The reader will remember that adverse possession against the public depends in general upon statute and the local view in regard to the maxim, "nullum tempus occurrit regi." Cases decided on the ground that the maxim applies are not included.

It will be seen that in the reported case (DERMOTT v. STINSON, ante, 1367), it is held that title to a so-called common could be gained as against a city by adverse, open, and continuous occupancy for the statutory period.

There is very little to be found on the subject of this note.

In Pella v. Scholte (1868) 24 Iowa, 283, 95 Am. Dec. 729, where it was held that there had been no dedication of an alleged square to a city, the court held further, assuming there had been dedication, that the statute would have run against the city, the circumstances being as stated by the court: "Defendant was in the open and visible possession of the square, claiming title to it at the time the city was incorporated. He continued in such possession, without any interruption, until slightly less than ten years from the date of the plaintiff's corporate organization, when the city of Pella passed an ordinance 'concerning the Garden square,' directing the marshal of the city 'to take immediate possession of the square,' 'to remove such portion of the fence and hedge around said square, and to train, cut down, or destroy such trees thereon, as the mayor might direct.' The marshal proceeded to execute the ordinance, whereupon the present defendants (Scholte and wife) brought their bill to enjoin the officer, and obtained an injunction, and at once resumed possession. Thus the defendant, with the exception of the forcible interruption by the marshal for a few days, continued to remain in possession until this suit was brought by the city." And it was held that the statute did not cease to run when the marshal undertook to execute the ordinance.

In Rowan v. Portland (1848) 8 B. Mon. (Ky.) 232, it was held that property on a river bank between a town and a river, and dedicated to the town, may be the subject of adverse possession against the town.

Similarly in St. Paul v. Chicago, M. & St. P. R. Co. (1891) 45 Minn. 387, 48 N. W. 17, a railway company was held to have acquired by adverse possession land dedicated to a city for a levee.

But the result was in favor of the town on a bill to restrain a town from removing a boathouse from a landing place, where the statute provided that when the boundaries of a landing place, among other public places mentioned, can be made certain (as here), "no length of time, less than forty years, shall justify the continuance of a fence or building, on any landing place." The court, in dismissing the bill, said: "There is nothing in the evidence in the case at bar to show that the original boathouse was put up under a claim of right, or that it was maintained adversely. But if this were otherwise the judge further found that the plaintiff's devisor made no use of the building during a period of about eight years preceding his death; and that during that time, as admitted at the hearing, he was mentally incapacitated to act or to have a purpose to act or assert; that during that period, and for some years before, the building had been neglected, suffered to fall into decay and substantial ruin; that in the year 1897, when it was contended that the limit of time had run, there was and had been for many years a substantial abandonment of the use to which the building had formerly been put.'" Gifford v. Westport (1906) 190 Mass. 323, 76 N. E. 1042.

In Reuter v. Lawe (1896) 94 Wis. 300, 34 L.R.A. 733, 59 Am. St. Rep. 891, 68 N. W. 955, it was held that an equitable estoppel will preclude the public from claiming as a public park land so designated on a recorded plat,

misconduct, and to bar the employee from any right to recover compensation.

Dailly v. Watson, 2 Sc. Sess. Cas. 5th Series, 1044, 37 Scot. L. R. 782, 7 Scot. L. T. 73; Donnachie v. United Collieries [1910] S. C. 503, 47 Scot. L. R. 412; George v. Glasgow Coal Co. [1909] A. C. 123, 99 L. T. N. S. 782, 78 L. J. P. C. N. S. 47, 25 Times L. R. 57, [1909] S. C. 1, 46 Scot. L. R. 28, 2 B. W. C. C. 125; O'Hara v. Cadzow Coal Co. 5 Sc. Sess. Cas. 5th Series, 439; Brooker v. Warren, 23 Times L. R. 201; Bay Shore Laundry Co. v. Industrial Acci. Commission, 36 Cal. App. 547, 172 Pac. 1128.

Mr. W. W. McCanles, for appellee:

Failure of plaintiff to put the guards on before cleaning the machine was not and could not be wilful.

Messick v. McEntire, 97 Kan. 813, 156 Pac. 740.

Burch, J., delivered the opinion of the court:

The action was one for compensation for injuries received by a workman while cleaning a casing machine in the defendant's packing house.

The defense was that the plaintiff wilfully failed to use a guard, provided by the employer, which would have prevented the accident. The plaintiff recovered, and the defendant appeals.

A witness for the defendant described the machine as follows: "The machine weighs about 2,500 or 3,000 pounds, and consists of a scraper, a clipper, a drum, a big iron cylinder or roller, a cast-iron roller, and two small rubber rollers. They have got iron through the center, and there is rubber around the outside of them and they are covered with canvas. What we call the scraper and the clipper both revolve the same way around and clean the casing.

The casing runs in between the drum and the scraper, and there is where it is cleaned. The small rollers are about 18 inches long and about 4 or 5 inches in diameter. Under these are spray pipes. The machine is run by a belt which runs to another pulley on a shaft line. There is a lever comes down, and you throw the belt from a loose pul

ley into the pulley that runs the machine."

There is a cover or guard in front of the scraper, another at the rear of the machine, and a piece of sheet iron with a handle is laid over the top.

After a day's work, the operator of a machine cleans it. A witness for the defendant described the method of cleaning the machine as follows: "To clean the machine he has to take a hose and wash the machine off with the hose. Then he is supposed to stop the machine and wipe the knives off, or blades, on the scraper. They are not knives; they are blades. They are hoop iron, rounded off. They are about 11 inches wide and 18 inches long. He is supposed to stop the machine. Then after wiping off the blades, we put the guards on, and then start the machine running, and then wipe the drum."

Another witness for the defendant testified as follows: "To clean the machine, when you get done with the casing, we take the top part back behind the guard, you know, take that off, and turn the hose of hot water, and shoot right into the knives, into the blades, in order to wash it all off. When we done washed it, we stop the machine, and take the front guard off. Then we take the front guard off and take a rag and wipe the blade off right clean. When we done wiped it, we put the front guard on and start the machine again and oil the drum, take and oil it like that. After we get done oiling the drum, then we stop the machine again and take the front guards off and oil the blades afterwards; then you done with it."

With a verdict for the plaintiff, the jury returned the following findings of fact:

Q. 1. Did the foreman, L. Roebling, instruct the plaintiff to never run said machine with the front guard removed?

Answer: Yes.

Q. 2. Did the plaintiff remove the front guard from said machine

shortly before the time of the accident?

Answer: Yes.

Q. 3. Did the plaintiff neglect to replace said guard before starting the machine?

Answer: Yes.

Q. 4. Would this accident have occurred, had the plaintiff replaced the guard on said machine?

Answer: No.

The plaintiff was born in Russia, spoke German, and testified through an interpreter. His meaning is not always clear, but he testified to this effect: The method of cleaning the machine was to take off the guards, wash the machine with the hose, and then use the drying cloth, drying the big drum at the bottom first, and then the blades. The machine was kept running until the time came to dry the blades, when it was stopped. It will be observed that this order of performing the work is quite different from that described by witnesses for the defendant. The plaintiff used a cloth to dry the machine after washing it. The interpreter reported him as saying the cloth got caught while he was drying the small rolls on top. Afterwards he said he was hurt while he was drying the big drum. Of course, that was the account of the injury which he intended to give. The plaintiff said he could not clean the machine with the cover on, and that he took the guards off so he could clean the machine with hose and water. After telling how he washed and dried the machine, the plaintiff said: "I couldn't put the guards back on until it was all done." Of course, he could have stopped the machine and replaced the guards at any time, and he probably meant that replacing the guards was the last act, as taking them off was the first act, performed in the process of cleaning and drying the machine.

Conflicts in the evidence not settled by the findings of fact were resolved by the jury in the plaintiff's favor. The plaintiff was not at fault because the machine was run

ning. He was wiping the drum, and it was proper, as the defendant's witnesses admitted, that the drum. should be revolving, under application of power. If it were irregular for the plaintiff to remove the front guard in order to wash the machine with the hose, removal of the guard did not cause his injury. His fault, if any, lay in not replacing the guard before wiping the drum. To the plaintiff it appeared to be necessary to remove the front as well as the back guard in order to wash the machine. If he measurably comprehended the instruction not to run the machine at all with the front guard off, as the jury may have doubted, it did not seem to him that the instruction applied to the process of flushing the machine, because in his judgment he could not do that with the cover on. If he ought to have replaced the guard before attempting to wipe and oil the drum, he did just what the third finding indicates,-he neglected to replace the guard. While he did this contrary to instruction, and so may be said to have been guilty of conscious, voluntary omission, he did not mean to oppose his will to the will of his employer, in any perverse or refractory sense. At least, the members of the jury, who saw the man, gauged his capacity, formed an opinion of his disposition, and weighed his testimony, were author- Evidenceized to reach that conclusion.

sufficiency.

In the case of Thorn v. Edgar Zinc Co. 106 Kan. 73, 186 Pac. 972, the court's interpretation of the statute, "wilful failure to use a guard or protection against accident required pursuant to any stat ute and provided for him" (Laws 1917, chap. 226, § 27) was fore shadowed: "Nor is it material that the defendant may have been guilty of a high degree of Workmen's negligence. Mes- compensation sick v. McEntire, 97 meaning of Kan. 813, 156 Pac. 740. To warrant a reversal the court must declare as a matter of

"wilful."

law that the injury resulted from his wilful failure to use a guard and protection furnished by his employer. It has been said that, in order to defeat an award because of a statutory exception, the case must be brought clearly within it (Wick v. Gunn, Okla., 4 A.L.R. 107, 169 Pac. 1087, 17 N. C. C. A. 377), and that the mere voluntary and intentional omission of a workman to use a guard or protection furnished to him is not necessarily to be regarded as wilful (Ibid.; also, General American Tank Car Corp. v. Borchardt, Ind. App. -, 122 N. E. 433; to the contrary, see Bay Shore Laundry Co. v. Industrial Acci. Commission, 36 Cal. App. 547,

Generally as to serious and wilful misconduct of employee as bar to compensation, see annotation to Baltimore Car Foundry Co. v. Ruzicka, 4 A.L.R. 116.

As indicated by the title, this note covers only cases involving provisions of workmen's compensation acts specifically excluding liability for injuries sustained through wilful failure to use a "guard," or safety appliance, and does not include cases involving the right to recover under general provisions of such acts, excluding liability in case of serious and wilful misconduct of employee.

The few cases on the above question approve the rule that in order to preclude a recovery under the provisions of the workmen's compensation acts, excluding liability for injuries through wilful failure to use a guard, or safety appliance, there must be something beside a mere voluntary and intentional failure by the workman to use a guard, and that some element of obstinacy, headstrongness, or intentional wrongdoing must be shown. Haskell & B. Car Co. v. Kay (1918) Ind. App., 119 N. E. 811; General American Tank Car Corp. v. Borchardt (1919) Ind. App. 122 N. E. 433;

9 A.L.R.-87.

169 Pac. 1087, 17 N. C. C. A. 377.

It will be observed that in the reported case (BERSCH v. MORRIS & Co. ante, 1374) the word "wilful," as used in the Kansas Workmen's Compensation Act, denying a right to compensation where a workman wilfully failed to use a guard provided by the employer, was held to include the element of intractableness, the headstrong disposition to act by the rule of contradiction, so that a right to compensation would not be barred by a mere voluntary and intentional omission, and a judgment for the plaintiff based on a finding that the workman was not guilty of a wilful failure to use a guard was here affirmed.

And in another Kansas case, Thorn v. Edgar Zinc Co. (1920) 106 Kan. 73, 186 Pac. 972, where the statute provided that if it was proved that injury to a workman resulted from his wilful failure to use a guard required by statute, or a reasonable and proper guard voluntarily furnished by his employ