the northerly on the Bloom street side. That is the basis upon which the claim of an existing encroachment is founded.

4. The evidence upon which the borough relies in that behalf is the testimony of an aged witness formerly in the company's employ. Except as to the fact of moving the fence, he concedes that his memory is far from clear. He is unable to tell to what extent it was moved, or any other particulars. As to the date he can only say that it was sometime between 1864 and 1895. He does, however, speak of it as being done by Mr. Miller, one of the former owners. If the fact be taken for granted, the logic of events would seem to fix it not later than 1882, as that was the year when Miller sold to Kelly. At best, the evidence is conflicting. Defendants' witnesses say no such change ever occurred. For reasons hereinafter mentioned, the point will not be decided.

5. Admittedly the lines of the enclosure and the quantity enclosed conform strictly to the title papers, unless it is a case of conflict as between the official distance and a monument or call. Thus in the analysis the question becomes one of location; i. e., location of Bloom street; because the borough doesn't claim the trouble is in defendants' location of their southerly line on Drinker. It takes the radical position that they are entitled to only 375 instead of 3912 feet in depth.

6. There has been no attempt to show the authorized or technical location of the street. Reliance is had upon the mere fact that the company's map of the street. scales 50 feet, and that as a general rule, there is about that width between the fences on either side, whereas at plaintiff's lot there is an average of 371⁄2 feet.

7. There is not only no attempt to apply the map to the ground; but it doesn't appear that the dedication was ever accepted. That is to say, there is nefther allegation nor proof of formal acceptance, nor of opening or improvement of the street by the borough. The evidence suggests some user by the traveling public; but when it began, what portions it affects, what its extent and character may have been, do not appear. Neither does it appear when the street began to assume its apparent outlines as defined by the present fences. But as compared with Drinker, upon which this tier of lots fronts, the

fencing is recent. Drinker was an existing turnpike before the tract was plotted. The borough was not then incorporated. That followed in 1862; but the territory to the northerly, along Bloom street, remained long unimproved, and more or less wild. Hence, the inference that the true location of the street is defined by the average line of the existing fences, in the absence of any corroborating circumstances, is at best very uncertain.

8. What, if any, further encroachment is threatened does not appear.

CONCLUSIONS OF LAW.

1. The location of Bloom street assumed by the plaintiff is essential to its case; and the evidence is insufficient to support such assumption.

2. While that is decisive against the bill, if plaintiff's location be conceded it would still be a grave question whether its right has not become barred by operation of the act of May 8, 1889, P. L. 173, for non-user within the period of twenty-one years after the date of dedication.

3. Hence, in any view of the case, the legal right alleged by the borough is not clear; and for that reason it is not entitled to relief by injunction.

4. The relief asked for should therefore be denied and the bill dismissed at plaintiff's cost.

DISCUSSION.

It only need be said that in its nature this is an ejectment bill, so that if it were a dispute between private parties it would be dismissed for that reason alone. While ejectment will not lie in such case at the suit of the borough, yet there is another equally available remedy to test the legal rights of the parties, viz., by indictment for maintaining a public nuisance. The question here is merely one of legal title, and it must be an exceptional case where equity will decide such issue on a bill for the abatement of a public nuisance. If the facts upon which the rights of the parties depend are not only in dispute, but manifestly disputable, equity will not intervene: Commonwealth vs. Croushore, 145 Pa., 157.

Even though on the fundamental question of location the plaintiff's case was free from dispute, it is not claim

ed that she has any other right to the street except that arising from a former proprietor's dedication. As such she must reckon with the statute of limitations, the act of 1889. She doesn't claim to have accepted the dedication, otherwise than constructively by reason of improvement and user. Unless the rights of the public were exercised as early as 1877 the borough has no standing; and it is quite evident that any claim to that effect would bear some examination.

The plaintiff's showing is not such as will warrant the retention of the bill pending a suit at law.

Let a decree nisi be entered in accordance with the fourth conclusion of law; exceptions, if any, to be filed within ten days after notice to the parties sec. reg.

FERREE vs. FERREE.
Divorce-Desertion-Practice-Proof.

To establish sufficient ground for a decree in divorce on the ground of desertion the proof must disclose (1) marriage, (2) cessation from cohabitation, (3) intention of defendant not to resume cohabitation, (4) absence of the plaintiff's consent to the separation, (5) absence of justification, (6) continuance of the desertion during the statutory period.

Facts must be proved to show that the desertion was willful and malicious.

In the Court of Common Pleas of Westmoreland County. Examiner's report. February term, 1896, No. 353.

John Latta and John W. Sarver, for Petitioner.

McConnell, J. The rule of court requires the examiner to attach the libel to his report. We could learn therefrom the ground on which divorce is asked in this case. The rule has not been observed in this case. We assume, however, that the ground is desertion, inasmuch as the examiner recommends a divorce on that ground.

The causes that warrant the divorcing of husband and wife are specifically designated in the statute. Among others, the following is adequate cause, viz: "Willful and malicious desertion and absence from the habitation of the other without a reasonable cause for and

during the term and space of two years. The statute does not provide simply that desertion for two years shall be sufficient. The desertion must be willful and malicious and without a reasonable cause. These characteristics are as essential ingredients in the proof of desertion as are the fact of separation and its duration for two years. One of the grounds for divorce from the bonds of matrimony contained in the Act of March 13,1815, is for willful and malicious desertion and absence of one party from the habitation of the other without a reasonable cause for the space of or during the period of two years. The applicant for a divorce on this ground must establish with sufficient certainty each and every of the ingredients as elements necessary to constitute desertion within the meaning of the act. They all must co-exist in proof or no decree can be granted: Angier vs. Angier, 63 Pa. 458. In Graham vs. Graham, 153 Pa. 451, "That there was a desertion by the husband may perhaps be conceded, but the evidence fails to show that there was a willful and malicious desertion within the meaning of the Act of Assembly."

In Ingersoll vs. Ingersoll, 49 Pa. 251, the court says: "Separation is not desertion. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert willfully and maliciously persisted in without cause, for two years. The guilt is manifested when, without cause or consent, either party withdraws from the residence of the other. We see no evidence of such intent here. Unable to find satisfactory evidence to support the libel, the decree dismissing it must be affirmed."

Brown on Divorce, pages 142, 143, says: "There must be an intent to desert, willfully and maliciously persisted in, without reasonable cause, for the statutory period. Six things must be shown: 1. Marriage. 2. Cessation from co-habitation. 3. The intention of the defendant not to resume cohabitation. 4. The absence of the plaintiff's consent to the separation. 5. The absence of justification. 6. The continuance of the desertion during the statutory period.

With the idea of willful and malicious desertion fixed in our minds, let us turn to the evidence to see if the proof of it is adequate.

There was no personal service in this case, and there

fore the evidence of the wife must be disregarded, except as to the fact of marriage. The statute expressly forbids her testifying generally against her husband under these circumstances. The fact of marriage is sufficiently established by the testimony. The other witnesses are three of her children. They testify to two essential points, viz: (2) Cessation from cohabitation, and (6) the continuance of the desertion during the statutory period. There is no proof (3) "the intention of the defendant not to resume cohabitation, (4) the absence of the plaintiff's consent to the separation, or (5) the absence of justification."

Mrs. Carrie De Vine says: "On May 24, 1893, my father left home. He was never at home since, and he never gave any support to my mother or her family. My mother has lived in Latrobe ever since. My father never came back home since the time he left."

Mrs. Maggie Green says: "My father disappeared (May 24, 1893,) and never returned to his home to my knowledge. My mother still lives in Latrobe, at the same place she lived when my father was there. Since my father left home, in May, 1893, he never supported his wife and family."

John Ferree says: "My father was never at home since. He has been absent over three years. He never sent any money home for the support of my mother and family. I do not know where he is now."

We might safely conclude from this that he was absent from home, and had not furnished support during the period of his absence; but what is there to justify the conclusion that there is an intent to desert willfully and maliciously persisted in without cause? Under what circumstances did he leave home? Why did he disappear? Is he able to furnish support? For aught that appears he may be sick in a hospital or an asylum. If so, there is no desertion: Neely vs. Neely, 131 Pa. 552. He may be unable to support his wife. This will not constitute desertion: Ingersoll vs. Ingersoll, 49 Pa. 249. He may have been crowded out of his home. If so, his absence will not be desertion: Graham vs. Graham, 153 Pa. 450.

"A divorce will not be granted on the ground of desertion when the facts and circumstances are not so