December 11, 1950. Motion for Rehearing or to Transfer to Banc Overruled, January 8, 1951.
An Illinois deed restricted to bridge purposes included the right to grant an easement to an interstate telephone company.
1. DEEDS: Conflict of Laws: Construction of Illinois Deed. A deed to land in Illinois is construed in accordance with Illinois law, which looks to the circumstances attending the transaction, the situation of the parties, the state of the thing granted and the object to be attained.
2. DEEDS: Illinois Deed Not Unqualified Fee. The deed did not convey an unqualified fee simple estate under the Illinois statutes, but was subject to restrictions.
3. DEEDS: Covenants: Easements: Deed for Bridge Purposes: Right of Bridge Company to Grant Easement for Telephone Lines. The deed for bridge purposes must be read in connection with two acts of Congress which contemplated that the bridge company should grant easements for interstate telephone lines. The use of the bridge and its approaches for such purposes was not in violation of the restrictions contained in the deed. Restrictions are not favored and all doubts are resolved against them.
4. EASEMENTS: Telephone Line as Additional Burden. Under Illinois law a telephone line upon a public highway or across Illinois waters is an additional burden for which the owner of the abutting land is entitled to compensation.
5. DEEDS: Covenants: Easements: Deed for Bridge Purposes: Right to Compensation for Telephone Easement Not Reserved. The deed for bridge purposes did not reserve the right to additional compensation for a telephone easement.
Appeal from Cape Girardeau Court of Common Pleas; Hon. J. Henry Caruthers, Judge.
Robert G. Brady and Jack O. Knehans for appellants.
(1) A fee simple estate can be subjected to restrictive covenants and limitations. Bolin v. Tyrol Inv. Co., 273 Mo. 257, 200 S.W. 1059; Gardner v. Maffit, 335 Mo. 959, 74 S.W.2d 604; Cochran v. Bailey, 271 Ill. 145, 110 N.E. 812. (2) Technical or formal words are not essential to the creation of a restrictive covenant, and the most common form of creating restrictive covenants is in the deed and properly in the habendum clause thereof. Utter v. Sidman, 170 Mo. 280; Hale v. Finch, 104 U.S. 261, 26 L.Ed. 732; Garrett v. Wiltse, 161 S.W. 694, 252 Mo. 699; Railroad v. Bosworth, 46 Ohio St. 81, 18 N.E. 533, 2. L.R.A. 199; 2 Thompson on Real Property, sec. 1281, p. 379; 14 Am. Jur., Covenants and Conditions, sec. 196, p. 610; 16 Am. Jur., Deeds Construction, sec. 239, p. 573. (3) Equity will enforce restrictive covenants and limitations regarding the use of land. Hartman v. Wells, 257 Ill. 167, 100 N.E. 500. (4) It is not necessary to the enforcement of restrictive covenants that substantial damages be alleged or shown as suffered by plaintiff. Hartman v. Wells, supra; Van Sant Case, 260 Ill. 401, 103 N.E. 194; Miller v. Klein, 160 S.W. l.c. 565; Thompson on Real Property, sec. 3450, p. 568. (5) The provisions of the deed in question constitute a covenant running with the land. Rocks Creek Church v. Church of Pontiac, 290 Ill. 133, 124 N.E. 793, 7 A.L.R. 1422; Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217; Ashland v. Grenener, 58 Ohio St. 67, 50 N.E. 99; Noel v. Hill, 158 Mo. App. 426, 138 S.W. 346; King v. St. Louis Union Trust Co., 226 Mo. 351, 126 S.W. 415. (6) A right of action does exist in these plaintiffs. A court of equity will enforce a stipulation restricting the use of the land upon the complaint of a party for whose benefit and protection the stipulation was intended. 14 Am. Jur., Covenants, Conditions and Restrictions, sec. 337, p. 663; Starck v. Foley, 209 Ky. 332, 272 S.W. 890, 41 A.L.R. 756; Peabody v. Wilson, 82 Md. 186, 32 A. 386, 36 L.R.A. 393. (7) Words of re-entry, reverter or forfeiture are not necessary nor indispensable in order to create a condition. Rocks Creek Church v. Church of Pontiac, supra; Ruddick v. Railroad, 116 Mo. 25, 22 S.W. 499; Noel v. Hill, supra. (8) It is immaterial whether the defendant suffers any detriment or whether the plaintiffs receive any benefit. Van Sant case, 260 Ill. 401, 103 N.E. 194; Bispham's Principles of Equity (4th Ed.), sec. 461. (9) Hardship or inconvenience on the defendant is immaterial and constitutes no grounds for refusal to enforce restrictions. Van Sant case, supra; Kerr on Injunctions (4th Ed.) p. 370. (10) The particular statute of limitations relied on must be pointed out. Gibson v. Ransdell, 188 S.W.2d 25.
Oliver Oliver for respondent.
(1) The deed was properly construed. Illinois law is controlling. Restatement, Conflict of Laws (1934), secs. 214, 215, 218, 221, 341; 26 C.J.S., Deeds, sec. 80, p. 319; DeLashmutt v. Teeter, 261 Mo. 412, 169 S.W. 34. (2) The construction is compatible with the Illinois statutory law, providing for the passage of a fee simple absolute unless a lesser estate is created by express words or by operation of law. Ill. R.S. 1949, c. 30, Sec. 8; Ill. R.S. 1949, c. 30, Sec. 12; Keen v. C.C.C. St. Louis Ry. Co., 392 Ill. 362, 64 N.E.2d 499; Cooke v. Kinkead, 179 Okla. 157, 64 P.2d 683; Chouteau v. St. Louis, 331 Mo. 781, 55 S.W.2d 299. (3) Consideration was given to all parts of the deed, the surrounding circumstances, and the conduct of the parties in an effort to ascertain the intent; all in accordance with the latest ruling of the Illinois and Missouri courts. Smith v. Grubb, 402 Ill. 451, 84 N.E.2d 421; Keen v. C.C.C. St. Louis Ry. Co., 392 Ill. 362, 64 N.E.2d 499; Andrews v. Metropolitan Bldg. Co., 349 Mo. 927, 163 S.W.2d 1024. (4) The finding that the alleged "conditions and restrictions" were, as applied to defendant's use of the land, invalid was a proper one. They are repugnant to the laws of the United States. 44 Stat. 390, c. 228 (1926) (Pub. L. 172, 69th Cong.); 34 Stat. 84, c. 1120 (1906), 33 U.S.C.A., Sec. 492; Trustees of Eureka College v. Bondurant, 289 Ill. 289, 124 N.E. 652; State v. Superior Court for Kitsap County, 194 Wn. 7, 76 P.2d 990. (5) If a covenant was entered into, it constituted an ultra vires contract between grantor and a quasi-public corporation, which had no power to contract to carry out a scheme violative of its United States franchise and the purposes of its incorporation. Ecroyd v. Coggeshall, 21 R.I. 1, 41 A. 260, 79 Am. St. Rep. 741; Pacific Railroad v. Seely, 45 Mo. 212, 100 Am. Dec. 369; Wiggins Ferry Co. v. Chicago A. Ry. Co., 128 Mo. 224, 27 S.W. 568. (6) The alleged covenant, if existent, was void for want of mutuality. Fortune Bros. Brewing Co. v. Shields, 137 Ill. App. 77. (7) The restrictions, if existent, are, as applied to defendant's use of the land, contrary to public policy. Beasley v. Texas Pacific Ry. Co., 191 U.S. 492, 24 S.Ct. 164, 48 L.Ed. 274; Wiggins Ferry Co. v. Chicago A. Ry. Co., 128 Mo. 224, 27 S.W. 568; Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Cates v. Northwestern Tel. etc. Co., 60 Minn. 539, 63 N.W. 111. (8) The context of the alleged restrictive clause should be construed as a statement of intended use, and not as a condition or covenant. Statements of intended use do not create conditions, reservations, or covenants. Keen v. C.C.C. St. Louis Ry. Co., 392 Ill. 362, 64 N.E.2d 499; Carter Oil Co. v. Welker, 24 F. Supp. 753, affirmed, 112 F.2d 299, Certiorari granted, 311 U.S. 633, 61 S.Ct. 60, 85 L.Ed. 403, reversed by stipulation, 317 U.S. 592, 63 S.Ct. 70, 87 L.Ed. 485; Downen v. Rayburn, 214 Ill. 342, 73 N.E. 364, 3 Ann. Cas. 36; Quinn v. Pere Marquette Ry. Co., 256 Mich. 143, 239 N.W. 376. (9) Restrictive covenants are not favored, will be strictly construed, must be certain in their terms, and will never be extended by implication. Hutchinson v. Ulrich, 145 Ill. 336, 34 N.E. 556, 21 L.R.A. 39; Cochran v. Bailey, 271 Ill. 145, 110 N.E. 812; Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604; Matthews Real Estate Co. v. Natl. Printing Eugraving Co., 330 Mo. 190, 48 S.W.2d 911; Missouri Province Educational Institute v. Schlecht, 322 Mo. 621, 15 S.W.2d 770; 26 C.J.S., Deeds, sec. 162, p. 508; Berry, Restrictions on the Use of Real Property, sec. 33, p. 54. (10) The alleged restrictive clause is ambiguous, and, in doubtful cases, the doubt is resolved in favor of the free use of real estate, and a construction given that will give an estate of inheritance to the first taker. (11) If a reasonable and substantial doubt is raised by the words employed, the restriction is not "clearly expressed," and the covenant is resolved against the restriction. Bolin v. Tyrol Inv. Co., 273 Mo. 257, 200 S.W. 1059; Conrad v. Boogher, 201 Mo. App. 644, 214 S.W. 211. (12) Meaningless, ambiguous, and repugnant clauses should be discarded, and other parts of the instrument utilized to conform to the intent of the parties. Bear v. Millikan Trust Co., 336 Ill. 366, 168 N.E. 349; Harder v. Matthews, 309 Ill. 548, 141 N.E. 442. (13) Ambiguities are resolved in favor of free use, and a construction made to give an estate of inheritance to the first taker. Eckhart v. Irons, 128 Ill. 568, 20 N.E. 687; Bolin v. Tyrol Inv. Co., 273 Mo. 257, 200 S.W. 1059; Breadon v. Paugh, 330 Mo. 127, 48 S.W.2d 853; Conrad v. Boogher, 201 Mo. App. 644, 214 S.W. 211; Carter Oil Co. v. Welker, 24 F. Supp. 753, affirmed, 112 F.2d 299, certiorari granted, 311 U.S. 633, 61 S.Ct. 60, 85 L.Ed. 403, reversed by stipulation, 317 U.S. 592, 63 S.Ct. 70, 87 L.Ed. 485. (14) The ultimate finding that it was not the intention of the grantor to prohibit the passage of telephone lines across the land is sustained by the law, the pleadings, and admissions of counsel. Pendergast v. Blomberg, 141 S.W.2d 156. (15) The "over-all purpose" (to prevent the erection on the land of commercial establishments which might compete with commercial establishments to be constructed on grantor's abutting land) was properly considered. Boylston v. Holmes, 276 Ill. 279, 114 N.E. 522; Godfrey v. Hempton, 148 Mo. App. 157, 127 S.W. 626. (16) The surrounding circumstances and subsequent conduct of the parties were properly considered. Smith v. Grubb, 402 Ill. 451, 84 N.E.2d 421; Keen v. C.C.C. St. Louis Ry. Co., 392 Ill. 362, 64 N.E.2d 499. (17) Grantor must be presumed to have known the Federal law; it cannot be presumed she intended to breach such law. 44 Stat. 390, c. 228 (1926) (Pub. L. 172, 69th Cong.); 34 Stat. 84, c. 1120 (1906), 33 U.S.C.A., Sec. 492. (18) The amount of consideration of the deed was properly considered. Coates Hopkins Realty Co. v. Kansas City Term. Ry. Co., 328 Mo. 1118, 43 S.W.2d 817; Sec. VII, Ann., 132 A.L.R. 142. (19) The ultimate finding that defendant's use of the land is not violative of the alleged conditions and restrictions, if existent, should be sustained. Incidental use is not violative of the alleged covenant. Regular Predestination Baptist Church v. Parker, 373 Ill. 607, 27 N.E.2d 522, Ann. 137 A.L.R. 639; Hall v. Koehler, 347 Mo. 658, 148 S.W.2d 489; Berry, Restrictions on the Use of Real Property, sec. 158, pp. 200, 201. (20) Use by the defendant is not inconsistent with the purposes expressed or clearly intended. Hilton v. Central of Ga. Ry. Co., 146 Ga. 812, 92 S.E. 642; Mitchell v. Illinois Central R. Co., 384 Ill. 218, 51 N.E.2d 271; Illinois Central R. Co. v. Wathen, 17 Ill. App. 582; Mairs v. Stevens, 51 N.Y.S.2d 286, 268 A.D. 922; Ocean Beach Realty Co. v. City of Miami Beach, 106 Fla. 392, 143 So. 301. (21) There is no substantial breach. Los Angeles University v. Swarth, 107 F. 798. (22) The equities of the matter forbid enforcement of the restrictions. Plaintiffs, having stood idly by for a period of 20 or 21 years, while defendant, relying in good faith upon authority of their easement, used the land, are barred by laches, waiver, estoppel and abandonment. Bradenburg v. Country Club Bldg. Corp., 332 Ill. 136, 163 N.E. 440; Ewertsen v. Gerstenberg, 186 Ill. 344, 57 N.E. 1051; Robinson v. Cannon, 346 Mo. 1126, 145 S.W.2d 146; Dodd v. St. Louis H.R. Co., 108 Mo. 581, 18 S.W. 1117; Scharer v. Pontler, 127 Mo. App. 433, 105 S.W. 668; Western Union Telegraph Co. v. Polhemus, 178 F. 904; Cape Girardeau T.B.T.R. Co. v. Southern Ill. Mo. B. Co., 205 S.W. 43, connected cases, 174 Mo. 1, 73 S.W. 453, 194 Mo. 175, 92 S.W. 475; 206 U.S. 267, 27 S.Ct. 615, 51 L.Ed. 1057, 215 Mo. 286, 114 S.W. 1084; Hurt v. Hejhal, 259 Ill. App. 221; 18 C.J., Deeds, secs. 466, 468, pp. 401, 402. (23) Equity will not take cognizance of technical and immaterial violations of restrictive covenants, especially where relief would be of little value to complainants and great detriment to the defendant and the public. Forsee v. Jackson, 192 Mo. App. 408, 182 S.W. 783; Mitchell v. Southern New England Tel. Co., 90 Conn. 179, 96 A. 966; Berry, Restrictions on the Use of Real Property, sec. 261, p. 288 (24) Equity will not allow itself to be a vehicle of annoyance and oppression. St. Stephens Protestant Episcopal Church v. Church of the Transfiguration, 114 N.Y.S. 623. (25) Equity may cancel a harsh restriction for the public benefit, or may free this defendant from its operation, since defendant entered the land in good faith under an agreement executed prior to execution of the deed. Osius v. Barton, 109 Fla. 556, 147 So. 862, 88 A.L.R. 394; St. Stephens Protestant Episcopal Church v. Church of the Transfiguration, 114 N.Y.S. 623; Durel v. Boisblanc, 1 La. Ann. 407, 26 L.R.A. (N.S.) 323. (26) Defendant's easement from Mary H.G. Houck included an easement over the land in controversy. A "highway" includes bridges thereon. Ill. R.S. 1949, c. 131. Sec. 1, 1.16; McPhecters v. Meramec Bridge Co., 28 Mo. 465; Pittsburgh West End Passenger R. Co. v. Point Bridge Co., 165 Pa. 37, 26 L.R.A. 323; Schlosser v. Manor Tp., Armstrong County, 293 Pa. 315, 142 A. 322. (27) A "thoroughfare" includes bridges over the Mississippi River. City of St. Louis v. Lee, 132 S.W.2d 1055.
Appellants (herein called plaintiffs) appeal from a dismissal of their petition upon these grounds: failure to state a claim upon which legal or equitable relief may be founded; failure to show any interest of plaintiffs or any of them in the subject matter; and that the alleged cause of action was barred by limitations. The primary issue is construction of a deed.
Respondent telephone company (herein called defendant) is a Missouri corporation and plaintiffs are the heirs of Mary H. Giboney Houck who died in 1944. The petition alleged that on or about February 1, 1927, Mrs. Houck delivered to the Cape Girardeau Bridge Company, a Missouri corporation (herein called the bridge company) her warranty deed to certain lands in Alexander County, Illinois; that the lands consisted of a 100 foot strip east of the center of a levee along the Mississippi River and a 200 foot strip between the center of the levee and the center of the river and the western boundary line of the State of Illinois; that the consideration was $15,000. (This deed is herein called the bridge deed.)
The petition further alleged that the deed contained a provision that the conveyance and warranty were "subject to all rights-of-way for levees and public roads now existing on" such lands and "subject to all rights, if any exist, of the United States, the State of Illinois, or the public between the bank of the river and center of stream." (This provision is herein called the "subject to" clause.)
The petition further alleged that the bridge deed contained this provision: "This conveyance is made, however, upon the following terms, conditions and restrictions, to wit: that said Cape Girardeau Bridge Company shall use said real estate for the sole and only purpose of erecting, maintaining and operating thereon a bridge across the said river with approaches thereto and with the privilege of constructing a tollgate and caretaker's house on said real estate, or other houses or buildings not of a commercial character but necessary for the construction, operation and maintenance of said bridge, it being understood that no structure of any kind, other than such bridge and approaches and tollgate and caretaker's house, building or buildings as above described, shall ever be constructed  or used on said real estate, nor shall any business other than that of erecting, maintaining and operating said bridge ever be conducted on said real estate, these terms, conditions and restrictions being made for the benefit of grantor's land on both sides of the said real estate and the grantor reserves for herself, her heirs and assigns, for the purpose of enabling her or them or any of them to enforce the said terms, conditions and restrictions, the right to proceed by suit in ejectment, or for trespass, or for damages or for injunction, or by any other appropriate proceedings in law or equity against any person or corporation that may ever occupy or use the real estate herein conveyed or any part thereof for any purpose or in any manner other than as above restricted and provided." (This provision is herein called the restrictive clause.)
The petition further alleged that, on October 5, 1928, Mrs. Houck, by dedication deed for state highway purposes, conveyed to the State of Illinois an 80 foot strip for State Highway No. 146, described as beginning at the east end of the 100 foot strip conveyed in the bridge deed and running eastwardly to the east boundary line of Mrs. Houck's land (this deed is herein called the highway deed); and that this highway begins at the east end of the bridge deed strip.
The petition further alleged that by written contract dated March 28, 1929, Mrs. Houck granted to the Cape Girardeau Bell Telephone Company, defendant's predecessor, the right to install, maintain and operate telephone facilities on the highway deed strip but not upon the bridge deed strip (this contract is herein called the telephone company easement); and that Mrs. Houck had devised to plaintiffs the land described in the bridge deed and the lands adjoining and abutting same on both sides.
The petition then alleged that defendant had unlawfully and maliciously erected, and was then maintaining and operating, telephone facilities on the bridge and its eastern approach and on the lands described in the bridge deed in violation of the provisions of the deed; that defendant had received a vast income and profit; and that plaintiffs had sustained damages.
In one count, plaintiffs demanded $50,000 actual and $50,000 punitive damages or, in the alternate, that defendant be required to account and that plaintiffs have judgment for all income and profit realized by the defendant by virtue of the alleged trespass. In another count, plaintiffs prayed an injunction against further maintenance and operation of the telephone facilities and for their removal from the bridge and from the lands described in the bridge deed.
We construe the bridge deed in accordance with Illinois law. Restatement, Conflict of Laws, Sec. 214; and see DeLashmutt v. Teetor, 261 Mo. 412, 169 S.W. 34. We seek to ascertain the intent of the parties. Smith v. Grubb, 402 Ill. 451, 84 N.E.2d 421. We "look to the circumstances attending the transaction, the situation of the parties, the state of the thing granted and the object to be attained." Midwest-Radiant Corp. v. Hentze, (CCA 7th) 171 F.2d 635, and Illinois cases cited therein.
The bridge deed recited that the grantor "conveys and warrants" the lands. It is defendant's position that the deed conveyed an unqualified fee simple, citing Secs. 8 and 12, Chap. 30, Smith-Hurd Ill. Ann. Stat. Sec. 8 sets out a permissive form wherein the grantor "conveys and warrants," and provides that "every deed in substance" in such form shall be deemed a conveyance in fee simple with covenants of seisin, against encumbrances and of warranty. (Italics ours.) Sec. 12 provides that where words of inheritance are not used the conveyance "shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law." (Italics ours.)
Secs. 8 and 12 must be read together. Tallman v. Eastern Ill. Peoria R. Co., 379 Ill. 441, 41 N.E.2d 537. Their purpose is the elimination of the necessity of the use of words of inheritance for conveying a fee simple. Absent words of inheritance  and absent other provisions, "conveys and warrants" conveys a fee simple with covenants. Noe v. Moseley, 377 Ill. 152, 36 N.E.2d 240; and Tallman v. Eastern Ill. Peoria R. Co., supra. But these sections do not support defendant's contention that the bridge deed conveyed an unqualified fee simple and is to be construed as if the restrictive clause were not written therein. While the grantor "conveys and warrants," no words of inheritance are used, and the deed contains "express words" and language "appearing" to limit the estate conveyed.
"In construing deeds in statutory form, this court has said that the cardinal and all-important rule is to ascertain the intention of the parties and the deed should be so construed as to carry out the intention gathered from the entire instrument, and its purpose, if legal, should be carried into effect so as not to defeat the manifest intention, and every word within the instrument should be considered, and if possible, given effect." Keen v. Cleveland, C., C. St. L. Ry. Co., 392 Ill. 362, 64 N.E.2d 499. See also Magnolia Petroleum Co. v. West, 374 Ill. 516, 30 N.E.2d 24; Smith v. Grubb, Tallman v. Eastern Ill. Peoria R. Co., supra; and Illinois cases cited in Midwest-Radiant Corp. v. Hentze, supra. Both the "subject to" and the restrictive clauses in the bridge deed must be considered.
The bridge company obviously acquired a fee simple title, with the right to use, or license the use of, the bridge and its approaches for all lawful purposes unless limited by other provisions of the bridge deed. In the restrictive clause, Mrs. Houck recognized that her grantee was acquiring the lands for use in the construction, maintenance and operation of a bridge over the Mississippi River, a navigable stream at Cape Girardeau. So, in ascertaining the intention of the parties, we must consider two acts of Congress.
By an act approved May 3, 1926 (44 Stat. 390), the bridge company's predecessor was authorized to construct, maintain and operate a toll bridge in accordance with the provisions of a 1906 act relating generally to bridges over navigable streams (34 Stat. 84, 33 USCA, Chap. 11). The 1906 Act reserved to the government the right to construct, maintain and repair, without charge therefor, telephone and telegraph lines on the bridge and its approaches, and further provided that "equal privileges in the use of said bridge and its approaches shall be granted to all telephone and telegraph companies."
The Cape Girardeau bridge was an instrument of interstate commerce. Gouax v. Bovay. (CCA 5th) 105 F.2d 256; Burkburnett Bridge Co. v. Cobb, 108 Okla. 21, 233 P. 463; and People v. Hudson River Connecting R. Corp., 228 N.Y. 203, 126 N.E. 801. So also is an interstate telephone company. Sunset Tel. Tel. Co. v. City of Pomona, (CCA 9th) 172 F. 829; Muskogee Nat. Tel. Co. v. Hall, (CCA 8th) 118 F. 382; and Southern Bell Tel. Tel. Co. v. City of Richmond, (CCA 4th) 78 F. 858. The provisions of the 1906 Act were clearly not only a reservation by the government of its own right to install and operate, free of charge, telephone and telegraph facilities on interstate bridges, but also were directed against discrimination, by privately owned bridge companies, between telephone or telegraph companies in interstate commerce. See State ex rel. Bremerton Bridge Co. v. Superior Court for Kitsap County, 194 Wn. 7, 76 P.2d 990. The 1906 Act is conclusive that Congress regarded the installation and operation of such facilities upon toll bridges over navigable streams and their approaches as one of the incidents to, and one of the purposes of, the construction, maintenance and operation of such bridges. (Even if the terms of the Act be deemed ambiguous, interpretation must be in favor of the government. See U.S. v. Columbia River-Longview Bridge Co., (CCA 9th) 99 F.2d 287.) The 1926 Act, by reference to the 1906 Act, made the installation and operation of such facilities upon the Cape Girardeau bridge and its approaches an incident to, and one of the purposes of, the construction, maintenance and operation of this particular bridge. Indeed, the bridge company could not operate the bridge in compliance with the 1926 Act authorizing this bridge unless the privilege of using the  bridge and its approaches was available to interstate telegraph and telephone companies desiring to utilize this other instrument of interstate commerce.
Presumably, Mrs. Houck was familiar with these Congressional Acts. She conveyed the fee for interstate bridge purposes. The grantee was expressly authorized to construct a caretaker's house and other houses and buildings necessary for such purposes but "not of a commercial character." The prohibited uses were the construction or use of structures or buildings other than those necessary for such purposes, and the conducting of any business other than that of erecting, maintaining and operating the bridge. "Structure" and "building" must be construed in the light of these other provisions. See Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506. Read as a whole, the restrictive clause appears to have been directed against structures and buildings, the erection and use of which for commercial or business purposes might interfere with the sale or use of Mrs. Houck's abutting lands for similar purposes.
But even if this is not so, we note the significant absence of an express restriction against the use of the lands for telegraph and telephone facilities. Restrictions and limitations upon the use of property are not favored in law and in construing a deed all doubts are resolved against them. Berry, Restrictions on Use of Real Property, Sec. 35; 26 CJS, Deeds, Sec. 162, p. 508; Loomis v. Collins, 272 Ill. 221, 111 N.E. 999; Gerling v. Lain, 269 Ill. 337, 109 N.E. 972; and Boylston v. Holmes, 276 Ill. 279, 114 N.E. 522. We hold that here the installation and operation of telephone facilities upon the lands was contemplated by the parties. Compare Walker v. Ill. Cen. R. Co., 215 Ill. 610, 74 N.E. 812. It follows that the defendant's use of the bridge and its approaches was not violative of the "terms, conditions and restrictions" of the bridge deed.
Such construction of the restrictive clause renders it unnecessary to determine whether the fee conveyed by Mrs. Houck was subject to a special limitation, a condition subsequent or a covenant. See Restatement, Property, Secs. 44 and 45; Tiffany, Real Property, 3rd Ed., Vol. 1, Chap. 6; and Thompson, Real Property, Perm. Ed., Vol. 4, Secs. 2030, 2031 and 2156. Nor need we rule either the validity of the clause itself or the effect of Mrs. Houck's devise to plaintiffs.
Plaintiffs suggest that Mrs. Houck was not compensated for such use of the lands by defendant. The 1926 Act authorized acquisition of lands for the bridge and its approaches upon payment of compensation. (See Pike Rapids Power Co. v. Minneapolis, St. P. S. St. M.R. Co., (CCA 8th) 99 F.2d 902, for an excellent summarization of the relative rights and duties of the government, its bridge licensees, the public and riparian landowners in navigable streams.) Under Illinois law, the installation of telephone or telegraph facilities upon a public highway or across Illinois waters is an additional burden for which the owner of the abutting land is entitled to compensation. See Smith-Hurd Ill. Stat. Ann., Chap. 134, Secs. 2 and 3; Burrall v. Am. Tel. Tel. Co., 224 Ill. 266, 79 N.E. 705, 8 LRA (NS) 1091; Postal Tel.-Cable Co. v. Eaton, 170 Ill. 513, 49 N.E. 365, 39 LRA 722, 62 Am. St. Rep. 390; and other Illinois cases cited in Anno. 8 ALR 1293.
There is no merit in the suggestion that Mrs. Houck reserved the right to claim additional compensation for the installation and operation of telephone facilities upon an existing public road across lands described in the bridge deed. (Although the petition does not so state, we will assume that defendant's telephone facilities were placed on such road.) The $15,000 paid to Mrs. Houck for approximately 3½ acres of land, much of it under water, included compensation for such use. Assuming that, prior to the execution of the bridge deed, she had the right to claim such additional compensation, she did not reserve that right, either expressly or by the "subject to" clause. The intent of that clause was to make the fee subject to the "right-of-way" for the road, to reserve the rights of the public agency having jurisdiction  over the road and to protect the grantor against any claims that might thereafter be made on account of the road. Mrs. Houck conveyed the fee to a private corporation for use for toll bridge purposes, not to a public agency for road purposes. The bridge company, as owner in fee of the abutting lands, might be entitled to assert such a claim. But neither Mrs. Houck nor plaintiffs could.
The trial court properly dismissed plaintiffs' petition for the reason that it failed to state a claim upon which legal or equitable relief may be founded. It is therefore unnecessary to determine the propriety of the other grounds of dismissal.
The judgment is affirmed. Van Osdol and Aschemeyer, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court. All the judges concur.