Outside of ingress and egress, light, air and peaceable enjoyment of his property, the incorporal rights of an adjoining owner in the street are more theoretical than real.

The plaintiff in this case and other plaintiffs in similar suits have testified that the presence of the line in the street has depreciated the value of his property. Whether this is true or only fanciful, we do not know. People generally would prefer not to have such a line in front of their property. This is probably caused by the supposed dangerous agency of electricity. If people along all the roads and all the streets were of this notion, we could not have the modern method of electric lighting.

Evidence was given by experts that the high voltage wire was not as dangerous as the lower voltage or distributing lines. The depreciation of the value of property from the danger of high voltage lines is. more imaginary than real, if we accept as true the expert's opinion. There is undoubtedly a dangerous agency present in the use of electricity, more than there would be in the use of kerosene lamp or gas light. There is also a more dangerous agency present in the use of automobiles over the streets at the rate of speed they travel than there was in the use of the slow moving ox-cart, yet we do not displace the modern way for the antiquated method, on account of the increase danger attending it, nor can property owners object to the use of the street in this way by reason of the danger.

There may be some inconvenience suffered by property owners by reason of such a line in front of their property; but there is no measurable damage suffered unless ingress or egress, light, air, etc., is cut off. If a pole were set in front of a drive way. it would have to be removed or adequate damage paid. To set a pole in front of an imaginary driveway, or one that might be established in the future, is not a present damage or loss.

It is claimed that the General Code requires such transmission wires to be insulated or covered; the defendant claims insulation of high voltage wires is impracticable and is not a safeguard. If the code is to be construed as requiring wires to be insulated then the law would be a reason for requiring the

defendant to insulate its wires, and not a reason for tearing them down.

It is contended also that the defendant as assignee of the present lighting contract for the Bucyrus Light and Power Company has no authority under the assigned contract for the reason that it has not been shown the city consented to such assignment. The defendant has a franchise, as shown in evidence, to use the streets for its poles and wires, and a contract for lighting beginning December 15, 1919. Its contract and franchises with the city for future lighting would be sufficient even though the present contract is incomplete by reason of the city not consenting to its assignment.

It having been shown that the defendant is to use the poles, wires and equipment for lighting the streets and public places of the city of Bucyrus, such use of Southern avenue for street purposes is superior to the rights or easement in the street by an adjoining owner and there is no invasion or taking of his property interests. This conclusion is supported by the following authorities: 25 C. C. (N. S.), 44; 66 O. S., 166; Curtis on Electricity, Sec. 281.

The case of Mantel v. Bucyrus Telephone Co., 20 C. C., 345, decided by the circuit court of this county, is not applicable for the reason that the pole and equipment enjoined from being placed in front of a business place was not to be used. for street purposes but wholly for private purposes.

The case of Hays v. Columbiana Telephone Co., decided by the circuit court of Columbiana county in 1901, a year after the Mantel case was decided is in direct conflict with the Mantel

case.

The case of Stone v. Cuyahoga Light Co., decided by the Cuyahoga Common Pleas Court in 1909, 9 N.P. (N.S.), 545, contains the better reasoning in cases where the streets are taken for private purposes.

Cavanaugh v. Rexer et al.

[Vol. 23 (N.S.)

DETERMINATION AS TO THE TIME TO WHICH THE WORDS "IN CASE OF DEATH WITHOUT ISSUE" REFER.

Court of Common Pleas of Clark County.

JOHN H. CAVANAUGH V. CHARLES REXER ET AL.*

Decided, April 5, 1920.

Wills-Life Estate Created-Property to Then Go to a Designated Person-But in Case of Death Without Issue Then to Certain Heirs— Action to Quiet the Title to Said Property.

Where a testatrix by her will devises real estate to A for life and afterwards to B in fee simple, but in case of the death of B without issue to the next of kin of the testatrix, the words "in case of death without issue" refer to the death of B without issue during the lifetime of A, and if B survives A her title becomes absolute in fee simple, unless a contrary intent is evinced by the language of the will.

A. C. Link, for plaintiff.

Hamilton Bros., J. E. West, V. G. Hahn, for defendants. GEIGER, J.

This is an action to quiet the title of the plaintiff to the north half of Lot No. 39 in Demint's addition to the city of Springfield.

The case is submitted to the court upon an agreed statement of fact, from which it appears, among other things, that plaintiff acquired his title by two deeds, one a tax deed and the other a quit claim deed from Jennie A. Dudley; that Jennie A. Dudley was formerly Martha Jane Ann Hurth and that she acquired her title by virtue of the last will and testament of Jane Hardy. The said Jennie A. Dudley was a daughter of Nancy Hurth, who was mentioned in the will as the niece of Jane Hardy; that Jane Hardy died in 1863 leaving no issue and leaving as

*Affirmed by the Court of Appeals, May 28, 1920.

1920.1

Cavanaugh v. Rexer et al.

her nearest heirs and next of kin her brothers and sisters and said niece, Nancy Hurth, and the daughter of said niece, the grantor in said quit claim deed; that at the death of the testatrix said Martha Jane Ann Hurth was about three years old; that Nancy Hurth, niece of said Jane Hardy and mother of Martha Jane Ann Hurth survived the said testatrix and died about twenty-five years ago; that Martha Jane Ann Hurth is still living at the age of about sixty years. She had issue, one son, who died in 1882; that there is no probability of her having any other issue.

The question calls for the proper construction of the will of Jane Hardy and involves the construction of Items 2, 3, 4 and 5, which are as follows:

"Item 2. I devise all my real and personal property in trust for the sole use, benefit and behoof of my niece Nancy Hurth for her lifetime and after her death to the daughter of said Nancy Hurth, the name of said daughter being Martha Jane Ann Hurth, in fee simple.

"Item 3. I hereby name Elam Kinney as trustee to carry out the trust set forth in the last item.

"Item 4. The devise to my niece in trust in Item 2 is understood to be without the power of disposition on her part, or the power to charge the property with debt.

"Item 5. In case of the death of Martha Jane Ann Hurth without issue, I devise the property aforesaid to my next of kin to be distributed according to law."

The claim of the plaintiff is that when Martha Jane Ann Hurth survived her mother, the life tenant, the title became absolute in her.

The claim of the defendant is that Martha Jane Ann Hurth, under the will, takes the fee simple title subject to be determined by the contingency of dying without issue at the time of her death and that if she should so die without issue, the estate would pass over to the surviving heirs of the testatrix by way of executory devise.

The rule is well established in Ohio that where there is a devise in fee to A, but if he die without issue then to B in

Cavanaugh v. Rexer et al.

[Vol. 23 (N.S.)

fee, the words "if he die without issue" are to be interpreted according to their popular meaning and have reference to the time of the death of A, unless the contrary intention is plainly expressed in the will or is necessary to carry out its undoubted purpose; and if A have no children or issue living at the time he dies, B takes under such devise; that A would take an estate in fee simple subject, however, to be determined by the contingency of his dying without issue living at the time of his death, on the happening of which the estate would pass over by way of executory devise. Parish v. Ferris, 6 O. S., 563; Niles v. Gray, 12 O. S., 320; Taylor v. Foster, 17 O. S., 166; Smith v. Hankins, 27 O. S., 371; Piatt v. Sinton, 37 O. S., 353; Durfee v. MacNeil, 58 0. S., 238; Anderson v. Realty Co., 19 C. C. Dec., 267.

Is a contrary intention plainly expressed in the will or necessary to carry out its undoubted purpose?

By the will the estate is devised to the niece of the testatrix for her lifetime and after her death to her daughter in fee, with the provision that in the case of the death of the daughter without issue the property is devised to the next of kin of the testatrix.

Does the intervention of the life estate of Nancy, the mother of Martha, distinguish the case from the above cited cases?

In none of the cases above cited except Niles v. Gray, are the devises subject to a life estate. In each of the others it is the condition of the will that if the primary devisee shall die without issue the estate shall pass over.

In the first of the cases above cited the contention was that the words used referred in general to an indefinite failure of issue, which would create an estate tail and the court refused to adopt this English rule as the law of Ohio.

In the case of Sinton v. Boyd, 19 O. S., 30, it is held that in the construction of wills words of survivorship shall be referred to the period appointed by the will for the payment or distribution of the subject matter of the gift, unless a contrary inten tion is evinced by the language of the will.