of the individual service are the principal elements for consideration in fixing the charges as between individual water takers or classes of takers. And it has been held that a public service company cannot make a difference in price according to the use made by the customer, nor is a discrimination proper based on the value of the service to the customer. Baily v. Gas-Fuel Co., 193 Pa. 175, 44 Atl. 251; Richmond Nat. Gas. Co. v. Clawson, 155 Ind. 659, 58 N. E. 1049, 51 L. R. A. 744. And, of course, the water company had the right to establish reasonable rates for service to all customers not provided for in the Laughton & Clergue contract.

An application of these principles will eliminate from further consideration all essential questions except two, and these are questions of fact. The petitioner bases his claim upon the dwelling house clause in the Laughton & Clergue contract. He says that his house was a "dwelling house containing a family," within the meaning of that contract, and therefore that the maximum charge for a family of 15, exclusive of the water-closet, was $10 a year, and further that the family in the house did not exceed 15 in number. All his tenders and his offer in the petition to pay are limited upon that theory. And if it were otherwise, the record does not disclose sufficient data to enable the court to pass upon the reasonableness of the meter rates themselves. The defendant on the other hand claims that the building is not a dwelling house within the meaning of the contract, but is a boarding house, and further that its predecessor was justified in putting in a meter, by reason of the unreasonable waste of water.

The decisive question, and the only one we need to consider, is whether the petitioner's building was a "dwelling house containing a family," as specified in the original contract, or was a boarding house. It is urged in the first place that the company itself has so classified it for quite a long period of years, and that, in consequence, its status is now fixed beyond the power of the company to change. The construction which the parties by their acts place upon a contract frequently is, in cases of doubt, of great value in determining what the contract meant. And when, by long-continued usage, they have given a practical construction to it, it may be beyond the power of one party to change it. West Hartford v. Water Commissioners of Hartford, 68 Conn. 323, 36 Atl. 786. But if it were to be assumed that such a usage should control, it ought to be a usage which has been practically fixed and unvarying. The case shows that all three of the tenants who have occupied the house since the petitioner bought it have kept boarders, but to what extent and under what conditions the two earlier tenants kept them does not appear. And as we shall hereafter see, the mere fact that boarders are kept in a house is not necessarily inconsistent with

the claim that it is a "dwelling house containing a family." Morever, the house was first classified at a time earlier than the petitioner's ownership, and the record shows nothing in regard to the nature of the occupancy at that time, except that boarders were kept. This ground therefore is not tenable, and we must inquire further.

The building itself seems to have been built originally for family use. But it had been used by tenants for keeping boarders, and was being so used when the meter was put on. The tenant, his wife, and three sons lived there. The number of boarders was as low as 3 at times, and at others as high as 10, and perhaps more. The boarders were not transients. They stayed more or less permanently. The term "dwelling house" does not always have the same sense in all cases. It may mean one thing under an indictment for burglary or arson, and another under a homestead law, and another under a pauper law, and another under a contract or devise. A boarding house certainly is a dwelling house. So is a hotel; or a jail (People v. Van Blarcum, 2 Johns. 105); or a single room (People v. Horrigan, 68 Mich. 491, 36 N. W. 236).

But the Laughton & Clergue contract limited the meaning which might be given to the term "dwelling house." The phrase there is "dwelling house containing a family." The word "family" is also of flexible meaning. The meaning varies as the question arises under homestead laws, or exemption laws, or pauper laws, or under insurance policies or wills, or other conditions. Its primary meaning is a collection of persons who live in one house and under one head or management. Dodge v. Boston & Prov. Railroad, 154 Mass. 299, 28 N. E. 243, 13 L. R. A. 318. In that sense it has frequently been defined as synonymous with "household." Webster gives the primary meaning as "persons collectively who live together in a house or under one head or manager; a household, including parents, children, and servants, and, as the case may be, lodgers or boarders." This definition is sometimes quoted in the cases, but we have found no cases sustaining the definition as to boarders in which the matter of boarders was in issue or decided, except two, and they were decided on grounds not involved here. Oystead v. Shed, 13 Mass. 520, 7 Am. Dec. 172; Race v. Oldridge, 90 Ill. 250, 32 Am. Rep. 27. To constitute the family relation between persons so living together it must be of a permanent and domestic character, and not of those abiding together temporarily as strangers. Tyson v. Reynolds, 52 Iowa, 431, 3 N. W. 469. They must be living in one domestic establishment. Pearson v. Miller (Miss.) 14 South. 731, 42 Am. St. Rep. 470. Family means all whose domicile or home is ordinarily in the same house and under the same management or head Cheshire v. Burlington, 31 Conn. 326. It is all the individuals who live together under

the control of another, including the servants. Poor v. Hudson Ins. Co. (C. C.) 2 Fed. 432. It embraces a household composed of parents or children, or other relatives, or domestics; in short, every collective body of persons living together within one curtilage, subsisting in common and directing their attention to a common object, the promotion of their mutual interests and social happiness. Wilson v. Cochran, 98 Am. Dec. 553. It may mean the husband and wife, having no children, or it may mean children, or wife and children, or any group constituting a distinct domestic or social body. Grand Lodge v. McKinstry, 67 Mo. App. 82. Lord Kenyon said: "In common parlance, the family consists of those who live under the same roof with the pater familias; those who form (if I may use the expression) his fireside." The King v. Darlington, 4 Term Rep. 800. The relation is one of social status, not of mere contract, and usually is held to include a legal or moral obligation on the head of the family to support the other members, and a corresponding state of dependence on the part of the other members for their support. 3 Words & Phrases, 2673, and cases cited.

If the foregoing definitions gathered from the cases give a correct view of the various phases of a family relationship as applicable to this case, from the judicial point of view, as we think they do, it is clear that boarders do not constitute the family or a part of it. A family living together in a house as a home is none the less a family, because incidentally there are boarders in the same house, and perchance eating at the same table. But a boarding house is none the less a boarding house, when used as such, because the boarding house keeper and his wife and children live in it while the business of keeping a boarding house is being carried on. The Laughton & Clergue contract limited the rates for "a dwelling house containing a family" to annual flat rates for specified amounts. It contemplated as we think a dwelling house containing a family living together in domestic and social relations in the house as a home, and not a place of carrying on the business of keeping boarders. The test is whether the petitioner's tenant occupied the house as a home for himself and his wife and children, and incidentally kept boarders also, or whether he occupied it as a place for carrying on the business of keeping boarders, although while prosecuting the business, and as a means of prosecuting the business, he and his wife and children live in the house also. Under this test, neither the size of the house, nor the number of the boarders are of importance, except as evidence that may have weight in determining which is the principal use for which the building is occupied. Applying the test to the evidence in this case, we are satisfied that the petitioner's house should be classed as a boarding house, and that it is not within the limitation for dwelling houses in the Laughton & Clergue contract. The tenant used the house for

carrying on the business of keeping boarders, and his living there was incidental to that. That was his business, and his only business of any consequence, as he testified.

Accordingly the petitioner's claim is not sustained, and his petition must be dismissed. But we decide nothing more. The petition is not framed to raise the question whether the rates charged to the petitioner for the house as a boarding house are excessive or not. Neither, as we have already said, is there sufficient evidence upon which to answer such à question. Nor do we say that the rates which the defendant demands are or are not unjust by reason of unlawful discrimination in the classification made by it, and in the charges made to the several classes, nor that the defendant has or has not the right to demand as much of the petitioner as it does, for the unpaid water service. When a customer charges 25 cents a hundred feet to one customer for one use, and only 11 cents for 10,000 feet to another customer for another use, if the water be supplied from the same source, by the same system, in the same pipes, there is an apparent discrimination, but whether it is real or not cannot now be said. See Baily v. Fayette Gas Fuel Co., and Richmond Nat. Gas. Co. v. Clawson, supra. Petition dismissed.

The statutory designation "for station purposes" includes such grounds at a station as are convenient, necessary, and actually used by the railroad for approaches and exits for the public requiring passenger and freight transportation, for the location of depot buildings, warehouses, platforms, fixtures, and apparatus for taking water and fuel supplies, lighting, heating, transmitting messages and giving signals, sidings for passing trains and shifting and storing cars and other property, switches, and space where passengers may get on and off trains and goods be loaded and unloaded. 3. SAME QUESTION OF FACT.

When the facts are clear from undisputed evidence, the question whether the place of a proposed crossing of a railroad by a town way or highway is land or right of way used for station purposes may be one of law, but it must generally be considered one of fact.

4. APPEAL-REVIEW-QUESTIONS OF FACT.

At the hearing in the Supreme Judicial Court on the appeal from the decision of the railroad commissioners, evidence somewhat voluminous and conflicting was presented, and the presiding justice refused to rule as matter of law that the locus in quo was land and right of way of the railroad corporation used for station purposes, and found otherwise upon the evidence as matter of fact. Held, that his rul

ing was correct, and that his finding of facts could not be disturbed.

(Official.)

Exceptions from Supreme Judicial Court, Androscoggin County.

Appeal by the Atlantic & St. Lawrence Railroad Company and the Grand Trunk Railway Company of Canada from the decree of the railroad commissioners determining that a certain public highway within the city of Auburn, Androscoggin county, located by the county commissioners of said county over the land and right of way of the appellants, should cross the railroad track of the appellants by an underpass, and apportioning the expense of the construction and maintenance of the crossing.

At the hearing in the appellate court the appellants requested the presiding justice to rule as a matter of law that, upon the facts presented by the evidence, the decree of the railroad commissioners must be set aside, and the appeal sustained. This ruling was refused, but, instead thereof, the presiding justice ruled that the aforesaid decree be affirmed, with costs, and the appeal be dismissed. To this ruling and refusal to rule the appellants excepted. Exceptions overruled.

Argued before EMERY, STROUT, POWERS, PEABODY, and SPEAR, JJ.

C. A. & L. L. Hight, for appellants. Newell & Skelton, for appellees.

PEABODY, J. The proceedings in this case originated November 20, 1900, in the petition of various citizens of the city of Auburn, in the county of Androscoggin, to the county commissioners, asking for the location of a public highway within the city of Auburn over the land and right of way of the Atlantic & St. Lawrence Railroad Company, leased to the Grand Trunk Railway Company of Canada. The county commissioners, after notice and hearing, on the 2d day of April, 1901, filed with the clerk of the county commissioners their report for the location of the highway.

On the 23d day of March, 1903, the municipal officers of the city of Auburn petitioned the board of railroad commissioners to determine the manner and conditions of crossing the railway with said highway, and apportion the expense of the crossing. Upon this petition as amended June 13, 1904, after notice and hearing, the railroad commissioners, on the 16th day of August, 1904, made a decree determining that said highway should cross the track by an underpass, and apportioning the expense of construction and maintenance of the crossing. An appeal from this decree was duly taken and entered in the Supreme Judicial Court for the county of Androscoggin at the January term, A. D. 1905.

At the hearing on the appeal, evidence was introduced showing the location of the

intersecting tracks of the Maine Central Railroad and of the Grand Trunk Railway at Danville Junction, and of the buildings, signal houses, freighthouses, passenger depots, standpipes for water, carhouse, and pumphouse; that the proposed crossing over the land and tracks of the railroad company was north of the depot, and from 50 to 75 feet north of the northerly switch of the longest siding, and 1,340 feet north of the center of the old county highway immediately south of the station, and 823 feet north of the northerly end of the station platform; and showing other conditions existing at and in the vicinity of the station and proposed crossing at the time of the location of the highway in 1901, and subsequently thereto, materially bearing upon the question at issue. The evidence also showed the transfer of freight between the two railroads; that the greater part of the freight transfer business was done south of the old county highway, near the junction of the two railroads; that the cars going west, delivered to the Grand Trunk Railway by the Maine Central Railroad, were sometimes placed on the westerly siding north of the county highway; that in handling these cars, and making them into trains, it was frequently necessary to pass over the switch 50 to 75 feet south of the proposed crossing, and to move them back and forth over the place of the proposed crossing, and for the trainmen, in making up trains and in shunting cars on and off the sidings, to work at the place where the crossing is located; that the long siding, which runs up to within 50 or 75 feet of the proposed crossing, was used principally in 1901 as a passing track for trains; that at the crossing, and for some distance south, is a fill from 20 to 23 feet in depth, making it unsuitable for the public to go there, either for the loading or unloading of freight, or in connection with the passenger service; that on the main line and on the passing track trains were at times obliged to stop for water at the station, and at times freight trains going east, stopping for water, extended over the point of the proposed crossing; that on the westerly side of the track was the pumphouse for the supply of water for the trains and the depot, since moved to a point north of the crossing on the main line; that it was and is now necessary for coal cars to be hauled upon the main line opposite the pumphouse, and that the coal therefor was unloaded from the main line; that in 1901 the most westerly track was used for the storage of cars; that shunting was sometimes done on the track next to the main line, but this track was principally used as a passing track; and that in 1902 the track next the main line was extended north, and has since continued to be used as a passing track.

It was claimed by the appellants that upon the case presented by the evidence the proposed crossing was, as a matter of law,

through land or right of way of the railroad corporation used for station purposes; that there had been no adjudication by the railroad commissioners, as required by statute, on the question of public convenience and necessity for said crossing or way; and that, therefore, the laying out of said way by the county commissioners was illegal and void, and there was no legal foundation for the petition to the railroad commissioners to make the decree. They requested the court to rule, as matter of law upon the facts presented by the evidence, that the decree of the railroad commissioners must be set aside, and the appeal sustained. This ruling the court refused to make, and, instead thereof, ruled that the decree of the railroad commissioners should be affirmed, with costs, and that the appeal should be dismissed, to which ruling and refusal to rule the appellants excepted, and upon their exceptions the case comes before the law court.

The real question involved in the excep、 tions is whether the land and right of way of the railroad corporation at the point of the proposed crossing are land and right of way of a railroad corporation used for station purposes, within the meaning of section 29, c. 18, Rev. St. 1883, or section 31, c. 23, Rev. St. 1903. This statute is as follows: "Sec. 31. No way shall be laid out through or across any land or right of way of any railroad corporation, used for station purposes, unless after notice and hearing the railroad commissioners adjudge that public convenience and necessity require it. When the tribunal having jurisdiction over the laying out of such way is satisfied, after hearing, that public convenience and necessity require such laying out, such proceedings shall be suspended and petition filed by such tribunal with the railroad commissioners for their adjudication hereunder." This provision originated in section 1, c. 167, p. 134, of the Laws of 1883.

A railroad exercises its franchise in the prosecution of its transportation business, subject to the rights of the public to extend highways over its right of way. Chicago & Alton R. R. v. City of Pontiac, 169 Ill. 155, 48 N. E. 485. In this state its tracks may be crossed by ways laid out in the same manner as other ways, but the manner, condition, and expense of the crossing are placed by statute under the jurisdiction of the railroad commissioners; and when the proposed location is over or across the right of way or land of any railroad corporation before it is finally established, there must be an adjudication by this tribunal that public convenience and necessity require it; the object being both to guard against the recognized dangers of railroad crossings, and to secure the rights of the public when its convenience conflicts with the convenlence of the railroad.

It is claimed by the appellants that the term "right of way" in the statute quoted is

significant, as implying a more extended use than that of land acquired for station purposes; but we think this construction would logically lead to a harmful limitation of the authority conferred by statute upon municipal officers and county commissioners for laying out townways and highways. The intention of the Legislature in employing both these words was simply to embrace all the property of the railroad constituting station grounds affected by the location of the way.

The legislative intent in the language "land or right of way of any railroad corporation used for station purposes" has not been judicially determined in this state. In the United States the words "depot" and "station," as used in connection with railroads, are synonymous. Goyeau v. Great Western R. Co., 25 Grant's Ch. U. C. 64. The term "station purposes" does not admit of any precise definition. Similar terms have been used in the statutes of other states, relating to railroads, and we may be aided in ascertaining the meaning of the words quoted in this case by analogous decisions. In the western and middle states, where railroads have been required by statute to maintain fences on each side of their right of way to keep cattle therefrom, to diminish the hazard to passengers and loss to cattle owners, depot grounds have been either expressly excepted from this requirement, or the courts, in construing the statutes, have determined that fencing out depot grounds was not required where the public was entitled to free access. Jefferson, Madison & Ind. Railroad Co. v. Beatty, 36 Ind. 15; Evansville & Terre Haute Railroad Co. v. Willis, 93 Ind. 507; Morris v. St. Louis, Kansas City & Northern Railway Co., 58 Mo. 78; Grosse v. Chicago & Northwestern Railway Co., 91 Wis. 482, 65 N. W. 185.

In Davis v. Burlington & Mo. River Railroad Co., 26 Iowa, 549, under a statute exempting railroads from the duty of fencing in places where the public require access, the term "depot grounds" was applied to a tract of five or six acres extending along either side of the roadway, used for "loading and unloading freight and all purposes incident to the station, including switches and side tracks, elevators and warehouses." In Smith v. C., M. & St. P. Railway Co., 60 Iowa, 512, 15 N. W. 303, it was held that a place a mile and a quarter from the depot buildings is not presumed to be station grounds, in the absence of proof showing it to be such. In Wisconsin in this class of cases the courts have given as a definition of "depot grounds" "the place where passengers get on and off trains, and where goods are loaded and unloaded, and all grounds necessary and convenient and actually used for such purposes by the public and by the railroad company. This includes switching and making up of trains, and the

use of side tracks for the storing of cars, and the place where the public requires open and free access to the road for the purposes of such business." Grosse v. Chicago & Northwestern Railway Co., supra.

In Massachusetts the court, by Judge Holmes, under a statute providing for the taxing of land of railroad companies taken for station purposes, held that all the land described as land "for suitable station purposes, and for tracks and yard room to be used in connection therewith," was included in the term "station purposes," and should be taxed. Norwich v. Worcester R. R. Co., 151 Mass. 69, 23 N. E. 721.

The definitions of "station grounds" in these decisions may be, in their particular application, narrower than should be given to the language "the right of way and land used for station purposes" under our statute; but the reasoning upon which the decisions are based is relevant to the question under consideration. Station grounds or depot grounds at convenient points along the lines of railroads are selected, embracing, not only the land of the right of way, but additional land of such extent as existing and prospective conditions seem to require; but it cannot be considered that the land originally appropriated should be arbitrarily held to limit railroads or the public in the application of statutory provisions. In every case, in determining what are station grounds and depot grounds, three conditions must concur: The grounds must be necessary, convenient, and actually used by the railroads in the transaction of their business. They therefore include sufficient land for safe and convenient approaches and exits for the public requiring passenger and freight transportation, for the location of depot buildings, warehouses, platforms, fixtures, and apparatus for taking water and fuel supplies, lighting, heating, transmission of messages and giving signals, sidings for passing trains, shifting and storing cars and other property, switches, and space where passengers may get on and off trains and goods be loaded and unloaded. An important factor in determining what land may be necessary and convenient for station purposes is the amount and character of the railroad business done at a particular station. McGrath v. Detroit, Mack. & Marq. R. R. Co., 57 Mich. 555, 24 N. W. 854. Within narrow limits, where the facts are clear upon undisputed evidence, this question is properly one of law, but ordinarily

it must be considered one of fact. Grosse v. Chicago & Northwestern Railway Co., supra; Plunkett v. Minn., St. Marie & At. Railway Co., 79 Wis. 222, 48 N. W. 519; Rhines v. Chicago & Northwestern Railway Co., 75 Iowa, 597, 39 N. W. 912. It is apparent from the authorities cited that in this case it is one of fact and not of law. The appellate court has rendered a decision based upon the evidence. It is a familiar and well-settled rule that this court cannot

disturb the findings of the presiding justice. upon what might apparently be a preponderance of the evidence. A careful review of the testimony contained in the report fails to show that the findings of the appellate court are erroneous, and the rulings based thereon are clearly correct.

Exceptions overruled.

(100 Me. 437)

MCCLAIN v. CARIBOU NAT. BANK. (Supreme Judicial Court of Maine. Nov. 8, 1905.)

1. NEGLIGENCE

DANGEROUS PREMISES DUTY OWED TO LICENSEE.

The defendant bank had partially constructed and built a certain walk, about 8 feet wide, on the south side of its bank building and on its own premises. Said walk fronted on and adjoined a certain public street south of said bank building. In this walk, about 17 feet from the east end of the same, was a rollway to the cellar of the bank building, about 12 feet long, 5 feet wide, and 5 or 6 feet deep. The rollway itself was uncovered, and without protection of any kind. But in the space on the walk, both east and west of the rollway, there were piled various obstructions, such as bricks, barrels, lumber, carpenters' horses, and other débris. These obstructions practically prevented entrance upon the walk from either end. The plaintiff in the nighttime, while going to a fire, fell into this rollway and was injured, and thereupon she brought suit to recover damages for the injuries sustained.

Held, that these various obstructions and unfinished condition of the walk were a plain indication to the plaintiff and the public generally that this walk was not opened for travel, and negatived any implied invitation on the part of the defendant bank for travelers to enter upon it, and that the plaintiff in going upon it was, at most, but a mere licensee, to whom the defendant bank owed no duty, except not to wantonly injure her.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 42, 54.]

2. SAME CONTRIBUTORY NEGLIGENCE.

Also held, that the plaintiff was guilty of contributory negligence.

(Official.)

Action by Carrie McClain against the Caribou National Bank.

Action on the case to recover damages for personal injuries sustained by the plaintiff, and caused by the alleged negligence of the defendant. Plea, the general issue. Verdict for plaintiff for $2,500. Defendant filed a general motion for a new trial, and also excepted to certain rulings made by the presiding justice. Sustained.

Argued before EMERY, STROUT, SAVAGE, and PEABODY, JJ.

Ira G. Hersey and Geo. H. Smith, for plaintiff. Louis C. Stearns and Wm. P. Allen, for defendant.

STROUT, J. In 1903 defendant erected a building in Caribou, on the corner of WashOctober burn avenue and Vaughan avenue. 24, 1903, the walls were up and roofed in, but the structure was not ready for occupa