Fremont Ferry & Bridge Co. v. Board of County Commissioners

Gantt, J. The material allegations in the pleadings in this case are substantially as follows: The plaintiff was incorporated by act of February 18, 1867, as the “ Fremont Ferry and Bridge Company,” with the exclusive privilege to establish and keep a ferry and bridge across [24] the Platte river, at any point in township seventeen north, of range eight east of the sixth principal meridian, in the county of Dodge. The corporation established a ferry within the time required by the act, and it is alleged that within two years past the plaintiff expended large sums of money in the erection of a wagon bridge across said river; that the defendants threaten and are about to erect a wagon bridge across said river within the limits of its franchise, which will lessen the value of said franchise and take away from the plaintiffs a large amount of tolls which it otherwise would receive; and therefore prays an injunction restraining the defendants from building such bridge. ■ In their answer the defendants aver that on the eighth day of October, 1870, a proposition was, according to law, submitted to the votei’s of Eremont precinct, in said county, at a special election, to vote bonds of said precinct to the extent of fifty thousand dollars, to construct a wagon bridge across the Platte river in said precinct; that the proposition received a majority of all the votes cast at such election; that the bonds were issued and disposed of, and with the proceeds thereof, a wagon 'bridge within said precinct, across said river, was constructed and completed in the spring of 1871; that at the time the proposition was submitted and voted upon, all the stockholders, directors, and owners of said ferry and bridge franchise were residents and voters of said precinct; that the plaintiff had full knowledge of the submission of the proposition to issue the bonds of the precinct and of the result of the vote thereupon, and also had full knowledge of the advertising for bids and’of the erection of the said bridge; that the plaintiff, its' directors, and all the stockholders acquiesced and consented to the same. It is further averred that in the spring of 1874 a portion of said [25] bridge was destroyed, and that the plaintiff, by agreement with the defendants, assisted to repair the same, paying one-half of the expense of snch repairs and receiving one-half of the proceeds arising from said bridge; that in the spring of 1876, a part of the said bridge was again destroyed, and that the only threats or acts complained of are those of repairing the said injury to said bridge so that the same may be fit for the use of the public. To this answer the plaintiff interposed a general demurrer, which was sustained, and the injunction was made perpetual. The case is brought here upon appeal. Several questions were raised upon the argument of the cause, but we think the whole case, as presented for our consideration upon the issues raised by the pleadings, may be resolved into this one question: "Whether the plaintiff, by its own conduct and .acts, as set forth in the answer, is estopped from denying the defendants’ right to repair and continue the use of the bridge erected bythem in the spring of 1871. Perhaps an injunction to enjoin the building of the bridge in 1871 might have been properly granted if it had been applied for when the plaintiff first knew that steps were being taken to vote the bonds and construct the bridge. The omission to do so then was an implied assent to the erection of the bridge by the defendants for public use. The silence of the plaintiff when knowing its own rights, and having full knowledge of the steps taken by the defendants to build the bridge, will estop it after the completion of the work, or after large expenditures of money in its construction had been made; for such silence lulls to rest instead of warning to danger, and in the language of the books, it becomes a fraud. It is said that such silence, though negative in form, is operative in effect, and becomes suggestive in the seeming security it leads [26] to. But the case does not, however, depend merely upon an implied assent on the part of the plaintiff, for the answer distinctly avers that the plaintiff, its directors, and all the stockholders acquiesced and assented to the erection of the bridge by defendants, and the truth of this allegation is fully admitted by the demurrer. This assent to the erection of the bridge, either by silence or by express consent, constitutes an estoppel in such case. And if the plaintiff is estopped from denying the use and enjoyment of the bridge as a public way, it certainly cannot enjoin the repairing of it, when such repairs become necessary from any cause whatever. Therefore, upon the facts admitted, we think considerations of public policy as well as recognized principles of justice between the parties, will not permit the plaintiffs to controvert the defendants right to repair and enjoy the continued use of the bridge as a public way. In Goodwin v. Cincinnati & Waterville Canal Co., 18 Ohio St. 179, it is said, that “where a party stands by, as we presume the plaintiff to have done in the present case, and silently sees a public railroad constructed upon his land, it is too late for him, after the road is completed, or large sums of money have been expended on the faith of his apparent acquiescence, to seek by injunction or otherwise, to deny the railroad company the right to use the property." Pierson v. C. W. Canal Co., 2 Disney, 104. Doane v. Treasurer, etc., Wrights R., 752. Hall v. Fisher, 9 Barb., 30. Gregg v. Wells, 10 Adl. & Ellis, 90. Bigelow on Estoppel, 500. 2 Am. Lead. Cas., 571, et seq. The demurrer should have been overruled in the court below; and, therefore, it is now ordered and adjudged that the demurrer be overruled; and it is further ordered, adjudged, and decreed, that the injunction [27] granted by tbe district court be dissolved, and tbe petition of tbe plaintiff be dismissed with costs. Decree accordingly.