mortis should not be extended, and that the range of such gifts should not be enlarged. We therefore confine our decision to the precise facts of this case, and we go no further than to hold that when a gift is made in the apprehension of death from some disease from which the donor did not recover, and the apparent immediate cause of death was some other disease with which he was afflicted at the same time, the gift becomes effectual.

The judgment should be affirmed, with costs.

GIFTS CAUSA MORTIS. — For instances of what constitutes a gift causa mo tis, see Woodburn v. Woodburn, 123 Ill. 608; Williams v. Guile, 117 N. Y. 343; Derol v. Dye, 123 Ind. 321; Fearing v. Jones, 149 Mass. 12; 14 Am. St. Rep. 392. And as to what does not constitute a gift causa mortis, see Trenholm v. Morgan, 28 S. C. 268; and upon the question of gifts causa mortis generally, see notes to Appeal of Waynesburg College, 56 Am. Rep. 253, 254; Pope v. Burlington Sav. Bank, 48 Am. Rep. 787-790; Brunn v. Schuett, 48 Am. Rep. 506-511; Sheedy v. Roach, 26 Am. Rep. 684-687; Bradley v. Hunt, 23 Am. Dec. 600-606.

AMERICAN RAPID TELEGRAPH COMPANY V. HESS.

[125 NEW YORK, 641.]

INTEREST IN STREETS - Statutes authorizing a corporation to construct lines of telegraph along and upon public streets, by the erection of the necessary fixtures, including posts, piers, and abutments for maintaining wires, do not grant any interest in such streets, and at most confer a license to enter thereon for the purposes named, and merely determine that one of the purposes for which the street may be used is the erection of poles and the stringing of wires for the business of telegraphing, and that such use is a public one, not inconsistent with the use of the streets for general street purposes. The legislature did not intend by these statutes to divest itself, and it could not divest itself, of its control of the streets for the public welfare. The license conferred can be modified or revoked at any time when the public interest may so require.

GRANT OF THE RIGHT TO USE PUBLIC STREETS TO MAIntain and OpERATE TELEGRAPH LINES is subject to the control and regulation of the legislature. Such grant does not abdicate its power over the public streets, nor in any way curtail its police power to be exercised for the general welfare of the public; and if the poles and wires become a serious obstruction and nuisance in the streets, the legislature may take such action, and make such provisions by law, as are needful to remove the nuisance and restore the utility of the streets for public purposes. STATUTES REQUIRING THAT TELEGRAPH, TELEPHONE, AND ELECTRICAL WIRES AND CABLES IN CITIES having a population of five hundred thousand shall be placed under the surface of the streets, lanes, and avennes of the city are valid and enforceable, though previous statutes had granted permission to maintain telegraph lines and poles upon the streets of such city. The statute may also require all subways for underground con

ductors of electricity to be built under the direction of the board of commissioners of electrical subways, and give the board authority to require all owners or operators of electrical conductors aboveground to make connection with such underground subways as shall be determined by the board, and to remove their poles and wires from the streets within ninety days after notice, and in the event of their refusal to make such removal, the authorities of the city may be authorized to do so. ACTS OF CONGRESS PURPORTING TO GRANT TELEGRAPH COMPANIES the right to construct and maintain lines of telegraph through, over, and along any of the military or post roads of the United States do not deprive the state of its control over its highways and its right to regulate their use, by the police powers, for the public welfare, and hence do not confer the right to maintain telegraph poles and wires above the surface of the public streets after the enactment of a statute by the state requir ing them to be placed underground.

William G. Wilson, for the appellant.

D. J. Dean, for the respondents.

EARL, J. Prior to 1883, the plaintiff was incorporated under the act 265 of the Laws of 1848, the general act for the incorporation and regulation of telegraph companies, and the acts amendatory thereof, and prior to that year it had erected its lines of telegraph poles and wires in the streets of the city of New York, described in the complaint. It also had extensive connecting lines in other states and throughout this state, which constituted a system of telegraphy then in active use and operation.

Section 5 of the act of 1848 provides as follows: "Such association is authorized to construct lines of telegraph along and upon any of the public roads and highways or across any of the waters within the limits of this state, by the erection of the necessary fixtures, including posts, piers, or abutments, for sustaining the cords or wires of such lines; provided the same shall not be so constructed as to incommode the public use of said road or highways, or injuriously interrupt the navigation of said waters; nor shall this act be so construed as to authorize the construction of any bridge across any of the waters of this state."

The act chapter 471 of the Laws of 1853 amends the act of 1848, and section 2 thereof provides as follows: "Such association is authorized to erect and construct, from time to time, the necessary fixtures for such lines of telegraph upon, over, or under any of the public roads, streets, and highways, and through, across, or under any of the waters within the limits of this state, subject to the restrictions in the said recited act contained."

The plaintiff constructed its telegraph lines in the streets of the city of New York, under the acts referred to, without any special grant or authority from the city.

The claim of the plaintiff is, that these acts operated as a grant to it of a franchise to use the streets for its poles and wires, and that therefore an inviolable contract was created which is under the protection of the federal constitution, and hence that neither the state nor the city, under its authority, could cause its poles and wires to be removed from the streets, except upon compensation to it, ascertained in the manner prescribed by the constitution and laws for cases where private property is condemned for public use.

We think the act of 1848 as amended in 1853 can in no proper sense be said to have granted any interests to the plaintiff in the streets of the city. There certainly was no formal grant, and the statutes contain no terms or phraseology appropriate to a grant. They at most confer upon the plaintiff an authority or license to enter upon the streets for its purposes, and subject to certain conditions. The people of the state do not own the streets, and the only authority the legislature has over them is to deal with them as streets, and to regulate their use as streets for public purposes; and by these acts it, in effect, determined that one of the purposes for which the streets could be used was the erection of poles and stringing of wires for the business of telegraphing, and that that was a public use not inconsistent with the use of the streets for general street purposes. These were general, public legislative acts in the exercise of the police power of the state, and therefore they were not beyond the reach or touch of future legislation. The legislature did not intend to divest itself, and could not divest itself, of its control over the streets for the public welfare, and we must infer from the language used that it did not intend to bind itself by an irrevocable grant. If, therefore, these acts are to be construed as merely conferring a license, which has been acted upon by the plaintiff, the legislature could revoke the license or modify it in any way or at any time when the public interest might require it.

But in this case it is not necessary to hold that the plaintiff did not, by the acts referred to, obtain some sort of franchise in the streets of the city. We may, for the present purpose, construe these acts as constituting, in some sense, grants of interests in the streets to the companies organized under

them, and contracts sub modo with such corporations, and yet the contention of the plaintiff in this case must fail.

In the exercise of its rights under the assumed grant and contract, this corporation was subject to the regulation and control of the legislature. By giving the franchise the state did not abdicate its power over the public streets, nor in any way curtail its police power to be exercised for the general welfare of the people, nor did the state absolve itself from its primary duty to maintain the streets and highways of the state in a safe and proper condition for public travel and other necessary street and highway purposes. The grant, if any, was made in reference to the streets, and their maintenance and regulation forever as streets. The state could at all times regulate the size and location of the poles, the height of the wires from the surface of the ground, and their location in the streets; and when the poles and wires became a serious obstruction and nuisance in the streets, from any cause, it could take such action and make such provisions by law as were needful to remove the nuisance and restore the utility of the streets for public purposes. The right of the plaintiff to maintain and operate its wires in the streets could certainly be no greater than the right of railroads, which, by public authority, occupy the streets and highways of the state. The state, in the exercise of its police power, and the regulating control which it has over corporations created by its authority, may exercise a general supervision over such corporations. It may prescribe the location of the tracks, the size and character of the rails, the precautions which shall be taken for the protection of the public, and the character and style of highway crossings; and no one has ever questioned that it may do whatever is necessary and proper for the public welfare in the control and regulation of the franchises which such corporations have obtained by statutory authority.

Now, what has the legislature attempted to do in this case? By the act chapter 534 of the Laws of 1884 it was provided that all telegraph, telephone, and electric-light wires and cables, in all cities of the state having a population of five hundred thousand or over, "shall hereafter be placed under the surface of the streets, lanes, and avenues" of the city, and that it should be accomplished before the first day of November, 1885. It was further provided that in case the owners of the property specified should fail to comply with the act within the time specified, the local governments of the cities should

remove, without delay, all such wires, cables, and poles whenever found in their respective cities. Under that act no property was or could be taken from any of the owners specified. They were simply required to remove their poles and wires from the surface of the streets, and place the wires underground. Their property was not taken, but the use of their franchise was regulated. In 1885, chapter 499 was enacted, which provided for the appointment of a board of commissioners of electrical subways, and that board was charged with the duty of enforcing the provisions of the act of 1884. It was made the duty of that board to cause to be removed from the surface of the streets and put and maintained underground, whenever practicable, all electrical wires and cables, so as to enable and require all duly authorized companies operating the same to transact their business with underground conductors whenever practicable. All subways for underground conductors of electricity were required to be built under the direction and control of that board, and no electrical wires or cables were to be allowed above the surface of the streets without the permission of the board. Commissioners were duly appointed under that act, and in 1886 the Consolidated Telegraph and Electrical Subway Company of New York having been incorporated under the laws of this state, the commissioners entered into a contract with it, whereby it contracted to build, with its own capital, the necessary subways for the electrical conductors, the subways to be constructed in all respects subject to the approval of the commissioners. It was also provided in the contract that all corporations owning and operating electrical wires above the streets should have the right to place them in the subways under certain conditions specified. In 1887, the legislature enacted chapter 716, entitled "An act in relation to electrical conductors in the city of New York." By that act, the agreement made between the subway commissioners and the Consolidated Telegraph and Electrical Subway Company above referred to was ratified and confirmed, and the act provided that whenever, in the opinion of the board of electrical control constituted by that act, sufficient conduits or subways underground shall have been made ready, the board shall notify the owners or operators of the electrical conductors aboveground in such streets or locality to make such electrical connections in such underground conduits or subways as shall be determined by the board, and to remove their poles and wires from