jured; and that the leakage was "caused by the negligence of the defendant and its servants and agents in carelessly, negligently, and improperly laying, conducting, and maintaining said gas mains or pipes." The answer was a general denial, and also set up that the cause of action did not accrue within three years before the suit was brought, which was in November, 1908. The plaintiffs introduced evidence that they owned and had long lived in the house in question; that the defendant laid gas mains in the street September 1, 1904; that there were then three healthy maple trees on the street in front of the house, between the sidewalk and the traveled roadway, which afforded an agreeable shade; that these became sickly in the fall of 1906; that by another year one had died, and the others were slowing dying; that in the fall of 1906 they noticed a smell of gas near the trees, and complained to the defendant that the trees were dying, and asked it to dig up its mains in order to ascertain whether gas was escaping from them; that in July, 1907, earth was dug up near the trees by other parties, and there was thereupon a strong smell of gas; that they then complained again to the defendant, whereupon, and not before, it sent men to dig, as requested; that, as soon as they dug near the trees, the whole neighborhood was scented with gas; and that an officer of the defendant soon afterwards said to them that a leak in the mains in Wethersfield had been found. They also introduced an expert, who testified that he examined the trees in question, in July, 1907, and that in his opinion their condition was due to the effects of gas escaping into the soil. For the defendant testimony was introduced that the gas mains were properly constructed and laid in 1904; that when it dug up the earth, in July, 1907, in front of the plaintiff's house, there was no other smell of gas than always attends the uncovering of a gas pipe; that it was impossible to prevent some slight leaks in gas mains; that the only leaks found were two small ones, one 150 feet south of the plaintiff's house, and the other 250 feet north of it; that the bad condition of the trees might well have resulted from old age, or cracking in cold weather, or a fungus growth; and that a large horse chestnut tree within a few feet of the maples had remained in good condition. A verdict for the defendant was directed, on the ground that there had been no evidence produced of negligence on the part of the defendant which was sufficient to go to the jury.

It was undoubtedly true that the cause of the bad condition of the maples had not been absolutely demonstrated. It is also true that, if the evidence produced was such

they were injured by the defendant's negligence, it was proper to direct a verdict in its favor, and that great weight is to be attached to the opinion of the trial court as to this point. The defendant had a franchise from the state "to lay down gas mains and pipes ** in the streets, highways and public grounds" of Wethersfield, "provided that said streets, highways, and public grounds shall not be injured but all be left in as good condition as before the laying of said mains or pipes." 13 Sp. Laws, p. 53. Such a franchise excludes any liability for incidental injuries occasioned by its proper exercise. But it is not properly exercised, unless due care be used in selecting the kind of mains to be laid, in directing the manner of laying them, and for maintaining them, when laid, in a reasonably proper condition. The franchise of the defendant also specifically required that the highway in which it laid the mains in question should be left in as good condition as it was before. The term "highways" included any trees that might have been planted upon them for shade or ornament. The testimony introduced by the plaintiffs was such that it mighť not unreasonably have satisfied the jury that the gas mains on High street were not laid or maintained in such a way as to leave the street and the trees upon it in as good condition as before they were laid. The adjoining proprietors presumably owned the fee of the soil up to the center of the highway, and therefore the trees that stood upon it. Any injury to the three trees now in question was therefore presumably an injury to the plaintiffs. They produced expert testimony that they were in fact injured by escaping gas. It could have escaped only from the defendant's mains or pipes. Whether this expert was right in attributing the loss of the trees to the cause which he assigned, rather than to other possible or probable ones, was a fair question for the jury. Whether the gas had escaped in sufficient quantities to occasion the injuries complained of, and whether a sufficient system of inspection had been maintained by the defendant, and whether it was requested in 1906 to make an inspection, and negligently omitted it until again requested, a year later, were also all questions as to which there was sufficient testimony to warrant them in coming to a conclusion in the plaintiffs' favor. Had these questions been decided against the contentions of the defendant, a verdict for the plaintiffs would not have been against the evidence.

It follows from these considerations that the cause (under proper instructions, of course, as to the burden of proof) should have been submitted to the jury.

There is error, and a new trial is ordered.

tion 3). Plea, the general issue.

EXCELSIOR CO.

1909.)

1. LOGS AND LOGGING (§ 14*) - FLOATING LOGS-TOLLS "AND."

The plaintiff brought an action against the defendant to recover toll on logs driven in 1906 down Wilson stream, which flows into Sebec Lake, based on a provision in its charter which authorized the plaintiff to "demand and receive a toll for the passage of logs driven over their dams and improvements." In 1900, the plaintiff built a dam in Wilson stream 18 or 20 miles from the outlet of the stream into Sebec Lake. The logs upon which the plaintiff claimed a toll were driven out of Davis stream, a tributary which flows into Wilson stream about two miles above Sebec Lake. Two years later the plaintiff built another dam at Rum pond. No dam was built by the plaintiff on Wilson stream below Davis stream where the logs were landed.

Held, that the word "and" in the clause in plaintiff's charter reading "driven over their said dams and improvements" may be construed as a convertible term used in the sense of "or" so as to authorize the collection of toll not only on logs that pass over the dams, but also on those that actually pass over that part of Wilson stream on which improvements to facilitate driving have actually been made.

[Ed. Note.-For other cases, see Logs and Logging, Dec. Dig. § 14.*

For other definitions, see Words and Phrases, vol. 1, pp. 385-394; vol. 8, p. 7575.] 2. LOGS AND LOGGING (§ 14*) - FLOATING LOGS-TOLLS.

In order for the plaintiff to maintain its action, however, it was not sufficient to show that the defendant was enabled to take advantage of a greater flow of water afforded from time to time by the plaintiff's control of the

dams 18 miles above.

[Ed. Note. For other cases, see Logs and Logging, Dec. Dig. § 14.*]

3. LOGS AND LOGGING (§ 14*) -FLOATING LOGS-TOLLS-SUFFICIENCY OF EVIDENCE.

the stipulations that: "If the Law Court find that the action is maintainable, judgment to be entered for the amount claimed in the writ with interest. If action is not maintainable, nonsuit to be entered."

Argued before EMERY, C. J., and WHITEHOUSE, SPEAR, CORNISH, KING, and BIRD, JJ.

Hudson & Hudson, for plaintiff. W. A. Johnson, for defendant.

WHITEHOUSE, J. In this action of assumpsit the plaintiff company seeks to recover toll on 1,638% cords of poplar, making 819,000 feet of pulp wood, driven down Wilson stream in the spring of 1906, at 15 cents per thousand.

Section 2 of the act of 1899 (Priv. & Sp. Laws 1899, p. 91, c. 64), incorporating the plaintiff company, contains the following provisions, viz.: "Said corporation may erect and maintain a dam or dams, with side booms and sluices, on Wilson stream, flowing into Sebec Lake in Piscataquis county, to facilitate the driving of logs and lumber down said stream; and said corporation may remove rocks, excavate ledges, build dams and side dams, and make other improvements for said purpose, except that it shall not blast out or excavate at Lower Greeley Falls, but shall have the right to smooth up and deepen the channels at the upper Greeley Falls, and make such improvements at said falls as may be necessary to facilitate the driving of logs as aforesaid."

4. NONSUIT ORDERED.

A nonsuit must be ordered.

(Official.)

Report from Supreme Judicial Court, Piscataquis County.

Assumpsit by the Wilson Stream Dam Company against the Boston Excelsior Company. Case reported to the law court. Plaintiff nonsuited.

Assumpsit on account annexed to recover toll on 819,000 feet of pulp wood driven down Wilson stream, Piscataquis county, in the spring of 1906, at 15 cents per thousand feet. The plaintiff claimed to recover under and by virtue of the provisions of sections 2 and 3 of its charter (Priv. & Sp. Laws 1899, pp. 91, 92, c. 64, and chapter 205, p. 233, Priv. & Sp. Laws 1905, amendatory of sec

town of Greenville and driven over their said dams and improvements, of twenty-five cents for each thousand feet, board measure, woods scale, and fifteen cents for each thousand feet as aforesaid, of pulp wood and logs intended for pulp wood."

In pursuance of its charter the plaintiff company erected a dam in 1900 in Wilson stream, at lower Wilson pond, 18 or 20 miles from the outlet of the stream into Sebec Lake, and 21⁄2 miles north of the Greenville line. Two years later the plaintiff built another dam at Rum pond.

It has been seen that by the terms of the original charter the plaintiff company was only authorized to "demand and receive a toll for the passage of logs cut and hauled above the present south line of the town of Greenville and driven over their said dams and improvements"; but by an amendment obtained in 1905, this limitation to "such logs as were cut north of the south

line of Greenville" was removed, and the company was authorized to "demand and receive a toll for the passage of logs driven over their said dams and improvements."

It appears that the logs upon which the plaintiff claims a toll in this case were driven out of Davis stream, a tributary which flows into Wilson stream about two miles above Sebec Lake.

It appears that no dam was built by the plaintiff company on Wilson stream below Davis stream where the logs in question were landed. And among other defenses the defendant company contends that no such "improvements" as were contemplated by the plaintiff's charter as the basis of its right to collect toll on logs passing over them were ever made by the plaintiff company on that part of Wilson stream between Davis stream and Sebec Lake, over which the defendant's logs were driven. The defendant, therefore, confidently claims that on this ground alone the plaintiff is not entitled to recover toll on logs driven down Wilson stream from Davis stream to the lake.

On the other hand, it is contended in behalf of the plaintiff in the first place that the greater facilities afforded for driving logs by reason of the head of water raised by the dams 18 miles above are sufficient to entitle the plaintiff to recover its toll, and that it was not required to show that the logs were driven immediately over that part of Wilson stream on which the work of improvement was actually done by the plaintiff.

But it has been noticed that the terms of the charter only authorize the plaintiff to collect toll on logs that are "driven over their said dams and improvements." The word "and" may here be construed as a convertible term and used in the sense of "or," so as to authorize the collection of toll not only on logs that pass over the dams, but also on those that actually pass over that part of Wilson stream on which improvements to facilitate driving have actually been made. It is not sufficient, however, to show that the defendant was enabled to take advantage of a greater flow of water afforded from time to time by the plaintiff's control of the dams 18 miles above. By the express and unambiguous terms of the charter the plaintiff is entitled to collect toll on logs that are actually driven over the "dams," or over other "improvements" made by the plaintiff company. Again there is no evidence in this case that the dams erected by the plaintiff, or either of them, or the heads of water stored by them, were used at all to facilitate the driving of logs in the spring of 1906, or that the defendant received any aid whatever in driving the logs from any improvements in the condition of the water arising from the plaintiff's dams 18 miles above. For aught that appears the flow of water in Wilson stream at the time the de

state in no degree increased by the plain. tiff's dams.

But the defendant confidently relies upon its contention that no permanent or substantial "improvements" were ever made by the plaintiff company below Davis stream, and that in the spring of 1906 its logs were not "driven over any improvements" that entitled the plaintiff to collect toll on them.

The exhibit introduced as evidence, entitled "Expenditures of building Wilson pond dam and clearing out stream," comprises items from 1899 to March 31, 1906, but discloses nothing done between Davis stream and Sebec Lake. The plaintiff was therefore compelled to rely upon the testimony of George Butterfield, who had charge of the work of building dams and clearing out the stream, to prove that in Wilson stream below Davis stream the plaintiff had made substantial "improvements" over which the defendant's logs were driven.

But the testimony of Butterfield is so uncertain, indefinite, and self-contradictory that it does not satisfactorily show that expenditures to the amount of $10 had actually been made by the plaintiff company for "improvements" in Wilson stream below Davis stream during all of the years above named.

It is true that in his direct examination Butterfield testifies that the plaintiff company did some work between Davis stream and Sebec Lake; that some blasting was done on Greeley Falls, and that $300 or $400 were expended on the back channel. But it inferentially appears that this back channel was used as a sorting channel for the accommodation of some of the principal shareholders in the corporation, and there is no evidence in the case that the defendant's logs were ever driven through or over this sorting channel. These logs appear to have been one lot and one mark, and all for the same destination, and the defendant had no use for a sorting channel.

Again Butterfield says the plaintiff company expended $700 or more between Tobie Falls and Sebec Lake; but the location of Tobie Falls is several miles above Davis stream, and, while it appears that $300 or $400 was expended on the back channel, it is nowhere stated or estimated what part of the remaining $300 or $400 was expended between Davis stream and Tobie Falls, and consequently no statement of the amount claimed to have been expended between Davis stream and the lake, except the expense of the back channel not used by the defendants.

In cross-examination, when repeatedly requested to specify what improvements were actually made below Davis stream, he makes answer as follows:

"A. I know we worked quite a lot, the men down there, blasting rocks and such work as that. We used to clean out the stream, and such work as that, blasting and fix up every

And in answer to the more general inquiry as to the improvements made on Wilson stream in addition to the erection of the dams he says: "I know we had to blast out every year there. We had to do it right along every year." He adds that he "had a clerk" to keep his books; but it has been seen that the "exhibit" transcribed from his books fails to give any information as to the expense of blasting at Greeley Falls, or any other point in the two miles between Davis stream and the lake, except the sorting channel, which does not appear to have been used in driving the defendants' logs. It is not definitely shown that any substantial amount was expended in the permanent improvements in that part of the stream.

Thus when the indefinite character of all of Butterfield's evidence is considered in the light of his frequent reference to what was usually done every year, it does not satisfactorily appear that any "improvements" were made in that part of the stream except such as are ordinarily and incidentally made in clearing out the stream each year to facilitate the annual drive.

It is accordingly the opinion of the court that, in accordance with the stipulation in the report, the certificate must be:

Plaintiff nonsuit.

LORD v. MAINE CENT. R. CO. (two cases). (Supreme Judicial Court of Maine. March 5, 1909.)

1. CARRIERS (8 41*)-CARRIAGE OF FREIGHTBILL OF LADING OR PREPAYMENT OF FREIGHT -NECESSITY.

Where the plaintiffs delivered certain goods, consisting in part of household furniture and household effects, to the common carrier for transportation, and the common carrier accepted and received the same for transportation but did not transport the same, and the goods were not returned to the plaintiffs until several months after they had been received by the common carrier, and when returned to the plaintiffs it was found that the goods had been injured, held: (1) That the common carrier was liable for the actual damage to the goods. (2) That the common carrier was liable in a reasonable amount for the rental value of the remaining goods for the period during which the plaintiffs were deprived of their use. (3) That the common carrier was not liable for exemplary damages.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. § 105.*] (Official.)

On motion from Supreme Judicial Court, Sagadahoc County.

Two actions, one by Harriet E. Lord, and the other by George S. Lord, against the Maine Central Railroad Company. The actions were tried together, and plaintiffs recovered, and defendant moves to set aside the verdicts. Motions sustained, unless plaintiffs, respectively, file remittiturs.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 193-201; Dec. Dig. § 91.*] 3. CARRIERS (8 41*)-CARRIAGE OF FREIGHTACCEPTANCE OF GOODS.

Where a shipper left goods for transportation at the freight depot of the common carrier, delivering the same to a freight handler who was apparently in charge and who was accustomed to receive freight during the absence of the receiving clerk, and the goods were properly packed and tagged with the name of the consignee and the place of destination, and the shipper was not requested to prepay the freight, and he left the freight depot supposing nothing further would be required preliminary to the transportation of the goods, and the goods were not shipped, held: That the circumstances and the evidence sufficiently showed that the common carrier accepted the goods for transportation when received by the freight handler, and

writ, and that at no time has the liability of a common carrier for the transportation of said goods and chattels ever attached."

The two actions were tried together. In the first-entitled action, the plaintiff recovered a verdict for $110, and in the second-entitled action the plaintiff recovered a verdict' for $175. The defendant company then filed a general motion in each case to have the verdict set aside.

The case is stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ.

Arthur J. Dunton, for plaintiffs. White & Carter, for defendant.