incorporation. No. 181 May T., 1903, Motion for decree. of incoporation.

Opinion by TAYLOR, J. Filed October 5,

1903.

The petitioners for the incorporation of a portion of East Pike Run township into a borough called Circleville, are twenty-one inhabitants and freeholders of the proposed borough. The territory carved out of said township and included within the boundaries of the proposed borough, as shown by the petition and plot, is a large body of farm land many miles by boundaries and embracing in area several thousand acres of strictly agricultural land. The town or village of Circleville, containing a collection of houses and laid out in streets and highways, mentioned and described in the petition for in

corporation, and from which the court is asked to take jurisdiction, we find, under the undisputed evidence at the hearing, to consist of upwards of twelve houses scattered in varying distances from each other along a country highway known as the Brownsville road, running off to one side of the proposed borough. This is the only semblance of a town or village within its boundaries; it is without a single store, blacksmith or wagon shop, post office, mill, church, school or other place of business or house of any public character. Within the township of East Pike Run, out of which this territory for a borough is carved, there are seventeen public school-houses and sub-districts, only two of which school sub-districts are taken into the proposed borough with only about thirty-three scholars within the proposed new borough to be apportioned to these two schools or consolidated into one, while the territory embraced in the borough lines includes and takes from the township proper about one-fourth of the valuable taxable property for school and other taxable purposes.

In fixing and establishing the limits of the proposed borough the petitioners have left a narrow strip of territory, about onefourth of a mile in width, and about two miles long, lying along the Monongahela river, extending from the borough of west Brownsville down the said river, which would still form a. part of East Pike Run township. In this narrow neck of territory there is a village of some sixty houses and very little taxable property. There is also a similar strip left along the West Pike Run township line.

Six exceptions were filed by divers residents and freeholders of the remaining part of East Pike Run township to this incorporation, setting forth the permanent disadvantage and injustice to them in case of incorporation. For informality in these exceptions, under our rule of court, they were, on motion of counsel for the proposed borough, at the hearing, dismissed, and the hearing ordered to proceed, that the petitioners should satisfy the Court of Quarter Sessions in the absence of exceptions, as required by the Act of April 1, 1834, P. L. 163, as amended by the Act of June 26,

1895, P. L. 389, that they have complied, in said application for the incorporation of a town or village within said court's jurisdiction, with the conditions prescribed by law and that it is expedient to grant the prayer of the applicants.

The first question for our determination in reference to this application is one of law. Is Circleville a town or village in contemplation of the act and supplement relating to the incorporation of boroughs and the decisions of the courts of this Commonwealth upon the subject? It is not claimed by the petitioners that Circleville fills the definition. of or rise to the dignity of a town, but they contend it is a village, more than a hamlet, and within the meaning of the act. It is true, as cited, that some lexicographers define a village as being any "small assemblage of houses for dwellings or business, or both, in the country, whether they are situated upon regularly laid out streets and alleys or not," and this is the definition given to a village by the court in the Michigan and Illinois cases cited by counsel for petitioners within the meaning of the statutes of those states requiring railroad companies to construct fences. But the term "village" when used in the statutes and decisions of the courts of Pennsylvania in reference to municipal corporations, and especially to their incorporation, is in no jurisdiction held to be any collection of houses more than a hamlet, however small, something more must appear.

The petitioners recognized this when they incorporated into their petition when describing Circleville as "laid out in streets and highways."

In the Borough of West Philadelphia, 5 W. & S. 283, it is held that the words "town or village do not embrace a champaign country, but a collection of houses, collocated after something like a regular plan in regard to streets and lanes, without intervening farm land, but with a convenient curtilage attached to each."

In Edgewood Borough, 130 Pa. 351, village is defined to be any small assemblage of houses in the country; "a collection of houses collocated after a regular plan in regard to streets and lane.”

The above is the definition given of a village by the court below in the attempt to in

corporate Narberth Borough, reported in 16 Pa. C. C. R. 29, and affirmed by the Supreme Court in Narberth Borough, 171 Pa.

211.

Under the Acts of Assembly cited, in order to give the court jurisdiction to incorporate, it is necessary that there should, in fact, be a town or village to be incorporated; Borough of Little Meadows, 28 Pa. 258; Trickett's Borough Law, 19.

In the case at bar it is not claimed that Circleville is a town, nor can it be held to be a village within the meaning of the Act of Assembly or the decisions relating to municipal corporations; at best it is only a hamlet or a few buildings, ten or twelve, scattered along a public road for the distance of between a quarter and a half mile, varying distances apart, minus a store, shop, church, school, mill, post office, or business or trading place of any kind whatsoever, and while these may not be essentials to a village, for the purpose of incorporation, their conspicuous absence in Circleville, taken in connection with other deficiencies we have found as facts in the statutory requirements of a town or village, serve only to strengthen our decision upon this point that the decree of incorporation asked for should be refused, for the reason that we find as a fact that the Circleville described in the petition is not a town or village within the meaning of the acts conferring jurisdiction, and therefore, the conditions prescribed by law have not been complied with.

At the hearing of this case we were convinced from the facts proven that it would not be "expedient to grant the prayer of the applicants," if it had been shown Circleville was a village. It is no part of our objection to the incorporation of Circleville that it is composed wholly of farming land, since all the owners of farming lands within the proposed boundaries favor incorporation, nor that incorporation would temporarily increase the burdens and inconveniences to the residue of the township of East Pike Run out of which this borough is taken. These are necessary consequences of such incorporation and are not sufficient reasons for refusing the application, when the proposed boundaries are the best that can be made, and good reasons for the incorporation ap

pear. The mere disarrangement of school districts and election districts is no ground for refusing to incorporate a borough; Savidge on Law of Boroughs in Pa., 16.

The reverse of the above was made to appear on the hearing in this case. Instead of temporarily increased burdens and inconveniences to the residue of the township that may be adjusted in the manner pointed out by law, the applicants have adopted boundaries for their proposed borough which are not the best that can be made, nor have they presented any good reason for the incorporation, neither do they appear. An examination of the plot attached to their petition discloses the fact by the courses of the boundary lines, that the purpose and the only purpose in running them as they are, was to exclude therefrom populous portions of the township that are towns and villages in fact, and include only rural territory in order to escape the duty and responsibility of sharing justly the tax burden of maintaining common schools and educational facilities for the children of the resident and foreign populations brought into the township in large numbers as a consequence of the value, sale and development of the coal beds under these farm lands. This would cast burdens upon and cause inconveniences of a permanent character to the residue of the township taxables and neeessarily interfere with the efficiency of its schools by the withdrawal of territory assessable for school purposes, which has enhanced in value by the opening and operation of numerous coal mines within the township. A sound public policy lies in the direction of educating through the media of our common schools, at their best, the children of aliens so long as they are admitted to our shores, that they may at once enter on the road to good citizenship and their final amalgamation with the races of this country. Where the residents of territory seek to be incorporated as a borough for the purpose of escaping this just proportion of this common burden, it is against public policy, and therefore not expedient in this, and for other reasons stated in this opinion.

And now, October 5, 1903, after hearing and argument of counsel, and upon due consideration, the petition is dismissed and