author: GOODE, J

text:
    HOLLAND REALTY & POWER COMPANY and SEVENTH STREET REALTY & POWER COMCOMPANY v. CITY OF ST. LOUIS, ARTHUR I. JACOBS et al., Appellants.
    Division One,
    April 10, 1920.
    1. MUNICIPAL CONSENT: By Ordinance. Where the statute requires that the consent of the city to the laying in its streets or alleys of conductors of electricity, water or gas he given by the “municipal authorities,” they mean that such consent is to he given by the legislative authorities acting by an ordinance.
    2. -: -: Wires in Alley: ¡Waiver: Acquiescence: Estoppel. When, the consent to lay electric wires by a corporation under the surface of a public alley adjoining its building can be by statute obtained only of the city’s legislative assembly and in a particular mode (in this case only by ordinance), the administrative officers of the city cannot waive the necessity of procuring consent from the assembly, nor can they, by acquiescing in such use of the alley, estop the city to terminate the use.
    3. WIRES IN PUBLIC ALLEY: Cognate Statutes: Power of City to Forbid Use. Section 3367, Revised Statutes 1909, empowering a company, organized to serve a city with water, gas or electricity, to lay conductors, adapted to convey the substance it is formed to furnish, through the streets and alleys, “with the consent of the municipal authorities” and subject to the reasonable regulations such authorities may impose, and Section 9947, relating to electrical corporations alone and conferring on cities power to authorize them, whether organized to supply the city with light and power or to serve a smaller patronage, to use the public ways, are cognate statutes and must be construed together for the purpose of ascertaining what measure of power, to control the use of these public ways by electric companies, the Legislature intended to invest in municipalities; and such inquiry is material in determining whether the city can terminate the use by a company which did not have the consent of the municipal authorities to construct its electric wires in public alleys, for if the authority of the city went no further than to regulate the mode of use, and fell short of power to grant the privilege on any terms, much could be said against the right of the city to remove the wires, if the company had been willing to accept a permit from the city and submit to its rules.
    4. -: -: -: Refusal of Permission. The language of Section 3367 and Section 9947, Revised Statutes 1909, excludes any other meaning than that the municipal authorities of citie3 are vested with the right to grant or refuse permission, in their discretion, to an electrical company to place its wires, either above or below ground, in a public alley or street. Section 9947 especially, and particularly the words “may by ordinance authorize any company” therein, delegated to the municipal authorities power to grant or refuse permission to use, as well as to regulate the use of, streets by an electrical company, while the words “subject to such rules, regulations and conditions as shall be expressed in said ordinance” conferred on the municipal assembly power to impose terms in making the grant.
    5. -- — : -: -.: Ownership of Pee: Permission of Abutters: Municipal Consent. The State can grant or refuse corporate franchises at will; and in granting them, may impose, on the exercise of them, any terms it chooses. So that where the State granted a franchise to an electrical corporation and conferred on it power to occupy public ways in a city with its electric wires only on condition of the consent of the municipal authorities being given, and no such consent was given, the fact that it owned the fee in the alley in which, under ground, it laid its wires, to the center thereof, and obtained permission of the abutting owner, who owned the fee of the balance of the alley, to lay its wires therein, does not prevent the statute from applying; but, despite its title to the fee and the permission of its adjacent fee-holder, by laying its wires in the alley, without the consent of the city, it violated and still violates both the statutes and the municipal ordinance, which provides against the placing of “wires, tubes or cables conveying electricity for the production of light, heat or power, unless duly authorized by the municipal assembly.”
    6. INJUNCTION: Mere Technical Right: Damage. An injunction is often denied where the only purpose or effect of it would be to restrain the violation of a mere technical right, from which no damage will ensue because of its refusal; and particularly is this true when the writ would operate oppressively, or contrary to the real justice of the case.
    Appeal from. St. Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge.
    Reversed and remanded (with directions).

      Charles H. Danes and II. A. Hamilton for appellants.
    (1) The power of the respondents to lay and maintain electric wires and cables in and through the public streets and alleys of the City of St. Louis is dependent upon obtaining the consent of the city therefor. R. S. 1909, sec. 3367; Lockwood v. Wabash Railroad Co., 122 Mo. 86; Grand Avenue Ry. Co. v. Lindell Ry. C'o., 148 Mo. 637. (2) The consent of abutting property owners to the laying and maintaining electric wires and cables in the public alleys cannot be substituted for the consent of the City of St: Louis required by law. City of Cincinnati v. Diamond Light Co-., 4 Ohi'o App. 177. (3) The City of St. Louis has inherent power to enact ordinances providing reasonable regulations governing the laying and maintaining of electric míes and cables in and through the streets and alleys of said city. Laclede Gas Light Co. v. Murphy, 130 Mo. 10; Westport v. Mulholland, 159 Mo. 86; Plattsb-urg v. People’s Tel. Co., 88 Mo. App. 306; Carthage v. Gamer, 209 Mo. 688-; State ex rel. v. City of Elizabeth, 39 Atl. 683; Colegrove Water Co. v. Hollywood, 90 Pac. 1053-.

      Walter G. Guels for respondent.
    (1) The title to the strips of ground included in the alleys in question is in the abutting owners and they are the owners in fee thereof and are entitled, as a matter of right, subject to municipal and public regulation, to make any beneficial use of the soil thereof consistent with the prior and paramount rights of the public therein for street purposes proper. Gordon v. Peltzer, 56 Mo. App. 599; Brown v. Carrollton, 122 Mo. App. 276; Felhauer v. City of St. Louis, 178 Mo. 646!; Cartwright v. Tel. Company, 205 Mo. 133; Kansas Natural Gas C'o. v. Haskill, 172 Fed. 567; Alden v. Boston, 159 Mass.-324, 38 Ann. St. 423. (2) Ordinances and regulations relating to the use of public alleys and the like by public utility corporations for public purposes cannot prevent abutting owners of the fee in said alleys from using them properly for lawful private purposes. Williams v. Road Co., 21 Mo. 580; Hannibal Bridge Co. v. Schaubaoher, 57 Mo. 582; Julia Bldg. & Loan Assn. v. Bell Tel. Co., 88 Mo. 258; Colegrove Water Co. v. Hollywood, 90 Pac. 1053, 13 L. R. A. (N. S.) 994. (3) Acquiescence on the part of the City of St. Louis in long continued use! of the sub-surface of the alleys in question by the abutting owners for private purposes without interfering with the rights of the public therein is equivalent to express permission. Julia Bldg. & Loan Assn. v. Bell Tel. Co., 88 Mo. 258, 266.
   GOODE, J

This suit was filed by the Holland Realty & Power Company, a corporation (hereinafter called the Holland ^Company), to have the defendants enjoined from cutting, removing or in any way molesting a small cable and wires of plaintiff, used at first by the Holland Company and now by Seventh Street Realty & Power Company, to convey currents of electricity to á building owned by plaintiff and some adjacent buildings. The lot of plaintiff is on the west side of Seventh Street in the City of St. Louis, and is bounded by that street on the east and by alleys on the north, west and south. A building known as the Holland Building stands on the lot, and rooms in it are let to tenants. Across the alley on the north is the Republic Building; across the alley to the west, the Watsonia Building, and across the alley to the south a structure known as the South Building's. Besides the Holland Building, an electric light plant was constructed ten or twelve years before this suit was commenced, on the premises, which we will designate as the Holland lot. The title in fee to the ground occupied by the several alleys is owned by the respective abutting- proprietors to the middle line of the alleys. After the power plant had been put on the Holland lot, but just when is not shown, the Holland Company, with the consent of the adjacent proprietors, extended a small cable under the surface of the west alley to the Watsonia. Building, and a wire under the alley to the north to the Republic Building, and a wire under the alley to the south to the South Buildings; and by those means of transmission, conveyed currents of electricity into the three buildings, thereby furnishing light to the occupants of them and also to persons occupying other buildings in the same block the Watsonia is in. Plaintiff avers this-business has been “going on for some time past,” without averring how long. The cable and wires are several feet beneath the surface of the alley, but the exact depth is not given in the evidence. The defendants, other than the City of St. Louis, are officials of the city and constitute- its Board of Public Improvements. The defendants notified the Holland Company to remove the wire by December 6, 1910-; but the company omitted to comply with the order, and when this action was begun, defendants were preparing to cut and remove the cable and wires, because the Holland Company had laid them across the alleys without having complied with an ordinance of the city, which provided that “no wires, tubes or cables, conveying electricity for the production of,light, heat or power, shall hereafter be placed along or across any of the streets, alleys or public places in the city, by any. person, corporation or association not having previous to the passage of the ordinance, 16894, approved October 26, 1892, accepted and complied with Ordinance Number 1272:3, now amended; or unless duly authorized by the municipal assembly, and then only as provided by ordinance.” The excerpt quoted is from Section 1093, Revised Code (1907) of St. Louis. It is conceded the Holland Company had not accepted and complied with Ordinance No. 12723', when it laid the cable and wires, nor had it been authorized to lay them by an ordinance of the municipal assembly of St. Louis. The provisions of Ordinance 12723 are nowhere shown in the record, nor are they material to the case, in view of the admission that the Holland Company had not complied with them, nor obtained special authority from the city to lay its cable and wires. A cross-complaint was filed by the defendants, asking a mandatory injunction to compel the removal of those appliances.

1 After the institution of the.suit, the Seventh Street Realty & Power Company (hereafter called the Seventh Street Company), was incorporated, became the owner of the Holland premises, including the electric power plant, and, by agreement of parties, was made the plaintiff. Both it and the Holland Company were empowered by their charters to furnish light, heat and power to the tenants of their property and to other persons, and to do all acts incident thereto. No averment of the petition was denied, except that the plaintiff had the right to lay and maintain the cable and wires under the surface of the alleys. The only witness was the secretary of plaintiff, and he testified the cable and wires were laid-several feet below the surface of the alleys and. in no manner interfered with the use of the latter by the public or the city; that they were safely constructed and never have been to any extent, a source of. danger to persons or property. In their answer the defendants avow that unless the wires and cable are removed, or an injunction granted, defendants will cut and remove them.

The court below dismissed the cross-complaint and made permanent the temporary injunction theretofore issued in favor of plaintiff, restraining defendants and their successsors, agents, etc., from “interfering with the electric wires, cables and connections of plaintiff until such time as the- present use by plaintiff interferes in any way with any proposed use by the city” or the tenants of the several adjacent buildings. In the decree, the court made findings of facts, to-wit: that with the consent of the owners of the properties abutting on the alleys, ten or twelve years before the institution of this proceeding, the Holland Company had laid the electric wires and cable, several feet under the surface of the alleys and across the same, without permit or ordinance right from the city, and had maintained those appliances ever since in accordance with the city’s requirements; that the appliances were safely constructed and laid, were not and never have been a so.urce of danger, inconvenience or harm to persons or property, and interfere in no way with any use or proposed use to which the- public, or the City of St. Louis, has or will subject the alleys; that the original and the present plaintiff have operated an electric lighting plant on said lot, according to the authority of its charter, and have furnished therewith light and power to various persons in its own and the surrounding buildings; that defendants had threatened and were about to cut tbe wires, an act that would work irreparable damage to plantiff and for which no adequate remedy at law existed, because the amount of damage could not be definitely ascertained. The defendants took this appeal.

The section of the statutes on which the defendantsi rely for authority in the city to enact the ordinance forbidding conductors of electricity to be placed along and across streets and alleys without municipal authority, provides generally that corporations formed under the article, of which the section is a part, for the purpose of supplying towns, etc., with gas, water or electricity, shall have the power to lay conductors for conveying those substances through the streets and alleys “with the consent of the municipal authorities thereof, and under such reasonable regulations as said authority may prescribe.” [R. S. 1909, sec. 3367.] Another pertinent section is the one which empowers a city, town or village, to authorize, by ordinance, any company organized to supply electric light and power, and incorporated under the laws of the State, to place its “wires and other fixtures along, across or under! any of the public roads, streets, alleys or public places, within such city, town or village, subject to such rules, regulations and conditions as shall be expressed in said ordinance.” [R .S. 1909, sec. 9047.]-

waiver I. The record contains nothing of allegation or evidence, to show either knowledge by the city officials of the laying of the wires under the alleys when it was done, or how1 long before the city’s demand for their removal those officials learned they were located therein. The court below found the wires were laid and their use begun ten or twelve years before the filing of this suit; but this finding went beyond what the record warrants. ' The case stands mainly on the admissions in the pleadings, only one person having testified, and his testimony was about nothing except the' depth at which the wires lay and their - harmlessness.

The statutes cited required the consent of the city to be given by the “municipal authorities;” and this means the legislative authorities -acting by an ordinance. [4 McQuillin, Mfunie. C'orp. sec. 1642, p. 3433; State ex inf. v. Light & Power Co., 246 Mo. 653, 666.] The general ordinance on the subject required consent to be granted in the same mode, unless a prior ordinance had been complied with, and admittedly it had not. Besides, the parties, stipulated that the pleadings in the case, and the stipulation itself, should constitute an agreed statement of the facts whereon the case was submitted;: and the answers alleged the wires were laid and had been maintained without municipal authority.

When consent; to use a city’s public ways can be obtained only from its own legislative assembly and in it particular mode (in this case by an ordinance) the administrative officers cannot waive the .necessity of pro - curing consent from the assembly, and in the prescribed mode. Neither can they, by acquiescing in the use of a public way by a utility corporation, estop the city to terminate the use. [Dugdale v. Light & Power Co., 195 Mo. App. 243, 256; Town of Bangor v. Bay City Traction Co., 147 Mich. 165, 11 Aim. Cas. 293, and note on p. 297; Mullins v. Kansas City, 188 S. W. 193, 197; Detroit v. Railway Co., 60 Fed. 161; Louisville Trust Co. v. Cincinnati, 76 Fed. 296, 316.]

The last case cited is a striking application of the doctrine; for the railroad company concerned therein had, at great expense, changed its motive power from horse power to electricity, pursuant to resolutions of the city’s Board of Public Affairs, after the railway company’s franchise in the streets’had expired. It was held the Board of Public Affairs could not estop the city by its resolutions to deny the company’s right to use the streets any longer; and, further, that the non-action of the city government after the expiration of the franchise in failing to insist on the removal of the tracks worked no estoppel. Equally strong is the language of Taft, J., in Detroit v. Railway Co., 60 Fed. 161, 166, in holding there could be no estoppel of a city by reason of the expenditure of much money by! a street railway company, on the faith of a grant of street privileges, to deny the validity of the grant. The opinion critically, examines decisions supposed to sustain an estoppel under such circumstances, and also the argument of an eminent author in favor of applying the doctrine of estoppel to municipalities in rare instances, showing clearly that no authority existed which would preclude the city to prevent' by an injunction, the railway company from occupying the streets and running cars over them. Speaking -of the argument ’ of Judge Dillon, the court said;

“And while Judge Dillon is, of the opinion (in which he is supported by many authorities)’ that an estoppel may be asserted against a municipal corporation to defeat its attempt to oust persons asserting private rights in a public street, he says that such cases are exceptional, and must depend on their own peculiar circumstances. But nowhere in this valuable work does he intimate, and no authority ’has been cited which holds, that a municipal corporation can be estopped in pais to deny a grant in the street to a railway corporation or other person when the statute prescribed for the corpo ration a particular mode of making a grant.”- [60 Fed. l. c. 166.]

In two decisions which construed the very statutes and ordinance under present consideration, this court ruled that the executive officers of St. Louis could not waive a forfeiture for non-user of privileges in the streets which had been given by ordinances to companies' formed to furnish electric light and power, the companies having failed, over a long! period, to serve the public. [State ex inf. v. Light & Dev. Co., 246 Mo. 618; State ex inf. v. Light etc. Co., Ibid, 653.] The defendants cannot be hold to have lost, by acquiescence, whatever right they may have had to remove plaintiff’s wires' from the alleys.

ofncity' statutes', II. The first of the two sections of the statutes we have quoted embraces within its provisions water, gas and electrical companies, organized to serve a city, town, or village, .and empowers a company of either kind to lay conductors, adapted to convey. the particular SIlkstance or f°rce the company is formed to -furnish, through the streets, etc., “with the consent of the municipal authorities,” and subject to the reasonable regulations the authorities may impose. [R. S. 1909, sec. 3367.] The other section relates to electrical corporations alone, and confers on cities, towns and villages, the power to authorize those companies, whether organized to supply the city with light and power or to serve a smaller patronage, to use the public ways. The two sections are cognate and should be construed together to ascertain what measure of power, to control the use of these public ways by electric corporations, the Legislature intended to vest in municipalities; a material inquiry in one view of this case; for if the authority of the defendant city went no further than to regulate the mode of use of its streets and alleys by such companies, and .fell short of the power to refuse to grant the privilege on any terms, much could be said against the right of the city to remove plaintiff’s wires, if plaintiff has been willing to accept a permit from the city and submit to its rules.

' In our opinion the language of both sections excludes any other meaning than that the municipal authorities of the State are vested with the prerogative to grant or refuse permission, in their discretion, to an electrical company to place .their appliances in the public ways, either.above or below ground; and this is particularly true of the section relating exclusively to that kind of corporation. Had the Legislature thought the wiser course would be to reserve the power to grant directly to such corporations the franchise to use streets, and restrict municipal control over the companies to an exercise of the police power, it could have done so — can yet at any time. But instead, the power to grant or refuse, as well as to regulate, the use of the streets was delegated to the municipal authorities. The words, “may by ordinance authorize any company, ’ ’■ etc., in Section 9947, lodge with the municipal assembly the duty and the right to determine whether or not to grant permission, while the words, “subject to such rules, regulations and conditions, as shall be expressed in said ordinance,” confer on the assembly or council the power to impose terms in making a grant. And these words in Section 3367, “and such corporations shall have the power to lay conductors . '. . with the consent of the municipal authorities thereof and make such reasonable regulations as said authorities may prescribe,” subject' the- right of the company to place appliances in the streets, to the will of the legislative department of the city. This is the effect universally ascribed, we believe, to statutes relating to public utility corporations, if the franchise to place their appliances in public ways, instead of being directly granted in their charters (whether the charters be special acts or a general statute for incorporating companies) is left to the decision of 'the municipal legislative bodies. [3 Dillon, Mun. Corp. (5 Ed.), sec.1226; 4 McQuillin, Miun. Corp. sec. 1629, p. 3406, and cases cited; Southern Bell T. & T. Co. v. City of Richmond, 103 Fed. 35, 37; City of Chester v. Railroad, 217 Pa. St. 402; Suburban Light Co. v. Boston, 153 Mass. 200.]

A recent case to that effect, decided by a tribunal of high authority, was Toronto Elec. Light Co. v. Corporation of Toronto, A. C. 1917, p. 84, 31 D. L. R. 577, wherein the Privy Council of England refused 'to restrain the City, of Toronto from cutting down and removing an extensive and costly system of lighting; instrumentalities constructed in good faith by the company, thinking it had the right to occupy the streets by reason of an implied agreement with the city. The statute involved required an agreement between the company and the city, before the former could use the streets, and this was held to mean a formal agreement and to exclude an implied one, Bht the point in decision relevant to the case in hand, was that the! statute vested the city with the power absolutely to prevent the company from constructing and maintaining its appliances in the streets; whereas the company contended that, as it held, by its letters of incorporation, the franchise to lay pipes and wires, set tip poles, etc., the proper interpretation of the statute requiring the city’s consent, was that the city could go no further than to prescribe the mode of exercise of the company’s said franchise, and if the city should absolutely refuse to consent, it could be compelled to do so on reasonable terms. The judgment to the contrary was rendered upon language no stronger, in respect of investing the city with control, than is that of our statutes (A. C! 1917, p. 84).

In a case where a railroad company asserted the right to lay a track in a street of St. Louis, this court passed upon the effect of words similar to those in the statutes we are concerned with. The ‘ railroad company based its claim on an ordinance granting certain rights in the streets to a predecessor company and on a permit from the mayor, both of which were held to give the litigant company no license to lay the track in question. The company had been organized under Article II, Chapter 42, Revised Statutes 1889, and, in Section 2543 of the article, where various powers were conferred on railroad companies organized pursuant thereto, was this clause: “Nothing herein contained shall be construed to authorize . . . the construction of any railroad not already located in, upon or across any street of a city.” In consequence of that statutory provision and of a section of the Scheme and Charter of St. Louis, which vested the power in the mayor-and assembly to grant, by ordinance, a franchise to a railroad company to lay tracks in a street, the claim of the railroad company was held to be without merit, as it had not obtained permission from the mayor and assembly. [Lockwood v. Wabash Ry. Co., 122 Mo. 86, 95.]

It should be stated in this connection that the agreed facts throw no light on the' reason for the city’s resolve to have plaintiff’s wires removed, but leave us uninformed as to whether this course was taken arbitrarily or because the plaintiff refused to ask a permit- to keep them in the alleys and submit to the city’s rules. The ordinance governing the issuance of permits is pleaded ■in the answers and may be read in the case of State ex inf. v. Light & Power Co., 246 Mo. l. c. 660. The actual issuance-of’permits, after they are authorized by the Municipal Assembly, to lay along the streets and alleys cables and wires to convey electricity, is entrusted to the Board of Public Improvements of the city, subject to several conditions, compliance with which,- by the company applying, for a permit, must be exacted by the. board. The prescribed.conditions are intended to insure, the placing of the appliances in a manqer that will prevent them from being dangerous,- and also to compel the - companies to pay the- city a-pertíentage of-their gross receipts. That request for a permit has-been made by the plaintiff, or its predecessor the 'Holland Company, accompanied by an offer to comply with the requirements of the ordinances,- was a fact necessary to be shown by the plaintiff in any 'contingency except the one to be immediately, noticed.

owner of Fee. III. Plaintiff is not only a corporation chartered under the laws of the State; it is also an owner of ground abutting on the alleys crossed by its wires, and 0f title in fee to half the width of the alley, as was its predecessor. The principal contention of the plaintiff, and the main ground of the decree in its favor, is that, in the capicity of abutting ■ owner, the Holland Company had the right, with the permission of the opposite abutters, to run' the wires under the alleys, without procuring the city’s consent, and plaintiff has the right to maintain them there.

To what extent, and for what purposes owners of abutting property, who likewise hold title to the fee of the highways, may use the surface of the highway or the space abiove or below the surface, is a question so involved in uncertainty by the conflict of authority, as to wring a complaint from the highest court of the country. [Sauer v. New York, 206 U. S. 536, 548.] The law of the subject is stated usually, by courts and commentators, in clear and positive language, but in the application of the law to the varities of uses which have been presented for adjudication of the issue as to whether they fell within an abutter’s rights, there is much disagreement. . The doctrine in this State and generally, is, that the owner of the fee in a public way of any kind, and perhaps the holder of equitable easements in a street 'when the city or town owns the fee, may devote his property to such private purposes as suit him, in so far as those purposes are compatible -with the needs and convenience of' the general public, including in the paramount right of the public in city streets, all contemporary urban usages and all future ones that may develop with the progress of science and social changes. [Cartwright v. Telephone Co., 205 Mo. 126; Ferrenbach v. Turner, 86 Mo. 416; 2 Elliott, Roads & Streets (3 Ed.), sec. 876.] Specific benefits which the Missouri decisions have held the abutting owner is entitled to take from his fee, subject to the municipal police power are vaults under sidewalks, stairways to basements, areas for lighting': cellars, coal chutes, shade trees, passways under the surface and possibly others. [Fehlhauer v. St. Louis, 178 Mlo. 635; Pemberton v. Dooley, 43 Mo. App. 176; Gordon v. Peltzer, 56 Mo. App. 599; Jegglin v. Roeder, 79 Mo. App. 429, and cases supra.] Elsewhere underground drains, flumes and private sewers which cross streets have been sanctioned as lawful, to enable feeholders to malee their ownership beneficial. [Perley v. Chandler, 6 Mass. 455; Clark v. Fry, 8 Ohio St. 358; Ellsworth v. Lord, 40 Minn. 337.] We can think of -nothing in the nature of wires conducting currents of electricity, which should exclude them from being placed under a highway by an abutter who owns the soil, if laid so as to prevent them from endangering persons or property; for they take up little space and are no more likey to hamper the public than drain pipes. Adjudications on the propriety of this use are lacking; probably because electricity has been employed only recently as a lighting and mechanical power; biut two or three cases of gas and water uses have been cited for plaintiff as directly 'in point on this question. In one of them a natural. gas company obtained by contract with the owners of lands abutting on public highways, license to lay and maintain pipe lines over and across the highways as a means of transporting natural gas without the State, contrary to an act of the! Legislature. The State contended its control over the public highways rendered nugatory the permission obtained from the owners of the soil, and, further, that the State might exercise the same absolute prerogative to deny to the plaintiff the privilege claimed, as a city might is the case of its streets. The court denied the analogy, on the ground that cities usually owned the fee of their streets; whereas the fee of highways in Oklahoma was in the abutting land owners. That distinction does not weaken the force of the decision as a precedent for the case at bar; for the City of St. Louis does not own the fee to the- alleys in question.

In a case which closely resembles, in many features, the one at bar, the Supreme Court of California granted an injunction against city officials to prevent them from interfering with water conduits or pipes laid across a city street by an adjacent proprietor, wbo owned tbe fee in the street to its center and had obtained permission from the opposite proprietor. The purpose was to convey water underground to nearby orchards. Subsequently the pipes became the property of the corporation which ashed relief by injunction. The city asserted the right to prevent the use of the pipes, because an ordinance forbade the laying of any pipes in the public streets except by permission of the board of trustees, and permission had not been given. The court declared that an ordinance which would empower the city authorities to refuse to grant, on any terms, the right to occupy the soil covered by a street in any manner not in conflict with the public use, could have no application to the owner of the'soil; for such owner was not seeking a privilege toi be granted or withheld by the city, but was merely exercising one of the incidents of ownership, which, in dedicating the highway, he had retained in himself.

A decision by a court of first resort in Ohio, fully supports the position of the plaintiff herein, but the same court refused, shortly afterwards, to follow it, and it is in conflict with a later decision of a higher court of the State. [Henry v. Cincinnati, 25 Ohio C. C. R. 178; Butler v. Cincinnati, Ibid, 772; Cincinnati v. Diamond Light Co., 4 Ohio App. 177.]

All the cases cited for plaintiff, except the practically overruled one of Henry v. Cincinnati, lack one fact which, in our judgment, must control the ruling on the proposition that plaintiff and its predecessor, in the capacity of owners of the fee -and with the consent of the other owners, might lay and maintain their wires under the alleys. This fact is that both the Holland Company and the plaintiff are franchise-holding corporations, organized under the laws of this State, and to which the State granted the power to occupy the public ways of St. Louis with their appliances only on the condition of the consent of the municipal authorities of the city being given.. The sovereignty of a State can grant or refuse corporate franchises at its will; and in granting them, may impose, on the exercise of them, any terms it chooses. [State v. Stone, 118 Mo. 388; Blair v. Ins. Co., 10 Mo. 559.] And when a corporation accepts franchises with a condition to be performed by the company before exercising them, it is bound to comply with the condition. [Paige v. Railway Company, 178 N. Y. 102; McCormick v. Bank, 165 U. S. 538; Bonham v. Taylor, 10 Ohio, (Wilcox) 108.] The plaintiff is not only maintaining wires in its own fee without the city’s consent (in itself unlawful conduct, perhaps); but it i& maintaining them, too, in the fee of other proprietors, and thereby, as was said in Cincinnati v. Diamond Light Co., supra, is substituting the consent of the abutters for that of the city, which the law requires it to have. The case last mentioned is like the one before us-, in that the wires were placed by permission of the abutting property owners; but the plaintiff itself was not an abutter. The opinion is well reasoned and turns upon a statute very like those which bear on this case.

Prom whatever source, ofi a correct interpretation of the statutes, the franchise to lay wires, in streets- is obtained, whether directly from the State or from the city through a grant of power by the State to municipalities, the condition precedent to the exercise of the franchise is the consent of ’the city by an ordinance. The plaintiff is in the alley with its wires without such permission and despite its title to the fee and the permission of its- adjacent fee-holders, is thereby violating, -both the statutes and the municipal ordinance which provides against the placing of.“wires, tubes or cables conveying electricity for the production of light, heat or power, unless duly authorized by the municipal assembly.”

In the search for apposite precedents, we found a case where- the court sanctioned the carrying of electric wires across streets at the height of eighty feet, on the theory that the word “ street” in an act of Parliament asserted to permit a board of -public works to control the placing of. wires in streets, meant only so much space obove the surface as. was within the “area'of user”, as the opinion styles that portion of the space above what was, or was likely to be, needed for public purposes. The court held it was improbable the space eighty feet above the surface would be thus needed; that the statute should not be interpreted to vest the board with control at that height. [Wandsworth Board of Works v. United Telephone Co., 13 L. R. Q. B. Div. 904.] If .the principle of that opinion were to be accepted and applied to depths below the surface, it would not help the plaintiff on this record; for the wires are shown to be only “several feet” underground; a. depth where the soil is used for sewers, gas mains, and 'the like public purposes.

After much reflection and examination of authorities, we have been unable to find any legal principle by which relief can be granted plaintiff, although we fain would do so if plaintiff is willing to abide by the city’s requirements.

injunction IY. An injunction is often denied where the only purpose or effect of it would be to restrain the violation of a merely technical right, from which no dam-a§’e would ensue. Particularly is this true when the writ would operate oppressively or contrary to the real justice of the ease. [Hill, Injunctions, 30, 33; 1 Story, Eq. Juris. (11 Ed.) see. 959, p. 169; 1 Am. & Eng. Ency. Law, 360.] This doctrine has been recognized by our courts in several decisions.

In Warren v. Cavanaugh, 33 Mo. App. 102, an injunction to prevent the opening of a stone quarry was denied, although the act was forbidden by a municipal ordinance, there being no proof the operation of the-quarry would be a nuisance.

In Bailey v. Culver, 84 Mo. 531, this court approved a decree denying an injunction to compel the removal of a large building which extended slightly over the boundary of an alley,- thereby encroaching on the roadway. It appeared no inconvenience or damage resulted to the plaintiffs from the encroachment, because the slight deflection of the old alley, occasioned by the defendants’ building and authorized by a city ordinance (alleged to- be invalid), worked no inconvenience to the plaintiffs. The opinion said a substantial, not an unimportant injury, or one disproportionate to the relief sought, was cause for an injunction to issue in such a case. Further, that none should issue if it would inflict serious damage on the party to be restrained, or would operate oppressively without enuring to the material good of the complainant. The doctrine of a discretion inhering in courts of equity in respect of refusing or granting injunctions was referred to, with the comment that such a court would make no order that would be oppressive or an arbitrary use of its power; but would consider the comparative convenience or inconvenience to the parties the granting or refusal of the writ would cause. The record leaves in uncertainty the points of plaintiff’s willingness to accept a permit from the city on the terms prescribed in the ordinances; and of defendants’ unwillingness to grant one on those terms. As the facts appear, the latter decision, if made, savors too much of an arbitrary exercise of a technical right for a court of equity to lead countenance to it.

The judgment of the court below in denying a mandatory injunction to defendants is approved, and its order dismissing the cross-complaint is affirmed; but the judgment for plaintiff is reversed and the cause remanded with the direction to dismiss the petition of plaintiff.

All concur.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    WILLIAM NICKELSON, Appellant, v. CITY OF HARDIN.
    Division One,
    April 10, 1920.
    1. CITY MARSHAL: Also Constable. One person can, at tbe same time, hold the office of marshal of a city of the fourth class and that of constable of the township in which the city is located.
    2. -: -: Constitutional Provision: State Office: Municipality: Applicable Only to Cities or Counties of 200,000 Inhabitants. The Constitution provides that “in cities or counties having more than two hundred thousand inhabitants, no person shall, at the same time, be a state officer and an officer of any county, city or other municipality; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities.” Held, first, that the words “state officer” are used in their popular sense, and mean an officer whose functions and official duties are coextensive with the State; second, that tbe words “other municipality” mean a township or village; third, that the section, in both the first and second clauses, applies only in counties and cities having more than two hundred thousand inhabitants, and the second clause, namely, “no person shall, at the same time, fill two municipal offices, either in the same or different municipalities,” does not apply to cities or counties having less than two hundred thousand.
    Appeal from Ray Circuit Court. — Eon. Frank P. Divelbiss, Judge.
    Reversed and remanded.

      Thompson & Thompson for appellant.
    (1) The court erred in determining that Sec. 18, Art. 9, prevents a constable from being marshal in Ray County, which has less, than two hundred thousand inhabitants. (2) See. 18, Alt. 9>, applies to counties with more than two hundred thousand inhabitants. State ex rel. v. Watson, 71 Mo. 4731; State ex rel. v. Bus, 135 Mo. 325. (3) A constable is a township or county officer. State ex rel. v. McKee, 69 Mo. 504, Sec. 12, Art. 4; Sec. 34,\ Art. 9; Sec. • 12, Art. 10; Sec. 7, Art. 14, of State Constitution.

      M. M. Milligan and A. M. Clark for respondent.
    (1) The second clause of Section 18 of Article 9 applies to counties of less than 200,000 inhabitants. (2) The offices of city marshal and township constable are both municipal offices within the meaning of Section 18, Article 9.
   BLAIR, P. J.

This is' an appeal from a judgment for the City of Hardin in an action plaintiff brought for a balance of salary he alleges' is due him as city marshal.

There is no dispute about the fact. Hardin is a city óf the fourth class. Plaintiff was elected marshal in April, 1915', and duly qualified as such. At the November election in 1916 he was elected constable of the township in which Hardin is situated, and duly qualified in ' that office. The mayor and city council of Hardin were of opinion that plaintiff’s acceptance of the office of constable vacated the marshalship, and they thereupon took proceedings, without notice, which resulted in an order purporting to remove him from office for that reason alone. It is agreed plaintiff was ready and willing to perform the duties of the marshal-ship and that he notified the mayor that he regarded his removal as unlawful and intended to insist upon receiving his salary as marshal for the remainder of of the term for which he had been elected. The amount thereof is $70.

The briefs present the single question, whether one person can, at the same time, hold the office of marshal of a city of the fourth class and that of constable of the township in which it is located. Counsel seem to agree that these offices are not incompatible in the common law sense (State ex rel. v. Bus, 135 Mo. l. c. 338), and the single question they discuss is whether Section 18 of, Article IX of the State Constitution applies to the case. That section- reads as follows:

“In. cities or counties having more than two hundred thousand inhabitants, no person shall, at the same time, be a state officer and an offiicer of any county, city or other municipality; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities; but this section shall not apply to notaries public, justices of the peace or officers of the militia.”

Plaintiff contends that no part of this section applies except in cities or counties having in excess of two hundred thousand inhabitants. Defendant’s position is that the second clause of the petition applies generally without any limitation as to population.

The words “state officers,” in the first clause, are to be “understood as having been used by'the framers of the Constitution in their popular sense, and were intended only to refer to those whose official duties and functions are co-extensive with the State” (State ex rel. v. Dillon, 90 Mo. l. c. 233; State ex rel. v. Spencer, 91 Mo. 206), and do not include county and township officers. As indicated in the case last cited, this is particularly true with respect to these words as used in Section 18 of Art. IX, because they obviously are used to designate a class of officers other than officers of “any county, city or other municipality.” Under this first clause no state officer can, “at the same time, serve also as an officer of any county, .city or other municipality,” in any city or county having over two hundred thousand inhabitants. So far as this first clause is concerned, a state officer may, at the same time, hold an office in any county, city or other municipality provided such office be in some county or city having not more than two hundred thousand inhabitants. In whatever territory the second clause is effective, it precludes the same person from holding, at the same time, two or more municipal offices, £ either in the same or different municipalities'.” The first clause makes it clear that the section is not using the term “ municipality” in a sense which would include the State in its meaning. The language of clause one also shows that the section uses the term “municipality” to include counties as well as cities, and also to, include municipalities' other than counties and cities. The words “county, city or other, municipality, ” in their ordinary meaning, in the connection in which they occur, indicate that “other municipality” means municipality other than a county and other than a city. Such municipality may be a township or a village, for instance.

If the second clause is held to apply generally and without restriction as to population, one result would he that Section 18, so far as it is concerned, would leave state officers free to hold municipal offices in counties or cities having less than two hundred thousand inhabitants, but would prohibit the citizen who held one municipal office from holding another. If the second clause is construed as also limited in its application to counties and cities of over two hundred thousand inhabitants, then the state officer and the constable, city attorney, etc., are upon an equal footing, i. e. each might hold some other office in a municipality in counties and cities having not more than two hundred thousand inhabitants. The construction defendant contends for would produce, therefore, one rather singular result. There might be reason for prohibiting state officers from holding municipal offices, but the framers of the Constitution evidently thought this reason was not of a character to require a constitutional prohibition except in cities and counties having over two hundred thousand inhabitants. "Why the same body of men should at the same time think it necessary to prohibit a constable, of a township, for instance, from being, at the same time, city marshal of a city of the fourth class, in counties having less than two hundred thousand inhabitants, and yet leave the state officer free, so far as the section is concerned, to hold his state office and that of constable or city marshal or other municipal office, is not clear. It seems that any reason for prohibiting one holding a municipal office from holding another at the same time would apply with greater force to one holding a state office.

The G-eneral Assembly has not taken defendant’s view of this section. In 1881 it expressly enacted (Laws 1881, p. 215') that one person, at the same time, might hold both the office of constable and that of township collector in counties under township organization. This is still the statute. [See.. 116'69, R. S. 1909.] In cities of the fourth class, the statute (Sec. 9313, R. S. 1909) provides that the same person may, at the same time, hold the office of city marshal and street commissioner. Both these enactments are unconstitutional if defendant’s construction of Section 18 is correct. In 1877 the acts relating to cities of the several classes contain provisions designed !to prohibit a person holding a named office from holding any other office in the same' city. [Laws 1877, sec. 24, pp. 113i, 114 (See Sec. 8570, R. S. 1909] ; Laws 1877, p, 49; Laws 18771, sec. 15; p, 103L] All these provisions were wholly useless if defendant’s construction of Section 18 is sound. It is not unworthy of note that the General Assembly which met in 1877 convened in a few weeks after the Constitution was adopted, and that six members of the House of Representative of that year had been members of the Convention which framed the Constitution, of which Section 18 is apart. This court once stated (State ex rel. v. Watson, 71 Mo. l. c. 473) that it had “grave doubts” of the correctness of the construction which we are now asked to put on Section 18 of Article IX.

The question is not free from difficulty, but we are of opinion that the proper construction of the section is that it applies only in counties' and cities having more than two hundred - thousand inhabitants. This disposes of the only question presented by the briefs. The judgement is reversed and the cause remanded.

All concur, except W\ood,s<on, J.} absent.


author: GOOBE, J.

text:
    MADIE P. TILLERSON et al. v. JULIA A. TAYLOR et al., Appellants.
    Division One,
    April 10, 1920.
    1.WILL: Devise in Fee or for Life: Omission of Words Heirs and Assigns. Notwithstanding, by the express words of Section 579, Revised Statutes 1909, the words “heirs and assigns” or other words of limitation are not required in a devise of land in order to carry the fee, the statute imports that á devise, which otherwise would pass the fee, will have the effect of passing only an estate for life, if expressions are contained in the will which show the testator intended to give no greater estate than one for life, or if there is a devise over of the property after the death of the first taker.
    2. -: -: Devise During Widowhood. Words in the clause by which the testator gave lands to his widow, “to have and to hold the same and enjoy during her widowhood” and “so long as she 'remains my widow,” are apt expressions of an intention to pass only a life estate to the widow.
    3. -: --: Fee Subject to Remarriage. Repeated statements in the will that the estate was to go to the childless testator’s collateral kindred in case of his wife’s remarriage cannot be held to be a devise to her in fee, subject to be defeated in case of her remarrying, in view of language in the clause by which the gift is made plainly giving her only a life estate.
    4. -: -: -: intestacy: Devise Over. A childless testator devised his property to his wife, “to have and to hold the same and enjoy during her widowhood or so long as she remains my widow. If she remarries or in the event of her remarrying again, I desire that all my property should be divided equally between my brothers and sisters and my wife and her brothers and sisters all sharing alike and equal with my wife,” and then proceeded to name the brothers and sisters, “who are to share alike with my wife in the event of my wife remarrying.” The two sisters of the wife so named died before the widow, who survived her husband twenty-nine years, and did not remarry, but by her will devised the property to her cousin. Held, first, that the will gave to the wife only a life 'estate; and, second, an intestacy in the husband in the remainder of the estate did not result, in case she did not marry again, but the devise over to the brothers and sisters in ease she remarried would have taken effect, as does also the devise to them upon her death without remarrying.
    5. -: Intestacy: Presumption. The presumption that a testator intended to dispose of his whole estate and to die intestate as to none of it, must give way, when the words of his will are inconsistent with a purpose to give more than a life estate; and all the stronger is the rule when the words used have always been treated as passing a life estate.
    6. —--: Remarriage: Qualified. Pee. Cases supporting the contention that a will which devises property to testator’s widow gives her a qualified fee, defeasible upon her marriage, but otherwise absolute, the intention being to give the fee if there was no remarriage, are distinguishable from a case wherein the' will devised the property to “my wife, to have and to hold the same and enjoy during her widowhood or so long as she remains my widow” and in case “she remarries I desire that all the property should be divided equally between my brothers and sisters and my wife and her brothers and sisters,” for in such case only an estate for life, subject to be defeated by a marriage, passes to the widow.
    Appeal from Macon Circuit Court. — Hon. Vernon L. Drain, Judge.
    APPIRMEU.

      D. R. Hughes, John R. Hughes and C. F. Hale, for appellants.
    (1) The devise to Edna Montgomery is a qualified fee which became a fee simple title upon her death without remarriage. Sec. 570, R. S. 1909;; Yocum v. Siler, 160 Mo. 281; Scott v. Murray, 218 Pa. St. 186; Yaughn v. Yaughn, 97 Ya. 3Í22,; Rolley v. Rolley, 109 Ya. 449. (2) There was no devise in this will to take effect after the death of the first devisee. The widow could only be divested of title by a remarriage. Sec. 579, R. S. 1909. (3) The intention of the testator must be ascertained by a consideration of the entire will; and, if necessary, the surroundings of the testator. •Sec. 28701, R. S. 1909 ; Cross v. Hoch, 149 Mo. 336; Yocum v. Siler, 160 Mo. -281; Simmons v. Cabanne, 177 Mo. 336; Armor v. Frey, 226 Mo. 646; G-race v. Perry, 197 Mo. 559; Underwood v. Cave, 176 Mo. 1; Brooks v. Brooks, 187 Mo. 576; Lockney v. Campbell, 189 S. W. 1174; Shumate v. Bailey, 110 Mo. 411. (4) The devise to the widow when all the terms of the will are considered is sufficient to convey a base, qualified or defeasible fee, subject only to be defeated by a remarriage, and the death of the widow without remarriage establishes a fee simple title. Sec. 579, R. S. 1909; Frey v. Thompson, 66 Ala. 287; Black v. Nolan, 132 Ga. 452; Fidelity Trust Co. v. Bobloski, 228 Pa. '52; Redding v. Rice, 171 Pa. 301; Rohabach v. Sanders, 212 Pa. 636; Scott v. Murray, 218 Pa. 186; Koble v. Bennett, 40' Pa. Sup. Ct. 79'; Squier v. Harvey, 16 R. L. 226; Wright v. Wright, 16 U. C. Q. B. 184; Beatty v. Irwin, 35 Ind. App. 238; In re Deller, 6 Ont. L. Rep. 711; In re Mumby, 8 Ont. L. Rep. 280; Bay v. Baveron, 12 Sim. 200.

      Ben Franklin for respondents.
    (1)“A devise of real estate to a widow to be held during her widowhood is a life estate, subject to being terminated by the marriage of the widow.” Price v. Ewell, 151 N. W). 79 ; Brunk v. Brunk, 157 Iowa, 51; Sink v. Sink, 64 S. E. 193; Rubey v. Barnett, 12 Mo. 5. (2) A widow may take a life estate by necessary implication. Rubey v. Barnett, 12 Mo. 5; Gibson v. Gibson, 239 Mo. 500; BuBois v. VanValen, 61 N. J. Eq. 331. (3) Where a devise is to testator’s wife “whilst she remains my widow,’1’ the estate created cannot be greater than a life estate. Rose v. Hale, 185 111. 378, 76 Am. St. Rep. 40'; Knight v. Mahoney, 152 Mass. 582, 9 L. R. A. 572; Green v. Hewitt, 97 111. 1131, 37 Am. Rep. 102.
   GOOBE, J.

Joseph Montgomeiy died testate in Becember, 1888, leaving surviving him his wife, Edna Montgomery, and four, brothers and five sisters, but no children or other lineal descendants. The present action was instituted to partition lands of which he died seized, among- those of said brothers and sisters now living, and the heirs of those who previously had died.

The court found in its decree the respective interests of the collateral heirs, found also the lands were not susceptible of partition in kind, and ordered a sale of it to convey “all the title of the said Joseph Montgomery, deceased, and of his said heirs at law,” etc. This judgment was entered July 10, 1917. On December 14,1917, the court granted the defendant Julia A. Taylor leave to become a party defendant and file a separate answer. On the same day she filed an answer wherein she alleged she was the owner of all the land involved in the action and was at the time it was brought, and denied every other allegation in the plaintiffs’ petition. She based her claim of title on the will of Joseph Montgomery and the will of his widow Edna Montgomery.

The material paragraphs of Joseph Montgomery’s will are these:

“I order and direct as soon after my decease as practicable to pay off and discharge all the debts, dues and liabilities that may exist against me at the time of my decease. I give and bequeath unto my esteemed wife, Edna Montgomery, all my property, both real and personal that remains after my debts are paid, to have and to hold the same and enjoy during her widowhood or so long as she remains my widow.

“If she remarries or in the event of her remarrying’ again, I desire that all the property should be divided equally between my brothers and sisters and my wife and her brothers and sisters ah sharing alike and equal with, my wife. The names of my brothers and sisters that I desire shall share in the division in the event of my wife marrying again, are Henry G. H. Montgomery, William Montgomery, Francis M. Montgomery, George Wi Montgomery, Jane Martin, Anne Millsaps, Lucinda Summers, Elizabeth Perry, Manerva Fisher. And the names of my wife’s brothers and sisters who are to share alike with niy wife and my brothers and sisters, in the event of my wife remarrying, are Nancy Jane Drinkard and Samantha, Ann Drinkard.”

Nancy Jane Drinkard and Samantha Ann Drinkard, who. are mentioned in the foregoing paragraphs, died, as the court found, prior to the death of Edna Montgomery, who died in February, 1917, having survived her husband, Joseph Montgomery, twenty-nine years, and she had not remarried. She left a will wherein, after directing that her debts and funeral expenses be paid, she made specific bequests to two legatees and then this disposition of the remainder of her estate: “To my cousin, Julia A. Taylor, I devise and bequeath all the remaining part of my estate, both real and personal.”

The defendant Julia A. Taylor asserts title to the land in controversy solely under that clause of the will of Edna Montgomery; and the question presented for decision is whether or not the will of Joseph Montgomery devised the land to Edna Montgomery, his widow, in fee simple, biut subject to be defeated by her remarriage; in which event, as-she never remarried, her will vested in Julia A. Taylor the title in fee; or whether, as the court below decided, her husband’s will devised to Edna Mont-, gomery only a life estate in the land, subject to be defeated at any time by her remarriage, and, of course, terminable by her death; in which event she held no devisable interest.

In support of the proposition that Joseph Montgomery’s will passed to his widow Edna Montgomery the fee of the land, we are cited to the section of the statutes which reads as follows:

“In all devises of lands or other estate in this State, in which the words ‘heirs and assigns,’ or ‘heirs and assigns forever,’ are omitted, and no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and shall convey an estate in fee simple to the devisee, for all such devised premises.” [R. S. 1909, sec. 579.]

It is doubtless true, since the enactment of that statute, that the words “heirs and assigns,” or other wordsof limitation, are not required in a devise of land to carry the fee to the devisee. [Roth v. Rauschenbusch, 173 Mo. 582.] Yet the statute imports that a devise which otherwise would pass the fee, will have the effect of passing only an estate for life if expressions are contained in the will which show the testator intended to give no greater estate than one for life, or if there is a devise over of the property after the death of the first taker. [Armor v. Frey, 226 Mo. 646, 669; 670.] In the will of Joseph Montgomery expressions were used which show the intention of the testator was to vest the title to the lands in his widow only during her widowhood. The expressions “to have and to hold the same and enjoy during her widowhood,” and, “so long as she remains my widow,” occur in the clause wherein the gift to her is made, as a definition of the quantity of the estate given. Such a devise always has been held to pass only an estate for life, and apter words for that purpose could not be chosen. [2 Black, Commen. 121; Williams on Real Property (17 Intemat. Ed.), p. 142; 2 Minor’s Institutes, chap. 8, par. 2g.] Moreover, the estate given was intended to last only ‘ ‘ so long as she remains my widow; ’ ’ only so long as Edna Montgomery remained the widow of the testator. That expression, and also the one “during her widowhood,” were apt words to make the.life estate one of limitation, which would terminate instantly upon the remarriage of the widow, without entry or other assertion of title by the remaindermen. [1 Washburn, Real Property (6 Ed.), sec. 165, p. 79.]

In arguing that Joseph Montgomery intended to devise his entire fee in the land to his wife, counsel for defendant (appellant) draw attention to the childlessness of the couple, which is asserted to have made his wife the sole subject of the testator’s solicitude, and to dispose him to give his entire estate to- her. Perhaps it could be argued with more force that, if there had been children, he would have been disposed to give her the fee, expecting the children to take after her, either by descent or by her will. The conclusion about this matter to be derived from the will is, that his wish was to provide for his widow as far as his total means -permitted, throughout her widowhood, and if she remarried, to restrict her share in the estate to a coequal interest with his and her colateral kindred, whom, it is clear, he regarded as proper objects of his bounty.

The point is stressed that if Edna Montgomery was given no greater estate than one for life, an. intestacy would result as to the remainder of the husband’s estate, if she did not many again, and as the law leans against intestacy, such an interpretation of the will is to be avoided. The law is not that an intestacy would hapen in the contingency stated; or to speak more precisely, it does not happen always if there is no second marriage. A devise over, like the one to the brothers and sisters of Joseph and Edna Montgomery in case she married, has been held to take effect at the death of the widow, as well as in the contingency named. [1 Jarman on Wills (6 Bigelow’s Ed.), pp. 759, 760; Underhill v. Roden, 2 L. R. Ch. D. 496; Luxford v. Cheeke, 3 Lev. 125; Gordon v. Adolphus, 3 B. P. C. Toml. 306; Frey v. Thompson’s Admr., 66 Ala. 287.] In applying or refusing to apply that rule, and every other affecting the interpretation of wills, the intention of the testator is sought in order to- give effect to it, and slight differences of phraseology may determine the court to hold in one case the intention was for the remainder over to take effect only in the contingency of a second marriage, and in another case, that the intention was for it to- take effect in that contingency or, if the widow remained single, at her death. [1 Jarman on Wills (6 Bigelow’s Ed.), p. 777, note.]

The mention several times in the will of Joseph Montgomery of where the estate should go in case of the remarriage of his widow, is said to show she was given the fee, subject to be defeated by her remarrying. That circumstance might have weight in determining whether the limitation over could take effect at her death, as well as upon a second marriage; but has none, we think, in determining whether Joseph Montgomery’s will gave her a life estate or a fee.

Indeed none of the foregoing considerations has weight; for the language of the devise plainly gave a life estate to the widow, and the other provisions are not inconsistent with the intention on the part of the testator to give that estate and no larger one. The presumption that a testator intended tó dispose of his whole estate and to die intestate as to none of it, must give way, when the words of a will are inconsistent with a purpose to give more than a life estate; and all the stronger is the rule when the words used have always been treated as passing a life estate. [McCaffrey v. Manogue, 22 App. Cas. D. C. 385.]

In the brief for appellant a dozen cases are cited in support of the interpretation that Joseph Montgomery’s will gave his widow a qualified fee, defeasible by her marriage, but otherwise absolute. These are distinguishable from the present case' by the language of the devise to the first taker, or other provisions showing an intention to give the fee if there was no remarriage: Fidelity Trust Co. v. Bobloski, 228 Pa. St. 52; Redding v. Rice, 171 Pa. St. 301; Rohrbach v. Sanders, 212 Pa. St. 636; Scott v. Murray, 218 Pa. St. 186; Koble v. Bennett, 40 Pa. Sup. Ct. 79; Squier v. Harvey, 16 R. I. 226; Wright v. Wright, 16 U. C. Q. B. 184; Beatty v. Irwin, 35 Ind. App. 238; In re Deller, 6 Ont. L. Rep. 711; In re Mumby, 8 Ont. L. Rep. 283; Day v. Daveron, 12 Sim. 200. These two cases are not easy to distinguish; perhaps cannot be distinguished: Frey v. Thompson’s Admr., 66 Ala. 287; Black v. Nolan, 132 Ga. 452. In our opinion the weight of decision and sound principles favor the view that only an estate for life, subject to be defeated by a marriage, passes to the widow by a devise like the one in hand. [1 Washburn on Real Property (6 Ed.), p. 103, sec. 222; Fuller v. Wilbur, 170 Mass. 506; Sink v. Sink, 150 N. C. 444; Price v. Ewell, 169 Iowa, 206; Matter of Schriever, 221 N. Y. 268.]

As stated, Julia A. Taylor claims solely under the. will of Edna Montgomery, and by that will she took no title; so it is unnecessary to pass on the point of whether she should have been made a defendant.

The judgment is affirmed.

All concur except Wood-son, J., absent.'