119 Wis. 204 | Wis. | 1903
Lead Opinion
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
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
By the Gourt. — Judgment affirmed.
Dissenting Opinion
(dissenting). If the decision of this case had been strictly confined, as it might well have been, to the single question of whether the finding of fact that appellant did not change its position on the faith of the vacating ordinance prior to the repeal thereof is against the clear preponderance of the evidence, I could concur with my brethren. Through some oversight, difficult to understand, the facts upon which the defense of equitable estoppel was based found no place in the findings of the court, and no éxcep-tions were preserved covering the omission. Nevertheless the cause was twice argued here as if the question were before-us of whether the judgment is right in view of the facts so omitted from the findings. 'Counsel for appellant presented its side of the litigation as if proper exceptions were preserved, and counsel for respondent joined in that treatment of the appeal. A re-argument was ordered wholly as to the effect upon the judgment of the facts not covered by <the findings. This court considered such unfound facts, and upon the whole case decided that no equitable estoppel was «established. In that situation I shall do- as all others seem ?fo have done, — treat the case as if proper exceptions were taken and preserved in the record, presenting the question of whether an equitable estoppel was established by the facts proved, not covered by the court’s findings.
I concurred in the decision rendered in Ashland v. C. & N. W. R. Co. 105 Wis. 398, 80 N. W. 1101, not without serious misgivings as to its correctness. Reconsideration of the subject here involved, aided by a clearer presentation of the same facts in this case, satisfies me that error was there committed by reason of a failure to fully comprehend the scope of the doctrine of equitable estoppel as applied to municipal
Before proceeding to discuss the former opinion, however, I will state more fully than the court has done the. facts of the ease as I understand them to appear by the record. In my judgment the statement made by the court does not bring into clear light the strong circumstances from which- arises a ■conviction that it would be unjust to compel the- appellant to vacate the situation that it has occupied and enjoyed for some sixteen years. The statement of facts now made is not supposed to be in any way contradictory to that made by the court, but rather to be supplementary thereto. The trouble with the court’s statement, from my view of the case, is that it makes the vital question in the litigation, whether appellant did anything or failed to do anything under the vacation ordinance, so called, of December 1, 1881, before receiving notice that it had been repealed. The trial court do viewed the situation in the former ease, as did also, in my judgment, this court upon the appeal. The same is obviously true of the trial of this case below. In my judgment such circumstances do not necessarily cut any figure in determining the rights 'of the parties.
Much of the territory within the limits of the city of Ash-land is platted and occupied, and has been for many years. Within the territory affected by this litigation the streets cross each other at right angles, those extending back from Chequamegon Bay and nearly at right angles with the shore thereof being called avenues. Those crossing the same and running nearly parallel with the shore are called streets. The thoroughfare nearest to and parallel with' the bay is called Front street, while those parallel therewith are numbered consecutively, commencing with' Second street. Fourth avenue
In 188 Y those companies proposed-to plaintiff to contribute $5,000 for the improvement of Vaughn avenue, a street running parallel with Fourth avenue and located two blocks and
The vacation ordinance of 1887 was, June 26, 1888, in form repealed, but no personal notice thereof was ever given to the defendant’s predecessor, nor was such predecessor distinctly notified that the city would insist upon 'restoring Fourth avenue to the public use where it was supposed to have been vacated or abandoned, till May, 1901. That notification was not followed up by any disturbance of appellant. On the contrary, in 1895, the city and the citizens of Ashland requested the railway companies, in view of the streets having been vacated or the companies having been permitted to use the same as part of their depot grounds in the manner before stated, to remove their pile bridges over
The foregoing shows that as early as 1887 appellant’s predecessor .and its associate railway companies, which included all the railway interests in one of the most important cities, as regards commerce, in the state, involving to a great extent investments of millions of dollars, and the people and governing authorities of such city evinced a desire that the station facilities of all of such railway companies should be located together within the corporate limits of such city, substantially as they were located, making necessary the interruption of the use of the streets now complained of. At the early date mentioned there was an occupancy of the streets in such a way as to plainly indicate that it was intended to be permanent, and to indicate to any fair-minded man that the conduct of the railway companies in that regard was grounded upon a supposed general consent thereto by all interested parties, public and private. Prom that time on till the commencement of this action, covering a period of some
How radically the decision in the former case in the trial court and that upon appeal, and the decision in this case in the trial court and this as well, failed to apply to the entire ■situation thus pictured the broad doctrine of equity, that in dealing with the subject of whether the public should be held to have lost a right by reason of its having been superseded by an overpowering equity the chancellor does not look merely to lapse of time or any particular circumstance by itself, but to all the circumstances bearing on the question, the full scope of the inquiry being this: In view of the whole situation what does right and justice require? (Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108), can best be made plain by showing by the findings in the two cases what the trial judges conceived were all the vital facts for equitable
Thus it will be seen that tbe whole case was made to depend on whether tbe railway companies, relying upon the validity of thq vacation proceedings, were induced to occupy a position from which they could not recede without irreparable loss. Tbe general attitude of the city and tbe public for a period of more than ten years, indicating that tbe occupancy of tbe street by tbe railway companies was acquiesced in and regarded as permanent, and tbe expenditure by tbe railway companies of large sums of money, tbe expenditure ■extending over tbe whole period mentioned, without any attempt being made by tbe city or any private person interested to challenge tbe occupancy of tbe streets, were not taken no-'' tice of at all. As tbe case was decided, if tbe railway companies did not acquire an overpowering equity solely by rea■son of having acted on tbe faith of tbe vacation proceedings, they did not possess any such equity. It seems that argument is unnecessary to demonstrate that such a view excluded the most powerful factors in tbe case in building up an equitable right in favor of tbe railway companies. When tbe case
Speaking of tbe basis for tbe equitable estoppel claimed, as this court understood tbe matter, it was said:
“Tbe alleged estoppel is based upon tbe finding tbat the-city and tbe railroad companies entered into- an agreement by wbicb tbe city agreed to vacate tbe street, and tbe companies to pay for certain specified improvements in other streets.” Ashland v. C. & N. W. R. Co. 105 Wis. 403, 80 N. W. 1103.
The court then sai.d, in effect, tbat no estoppel could legitimately rest on sucb an agreement for tbe following reasons First. Tbe railway companies knew that tbe city did not possess power to make tbe agreement. Second. Tbe railway companies knew or were bound to know tbat tbe vacation proceedings were ultra vires and void. Third. Tbe railway companies knew or were bound to know tbat tbe vacation ordinance was repealed on June 26, 1888. Fourth. There is no evidence tbat tbe railway companies took any action under tbe vacation ordinance prior to tbe repeal. Fifth. Whatever was done by tbe railway companies was done in reliance upon tbe void contract to vacate, wbicb does not constitute a color-able basis for an equitable estoppel. General conclusion,, based on tbe decided propositions: It appears neither tbat tbe city abandoned its right to tbe street, nor was guilty of any delay, nor did any act upon wbicb tbe defendant railway company or its predecessor bad a right to rely. Tbat is, as I understand it, tbat tbe city was not guilty of any sucb delay,, nor did any sucb act, because tbe defendant was bound to know tbat tbe agreement of tbe city to vacate tbe streets, and tbe vacation proceedings, were void. In tbat not only did the-court overlook tbe real basis in the evidence for an equitable-estoppel,-but wrongly assumed, it seems, tbat merely because tbe vacation proceedings were void they could not form tbe basis for an equitable estoppel.
There is ample authority for tbe position tbat an ultra
“No estoppel can ordinarily arise from tbe act of a municipal corporation or officer done in violation of or without authority of law. Every person is presumed to know tbe nature and extent of tbe powers of municipal officers, and therefore cannot be deemed to have been deceived or misled by acts done without legal authority.”
It must be easily seen tbat tbe principle of those cases should not have been applied here, first, because tbe attempted vacation of tbe street was not an act beyond tbe scope of corporate power; and second, because tbe equitable es-toppel was not dependent upon tbe vacation ordinance as a basis, but upon tbe general conduct of tbe city and all tbe circumstances whereby tbe railway companies finally came to tbe position from wbicb they could not retire without irrep
“Where the public have long withheld the assertion of control over streets, and private parties have been, by the acts of those representing the public, induced to believe the streets abandoned by the public, and on the faith of that belief, and with the acquiescence of those representing the public^ they have placed themselves, by making structures or improvements in the street, in a situation where they must suffer pecuniary loss if those representing the public be allowed afterwards to allege that the street was not abandoned, the doctrine of equitable estoppel may be applied.” Lee v. Mound Station, 118 Ill. 304, 317, 8 N. E. 759.
It seems to me that the determination of the former case as if the equities of the railway company depended solely on whether they had any standing in a court of equity since their conduct was based on a void contract, is so clearly wrong that it should not stand in the way of a reconsideration of the whole subject upon this appeal.
The trial court in this case, guided by the decision upon the former appeal, very naturally overlooked everything bearing on the question of equitable estoppel except, first, whether the vacation proceedings were ultra vires, and second, whether any act was done by appellant on the faith of such vacation proceedings before the repealing ordinance. This court having said that the vacating ordinance was ultra vires and so could not be referred to as a basis for an equitable estoppel, the trial court of course felt bound to follow it. That of itself was fatal to appellant’s position. There was but one other phase, ,as has been seen, which, within the limits of the former decision, could in any event cut any figure. That was whether appellant did anything or failed to do anything
My brethren, in endeavoring to meet one of my criticisms, of the former decision, say:
“We did not declare that the attempted vacating of streets jay 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 the city. That we had no such intention is rendered plain by the very contest 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.”
I am unable to understand the former opinion that way,, but whether the court’s view be right or not it is manifest by the reasoning of my brethren that they understand that the court on the former occasion went no further than to assume,, without deciding, that acts might have been done by the railway companies in good faith relying upon the validity of the vacation proceedings, which would have given the companies, a standing in a court of equity, but that they did no such acts. My own view is that the effect of the former opinion is this:. The vacation ordinance was void; therefore no equitable es-toppel could be predicated thereon. However, if the void ordinance could form the basis for an equitable estoppel upon proof being made that the railway company changed its position in reliance thereon, there was no such proof in the record. Heither formerly, nor on the present occasion did the court give due weight to all the circumstances characterizing the occupancy of the street by the railway companies, its undisturbed character through a period of more than ten years,, the positive acts of encouragement on the part of the city to continue occupancy by conducting the public affairs as if tha
I need not say more to make my position appear clear. If I were to view this case from tbe narrow standpoint of whether tbe appellant in good faith changed its position relying upon tbe validity of tbe vacating ordinance, either before or after tbe repeal thereof, my conclusion would be in harmony with that of my brethren. But looking at all tbe circumstances bearing upon appellant’s right, it seems that one of tbe strongest cases is presented upon tbe record before us for tbe application of tbe doctrine of equitable, estoppel that can be found in tbe books. As held in Paine L. Co. v. Oshkosh, the principal inquiry in al'l this class of cases is, In view of all tbe circumstances does justice require an equitable es-toppel to be raised against tbe public ?