442 (26 S. E. Rep. 750). Where a vendor of land advised a third person to purchase the same at a foreclosure sale under a trust deed given by his vendee, he will be estopped to assert, as against such purchaser, the right to rescind the title of the vendee on account of fraud. Boles v. Bennington, 136 Mo. 522 (38 S. W. Rep. 306). One who purchases land expressly subject to a void lease, the consideration for which is the erection of certain improvements on the land by the lessee, will be held estopped to assail the validity of the lease and deprive the lessee of his possession after he has performed his part of the agreement. Poplin v. Clausen, Ind. Ter.

(38 S. W. Rep. 974).~

As against a purchaser of a mining claim, the owner of an adjoining claim is estopped to deny a boundary line which he represented to such purchaser before he made his purchase as the dividing line between the claims. Schultz v. Allyn,

Ariz. (48 Pac. Rep 960). Where one party to a contract for the sale of lands which specifies a fence as a line, immediately after the execution of the contract surveys the lines fixing a certain fence as the one referred to in the contract, he cannot, after the death of the other party to the contract give evidence denying the fixing of that fence as the line. Anderson v. Jarrett, 43 W. Va. 246 (27 S. E. Rep. 348). A prior appropriator of a water right in full enjoyment of his completed appropriation is not estopped to assert it, as against one having full knowledge of his claim, by his inducing the latter to purchase land in his vicinity and representing to him that the waters of the stream would be sufficient to satisy the needs of them both. Smyth v. Neal, 31 Or. 105 (49 Pac. Rep. 850). An abutting owner who has recovered and accepted damages on account of the appropriation of his property by a city for a public street, cannot afterwards question the easement of the public in such street in order to defeat an assessment made against him for its improvment. Hawver v. City of Omaha, 52 Neb. 734 (73 N. W. Rep. 217). Where an expensive viaduct was constructed by a city, which, with the knowledge, acquiescence and oral consent of a property owner extended a few inches over upon his property, where it was maintained for about five years before complaint was made by him, it is held that such owner

structure.

is estopped from claiming exclusive possession of the ground so occupied or from interfering with the maintenance of such Parker v. City of Atchison, 58 Kan. 29 (48 Pac. Rep. 631). For particular fact case illustrating the application of the doctrine of estoppel in pais, see Beede v. Pabody, 70 Minn. 174 (72 N. W. Rep. 970). Ga. Code, § 3753, construed and applied-estoppel in pais. Henry v. McAllister, 99 Ga. 557 (26 S. E. Rep. 469).

Sec. 317. Estoppel as applied to the public. A city which has acquired by prescription the right to use land for an alley is not estopped to claim the right to use all of such land for alley, by its abandonment of subsequent proceedings to assess abutting property for the improvement of such alley upon objections being filed which dispute the right of the city to use part of the land for an alley. City of Chicago v. Sawyer, 166 Ill. 290 (46 N. E. Rep. 759). Where a city acquiesces in a boundary of a street, as claimed by a lot owner, for more than thirty years, improves the street and sidewalk in reference thereto, and permits the owner to erect his buildings and fences according to it, it will be estopped to dispute such boundary and claim a part of the lot occupied by the owner's buildings as belonging to the street. City of Joliet v. Werner, 166 Ill. 34 (46 N. E. Rep. 780).

An evident and notorious abandonment of a public road or alley, and the physical closing thereof with the knowledge of the municipal authorities, on the faith of which private parties have expended money in improvements, constitutes an estoppel against the reassertion of the public easement. Baldwin v. Trimble, 85 Md. 396 (37 Atl. Rep. 176; 36 L. R. A. 489) ; Fordan v. City of Chenoa, 166 Ill. 530 (47 N. E. Rep. 191). In the first case cited the court say: "There is a line of cases proceeding upon the maxim,' Nullum tempus occurrit regi,' which holds that the rights of the public to a street or thoroughfare cannot be barred by nonuser, and that every act of asserted ownership, such as occupancy, hostile to the public use, is a nuisance, which can never ripen into a private right by mere efflux of time; while another series of cases, founded on the assumption that limitations run against the state, or else that the maxim above cited does not apply to municipali

ties, holds that the same acts of adverse user and possession which would extinguish a private easement will likewise destroy the easement of the public in a street or highway. The precise question, as we now have it presented, has not heretofore arisen in Maryland, at least, our investigations have not discovered, nor have counsel in their arguments referred us to, any adjudication thereon,-though there are three cases decided by this court which explicitly hold that no right to maintain a public-nuisance in the form of an encroachment on the highway can be acquired by prescription. To these cases we shall have occasion to allude in a moment. In California, Louisiana, Mississippi, New Jersey, New York, Pennsylvania, and some other states it has been held that the right of the public to the use of a highway cannot be lost by mere nonuser or lapse of time, though coupled with occupancy by individuals for purposes other than and inconsistent with those of a thoroughfare; and the doctrine, in its broad terms, is maintained in many opinions of great force. People v. Pope, 53 Cal. 437; Orena v. City of Santa Barbara, 91 Cal. 621 (28 Pac. Rep. 268); Mayor etc. of Thibodeaux v. Maggioli, 4 La. Ann. 73; City of Vicksburg v. Marshall, 59 Miss. 563; Mayor etc. of Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq. 547; Burbank v. Fay, 65 N. Y. 57; Com. v. Moorehead, 118 Pa. St. 344 (12 Atl. Rep. 424; 4 Am. St. Rep. 599). On the other hand in Arkansas, Illinois, Kentucky, Massachusetts, Michigan, Missouri, Vermont, and other states, the converse is asserted; and it is held that notorious and uninterrupted possession by a private individual, under a claim of right of land dedicated to a city for public streets, for the period of the statute of limitations, will bar the city to claim its use. Ft. Smith v. McKibbin, 41 Ark. 45 (48 Am. Rep. 19); City of Peoria v. Johnston, 56 Ill. 45; Dudley v. Trustees of Frankfort, 12 B. Mon. 610; Cutter v. Cambridge, 6 Allen 20; Gregory v. Knight, 50 Mich. 61 (14 N. W. Rep. 700); St. Charles Co. v. Powell, 22 Mo. 525 (66 Am. Dec. 637); Cincinnati v. Evans, 5 O. St. 594; Knight v. Heaten, 22 Vt. 481. This subject is ably and elaborately discussed, and the adjudged cases are collected and classified in a learned and carefully prepared note to Maire v. Krusc, 85 Wis. 302 (55 N. W. Rep. 389; 26 L. R. A. 449). The second of these

conflicting propositions is not only not sustained by any adju dication in Maryland, but is directly in antagonism to what we apprehend to be the law of this state; while the first is wholly inapplicable to the case at bar, for the simple reason that the title of the appellant to the road does not depend on prescription as against the public, but upon his deeds and the fact of an abandonment of the public easement, whereby the rights of the public over the road were extinguished. While an encroachment on a highway is conclusively settled in Maryland to be a public nuisance, which can never grow by prescription into a private right (Philadelphia W. & B. R. Co. v. State, 20 Md. 157; Northern Cent. Ry. Co. v. Mayor etc. of Baltimore, 21 Md. 93; Ulman v. Avenue Co., 83 Md. 130 (34 Atl. Rep. 366), yet it may be true and in perfect harmony and accord with that doctrine, that cases concerning public streets can arise of such a character, and be founded upon such an actual and notorious abandonment of the highway by the public, that justice requires that an equitable estoppel shall be asserted even against the public in favor of individuals. In that event, such cases, as observed by Judge Dillon, will form a law unto themselves,' and will not fall within the legal operation of limitation enactments. *

'There is no danger,' he continues in recognizing the principle of an estoppel in pais as applicable to such cases, as this leaves the court to decide the question, not by the mere lapse of time, but by all the circumstances of the case, to hold the public estopped or not, as right and justice may require.' 2 Dill. Mun. Corp. (2d Ed.), § 533. And this proposition is supported by Goodrich v. Milwaukee, 24 Wis. 422; Lane v. Kennedy, 13 O. St. 42; Com. v. Miltenberger, 7 Watts 450; Logan Co. Sup'rs v. City of Lincoln, 81 Ill. 156; Piatt Co. v. Goodell, 97 Ill. 84; Simplot v. Railroad Co., 16 Fed. Rep. 350; and, while not decided, is implied in Mayor etc. of Baltimore v. Frick, 82 Md. 86 (33 Atl. Rep. 435)."

EVIDENCE.

EPITOME OF CASES.

Sec. 318. Admissibility of deeds-Altered deeds. An altered instrument may be admitted in evidence upon proof of its execution. Cosgrave v. Fanebust, 10 S. Dak. 213 (72 N. W. Rep. 469). When erasures appear upon a deed in a material part, it is improper to admit it in evidence without an explanation thereof by the parties offering it. Riseden v. Harrison, Tenn. (42 S. W. Rep.884). An alteration made by a vendee in a memorandum of sale after it has been signed, by which, if valid, its scope, as evidence against the vendors, would be enlarged, is a material alteration, and annuls the instrument as a contract and as evidence, in favor of the vendee. Quinzel v. Schmidt, N. J. L. (38 Atl. Rep. 665). An appellate court cannot determine that a lower court erred in admitting a deed in evidence on account of supposed interlineations where the record contains neither the original deed nor any description of the supposed interlineations. Ward v. Cheney, 117 Ala. 238 (22 So. Rep. 996). The court say: "The mere fact that alterations or erasures or interlineations are apparent on the face of a deed does not destroy its validity. The effect of them, ordinarily, depends upon extrinsic evidence, and is incapable of determination upon a motion to exclude the deed as an instrument of evidence. Ravisies v. Alston, 5 Ala. 297. If apparent on the face of the deed, and nothing appears to the contrary, the presumption is that they were made contemporaneously with the execution of the instrument. But, if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing; it leaves the question of the time, the agency, and the intent with which they were made, as matters of fact to be determined by the jury. 1 Greenl. Ev., § 564; 1 Whart. Ev., § 629."