porations owning the outlet drain to make the, poration to connect with its sewers for the connection now in controversy. These of fers were refused by the court below upon the theory that, under the terms of the agreement by which the plaintiff acquired the right to use the sewerage system to the south of its property, the city, as a stranger to that agreement, could not be permitted to make any connection with the system except by the plaintiff's consent, which had not in fact been procured. In accordance with this view it was held that the city had no available defense to the pending suit. Exceptions were reserved to the refusal of the proffered evidence, and the appeal is from a decree making permanent the preliminary injunction.

development which it specially designates. ( for the purpose of meeting the allegation The drainage prohibited from other sources made and the evidence adduced by the plainwas such as the Forest Park Company might tiff as to the anticipated injury to its interpossibly have allowed to pass "through, over est from the additional volume of drainage or under" its own property "into its said storm thus required to be accommodated, the city and waste water drains." In effect the re- proffered the testimony of a number of excital stated that drainage from property pert witnesses to show that the sewer leadother than that described was understood ing to the outlet was of such ample capacity and agreed not to be allowed to enter the as to preclude any reasonable apprehension Forest Park Company's sewers, and that per- of injury to any of the interests involved mission should not be granted by that com- from the action proposed to be restrained. pany to any person or corporation, with the The plaintiff's right to the remedy by injunc exception mentioned, "to connect with, use tion prayed in its bill depended upon its abilor drain into said storm and waste water ity to prove the injury it had alleged, and drains," without the consent of the other as it had offered evidence in support of that parties. The only drains to which the term averment, the defendants should have been "said" can be held to refer as thus used are allowed an equal opportunity to present proof those of the Forest Park Company which to the contrary. It results from the view we had just been distinctly specified. The evi- have stated that the decree making the indent purpose of the recital was to emphasize junction permanent must be reversed and the prohibition it was undertaking to ex- the cause remanded for further proceedings. press by applying it both to property and to Decree reversed, with costs, and cause repersons or corporations for whose benefit the manded. drains might be desired in excess of the service contemplated by the agreement. It was stated that no other property should be permitted to drain into the sewer of the Forest Park Company, and that no permission should be granted any other person or corporation, with the exception mentioned, to connect with its drains, without the approval of the two companies through whose sewers the additional drainage would have to be discharged. There is nothing in the preamble or in the main body of the agreement which, in our opinion, forbids the Park Land Corporation and the West Forest Park Company to allow others to use their sewers without the consent of the Forest Park Company, or to entitle that company to object to any use of the former companies' drains, which would not impair the efficiency of its own system.

[2] In the disposition of the case below the question as to the effect which would probably be produced upon the appellee's use of the outlet by the admission of the drainage from the city's sewer was treated as immaterial, but this was only upon the theory that the appellee's consent was prerequisite to the proposed connection. It is apparent that in the view we have adopted as to the proper construction of the agreement before us the issue just stated is material and vital to the case presented by the pleadings. The city is sought to be enjoined from connecting its drain with that of the Park Land Corporation and the West Forest Park Company, on the ground, as stated in the bill of complaint, and as already indicated, that the plaintiff's sewerage system would be thereby irreparably injured. In order to In order to show that it was not acting as a mere trespasser the city offered to prove that the owners of the drain it was about to use had given it that right by formal agreement, and,

(123 Md. 73) GOLDSBOROUGH et al., State Roads Commission, v. POSTAL TELEGRAPH CABLE CO. (No. 18.) (Court of Appeals of Maryland. May 1, 1914.) 1. BRIDGES (§ 29*)-STATE HIGHWAYS-CON

TROL-ACTION-ROAD COMMISSION.

While the state roads commission is not a corporate body, yet it is a quasi corporation highways, and hence the commissioners may vested with the powers to control the public sue to recover compensation to which the state is entitled for the exclusive use of part of a bridge acquired by the commission.

[Ed. Note. For other cases, see Bridges, Cent. Dig. § 71; Dec. Dig. § 29.*]

2. BRIDGES (§ 29*)-STATE HIGHWAYS-CONTROL-RIGHT TO RECOVER.

Laws 1910, c. 116, § 32P, authorized the state roads commission to acquire a certain bridge across the Susquehanna river, together with all land, approaches, franchises, and easeThe bridge, over which the former owners had ments belonging to any person or corporation. permitted defendant telegraph company to carry its wires in return for a stipulated compensation, was acquired by purchase, and the conveyance expressly gave to the commission the right to collect all rental. Held that, despite Declaration of Rights, art. 14, declaring that no aid, charge, tax, burden, or fees shall be rated without consent of the Legislature, the telegraph company, which enjoyed a right distinct from other members of the public, was, despite the acquisition of the bridge by the state, liable for payment of the agreed rental. Dig. § 71; Dec. Dig. § 29.*] [Ed. Note. For other cases, see Bridges, Cent.

Appeal from Superior Court of Baltimore City.

"To be officially reported."

Action by Phillips Lee Goldsborough and others, constituting the State Roads Commission, against the Postal Telegraph Cable Company. From a judgment sustaining a demurrer to the declaration, plaintiffs appeal. Reversed and remanded.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The declaration is in the following lan- can exercise over corporations using the pubguage:

merly, it had nevertheless refused to pay the plaintiff for said use since the day of acquisition. Even if we assume that under the act creating the commission there is no power given the commission to impose rental charges upon new users of the public highways, what reason can there be for not permitting the charge to be made as the assignee of a private owner? There is no attempt under this narr, to enforce a new liability, but the enforcement of an old existing liability, founded upon contract, and which was acquired by the commission as a part of the consideration of the purchase. Although it can be argued that the state never intended to authorize the charging for future privileges upon the public highways, can it be seriously contended that the Legislature, in contemplating large expenditures of money in the purchasing of private bridges and turnpikes, intended that those who were enjoying an exclusive occupancy of a portion of them, for a consideration, were to be relieved of that charge at the expense of the state? The wording of the act shows that the Legislature knew that persons or corporations had certain rights, franchises, and easements in this bridge to which the rights of the traveling public might be subject, for it authorized the commission to acquire them. Can it be conceived that it intended to permit them to be still exercised, without being subject to whatever previous liability there might have been? It cannot be doubted but that, in fixing a price for its property, the bridge company took into consideration the value of this lease it had with the appellee and increased its price accordingly.

censee, as to whom defendant owed no duty, except not to willfully expose him to risk of injury.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 8; Dec. Dig. § 15.*]

Appeal from Baltimore City Court; Carroll T. Bond, Judge.

Action by the State to the use of Amanda Stansfield, individually and as next friend of certain minor children, against the Chesapeake & Potomac Telephone Company. From a judgment sustaining a demurrer to the declaration, plaintiffs appeal. Affirmed.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Arthur W. Machen, Jr., of Baltimore (Edward M. Hammond, of Baltimore, on the brief), for appellants. R. Lee Slingluff and Shirley Carter, both of Baltimore (Bernard Carter & Sons and Marbury, Gosnell & Williams, all of Baltimore, on the brief), for appellee.

URNER, J. The appeal in this case is from a judgment entered on demurrer to a declaration which alleges, in substance, that the defendant company maintained in one of the highways of Howard county, passing through Ellicott City, a series of poles supporting wires carrying electric current used for telephone and lighting purposes, and that one of the poles was located in front of the dwelling occupied by Harry Stansfield and his family; that projecting from this pole were iron spikes adapted and intended by the defendant for use in ascending the poles, and that the spikes, being convenientWe are of the opinion that under the alle-ly arranged for such use, operated as an ingations of the narr. there is a liability, and that there was error in sustaining the de

murrer.

Judgment reversed, and new trial awarded, with costs to the appellant.

(123 Md. 120)

vitation to the public, and more particularly to the owners and occupiers of the abutting properties, to ascend the pole by means of the spikes, whenever they might have occasion to do so for any proper purpose, and especially for the preservation of the life of animals or human beings, or for the recovery

STATE to Use of STANSFIELD et al. v. of personal property, and that, as arranged CHESAPEAKE & POTOMAC TELE

PHONE CO. (No. 30.)

for such use, the spikes constituted also a representation that the ascent of the pole

(Court of Appeals of Maryland. March 19, might be accomplished with safety; that the

1914.)

maintenance of such a series of spikes on

ELECTRICITY (§ 15*) - DANGEROUS APPLI- a pole used for the support of wires carryANCES POLES-PROJECTING SPIKES IN

VITEE OR LICENSEE. Defendant maintained a pole in front of decedent's dwelling on which electric light wires were carried. Projecting from the pole were iron spikes, adapted and intended by defendant for use in ascending the pole. A kitten belonging to decedent's children climbed the pole and remained thereon; whereupon decedent, to rescue the kitten, also climbed the pole by means of the spikes, and, while there, came in contact with defectively insulated wires, and received a shock from the effects of which he died. Held, that the presence of the spikes was not an implied invitation to any person to climb the pole for a purpose in no way connected with defendant's business, and that decedent was therefore not an invitee, but, at most, a mere li

ing a high-tension current of electricity in a street or highway of an incorporated city. was negligent, unusual, antiquated, unnecessary, and improper; that on March 25, 1913, a kitten belonging to the said Harry Stansfield, and a favorite pet of his infant children, climbed said pole and remained thereon, and, his children being greatly distressed at the loss of the kitten, the said Harry Stansfield, relying upon said invitation and representation of the defendant, ascended the pole by means of the spikes for the purpose of recovering the kitten and satisfying his children; that on previous occasions, as the de

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

fendant well knew, various persons, includ-99 N. E. 899, 43 L. R. A. (N. S.) 193, Ann. ing the said Harry Stansfield, had been ac- Cas. 1913E, 335. The most favorable view customed to use the spikes to climb the pole of the case from the standpoint of the decin order to recover personal property, and laration is that the defendant passively perfor other purposes; that the defendant neg-mitted the use of the pole by the deceased ligently permitted the insulation on certain and others for the purposes mentioned. This of the wires attached to the pole and carry- might relieve them of the character of tresing a high-tension current of electricity to be passers, but would leave them in the position insufficient, although it appeared sufficient to of mere licensees, to whom the defendant persons who, like the said Harry Stansfield, would owe only the duty to avoid exposing were not familiar with electricity; and that them willfully to the risk of injury. Heskell v. the defendant neglected to warn him of the Auburn Light, Heat & Power Co., supra; Fitzconcealed danger, or to warn the public by patrick v. Glass Mfg. Co., 61 N. J. Law, 378, 39 sign or notice against climbing the pole by Atl. 675; Rooney v. Woolworth, 74 Conn. 720, means of the spikes; that the said Harry 52 Atl. 411; 15 Cyc. 475. By the decision of Stansfield, in ascending the pole in reliance this court in Benson v. Baltimore Traction upon said invitation and representation of Co., supra, the principle of implied invitation the defendants, and acting (as he reasonably was held not to be intended for the protection supposed) in accordance with the intention of of "those who go where they are not invited, the defendant in placing the spikes on the but merely with express or tacit permission, pole, and being ignorant of the hidden dan- from curiosity or motives of private convenger caused by the insufficiency of the insula- ience, in no way connected with business or tion and by the high-tension current, and other relations with the occupant." In Heswithout any fault or negligence on his part, kell v. Auburn Light, Heat & Power Co., suaccidentally came in contact with the insuffi- pra, a telephone company, without previous ciently insulated wires, and in consequence of permission, attached its wires to the pole of such contact was instantly killed. Upon the an electric light, heat, and power company case thus stated the widow and children of in a public street, but the latter company the deceased seek to recover damages for the afterwards tacitly permitted such use to conloss they have sustained by this unfortunate tinue. An employé of the telephone comaccident. pany, in mounting the pole to ascertain the condition of the telephone lines, was fatally injured by coming in contact with a wire belonging to the other company which was dangerously placed or defectively insulated. The suit was against the light, heat, and power company. It was held that there was no mutuality between the two companies, and that the injured employé of the telephone company was not on the pole in pursuance of an implied invitation from the defendant, but as a volunteer or mere licensee, "who used the pole subject to all the concomitant conditions and perils, and to whom the sole duty of the defendant was abstention from inflicting intentional or wanton or willful injury."

The injury for which the suit was brought having occurred to one who had reached the place of danger by climbing the pole maintained by the defendant for the very purpose of suspending the wires at a suitable and safe elevation above the highway, the question to be determined is whether the declaration shows any violation of duty on the part of the defendant with reference to a person thus situated. While the pole and wires were located on and over a public thoroughfare, they were the defendant's property, and were necessarily subject to its control in order that its obligations to the public might be performed, and that its own interests might be protected. The theory of the suit is that in providing a permanent and convenient means of ascent the defendant impliedly invited the public to use the pole for such purposes as the one which led to the accident. In our opinion, the principle of implied invitation is not applicable to the case presented. There was no community of interest between the defendant and the injured party which induced his visit to the place where he came in contact with the wires. The principle invoked does not apply to those who receive injuries on premises they have entered from motives which have no relation to the business or interest of the proprietor. Benson v. Baltimore Traction Co., 77 Md. 535, 26 Atl. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436; Kalus v. Bass, 122 Md. 467, 89 Atl. 731; Heskell v. Auburn Light, Heat & Power Co., 209 N. Y. 86, 102 N. E. 540; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Purtell v. Philadelphia Coal Co., 256 Ill. 110,

The demurrer in the case before us admits the allegation of fact that the spikes projecting from the pole afforded a convenient method of ascent, but it does not have the effect of conceding, as a conclusion of law, that the plaintiff was thereby impliedly invited to visit the defendant's overhead fixtures. There could be no possible doubt in the mind of any observer that the spikes were intended for the exclusive use of those engaged in the work of keeping the equipment in order. The very nature of the appliances and of the service in which they were employed made it apparent that their use or occupation by strangers would not be in accord with the interests of those operating the franchise. It is perfectly obvious, therefore, that there was no mutuality of interest between the defendant and the deceased which would enable us to hold that his ascent of the pole was induced by an implied invitation.