
    City of Columbus v. Street Railroad Company.
    
      Municipal corporations — Street railroad — Ordinance—Duty to repair street — Rights of city.
    
    The city of Columbus, by ordinance, granted the privilege to a company to construct and operate a street railroad on one of its streets for a specified period. The ordinance provided that the company should make, construct, and keep in order and repair, all that part of the street included between the rails of its tracks and switches, in the same manner, and witlx like material, as the street is constructed and repaired, so long as it shall use the same for its railroad; and any failure to comply with the provisions of the ordinance, or with any general ordinance of the city, regulating the use of its streets, or the police regulations thereof, should render such railroad company liable to the city, in an action of damages for such failure; and the council after giving the company twenty days notice, should have the right to order any work to be done on the railroad, necessary to keep it in repair, and charge the cost and expense thereof upon the railroad company. Held :
    
    1. That the ordinance did not divest the city of its control of the street, or abridge its right to improve the same; and it might, during the period named, cause to bo made new improvements thereof, including the part occupied by the street railway, and determine the kind of improvements to bo so made.
    
      2. By constructing and operating its railway, the company accepted the burdens, with the privileges of the ordinance, and thereby incurred the continuing obligation, to make, construct and keep in order and repair, as long as it enjoyed those privileges, the portion of the street between the rails of its track, including such new improvement thereof as the city might determine and direct.
    3. When, after notice, the company fails to do the work so required of it, and the city then causes it to be done, its reasonable cost may be recovered by action against the company; and it is not essential to the liability of the company therefor, that the notice to make such improvement precede the letting of the contract by the city for the same. It is sufficient if such notice be given before the work is done, and while the company may still perform the same.
    4. Where the company, after receiving such notice, without attempt to perform any part of the work required of it, permitted the city, without objection or complaint, to commence and complete it, adjusted the track of its railway to conform thereto, as it progressed, and with knowledge that the city expected it to pay for the same, and of all the circumstances, received all the benefits thereof as fully as if it had been performed by the company, the city may recover the reasonable cost of the work so done, although the notice does not strictly conform to the requirements of the ordinance.
    (Decided April 26, 1887.)
    Error to the District Court of Franklin County.
    The plaintiff, a city of the second class, had, prior to 1874, granted to the defendant, an incorporated street railroad company, permission to construct and operate, until November, 1882, a street railroad on High street. On the 16th of November, 1874, the city council, by ordinance, authorized the company to extend its road on Goodale street and Neil avenue, and continue the operation of the same thereon, as well as on High street, for the period of twenty years.
    The defendant accepted the privileges and conditions of the ordinance, extended its road accordingly, and has ever since been so operating the same. This ordinance, among other things, provides that the company shall “ make, construct and keep in order and repair all that part of said street included between the rails of its tracks and switches, in the same manner and with like material as the said street is constructed and repaired so long, as it shall use the same for its railroad. Any failure by said railroad company to comply with the provisions of this ordinance, or with any general ordinances of the city regulating the use of said streets, or the police regulations thereof, shall render such railroad company liable to said city in an action of damages for such failure; and the council of said city, after giving said company twenty days’ notice, shall have the right to order any work to be done on said railroad necessary to keep it in repair as required by this ordinance, and when said work is done, to charge the cost and expense thereof upon said railroad company, and upon recovery of such damages, or upon such work being done, the said railroad company shall be liable for the payment thereof.”
    On the 1st of March, 1875, the city council desiring to improve High street, including the portion between the rails of the track and switches of the defendant’s railroad thereon, by paving, etc., duly passed and published an ordinance for that purpose; and after the necessary preliminary proceedings, on the 26th of April, 1875, let the contract for such improvement. On the 19th of April, 1875, a resolution was adopted by the city council, directing the defendant to proceed immediately to make that part of the improvement between the rails of the tracks and switches of its road. A copy of this resolution was served upon the superintendent and general manager of the company. The defendant failed and refused to make any part of the improvement, and the contractors, under their contract ■ with the city, constructed the whole improvement, including that part which the defendant was directed to make. The work was completed in December, 1875, and on the 24th day of January, 1876, the council, by ordinance, assessed upon the defendant’s road the cost of that portion of the improvement included within the rails of its tracks and switches, amounting to $7,967.00, and directed the same to be paid by the defendant to the city treasury August 5th, 1876. The defendant failing to make payment, the plaintiff thereafter brought its suit in the court of common pleas to recover the same. The plaintiff’s petition alleged in substance the foregoing facts, and that the sum sued for was the reasonable cost of the part of the improvement referred to. Tbe defendant’s answer in substance denied that the sum sued for was'the reasonable cost or price of that part of the improvement mentioned, and also denied that it was notified to construct the same until after the city had let the contract for the whole improvement. The case was tried to the court, whose findings of fact and conclusions of law are separately stated as follows:
    “ First — That the ordinance passed by the city council, November 16, 1874, as alleged in the petition, was duly accepted and ratified by the defendant. Second — That the plaintiff did not notify the defendant to improve or repair the part of High street between the rails of its railway 'until the plaintiff had contracted in writing with Hastings & Beeson to improve the entire width of said street, including the part so between the rails, with the Parisen asphaltum pavement, and not until the said Hastings & Beeson had commenced the construction of said pavement on said High street. Third — That at the date when said plaintiff did notify the defendant to improve and repair the street between the rails of its railway, it was, because of the action of the plaintiff, not practicable or possible for the defendant to have complied with said notice, and to have made said improvement and repairs, except by the consent of said Hastings & Beeson, which consent was not procured by the plaintiff, nor otherwise given by said Hastings & Beeson; nor did the plaintiff, after the service of such notice, take any step whatever toward enabling said defendant to make said improvement and repairs between the rails. Fourth — That there was nothing in the official action of the plaintiff, by its council or officers, with reference to the construction of said Parisen pavement prior to the passage of the resolution on the 19th day of April, A. D. 1875, directing the city solicitor to serve notice on the defendant of a demand on the part of the plaintiff that the defendant should, after receiving twenty days’ notice, proceed to make, construct, etc., the said Parisen pavement which, if brought to the knowledge of the defendant, would have been notice to the defendant of an intention on the part of the plaintiff to require the defendant to construct the said Parisen pavement between the rails of its railway.
    
      “ The court finds, as a matter of law: First — That the said ordinance of the said council of November 16, 1874, constituted a contract between the plaintiff and defendant as to the liability of the defendant to make, construct and keep in repair the pavement between the rails of its railway on said High street, between the streets named in said ordinance, conferring or reserving to the plaintiff the power and right to determine what kind of pavement should be constructed and maintained on said street as well inside as outside of the rails of the defendant’s railway for the future and during the twenty years that was, by said ordinance, fixed as the term granted to defendant. Second — That by the terms of this ordinance the plaintiff can only have a right of action to recover for the cost and expense of making or repairing the pavement between the rails, in the event of the failure of the defendant to make and construct the same after having received notice for twenty days that plaintiff required the defendant so to do, or at least in case of a new construction, a reasonable notice of the plaintiff’s demand of the defendant in that behalf. Third —That any notice to be effectual in giving the plaintiff a right of action against the defendant for its failure to make or repair the pavement, must have been given to the defendant for such reasonable time as would have enabled the defendant to do the work before the plaintiff proceeded to do the work, or contracted with another to do the work, without reserving any right to the defendant to do the work between the rails of its railway. Fourth — That the plaintiff having contracted with Hastings & Beeson to construct the entire pavement, in which contract no allusion is made to any right or duty of the defendant to make or pay for the pavement between the rails of its railway before serving any notice on the defendant requiring it to perform such work, the serving of such notice by plaintiff, through its solicitor, on the defendant, some weeks after the making of such contract with said Hastings & Beeson, is not such a notice as will, by the terms of said ordinance of November 16, 1874, authorize the plaintiff to recover in this action. Fifth — The court finds upon the whole case for the defendant, and that said defendant is not indebted to said plaintiff as alleged in this action, and said defendant is entitled to judgment against said plaintiff for its costs.”
    The plaintiff properly excepted, and in due time filed its motion for a new trial. This was overruled, and a bill of exceptions taken containing all the evidence; and judgment having been entered in favor of the defendant, proceedings in error were prosecuted to the district court, where the judgment of the common pleas was affirmed. The reversal of those judgments is now sought in this court, on the ground that the facts found are not -sustained by the evidence, and do not warrant the conclusions of law.
    
      James Caren, city solicitor, for plaintiff in error.
    
      Henry T. Chittenden, for defendant in error.
   Williams, J.

'Whether there is error in the judgments requiring their reversal, depends' largely upon the effect to be given to the ordinance of November 16, 1874. So much of that ordinance as is important is given in the statement of the case. The court of common pleas found the defendant accepted the ordinance, and held that it constituted a contract between the parties, under which the plaintiff might rightfully determine the kind of pavement that should be constructed and maintained on the street, including that part within the rails of the defendant’s roadway, during the period named in the ordinance. That it might do so, is sufficiently clear. There was no intention on the part of the city, in the passage of the ordinance, to surrender the powers conferred on it by law, or abridge their reasonable and proper exercise. It is equally clear that one of the material-and important things intended to be secured to the city by the ordinance, as part of the consideration for the privileges thereby granted the defendant, was the continuing obligation of the defendant, to make and keep in repair, during its enjoyment of the grant, those portions of the street occupied by its railway. That obligation is, by the terms of the ordinance, imposed upon the defendant, which it assumed by accepting the privileges thereby conferred. A mode therein provided of enforcing that obligation is, that the plaintiff, after notice, may do the 'work the defendant so bound itself to do, and recover its cost from the defendant. "Whether this is the exclusive mode of enforcing the defendant’s obligation may admit of doubt; but is unnecessary to be now determined.

The court of common pleas found that notice was not given the defendant to make the improvement between the rails of its roadway until the plaintiff had contracted with Hastings & Beeson to improve the entire width of the street, without reserving in the contract, or otherwise obtaining from the contractors, permission to the defendant to make that part required by the notice, and held that such notice was not sufficient, although no part of the work the defendant was so required to do had been done; but that to make the defendant liable the notice should have been given it a reasonable time before the city contracted for doing the work. Upon 'this ground alone it was adjudged the plaintiff could not maintain its action. This was error.

Assuming that the ordinance constitutes the contract between the parties, and that by its terms, the right in the first instance is given the defendant to make the improvement and repairs referred to, and that the plaintiff is authorized to make them and recover their cost, only after the notice therein provided for, it does not follow as a necessary or legal consequence, that the contracting with another therefor, before notice, made compliance therewith impracticable, or otherwise relieved the defendant of its obligation to do the work required. If the ordinance conferred upon the defendant the rights claimed, no subsequent contract of the city could extinguish or impair them. The contractors could not, in virtue of the contract, any more than the city, in any way interfere with them. They were as effectually saved and secured to the defendant as if expressly reserved in such contract.

So long as the improvement and repairs which the defendant, by accepting the ordinance, bound itself to make, remained unmade, its duty continued to make them when notified to do so ; and it was no concern of the defendant what contract the city had made with another, or what liability it had thereby incurred. There is nothing in the ordinance, or in the nature of the defendant's obligation, that required the notice to be given it before the city entered into a contract for the work; it is sufficient, if after the notice, opportunity be given the defendant to perform the work. No particular form or manner of notice is necessary. It may be shown by circumstances, which properly apprise the defendant of the city's purpose, and call for the action of the defendant in that behalf. The fact, that before notice to the defendant, the city had let the contract for the improvement of the entire width of the street, would at most be but evidence tending to show an intention at that time, ex gratia, to relieve the defendant from the construction of any part of it. But such intention might be abandoned any time while that part of the work within the defendant's roadway remained unperformed, and the defendant be called upon to do it. The passage of the resolution by the city council, before letting the contract, requiring the defendant to perform such work, and serving a copy on the defendant, after the contract was let, sufficiently acquainted the defendant that no such intention ever existed or was abandoned. It appears, both from the finding of facts and the evidence, that the copy of the resolution was served before any part of the work required of the defendant was done. There is no finding, nor any evidence tending to show, that the contractors prevented, or attempted to pi’cvent, the defendant from complying with the resolution. If they had done so, another question might arise. It is a mistake to suppose that the mere letting of the contract and commencing the work, somewhere in the street, prevented the defendant from complying with the requirements of the resolution, or discharged the obligation of the defendant to do the work required.

If, however, the notice failed, in time, to meet the strict demands of the ordinance, the plaintiff nevertheless had a substantial and satisfactory ground of recovery as shown by the record. There is no finding, or evidence tending to show, that the city by letting the contract, or otherwise, intended to release the defendant from its obligation under the ordinance, or have that part of the work done for the defendant, as a mere gratuity. Quite the contrary appears from the evidence. 'The passage and service of the resolution indicate, that the plaintiff expected the defendant to perforin the work required, or pay for it, if it did not; and it is difficult to see how the defendant could have had any different understanding, or expectation. It is evident the delay in service of the resolution, was an oversight or neglect of the city solicitor. Besides, it is shown by the evidence that the general superintendent and manager had the sole possession and control of the road, under an agreement with the directors that he was to run it, pay all charges and keep all the proceeds ; and, as he testified, had entire and unlimited authority, control and care in the management of the road, its business ■and affairs. The copy of the resolution was served on him before any work was done, except some excavating in the street. No attempt was made to comply with it, nor any intimation given to the plaintiff or contractors of an intention to do so; nor any objection interposed to the j^erformance of any of the work by the contractors, although he saw it from its commencement to its completion, and he,, or his agent, was along the line of the railway almost every day superintending the re-laying of the track, to accommodate it to the new improvement; and as fast as the track was laid cars were run over the same. He knew the city expected the defendant to do its part of the work or pay for it, and said, while the work was progressing, he would be liable, and would do what was right.

The defendant had an election to assert its right and perform its duty under the ordinance, or permit the contractors to do the work required of it. With full knowledge of all the circumstances it chose the latter, and received and accepted the beneficial results of its choice. This should place it in no better position than if it had chosen the former. If it had done so, it would have incurred the expense of the work, and thus received its benefits. It has the benefits at the expense of the city, and is bound to pay the reasonable outlay made in its behalf. It is estopped from controverting its liability to do SO;

In City of New Haven v. Fairhaven and Westville R. Co., 38 Conn. 422, it appeared that the defendant’s charter required it to keep that portion of the street between its rails, and two feet on either side, in repair. The plaintiff improved the street, and assessed upon the defendant’s road, that portion of the cost, and sued for the same. It was contended by the defendant that its charter gave it the right to make the repairs in its own way; and the city could not deprive it of this privilege, or recover their cost. The court thus disposes of that claim. “ The defendant suffered the city to go forward and incur the expense, with full knowledge of the proceeding, and without objection at the time. The defendant must have known that the improvement would largely benefit it in the matter of repairs; that the proceeding was under the statute, and consequently at the expense, in part at least, of the parties benefited. There was no reason to suppose that the city was doing the work of the defendant at its own expense, or at the expense of other parties. The presumption therefore is, in the absence of any finding to the contrary, not only that the defendant consented to the making of the improvement by the city, but that there was an implied understanding that the defendant was to bear its fair proportion of the'expense. We think, therefore, that the defendant should be estopped from setting up this claim.”

In Bishop on Contracts, section 217, the author says it may be stated as a sound rule, supported by authority, that “any benefit, of a sort commonly the subject of pecuniary compensation, which one, not intending it as a gift, confers on another who accepts it, is, in the absence of any agreement in fact, an adequate foundation for the law’s created promise to render back its value.”

And “ in equity whenever the rights of other parties have intervened, by reason of a man’s conduct or acquiescence in a state of things, about which he had an election, and his conduct or acquiescence, or even laches, was based on a knowledge of the facts, he will be deemed to have made an effectual election; and he will not be permitted to disturb the state of things, whatever may have been his rights at first.” Quinlan v. Myers, 29 Ohio St. 511. “Estoppels in pais are called equitable estoppels, not because their recognition is peculiar to equitable tribunals, but because they arise upon facts which render their application in the protection of rights, equitable and just. Courts of equity recognize them in cases of equitable cognizance; but the courts of common law just as readily and freely; and it is never necessary to go into equity for the mere purpose of obtaining the benefit of an equitable estoppel, when the case is not otherwise of equitable jurisdiction.” Barnard v. German American Seminary, 49 Mich. 444.

The judgments of the district court and court of common pleas are reversed, and the court of common pleas .having made no finding in regard to the cost of the work in question, the cause is remanded to that court for trial upon that issue.  