beneficiaries might be, or whether they might be six in number or only one; or in the event of Mrs. Appleton having been the longest liver of his family whether the final vesting of the estate should be subject to that chance only? I therefore think that the testator had in mind perhaps not the actual survival of any particular individual, but a continuance and succession in some way of the stocks designated and appointed by the will, so that the word in question should not be read literally, or changed into "other," but that rather like the determination in some of the English cases it should be held to mean a stirpital succession.

The contention of Thomas H. Stout, and those in the same class with him, leaves out of view the fact that the Appleton share falls back into the residue of the estate; according to their view, it could not go into the residuary estate, but becomes a special trust fund in the custody of the trustees under the will, the income of which cannot be devoted to residuary purposes, but must be distributed to the two surviving brothers for their lives and the capital at their death be distributed to their children, as the term was used by the testator.

It would be doing violence to the ordinary rules of construction to hold that because of the difficulty created by the peculiar wording of this will, the ascertainment of the survivors must be referred to the death of the testator rather than to the period of distribution. I do not think it is necessary to go so far. The testator had in mind some distribution of the shares which might fall in among people who should answer the description of "surviving children" at the time of the distribution, and it would be unsafe and illogical to use the period of distribution as a date for some purposes of the will and not for all. In other words, I do not see how the period of distribution can be used for the purpose of placing the share in question in the residuary fund and a different period be then employed for its disposition when once it shall have been placed there.

There remains but one other question, that concerns the right of the defendant Audrey Osborn, who claims as adopted daughter of Jacob Stout. The will was dated February 27th, 1861, and the testator died on May 5th, 1861. At that time there was no statute by virtue of which an adoption could take place. The

earliest legislation on this subject is found in the laws of 1877, in an act approved on March 9th of that year. P. L. 1877 p. 123. The present law is contained in P. L. 1902 p. 259. I do not find any material difference between the two acts. It is quite manifest that the testator did not have in mind the devolution of the title of any portion of his estate on an adopted child of either of his children for the reason that there was no law of this state under which such adoption could be had until 1877, and it appears that there was no law in the State of New York, the place of Jacob Stout's domicile, until 1873, and inasmuch as Audrey Osborn must claim under the will in question, it is plain that her succession to any portion of his estate is quite beyond the testator's intention. The will speaks only of "child or children," which could mean to the mind of the testator only blood relations, and not relations by adoption. To hold in her favor would be to hold that she is within the terms of the will a child, and that, in the face of the fact that Thomas Stout never had any children, and in the face of the other fact, which must be conceded by the allegation of adoption, that she was somebody else's child, and therefore not the child of Jacob Stout. Neither is she Jacob Stout's child by implication of the statute. Section 4 of the act of 1877 provides that a child or children (so adopted) shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock. In other words, such adopted child may inherit from the foster parent, but the adoption shall not operate to create a capacity to take as a child under the will of some other person.

These views lead to the following result-first, Audrey Osborn is excluded from any participation in the distribution of the fund in question, and second, the Appleton share will be divided into five parts, two of which will be held by the trustee for the benefit of the two surviving sons for their lives, with remainders to their respective issue; and the other three shares will be actually distributed to the issue of the three deceased daughters respectively per stirpes.

1. Where a person owns land across which a street has been constructed, he owns the fee-simple of the highway, subject only to the public easement, which extends, not only to the use of the surface for purpose of passage, but also to the portion which lies beneath the surface wherever it is needed for water, sewer, or gas pipes, or any other legitimate street use.

2. In the absence of an ordinance or statute prohibiting it, an owner of the fee of the bed of a street had the right, without a permit from anyone, to lay pipes across and under the street, so long as such pipes did not unduly interfere with public travel or with the sub-surface use to which the street as such was subject.

3. A court of equity will not pass upon the validity of an ordinance; that being the peculiar province of the courts of the common law.

4. A borough has no right to impose conditions which do not tend toward the protection of the interest which it has as guardian of the public easement in its highways.

5. The duty to safeguard the potable waters of the state, and see that none which originate therein are transported beyond its borders, is not within the scope of the duties of the chief executive officer of a borough. 6. Mandamus will not lie to compel the exercise of a discretion. 7. An injunction may always go to restrain an illegal and excessive use of authority.

On motion for preliminary injunction.

Mr. Gilbert Collins, for the motion.

Mr. John M. Bell and Mr. Warren Dixon, contra.

HOWELI, V. C.

This suit is brought by the city of Bayonne and the New York and New Jersey Water Company to restrain the borough of North

7 Buch.

Bayonne v. Borough of North Arlington.

Arlington from interfering with the action of the water company in laying a line of water pipe across three streets of the borough. The water company is under contract with the city of Bayonne to furnish it with a supply of potable water, and in order to do so, it finds it necessary to lay a pipe line from the Passaic river across the borough and thence to Bayonne. It has acquired title to or a right in a strip of land running across the borough, and by virtue of its ownership of land on both sides of the three streets in question, it claims to own the fee of the streets subject only to the public easement therein, or, in other words, it claims the title to and possession of the streets adjacent to its pipe line route in so far as the same does not in any manner effect the public user, and the consequent right to lay its water pipes under the surface thereof. There is an ordinance of the borough passed in 1900 by which it is ordained that no person or corporation shall dig up under, over or through the public places, avenues, streets or highways of the borough, or open the same at any place, at any time, for any purpose whatever without a permit so to do first obtained signed by the mayor and attested by the clerk of the borough, and requiring every person who desires to so dig up over under or through said places to apply to the mayor in writing describing the place or street for which the permit is desired, and the object of opening the same, and providing that the mayor shall have power to grant a permit for such purpose whenever in his judgment it might seem proper. It further provides for inspection of the work under the supervision of the mayor, and directs that the expense thereof shall be paid by the applicant. On January 4th, 1910, the water company made three separate applications to the mayor of the borough for permits to dig up and open the three streets for the purpose of laying its water pipe across and under the same at the points and in the manner shown in a plan which accompanied the applications. The applications stated that the pipe would be of steel, thirty inches in interior diameter, and would be laid more than three feet below the surface of the avenue, and in such manner as not to interfere with the public travel or with any present constructions in or under the avenue, which application was ac

Bayonne v. Borough of North Arlington.

77 Eq.

companied with the fee required by the ordinance. On January 14th, the mayor of the borough delivered to the water company a writing in which he stated that he had come to the conclusion that he could not grant the permit requested for two reasons:

"(1) Because the resolution of the city of Bayonne under which you claim to be working, which provides that the pipe shall be of an estimated capacity sufficient for the present needs and for other requirements of the city of Bayonne, as well as for the proposed service to the borough of Richmond (New York) clearly indicates to my mind that the city of Bayonne has a sufficient supply of water for its present and future needs, and that the real object of the contract entered into with Bayonne for an alleged emergency supply is to enable you to convey potable waters of this state through the said pipe line across the river road, Kearny avenue and Schuyler avenue to the city of Bayonne and thence to the Kill-von-Kull and under the same to the borough of Richmond in the city of New York and State of New York. contrary to the laws of this state, and it is my duty as the mayor of the borough of North Arlington to see that the laws of the state are faithfully executed; (2) Because your company has entered into a contract to sell water to the Roman Catholic diocese of Newark within the borough of North Arlington without the consent of the corporate authorities of said borough and without the consent of the corporate authorities to the incorporation of your said company or to the laying of pipes by it beneath the surface of the public roads and streets of said borough, contrary to the laws of this state."

The water company then filed its bill to restrain the borough from in any manner interfering with its work in the laying of its water pipes under and across said highways, and offering to submit to any reasonable regulation for the doing of the work that this court might prescribe. On the return of the order to show cause why the injunction should not issue, the defendants (the borough and its mayor) appeared and filed an answer, the burden of which is a repetition of the two reasons given by the mayor for declining to permit the water company to lay its pipe line across the three streets in question. On the argument, it was likewise objected that if the complainants had any remedy whatever, it was by way of mandamus and not by injunction.

There seems to be little doubt but that a person who owns lands across which a highway has been constructed owns the feesimple of the highway, subject only to the public easement, and