Stewart v. Ill. Cent. R. Co.

right and power to lease out portions of the street surface to hucksters and others for market purposes, and whether the city has such right is the real question in this case."

The court further said: "This power to regulate the use of streets is not confined to the regulation of travel thereon, but under it the city may allow gas, water, and sewer pipes to be laid therein, and may cause wells therein to be filled (Ferrenbach v. Turner, supra), and may permit the erection and maintenance of telephone poles thereon. Julia Bldg. Ass'n v. Bell Teleph. Co., 88 Mo., 258, 57 Am. Rep., 398. All these uses are consistent with the uses for which streets are acquired or dedicated. But it does not follow from anything said in any of the cases just cited that the city may lease out portions of the streets for hucksters' stands and stalls.

"A general power to regulate the use of streets cannot and ought not to be construed to give the city a right to create a nuisance in the streets, or to devote them, or any part thereof, to any purpose inconsistent with the right of the public or abutting property owners. The 'public highways belong, from side to side and end to end, to the public,' and 'the public are entitled, not only to a free passage along the highway, but to a free passage along any portion of it, not in the actual use of some other traveler,' and the abutting property owner has the right to the free and unobstructed passage to and from his property."

In Traphagen v. Jersey City, 52 N. J. Law, 67, 18 Atl., 586, 696, the court said: "There are a number of uses to

Stewart v. Ill. Cent. R. Co.

which the owners of lands bordering upon the street can resort to; among such are the placing of building materials, or of wood or coal temporarily in the street, until such material can be used, or the coal or wood stored for use. So, the retention of wagons upon the street until they can be loaded or unloaded in front of places of business is a use of similar character which seems to be legiti mate without legislative sanction, subject to control by the municipality under its power to regulate, But the structure which the ordinance in question permits, and which the railroad company has erected, is not a use of the street of the kind already mentioned. The result of the construction of this freight platform and roof is to exclude public travel from the sidewalk of Tenth street and devote it to the private business of the railroad."

Mr. Dillon, in his Work on Municipal Corporations (5th Ed., section 1241), states the rule as follows: "Hence authority conferred upon a municipality to grant the right to construct, or to consent to the construction of any kind of railroad in a city street, is limited in its scope to the grant of a right which permits the concurrent use of the street by the railroad and by the public, and the municipality has no power thereunder to confer upon a railroad company the right to so occupy the street with its tracks as to destroy the street for purposes of travel and to exclude the public therefrom"-citing many authorities.

Some of the foregoing cases were cited with approval in the Pepper Case.

Stewart v. Ill. Cent. R. Co.

Counsel for the railroad company cite Doane v. Elevated Railroad, 165 Ill., 510, 46 N. E., 520, 36 L. R. A., 97, 56 Am. St. Rep., 265, as announcing a contrary doctrine. That case involved the right to construct an elevated railroad in the city of Chicago, and in its facts differs materially from the case under consideration, and it would be a useless consumption of time for us to discuss the power of the city of Memphis to authorize the construction of an elevated railroad though its crowded thoroughfares, such as may be seen in New York or Chicago.

It is insisted by the railroad that the erection of light and telephone and electric railway poles is an exclusive use of parts of the street.

This question is put at rest by the case of Telephone Co. v. Electric Ry. Co., 93 Tenn., 503, 29 S. W., 104, 27 L. R. A., 236, in which it was held that the erection of poles is not an additional servitude upon the fee within the streets, but is a legitimate use of the streets within the original, general purpose of their dedication. Such poles are usually placed in the edge of the road or street, and interfere so little with the use of the streets by the public as to be of no consequence. If they were so erected as to seriously impair the use of the street, a case for judicial relief would arise.

The conclusions reached appear to us sound upon principle, and are well sustained by the authorities.

Other questions, including the validity of the ordinance by virtue of which the railroad company acted, are presented by the record, but need not be determined, since the

Stewart v. Ill. Cent. R. Co.

question of exclusive use is determinative of the cause. We are of the opinion that to permit the construction of this track as contemplated by the plans and blueprints, as submitted, would amount to an appropriation of the exclusive use of one-fourth of a part of Wagner street by the railroad company, and we are of the opinion that the city of Memphis is without authority to grant the railroad company such exclusive use. The Court of Civil Appeals and the chancellor so held, and their decrees are affirmed.

Ballard v. Farley.

KITTY BALLARD et al. v. CORA FARLEY et al.

(Nashville. December Term, 1920.)

1. HUSBAND AND WIFE. Conveyance to husband and wife as effective as if to wife by name.

The granting clause in a conveyance to "William Farley and wife" was just as effectual as if it said "to William Farley and wife, Cora Farley;" it not being necessary that the grantee be described by name if otherwise identified. (Post, p. 163.)

Case cited and distinguished:

112 S. W., 629.

Clark v. Northern Coal Co. (Ky.),

2. DEEDS. Intention governs construction.

If clauses or parts of a deed are conflicting or repugnant, the intention is gathered from the whole instrument, instead of from particular clauses, and if it is the clear intent of the grantor that apparently inconsistent provisions shall all stand, it will be given that effect if possible, and the technical rules of the common law as to the division of deeds into formal parts will not prevail as against the manifest intent of the parties, as shown by the whole deed. (Post, pp. 163, 164.)

3. DEEDS. Premises prevail over habendum clause.

Where there is an irreconcilable conflict between the premises of a deed and the habendum, the former prevails. (Post, pp. 163, 164.) Case cited and approved: Teague v. Sowder, 121 Tenn., 132.

4. HUSBAND AND WIFE. Held to become tenants by entirety. Where the premises of a deed conveyed land to certain person "and wife," while in the habendum the conveyance was limited to the named person, the husband and wife became tenants by the entireties in the land, where it was impossible from the deed to ascertain the true intention of the grantor. (Post, pp. 164-167.) Case cited and approved: Boyertown National Bank v. Hartman, 147 Pa., 558.

143 Tenn.-11