City of Ashland v. Northern Pacific Railway Co.

Dodge, J. This case, having been presented in two arguments, has been carefully examined and re-examined, to ascertain whether it is distinguishable from Ashland v. C. & N. W. R. Co. 105 Wis. 398, 80 N. W. 1101, so as to take it out of tbe rule established in tbat case. We find nothing of material distinction. Tbe two actions, as also another against tbe Wisconsin Central Eailway, were commenced at tbe same time, and issue joined by practically identical pleadings. Tbe alleged contract between tbe railroads and tbe city and tbe action of tbe council and the citizens with reference to tbe streets relied on by appellant are common to both actions. Tbe proof as to occupation of tbe streets and intervening blocks and expenditure of money thereon is for all legal purposes tbe same, although carried somewhat more into detail in this action. Tbe time when any of tbe acts were done or expenditures incurred with reference to dates of ordinance purporting to vacate tbe streets and tbe repeal thereof is left no less vague now than it 'was in tbe former case. Tbe proof [208] of acts by tbe citizens and. by city officers by way of insistence-upon right of passage and of - maintaining sidewalks on Fourth avenue is, if anything, stronger and more definite in this record, as also is the proof that defendant- had already established its depot and yards in their present locality before any of the acts on the part of the city council now urged as ground for belief in the abandonment of the streets. It is-also made more clearly apparent that the portion of Fourth avenue on which an engine house and certain other city offices were built — some before and some after 1887 — was not included in the vacation contract or ordinance. The only material distinction consists in that the trial court in the former case decided that facts were established to warrant a court of equity in arousing equitable estoppel, while in this case the trial court has decided the other way., In the Northwestern Case we were obliged to decide that there was a clear preponderance of evidence against such a state of facts as would justify estoppel, while in the instant case we need only to find absence of clear preponderance in favor of such state of facts. As a result of such comparison of the two cases we cannot but consider this ruled by the former, and affirm the present judgment, if the rule stare decisis is to control. Some attempt — though in justice to appellant’s counsel we must concede not a very urgent one — is made to assert that we held in the former case that the illegal action of the city council in contracting to vacate and in enacting vacating ordinance could not be given weight in deciding whether the conduct of the city and of the appellant had been such that the former must be held estopped to insist on the existence of these streets, and upon such assertion to predicate an argument against the soundness of the doctrine. We find no such position taken, as is apparent from the opinion, properly understood in the light of the discussion in the case. We— for our lamented brother, BaedeeN, J., spoke for the court,, and with its hearty approval — first declared reaffirmation [209] of tbe doctrine of Goodrich v. Milwaukee, 24 Wis. 422, 436, and Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108, that acts and conduct on tbe part of a city might be such as to arouse equitable estoppel. Then we turned to tbe principal argument of tbe railway company’s counsel — that, because tbe company paid money for grading Vaughn avenue as a consideration for a pretended contract to vacate certain streets, the city was estopped; which, as evinced by tbe findings, was a pi’incipal consideration with tbe trial court. As to that we said that such an attempted contract is not sufficient, for tbe reasons there well stated. To bold otherwise would be to deny all efficacy to laws restricting powers of city officers j would place tbe public at tbe mercy of those who might, by improvable means, induce such officers to deliberately break such laws. We did not, however, declare that tbe attempted vacating of streets by a void ordinance might not be considered in association with other facts and circumstances, and the whole be held cogent enough to bring into operation an estoppel against a city. That we had no such intention is rendered plain by the very context of the opinion, pointing-out that there was no clear and sufficient proof that the railway company had erected any structures or incurred any considerable expense in reliance upon that attempted vacation, they being chargeable with knowledge of its repeal. The necessity of proof of both the inequitable conduct of the city and great and irreparable wrong to parties honestly and in good faith relying thereon is well and properly declared. That is forcibly expressed by the courts of Illinois, on whose decisions the doctrine of Paine L. Co. v. Oshkosh, supra, largely rested. They have very recently had occasion to insist upon great caution in applying it. Catlett v. People, 151 Ill. 16, 24, 37 N. E. 855; De Kalb v. Luney, 193 Ill. 185, 190, 61 N. E. 1036; Shirk v. Chicago, 195 Ill. 298, 63 N. E. 193. See, also, Elliott, Roads & Streets (1st ed.) 660. We find nothing in the rules of law laid down in Ashland v. C. & [210] N. W. R. Co. with which we cannot now agree, and therefore deem it controlling in the decision of the present case. By the Gourt. — Judgment affirmed.