railroad purposes, the title should revert to the makers of the deed, Wm. Sutherland and Charles Graves, the predecessors in title of defendant Black. The consideration was $3000. This instrument was made May 11, 1889, and filed for registration in Davidson county May 15th of the same year, and duly registered. Subsequently, on the 17th of February, 1904, the standard Lumber & Box Company, then the owner of the lot, supplemented the previous instrument by definitely fixing the limits of the right of way at twenty-five feet; that is to say, twelve and one-half feet on each side of the track. This deed was registered in Davidson county April 19, 1904. There was also a spur track built by the Standard Lumber & Box Company, running out from the diagonal track above mentioned in an eastwardly direction across the lot. The diagonal track referred to [363] was constructed long prior to 1904, and was used by the Louisville & Nashville Railroad Company as a spur track from its main line to numerous industries lying to the south of the lot in question, also to industries operated on the lot in question.

The other track is known as the Ryman track; the facts concerning which are as follows: The Ryman elevator is located on the bank of the Cumberland river below this lot, and Mr. Ryman and the Louisville & Nashville Railroad Company desired to extend the "water track" of the railroad company from the elevator up the river, over the frontage of this lot. On July 5, 1903, Sutherland and Graves, the then owners of the lot, for the consideration of $1,000, conveyed to Thomas G. Ryman a right of way along the river front on this lot from its northern boundary to within fifty-five feet of its southern boundary, subject to several reservations, only two of which need be mentioned. One of these was that Sutherland and Graves were to have the right to cross the track with a "movable track," so as to permit them to draw up and let down timber and lumber from their factory, but not in a manner to obstruct the proper use of the road by the railway company: the other was the right to load and unload cars on the track, but not so as to conflict with the operation of Ryman's boats and elevators. The owners of the lot, when using the cars on the Ryman track for industries located on said lot, paid, as did all other persons, $1 per car for any car of lumber loaded and unloaded on the said track, and more [364] per car for all other kinds of merchandise. But the evidence shows that this was cheaper than hauling the merchandise in wagons to and from the landing.

The contention of the complainant is that these railroads are incumbrances, within the terms of the warranty, and that, as located, they diminish the value of the property at

least $10,000. The defendant contends that the railroads are not incumbrances, within the meaning of the deed, and that, as a matter of fact, they do not diminish the value of the property at all.

There is much evidence on both sides of the question, but we are of the opinion that the weight of the evidence, shows that the railroads are not only not injurious to the lot but of great benefit. The lot is flat and low, lying on the bank of the river, and is useful only for factories. The evidence shows that without the roads this lot would be practically useless, and that these roads add to its value from twenty-five to fifty per cent. On the other hand, there is evidence to the effect that the roads, considering the way in which they are located or placed on the land, are an injury to it. But, as stated, the weight of the evidence decidedly sustains the conclusion that the roads are of great benefit to the land. It follows, therefore, that complainants are not entitled to any substantial damages.

It is insisted, however, that at all events the roads are technically incumbrances, and that complainants are entitled to recover their costs.

[365] There is a controversy in the authorities on this subject. In the New England States it is held that even a public road running across the land, in use, open and visible, is an incumbrance, falling within a covenant against incumbrances, and must be accounted for in damages. Kellogg v. Ingersoll, 2 Mass. 97; Hubbard v. Norton, 10 Conn. 422; Alling v. Burlock, 46 Conn. 504; Herrick v. Moore, 19 Me. 313; Lamb v. Danforth, 59 Me, 322, 8 Am. Rep. 426; Butler v. Galle, 27 Vt. 739; Prichard v. Atkinson, 3 N. H. 335; Hayes v. Stevens, 11 N. H. 28. The general reason assigned is that it deprives the owner of that dominion over the land to which he is entitled. A different view is taken in other States. Memmert v. McKeen, 112 Pa. St. 315, 4 Atl. 542, and cases cited; Howell v. Northampton R. Co. 211 Pa. St. 284, 60 Atl. 793; Whitbeck v. Cook, 15 Johns. (N. Y.) 483, 8 Am. Dec. 272; Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L.R.A. 789, 10 Am. St. Rep. 432; Hymes v. Estey, 116 N. Y. 501, 22 N. E. 1087, 15 Am. St. Rep. 421; Hymes v. Esty, 133 N. Y. 342, 31 N. E. 105; Jordan v. Eve, 31 Grat. (Va.) 1; Trice v. Kayton, 84 Va. 217, 4 S. E. 377, 10 Am. St. Rep. 836; Patton v. Quarrier, 18 W. Va. 477; Barre v. Fleming, 29 W. Va. 314, 1 S. E. 731; Desvergers v. Willis, 56 Ga. 516, 21 Am. Rep. 289; Haldane v. Sweet, 55 Mich. 196, 20 N. W. 902. The ground on which these cases rest is that when the road is a public one, actually open, and in use, the parties must be presumed to have taken it into account in fixing the price of the land, and therefore the covenant must be construed [366] as not

intended to embrace the easement. The same rule is followed in some other States as to other open and visible easements. In Kutz v. McCune, 22 Wis. 628, 99 Am. Dec. 85, it appears that the easement held not to be an incumbrance was the right to overflow the land with a millpond; the overflow being, of course, open and visible. The court said that this was equally as obvious as a public road, and that, in case of a public road, the doctrine did not rest on the fact that the road was in favor of the public, but that the easement was obvious and notorious in its character, and therefore the purchaser must be presumed to have been it, and to have fixed his price for the land with reference to the situation as thus presented. The same rule was followed in Bennett v. Booth, 70 W. Va. 264, 73 S. E. 909, 39 L.R.A. (N.S.) 618; the easement complained of there being the right to overflow by a milldam (Ireton v. Thomas, 84 Kan. 70, 113 Pac. 306, 32 L.R.A. (N.S.) 737), a levee, covering several acres (Schurger v. Moorman, 20 Idaho 97, 117 Pac. 122, 36 L.R.A. (N.S.) 313, Ann. Cas. 1912D 1114), an irrigation ditch (Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300), the right to the use of open windows looking across a lot which the vendor of the latter had retained, at which time the windows were obvious. Public roads are excluded in some other States, not on the ground that their existence is open and obvious, but because the court judicially knows that they are necessary, and hence useful. Harrison v. Des Moines, etc. R. Co. 91 Ia. 114, 58 N. W. 1081; [367] Killen v. Funk, 83 Neb. 622, 120 N. W. 189, 131 Am. St. Rep. 658; Sandum v. Johnson, 122 Minn. 368, 142 N. W. 878, 48 L.R.A. (N.S.) 619, Ann. Cas. 1914D 1007. The same reasoning was applied to the existence of a drainage ditch, in Stuhr Butterfield, 151 Ia. 736, 130 N. W. 897, 36 L.R.A. (N.S.) 321; and to a public sewer five feet under ground in Iowa City First Unitarian Soc. v. Citizen's Sav, etc. Co. 162 Ia. 389, Ann. Cas. 1916B 575, 142 N. W. 87, 51 L.R.A. (N.S.) 428. In the following cases it is held that the existence of a railroad right of way is an incumbrance, regardless of its open and obvious character. Pierce v. Houghton, 122 Ia. 477, 98 N. W. 306; Beach v. Miller, 51 Ill. 209, 2 Am. Rep. 290; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 831; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Tuskegee Land, etc. Co. v. Birmingham Realty Co. 161 Ala. 542, 49 So. 378, 23 L.R.A. (N.S.) 992. The Missouri cases were followed to same effect in Farrington v. Tourtelott (C. C.) 39 Fed. 738, as obstantially binding on the point, but which observations indicating that the doctrine did not wholly meet the approval of the court. Pilcher v. Atchison, etc. R. Co. 38 Kan. 516, 16 Pac. 945, 5 Am. St. Rep. 770, is cited in the brief before us, but there

V

was no question of knowledge from the obvious existence of the railroad discussed. Pryor v. Buffalo, 197 N. Y. 123, 90 N. E. 423, is also cited, but the facts in that case were such as to render it inapplicable to the point we now have under examination. The covenant was of a very special character; and, while it appeared that the covenantee had knowledge of the [368] existence of the railway on the ground contracted for, it was that very ground that had to be furnished by the city, and hence compliance with the covenant necessarily involved the removal of that railway and the delivery of the land to the covenantee. Still we do not doubt that from the reasoning of the New York cases on the subject of public roads, the doctrine applicable to that class of improvements would not be extended to railroads. On the other hand, it is held in the following cases that existing railways in actual operation stand on the same ground as to their public and obvious character as do public highways: Van Ness v. Royal Phosphate Co. 60 Fla. 284, 53 So. 381, 30 L.R.A. (N.S.) 833, Ann. Cas. 1912C 647; Goodman v. Heilig, 157 N. C. 6, 72 S. E. 866, 36 L.R.A. (N.S.) 1004; Ex p. Alexander, 122 N. C. 727, 30 S. E. 336. The same doctrine was substantially laid down in Geren v. Caldarera, 99. Ark. 260, 138 S. W. 335, but the case is put not only, on the ground that the purchaser knew that the switch track was on the land, but also that it was shown that the track in question was a direct inducement to his purchase.

We have held that where an intending purchaser inspected the land which he proposed to buy, and saw upon it in operation a line of railway, he could not thereafter complain that the land was so incumbered, and recover therefor under his covenant against incumbrances, Rich v. Scales, 116 Tenn. 57, 66, 69, 91 S. W. 50, 52. In that case the court said:

[369] "But if a part of the land purporting to be conveyed by the deed be held in adverse possession at the time of the conveyance, and the vendee have knowledge of such adverse possession at the time he takes his conveyance, he can have no relief, either upon his covenants at law or in any form in equity; otherwise, if he have no knowledge of such adverse possession at the time." 116, 66, 91 S. W. 50.

Again:

"Treating the case really presented in the bill, an action on the covenants of the deed, upon the ground that a part of the land embraced within the calls was at the time of the conveyance held by an outstanding and better title, that of the railway company, two insuperable objections are apparent; Firstly, as already said, the representation by bounds would control that made by the calls for dis

tance, and it follows that none of the land described was held by better title, and that the complainant obtained all that he had contracted for; secondly, assuming that the strip claimed in the bill really fell within all the descriptive words of the deed, still the complainant could not recover, because the strip was, when the conveyance was taken, then in the adverse possession of the railroad company in a manner open and obvious to the complainant, and under such circumstances he could assert no right either at law or in equity in respect thereof based upon the deed in question." 116 Tenn. 69, 91 S. W. 52.

[370] The reason is substantially the same as that which applies to the existence of public highways. Perry v. Williamson (Tenn.) 47 S. W. 189.

In the case last cited it was held that the rule would not apply to the existence of a private way, when it did not appear that the purchaser had knowledge of the legal existence of such way.

Similarly, in the case now before us, it is insisted that although complainant inspected the premises before he made his purchase, and had an abstract of title, he was misled by defendant into believing that one of the railroads was paying rent for the use of the right of way. The evidence sustains this contention as to the Ryman track. That is to say, the owners of the Ryman track were paying rent for the right to use a certain part of the lot adjoining the track for loading and unloading, the sum of $8.33 per month. This was so stated to complainant as reasonably to lead him to believe that the rent was being paid for the use of the track, and hence that the track was subject to the control and disposal of the owner of the lot; and it seems that he did believe this, and actually demanded rent for it from the Ryman people a few months after his purchase, and after the time had expired for which the Ryman people had rented the space adjoining the track. The latter informed him of his mistake, referred him to the contract under which they had obtained the right of way, and refused longer to rent the space of ground they had previously used for the loading and unloading. Under these circumstances, [371] we are of the opinion that the inference to be drawn from the open and obvious character of the Ryman track is rebutted, and that this track must be treated as an incumbrance; and although complainant is entitled to no substantial damages therefor, since the evidence shows that it was beneficial to the land, still he is entitled to nominal damages, and to the costs of the cause.. Wadhams v. Swan, 109 Ill. 46.

A decree will therefore be entered so modifving the decree of chancellor as to adjudge that, although complainant is not en

titled to any substantial damages, he is entitled to nominal damages, and to the costs of the cause.

NOTE.

In the reported case an existing railroad right of way over granted premises which was in use at the time of the sale is held to be a breach of a covenant of warranty and against incumbrances, it appearing that the grantee was misled into believing that the railroad company paid a rental for the right of way. The earlier cases discussing the existence of a right of way as a breach of a covenant of warranty in a deed are reviewed in the note to Van Ness v. Royal Phosphate Co. Ann. Cas. 1912C 647. As to other easements as breaches of a covenant of warranty the or against incumbrances see Schurger v. Moorman, Ann. Cas. 1912D 1114 (right of way for water ditch); Newmyer v. Roush, Ann. Cas. 1913D 433 (private roadway); Sandum v. Johnson, Ann. Cas. 1914D 1007 (public highway); Iowa City First Unitarian Soc. v. Citizens Sav, etc. Co. Ann, Cas. 1916B 575 (public sewer).

notes to

In order that acts or a course of conduct of the surviving consort of a deceased testator should operate to equitably estop such consort from claiming dower and a distributive share of the personal property under the law and to amount to an election to take under the will, such acts must be of such an unequivocal character as will clearly and distinctly demonstrate a purpose to accept the provisions of the will.

[See note at end of this case.] (Syllabus by court.)

Error to Court of Appeals, Hamilton county.

Action between Colored Industrial School of Cincinnati and Bates, administrator, et al. To review judgment rendered, Industrial

School brings error. The facts are stated in the opinion. AFFIRMED.

Worthington & Strong, Willis M. Kemper and Robert S. Fulton for plaintiff in error. Healy, Ferris & McAvoy and William C. Cochran for defendants in error.

[288] NICHOLS, C. J.-Sallie J. McCall, a resident of Hamilton county, Ohio, died March 6, 1909, leaving a last will and testament. She left surviving her her husband, William A. McCall, and the important question in this case is whether or not William A. McCall elected to take under her will.

The items of the will of testatrix pertinent to this question may be briefly stated as follows:

By item 1 the testatrix devised certain real [289] estate known as the "Andover Building" in Cincinnati to certain trustees in trust for the benefit of the Colored Industrial School of Cincinnati, said trustees to incorporate said school and convey said real estate to it.

By item 2 she devised certain real estate on the north side of Fourth street in Cincinnati to her husband, William A, McCall, during his natural life, with remainder after his death to the said trustees in trust for the Colored Industrial School of Cincinnati, in the same manner as the property devised to said school by item 1.

By item 4 she devised certain real estate on Clinton street in Cincinnati in fee simple to the Ohio State Society for the Prevention of Cruelty to Children and Animals.

By item 8 she devised certain real estate on Main avenue, Avondale, Cincinnati (being the homestead of herself and husband), to her husband, William A. McCall, in fee. She also bequeathed to him all the furniture and household belongings in said house, except such as were otherwise specifically devised.

By item 13 of said will she provided that after the payment and discharge of all bequests made in the will, all bonds and the remainder of all stocks owned by her at the time of her death were bequeathed to the said trustees in trust for the Colored Industrial School of Cincinnati, in the same manner as the property bequeathed in item 1. By item 14 she appointed her husband, William A. McCall, executor of her will.

On the date of the probate of the will, March 25, [290] 1909, William A. McCall was duly appointed and qualified as executor.

On September 5, 1909, six months after the death of his first wife, William A. McCall was married to Mary A. Andrews, and on September 9, 1909, he died leaving the said Mary A. Andrews McCall, his widow, surviving him,

No citation was ever issued by the probate court to the husband to appear and make his election as provided by Section 5963, Revised Statutes (Section 10566, General Code),. and no election was ever made by him in the probate court. He had not settled the estate of his deceased wife or filed an account as executor, at the time of his death. No children were born to either Sallie J. McCall or William A. McCall.

The estate of Sallie J. McCall consisted of the four pieces of real estate in Cincinnati specifically devised by the items of the will to which we have above referred, and a personal estate of the appraised value of $250,325.49; of this personal estate $245,584.25 was in stocks and bonds and the bal ance was in household furniture, money and overdue coupons. The debts of the estate were comparatively small in amount.

After the death of William A. McCall, an administrator de bonis non with the will annexed was appointed of the estate of Sallie J. McCall, and an administrator of the estate of William A. McCall.

The claim is made that William A. McCall having died without electing to take under the will of his wife, his estate is entitled to its statutory share of her estate. On the other hand it is claimed that, [291] though William A. McCall made no formal election to take under said will, yet by his acts he did, as a matter of fact, elect to take under the will of Sallie J. McCall, and his estates is entitled only to the property given to him by said will.

The acts of William A. McCall which are relied upon to establish an election upon his part are the following:

(a) William A. McCall, at the time of his wife's death and the probate of her will, was a retired business man, seventy-eight years of age, in good health and full possession of all his mental faculties. Immediately after the death of his wife he employed counsel, proceeded with the administration of the estate, caused an inventory to be made and was advised by counsel as to his rights under the will and under the law.

(b) Early in April Mr. McCall gave the agent appointed by the trustees of the Colored Industrial School all necessary information concerning the tenants in and rentals of the Andover building, and also went with the rent collector of said agent to the Andover building, introduced said collector to all the tenants in said building and instructed said tenants thereafter to pay their rent to said collector. From that time on all the rents from said, building were paid to and collected by said agent without any objec tion whatever on the part of Mr. McCall. Mr. McCall also turned over to the agent of the

said trustees the insurance policies on said building.

(c) Beginning with the rent due in April and from that time on until the date of his death Mr. McCall collected the rent from the Fourth street [292] property and deposited it in his individual account in bank, and not in the account kept by him as executor, though he gave receipts signed by himself as executor. This Fourth street property is the property, mentioned in item 2 of the will of Sallie J. McCall, which was devised to the said William A. McCall for and during his natural life, and after his death to the trustees for the said Colored Industrial School in fee. The policies of insurance on this Fourth street property were indorsed by the agent of the insurance companies to the effect that Mrs. McCall had a "life interest" in the property. This indorsement was made at Mr. McCall's request. The same indorsement is made on the policies of insurance on the Avondale property, which had been devised to Mr. McCall in fee.

(d) Mr. McCall took possession of all the personal property in the Avondale house, including property specifically bequeathed to the Cincinnati Art Museum, the gift to become effective after the death of Mr. McCall, Mr. McCall during his life gave away some clothing which had belonged to his wife,

(e) Mr. McCall was elected as one of the trustees for the Colored Industrial School and attended one meeting.

(f) He executed a quitclaim deed to the purchaser of the Clinton street property, when the purchaser declined to take the property from the devisee, the Ohio State Society for the Prevention of Cruelty to Children and Animals, unless Mr. McCall made his election to take under the will or execute a quitclaim deed.

[293] (g) Mr. McCall paid the taxes on the Andover building, Fourth street property and the Clinton street property out of the funds of the estate of Sallie J. McCall and credited himself as executor with such payments. The taxes on the Avondale property he paid out of his individual account.

(h) Mr. McCall had full knowledge of the extent of the estate of Sallie J. McCall and of his rights under the will at the time of the acts above relied upon.

Under the circumstances of this case, are any of the above acts, or all of them taken together, sufficient to constitute an election in fact on the part of William A. McCall to take under the will of Sallie J. McCall?

The statutes governing the matter of election under a will as they stood at the date of the death of Sallie J. McCall were Sections 5963 and 5964, Revised Statutes, which have been carried into the General Code as Section

10566 et seq. These sections as they appeared in the Revised Statutes are as follows:

"Sec. 5963. If any provision be made for a widow or widower in the will of the deceased consort, the probate court shall, forthwith, after the probate of such will, issue a citation to such widow or widower to appear and elect whether to take such provision or to be endowed of the lands of the deceased consort and take the distributive share of the personal estate; and such election shall be made within one year from the date of the service of the citation aforesaid; provided, that such widow or widower may, at any time before the period of such [294] election has expired, file her petition in the court of common pleas for the proper county, making all persons interested in said will defendants to such petition, asking a construction of the provisions of said will in her or his favor, and to have the advice of said court, or of the proper appellate court on appeal thereon; end if proceedings for such advice, or proceedings to contest the validity of such will be commenced within such year, the widower or widower shall be entitled to make election within three months after such proceedings shall have been finally disposed of, and said will shall not have been set aside; but the widow or widower shall not be entitled to both dower and the provisions of the will in her or his favor, unless it plainly appears by the will to have been the intention that the widow or widower should have such provision in addition to the dower and such distributive share."

"Sec. 5964. The election of the widow or widower to take under the will shall be made in person, in the probate court of the proper county, except as hereinafter provided; and on the application by a widow or widower to take under the will, it shall be the duty of the court to explain the provisions of the will, the rights under it, and by law in the event of a refusal to take under the will. The election of the widow or widower to take under the will shall be entered upon the minutes of the court; and if the widow or widower shall fail to make such election, the widow or widower shall retain the dower, and such share of the personal estate of the deceased consort as the widow or widower would be entitled to by law in case the deceased consort [295] had died intestate, leaving children. If the widow or widower elect to take under the will, the widow or widower shall be barred of dower and such share, and take under the will alone, unless as provided in the next preceding section; but such election by the widow or widower to take under the will shall not bar the right to remain in the mansion of the deceased consort, or the widow to receive one year's allowance for the support of herself and children, as