(''ITY OF CLEVELAND V. CLEVEI,AND, C., C. & ST. L. RY.
co.
113
railroads, depots, and other buildings, for the accommodation of commerce. 6. Under these circumstances and facts I am compelled by a sense of duty to say that I do not think the claim set out in the bill is sustainable in equity in favor of Lloyd or his assignees, or in favor of the Connecticut Land Company. It is therefore dismissed, with costs. CITY
OF
CLEVELAND v. CLEVELAND, C., C. & ST. L. RY.
CO. et
aI.
(Circuit Court, N. D. Ohio, E. D. :March 1, 1899.) No. 5,730. 1. EJECTMENT-WHEN IT LIEs-RECOVERY OF POSSESSION OF STREETS BY CITY.
Ejectment will lie by a city to recover possession of streets in which the public has an easement. Defendants, claiming as licensees of a city, in a suit by adverse claimants, set up and successfully maintained the right of the city to certain land under a dedication for street purposes. Held that, in a snbsequent action by the city against the defendants, the evidence being practically the same, the former decision, as to the validity of the dedication as claimed by the city, would be followed on the principle of stare decisis, though the city was not a party to the adjudication. 'Vhere a city had granted, or attempted and assumed to grant, the right to defendants to use ground it claimed as a street, its acquiescence in such use, for any length of time, will not operate as an abapdonment of its claim to the property.
2.
COURTS-FoLLOWING PRIOR DECISIONS.
3. MUNICIPAL CORPORATIONS-ABANDONMENT OF STREET-INTENTION.
4.
ESTOPPEL-AcTS IN PAIS-CONSTRUCTION OF PARTY'S CONDUCT.
The conduct of a party, sought to be made the basis of an estoPIlel against him, must be viewed in the light of the understanding he then had of his rights, and not in the light of such rights as they may be thereafter determined. In 1849 the city of Cleveland entered into a contract with certain rail·· roads, by which it granted them the right to use a portion of a tract of land claimed as a street. Not long afterwards, in a suit against the railroads by an adverse claimant, the defendants alleged their interest in the land to be that of licensees of the city, and successfully defended on the city's title under a prior dedication. Held, that the city, by permitting the railroads to remain in undisturbed, or even exclusive, possession of the ground for 45 years, and to expend large sums in the construction of improvements thereon without objection, was not estopped, as against them, to claim any rights in the property consistent with the contract, according to the construction and meaning given it by the defendants in their pleading in the former suit, where they had never given notice of any other or ditl'erent claIm. Nor can the defendants in such case successfully plead limitation against an action by the city, whatever may be the true construction of the contract under which they took possession, or the nature of their rig,.ts otherwise acquired, as by their own admission, in a sworn pleading, their holding was not adverse to the city, and it had the right to rely on such admission until notified that they claimed under a different tenure.
5.
SAME-ACTS OF CITY.
6.
LIMI1'ATION OF ACTIONS-EJECTMENT-NATURE OF DEFENDANTS' POSSESSION.
7.
SAME-ADMISSIONS IN PLEADINGS.
A formal allegation in a petition in ejectment that, on the date it is tfIed, defendants unlawfully keep the plaintitl' out of possession of the property, is not an admission that defendants' possession is adverse, 93F.-8
114
. 93 FEDERAL .REPORTER. which will support a plea of limitation, on proof that they.,haveheld in the same right for more than the statutory length of time.
8.
RAILROADS-RIGHTS TO PUBLIC GROUNDS-CONSTRUOTION OF. UONTBACT WITH
CITv.' . . Under the constitution of Ohio of 1802, the oilly restriction upon the e;x:erclse of the power of eminent domain by the legislature was the provision that money compensation should be made for private property when taken for public use,and by the railroad act of 1848 (46 Ohio Laws, p. 40) railroads companies were given power to construct and maintain railroads between the points named in their respective charters, and to appropriate streets or other public grounds to their use when necessary, either by agreement with the public authorities, or, such agreement falling, by a decree of a court. Held, that a contract made in 1849, while such act was in force; between a city and a railroad company, by which the city granted, "as fUlly and absolutely" as it had the power or legal authority to do, the right to the "full and perpetual use and occupation" of a portion of a street required by the railroad .company for terminai purposes, did not reserve to the city any rights in, or control over, the property described, but that the railroad company took from the state, under the statute, and. not from the city, an easement of a perpetual and . exclusive use.
This was an action of ejectment by the city of Cleveland against the Cleve1ahd, Cincinnati, 'Chicago & St.Louis Railway Company, the LakeShore. & Michigan Southern Railway Company,' the Cleveland & Pittsburgh Railroad Company, and the Pennsylvania Company, to recover possession of ground claimed as a street, and accretions thereto, 'which w-.s occupied by defendants, with their terminal buildings and tracks. The action was Hied to a jurY,and atthe conclusion of the trial the court charged the jury in. favor of the defendants, and also filed an opinion upon the legal issues involved; Geo. L. Phillips, JamesLawrence, and M.G. lS"ort()ll, for plaintiff. John T.Dye and John.H. for defendant Cleveland, C., C. & Sf. L. Ry. Co. M. R. Dickey and John H. Clarke, for defendant Lake Shore & M. S. Ry. Co. . . .. ' .. Squire, San(j:ers f;4, Denipsey, for Pennsylvania CQ. and Cleveland P.R ,Co. '. ,
',' .. .Page CHARGE ...................···..... 1······· ' ·········· , ·············· 114 STATEMENT'OF FAOTS '.: ' , 115 OPINlON-:-' . , .. , ".'" , ,'" DedlcatlOI\.,,' .',' , '.' , , '" . . . . . .. 122 Estoppel , .. , 12a Statute of Bimitations ; ;;.;; .' liB Contract ..: ; ;·; 133 (UA") CON'rRAC'1'OF 1849 139 ("B") ANSvVER IN HOLMES . CASE " : , . . . . . . . .. . . . . . ·· 141 146 ("C") ANSWEjR INPRIC'EJ & ORAWFORDOASE (UD") RAILnOADACT OF.l848 .........·. ; .. ; ............·.... , .·..· 147
.'.<'.,: .·., H
, ',' , ·· ····
····· " . . .
····
··
···
_
CHARGE. HAMMOND',.T. Gentlemen of ,the Jury: The first thing in order is the apology that I owe you and counsel in this case for the delay
CITY OF CLEVELAND V. CLEVELAND, C., C. & ST. L. RY. CO.
115
which I have caused. But to give the case pr'oper consideration, in view of its vast importance and interest, I felt that it was necessary tMtI sh(mld not slur it in any respect, but should whatever time was necessary. . Now,gentlemen of the jury, having said that much, the plaintiff ha",iug shown no right of recovery in this case, iUs my duty to direct your verdict for the defendant railroad companies, and the clerk will furitish you with a' form of verdict to be signed by your foreman. This, technically, is all I need say to you, and we might close this case here. But I shall file with the record an opinion to justify this action, andwiII now read it in your hearing, that you may understand why it has been done, and justify me, if you may, by your judgment of agreement with that of the court in this method of disposing of the case. I adopt this plan to avoid an unnecessary and erroneous practice, when the reasons for directing the verdict are given in the form of a charge to the jury, of taking ex:ceptions to the reasoning. of the court as a basis of error. Exception to the instruction to the jury to find a verdict for the plaintiff or the defendant is all that is necessary in tMt behalf. STA'l'EMENT OF FACTS. HAMMOND, J. Referring to the case of Holmes v. Railroad Co., 8 Am. Law Reg. (0. 8.) 716, 93 Fed. 100, where Mr. Justice McLean, in his opinion in that case, relates the historical facts that have been proven also in this case, it is only necessary to further state that at the time of the dedication, in the year 1796, by the original proprietorsof the Western Reserve, known as the "Connecticut Land Company," Bath street extended about 1,000 feet fr6m Water street, westward to the Cuyahoga river, with an irregular' width, ranging from about 60 feet to 200 feet, extending to the low-water mark of the waters of Lake Erie. The topographical character of the lOCUli in quo was that of an almost impassable roadway, except along the sands of the beach,and with such crude excavations and gradings as had been made from time to time, until 1849, when the contract mentioned in the opinion of the court was made, except that in 1827 the government of the United States constructed a pier extending out to the then existing harbor line of deep navigation. This cut off a part of Bath street, and left it on the west side of the mouth of the Cuyahoga river, as reconstructed. The building of this pier exercised a very considerable influence on the topography of the surrounding locality, by immediately causing sand deposits and other accretions east of the pier, aitd at the edge of Bath street, which grew continuously. At the making of this contract, in 1849, Bath street, as it then existed, was split longitudinally from the pier eastward to Water street, leaving 132 feet south of the line for the use of the city as a highway, which strip was renamed "Front Street," as the 100 feet before laid off had been named "Bath Street." All north of it, to the watprs of the lake, was included in the contract of 1849 between the city and the railroad company. Immediately after the contract, or a little before, one of the railroad companies had commenced tolay its tracks upon the part assigned to them, it being
116
93 FEDERAL REPORTER.
necessary to drive piles to support the tracks and keep them from they ran somt:twhat Into the being overflowed by the water when the waters of the lake were high"through winds or storms; and the structures then built-the freight houses and depots-were also built on piles extending into the lake, under which the waters were constantly found.. The purpose of the railroad companies, wh,ich had combined together for the common object, was to use this .strip of ground for the ICfcation of their terminal facilities in this city. For this land the company paid to the city, under the contract, $15,000 in their stock. Prior to that time the, heirs at law of the original proprietors, Camp & Lloyd, vendees of, the three trustees appointed by the Connecticut Land COq:l.panY,were disputing with the>city a:bput its rights of ownership and the validity of the dedication, and also with the rail1'01jldcompanies, as is shown in the opinion of the court. There were also some nine ejectment suits that had been brought by lessees of these rival claimants, against the city, for the recovery of all of Bath street, including the 132 feet assigned to the city for ,a roadway and street. By the contract ,the railroad companies i\ssuJIled the defense t.nd settlement of all these suits and rival claims, not only to the part which they had acquired under the contract, but also to that part which had been assigned to the city; and they were finally, at the expenditure of very considerable sums of money, amoqnting, indeed, to over $50,000, paid to these claimants in one way and another, settled by the railroad companies. The railroad companies immediately commenced to improve the property by driv,iug piles in the water and filling the ground sufficiently to construct thereon their stations, machine shops, and other structures necessary for the operation of their railroad at its terminus. At the time Jl,ldge decided the Holmes Case, these recla· mations of land from the waters of the lake, with the natural accretions, amounted to about 20 acres. This was in 1853. Now, in 1899, it is shown, by the proof and maps in this case, that it has increased to 51 and some tenths acres, upon which therailrGads have con· structed, with solid foundations of pilings and stone, their most important terminal tracks, and the necessary facilities for their use, in the way of rGund houses and freight houses, and piers constructed for the landing of the vessels engaged in the navigation of the lake, to receive therefrom the freights which they carry up and down the lakes. The city spent no money in all these years for the improvement of that part of the street, and substantially it ceased to be a highway for the public, except in a casual and very limited way, for those who were engaged in fishing or otherwise above the waters of the lake. Indeed, from almost the beginning, the use of the railroad companies became almost exclusive of that part of Bath street lying next the lake, which they had acquired by the contract. Neither did the city take any control of any kind over the street, or in any wise pay that attentioJl, which .owners of those jointly possessing a parcel of ground might be expected to do, who 'Were claiming the use of it. The railroad companies spent largely over half a million, of .dollars in redeeming the land from, the lake, and largely more
117
than a million of dollars in the improvements put upon it,-the buildings, and tracks, and all manner of terminal structures. This suit was brought by an action of ejectment, in the court of common pleas, in August, 1893, and removed from that court, on the ground of local prejudice, in the year 1898, upon the claim that the contract of 1849 was an invalid exercise of power by the then existing city government, which had no authority to transfer its streets for any such purpose as that disclosed by these operations of the railroad company. It wa."l not denied that they had the power to authorize the railroad companies to lay their tracks longitu.dinally on the street, to the extent of their main tracks, for the purpose of making connection with other roads, or passing their roads through the land upon which the city is situated to the places beyond to which they desired to go; but it was denied that they could transfer it for any other purpose, or that there could be anything else than a joint occupation by the public as a highway and the railroad companies as a highway, with a paramount municipal control of the city over the whole territory from the waters of the lake to the southerly boundary of Front or Bath street; that any grants by the city of any facilities for the use of the property beyond that were utterly void, for want of express legislative authority. The defendant companies filed answers, setting up the defense of the general issue or denial; that the dedication was insufficient to convey title; that they held a paramount title through purchases from Lloyd and Camp and others, claiming from the original proprietors a better title than the city had by the dedication; that the street had been vacated or abandoned by the city; the statutes of limitations through adverse poesession for 21 years; estoppel by reason of the silence of the city for nearly 50 years, during which time no objection had been made by the city to the vast improvements, and sums of money expended in the improvements, by the railroad companies; and that ejectment would not lie to recover the possession of the street, under the circumstances of the case, or under the statutes of Ohio regulating an action to recover land. The other essential facts will appear in the opinion of the court, and in that of Mr. Justice McLean as reported in 8 Am. Law Reg. (0. 8.) 716, 93 Fed. 100. OPINION. HAMMOND, J. It must be conceded to the plaintiff city that ejectment lies for the recovery, by a municipal corporation, of the rightful possession of its streets. This was held when deciding the motion for "judgment on the pleadings," as it is called in Ohio practice, and the court then reserved the filing of an opinion to support that ruling, which has been prevented by the arduous duties of the trial, but may yet be done. It is sufficient now to refer to the case of Village of Fulton's Lessee v. Mehrenfeld, 8 Ohio SL 440, where such an action was sustained; 9 Am. & Eng. Ene. Law (2d Ed.) 82, note 1; 2 Dill. Mun. Corp. (4th Ed.) § 662; Newell, Ej. pp. 32, 49, 53; Elliott, Roads & S. 485, 486, 490,493,495,501, note 2; Cooley, Torts, 437.
118
93 FEIllllRAI. REPORTER.
These authors cite the conflicti,ng cases, 'and ,:Mr. 'Newell remarks that "the current of modern authority, in regard to easements of rightof waY,etc., is strongly in favor ofupholdingtM right to recover in ejectment the lanll, 'subject to the easement.", Ej. p. 53,§ '51. This author cites :Barclay v. Howell,6Pet: 498, as do corinsel here,agairist this'tuling,bu,tthat is a misapprehension of that case, in my judgment.. That was ejectment, bycHiimants from the original owner, involving streets of the city, of Pittsburg, under circumstances very' much like some of those we have here. See same case in the court below (Fed. Oas. No. 975), where the facts more definitely appear. The supremecourt did say that, if the dedication had been for a particular purpose, and'the city had appropriated' the ground for an entirely different purpose, it might afford ground for resort to a court of equity to compel a specific execution of the tru!,t, by sustaining th,e use or removing the obstructions. But it did, not say' that would ,not lie," even in that case; only that; the use still remaining in'the pUbliC, it would be a good defense, presumably either at law or in equity; that, under the supposed circumstances, the land would not revert to the original owner, and he could not recover it in ejectment, not because ejectment would not lie,but, because, there being a good defense, it must fail, as the court said the proposed in equity would faH,and for the very Same reaspn,-that the plaintiff could have ll() cauSe of action, the lan(inot belonging to him by reversion. And that action of ejectment was remanded for a new trial because, inter alia, below had given erroneous instructions on that point to the jnry.What the court means is that one paving only a claim to a reverter'whenthe".easementhas terminated must, before its termination, conftne the use of the easement within its limits by a resort to equity, as he is not entitled to possession; and it never meant to hold, and does not, that if the right of possession already has accrued ejectment would not lie; far less that if the plaintiff has a. right of joint possession or of qualified possession, in prffisenti, he cannot bring ejectment, but must go into equity. I have'no doubt that either of the parties to this suit would feel more comfortable in a court of equity, the one in prosecuting its claim where there is more elasticity of remedy, and the other a wider range of defense. But, while it is a very rigid rule of our federal jurisprudence that one having an adequate remedy at law cannot go into equity, there is no requirement that, if his remedy at law be inadequate, he must go into a court of equity. ,He is permitted to go, but not compelled. And it is somewhat a)eversion of the rule to suppose that, because one may go into a court of equity, he shall not go into a court of law, where his remedy is embarrassed. Under, the' influence of modern improvements, authorizing a court of law to model its judgments and conform them to the, exigencies of the facts, much of the, embarrassment is relieved. It is held in many cases that this ext(m'ds to our mtHjern forms of action to recover land, and the' verdict and writ of possession may be thus framed to suit the case. City of St. L,oriis v. Missouri Pac. Ry. Co., 115 Mo: 13, 21 S. W; 202, is an example of these cases. And in the
CITY OF CLEVELAND V.
C., C. & ST. L. RY. CO.
119
case of Irwin v. Dixion, 9 How. 10, it was held that the remedy by injunction to redress the violation of the public's right in a highway is not a favored remedy. See Rapalje's Ed. and notes. At common law, the king's remedy was by criminal information or indictment, possibly also by civil information, and either the king or an individual might, without judgment at law, abate a nuisance in the highway by directly removing it by the strong hand, without breach of the peace, and under special circumstances a bill for injunction would lie. The owner of the legal estate could always bring ejectment, and now :Mr. Dillon says, to encourage that remedy, a municipality is treated as having a legal estate for that purpose, although the naked legal title may be outstanding. Mr. Justice :McLean, in the case of Holmes v. Railroad Co., 8 Am. Law Reg. (0. S.) 716, 93 Fed. 100, where the facts of this case were involved, seems to hold that the city acquired the fee of Bath street by the dedication, which, if so, would relieve all technical objection to this action of ejectment. Counsel for the eity hesitate to adopt that view, and suggest that, under the statutes of Ohio, it is, if a statutory dedication, in the county; if only a common law dedication, then in the state, or the descendants of the original proprietors, but only as a bare legal estate, which is of no consequence in this case. This view might possibly avoid a full disseisin, by operation of the statute of limitations in favor of the defendants, and confine that operation to the lesser estate of an easement, the city not holding or claiming any greater estate, but this point may be reserved until we consider that defense in disposing of this case. On the point of the right to bring ejectment, I should be inclined to hold, with :Mr. Justice McLean, on the facts, that originally, by the dedication and abandonment of the Connecticut Land Company, the legal estate, as well as the easement, passed to the city. Whether the legislation subsequently had in Ohio devested the legal estate, and lodged it in the county of Trumbull, and by succession it has passed to the county of Cuyahoga, is another question. Either way, on the authorities, I have no doubt of the right to bring ejectment. The trouble is that the plaintiff does not claim full possession of the locus in quo, but only a somewhat indefinitely defined and qualified possession, which it is proposed to regulate by the form of the judgment, which the defendants think to be impossible, while the city is willing to take judgment for the possession of the street qua street,. subject to whatever superimposed easement the defendants have established by the proof here, or may establish hereafter by proper proceedings to that end. The case of City of Cincinnati v. White's Lessee, 6 Pet. 431, refers to the impracticl;lbility of the plaintiff's taking possession of a soil burdened with a highway, and argues very strongly against the availability of an action in ejectment, even by the owner of the soil in fee burdened with an easement; but it does not decide against it, and. does not decide that the city may not bring ejectment to recover its easement of a public street. That case decided, and was so treated by the supreme court in Dickerson v. Colgrove, 100 U. So 578, and other cases following it, "that a title by dedica·
120
·93 FEPERAL REPORTER.
Hon operated, by estoppel in pais, to preclude the owner of the soil, altbdugh he might have the naked legal fee, from maintaining eject· inent,because he had dedicated irrevocably the right of possession; that, since that ordinary accompaniment of the legal fee had been cast off by the act of dedication, the owner of that fee had denuded himself of the right of possession." Manifestly, that case has no application here, where the city, which the owner had thus clothed with the right of possession, is suing for it. Besides, this action, as we have shown, is sanctioned by the local law of Ohio, and that governs here. Village of Fulton's Lessee v. Mehrenfeld, supra. Believing, as we do, that ejectment, inadequate as it may be, in respect of the kind of judgment to be rendered and writ to follow, isa remedy to which the plaintiff has a right to resort, the special request of the defendants to instruct the jury to find for them, be· cause there is no evidence tending to show that the city ever had any other estate than an easement, and as an easement in a public street is not a legal eAtate of which the city is entitled to possession, within the meaning of section 5781 of the Revised Statutes of Ohio, the action cannot be maintained, is refused. That section is not different in that respect from the common-law action of ejectment, brought in Village of Fulton's Lessee v. Mehrenfeld, supra. DEDICATION.
On the authority of the case of Holmes v. Railroad 00., 8 Am. Law Reg. (0. 13.) 716, 93 Fed. 100, it must be conceded that the city of Cleveland had a complete right of possession to the land in controversyin this case when the indenture of September 13, 1849, was executed by the city to the Cleveland, Columbus & Cincinnati Railroad Company, the same defendant in that case and in this. Whether that right to possession was a title in fee, or only an easement for the use of the land as a street and a public landing, it is perhaps not essential to here decide, though its determination might relieve the case of some of its other perplexities. Mr. Justice McLean, on the proof before him, seems to have thought that the quantum of ownership held in trust by the city for the public use included the fee or legal title as well as the easement, upon the ground that the easement had been effectually dedicated to the city for the use of the public, and the fee, having been abandoned by the Connecticut Land Company, was acquired by the city as the first taker. There may be technical difficulties in thus picking up a lost or abandoned legal title or fee without grant, deed,. or other paper title, but there can be none, under the operation of the statute of limitations, by adverse possession. So that when that case was tried, and now, it might be held, in an action at law, that the city, by operation of that statute, had acquired the fees in support of the easement already obtained by the dedication, just as it was then held in a court of equity to have been acquired by laches. But in this place it is not necessary to further consider that question, and only to decide that the city bad, in 1849, that ownership of the locus in quo which would entitle it to possession, now, and in this
CITY OF CLEVELAND V. CLEVEL,\ND, C., C. &: ST. L. RY. CO.
121
action, unless that right of possession has been transferred to the defendants by the indenture above mentioned or otherwise. It is not deemed necessary to support this determination by a relation of the facts or any citation of the authorities used in the argument, other than the Holmes Case, above cited. The technical record of that case is in evidence before us for a special purpose, to be hereafter mentioned, but, of course, not the proof used on either side, upon which :Mr. Justice :McLean acted. And we have had on this trial a repetition of the proof the parties have at hand, as if that case had never existed; and necessarily so, because, the city not being a party to that suit, there could be no estoppel of the defendants by record, upon the doctrine of res judicata. Yet it almost amounts to that, in practical effect, if not in technical legal consequence. The issue there and here on this point was and is precisely the same; between the defendants here and other parties, it is true, but none the less the same issue. There the character and extent of the city's ownership was in judgment and determined upon quite the same, if not the identical, proof we have here, judging by Mr. Justice McLean's statement in his opinion of the conclusions of fact that he reached in deciding that case, and making allowance for the lapse of time since then, and the difficulty of procuring precisely the same evidence of those facts which he had before him. The defendants here make no better case against the city's title than Holmes and his associates did when the defendants took shelter behind that title, and so successfully defended it. The city aggressively makes here substantially the same case, as to the city's right of possession, that defensively the defendants did there. Upon the principle, therefore, of stare decisis, if not res judicata, that adjudication, in favor of the city's right of possession, should control our judgment here, even if that case had been wholly between strangers to this suit. It having been one in which the defendants here were defendants there, and in which they set up and relied upon the validity of the city's title or right of possession, that principle should be all the more readily applied to them here, even if it be not technically an estoppel by record, as it is agreed it is not. Moreover, that case decides against the Lloyd title set up here by the defendant the Pennsylvania Company, that company having bought it in even before the Holmes Case was decided. Holmes and his associates, as the heirs at law of the original proprietors, known as the "Connecticut Land Company," claiming the locus in quo by their inheritance, attacked the Lloyd title for fraud in its procurement by purchase from the three trustees of the original proprietors. It was decided that the purchase was, indeed, fraudulent, but also it was decided that the title of the original proprietors had been alienated by them, so that their heirs at law took no title by inheritance; and this, because the city had acquired that title from the proprietors by dedication and abandonment, as above mentioned. Therefore the trustees of the proprietors held nothing to convey to Lloyd; which being so, the proof in this case of that title cannot avail the defendant the Pennsylvania Company as a defense to this action. It does not show a better or paramount title, reaching behind that which the city has
122
shown. The Holmes Oase, supra, settles this invalidity of the Lloyd title, and upon its authority as a precedent, as well as upon our own of tlw judgment on the facts here, tha(point must be ruled in city. Nor is it at all necessary or proper to submit either the validity of the city's right as above determined, or the validity of the Lloyd title, as a defense to the jury, sin,ce there is no disputed fact relating to either worth their attention,.' The lawyers dispute about it, but there is no conflict in the evidel;lce to be settled by the jury. ABANDONMENti'.
The defense of abandonment, set up by the defendants, apart from any bearing it may have on the specia,l plea of the statute of limitations, also must he ruled in favor of the plaintiff, city. Mr. Justice McLean had before him in the,IrolIIlesCa!3e, supra, a bill in equity, with the widest scope for the 6£ the principle of the equitable doctrine of estoppel by laches aJ1d nottactioh, not only in analogy to the legal defen!3e of the statute of' limitations, but beyond that, in the sense of a stale he says about "abandonment," as a defense, must be taken i':tJ.V'iew of that freedom which a court of equity has in: such a case: The facts he had before him were very, very peculiar, and there is not the remotest analogy on this point to those we have here. The city did not. deal with Bath street at all, as the. dealt with the remnants of theWestern' Reserie by their dispersion from, the. Connecticut Land Company, so called, and it is a'tlistortion to associate that c:.tse with this in respect of the, aIlegell abandonment. The authorities he cites in his opinion, and those used in the argument here, have not been examined to determine whether 'such a defense is possible in a court of law and in an acdon of ejectment .andon the general as been claimed here: For)'ny ownpart, I doubt it; but thanSimmaterial now and here. 'The' evidence relied on was pertinent ,alike to the legal' defense of the statute of li1hitations and to thespeciaI defense of estoppel set up by one of the replies of the defendants, to be. hereafter considered; , therefore the evidence was adnHtted, and we mIls! nowconsiMr itonly in itsbearih.g under the general demal. Conceding that rt! is' relevant to that general issue as an independent defense in an ttction of ejectment,yet the defense is not upheld by the prdof. The always present,indispensable, and fundamental element in any abandonment is the intention of the owner to abandon his property,-to desert it,-with a Willingness that its ownership may go to the first or any taker; he not caring-what becomes of it. That was the ease Mr. Justice McLean had before him, as he found from the peculiar facts related in his opinion, and also shown in the trial here by the same evidence he h'adbefore him. It turned upon the final meeting of the Land Company; when they dissolved their voluntary association, abandoned everything then known and not aparted or q.ivided among themselves, deliberately and confessedly with the intention of making a finality of the Whole business, as graphically described by Mr. Justice McLean. There is no evidence in this case tending to show any such intention of abandoni
CITY OF CLEVELAND V. CLEVELAND,
c.,e.
& ST. L. RI'. CO.
ment of Bath street or any part of it by the city, and nothing to submit to the jury on that issue. There is evidence tending to show neglect to sue for a part of the street in possession of others, the effect of which, by statute, may be fatal to this action under certain circumstances, but it is a misnomer to call that abandonment. There is evidence, by the contract between the city and the defendants of 1849, tending to showa sale of the whole or a part of the street or a license to use it, possibly exclusively, but the intention manifested by that act is one to alienate and transfer the property to andther, or to attempt to do that thing; but this is a wholly different intention from that of abandonment, and it is a distortion to call it so. There is evidence of extraordinary silence for an extraordinary length of time, while others were using the property; but taken with the .fact that the city had, or thought it had, granted some kind of permission for that use, the silence does not signify abandonment, whatever else it may imply by way of a denial, in a court of law or of equity, to the city to reclaim its aforetime possession, because of the misconduct of silence, under certain circumstances. In a certain lexical sense, these facts may indicate abandonment, but not in a legal sense. They may be wholly consistent with an enduring claim of ownership, however unavailable in suits to assert it, and whenever there is a continuing claim of ownership there can be no abandonment in fact; the intention to abandon is wanting. As one of the learned counsel for the plaintiff said, one does not abandon one's land by nonuser or nonclaim, though he may lose it because of these, under certain defined circumstances prescribed by law, but it is the act of the law which deprives him of his property. It is not lost by abandonment, as when one th.rows away his jackknife, to use the illustration of one of the learned counsel for the defendants. Land may be so abandoned, according to the Holmes Case. but the casting away must be as patent in evidence as the ejection of the jackknife. ESTOPPEL.
The supreme court of the United States, seemingly, loosened its ancient moorings, upon the subject of the admission of equitable defenses in actions at law, by the judgments in Dickerson v. Colgrove, 100 U. S. 578, and Kirk v. Hamilton, 102 U. S. 68. See, also, George v. Tate, Id. 564, 570; ·Wythe v. Smith, 4 Sawy. 17, Fed. Cas. No. 18,122; Berry v. Sea·wall, 13 C. C. A. 101, U5 Fed. 742; Jackson v. Harder, 4 Johns. 202; Campbellv. Holt, 115 U. S. (;20, (;22, G23, 6 Sup. Ct. 209; Stoddard v. Chambers, 2 How. 284; Railroad Co. v. Paine, 119 U. So 561, 7 Sup. Ct. 323; Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129; Rev. St. "U. So § 723; Drexel v' Berney, 122 U. S. 241, 7 Sup. Ct. 1200; City of Cincinnati v' ·White's Lessee, 6 Pet. 431; Allen v. Seawall, 17 C. C. A. 217, 70 Fed. 561; Boggs v. ""Vann, 58 Fed. 681. A careful reading of these cases, and others that might be added, in comparison and contrast with the first two that are cited, will show. that the ratio decidendi of this apparently new departure in our federal praetice is that the title "inures" to the defendant by the operation of the estoppel in such a \\lay that it will either main-
124
.93 FEDERAL REPORTER.
tain ejectment for the land or furnish a defense when pleaded at law, notwithstanding any apparent or supposed disturbance of the statute of . frauds, and that this "inurement" may be necessary to save the new practice from any infringement of the federal constitution, by uniting legal and equitable remedies in the· same action; also these cases will show just what estoppels may and what may not be pleaded at law; and, as to land or any interest in it, the estoppel pleadable at law is that which results when one stands by in silence and sees another, holding his land adversely, improving it. That particular estoppel has been added by ,these cases to the list of common-law estoppels in pais, mentioned by Lord Coke in tbe extracts cited from him in some of the cases. At firstI was inclined to think that the estoppel pleadedbere was, neither in form nor substance, that justified by the foregoing case!'!, notwithstanding the similarity, if not identity, of the culpatory facts set up in the plea, nor am I now quite sure of it; but, in the view I bave taken of the facts, it is, perhaps, unnecessary to scrutinize them in this regard. Taking the pleading as good in all things, and the facts for all they are worth to the defendants,-they being substantially undisputed,and furnishing no conflict of evidence to be submitted to the jury,-and, in my judgment, the alleged estoppel bas not been established by the proof. It has its foundation in tbat memorable contract between the city and the defendant railroad companies of September 13, 1849, wbich so pervades every nook and cranny of this litigation. The "inurement" of title, as it is called by Mr. Justice Swayne, or, if you please, any lesser estate, by estoppel in pais, or anydepri'vation of right, by whatever name you call it, bas not attached to the defendants as a defense perforce of tbe alleged culpable conduct of the plaintiff, because the contract of 1849, and that which both parties have done under it, during all the years of silence on both sides, until this suit was brought, in 1893, bas neutralized the otherwise potential effect of the facts proven in favor of the plea. One of the learned counsel for the defendants somewhat humorously remarked that there is about a set-off as to the "admissions" by the parties concerning proper construction of that most ambiguous and indefinite instrument, which will be reproduced in the margin of this opinion. 1 Following the suggestion, it may be said that there is likewise a set-off as to the long-continued and culpable silence about the respectiveconduct of the parties under it. lt must be remembered that this estoppel. as now claimed, was not set up in the original answers, nor for a long time aftenvards,-a significant indication of continued silence even after this suit was brought, and an implication that it is an afterthought. This, of course, is not in derogation of any right to set up the estoppel, soon or late, but it may be fairly taken as evidence of the state of mind of the defendants on the matter of the city's long-continued silence as to its rights under the contract, and how far the defendants] con1
See ("A") at end of this opinion, page 139.
CITY OF CLEVELAND V. CLEVELAND, C.,
c.
& ST. L. RY. CO.
125
duct was at all influenced by that silence, while making their improvements and spending their money, of which they now complain. It tends to show that they had not relied on the silence of the city at that time, or they would not have been so long in pleading it after suit was brought; and the other circumstances of the case confirm the 'suggestion of the plaintiff that reliance on that silence in spending the money is an afterthought, long after the improvements were made, and never considered before. The most remarkable feature about this case, as it appears to any impartial mind, is the reprehensible silence of both parties upon the subject-matter now in litigation, if they were ever dealing with each other on the respedive footings of either the petition or the answers. If the city has ever, at any time since 1849, claimed to have any "control" over, or right of "possession" to, the locus in quo, as a street, why did it wait until 1893 to set it up for the first time? It has seen the railroad companies taking "exclusive" possession,-a word not in the contract,-or assuming an "exclusive" use; has seen what Judge McLean said in the Holmes Case was about 20 acres of accretions grow into over 51 acres now; and has seen the companies occupy that vast area, and use it exclusively, all this time. Yet it has never exercised or demanded any kind of possession or control for itself or the public, other than its uses by the public for the railroad traffic. Not by any act, syllable, or suggestion has the city indicated that the companies were usurping larger rights or uses than they had under the contract; and all this, for nearly 50 years. On the other hand, the defendant railroad companies, in 1853, four years after the contract, in the Case of Holmes, before cited, defined their understanding of the contract, and by their sworn answers admitted that they held only as licensees of the city. One of these answers, which are all substantially alike, will be copied in the margin, so far as it relates to the admissions of the city's title. 2 Mr. Justice McLean thus states his construction of these answers: "The defendants insist that the title to all of said land covered by the water of Lake Erie is in the public, and not in any trustee for them; and, as to the residue of said land, rely for a defense upon the equitable bar furnished by lapse of time, want of title in equity in the complainants, and upon a dedication of said land to the public by the Connecticut Land Company, as early as 1796, accepted immediately thereafter, and ever since used in accordance with the purposes of the dedication. They deny that they are in possession under the title derived from said Lloyd, and aver that they are in possession under the authority of a statute of Ohio, in pursuance of a license granted by the city of Cleveland, and using the same in a manner consistent with the original dedication."
Measured by what is now claimed by the defendant companies, who set up an absolute title, by the contract, by estoppel, by the statute of limitations, etc., the construction then given to the instrument is noticeably narrower than is now urged upon us. Indeed, these answers quite disclaim any other construction of the contract than that which the city now gives it by the of this suit. They certainly then admitted that the contract is only a license; that the city, after the contract, continued in the rights of licensor and 2
See ("B") at end of this opinion, page 141.
126 OWnef!
FEDE/itAIr, llEFO:aTEjl;
street,andtheYlitCquir;edion.ly the, ;rights ,of a licensee. then, the mutual :interpJ;'etatiopQf, instrument, Or'·, the view of/ their fights taken by the defenQNJ.ts., r '.J;hei ofestQPpeI,; the proof a,ndargument in favor .of it, now ,construction of the instrument set up in this litigation: in favor {)f the, deffmdant that, the city is a v;endorQf tb-e whole estate, or, _PoSflibly,itwould'be conceded, minu,s the naked legal title; and that are the, vendees thereof, all by deed of grantsuflj,cieut this mUGh-enlarged estate ,from auif ,that was ever Glaimed ,before. Obviously, hQwever, the questiOn of :estoppel in pais by silence, etc." is to be gpverned by the conduct of tlae parties,j\1s!gedby theinterpretatioQ:wbich they theijlselves,.attb,e time of the,cl;)nduct oomplained of, gave;theinstrument, and not construction by the courts which is first invoked some 50 years later.'l'he coloring of .tbeconductof the city, alleged to be culpatory in j;hismatter of ,estoppel, Jl1ust, in law and in .all fairness; be taken from the thep sta:teof mind of the parties, and not thatwhiclJ. is subsequentlJr effi:ablished l)y the ultimate and conclusive adjudication of.thecQurts, We do not yetk;now, by any judgUlent of a court, ;what is proper construction of this contract, and how is it possible to impose on the parties a: legal conclusion which is retrospectively to give coloring to their conduct in this matter by estoppel in pais. It seema to, me impossible, however long the time elapsed; to work an estoppel-under ElUchcircumstances. , It is waSillO obIigationouthe defendants to speak; tlIat t4eY might properly keep silent, and permit the lapse of time to cure Whatever defects there way have.1:)een in their title. In some circumstances this WQuid be true, but not those wellavehere. After tbe defendants, almo.st iq the beginning of the contract" had, by oath of pecQrll" lJ,(lmitted that they were only licensees, and the"city might well rely on that admission and that a,ttftude :of ,the defendalltstowards city's It is indisputable that as, the. very terms of the they might claim the .right to spend 'alIi the money they did spend in laying tracks, etc;, 'and1Ii erecting costly and lasting It waswhaUy: conaistent with that ,holding to do this. It' might have been their' folly tq 1'30 improve,' at the cost ,of immense. sums, upon a mere licensee's title, jf the license be re,\,ocable at the pleasure of the licensor, oratr all, under 'any circumstances. . Nevertheless, the' formidable character of, the :,ilDprovementsand 'the ness of the cost, although, under ordinary circumstances, sllfficient to put any rival for ownerspip on notice"and potential enough. to inv?ke the up and his f\ghts .within a reasonable hIl;l, do notreqmre hmi to speak, If he be not lU fact a rivalc1aimant, but oll'ewlIose claim is at that time fUlly re'cogas efisti'ng, and? ',i 'a,cer:ain. 'sense, . dominant. If a have a contract 'to unprove the the cann,ot claim that the;lessot 'is estopped b;r standing by, and seeing the improvements. going :on without objection, until after he has given notic'e that' he shall claim morf' than the estate of a licensee, or unless there is in the character of the improvements
127
themselves showing that they go beyond the contract, and thereby advise the lessor of a larger claim. There is nothing here of that kind. From the date of the Holmes suit, the railroad companies have never given a breath of notice that they should claim more than they claimed in the Holmes answers. Never, until their pleas in this case. Mr. Justice Field said on the circuit, in Adams v. Burke, 3 Sawy. 415, Fed. Oas. No. 49, that the possession must be hostile, which means adverse, of course, and that entry by permission of another, or with the admission of another's title, would not set the statute of limitations running,-no more will it set an estoppel running,-and that the recognition of another's title after the ute had begun to run, no matter for how brief a period, will avoid the statute. That, too, was the case of a complaint or. pleading"a sworn admission"-that the defendants did not hold the premises by a claim of title hostile to the title of the plaintiff, but with a recognition of that title. The truth is, both these parties have been contented all these years with this mutual construction of the contract, and have been silent accordingly. The question in my mind has been whether they are not now mutually estopped from denying this construetion, and ever asking for another.. Topliff v. Topliff, 122 U. S. 121, 131, 7 Sup. Ot.1057; Ohicago v. Sheldon, 9 Wall. 50, 54; District of Oolumbia v. Gallagher, 124 U. S. 505, 510, 8 SHp. Ot. 585. On the other hand, in the year 1851, in the case of Oity of Oleveland v. Price (Price & Crawford Case), in the supreme court of Ohio, not reported, but the record of which is in evidence here for the same purpose as that in the Holmes Oase, namely, to prove the admission of the city as to its construction of this contract, the city's answer thus construed this contract: "That, after the location of the railroad from Columbus to Cleveland, It became necessary, m the opinion of the directors, to obtain the whole of the tract. of land called 'Bath Street,' and they mada a formal appropriation of the same by resolution of the 12th of September, 1848. The entire title of that traCt was involved in a controversy between the city and Camp & Lloyd. * * * A suit was already pending, which had been decided against the city, and was then depending on exceptions. * * * That the opinions, not only of people generally, but also of men professing to understand the legal questions involved, differed so much as to the probable result that it was impossible to antiCipate the .event. * * * That respondent wishes to get clear of all controversies, whether legal or otherwise, and for that reason respondent was unwilling to have said company obtain possession of said property by the power given them by their charter; * * * and that respondent believed it to be for the interest of all parties having any interest in said property to make an amicable arrangement, by which said company might be invested with all the rights of this respondent in said property. Upon these views, this respondent, being compelled to transfer to said company said property, and preferring to do so under negotiation, than to have it taken under and by virtue of said company's charter and appropriation, and desirous of avoiding all controversies with said company for the convenience and advantage of this respondent, the said negotiations and contract were made between said company and .respondent * * * Respondent admits that, by the terms of said contract * * * made on the 13th of September, 1849, said company took the interest of said city in said Bath street property, subject to all the rights and privileges of all other persons * * * which could be legally enforced against the property had the city continued to hoi a the same, * * * but because said company, as this respondent is informed and believes, succeeded to the rights of the city, and having by said agree-
128
93
FEDERAL REPORTER.
ment withCl\mp &LloJ'd compromised all matters in controversy, the city ' ceased to make fur'ther defense," etc.
The whole of this portion of the answer will be copied in the margin, to more fully exhibit it. a The record explains that the plaintiffs, Price & Crawford, filed the bill against the city, Camp & Lloyd, and the Oleveland, Columbus & Oincinnati Railroad Oompany, with which the contract of September 13, 1849, was made. They held leases from the city, and alleged that there wa,s a conspiracy between the defendants to deprive them of their property, by making the contract with Oamp & Lloyd of August 8, 1849, by which the Oamp & Lloyd ejectment suits against the city compromised and dismissed, and by making the contract of September 13, 1849, by which the railroad company acquired the property according to its terms. They prayed to enjoin the writs of possession in the ejectment suits brought against them, and from disturbing their possession, etc. The bill was at last dismissed, and there wag an appeal, and it was again dismissed. Now" here is the construction by the city of the contract almost immediately it was made. This and the Holmes suit are of themselves a practical construction by both sides, such as is referred to by the authorities last above cited, and show, beyond all possible question, the construction that both sides have had from that day to the bringing of this suit; neither having given to the other any notice, by word of mouth, writing, or by act or deed, of any change in the state of mind of either party as to that construction, but, on the contrary, have acted in perfect harmony about it for about the periOd of 45 years. These rel'lpective admissions were made of record and under oath. In the Holmes Oase the defendants here were defending against a claim of title by the heirs at law of the original proprietors, and they set up, by their construction of the contract of 1849, a continuing title in the city, claiming theml!lelves only as licensees, and that they were holding under the city as such. They might just as well have set up the larger title they claim now,-theabsolute ownership,-and have defended it in the same way, bufthey did not. The city, in the Price & Crawford Case, was more liberal, to the railroad companies in the construction it gave to the contract than the companies subsequently were to themselves in the Holmes Case. There is nothing in these admissions militating against a claim for that oontrol Of the street, qua street which is demanded by this action, subject, as they now admit, to whatever easement in the street the railroad companies have acquired by the contract. But the admissions show that there was then quite an entire ha,rmony between them as to the character of the holding ()f ,the locus in quo. Whatever quantum of right or title either had under the contract was left 0Ilen, as the contract itself leaves it open, under its al)lbiguous and indefinite terms. But whatever other effect these admissions of record may have on the proper ,construction of the contract, if any, certainly, on the defense of estoppel, they preclude, under all the circumstances ()f' this a See ("0") at end of this opinion, page 146.
CITY OF CLEVEI,AND V. CLEVEL.Um, C., C. & ST. L. RY. CO.
129
case, every possible reliance on the intervening 50 years of silence, as an estoppel to deny the construction of the contract that the defendants now insist upon. The parties acted harmoniously, as to the holding of the property all this time, in a construction of the contract that may have been erroneous; and, if they be not bound irrevocably to that construction by mutual estoppel, certainly neither can take advantage of that silence, which the harmony produced, by any present complaint of it. That these answers are evidence for that and other purposes in this case is settled by the authorities. Jones, Ev.§§ 206, 207; Slatterie v. Pooley, 6 Mees. & W. 664; Edgar v. Richardson, 33 Ohio St. 581, as to the admissions concerning the doings of the Connecticut Land Company; Jones, Ev. § 236 et seq.; Id. § 241, citing authority that such admissions may operate, if proper foundation is laid, as estoppels in pais; Id. § 274 et seq., as to admissions in pleadings; and Id. § 277 et seq., as to when they operate as estoppels. And when under oath, as to their effect, see rd. § 298; Pope v. Allis, 115 U. S. 363, 370, 6 Sup. Ct. 69; Railroad Co. v. Ohle, 117 U. S. 123, 129, 6 Sup. Ct. 632; .Delaware Go. Com'rs v. Diebold Safe & Lock Go., 133 U. S. 473, 487, 10 Sup. Gt. 399; Combs v. Hodge, 21 How. 397, 404. And the admissions of the corporation are likewise binding on its successors by consolidation or other like devolution of corp{)rate existence. Railroad Co. v. Howard, 13 How. 307. These admissions, however, even under oath, are subject to explanations. and thus to be relieved of the estoppel they might otherwise entail. Jones, Ev. §§ 274-277, 298. In a jurisdiction where the sternest rule of estoppel by oath, in aid of public policy and good morals,· obtains, it was held that the admissions of an oath might be explained, and, if done, the estoppel does not arise. Behr v. Insurance Go., 4 Fed. 357. No proof is offered in this case of any explanations of the admissions made under oath in the am'!wers in chancery, but the explanations are found in the circumstances. The city and the railroad companies, being at that time harmonious, and altogether friendly, about the use of this street, and perhaps indifferent, so that the use was secured, how it was done or what title was acquired (except that the city said in its answer that it did not desire to have the railroad company take it by appropriation in invitum), were unaffected by any consideration as to the effect the statements then made in the answers would have in the future, as against each other, if they should fall out about the contract. They did not expect to fall out. The langnageused came of the then ·existing harmony, but mutual doubt of the city's title and power to convey it. The answers were fraIned according to the professional strategy of the then employed counsel, who proceeded obliviously of any prospect or expectation of conflict between the city and the companies as to quantum of estate, title, or right conveyed or received. The long time elapsing before any conflict did occur shows only the substantial quality of the amity and harmony on the subject, and has justified somewhat the reliance upon its strength as a factor of safety against any future denial of their mutual construction of the contract. Under such circumstances, no public policy orCOIlcern for morals justifies treating these answers as au 931<'.-9
130
93 FEDERAL'REPORTER.
estoppel against either, side. A:n:dthe controlling influence ofa practical construction of the contract, as shoWinintherabove-cited cases on that subject, does not amount, to an estoppel by oath or admission, as the cases themselv.es constructiongiven by' the parties has only acontrollingiIifluence under given circumstances, but is not always deCisive of the point. Therefore I do n6t:think the parties ihereare precludedfreID'now resorting to the courts for an authoritative construction of: the :contract, ev.en at this late day,particularly sinoe the contract itself is soambignous, and confessedly describes the thing conveyed indefinitely, and only "as fully and absolutely as said city,or.eonstituted authorities thereof, have .the power 01' legal authority so to do.": i:, ' , ILis:conv;enient here to refer ,to the adlnission, thaLthe defendants held under a licensefro;rn the city,and the mutliat PQsition on that point of both parties to the ,contract ,at tMt Wne, for the pur· pose Qfconsideringthe effect of that constructiQnon the rights of the parties, if it were then or now a pJ;oper construction of the con· ,[t:is now .argued for the City. 'that the railroa<l, companies holda'license to use and,occupy, subject to the joint use of the same grbund':by,the.publicas a street,an'd :tothe'cityls paraIUQUnt control of it as yet ,a. street, and that the' defendants are estopped by their admission to claim more than that; also that, any. el:cessive use by theraill100:d.confpanies beyond a jointus.e comes ofan implied li· cense, which is. revocable, and has been now, revoked, ,by the bring' iug of this suit" Thisussllmes city had, no' power to grant more than a joint useof,the same ,ground,-,-:"no power to split Bath street longitudina'lly, and assign use of one .side' to the; railroads,> and the,' other i to the publ-ieas a highway; whieP. ,is the questitmher.e 'invoLved,i,and quite the posi· tion taken by:the city in: the Price & Crawford' Case. Halso as· sumes that a street ceases ,to a'lltr'eet when el:clusively used by a railroad,and not used .bythe public as'a highway; which is by no means ,certain, as apl'oposition.Of law or fact.·, But assume the position to, be correct, and is itilloLainistah:e to. treat the implied license as revocable, as has, been done? The la:nguage of the con· tract is that the railroads, :Shall have the "perpetual" use of whatever they have been licensed to use; and does not that imply irrevocabil· ity? No other license than. this contfilct has beensbown, verbal or written, ,as to any excessive use,-caU implication of it comes from the: contract. And if that be the proper relation of the parties to this ground, ,the railroad companies. might be contented to occupy perpetually under this implied license, and having so occupied it for so long a time, without Qbjaction, it might operate as an estoppel in :their favor for the excess under the while the facts, as al· ready ruled, :would not operate an estoppel as against the city to deny that the companies cannot claim to hold:absolutely by a 'title of their own that which they use el:dusively by license. So can· fined, the estoppel might:be good,even for the excess. Oity Ry. 00. v.Oitizens' St. R. 00., 166 U. S.557,17Sup, Ct. 653, where it was held that the city of Indianapolis was estopped,by its conduct in grant· ing a license, from denying that thefl!anchise el:tended 37 years, and
CITY OF CLEVELAND·Y·. CLEVELAND,CI,C. &: ST. L. RY. CO.
131
terminlited at' 30 years,-the 7 years being, according to the city's claim,a.n excessive grant,. fpr want of power. It.is not necessary lration;fo,l'I am of the opinion that this newly, to extend this consid on the facts, suggestedconstru<ltiQn'is,:not more subject to than the other above conflidered. They botl;l. require us to. give a retrospective construction as the foundatil;)n for, tp.e estoppel, not the one the parties gave at the time and on which their for it was not then construed as a grant or sale of that which was within the. power and irrevocable, and a revocable. Fcense of that which was in excess of the power,but as a licenlile to use all the city had the poWer to inc::Iude. Besides, the contract especially allows the companies to erect all structures necessary to operate the.railroad, and that:there is any excess, as alleged, in doing that, is not so plain, whatever construction be given to the con· tract itself in other respects. Again, the defense made by the city against the pleaded estoppel, that no lapse of time will sanction a public nuisance, and that the public rights of highway on the streets cannot be taken away by lapse of time, assumes, again, that the former construction of the contract was correct,: and that the city?s present construction is the proper one, and therefore the structures and excessive use are nuisances. If they be, .by a proper and authoritative construction of the courts, within the contract, they are not n.uisances, and therefore the position is not available until that construction has been had And in the meantime heretofore elapsed anything authorized to be put in. the street cannot be treated now as a nuisance, heretofore existing as such, within the purview of the estoppel rule by lapse of time, or of the :rule of the statute of limitationlil, nor until the want of authority has been declared,-then only. it becomes a nuisance. :Heretofore it has not been, and therefore the lapse. of time would operate. upon the theory that erection of the obstruc. tions was not unlawful. The truth is both parties are estopped from relying upon the retro·spective operation of any new construction of the contract, asa foumation for their present claims, against the old and mutual construction regulating their conduct at the time; and the present appeal to the court for its authoritative construction ,must proceed upon the theory that what has passed, by mutual error 'or does not affect the construction now to be given, and -:it must be, had' as of the time when the contract was made, subject,of course, 'to the influence of the conditions'established by the :long-continued operation of the parties under their old constrnction,albeit no estoppels have been worked. The result'of this consideration of the defense of estoppel is that, . not having' been established, by the proof, it cannot avail the. defendants to defeat this action, either by way of inurement of title,' 01.' by any inhibition on the plaintiff to sue, whether the proposed estoppel be called legal or equitable. 'STATUTE OF LIMITATIONS. , ' . ,. · r
'The very same reasoning just adopted as to tl;J.e defense of estoppel applies with such force as itbasequallJ to the defense of the statute
93 FEDERAL'R:tllPORTmR.,
contract, ane! tli.e mutual relIa.nceuI>OIl:that practical constrtiotion the parties gave it at the time of- entry'" whicl!- hils governed their: contract ever since, until this suit was' 'bt(}ught to challenge it, precludes the defendants from· taking ahything'by operation of the statute of limitations. There has been Ii.oadverseholdingto set-the statute to running; at any time within 21:years before this suit was brought. .. .The bringing of the SUit, and a refusal to yield to its demand, is the 'first- manifestation of an adverse holding. It the pOflition be l!loUl'1d that, upon the delivery of the i:nstrument, 'an adverse holding began I as to all the world, including the grantors, according to its it is quite sufficient to say:that the terms were ambiguous, a.nd the holding since is entirely consistent with either, construction that Ifiight be adopted,-that of a .license for joint dccupation and no exclusive use, as well as that for an absolute' estate in fee or an irre"ocable and perpetual exclusive use. Soon after the entry the parties mutually adopted the former of these construe· tionsby their :respective sworn answers in chancel'y,-at least, the defendante did,-and since that time each. has been as silent as the tomb' concerning any possible construction of the contract, other -tlWl' that,uutil. this suit was brought, in 1893. If the original entry, "therefore; set the statute running on the theory above mentioned, it was lll'llested in 1853, when the.def-endants filed their sworn answers in the Bolmes Case, and hascontinlued arrested ever since. Adame v; BUl'ke,Fed.bas. No. 49. There Mr. Justice Field said that "that complaint [a sworn statement] is an admission of the highest characterthat the defendants did nothoJd the premises by a claim of title hostile-to the title of the plaintiff, bUt \\vitti a recognition of that title"; too plain! for argument that there wa,s here no such ad· verse pOssession of the premises as 'is contemplated by the statute"; and in another place in' the opinion that "the recognition of another's title after the statute has commenced running, at any time within' the 20 years, no matter for how 'brief a period,.will destroy the continuity of the hostile possessio:n, aild;avoid the bar of the statute." If, at any moment after the Holmes Case was ended, the defend· ants had notified the city that they had changed their minds as to the construction ·ol the contract, and no longer recognized that the city had any joint use or joint· control, or municipal control; of any. kind, but that: they had an absolute title or an exclusive lise, then the adverSe possession might have begun again; or if they had, by any sUbstantiveactiousted the city, ejected its officials, if any were there, refused any demand, if any were made,for joint use by the public, or the like, the adverse possession would have begun again. But there is not a scrap of evidence that any such thing occurred. It is true the city does notsbow that it made any claim of joint use or municipal 'control in all those years, but, if its rights to tbis had been specifically or impliedly recognized by tbeconstruction given to the contract in the sworn answers, the fact that the exercise of joint use or control was n()t asked, or that tlie use lay dormant, does not 'impair the right or create adverse possession. The tomb-like silence, for so l(mg a time, is remarkable, and almost incredible, but it was
CITY OF CLEVEI,AND V. CLEVELAND, C., C. & ST. L. BY. CO.
133
mutual, as before mentioned. Nor does the fact that the city proves no such ouster, as above suggested, affect the question of its right of .action. In ejectment,a denial of tbe plaintiff's rigbt or title in the answers or pleas is, of itself, an ouster. Grant v. Paddock, 30 01'.312,47 Pac. 712; Noble v. McFarland, 51 Ill. 226. A somewbat ingenious argument is made that since the petition in this case alleges that on August 17, 1893, when it was filed, "the defendants unlawfully keep said plaintiff out of the possession of, whereby said plaintiff is unable to perform the duty imposed by law, to keep the same open and in repair and free from nuisances," there is an acknowledgment of adverse possession on that day; and since the proof shows tbat the defendants have, for nearly half a century, held precisely the same kind of possession as on that day, the adverse possession to support the statute of limitations is thereby proved. Ko authority is cited for this, and it is not sound, in my judgment. Adverse possession is not proved by such technical aIle· gation of wrongful withholding in the petition. It is a necessary allegation in every ejectment petition, but it is supported, as the above cases show, by a refusal of tbe defendant to surrender pos· session on tbe demand of the suit and making defense thereto. It is not intended to admit adverse or wrongful possession at any time prior to the filing of tbe petition, and this proof by analogy is not permissible. Besides, the proof does not show adverse holding, as we have endeavored to show, and the proof is not to be contradicted by this technical of the petition characterizing the bold·. ing as wrongful. Adverse holding may commence with a denial· of plaintiff's title in ejectment pleadings, but it does not follow that it bas preceded the suit. Indeed, since tbe statute of limitations for· bids suit after 21 years of adverse holding, the implication to be drawn from the allegations of the petition is that the "wrongful withholding of possession" by the defendants commenced within the time prescribed; and the proof of the required character of the hold· ing must be aliunde tbis formal allegation, not intended as evidence by comparison. . . We do not overlook the difference between title by estoppel and that by force of the statute of limitations, which forbids suit after the 21 years' adverse possession, and thereby vests title in the plain· tiff. But the adverse possession required in either is adjudged on the facts by the same circumstances. This view of the defense made on the statute pretermits any reo quirement of a verdict from the jury on the question of adverse possession. The existence of tbe contract of 1849 is not disputed, and that which was done under it is not disputed. Therefore tbere is nothing to go to the jury on that issue, and we hold that the con· tract and the admissions of the Holmes answers are insuperable bar· riel'S to any claim of adverse possession by the defendants of the character required to support the plea, or of adverse possession of any kind. CONTRACT.
In tbe constitution of Ohio of 1802, in force when the contract of September 13, 1849, was executed between these parties, I do not
93 FEDfJRAL
to, that of the constitution of 1851, adopted was niade, declarip.g that may Q#'I9fllle<}, under btitl;i,llll1lch may, fFoill!ime to qr Article 13, 2 (1 Swan St. p. 50). And 'that section "d'(ies rIipt act lSwan:&(\ St. p. 50, cit,ing ,Bank v. Wdght, 6 9)1io 1St. 318, , . N,or, could it do t4at sOils to ,the CQnstitutio,U.of the United States against impairing .the obligation ;Qf contracts. 'l'herefore, the act of February 11, railroad companIes, and under whiCh the defendants here 'Were not be altered, amended, or repealed by, any I constit.q.tion Qf QhiQ 01" statutes passed by the 1'<1gulating there being in the act of 1848 no that pO'Yerto alter, aI¥eild" or repeal, the resersection ':t. of,tlJ.t;!; u,ct that the powers conferred might be modined 1>Y the !the companies. See 46 Ohio La.ws, p. 4;0,; l Swan & Q. St. p.,27l. ", ' , ' .Again.Jthas that the construction of the contract is a matter of be governed by O,hiodecisions in this court. Gellerally speakiIlg" tbis' is true, but there are exceptions. Chicl;tgo V", Wll.1l,., 50; , Louikville,',l'rust qo. v. CitY, of Cincinll<lti,,22,O.C. A. 334,76Fed. 296. In the firsfcase,itissaid 'that "u been elltered into between valid at the tiIlle, bJ" the laws,of the state, it is not ¢ol!lpeh;nt even for its legislature to Pi'lss a:qact its obligatioIl, any decisio)ls ,qf its ve .t4at eflectP second pf these cases it is saiq that "the rule tQllching duty of Dnited States courts to and, fpl10w the anIlouneed b.y: thl3 highest of 'Whose. statute,is, involved, is ,etc, "Blj.t there are' well-f'ecqgnized exceptions to rule,' One il(that, if ,the contracts arid obligations have into: upon t)lefaiti),' of existing judicial eonstruqtioqs the United, States will not regard themselyesasupp.er dllty ijo.conform to later decisions, reversing earlier opinions',' upon the faith of which citizens of other states have acquired ,rightspr assumed liabilities." Again, the decisip,n af'firD1.Sthatanoth,erexgepiion' is that, if the contract has been made, up-d rigpts or obligations, entered into, b,efore there has ·been' any,judicial qo:OstI'llctioll pi tbe statutes upon .which the contract depends, by the state court,a court of the United States, while "leaning, to an; ag,reerp.ent with the ..statecollrt," may exercise an. jUdgment,f!s to tlie'validityandmeaping o'f the contract, and notboun!lJo follow subsequent decisions of the state courts conlltruing,the, stiltute, ,it the dee.isions w,ere made after tbe I.'ights invqlved in the. or attached. .In other words, f!>uchdecisionsdo }lot act retrospectively,to establish a conWeli-rfbound foHow. . " ,: .... ' ., N I" find,' t1J.e ,phio constitutiOI). ,Of i802 any liillitations whatever to the exei'cise of the right of: eminent domain, except, alone, that of article 8, § 4, that "private property ought and shall ever be inviolate, but always subject t118; public welfare, provided a compensation in money be made to the owner." 1 Swan & O. St,
f!.nd,
:s
is
to
as
'0
CITY OF CLEVELAND V. CLEVELAKD, C., C. & ST. L. RY. CO,
135
pp. xix., L'l:V. The same provision substantially is made in the constitution of 1851. Const. art. 1, § HI (1 Swan & C. St. p. 24, and notes); eonst. art. 13, § 5 (1 Swan & C. St. p. 51, and notes). The cases cited in these notes show that the state courts have decided that the power of eminent domain is not specifically conferred by these constitutions, but is an indispensable incident of sovereignty, and goes with the general grant of legislative power (1 Swan & C. St. p. 24, note 3, citing Oiesy v. Railroad Co., 4 Ohio St. 308); also that public property may be appropriated without compensation, including streets and highways, consisting of a perpetual easement in the land covered by them, for all the actual uses and purposes of public travel (1 Swan & C. St. p. 24; ld. not 3, at page 26, citing Road Co. v. Cane, 2 Ohio ' St. 420). ' This power of eminent domain is absolute in the legislature unless restricted, as it is not in the constitution of 1802,' except as to required compensation for private property, not public. It is so abso· lute that, but for this iiiviolability of private property established single restriction, it could be 'taken also without compensaby tion; otherwise the power of the legislature is supreme to do as it will fot'thepublic welfare, under the constitution of 1802. . Neither is there any restriction in 'that constitution as to the power to create corporations, railroad as well as others, though they were unknown, as railroads were unknown in 1802. The only corporations especially authorized were those for literary purposes, schools, a(}ademies, etc. Const. art. 8,' § 27 (1 Swan & C. St. p. xxvL). That constitution interfered very little with legislative supremacy; the people hal-tng more confidence in, and reliance on, the parliamentary prinei'pIe of legislative supremacy then than now. And here it may not be improper to remark that, if any wrong was done the public or the citY'of Clevehmd by the railroad act of 1848, when the city and this locus in quo were more like a wilderness than now,' since the railroads have helped to develop it so enormouslY,the fault is in the want of provlsion of the pioneers, who were doing the best they could to develop the wilderness, not dreaming, perhaps, of magnificent cities to be grown in Ohio within half century, to ,,,hom the franchises granted away would be valuable, if held ungranted until n()w. But then, perhaps, the cities which have largely been developed by the railroads might not have been sO magnificent and prosperous. But these legislators could no more see present conditions 50 years ago than 'we can see aceurately those to come 50 years hence. That the legislature had the power to organize railroad corporations, and delegate to them directly-not to the cities, and, indirectly, through them, to the railroad&-this power of eminent domain, there can be no question, and as absolutely as they chose, except as to restriction of compensation for private property taken. In the case of Hailroad Co. v. Adams, 3 Head, 596, it was held that the right to appropriate and use absolutely streets, alleys, and highways was an implied p()wer in a railroad company from its charter, granting generally the power to construct a railroad from a town or city to another town or city. It includes a right, without special grant, to enter the city and appropriate the streets. And, if thel'e be no restrictions in the
a
13G
charter, the only obstacle to the absolute occupation, exclusively, of any street, is found in the cost of the performance arising out of compensation to abutting property owners; that is, under the constitution of 1802, governing these defendant railroad companies. One oUM learned, counsel for defeIl,dants, Judge Dickey, securely taproot of the of:the. railroad eonlpanies and the planted city to make the contract of 1849 in the second section of the railroad act of 1848, which, with the pertinent to this controversy, will be copied in the margin. 4 It was the exercise of the almost unrestricted pQwer of eminent domain under the con,stitution of 1802 and the act of 1848, granted by section 2.<lf that act to the railroad companieli. It was the fruition of that power, brought about by the exercise of it by the railroad company itself, and not the city. The city was only a subordinate agencyin the transaction, with Dot the least power or right to obstructor restrict the appropriation of the railroad company, on its OWn terms, as to the quantum of USe or estate wanted, which it could take according to its wants; fixed, however, by agreement with the city or by a decree of a court of competent jurisdiction; but these were ea.ch only a modus. operandi of appropriating by the company all it wflnted, even to. t4e'absolute estate. However this may be, as to the constitution of 18,51, and the legislation made subsequently in pUrliluance thereof, under that of 1802 and the act of 1848 the power of tbe railroad cqmpan,y was dominant, and not that of the city, as has. been argued. If the contract had specifically reserved municipal cQ:ntrpl or any further interest in the part of the street appropriated or: condeI11ned by the railroad companies, .it would have been a condition accepted and binding on them. But it cannot be implied as not granted or reserved through any. notion that the city's title was and that it held as the grantor of the franchise. The state granted the franchise, not the city. And, under such circumstances, the contract must be .construed liberally in favor of the state's grant, and most strictly against the city, as between them, however strictly, al'! agaillst the railroad companies in favor of the state, in construing the statute granting the power of eminent domain. The state represented the trust of the public, and not the city, in such a case as this. All that has been said about the city's inability to grant away the public, right to' use the streets, because they are held in trust for the public, may be true when it is granting privileges or franchises municipal in their character; and yet the railroad companies are not bound by that restriction when exercising the right of eminent domain, under the act of 1848 and the constitution of 1802, as the law then stood. The power exercised was that of section 2 of the act of 1848, and is not derived from sectionlil 11 or 15,'-neither of. them. Those are mere regulations, and are scarcely restrictive of fue power granted in: section ·2. If they are restrictive in any way, of course that restriction is a limitation On the power, but not otherwise. Section 11 is. that which restricts the poweroremi,nent domain exercised by 4
See ("D") at end of tbisopinion, page 147.
CITY OF CLEVELAND V. CLEVEL'AND, C., C. & ST. L. RY. CO.
137
the railroad company here, if there be any restriction. Section 15 relates altogether to a different subject. It is, like the otber, a regulation of the exercise of tbe power of eminent domain, but it involves only the crossing of highways, streets, and streams, and not the appropriation of a street wholly or in part longitudinally. Neither, however, is, under this act and the constitution of 1802, the grant or regulation of a license in or across the street, but the taking of it to the extent wanted by the railroad company under its right of eminent domain, subject to the respective restrictions of either section. Section 15 is more restrictive than the other, because it does not allow, in terms, anything but a joint use, and the occupation of the crossing must not interfere with its former use as a highway or stream. There is no such restriction in section 11, and the city cannot impose one by contract, as against the railroad company, longer than the railroad company chooses; for it may appropriate the whole, if it will. By this contract, it has done so by the very language of it, and the restrictions as to the quantum of use sought to be imposed by implication by the city it had no power to impose. Confessedly, the contract grants all the city had the power to grant. It had no power to grant anything, but only to agree with the railroad company what restrictions it would accept in its exercise of the power of appropriation. It wanted the exclusive use of about one-half of the street as it then existed, and took it, not under the contract from the city, .but under the statute from the state, paying the city $15,000, when it need not have paid a cent; for the statute and the constitution do not require compensation for public property. Neither the city nor the court of condemnation could have imposed compensation on the companies, because neither the act of 1848 nor the constitution of 1802 does that. It is bootless to inquire what quantum of title or estate the railroad company acquired by this appropriation under its right of eminent domain. 'My own judgment is that it acquired the fee along with the easement of a perpetual and exclusive use, for reasons already inti· mated in a former part of this opinion; for if the city owned the fee it went with the rest, and was either sold by the contract to the companies or was appropriated bythem,-I think the latter. But, if they have only the easement of a perpetual and exclusive use, it is just as effectual; for the legal title is a naked and useless thing, wherever outstanding. As riparian owners of either the largest estate railroads can acquire for railroad uses, or of only an easement for the same uses, the 51 acres of accretions and reclaimed land from the lake goes with whatever estate they have, and that is all-sufficient for the rightful and righteous security of that which they have created by the free and :vast expenditure of their money, to enable them to successfully handle their part of the commerce, state and interstate, of this, continent, thereby contributing, if not creating, the wealth, power; and usefulness of this great city. I am not unmindful of the case of City of St. Paul v. Chicago, 11-1. & St. P. Ry. Co., 63 Minn. 330, 63 N. W. 267, 65 N. W. 649, and 68 N. W. 458, and of the able argument for its application here, but the circumstances are different as to the power. There it was ruled that the
138
FEDERAL REPORTER
legislature had no power to destroy land dedicated to a specific, limited, and definite public use, and could only conform its regulation to the purposes of dedication. J;Iere the, legislature of Ohio, as we think, un(l.er the constitution of 1802, had the absolute and unrestricted right of sovereignty and power of.eminent domain wherewith it could take all the original owner ever had, all the owner of the easement .had, all anybody had, by whatever title, dedication, general or special,' and appropriate it to the great public use of ,promoting commC'lrce; and, by the second section of railroad act of 1848, that power WaS granted to these defendant railroad companies and exercised by them. , . " N or am I unmindful of the case of Wabash R. Co. v. City of Defiance, 52 Obio St. 262, 40 N. E. 89., ConfC'lssedly, that case was dealing only with a right acquired under, Rev. St. Ohio, § 3284, corresponding with section 15 of the act ,of 1848, and all it says about Rev. St. ,Ohio, § 3283, corresponding with section 11 of the act of: 1848, was obiter. Under a different constitution, a different railroad act, and modern legislation, itb-olds in, favor of thepla,intiff as to the construction of Rev. St. Ohio, § 3283, perhaps.' I do not inquire whether ,the constitutionof 1851,and ,the railro::j.d and corpol,'ation legislationj would justiundC'll' the constitution of 1802, and the fy .any different holding these two sections as legislation of 1848; for that, case the source of the railroad's andihe city's power undel,'the municipal legislation regUlating the p;ower ,of cH!es9ver its, streets, while here we are dealing with the state's, poweJ;' of eminent domain, granted to these particular, in, and regulating by the law, as it then stood, the rights under thC'lir contract of 1849. In my judgme:Qt, the Qne of ,condezp.nation and appropriation, through regulafionsof, ,staie statutes' granting the power·to the railroad J;loLone by the qity:underits powers O¥!W Of .. , Tb,e grant ofltbeuse,does n@t city,b)lt only t14rough,jt; it being olj.ly an instrumentality! like is.an instrufor the. exel.'ciseqf thejlower g!!ap.ted. 19 itJ:w,,:therailroad company from the state.. :Tpecityis:ij p\ll:.e::tgentuup trust holder of thepub}ic,.from orrpublic grounds for: ithe :use of railroadcolllpaJ,l,ies, if .it . or u,n;wisely, case may be, andi;J;:Le <Jedi.cator, or original owner 1?lls'no mpre PCiI:wel' to: restrict thestate'R d0p1:aiJl.Jhan other peaeither: by his dedication IW' ;otherwise. ..· . , : I I , : :' ': . I unmindful.,Qf tlle in. favor of: :t1}epublic, as ruledt\lli Oir:cAit J,udge Taft in 'Detroit Tbat is ,and safeguarding rule in behalf. Qf, public;. but, takiIlg of lSQ2and the railroad actoof :1848, ,striqtisltil]l.l anp tl1e rule sus; in Ohi9hllS heen cited tahl,s tbisjudgment, in. my opinion. against this construction, uIlless.tll,e Case ,be againsLit; but; for nofthinkH!is in tbe way oUhis judgJ:l1.ent, and certainly it is not and judgment.'1 " 1, j
CITY OF CLEVELAND V. CLEVELAND, C. t C. & ST. L. RY. CO.
139
With this view of the matter in litigation, I have deemed it my duty to direct a verdict, no disputed fact being involved as to theeonstructionof the contract, and it being purely a matter of law. Verdict directed accordingly. ("A")
,Contract of 1849.) This Indenture, made this thirteenth day of September, In the year 0:1' our Lord eighteen hundred andforty-nine, by and between the city of Gleveland, by It'. W. Bingham, mayor of said city, thereunto duiy authorized by resolution of the city council of said city, party of the first part, and the Cleveland. Columbull & Cincinnati Railroad Company, by John M. Woolsey, vlcepresldent thereof, thereunto duly authorized by resolution of the board of direCtors of said company, party of the second part, witnesseth: That said city of Cleveland,in consilleration of the sum, of fifteen thousand dollars, received by said eltyof said railro-ad company. in the capital stock of said company, for which a certificate for one hundred and fifty shares, of one hundred dollars each, full paid, of said stock,hath been issued to said city, the receipt Whereof is hereby acknowledged, and 'also in consideration of the coVenants of said railroad company hereinafter contained, hath granted, and by the,se presents doth grant, to said railroad company, as fully and absolutely as said city or the constltuh\d' authoritics thcreof' ha"e the power or legal authOrity so to do, the right to the fUll and perpetual use and occupancy for their railroad tracks, turnouts, engine and car and passenger hOliseS, turntables, water tracks, or stations,. aveIllies to and from the same, leaving open spaces between whe11 deemed expedient, and other. purposes con· nected With, and necessary for, the convenient use and \vorking of said road, all of Bath street, in said city of Cleveland, situate northwardly of a line drawn parallel with the southerly line of Bath street and one hundred and thirty-two feet northwardly, at right angles therefrom; excepting' and reserving' therefrom a piece or parcel bounded southerly by' the last-described line, eastwardlY by a line drawn parallel with the westerly face' of .the Stone Pier,so called, and one hundred (100) feet eastwardly therefrom, and northwardly by a line dl1awri parllJlel with' the south line of Bath street, and two hundred and eighty-two (282) feet northwardly thet'efrom, whil!h is reset'Ved for puhlic use asa part of Bath street; and also reservin'g and excepting therefrom a strip of twenty-five feet in' width bounded westerly by the west fa.ce of said pier, and eastwardly by a line parallel therewith, and twenty· five feet thereform, and extending from the northerly line of Said last-described parcel of land, along said pier, to the northwardly end thereof as it now is or may be hereafter extended; which is to be kept open as a public highway. and, shall not be obstructed by said city, or by any person or persons or company claiming through said city, or by their permission,-ro have and to hold the same to the said railroad company. its successors and assigns, upon the terms, and subject to the stipulations and conditions, following, that is to say: company shall take and hold the same subject to all legal claims, either in law or equity, of, any person or persons, company or companies; it being expressly understood that the city does not guaranty nor warrant either the t.itle or the right to occupy the same, the said railroad company to have all t11e money compensation, interest. benefits and rights which the city could in any manner· be entitled to on account thereof. Said company shall save said city harmless from all damages to persons holding any part or parts of the premises under leases from the city, conse· quent upon the taking possession of the ground so leased, or in allY way depriving them of the full enjoyment of their leasehold interests before the expiration thereof; it being understood that this indemnification is to extend to such damages only. as the city shall be legally holden to make good to the claimants thereof. All lea,ses made by the city of parts of said premises shall be assigned to said company, said to have the right to collect and receive the rents
93 FEDERAL REPORTER,
llereafter accruing, and shall pay over to said city two-thirds alall rents (:lJ},. lecte(j. all ll}lld fronting on the river, and lying between the SQuth line ot Bath and parallel therewith, and 282 feet northwardly therefrc·m, until company shall deliver to said City the possession of. said strip of 100 feet in width next to the pier hereinbefore reserved. And said company shall not renew or extend said leases, nor grant any new lease, of any part of the premises, which will interfere with the opening of Bath street to the width of 132 feet, or of the extension thereof on and near the stone pier, as hereinbefore described, . 1;he s;tid., CQill,PanY shall not lease any part of the premises to. any person 0,1' persons,' company or companies, to be used for conducting. or carrying on forwardlng,storage, or commission business, or for the erection of warehouses thereon for the acCommodation of such business; nor shall said company lise said premises, or any part thereof, for the purpose of engaging in, accommodating, or aiding In thetrailsaction of.. forwarding, commission, or warehou'sing business, withlLvlew, either directly or indirectly, of deriving profit therefrom, nor Shall they grant the right to any railroad company, person or persons, or other. company, or companies, so to do, But this prohibition shall not be construe<:l to prevent said railroad company from erecting on, fiald· premises a suitable warehouse or warehouses for the reception and saie-keeplng of such articles of property as may be Intrusted to their care for transportation,. and not consigned to any person or persons Qr company in Cleveland having the means of storing the same; it being the object and intent of the parties to this agreement to provide that said premises shall not be so used as to interfere or come into competition with Individuals, companies, or firms engaged· in forwarding, commission, storage, or .warehousing business in Cleveland, by /:1arrying on or engaging in by said company, accommodating, .01' aiding .In forwarding, commission, storage, warehousing, or other business not necessary to secure the transportation of property ,over their road, but may be used by said company for all purposes llecessary for the convenient and profitable working of their road, subject to the restrictions aforesaid,' . . . f, Said company .to take and hold said land subject to all the legal rights claims. of the Cleveland & Pittsburgh Railroad Company upon the same, and to have all the benefits to accrue from such claimants, as is before provided; an<:l, as a further prov:ifiion for the same, shall, upon reasonable and equitable terms, .extend to said: Cleveland &. Pittsburgh Railroad Company and the Cleveland, . Painesville & Ashtabula Railroad Company room for warehouse and passenger depots, and such faciIltiee f()r coming on to said premises with their cars, engines, and tenderS, for the reception and delivery of passengers, .baggage, .and freight, subject to the same restrictions, as to warehousing, forwarding, and commission business, as are herein imposed upon the Cleveland, Columbus & Cincinnati Railroad Company, and for transferring them to, or receiVing them from, other railroads, or from steamboats, either by independent tracks, or by the use of the tracks laid by the qJleveland, Columbus & Cincinnati Railroad Company, as shall be found most co.nyenient to all concerned; and in case the parties cannot agree, either as to the terms or manner of occupying such part of the premises as may be so . required, same shall .be determined by three competent disinterested men, one to be chosen by each partJ', and the third by the two so chosen; it however, understood that the Cleveland, Columbus & Cincinnati Railroad, Oompany shall not be bound to permit either of said railroad companie" to use for car, engine, or warehouse, or grounds on which to place or dispose of cars, engines, tenders, 01' other furniture of· their roads, any part of said premises which said arbitrators shall decide Is necessary for those purposes, to be used exclusively by said Cleveland, Columbus & Cincinnati Railroad Oompany; it being further understood'and agreed that no part of said preIPises shall, after two years from this date, be used by said Cleveland, 09lumblls & Cincinnati Railroad Company for forges, furnaces, workshops,' of a similar character, for the manufacture of engines, or uther machinery, so as to deprive either of said other railroad companies of full benefit of the use of part of said premises intended by this agreement tlt,:be extended to them. .! .
141
Said Cleveland, Columbus & Cincinnati Railroad Company shall manage and take care of all suits or actions now pending, or which may hereafter be commenced, for obta.ining possession of said premises, or any part thereof, and may compromise or settle such suits; and said company shall save said city harmless from all costs and charges on account thereof, except such as have already accrued against the city, and, in case of settlement, shall save the city harmless from all legal costs in the case In court In bank, except the costs made by the city; .and shall further save the city harmless from all legal claims or demands which are now or may hereafter be set up against the city, growing out of the use or occupati()n of said premises by said city, or its tenants or lessees; and to enable sai<1 company to compromise and settle with the claimants Lloyd & Camp and all other claimants for the extin· g'uishment of their claims' to said premises, or any part thereof, they may allow them to retain such portion thereof as may be necessary to effect such settlement, and as shall not be deemed necessary to be used for railroad pur· poses. And the said Cleveland, Columbus & Cincinnati Railroad Company doth hereby covenant and agree, to and with said city, that said company will hold said premises upon the terms, and subject to the stipulations and conditions, herein recited, and will do and perform all and singular the acts required, and abstain from doing and performing all and singular the acts pro. hibited, by the terms and stipulations herein recited. In witness whereof the city council of the said city of Cleveland have caused to be hereunto affixed the seal of said city, and these presents to be subscribed by the mayor thereof. And the Cleveland, Columbus & Cincinnati Railroad Company have caused to be hereunto aflixed their corporate seal, and these presents' to be subscribed by their vice president, the day and year first above written. . [Seal of the City of Cleve" The City of Cleveland, By Flavel W. Bingham, Mayor. land, Ohio.] The Cleveland, Columbus & Cincinnati [Seal of the Cleveland, Columbus & Cincinnati Railroad Company, R.ailroad Company.] By John M. Woolsey, Vice President. Signed, sealed, and delivered (the words "Artred Kelley," in the 6th line of 1st page, being first erased, and the words "John )f. 'Voolsey, vice," interlined above such erasure; also the word "vice" being first interlined above the second line from the bottom of the last page) in presence of Jas. D. Cleveland, D. W. Crop. State of Ohio, Cuyahoga County, ss.: Before me, Jas. D. Cleveland, a justice of the peace in and for said county, personally appeared the within named John M. Woolsey, as vice president of the Cleveland, Columbus & Cincinnati Railroad Company, and lnavel W. Bingham, as mayor of the city of Cleveland, and severally acknowledged the signing and sealing of the within instrument to be their several voluntary act and deed, for the purposes therein expressed, this 14th day of September, 1849. Jas. D. Cleveland, Justice of the Peace. Indorsed: The City of Cleveland to The Clevd., Col. & Cint!. R. Rd. Co. Deed of Land in Cleveland-Bath St. I Received July 1, 1851, and recorded July 7, 1851, in Cuyahoga County Records, Vol. 51, pages 187-8--9--90. John Packard, Dep. Recorder. Supposed to be property listed July 2, 1851. A. Clark, Auditor. Cuyahoga County, Ohio, Title File 12. Main Line, Cleveland Division, C., C., C. & St. L. Hy. .
("B")
(From Answer in Holmes v. Railroad Co.) And tbis defendant [the Cleveland, Columbus & Cincinnati Railroad Company], further answering, says that, for the purposes and in the manner
142 i
,'
93 FEDERAL ni!:poRTER:
hereinafter stated\and llnderalegalautl1brity so fa" dO,deI'ived from the source and in the mannerhe1'einafterset' and not otherwise, this defendant, 'istin the jointoccupltncy, with the saId. Oleveland, Painesville & Ashtabula Railroad OlJ1ilpaily,orso much bt'the premises mentionedlri said bill, and embraced between water street,' extendedim the east tothllsaid governmentpier'<m the west, thenortherlylille of thepremises in said biUmentioned on the north, ail.d (ll!, line drawn 'parallel with, and one hundred andthirty·two'feet,northerty said northerly line of origlna1'lot number one hundred and ninety-one,on the S6uth, all 'on the diagram hereto attached as Exhibit A, and made"a''!?art of this' IS colored a straweolor;:together with the tracks therMn lines; Which diagram, this avers, Isa' true'. Showing the lands embraced in silid Bath ,street, at the time this defendant took' possession of the same, and lying sotlthe.fIy of low-watefrp:ark,-the water line or lowwater mark in said· lake at the 'time possessioh' was so taken,-the piling and planking that has since been done by. It1 the said Cleveland, Painesville & Ashtabula Railroad OompanY,and the Clevelllnd & Pittsburgh Railroad Oompany, northe'l'1y <i,f,said "'ater' line, and fhe' structures which have by them, respectively, been etected ,on tlie'Mme, asextendeil by such: piling and plankIng. And this defendant,'further' answ!lrillg, sb much of said premises as lies northetly of said ma:r;k; neither,. tIle. said Connecticut Land Company, nor said trUsteeS; nor theW 'heirs' or assl'gns;nor the assigns of any: or either of them; ever 11M, Of nOw till\te or has, !illy title whatever, and that the tlUet6 the same, both legallj.uil eq'uitable, 'and'the sole control thin'eof, lIave at tl:lltimes been, 'and stlll 'are, ,in sitld: 'city of Cleveland, or In thepublic;ror of iheipubllc.'" And this defendant; further answering,'deiliesthat it occupies, or claims to occupy, the aforesaid parcels, throughol: under,In anY' manner, the said IQrthe 6ther heirs. at laW ofsnid .Tllomas William B. LI?yd,C!J," Lloyd, or .0.1'. "S.lj.lid Tho:lilas.Lloyd hI.m.S.,el,.f,., or. unde,r or,. by ..... virtue ofttie quitclaim deedtb' 'said Thomas frQm said trustees, or. that this defendant now holds,' dtIJ"er held,any title or'lnMrest whatever in said ·pnrcel of land;', in:' trust 'I complainants, or anybr ieither of them, or >that hasreceive¢ :a.lar;ge aDlountof rents and issues from said ,11lnQ, Ils.,:aHeged;Jo' said bilLoi' complaint. But this defendant admits has at ,all times4itherto refused, to recognize said /U,ly.legal <n""equ!table title whatever In said parcels, or either of them, and that it has at all tjmes' refused, and still does refuse, to account in any manner to complainants for the.: use of said parcels,qr eit):ler of them., ",:",' . ' ,'. """, " ., this defenjlllIlt,. further a,nswerIl1g, says that as .early, as' th,e year 1796 the said CoriqectlcutLand Company, being desirous of a city on the W0stern Reserve/'at the,mouth 9f':the said. Cuyahoga:. ',river, aUdon the easterly sidE! theri:!bf, caused the nqrthwesterl1lJortion Of the lands upon which the s3:lil,city of ,Cle-v:eland Ie n6W.$ltul\ted, t:jy, Pease and Augustus P6rter, surveyors of said compa,ny, agents thereof, for such purpose, to be surveyed and laid> off Into town lots, streets, lanes, and public grounds, and the fown so surveyed"and laid out so to be named '''rhe City of CIC:)veland," and orplatthereof1 and minutes of such survey, to be made by said Pease and Porter clllled the map and minutes of Pease and Porter), particularly setting forth the lots; streets, lanes, and pubUc grounds, and describing the '. sanxe by courses, boundaries, and extent, a copy of which map and minutes is hereto' attached, marked "B" and madea:paJ,"t o,f thjs answer" That upon ,said Wap sai<j. .:ompany caused the lots so laid 011' to be numbered progressively from one to two hundred and tWl1nty, -inclusive, and ali thela'nds described In :s'll.id bill of complitint lying west of the west line of 'Water street, and north of the north .line of lot number 191, and of the said Cuyahoga river, and eouth of the waters of Lake Erie, as indicated on said map;' to be laid off as public ground, and h{lying. n.l;l" 9t1lerr north!lJ:')y desigllilted as "Ba,th, than the waters ofsalC} lake);' Sind company infend1ng' thereby to gIve, and in fact glvingthere<bY,and dedicating to the);)ublic; all ,the ,lands so· designated upon said map ae "Bath Street," for the purposes of a' public street or
CITY
CLEVELAND V. CLEVELAND,C., C. & ST. L. RY. CO.
143
way communicating with'the navigable waters of Lake Erie and said river, and for such other commercial purposes as the commerce and well-being of the future inhabitants of such city of Cleveland might require a public ground, situate as Bath street was and is, in reference to said lake and rIver, to be used. That, in the year A. D. 1801, said Connecticut Land Company, by one Amos Spafford, a surveyor and authorized agent of said company, for such purposes, caused the streets, lanes, and pUblic grounds of the said city of Cleveland, surveyed and platted as aforesaid in 1796 and '7, to be resurveyed, and minutes thereof to be retaken, and a second plat to be made of the lots, streets, lanes, and public grOUJ1ds in such city (Which was and is substantially a copy of the aforesaid map of Pease & Porter), commonly called the plat and minutes of Amos Spafford of the city of Cleveland, a copy of which plat and minutes' is hereto attached, and marked "C," and made a part of this answer, and that upon said last-mentioned plat (as upon the plat of Said Pease & Porter) said company again caused all the lands lying we"st of the west line of said Water street, and north of the north line of said lot No. 191 and the Cuyahoga river, and south of the waters of Lake Erie, to be designated as "Bath Street"; thereby affirming the dedication and appropriation of the same, made as aforesaid in the year 1796, to the public, for the purposes aforesaid. And this defendant, further answering, says that said Connecticut Land Company, having aIlotted and platted the said city of Cleveland as aforesaid, proceeded to sell the lots designated in said plats in reference thereto, and long since sold out, and otherwise disposed of, the lots in said plats, and ceased to have any interest therein. That the' trustees of said company long since executed conveyances or the same to the purch'asers thereof, and distinctly recognized the existence and validity of the survey and plat of said Spafford in their conveyances of the lots contiguous to said Bath street. That the purchasers of said lots took possession of the same, and made valuable improvements thereon, in reference to said plat and said Bath street; and they and their assigns have ever since, for a period of more than a half centurY,occupied and improved said lots" arid still do occupy and enjoy the same, in' reference to said plat. Thatfl'om the making of the said Spaffor\l map, as aforesaid, until the present time, said 'land company and their assigns, so long as they continued to have any' interest in! the Lilnds (embraced in said plat, and the inhabitants of' said, city of Cleveland, have at all times recognlzed,alid still do recognize, the' 'plats of said Spafford and Pease and Porter as trolling evidence of the boUndaries of lots,streets, lanes, and public grounds designated therein. And this defendant, answering, says that, in obedience to the requirements of an act of the legislature 'of the territO'I'Y' northwest of the Ohio, paSsed December sixth, A; D;18oo, entitled "An act to provide for the recording of town' p1ats," etc;. to' be found 'in 1 Chase's Ohio 'Sit. p. 291, c."iSO, and which is made a part ofihis answer, said 'land company caused the map and minutes of said Spaffor.d," as It had' before caused those of said Pease and Porter, to be deposited 'in' the 'office of the recorder of' the said county of Trumbull (in which county the lands described in said plat were then situate) for, record, and the same,' as, this defendant, has been informed and beliaves to be true, were,on or about the 15th, day of February, A. D. 1802,' duly r-ecorded by the, 'recorder of said county, although the record of said ,map has 'long since been accidentaUy lost or destroyed, and cannot be found: ' , And this defendant, further answering, says that,as early as the year A. D. 1800, said Bath' street, as delineated on the plat of said' Spatrord, bav· ingfor its northern boundary the waters of Lake Erie, as aforesaid, with the free knowledge and 'consent of said land company, was opened, occupied, and traveled as a public street or way, and from thencehithert<l, with the full knowledge' and uninterrupted acquiescence of said company, the trustees thereof, and their respective heirs and assigns, it has been at all times, regarded, used" and' occupied by the inhabitants of said cIty, of Cleveland, and the public generally, without molestation, not only as a public way in said city communicating with said lake and river, but also (and or late years extensively so) as a quay or public landing for persons and property transported, "and to be transported, upon the waters of Lake Erie, and still
regarded, used, and occupied- bYitPe"lnhabitants of !laid, city; and more, than a quarter, of a celllury p1;ior to the year ,)827, When JhE! 1!lRi,d Ii.ver, the map of Baid Spafford, WllB,ChllJ1gEjd to S,tates government, said Bath street ,was the only, public waY used; or whicl1 could be used, by the in4al;lltantB of said the public, fol', the transportation of persons or or'p;l'opel'ty, by veb.icles, of ,any description, to I'll,' from said lake or river. - And. t4is ,defendant, f:urther .answering, saYs that; by an act of the general assemblYQf the .s,tatcot,OIl/o ,entitled ".,'\nllct to incorporate the village of Clev:elll-nd,lnthe county of,Cuyahoga," passed,December A. D. 1814, and is to, be in volume 13, p. 17, of the laws of, said state, and which is made. part. :0£ this answel,', " so much of, the plat' of said Spafford as lies northerly cot H]lron street w,as erected ,into- a village, corporate, to be known bythena;me,of "The Village of ,Clevelalll;l,"and the corporation thus created invested withtl;le powers therein mentioned, wb.ich corporation continued to exist untiIsuperseded. as hereinafter stated. That by another of the same general assembly, entitled "An act to ,incorporate the ,city of Cleveland, in the, CQuut:v of Cuyahoga,'! passed }farch 5, A, D. 1836, and to be found in volume 34; p. 271, of the Local Laws of said ,state, and which is also made part of this answer, all the lands embraced in the plat of said Spafford lying eastwardly,ofthe, present c.hannel of the Cuyahoga river, together with additio;nal territory, waB declared to be a city, and the inhabitants thereof created a bodYCQrporate and politic;by the name and style of the "City of Cleveland," and invested wlthsuch pOwE!r!> and trusts touching the streets, alleys, public grounds, 'and harbor within the corporate limits thereof as are specified in said actj',which powers and trusts have fromfuence hitherto been, and still are, exerclsed and executed by said corporatioI), and that said Bath street at all times siJ;l:ce· the passage of said acts of incorporation, respectively, with the knowledge ,and acquiescenCll of said land company, its trustees, and their heirs and assigns, has been claimed, regarded,controlled, and regulated" by the inhabitants and .corporate authorities of said village and city as one of the streets and public grounds thereof,and ,still is so claimed, regarded, and governed by the corporate ll-llthorities of the said city of Cleveland, !lJld the use of the same, as such, has ,:n-ever been in any wise vacated or ,abandoned by said city o!-"Jts inhabitants; ,and this defendant avers that by reason of the premises aforesaid said Bath street is in fact one of the public streets and grQt!nds of said city; that the legal title thereof, as this defendant, IS advised by couusel learned in the law, is now vested either in the said city of Cleveland or the public, in trust for the uses and purposes intended aforesaid bys,aid Gonnectiemt La.nd Company in dedicating the same as. afo:resaidw thepubllc,and that the pUblic h8$ the right to use the same for suchpurp<>ses .without molestation llrom complainlj.nts. And tbls defendant. further answering; says that, after the channel of the CuyahQgariver, as delineated 'on the plat of. said Spafford, was changed to its present location, as aforesaid, tt.e government of the United States, on the easterly thereof, at its mouth (to render said river accessible to water craft :Lake Erie), ·constructed permanent improvements, extending into said,jlake'more than a quarter of a mile from the northerly or water line of said street, as· it was when ,said channel was changed. That, by reason oflillUd, iDlprovements and lesser ones made by the inhabitants and corporate autholtties of said city at great expense, the encroachment· of said lake upon said Ba,thstreet, which at times had threatened wholly to submerge the easterly portiQn thereof,at and in the Vicinity· of said Water street,_ and render, the same useless for the purposes to ,whiQh it was dedicated as aforesaid, hay,e been stopped, and that part of said Bath street easterly of, at and in the vicinity, ,of, the, east pier of said rIver,. has been increased ,in Width, by slow and -imIl,':rceptible alluvial formatlon, so. that! the greater p<>rtion of the land eIrihrllced. between the soutl;lerIy line of said, Bath street and said water line klW'-W;ater mark, as the, same was When this defendant took possession 0f:sllidpreroises" has ,.been fomned by accretion, and lies northerly of the of said ,street as.it was when said channel was ,changed; and that, notwithstanding said Batll street.has"increued in width, the rapid growth 41)1' the said city of Oleveland·.an<l the incessant and increasing wants of its
CITY OF
V. CLEVELAND, C., C. & ST. L. RY. CO.
14.5
commerce,and of its inhabitants, more than keep pace with the increase of said street,and imperatively require every part and parcel thereof, enlarged as it is, to be used for the commercial purposes, to which it was devoted as aforesaid, by the original proprietors of said '''estern Reserve, and will ever require the same, however much it may be enlarged by the means aforesaid, to be thus used and appropriated. And this defendant, further answering, says that it is a body politic and cOl'lJorate, dUly organized under, and created by, an act of the legislature of the state of Ohio passed March 14, 1830, "An act to Incorporate the Cleveland, Columbus & Cincinnati Railroad Company," and under and by virtue of another act of said legislature passed March 12, 1845, entitled "An act to revive the act entitled 'An act to Incorporate the Cleveland, Columbus & Cincinnati Railroad Company,'" and under and by virtue of the several acts of said legislature amendatory and supplementary thereto, and under and by virtue of certain sections of the act of said legislatnre passed February 11, 1848, entitled "An act regulating railroad companies," especially the eleventh section of the last-named act, which sections were duly adopted by this defendant as a part of its charter on the 20th day of 1848; all which acts and parts of acts -are made part of this answer. And this defendant further avers that it has been such body politic and corporate for more than six years last past, and that, under and by virtue of the power conferred upon it by said acts and parts of acts, this defendant has constructed, and is now successfnlly operating, a railroad extending from the grounds so in Its occupation, In said Bath street, in the city of Cleveland, to the city of Columbus, in the count3' of Franklin, in said state, to the great advantage of the public at large, and especially of the inhabitants of the said city of Cleveland, and to fUlly secure to the pUblic the benefits contemplated in the charter of this defendant in the working of said railway; it being necessary to connect the same with the waters of said lake and river, within the limits of said Bath street, for the delivery of freight and passengers, and the exchange of freight and passengers with other roads, and with water craft naVigating said lake and river, and the same being also a suitable place for the terminus of said railway within said city, this defendant, under a license obtained from said city of Cleveland on the 13th day of September, A. D. 1849, has laid down, In a proper manner and not otherwise, its railway tracks upon said Bath street, as shown In said diagram, and In such manner as to connect its said railway with llie waters of said lake and river, and this defendant is now, and for some time past has been, running its railway carriages, In connection with said Cleveland, Painesville & Ashtabula Railroad Company, upon the tracks so laid down to and from said river and lake, for the purposes aforesaid, in a prudent manner, at reasonable times, and so as to work no Inconvenience to other legitimate uses of said street. And this defendant, further answering, says that, to make said exchange with a due regard to the safety of persons and property, It was Indisputably necessary to provide suitable railway fixtures and Improvements upon some part of said Bath street, and that for such purposes, and for such purposes only, this defendant, willi the consent of said city of Cleveland, and In conjunction with said Cleveland, Painesville & Ashtabula Railroad Company, has also constructed, and is now using and maintaining, in a reasonable manner, the structures for depots, engine houses, and ollier railway fixtures indicated on said diagram as In llie joint possession· of this and the lastnamed company, all which are necessary to the convenient management of the said road. And this defendant, further answering, says that the harbor accommodation afforded by said river being inadequate to the commercial wants of the inhabitants of the said city of Cleveland, and the channel of said river contiguous to said Bath street being also too small and otherwise Insufficient to admit of the safe and convenient Ingress and egress to and from the same of the largest class of water craft naVigating said lake, to effect, conveniently and safely, exchanges of passengers and freights with such craft, it was necessary for lliis defendant, and the said Cleveland, Painesville & Ashtabula Railroad Company, to connect, in a suitable manner, and to a depth of water sufficient for the safe approach thereto of such craft, a wharf upon 93 F.-'-10
146
98.:rEPERAL REPORTER.
that portion of. the premises embraced in said diagram, and lying .northerly of the: water line or low-water mark between said Bath street:andJlaid la:ke, and, .thereon shown to be in the joint possession of this .and the :last-naIUed company, and in connettion with said last-named company lthas",CiOXUltructed suck wharf, and: laid down thereon the tracks. and erected tbe. other structures shown on said diagram; and this defendant, in connection with said Oleveland, & Ashtabula Railroad Oompany, is now, and.. for some time past has been, for the purpose .of making such exchanges, working in a prudent manner,. and without inconvenience to the public, its railway carupon said tracks, and this defendant, when necessary so to do, .has also used portions Of said wbarf as apll:l£e of temporary deposit for property awaiting. transportation,. And this defendant submits and insists that it has the right, as,a component part of the public, to occupy, with the consent of said city, said B.ath street, in the manner and for the, purposes aforesaid; that such are a g.reat public accommodation, and not incompatible with the purposes intended by said Oonnecticut.Land Oompany in dedicating the same to the public' as, aforesaid. but oonsistent therewith; and that the city of Cleveland, ,in permitting this . defendant thus to use a limited portion of said street, and thereby distributing its legitimate use ISO as· to best subserve the convenience and ,business ·interest of its inhabitants .and the rest of the public,has committed no breach of trust,' nor violated any public or privatf' right, but performed, rather, a 'duty which is owed as well to the .forecast of said land company as to the public, And this defendant, further answering, SUbmits, iflt is mistaken in the opinion hereinbefore expressed. that tbe legal title of said Bath street is now vested in said .city olCleveland, or in the public in trust for the inhabitants of said city, and the same is in, fact held by said Lloyd, or "his assigns, or the heirs of the survivor of s.aid'trustees, that the parties' who hold the same, whoever they maybe, have no beneficial interest in said street, and hold the legal tItle thereof ill trust· for the uses and purposes intended by said land company :In dedicating the same to the public as aforesaid, and ought not to be permitted, in a· court of equity, to disturb or molest this defendant or the restof,the:public in the legitimate use of, the sa·me.
.; ,
:&. 'That, af;ter',the ,location. of,: :the railroad,: 'from. Columbus ,tG Cleveland, It became 'necessaryj':in the ,theFdJrecto'l.'s, to obtain the ",bole of the traot·of land Street," and they made a formal appropriatiollof the same by resalution ..on.the· :l8th of September, 1848, The entire title of thaLtract was in:volved in, a controversy ,between· the citydof. Oleveland and Camp & Lloyd...Tbatsqi1l.was then.depending for' the possession.o! said premises.. already been 4eoided against the' city, and wasthen in, ,the ,supreme .COu,rti of, Ohio' exceptions to' -thE! judgment of the lIDurLof .That the opinions, not .only of people generally. butalso:ofi':men.f:tu'ofessing .,to:.tlnderstand.the legal questi<)lls involved in the controversYj idj£l'ered, sOf.much ·as to the probable' result that it was impossible tll :anticipate tile: eVfent.·Thatit, :was and; wish. of. the respondent to .get clelW. otallcllutrover"jes,;!.whether .legal, orotMrwise, and'for that veason this respondent was' UD.'willingoo·bav:e saidcoIllpany obtain possession of said property by the power given them by their charter, but proposed and believed it tobe.f.Or theand all parties, having any interest. in, said property" 00 "make" alll ajDicablearrangement,' by which the :said 'company might be invested witlL·au tbe, rights iof this respondent In lIaid,property.,Upon.thesevlews" this 'l'espondentbeing,coIllpelled·to :tmllS-to said company ,said propertY,andpreferrlng to do so ,under a'negoUatlon. than to. :have it taken [under and. by virtue of: said company's charter appropriation; and, desiJl\)USi of', avoiding all controversy' with said company, for the. conveniencEHlnd'ndvantage of this. respondent the said negotiations and.lcontract. were ,made between said company and respondent: but this. respondent .has .ill 110 instance had the wish or purpose of ,obtaining
and
CITY OF CLEVELAND V. CLEVELAND, C., C.'& ST. L. RY. CO.
147
any unfair or diShonest or fraudulentadvant'ige-of said complainants, or of allY other party or person haVing a claim or interest in said premises, or any part toeteof, nor has said company, so far as resp'ondeIit knows or believes, be·en .gl'iIHY"bf any act of bad faith or Injustice to,vards any person or parti Intrusted in said premises, or any portion thereof. ,. Hespondent admits It to be true that, by the termS of the contracts between the city of Cleveland'andsaidcompany made on the 13th day of September, 1849, as aforesaid, said company<tookthe Interest of, the said city in the said Bath i!ltreet property, subject to 'all the rights and privileges of all other persons which woul('1 be:legaily 'enforced against the property had the city continued to hold the same, and also assumed all the legal IIabilities to other persons which rested on the city in the relation to said property, up to that time; but this respondent utterly denies that the city or said company, or the assignees In the premises, was or ever could become liable to the complainants or other lessees of said premises on account of any failure of title In the city. And this respondent, further answering, says that smd city, in the leases now held or clAimed by the complainants, as, well as In aU other leases granted by her on Bath street,guarded herself' in the strictest manner against any Implied ' liability to guarantY the possession of the lots leased, and provided that an eviction of the lessee should merely stop rents, but that said city should not be IIable to pay any damages. Hespondent, further answering, admits It to he trtlethat jUdgment was rendered in the court of commoilpleas in favor of said Camp & Lloyd' in the suits embracing the premises claimed by the com-, plainants, in pursuance Of the agreement made by said company with said Camp ,& Lloyd on the said 8th day of August, A. D. 1849, as aforesaid, not because the' contests of the suits was given said company, as alleged iIi the bill, but because 'said company, as this respondent is informed and believes, having succeeded to the rights of the city asliJ'oresnld, .and having by said agreement 'with said Camp & Lloyd compromised all matters in controversy, ceased' to make a further defense to said' snit, and 'permitted judgment to be entered. And this respondent Is informed and believes tl1at said compromise' was a fair. and reasonable one, andsucb as said company was freely justified in making: " That there' was nothing intbe relation Which 'had' previously existed betWeen, 'the. said citY' and' the complainants which required the city"while holding its original interest against said company after the contract of the 13th of September, 1849, to persist in maintaining a series Of doubtful and expensive lawsuits, when a peaceable compromise of the same would be made. Hespondent, further, is informed and believes, that, in makIng the same compromise, the railroad company obtained from said Camp & Lloyd the bestterrnswbich they would be induced to grant, and so far as these terms seemed to I:'aid company the rights which said city has previously claimed. Respondent is ':'informed and believes that it wIII furnish to the various lessees a full protection against the reverse claim of said Camp & Lloyd, and protect them In their several leases, so far as they themselves have performed their covenants in the same. But this respondent Is informed and believes that, by the terms of said cpmpromise, said company failed to obtain any Interest in, or control over, any part or portion of the premises claimed by the complainants, except a small part in the lots 6 and 7, and that said comp'any disclaims any interest in or under it over the residue of the lots claimed by said complainants., ' L
(''D'1 RAILROADS.
An Act Regulating Railroad Companies. (passed February 11, 1848. 46 Ohio Laws, p. 40.) Sec. 12. Said corpqration shall be authorized to construct and maintain a raDroad, 'with ,3. single or dC?;llble track, with SUch side tracks, turnouts, offices and depots as they may' deem between the points named in the special act the same" commencing at, or, within, alid extt)nding to 0:1' ' 1mo arlytown, city or village named as the place of beginning, 01" tel'·
93 FBlDl1JRAL REPORTER.
mlqU8 I!u,cb road, and conatruct branches from the maIn Une to other toWWl orJ>lace,l limits o(any county through which said road may pass. Sec. 11. It,itshall be necessary In the location of any part of any railroad to occupy any ..road, street, alley or public way orgrO\lnd Of any kind, Ol" any part thereot, It.shall be competent for the munlcipll1' or other corporation or public otIicers"or public authorIties, owning or having charge thereof, and the railroad company to agree upon the manner, and·. 'Ilpon t)le terms and COnditipns upon whIch the same may be used or If sald parties Shall be to agree thereon, and It shall be necessary .In the judgment of the directors.of such ral1road company, to use or. occupy such road, street, alley, or other publle way or ground, .such company may apply to the court of common pleas of the county In which the same Is sltu;ate, setting forth the aforesaId facts, and said court' shall thereupon appoint at least three judicious disinterested'freeholders of the county, who, shall procee.d to determine whether such occupation is necessary, and If necellsary, the manner and terms upon whIch' the same shall be USl'!d, and make return of their doIngs In the premises to sald COllrt,· who If they deem the same just and prol?llri make the necessa;y, order to carry the same Into etTect, or they may order a ,revIew of the SlIJlle, U luch court may consIder justice and the . public interest require. Sec. 14. Such company Ipay acquire, by purchase or gift, any lands In the vIcinIty of Sald ro.ad, or through whIch. the Same may pass, so far as may be deemed convenient or necessary by saId company to secure the right of way, or SUCh as may be granted ald In Ule construction of SUCh road or be given by way of subscrIption to the capItal. stock, and the same to hold or convey In. sllch manner as the directors may prescribe; and all dl!8da and conveyances made by such company shall be Iligned by the presldent,under the seal of the corporation; and 8I\Y,exlstlrig .railroad corporation may accept the provIsions of tb,is section, thetf!.'I'e .preceding sections of this act, or eIther of all conflIcting provIsions of their respective them" ,and .l1.fter charters ahall, be null and voId. See. lei. Jt shall be lawfUl tor sucbcorporatIon, whenever It may be necelisa,ry. InAhe . uc.tlon f.. roa.d... to cross any rOad. or stream.. of water, or to, divert. .same frOID, its present location or bed; but sald .corporation place such road or stream msuch condishall, wIthout. tion a.. not, tollnpalr Its fo-rmer usefulness.' 0.
CONVERSEv. KNIGHTS TEMPLARS' & MASONS' LIFE INDEMNITY CO.l (9h:cult Court of Appeals, Seventh CIrcuit. July 26, 1898.) No. 478 L INSURANCE.- PLACES OF,' PROHmITED RESIDENCE -
Joum.EY.
permitted to travel through sectIons of country where resIdence Is pro1ll6Itea is not requIred to make a continuous journey In order not to 'VIolate, thepollcY1 )b\lt Is entItled to make reasonable stops for purposes consistent wIth tlie' character of a traveler; and, If Sickness and death Interrupt hIs travel In such locality, the policy Is not Invalidated.
.', .
TRAVEL -
CONTINUOUB
9. SA1>:1E- POLICy-CONSTRUCTION-EvIDENCE.
A pollcy permitting resIdence In prescrIbed localitIes during the entire year prohIbited residence In the Western hemIsphere south of the thirty-second parallel between July and November of each year, but authorized assured "to pas!,! as a passenger, by the usual routes of publIc conveyance, ·W and from any port or place wIthIn the foregoIng lImIts; but, If he should · ·.· pass beyond or be wIthout the foregoing limIts," . ,the' WHcy should be voId.. Assured thereafter ,obtalned permIslion to reslQ.e In the pIne regions south lof the thirty-second parallel at all seasons. On one occasIon, he went. from L., within. such regions, to N., a place lit 'prohibited residence, to consult a physIcIan, and on the same da,1 tp Lo, and later started for hla home by the WlwU route, b7
:&
Rehearing denIed October 8, 1898.