word, which would have made the intention beyond all question, would have been omitted. And for other reasons we are of the opinion that it was not the intention of the Legislature that only the real estate of such benevolent and charitable institutions as is occupied by them exclusively should be exempt from taxation.

The purpose and meaning of this exception seem to us obvious. It frequently happens that such an institution desires to erect or to purchase a building which will afford accommodations for its own use and purposes, but at the same time it is considered desirable, for economical and financial reasons, that the building should contain other space that could be used and rented for stores and for other commercial purposes, the rent of which would help to pay the cost of maintenance and the interest upon the investment; and the purpose of the Legislature in making this exception to the general exemption was, we think, that such portions of the building as were intended to be used and were used for other purposes, commercial or otherwise, should not be subject to this exemption, but should bear its just proportion of the burden of taxation. An illustration of a situation of this kind is found in Auburn v. Young Men's Christian Association, 86 Me. 244, 29 Atl. 992, where a portion of the defendants' real estate was let for a boarding house, and other portions for stores, and were not at all occupied by the defendants for their own purposes. And a similar situation existed in Foxcroft v.. Pis cataquis Camp Meeting Association, 86 Me. 78, 29 Atl. 951, where a portion of the real estate of the defendant, a religious association, was not needed or used by the defendant for its own purposes, and consequently was let for uses and purposes entirely alien to those of the association.

The occupation contemplated by the statute must undoubtedly be an actual occupation, and something more is required than that which results merely from ownership and possession on the part of the institution, or from the use of the property for investment purposes. Phillips Academy v. Andover, 175 Mass. 118, 55 N. E. 841, 48 L. R. A. 550. The decision of this question must undoubtedly depend very largely upon the facts and circumstances of each case. There may be cases where the use of the property of such an owner for other purposes is of such a dominant character, and the occupation by the owner for its own purposes is so incidental and trivial, or where the use of the property by the owner for its own purposes is so plainly an attempt to evade taxationthe substantial use and occupation being for other purposes-that such occupation would not be sufficient to make the property exempt from taxation under our statutes.

What we decide is simply this: that where a building of such an association is designed for use by it for its own purposes, and a sub

stantial use is made of all of the building by the association for its own purposes, in good faith, the property is exempt from taxation under our statutes, notwithstanding such occupation may not be exclusive, and the owner may sometimes allow other associations and individuals to use some portions of the property for a rental, when it can be done without interfering with the use of the same by the owner for its own purposes.

The decisions of courts of other states in construing somewhat similar exemption statutes of their state are not of much assistance, since the result depends entirely upon the construction of the particular language of our own statute; but a discussion of the general subject, and a construction of statutes more or less similar to ours, but still differing in important particulars, may be found in the following cases: First Society of Hartford v. Hartford, 66 Conn. 368, 34 Atl. 89; St. Mary's Church v. Tripp, 14 R. I. 307; Salem Lyceum v. Salem, 154 Mass. 15, 27 N. E. 672; Harvard College v. Assessors of Cambridge, 175 Mass. 145, 55 N. E. 844, 48 L. R. A. 547. In accordance with the stipulation of the report, the entry will be: Judgment for defendant.

REAL ACTION-TRESPASS-MORTGAGE FOR SUP. PORT POSSESSION-BREACH OF CONDITION-BURDEN OF PROOF.

1. Ordinarily, in the case of a mortgage given to secure the payment of money, the burden of proving the payment of the mortgage indebtedness is on the mortgagor, and in an action to recover possession by the mortgagee in a mortgage given for his support, where there is no agreement to the contrary, and no clause from which such an agreement may be fairly inferred, the mortgagee is entitled to possession of the mortgaged premises, and to maintain a real action to recover such possession, whether there has been a breach of the condition of the mortgage or not.

2. But it is otherwise in the case of a mortgage given for the support of the mortgagee where it is provided in the mortgage that the support shall be furnished the mortgagee upon the premises described in the mortgage. In such a case the implication is clear that it was the intention of the parties that the mortgagor should retain possession of the premises until a breach of the condition, because possession by him is absolutely necessary in order to enable him to perform the condition of the mortgage. In such a case the burden of proving that there has been a breach of the condition of the mortgage is upon the mortgagee, or upon an assignee who seeks to recover possession of the premises.

3. These two actions were tried together, and at the close of the evidence the presiding justice directed a verdict for the plaintiff in each action. Held, that the facts as shown by the evidence, and which appear in the opinion, were not sufficient to warrant this direction, and that the verdicts must be set aside.

(Official.)

Exceptions from Supreme Judicial Court, Knox County.

Actions by Alwilda S. Davis against Luther O. Poland and by Luther O. Poland against Alwilda S. Davis and others-the latter being a real action, and the former an action of trespass quare clausum for an alleged trespass upon the premises demanded -tried together by order of the presiding justice. At the close of the evidence the presiding justice ordered a verdict for the plaintiff in each action. The jury returned verdicts as directed, assessing damages in trespass action at $63. In the trespass action both parties except, and defendants except in the real action. Exceptions of Davis and Davis and others sustained.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

D. N. Mortland, for Alwilda S. Davis and

Alwilda S. Davis et al. C. E. & A. S. Littlefield and Frank B. Miller, for Luther O. Poland.

WISWELL, C. J. These two cases, by direction of the court, were tried together. That of Poland v. Davis et al. is a real action, while that of Davis v. Poland is an action of trespass quare clausum for an alleged trespass upon the same premises that are demanded in the real action. In the first case the presiding justice ordered a verdict for the plaintiff. He also ordered a verdict for the plaintiff in the action of trespass, submitting the question of damages to the jury, but instructing the jury that there was no evidence of any malice on the part of the defendant in that action, and that the plaintiff could not recover damages for the injury done to the realty, as the title was in Poland.

First, as to the real action. One Edward Crouse, under whom both parties claim, was at one time the owner of the demanded premises. He conveyed them to his daughter, the defendant in the real action, who, with her husband, gave a bond to her father for his support, and secured the same by a mortgage upon the premises. Both bond and mortgage were conditioned for the support of Edward Crouse during his natural life "in the house this day deeded by said Edward to said Alwilda, and at his death give him suitable burial." At the time of the conveyance from Crouse to his daughter he had a wife living, from whom he had separated, who did not join in the conveyance, and who was not mentioned in the bond and mortgage given back for the support of the grantor.

It further appears that the mortgagee, Crouse, left the premises conveyed to Mrs. Davis in the fall of 1900, and thereafter lived with his son Mark B. Crouse in another town in the same county until the time of his death, shortly after midnight on March 18, 1901. Upon the petition of a person claiming

to be a creditor, an administrator was appointed upon the estate of Edward Crouse, who subsequently attempted to foreclose this mortgage to secure the support of his intestate by publication in the newspaper; the last publication being on July 4, 1902. After the expiration of the period allowed for redemption, the administrator, having obtained license therefor from the probate court, conveyed the premises to the plaintiff in the real action. This is the title of the plaintiff, except that, in addition to this, it also ap pears that the widow of Edward Crouse, who did not join in the conveyance to Mrs. Davis, after the death of Crouse conveyed her interest in the property to Poland. The plaintiff sought to recover the whole of the demanded premises, and the verdict ordered by the presiding justice for the plaintiff was for the whole of the premises.

fendants as to the validity of the attempted Various questions are raised by the deforeclosure and as to other matters, which need not now be considered, both because of our conclusion as to the propriety of the direction of the verdict, and also, so far as the validity of the foreclosure is concerned, because we think that it is immaterial whether the mortgage was foreclosed or not, since, if the foreclosure was invalid, the deed from the administrator to the plaintiff would probably be sufficient to affect an assignment of the mortgage, if it then existed unextinguished, and this would be sufficient to authorize the plaintiff to maintain this action, if the other necessary facts exist.

But, except as to the title to an individual interest, which Poland has by reason of the conveyance to him from the widow of the previous owner, it is plain, we think, that before the plaintiff in the real action would be entitled to a judgment for possession of the whole of the demanded premises, or to a verdict upon which such a judgment would be based, he must show that this mortgage was existing and unextinguished at the time of the appointment of the administrator, at the time of the conveyance or assignment to him, and at the time of the commencement of the suit, except, perhaps, as it may have been extinguished by the foreclosure; in other words, he must show that there had been a breach of the condition of the mortgage. Ordinarily, in the case of a mortgage given to secure the payment of money, the burden of proving payment of the mortgage indebtedness is on the mortgagor. Crooker v. Crooker, 49 Me. 416. And where a common-law judgment for possession only is sought it is not even necessary for the mortgagee to produce the notes referred to in the mortgage, or other evidence of the existence of the mortgage indebtedness, where there is no evidence to the contrary, and no circumstances from which a payment of the indebtedness may be inferred, although it is otherwise when

either party asks for a conditional judgment. Morse v. Stafford, 95 Me. 31, 49 Atl. 45. And so, too, in an action to recover possession of premises by the mortgagee in a mortgage given for his support, where there is no agreement to the contrary, and no clause from which such an agreement may be fairly inferred, the mortgagee is entitled to possession of the mortgaged premises, and consequently can maintain a real action to recover such possession, whether there has been a breach of the condition of the mortgage or not. Hadley v. Hadley, 80 Me. 459, 15 Atl. 47, and numerous other cases in this state. But in this case, where the condition both of the bond and of the mortgage provided that the support be furnished Crouse should be in the house upon the premises described in the mortgage, the implication is clear that it was the intention of the parties that the mortgagors should retain possession of the premises until a breach of the condition, because such possession is absolutely necessary in order to enable the mortgagors to perform the condition of the mortgage. Therefore neither the mortgagee in his lifetime, nor his administrator, nor an assignee or grantee of the administrator can maintain this action for possession, so far as it is based upon the mortgage, unless it is shown that there was a breach of condition of the mortgage. Without any evidence at all upon this question, the defendant would prevail. Therefore, in accordance with the familiar principles, in order to maintain this action for the recovery of the whole of the demanded premises, the burden of proving a breach of the condition is upon the plaintiff. This was decided in Bryant v. Erskine, 55 Me. 153. The burden then being upon the plaintiff, we do not think that the facts stated in the bill of exceptions so clearly show a breach of the condition of the mortgage as to warrant the presiding justice in taking the case from the jury and in directing a verdict for the plaintiff. As we have already seen, the mortgagee left the defendants' home some months before his death, and made his home with his son, in another part of the county, until the time of his death. There is no evidence whatever of any failure upon the part of the mortgagors to support him up to that time. To perform the condition of this mortgage, it was not the duty of the mortgagors to support the mortgagee elsewhere, and, although it was a part of the condition that they should give him a suitable burial at his death, that did not require the mortgagors to follow him wherever he might see fit to go, and to provide for his burial wherever he might be at the time of his death, after he had voluntarily abandoned the home which they were bound to provide for him.

It further appears from the exceptions that the mortgagee's son employed an undertaker to attend to the burial of his father, who rendered all necessary services, and took

charge of the funeral. Whatever may have been the duty of the mortgagors to attend to these matters under some circumstances, if somebody else voluntarily assumes this duty, it was not a breach of the condition by the mortgagors, and neither was it a breach upon their part to refuse to pay the expenses thus voluntarily incurred by the son. Daniels v. Eisenlord, 10 Mich. 454, cited in Jones on Mortgages, § 393.

But it is said in the exceptions-and this is the only breach that is substantially relied upon-that the mortgagors were notified of the mortgagee's death, that all arrangements had been made for the funeral, and were requested to dig the grave or to have it dug at their expense, and that they refused to do so. We do not think that it can be said from this bare statement, without the other facts and circumstances appearing, that there was unquestionably and clearly a breach of the condition. It does not appear where the burial was desired by the son who had assumed to take charge of the matter. The mortgagors were certainly not obliged to go to the town, in another part of the county, in which the mortgagee died, and take the remains from there, nor where they required to provide for the burial in that town, and whether or not this was the purpose and request of the son who made the request does not appear. They were not required to perform this duty in any particular place. Their only duty, under any circumstances, was to give him a suitable burial. This might have been upon the premises, or in a cemetery, or it might have been entirely suitable and proper to have placed the remains in a receiving tomb, until in some more favorable season of the year than the month of March they could select a suitable place and have a grave dug for the remains of the deceased. Where the only breach of the condition that can be claimed is the failure to pay the trifling expense that would be necessary in the respect referred to, we think that it should be made to appear very clearly that there was such an unreasonable refusal to perform this service as would constitute a breach of the condition before a verdict should be directed necessarily based upon such breach.

In the action of trespass quare clausum both sides have alleged exceptions; the defendant because a verdict was ordered against him, the plaintiff because of the ruling that the plaintiff could not recover for injuries done to the freehold, since the title was in Poland, as well as for other reasons. Upon the death of Edward Crouse in 1901, leaving a widow and issue, one-third of these premises, of which he had been seised during coverture, descended to his widow; her interest therein not having been barred or released. Rev. St. c. 77, § 1. She thereby became a tenant in common with the owner of the other two-thirds. Longley v. Longley, 92 Me. 395, 42 Atl. 798. And upon the conveyance from the widow to Poland he became

such tenant in common. The trial of the case, however, proceeded upon the ground that Poland was the owner of the whole of the premises, that the plaintiff was a tenant, and that under the circumstances of the case she could maintain an action of trespass against her landlord for such acts as were committed by him. This was an erroneous theory, so far, at least, as the facts now appear and in view of our conclusion in the real action. A new trial must therefore be ordered in this case as well as in the other.

We need not now determine whether or not the acts complained of as trespasses and the circumstances of the case are such as to authorize the maintenance of an action of trespass quare clausum by one co-tenant against another. This can be done under some circumstances; for instance, as provided in Rev. St. c. 97, § 5, and perhaps under other circumstances.

Defendants' exceptions in the real action and plaintiff's exceptions in the action of trespass sustained.

(68 N. J. E. 279)

CAMDEN & T. RY. CO. v. UNITED STATES CAST IRON PIPE & FOUNDRY CO. et al. (Court of Chancery of New Jersey. Nov. 19, 1904.)

STREET RAILWAYS-USE OF STREETS-COMMON RIGHTS-SPEED OF CARS-SPECIAL DEVICES.

1. The use of the public highways by street railway cars running on tracks there laid is a modification of the public use to which those highways are originally devoted.

2. The street railway companies enjoy the right to run their cars upon the public highways in common with other persons whose vehicles may be crossing over or passing on those high

ways.

3. Every one using such an easement in common with others is bound so to regulate his own use of the common right that he does not unreasonably interfere with other persons in their enjoyment of it.

4. Express statutory limitation of the speed at which street railway cars may be driven along public highways is not necessary to cast upon railway companies, in using the public highways, the obligation so to restrain the speed of their cars that other vehicles may reasonably enjoy the common use of the way.

5. Where a railway company using a public street can, by reasonably slowing the speed of its own cars, remove the probability of collision with other vehicles crossing or traveling the street, it has no equity to require other users of the way to provide expensive special devices to insure the street railway the opportunity to drive its cars in the public street safely at unlimited speed.

6. When the circumstances which attend upon the enjoyment of a common easement of way at grade by two or more users at the same place show that the interference of one user with another will only be occasional and insignificant, this court will not compel the introduction by the later user of special devices to prevent collisions.

(Syllabus by the Court.)

Bill by the Camden & Trenton Railway Company against the United States Cast

2. See Street Railroads, vol. 44, Cent. Dig. § 193.

Iron Pipe & Foundry Company and others. Dismissed.

The complainant in this bill was originally incorporated by the name of the Monmouth Traction Company, under the statute known as the "Trolley Act," approved March 14, 1893 (P. L. p. 302). In October, 1899, the name of the complainant was, by certificate filed in the Secretary of State's office, changed from the Monmouth Traction Company to the Camden & Trenton Railway Company. The complainant company has constructed its electric railway from Camden to Trenton. A portion, by virtue of an ordinance of the city of Burlington, has been located and laid longitudinally along Pearl street, in that city. The complainant company is now engaged in operating a street railway by the motive power of electricity for the carriage of passengers to and fro along the whole of its route, of which its tracks lying in Pearl street, as above stated, form a part. The defendant the United States Cast Iron Pipe & Foundry Company is a manufacturing corporation, and owns the property lying on each side of Pearl street. It is presently conducting there the business of making cast iron pipes. The nature of the business requires the defendant company to have the use of steam railroad tracks across Pearl street, and therefore across the tracks of the complainant company at that point, for the carriage of raw material and manufactured stock to and from the various departments of its business, and also to and from the Pennsylvania Railroad, with which the railroad tracks lying in the defendant company's premises connect and gauge. The cars used in the conduct of the defendant company's business carry freight only. Their movement is accomplished by means of a steam locomotive furnished by the Pennsylvania Railroad Company, which has an engineer and fireman, a conductor and brakeman, on the train. The defendant the city of Burlington has the regulation and control of the public highways of that city, one of which Pearl street is by all parties admitted to be. The complainant company, with its electric railway tracks, the defendant foundry company, with its steam railroad crossings, and the city of Burlington, with its public highway-Pearl street-each has a right to the use of the same place; i. e., the location where the tracks of the electric railway and those of the steam railroad will cross each other in Pearl street, the public highway. The bill of complaint is filed by the electric railway company to obtain a decree which shall adjust the manner in which the parties shall respectively use and enjoy their several privleges at the points where each has a right of passage.

The following diagram will indicate the lay of the land at the places in Pearl street, in the city of Burlington, touching which this controversy has arisen: