a way had existed and been used for nearly 20 years before the proceedings of the commissioners in 1861. It is accordingly claimed that the travel upon the way thereafter was but a continuation of the prior use, and in no way founded upon the recorded location of 1861; and that the only easement the public acquired in the plaintiff's land had its origin in the "acceptance" of a way by the town in 1841.

It

But in the light of the facts already stated it is not perceived that this distinction is a material one in this case. The important structural changes made at different points in the way after the new location were unmistakable evidence of an intention to subject the entire extent of it to public use, as the exigencies of travel might require. was not necessary that a new form of servitude should at once be imposed on every abutting lot throughout the length of the new location. Using any part of the four rods of the road was in effect using the whole of it. As stated by Peters, C. J., in Heald v. Moore, 79 Me. 274, 9 Atl. Rep. 734, "the widened road became a new road. * * The moment the traveler passed over the usual traveled track afterwards, the new road-all of the road-became dedicated to the public use."

For 31 years there had been no occasion to widen the traveled way in front of the plaintiff's house. But in the progressive development of public enterprises and improvements increased facilities for travel and new modes of using the highways and streets have been demanded. In the summer of 1892 an electric railway was duly located on this street past the plaintiff's premises, the westerly line of it being practically identical with the westerly line of the street as then actually wrought and used. Prior to this time, the plaintiff's lot being higher than the street, a bank wall had been maintained in front of it on the line of the street as then used, but in constructing the railway this wall was removed with the plaintiff's consent, and the embankment newly graded and sodded. At the front of the house the lot is from 9 to 11 feet above the grade of the street as now wrought, and slopes down to the bank, the top of which is about 5 feet above the present grade.

The building of the street railway also made it necessary to remove the only sidewalk then existing upon this street except the one over the ledge above described. Thereupon a town meeting was held in the town of Rockport, July 6, 1892, "to see if the town will vote to locate the sidewalk on Commercial street in said Rockport, from Hoboken schoolhouse to the iron bridge, on the westerly side of said street, and instruct the road commissioner to build said walk at once from said schoolhouse to E. H. Bower's house," and it was voted that "the sidewalk should be located and built upon the

right-hand side of Commercial street, from the iron bridge to Hoboken schoolhouse, and instruct the road commissioner to build it at once."

It is not in dispute that the location of the sidewalk described in this vote extends across the lot occupied by the plaintiff on the westerly side of the street, and that it is proposed to construct it wholly within the limits of the street as "widened" and "laid out" in 1861. But the plaintiff still contends that this vote is not sufficient authority for the construction of the sidewalk, because it does not prescribe how much of the street shall be used for that purpose, and because the town has not by any ordinance or by-law set off any portion of the street as a sidewalk.

The location of the proposed sidewalk is within the limits of the highway, and when constructed it will still be a part of the highway. In Hunt v. Rich, 38 Me. 195, the power of a highway surveyor to change the course of travel within the located limits of a highway, by virtue of his official authority alone, was distinctly recognized; and in Cyr v. Dufour, 68 Me. 492, where there had been an alteration of an existing way, the action of the highway surveyor in preparing the newly-located portion for public travel was sustained by the court, although the work was done without the authority of a vote of the town or special directions from the selectmen. The provisions of Rev. St. c. 3, § 59, par. 6, that "towns may make by-laws or ordinances for setting off portions of their streets for sidewalks," etc., and of section 17, c. 18, Rev. St., of similar purport, were designed to confer a power or capacity to do the acts mentioned. They are not mandatory or restrictive. The control which a town has over its streets under the paramount authority of the legislature is not lost or impaired by an omission to pass a general ordinance respecting sidewalks. That control involves duties and responsibilities which, under our statutes, are largely delegated to highway surveyors and road commissioners. These officers, however, are amenable to the instructions of the town. By a vote passed at a legal meeting the inhabitants may determine the exact location of a sidewalk, and prescribe all the details of its construction. They may intrust the less important features to the discretion of the road commissioner, or may impose upon him the entire responsibility.

In the case at bar the vote of the town locates the sidewalk on the westerly side of the street, and instructs the commissioner to build it at once. It was competent for the town to intrust to the commissioner the execution of the details. The vote is sufficient to authorize the construction of the sidewalk as contemplated.

The proposed action of the road commissioner in building a sidewalk within the limits of the highway with the co-operation of

True, the language of the condition relied upon by the plaintiff is that, in "settling a loss, the damage is to be paid in full.” But the word "damage," as there used, considering the intention of the parties as disclosed from an examination of the whole instrument, may properly be construed as referring, not to the amount of loss which the plaintiff has sustained, but rather, in its legal acceptation, to the recompense or compensation to which the plaintiff is entitled from the company,-not the amount of loss, but the amount recoverable by reason of the loss. The damage "is to be estimated according to the fair value at the time of the fire," the obvious meaning of which is that the fair cash value of the property is to be ascertained, and the damage-the amount for which the company is liable-is to be estimated therefrom. Nor can this exceed two-thirds the value of the property at the time the loss occurs, and in no event "exceeding the whole amount insured," however great may have been the value of the property destroyed, or the actual loss to the party insured.

Such a construction harmonizes all the dif ferent parts of the contract, effectuates the intentions of the parties, and is supported by reason as well as authority.

"The design is to prevent frauds and negligence, by making it an object with the owner to guard his property from exposure to fire, and to preserve it from destruction when the calamity comes, and, by this increased security, to induce honest persons, who are men of property, to become members of such companies, and who will be able and willing to contribute in event of loss." Holmes v. Insurance Co., 10 Metc. (Mass.)

211.

In Insurance Co. v. Housinger, 10 Ohio St. 10, the insurers were to pay "all loss or damage," not exceeding the sum insured, the lossor damage to be estimated according to the true and actual value of the property at the time of loss, and to be paid at the rate of two-thirds of its actual cash value. The court held that the two clauses, construed together, meant that the insurers should pay two-thirds of the actual value of the property at the time of the fire, not, however, exceeding the sum insured.

So where a policy insuring the plaintiff's barn against fire contained the following clause: "This company shall in no event be liable beyond the sum insured, nor beyond three-fourths of the actual cash value of the property insured at the time of the loss or damage," the court held that the amount recoverable was three-fourths of the actual cash value at the time of the fire, to be determined by the jury on the evidence. "It is an express contract," say the court, "between the parties, limiting the liability of the company to three-quarters of such actual

396. To the same effect may be cited Huckins v. Insurance Co., 31 N. H. 238; Post v. Insurance Co., 12 Metc. (Mass.) 555. Exceptions overruled.

PETERS, C. J., and WALTON, LIBBEY, and HASKELL, JJ., concurred.

GOVE v. CITY OF BIDDEFORD. (Supreme Judicial Court of Maine. April 24, 1893.)

SPECIFIC PERFORMANCE-REMEDY AT LAW-MUNICIPAL CONTRACT.

1. If municipal authorities make contracts in relation to sewers, or other similar structures, which are binding on the municipal corporations, and the latter neglect or refuse to perform them, redress must be sought, as a general rule, in actions at law.

2. A bill praying for specific performance, in which the aid of a court of equity may be properly sought in such case, must contain a full and clear statement of the circumstances which create the exception, and render the assistance of the court necessary.

(Official.)

Report from supreme judicial court, York county.

Bill in equity by Charles G. Gove against the city of Biddeford for the specific performance of a contract. Heard on report. Bill dismissed.

The bill was filed January 6, 1891, against the city of Biddeford, the mayor, aldermen, and common councilmen. Its material allegations are that "on the 24th day of February, A. D. 1888, said city of Biddeford, by its written agreement under seal, for a good and sufficient consideration, to it moved, agreed with your complainant to maintain the drain or sewer herein described, and to extend said drain or sewer within a reasonable time from said date.

**Your complainant further alleges that said city of Biddeford has neglected and refused, from said 24th day of February, A. D. 1888, to the date of this bill of complaint, to extend said sewer or drain over and across said land, as aforesaid; and your complainant alleges, upon information and belief, that a reasonable time to build and extend said sewer or drain has long since elapsed.

"Your complainant further alleges that, by reason of the nonperformance of said agreement by said city of Biddeford, his property is greatly damaged, and he is prevented from using his land in said Biddeford, over which said city agreed, as aforesaid, to extend said sewer or drain, for building lots, as he otherwise would do."

The bill then alleges that the defendants, personally named, are the mayor, aldermen, and common councilmen, and charges them with the same neglect and refusal which are charged against the defendant city, etc.

Hamilton & Haley, for plaintiff. Charles T. Read, City Sol., for defendants.

WALTON, J. This is a suit in equity. Annexed to the plaintiff's bill is a paper signed by the plaintiff and four other persons, the latter professing to act as a committee of the city of Biddeford, in which, among other things, it is agreed that the city shall extend a sewer through the plaintiff's land; and the plaintiff avers that a reasonable time has elapsed, and that the city has neglected and refused to extend the drain through his land, as it agreed to do, and he prays that the court will decree a specific performance of the agreement.

The city denies that the persons who undertook to act as its committee had authority so to do, and denies that their action is binding upon the city; and it says, further, that the plaintiff has a plain, adequate, and complete remedy by an action at law, and that he has in fact commenced such an action, and that it is now pending in court; and the city demurs to the bill.

We think the demurrer must be sustained. It has been denied that a municipal corporation can bind itself by such a contract. In a recent case in Wisconsin, the city of Hartford had agreed to erect a city hall on a lot of land which the plaintiffs had conveyed to the city for that purpose, and the plaintiffs asked for a decree to compel a specific performance of the agreement; but the court refused to grant it, on the ground that the judgment and discretionary authority of the city council could not be bound by such an agreement; that if such an agreement had been made, still, if, upon further consideration, it was deemed best to build upon another lot, the city had a right so to do, and that it would be highly improper for a court of equity to interfere with the quasi judicial or legislative power of municipal corporations in matters which concern the welfare and convenience of all their citizens; that in such matters municipal corporations must be left at all times free to exercise their powers, untrammeled by the private interests of individuals. Kendall v. Frey, 74 Wis. 26, 42 N. W. Rep. 466.

In a case in Tennessee it was held that a court of equity had no power to compel a city to build a sewer; that the building of a public sewer by a municipal corporation is the exercise of a legislative discretion, which the courts cannot rightfully coerce or control. Horton v. Mayor, etc., 4 Lea, 39. And to the same effect is Mills v. City of Brooklyn, 32 N. Y. 495.

If municipal officers or duly-authorized committees make contracts in relation to sewers, or other similar structures, which are binding upon their towns or cities, and the latter refuse or neglect to perform them, we think redress must, as a general rule, be sought in actions at law; and if an exceptional case arises, in which the aid of a court

of equity may properly be sought, (and we do not mean to say that such a case is impossible,) the bill praying for a specific performance must contain a full and clear statement of the circumstances which create the exception, and render the assistance of the court necessary, or the relief prayed for will not be granted. In fact, this court has recently held that, in all cases in which decrees compelling the specific performance of contracts are asked for, the bills must contain allegations sufficient to show that actions at law will not be plain, adequate, and complete means of redress.

The bill now before us contains no such allegations. It avers that, by reason of the nonperformance of the agreement of the city to extend the sewer, the plaintiff's property is greatly damaged, and that he is prevented from using his land for building lots, as he otherwise would do. But these are only such general allegations as could be made in every case. They show no specific circumstances, such as would be necessary to justify a decree for specific performance. Porter v. Water Co., 84 Me. 195, 24 Atl. Rep. 814. And see Atwood v. Cobb, 16 Pick. 227, 26 Amer. Dec. 661, and note. Bill dismissed, with costs.

PETERS, C. J., and LIBBEY, FOSTER, and HASKELL, JJ., concurred.

EVERETT v. CARLETON et al.

GILMAN v. SAME.

(Supreme Judicial Court of Maine. April 25, 1893.)

EJECTMENT-PLEADINGS-BURDEN OF PROOF-AT

TACHMENT LIEN.

1. Where the only plea in a real action is the general issue, the question is, which party shows the better title in himself.

2. Where a party claims title by virtue of an attachment and levy, and the writ contains only the general money count, with no specification of the "nature and amount" of the claim to be proved under it, such attachment is void, and no lien is created thereon.

3. In this case the plaintiffs' predecessors in title had obtained title by deed prior to the levy made under such attachment.

4. The title, therefore, by deed, in the plaintiffs' predecessors, and transmitted to the plaintiffs, is a better title than that of the defendants, derived under the levy made subsequent to the plaintiffs' title by deed.

(Official.)

Report from supreme judicial court, Piscataquis county.

Action by Charles A. Everett against Samuel D. Carleton and others to recover land, and an action for the same purpose by Frank Gilman against the same defendants. The two actions were heard together on report. Judgment for plaintiff in each

case.

C. A. Everett and Davis & Bailey, for plaintiffs. A. M. Robinson and Wilson & Woodard, for defendants.