
    City of Ashland, Respondent, vs. Northern Pacific Railway Company, Appellant.
    
      September 10 —
    September 29, 1903.
    
    
      Municipal corporations: Vacation of streets: Void, ordinance: Occupation by railways: Estoppel.
    
    By an agreement between railway companies and a city the former were to contribute to the improvement of a certain street and the city was to vacate parts of certain other streets to accommodate the railway yards and depots. The city passed an ordinance in form vacating said parts of streets, and the companies fulfilled the agreement on their part. The ordinance was void because statutory requirements were not complied with, and six or seven months after its passage it was repealed. In the absence of proof that defendant (one of said railway companies) had erected any structures or incurred a’ny considerable expense in reliance upon the attempted -vacation, it is held that the city is not estopped to claim that tho streets had not been vacated. Ashland v. O. cG N. W. It. Co. 105 Wis. 398, followed.
    Makshaix, J., and Cassoday, C. J., dissent, being of the opinion that in view of all the circumstances (including the- undisturbed occupancy of the streets by the railway companies for more than ten years, positive acts of encouragement on the part of the city to continue such occupancy, the expenditure of large sums by the railway companies in improvements, and the final creation of a situation from which they cannot recede without great loss) the city should be held estopped.
    
      Appeal from a judgment of the circuit court for Ashland county: James O’Neill, Judge.
    
      Affirmed.
    
    This is a companion suit to that presented in Ashland v. Chicago & Northwestern 11. Co. 105 Wis. 398, 80 N. W. 1101. To the statement of facts there made we now refer. A clear understanding of the situation, however, requires a little more amplification of the facts. The three railroad companies, or their predecessors, the Chicago & Northwestern, Northern Pacific, and Wisconsin , Central, some time prior to 1887 owned a large tract of land in Ashland between Third street on the north and Sixth street on the south, and between Vaughn avenue on the west and Prentice avenue on the east, a distance of seven blocks east and west, which had been largely donated to them by the individual owners, and in that space had their depots, as also did the present defendant and the Wisconsin Central have their yards. The business part of the city stretched along Pront street and Second street, and also along the lake shore, where the mills were situated; the most central part of that business portion being at about Third Avenue West. Meanwhile a considerable residence settlement had grown up to the south of this railway tract, access from which to the business portion would naturally be attained over the various avenues, including Second, Third, and Fourth Avenues West. The scheme of vacating streets and alleys embraced in the contract of October 1, 1887,.and in the ordinance of December 1, 1887, involved the vacating of all the avenues through this tract except Ellis avenue and Third Avenue West, thereby cutting off the use of Second and Fourth Avenues West and of Second and Third Avenues East. Ellis avenue was to be a thoroughfare. Third Avenue West was not affected, but has since been wholly obstructed by a stone passenger station. At the time of the commencement of this action the three railroad companies had quite extensive switching yards within this tract, each of them having five, six, or seven tracks crossing tbe avenues and substantially occupying Fourth and Fifth streets, and the defendant having put in place a roundhouse, small repair shops, and some other structures. To what extent this was an increase over what existed prior to 1887 is not proved, but the case was argnied on both sides on the assumption that a very considerable amount of the expenditure had been since that time. But there was no proof that any part thereof had been made prior to the ordinance of June 26, 1888, repealing the vacating ordinance of the December previous. The present action affects both Second and Fourth Avenues West. There was no. evidence that the defendant had erected any structures in either of these avenues, except as it had laid tracks across the same; nor was there evidence that any of the railroads had any structures in either of these streets, except that the Wisconsin Central freighthouse extended nearly across Second avenue, but that had been erected prior to 188Y. The evidence is substantially undisputed to the effect that the opening and use of these two avenues for general travel will seriously incommode the railroad companies in the use of this territory for yard purposes; perhaps to an extent to force them to find other locations for their yards. There is also evidence that the Wisconsin Central has erected upon Third avenue an expensive passenger station, but not in reliance upon the claimed vacation of 1887. Whether by other authority, is not made lo appear. There is no evidence as to whether the defendant did or did not have notice of the passage of the repealing ordinance of June, 1888, but it was stipulated that it was duly published, as required by the charter, on June 30, 1888.
    The court found as a fact that between October 1,° 1887, and September 9, 1888, no step was taken, and no act performed, money expended, or obligation incurred, by the defendant in reliance upon or induced by the passage of the vacating ordinance of December 1, 1887, or other, acts of the common council of the city of Ashland or of the plaintiff, growing ont of or connected with, tbe proposition of October 1, 1887; but tbat tbe defendant paid to tbe treasurer on September 9, 1888, $2,307.32, as its part of tbe cost of excavating Vaughn avenue and constructing a drain or box culvert therein. Judgment was entered in favor óf tbe plaintiff, tbe result of wbicb was to command tbe defendant to bebave toward Second and Eourtb avenues as if they were streets, instead of as if they were its property. Erom tbat judgment tbe defendant appeals.
    Eor tbe appellant there was a brief by Louis Hanitch, attorney, and O. W. Bunn and Emerson Hadley, of counsel, and oral argument by Mr. Hanitch.
    
    Eor tbe respondent there was a brief by F. J. Colignon, attorney, and Dillon & Colignon and Tomhins & Tomhins, of counsel, and a supplemental brief and oral argument by F. J. Colignon..
    
   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 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 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. & 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.

Maeshall, J.

(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 municipalities. I will, endeavor to analyze the former opinion and show wherein I deem it infirm. That done, there will be little need to discuss the reasoning of the court upon this occasion, since it is not pretended that the present decision does more than affirm what was formerly decided.

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 is one of tbe principal thoroughfares of the city. The width-thereof is sixty-six feet. The platted blocks abutting thereon are 300 feet square. The cross streets are sixty-six feet wide. That part of the avenue particularly involved here is between Third and Sixth streets. Such avenue is one* of the streets originally platted and dedicated. That occurred as early as 185 Y, and the avenue was then named Madison avenue. In 18 8 Y the name was changed to Fourth avenue. It extended back from the bay in a southerly direction, through a thickly populated and business part of the city, about one and a half miles. ' Appellant’s tracks extend across the territory between Third and Sixth streets, crossing Fourth avenue. That part, of such avenue between Front and Third streets, prior to. 1890, was prepared for public travel, and has since been used for that purpose. That part lying south of Sixth street was. also> prior to 1890, so prepared, and has ever since been soused. Up to 1892 that part of the avenue between Third and Sixth streets had not been so improved, but the surface thereof was level and had been customarily used for travel. In 1892 the plaintiff built a sidewalk upon the west side of the-avenue from Fourth street to Sixth street, which remained in place till February 9, 18 9Y, when it was removed by defendant’s predecessor. It has not since been restored. In 1885, defendant’s predecessor constructed a railroad track through the corporate limits of plaintiff. About 188Y such track was connected with those of three other railroad companies within such limits, for the mutual convenience of all, to wit, the Northern Pacific Railroad Company, defendant’s predecessor, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, the Milwaukee, Lake Shore & Western Railway Company, and the Wisconsin Central Railway Company.

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 width of one street westerly' therefrom, on condition that the city should vacate portions of certain streets and alleys, including that part of Fourth avenue between Third and Sixth streets involved in this litigation. The offer was accepted by resolution of the city council. That resolution provided for the improvement of Vaughn avenue and the doing of much other work contemplated by the proposition of the railway companies. The resolution. further provided that upon the contemplated improvements being made measures should be taken to vacate streets and alleys as suggested by the railway companies. December 1, 1887, pursuant to the agreement between the railway companies and the city thus made, the latter passed and caused to- be published, intending to exhaust its jurisdiction.in the premises, an ordinance in form vacating those parts of streets and alleys agreed to be vacated, including that part of Fourth avenue now involved. The railway companies, within a reasonable time thereafter, ■complied with the agreement on their part as to paying the expense of improving Vaughn avenue. In 1888 plaintiff, treating that part of Fourth avenue which it had attempted to vacate as no longer a public thoroughfare, constructed a city building immediately south of Third street, entirely obstructing the avenue from such street north to the railway track. Appellant’s predecessor, regarding the streets which the city had attempted to vacate as abandoned for public purposes, expended a large sum of money in the arrangement of its tracks and buildings for the purpose of conducting its business in the city, the outlay extending over a period of more than ten years. It will be irreparably damaged if the status of things thus created be now changed. The attitude of the city and people thereof prior to and at the time of, and for years subsequent to, the vacation proceedings, was such as to indicate a general desire that the railway companies should locate their yards, depot grounds and station facilities as they were located. The necessary result of such location, as could easily have been, seen from tbe outset, was the obstruction of Fourth, Third and Second avenues between Third and Sixth streets, and the disuse thereof, within such territory, as public streets. Appellant’s predecessor paid into the city treasury, as its proportion of the cost of improving Vaughn avenue as aforesaid, $2,307.32. The city has never repaid or offered to repay that money. The other railway companies paid their due proportion of the cost of the improvement as before indicated. Such improvement made necessary the incurrence of considerable expense in constructing a bridge for appellant’s track over Vaughn avenue. All the companies laid out their yards and constructed their depots and station facilities with reference to the streets and alleys, obstructed as aforesaid, having been abandoned as ways for public travel. The attitude of the city, indicated by its placing its own buildings in the street, was continued in various ways. In 1890 it built an addition to the fire hall in Fourth avenue. In 1892 it constructed therein a storage shed west .of the hall. The buildings at this time occupied nearly the whole width of the avenue. In 1892 it built a hay shed at the rear of the fire hall in the center of the avenue. In 1894 it moved a building into the avenue, where it has since remained and been used as a street commissioner’s office.

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 Vaugbn avenue and replace them with steel structures. Defendant complied at an expense of $3,500. Since 1887 the railway companies have remained in undisturbed possession of the streets covered by the vacation proceedings, and during all that time have proceeded openly with the work of arranging tracks and other station facilities, expending in doing so the following sums: Defendant, about $30,000; the Chicago & Northwestern Eailway Company, $50,000;-the Wisconsin Central Eailway Company, some $75,000. Part of such expense was incurred in the construction of an expensive stone depot, which entirely obstructs Third avenue. In the meantime Second avenue has been obstructed by a freight house, by the warehouse of the Armour Packing Company, and other structures. If it should now be held that defendant has no right to use Fourth avenue in any way inconsistent with the use thereof as a public street, it would be obliged to rearrange its entire station facilities, and suffer irreparable loss.

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 thirteen, years, there was not a moment that the city and every citizen thereof specially interested did not have a cause of action against appellant’s predecessor and also against its associate railway companies on account of the encroachment on the streets mentioned. Yet no move was made to seriously challenge their right to continue such occupancy. Not only was no such move made during that long period, but throughout the whole time there were affirmative acts by the city, and assent, by not objecting, to acts of private parties in treating the streets in question as abandoned as regards the public use thereof, such conduct on the whole being inconsistent with any other reasonable theory than that the city recognized the right of the railway companies to maintain their station facilities as arranged. During that period the improvements by the railway companies, to enable them to properly perform their quasi-public duties, exceeded $100,000; and the value of property within the city so increased that to change the location of the yards and make new arrangements to properly exercise the railway franchises, would entail not only loss of most of the money expended in the old location, but a very large sum in addition.

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 cognizance. Here is a synopsis of tbe findings in tbe first case, so far as they affect tbe subject of equitable estoppel: First, in 1887 tbe railway corporations and tbe city of Ash-land agreed that tbe latter would vacate specific parts of streets and alleys, including that part of Fourth avenue in controversy, and in consideration thereof tbe former would pay tbe expenses of certain improvements of Vaughn avenue. Second, in December, 1887, tbe city in form by ordinance performed its part of said agreement. Third, in 1888 tbe city repealed tbe vacation ordinance. Fourth, tbe defendant’s predecessor, relying upon tbe vacation proceedings, expended large sums of money in tbe construction of its yards .and in paying for tbe improvement of Vaughn avenue. Conclusion : Tbe city of Ashland is estopped from claiming that tbe said portion of Vaughn avenue in controversy is a public street.

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 came bere tbe judicial vision was not in tbe least broadened,, as will clearly appear from wbat follows.

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 vires act, strictly so called, of a municipality, forms no legiti-' mate basis for an equitable estoppel because of tbe presumption of law tbat every one knows tbe limitations upon corporate power. Tbat does not apply to acts witbin corporate power, void because of some illegal manner of execution. Sucb acts are commonly spoken of as ultra vires, but they are not so witbin tbe restricted meaning of tbat term applicable' to tbe rule to wbicb tbe court referred. Tbat meaning is, “beyond tbe capacity of tbe corporation to do at all.” 27 Am. & Eng. Ency. of Law, 352, 353. When tbe corporation bas power to act — it was conceded by tbe court tbe city of Ash-land bad power to vacate streets — but fails to exercise tbat power in a legal way, equities in favor of private parties may be based tbereon. Tbe difference between tbe two situations will be found on examination to be tbe key to tbe difference in results in cases where an equitable estoppel against a municipal corporation was asserted. In Snyder v. Mt. Pulaski, 176 Ill. 397, 52 N. E. 62, it was said tbat no equitable es-toppel can arise from an act of .municipal authorities without authority of law. In Seeger v. Mueller, 133 Ill. 86—95, 24 N. E. 513, tbe court said:

“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 irreparable loss. The equitable right of the railway companies might be sustained and the vacation ordinance and its repeal left entirely out of view. Here is the broad principle governing the matter, as stated by-the Illinois court and approved by this cour in Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108:

“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 in good faith relying npon the validity of the vacation ordinance before the repeal thereof. That the conrt very properly felt bonnd by the former decision to decide in favor of respondent.

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 ■streets occupied by tbe companies were no longer public thoroughfares, tbe final creation of a situation, tbe growth of wbicb.could bave been easily stopped at tbe outset before any ■considerable outlay bad been made by tbe railway companies, wbicb cannot be retired from without enormous loss.

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 ?

Cassoday, C. J. I concur in tbe opinion of my brother MARSHALL.  