of the Lackawanna river. We find that excepting the Mill lot, the partition disposed of all the land conveyed to Samuel Peck and Samuel L. Peck. by the Rexford and Jessup deeds. The subsequent conveyance of the Mill lot not being in dispute in this case, we find, as a matter of fact, that the plaintiffs, by valid conveyance, have disposed of all interest they had as heirs and devisees of Samuel Peck in the 38-acre tract west of the Lackawanna river.

3. Neither can we find any facts which justify the contention of the plaintiffs that their title to the land described in the second paragraph of their bill containing about sixteen acres or to any part of it has not been divested. The descriptions in the deeds are unsatisfactory. Some of the courses and distances are wrong. The two surveyors, one sworn for the plaintiff and the other for, the defendant, have arrived at different conclusions, and their maps do not agree. Each one has to take many things as granted in order to substantiate his conclusions. We are of the opinion, and we so find, that the sixteen acres in dispute, an interest in which is now claimed by the plaintiffs, were included in the parol partition made by Samuel and Samuel L. Peck, and that the heirs and, devisees of Samuel Peck, having conveyed it long ago by deed, have no further claim to it.

4. Since 1842 there has been some change in the bed of the river between the 41-acre and the 38-acre tracts of land, but not to such an extent as to account for the dispute or difference between the parties in this case. The railway company built a retaining wall encroaching upon the bed of the river for a distance of about thirty feet. The character of the land along the west side of the river has been such that during rains, freshets and high water, the flat lands would form into small islands. This condition covers most of the land in which the plaintiffs now claim an interest.

5. Since 1868, when the plaintiffs parted with their interest in the land west of the river, including, as we have aiready found, the land in dispute, they have made no claim of such interest as their bill now sets forth, excepting the claim made. by C. F. Peck, and his claim is so recent that we are justified in finding a general acquiescence on the part of the plaintiffs for nearly thirty years in the right of the defendants to the possession of the disputed territory.

6. J. W. Peck et. al. sold to the Ontario and Western Railway Company a right of way across the tracts on the east and west side of the river. A part of this right of way is over the 38-acre tract and a part over the 41-acre tract. C. F. Peck, one of the plaintiffs, has been tendered his pro rate share of the money received for the right of way across the 41acre tract, which he refused.

7. The testimony as to the Hafficker lot and as to C. F. Peck's right to the coal under the 41-acre tract is not of importance because it is not material for the determination of the contention between the parties. The location of the Hofficker lot is uncertain. The other heirs joined in the lease of the coal under the 41-acre tract, and have received their share of the royalties. C. F. Peck refused to join in the lease. Whatever C. F. Peck's rights are in these matters, they cannot be determined in this case. He has his own remedy at law.

LAW.

1. The plaintiffs are not entitled to the relief prayed for in their bill. It should be dismissed.

2. The plaintiffs have failed to satisfy us by reasonable and clear proof that there was a mistake made in the partition proceedings between Samuel and Samuel L. Peck.

3. The evidence to sustain the claim of the plaintiffs is so weak and unsatisfactory that from it we can formulate no conclusion which would be the basis of a decree in their favor.

4. Even if there was a mistake as to boundary lines in the partition proceedings, these proceedings are conclusive not only as to matters actually determined in the suit, but also as to every other matter which might have been litigated and cited as incident to the action.

5. A consentable boundary line acquiesced in for twenty-one years is conclusive upon the parties.

DISCUSSION.

Counsel for both parties have presented numerous requests for findings of fact and law. We have not deemed it necessary to answer them specifically, but have considered it preferable to state our findings of fact and law in our own language.

We have endeavored carefully to find some merit in the

plaintiffs' claim, but we have failed. It seems to us that were it not for Calvin F. Peck, one of the plaintiff,s the case would not be before us. One of the heirs named as one of the plaintiffs has been so named not only without his consent, but against his express protest. Nearly all the plaintiffs have for years recognized the correctness of the defendants' contention by receipt of money from time to time. Longe lapse of time certainly does settle some things; and we think it has beyond question settled the dispute in this case in favor of the defendants. Now, May 22, 1899, the above case having been finally heard at a regular term of Equity Court and the same having been fully considered, we order and decree that the plaintiffs' bill of complaint be dismissed at the cost of the plaintiffs.

Isaac B. Feltz vs The Delaware, Lackawanna & Western Railroad Company.

Common Pleas of Lackawanna County, No. 4, November term, 1897, in equity. Powder House-Injunction.

While a powder house containing a quantity of powder may not be free from possible danger of explosion from lightening or other causes; nevertheless, when the location is considered, and also the fact that it has been used without accident for a long number of years and that care and watchfulness are exercised in storing and distributing the powder, an injunction will not be granted restraining its further use.

Rule to continue preliminary injunction.

AGIB RICKETTS, J. F. SCRAGG for plaintiff.

JESSUP & JESSup, Everett WARREN for defendants. EDWARDS, J., April 21st, 1899.-The plaintiff alleges in his bill that the plaintiff is maintaining and using a powder magazine within two hundred feet of his dwelling house and in dangerous proximity to a number of other dwelling houses, in utter disregard of the safety, life and property of the plaintiff and others.

From the evidence, I find the following

FACTS.

1. The mines, now known as the Holden mines, is located in that part of the borough of Taylor known as Feltsville. About the year 1883 the Amity Coal Company opened the mines and erected a breaker on lands leased from plaintiff. They also

erected other buildings necessary to carry on the mining operation, among them a powder house. There were several dwelling houses scattered here and there on Felts' plot of lots when the mines were opened, and afterwards more houses were built as a consequence, in part, of the opening of the new mines. Feltsville may be properly described as a mining village or settlement. After the Amity Coal Company had operated the mines for some years, the defendant took possession of the property and continued the mining.

2. The powder house is located on vacant land near the Main street of Feltsville. It is within 300 feet of the breaker and within 250 feet of the plaintiff's residence, the nearest house to it. Within a radius of 500 feet, there are 19 houses, and within a radius of 1100 feet there are 81 houses, occupied by 104 families. Two-thirds of the houses are built on a hill sloping gradually from the powder house in a northwesterly direction, the highest point of elevation being 60 feet above the powder house at a distance of 1100 feet from it. In the rear of the powder house and in close proximity, there are woods and tall trees and in a northeasterly direction a ledge of rocks not far distant.

The powder house is a small building with the sides and ends built of brick, a wooden roof covered with tarred felt, no windows and one door covered with sheet iron. The building is in charge of a watchman, who has the keys and who alone. enters to hand the powder to the miners, who stand outside to receive it.

The quantity of the powder stored in the powder house varies from day to day, according to the daily consumption. The supply is brought weekly, or as often as needed, from a storage magazine several miles away. From 75 to 100 cans of blasting powder are stored at one time in the powder house. of which the miners take from 10 to 20 cans every working day. When the stock on hand is reduced to about a dozen cans, another supply is ordered. A can of blasting powder contains 25 pounds. The cans are made of sheet iron, are sealed, and have a cap fitting tightly over them. The powder in the can is not loose, but is packed in paper cartridges of double thickness. Besides the blasting powder, there is a supply of Atlas powder or dynamite. This is used for rock work. The largest quantity of this kind of powder in stock at any one time is one

box containing 150 pounds. It is in the form of cartridges, and is packed with sawdust in a wooden box. It is called for generally every day and a box lasts about a week. When the supply is exhausted, another box is ordered. When there is no rock work being done or in contemplation, Atlas powder is not kept. on hand.

5. The powder house is necessary for the proper and convenient management of the mining operations, and is located at a convenient distance for the daily distribution of powder to the miners.

6. The coal in the Holden mines is nearly exhausted. In three or four years more, it will be all mined and the mining operations will cease. The supply of powder necessary to mine the coal is diminishing as the difficulty of reaching the coal increases.

7. While we cannot say that a powder house containing the quantity of powder stored weekly in the Holden powder house, or even a lesser quantity, is free from possible danger of explosion from lightening or other causes, neverthless, we consider that on account of the comparatively small quantity of powder supplies from time to time to the Holden powder house, the location of the powder house, the number of years it has been used without accident of any kind, the method of its construction, the care and watchfulness with which, the powder is packed, stored and distributed, and the approaching exhaustion of the coal supply, the danger in the present case is minimized, and that under all the circumstances, and in view of the facts, the powder house should remain where it now is.

CONCLUSION OF LAW.

The case before us is not of such a character as to justify us in granting an injunction. The prayer of the petitioner asking for an injunction should be denied and the bill dismissed.

DISCUSSION.

The two leading cases on the powder house question are Wier's Appeal, 74 Pa. 230, and Dilworth's Appeal, 91 Pa. 247. The law applicable to the question is fully discussed in these two cases. In the first case, the erection of a powder house was restrained, two of the judges dissenting. In the second case, an injunction to restrain the erection of and the main