
    The Cleveland Terminal & Valley Railroad Company et al. v. The State, ex rel.
    
      State acting in proprietary and not sovereign capacity — Not permitted to revoke a grant of lands — Made upon valuable consideration which it retains — Land granted to city for streets and other purposes — Deed executed by governor — City may lease such lands, when — Title does not revest in state, when.
    
    1. In conducting transactions with respect to its lands the state acts in a proprietary, and not in a sovereign capacity, and being amenable to all the rules of justice which it prescribes for the conduct of its citizens, it will not be permitted to revoke a grant of lands made upon a valuable consideration which it retains.
    2. When land is granted to a city upon a valuable consideration to be used for streets and other purposes, the title will not, in the absence of an express stipulation to that end, revest in the grantor because the land is subsequently used for street and railroad purposes.
    3. When the governor, in the exercise of authority expressly conferred upon him by statute, grants to a municipality “all the interest of the state” in lands which it owns in fee to be used for streets and other purposes, the municipality, reserving the right to use the same for street purposes without compensation, may execute a valid lease of such lands to a railroad company for its general purposes.
    (No. 13027 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Franklin county.
    The state on relation of the attorney general filed its petition in quo warranto on September 12, 1908, in the circuit court of Franklin county to oust the plaintiffs in error from the further exercise of the alleged right to maintain their tracks, etc., on certain lands in the city of Cleveland, which had formerly been a part of the canal system of the state.
    
      The petition alleged the corporate character of the two railway companies; that on and prior to the 29th day of -April, 1872, the state was the owner in fee and in possession of the premises described, being a strip of land averaging about 100 feet in width, and being about two and seven-eighths miles in length in the city of Cleveland; that on that day the general assembly passed an act (69 O. L.,. 182) entitled, “An act to authorize the city of Cleveland to enter upon and occupy a part of the Ohio canal.” In substance the first section enacts that the city shall be authorized “to take, enter upon, improve and occupy as a public highway, or for other purposes, and for laying therein gas and water pipes, and for sewerage purposes, as the city council of said city' may determine,” the strip described, “but said grant shall be made subject to all outstanding rights or claims, if any, with which it may be in conflict.” The second section provides :
    . “Sec. 2. That said city of Cleveland shall be liable for all damages that may accrue from the vacation and abandonment of so much of said canal as shall be taken by said city; but nothing herein shall relieve the lessees of said canal, or their assigns, from any responsibilities imposed upon them by law, or in any way arising from the instrument or instruments of lease held by them and executed pursuant to any law of the state of Ohio, except as and to the extent of so much of said canal as shall be by said city taken and occupied under the grant herein authorized. Any person, persons or corporation including the lessees of said canal, who may claim damages by reason of the vacation or abandonment of any part of said canal, shall file their claim therefor in writing with the clerk of said city of Cleveland, within one year after the expiration of the time required for the publication of the notice hereinafter required, and for the purpose of ascertaining whether any of the claims so filed are valid against the state, and if so, for the purpose of ascertaining the amount thereof; the lessees of said canal, or any other person or party filing such claim are hereby authorized and empowered to bring an action in the court of common pleas of Cuyahoga, Portage or Franklin county, Ohio, against said city of Cleveland, and said action shall be conducted in all respects to final judgment, as other civil actions in cases between private individuals, and either party shall have the right to second trial, and appeal from the judgment and order of the said court of common pleas, and prosecute writs of error as provided for in suits between individuals under the act to establish a code of civil procedure passed March 11, 1853, or any act supplementary thereto.
    “Whenever the city council of said city by a vote of not less than two-thirds of the whole number of members thereof shall decide to take and use so much of said canal as is herein authorized, the said council shall publish notice thereof, as required by section five hundred and sixty-three of the act to provide for the organization and government of municipal corporations, passed May 7, 1869, and shall also make known their said decision to the governor of the state, and shall deposit wiu. me governor a written release executed by the lessees of the public works, relinquishing any rights they may have in that part of said canal, proposed to be taken and occupied by said city, or a bond duly executed and to the satisfaction of the governor, indemnifying the state from all liabilities and damages which may result from said vacation, and shall in like manner deposit a bond securing the performance of an agreement on the part of said city, to be also filed with the governor; that before said city shall take possession of said part of said canal, or disturb the use thereof, for canal purposes, the said city shall, at its expense and under the direction of the board of public works, connect said canal with the Cuyahoga river at or near the southerly terminus of that portion to be occupied by said city, procure the right of way, unless the same shall be owned by the state at the desired locality, make the necessary excavations, embankments, walls, gates, and locks, needed to connect said canal with said river at the point aforesaid, and remove the present weighlock to such place as shall be determined by the board of public works; said city shall have the power, and shall provide by ordinance to regulate and prescribe the rate to be charged by tug-boats, for towing boats and floats navigating the Ohio canal, to and from the locks at the intersection with the Cityahoga river, to the wharves, docks, or any point on said river, where said boats or floats may desire to discharge or receive freight, which rate shall be graduated according to distance, and shall in no case exceed two dollars and fifty cents for each trip; said city having the right to appropriate to its own use, the gates, locks, and material taken from that portion of the canal taken by said city; provided, the said city of Cleveland shall forever, or so long as the Ohio canal shall be used for the purpose of navigation, keep the channel of the Cuyahoga river, by dredging or otherwise, in good navigable order, for any boats that may now or hereafter be employed in navigating said canal, from the point of intersection to Lake Erie, and thereupon, the governor on behalf of the state being satisfied that said connection has so been made and approved and accepted by the board of public works, shall execute and deliver to the city of Cleveland, a grant of all the interest of the state in that part of said Ohio canal, herein described, to be forever used, and occupied by said city, as its counsel shall determine, for any or all of the purposes before mentioned. The attorney general shall prepare the form of said grant, also the form of the release, bonds and agreement herein named.
    “Sec. 4. This act shall take effect on its passage.”
    That pursuant to the provisions of said act the governor of the state, did, on the 31st of October, 1879, execute and deliver to the city of Cleveland, a deed granting to it the right to use and occupy said lands, as its council should determine, for any and all of the purposes mentioned, upon the terms and conditions of said act. The petition exhibits the deed in which the governor recites that by virtue of authority vested in him by the act of April 29, 1872, to authorize the city of Cleveland to enter upon and occupy a part of the Ohio canal, did for “divers good and sufficient causes and considerations hereinafter named, give, grant and forever quit-claim unto the city of Cleveland, and its assigns, all the right, title and interest of the state of Ohio, in all that part of the Ohio canal,” etc., describing the strip in controversy. This release upon the part of the state is made for and in consideration of the faithful and entire performance on the part of said city of all and singular the conditions and stipulations of said act of the general assembly, and of the directions and requirements of the Board of Public Works of the state of Ohio as set forth in the minutes of said board, accepting and approving of said work agreeably to the provisions of said act, said property as herein transferred to be held and forever used and occupied or disposed of by said city in whatever way the council of said city have determined or may hereafter determine.
    The petition further alleges the acceptance of said grant by the city of Cleveland, and that on the 26th of October, 1875, the city entered into a contract with The Valley Railway Company, a corporation organized under the laws of the state of Ohio, for the purpose of constructing and operating a railroad with its northern terminus in the city of Cleveland and its other terminus at Bowerstown, Harrison county, Ohio, by which contract said city agreed that it would execute to said company a lease of all the lands granted to it by the said act of April 29, 1872, as soon as title to said lands should be conveyed to the city by the state; that on the 24th of March, 1879, the city authorized its mayor and city solicitor to obtain title to said lands and to arrange for the lease thereof to The Valley Railway Company, stipulating that, upon the acquirement of said title and the preparation of said lease, the mayor should notify the railway company that the city is ready to execute the lease upon the delivery by said company to - the city of $265,000 gold-bearing bonds in accordance with the original contract, provided further that said Valley Railway company should agree, subject to forfeiture of said lease if not complied with, that said railroad shall be completed from the city of Cleveland to the city of Canton not later than September 1, 1879.
    It further alleged the actual execution of said' lease pursuant to the direction of the city, and upon compliance with the general terms of the preceding arrangement upon the condition that the said lessee should perform all the stipulations incumbent upon the city, the city also reserving the right to construct a bridge across the canal bed to Canal street and the ground necessary therefor.
    It was further stipulated that the lessee should use said lands for its railway purposes, and upon failure to so continue the lease should become void at the option of the city. By the terms of said lease the city also reserves to itself the right to lay in or under said land all gas, water or other pipes used in any city improvement, construct sewers upon said land or cross the same whenever in its judgment it should be necessary, and the right to open or extend streets across said lands and tracks thereon of such width as it might determine without making any compensation therefor, and it was further stipulated that the lessee should pay all state, county and city taxes, and all special assessments levied upon said land, and that a failure to do so should operate as a forfeiture of the lease. It also contained the following stipulation: “And it is hereby expressly understood and agreed that in case there is hereafter any failure in said title to the lands hereby leased or in the authority of said city to lease the same for the purposes herein stated, the said city shall not be liable to said company for any damages caused by said failure.” Through said lease The Valley Railway Company took possestion of said lands and occupied the same throughout its entire length by means of tracks, sidetracks, switches, depots, etc., in the operation of its road.
    The petition further alleges that by a judicial sale the property of said Valley Railway Company, including the premises aforesaid, were conveyed to trustees by whom it was subsequently conveyed to the plaintiff in error, The Cleveland Terminal & Valley Railroad Company, by which latter company the aforesaid occupation of said premises continues until the filing of the petition.
    The petition also alleges that The Baltimore & Ohio Railroad Company, plaintiff in error, owns a majority of the common and preferred stock in The Terminal Valley Railroad Company; that the city of Cleveland has never occupied as public highways any portion of said premises, except two strips 20 feet in width; that the city of Cleveland by reason of its failure to use said lands, and by reason of said pretended lease to The Valley Railway Company has forfeited all rights under said act and the governor’s deed in pursuance thereto.
    It further alleges that the city was without authority to grant any of said rights or privileges to The Valley Railway Company, and that the said railway company by reason of its exercise of the same is now, and has been since 1895, usurping and unlawfully exercising and using rights, privileges and franchises in violation of the rights of the state of Ohio, and in contravention of law, and that the said Baltimore & Ohio Railroad Company by reason of the facts aforesaid is guilty of a like usurpation.
    To this petition plaintiffs in error demurred specially because of want of jurisdiction of the subject-matter by the court, because of the defect of parties defendant, it appearing from the petition that the city of Cleveland should be made a party, because the franchises challenged have been exercised for more than twenty years before the action was brought, and generally because the petition did not state a cause of action. The circuit court overruled the demurrer. Thereupon the defendants filed separate answers containing substantially like averments. They admitted the passage of the act of April 29, 1872, the execution of the deed by the governor, the contract between the city of Cleveland and The Valley Railway Company, the passage of the various resolutions by the city, and the alleged action of the mayor with respect to the execution of the lease to The Valley Railway Company, that the lease was in terms as set out in the petition, the erection of its railroad tracks, etc., upon the premises described, the succession of the defendant railways to the rights of The Valley Railway Company as alleged in the petition, and their continued occupancy of the premises and denying all other allegations of the petition.
    The answers then allege numerous acts out of which it is alleged estoppels arise against the prosecution of this suit by the state. The first of these is contained in the second defense, and it is a legal estoppel arising out of the passage by the general assembly of the act of April 29, 1872, and the governor’s deed executed in pursuance thereof, whereby it is alleged the fee simple title in the land described conveyed to the city of Cleveland, and its assigns, and thence by it to the railway company whereof the state is estopped to maintain the action. In the remaining defense are alleged numerous acts out of which equitable estoppels are alleged to arise against the prosecution of this action by the state. Stated in a somewhat condensed form they are, the contemporaneous interpretation of the said act of April 29, 1872, by all of the parties, whereby the state, with knowledge acquiesced in the interpretation thereof, put upon the act by the city of Cleveland and the railway companies, the city at its own expense upon that construction, expended large sums of money under the direction of the Board of Public Works, and paying all claims presented for damages by reason of the vacation and abandonment of that portion of the canal land described in the petition connecting the Ohio canal with the Cuyahoga river, and in making necessary excavations, embankments, walls, gates and locks in connecting said canal. with the river at the designated point further south, the removing of the weighlocks then standing to the place determined by the Board of Public Works and performing all and singular the conditions imposed upon the city by. said act, and that the state by its acquiescence therein, with knowledge thereof, and its acceptance of, and its constant use from that date to this of the substituted connection with the Cuyahoga river, being the benefits resulting to the state from said act so performed is also es-topped. Further that the state with full knowledge acquiesced in the expenditure of large sums of money by the railway company, and that the city of Cleveland and the railway companies were in all respects acting upon the assumption and understanding that said deed conveyed to the city a title in fee to said premises; that possession was taken under said instruments, large sums of money were expended in construction, The Valley Railway Compan}'' executing to the city of Cleveland its mortgage gold bonds in the sum of $265,000, which bonds were afterward paid by the railway company. Further by way of equitable estoppel it is alleged that disputes having arisen as to the precise boundaries of the said premises, the general assembly with full knowledge thereof and with full knowledge that all of the adversary parties were in good faith acting upon the belief that a title in fee had been conveyed to the city, passed an act entitled, “An act to provide for the boundaries of the bed of the part of the Ohio canal which has been abandoned and conveyed to the city of Cleveland,” the act being as follows:
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, that tlie court of common pleas of the county of Cuyahoga shall, upon application of the city solicitor of Cleveland, appoint a commission, consisting of not less than three nor more than five suitable persons,' who shall at once proceed to survey and determine the boundaries of the land formerly owned by the state, for the purposes of said canal before its abandonment, and to mark the same by proper monuments, and to make maps ■ and plats of the said land, with necessary descriptions, to be preserved as hereinafter provided.
    “Sec. 2. Said commissioners, in the performance of their duties as such, shall be governed in all respects in accordance with law prescribing the duties of county surveyors, as laid down in Sections 1187-1189 of the Revised Statutes of Ohio, and upon the completion of their work they shall deliver their report, with all the evidence taken, to the county surveyor, who shall forthwith dispose thereof as directed in cases of surveys made and evidence taken by law under the requirements of 1190 of said statutes, as amended April 20, 1881, and the legal effect and use of such plat, survey and deposition shall be governed as the effect and use of the plat, survey and depositions are governed by the provisions of Section 1191 of said statutes, as amended April 20, 1881.
    “Sec. 3. All costs and expenses of these proceedings, including the compensation of said commissioners, shall, after allowance by said court of common pleas, be paid by the person or persons, or corporation, at whose instance or request said proceedings were instituted by the said city solicitor, and the payment of the same shall be secured by a good and sufficient bond to said city by such person, persons or corporation, to the acceptance of the city council of said city; provided, however, that all costs made by the taking of said case or proceedings, or any part thereof, to the district or supreme courts, shall be taxed and paid as the court may direct.
    “Sec. 4. This act shall take effect and be in force from and after its passage.”
    This act was passed with full knowledge on the part of the state of the execution of the lease aforesaid, and that possession had been taken by the railway company thereunder, and had constructed thereon its railroad tracks, switches, and depots, and in the belief that the city had full authority to execute the lease therefor; that pursuant to the passage of the last mentioned act, and-for the purpose of settling the boundaries of said strip, the city solicitor of the city of Cleveland, the railroad company having indemnified it as the act required, applied to the court of common pleas for the exercise of power conferred by said act and expended large sums of money, and that that act was an assurance to the city of Cleveland and the railway company that the state claimed no title to, or interest in said land, but admitted that they were adversely held by title in fee; that thereafter general taxes and excise were paid by the original defendants to the state, county, township and city, upon the basis of the ownership thereof in fee; and that the state with like knowledge acquiesced in the payment of large sums of money by the railway companies in the improvement of their said properties, in the purchase, transfer of title by judicial decree through trustees aforesaid under the statutes of the state to the Terminal Valley Railway Company; that upon the execution of said deed in conformity with the understanding between said state and the city, and the plaintiff in error, the state immediately abandoned that portion of its canal. The answer further alleges that on the 30th of March, 1896, the general assembly passed the following joint resolution:
    “Joint Resolution.
    “Concerning the appointment of a joint committee to investigate the ownership of certain property.
    “Whereas, The Ohio Canal Commission, in their last annual report, make the claim that the Valley Railway Company is illegally in possession of valuable state property in the city of Cleveland, Ohio; therefore,
    
    
      "Be it resolved by the General Assembly of the State of Ohio, That a select committee of three members on the part of the House and three on the part of the Senate be appointed, to thoroughly investigate the claims of the state, and report at their earliest convenience, all the facts pertaining thereto, together with such recommendation as will in their judgment enable the state to secure said property, should it be found that the state has any interest therein.”
    That pursuant to said joint resolution a select committee was appointed, which upon investigation, reported that the railway company was not occupying any land in the city of Cleveland which belongs to the state; that it occupied that portion of the Ohio canal which was granted to the city of Cleveland under an act passed April 29, 1872, entitled “An act to authorize the city of Cleveland to enter upon,” etc.; that the Cleveland Terminal & Valley Railroad Company since that date had occupied, and is now in the possession of said land; that at the time of the passage of said act it was understood and contemplated by the city that said lands were to be leased by said city to the Valley Railway Company, and that said act was designed and intended to, and in fact did, authorize the conveyance to said city of the entire interest of the state of Ohio therein, upon the performance by said city of certain conditions named in said act, which said city fully performed prior to October 31, 1879, expending in so doing upwards of the sum of $280,000. The committee further reported that the governor had executed a deed to the city of Cleveland in pursuance of the authority conferred upon him by said act, that the city had leased the lands to the Valley Railway Company for a period of 99 years, receiving as a consideration therefor $265,000, first mortgage bonds, principal and interest of which have been fully paid, and concluding: “Your committee therefore finds' that the state of Ohio has no interest whatsoever in said lands; that the absolute fee therefore is vested in the city of Cleveland and that the occupation of the same by the Valley Railway Company, as tenants of said city, was and is lawful and not in contravention of any right or interest of the state of Ohio. Your committee therefore respectfully recommends the adoption of a joint resolution for the purpose of forever quieting the title of the city of Cleveland in and to said lands.” Thereupon, on the 23d day of April, 1896, the general assembly passed the following joint resolution:
    “Joint Resolution.
    “Ratifying deed given by ex-governor Bishop to the city of Cleveland for certain canal land.
    
      “Be it resolved by the General Assembly of the State of Ohio, that the deed from Richard M. Bishop, governor, of the state of Ohio, to the city of Cleveland, dated October 31, 1879, executed in pursuance of an act of the general assembly of the state of Ohio, passed April 29, 1872, entitled ‘An act to authorize the city of Cleveland to enter upon and occupy a part of the Ohio canal,’ be and the same is hereby ratified, confirmed and approved as a deed in fee simple conveying all the interests of the state of Ohio in and to said lands. And the state of Ohio hereby disclaims any interests whatsoever in said lands.”
    The answer further alleges that after the passage of said joint resolution, the Baltimore & Ohio Railroad Company purchased a large amount of the stock of the Cleveland Terminal & Valley Railroad Company and advanced large sums of money to that company by way of loans, which were used in the construction of tracks, etc., adapting said premises more fully to railroad purposes; and in like reliance citizens of Cleveland and corporations operating in the city had made improvements on land adjacent to said real estate, as aforesaid, in contemplation of its use for railroad purposes, and upon reliance of the acquiescence of said state therein; that by the passage of said joint resolution the state of Ohio elected to waive, and did waive, irrevocably any and all right which it might theretofore have had to object to the execution by the governor of his deed of October 31, 1879, as well as to the execution by the city of Cleveland of the lease and by the exercise of the railway companies of the things of which complaint is made in the petition.
    The answer further pleads that the action is barred by Section 6789, Revised Statutes, and that the construction of the act of the legislature prayed for in the petition would result in the impairment of contracts and in taking of property of the defendant companies without due process of law.
    To these answers demurrers were interposed in the circuit court; the demurrers were sustained and a judgment of ouster entered in conformity with the prayer of the original petition. The railway companies prosecute the petition in error here for the reversal of said judgment.
    
      Messrs. Kline, Tolies & Morley; Mr. F. A. Durban and Mr. Robert J. King, for plaintiffs in error.
    At the threshold of our discussion it will be well to call the court’s attention to the case of The State, ex rel., v. Railway Co., 53 Ohio St., 189, which we shall hereafter refer to as the Cincinnati case.
    The court held that the act of March 24, 1863 (60 O. L., 44), did not authorize, nor did the governor’s conveyance grant anything to the city of Cincinnati except the right to enter upon, improve and occupy as a public highway and for sewerage purposes, the land in question, subject to which easements only the fee thereof remained in the state.
    The court further held that the easements acquired by the city of Cincinnati could not be transferred by it to another, and that when the city abandoned the use of the land for either of the two purposes aforesaid, its .rights were pro tanto thereby forfeited to the state which owned the fee.
    Where the state of Ohio is acting not as a sovereign, or in a public capacity, but simply as an alleged owner of real estate, her rights must be determined and pursued in the same way as those of an ordinary litigant. State v. Exr. of Buttles, 3 Ohio St., 309.
    Even at common law it was necessary for the sovereign to establish his title by an inquest of office. Schulenberg v. Harriman, 21 Wall., 44; Spokane, etc., Ry. Co. v. Washington, etc., Rd. Co., 219 U. S., 166.
    The action was barred by the statute of limitations. It appears upon the face of the petition that the plaintiff’s alleged cause of action accrued almost twenty-nine years before this suit was brought.
    This court has expressly held that the twenty year limitation applies even where a judgment of ouster is sought because of the exercise of powers clearly ultra vires, and hence not within the charter. State, ex rel., v. Oil Co., 49 Ohio St., 137.
    The acts complained of are authorized by the lease from the city of Cleveland. The governor’s deed conveyed the fee to the city of Cleveland.
    The differences between the Cincinnati and Cleveland deeds are as marked as they are significant. The Cincinnati deed conveys nothing. It does not purport to convey any definite estate or interest in any definite described property. Throckmorton v. Moon, 10 Ohio, 43.
    The state was the owner of the fee in both instances. In the case of the Cleveland lands, that fee was conveyed by an instrument containing apt words for that purpose, of which the meaning is plain and the legal effect certain; while in the case of the Cincinnati lands, the governor’s deed does not even purport to convey the fee.
    It will be noted at once that we have in the act of April 29, 1872, not merely an authority, but a mandate from the general assembly to the governor, to execute and deliver to the city of Cleveland the very sort of conveyance which in fact he did. The language is virtually identical with that which he employed. Its meaning is too plain to require construction. Its effect cannot be explained away. The state, being the owner of the fee, directs that upon certain conditions, which confessedly have been complied with, that fee should be granted. 14 Am. & Eng. Ency. Law (2d ed.), 1111; Fogg v. Clark, 1 N. H., 167; Dow v. Whitney, 147 Mass., 1, 16 N. E. Rep., 725.
    
      An easement, but not a fee, may be created or transferred without definite location and the grantee authorized to fix by actual selection and user the boundaries within which his rights must be exercised.
    This is what the Cincinnati act provided for and this is one reason why this court held as it did in the Cincinnati case. Bannon v. Angier, 2 Allen, 128; Railway Co. v. Williams, 53 Ohio St., 268; Warner v. Railroad Co., 39 Ohio St., 70.
    The uses of the land referred to in the Cleveland act show that the fee was to be granted. It is apparent' that in the Cincinnati act two specified uses and none other are contemplated. On the other hand, in the Cleveland act a general use for such purposes as the city through its legislative body might determine.
    We submit that it clearly appears from a comparison of the two acts that in the one (the Cleveland act), the state’s attitude is that of a proprietor about to part with his ownership and providing for the conditions growing out of such a change; while in the other (the Cincinnati act), the state’s attitude is that of a proprietor who is conferring certain easements in his land and is solicitous that they shall not be so exercised as to unnecessarily interfere with his permanent and continuing rights as owner of the fee.
    On March 26, 1864, an act was passed “to authorize the city of Toledo to enter upon and occupy a part of the Miami and Erie canal as a public highway and for sewerage and water purposes.” 61 O. L., 67, 68 O. L., 17.
    
      It will be seen at once that this act was in almost every respect the same as the Cincinnati act, while in the same measure the Cleveland act differed from both.
    The state continued to use the canal and did not abandon it until 1869. Malone v. Toledo, 28 Ohio St., 643; Paige v. Cherry, 17 C. C., 579.
    The nature of the consideration for the Cleveland grant shows that it was intended to pass the fee.
    Three obligations are laid upon the city of Cleveland by the act of April 29, 1872: first, the payment of damages arising out of the vacation and abandonment of the canal or the indemnification of the state against the same; second, the establishment of a new connection between the canal and the Cuyahoga river, incident to which was the acquisition of necessary right of way and the performance of all the construction work; third, the perpetual keeping of the channel of the Cuyahoga river in good navigable order through to Lake Erie. Dalrymple v. Wyker, 60 Ohio St., 108.
    The construction placed by the attorney general and the governor upon the Cleveland act is entitled to great weight. State v. Vanderbilt, 37 Ohio St., 641; Work v. Corrington, 34 Ohio St., 75; United States v. Hermanos y Compania, 209 U. S., 337.
    It will be remembered that in the Cincinnati case that portion of Eggleston avenue lying between Pearl street and Front street had been actually vacated by action of the city council, in striking contrast to which is the retention by the city of Cleveland in its lease to the Valley Railway ■of the right to open and use streets, without compensation over any part of the property in question. 33 Cyc., 37; Olcott v. Supervisors, 16 Wall., 678; 1 Elliott on Railroads, Sec. 33.
    Where in a conveyance mention is made of the use to which it is intended that the land granted shall be put by the grantee, the title does not revert or become susceptible to forfeiture merely because that use is departed from. Upon this proposition the authorities are practically unanimous. Wright v. Morgan, 191 U. S., 55; Stuart v. Easton, 170 U. S., 383; Rawson v. Uxbridge, 7 Allen, 125; Commissioners v. Young, 59 Fed. Rep., 96.
    The points of similarity between the Toledo and the Cincinnati acts and the Cleveland act show that the vital changes made in framing the latter must have been intentional, and they hence assume a controlling importance. Hadley v. Perks, L. R., 1 Q. B., 457; Bloom v. Richards, 2 Ohio St., 387.
    We have here the state’s enactment of 1872, the intent and purpose whereof seems plainly to authorize the grant afterwards executed by the governor of the state, transferring the entire interest of the state in these lands to the city of Cleveland. We have also the payment of a large and valuable consideration still enjoyed by the state, which consideration was full, adequate and complete for the fee simple conveyance. We have also the state’s repeated and uniform recognition and confirmation not only of such transfer of title, but also of the lease from the city of Cleveland to The Valley Railway Company — by statute, by joint resolutions, and by a consistent course of conduct covering a period of nearly thirty-eight years. We have also the change of position by the city of Cleveland, and both the defendants, involving vast expenditures and huge investments, all in reliance upon the state’s conduct in that regard, the state knowing all the while what was being done, and that its conduct was the inducement thereto. In the face of all this, the state now seeks to repudiate its entire course of conduct, and to entail immense losses on the defendants and the city of Geveland, by virtually destroying that which they have built up, in the reliance aforesaid. The city of Cleveland and the defendants having parted with full, adequate and valuable considerations, are now to be deprived of that for which these considerations were paid. Having been induced to part with their property to the advantage of the state, they are to be deprived of that for which they bargained. A plain case of estoppel is presented. Every consideration of equity, good conscience and fair dealing, points to this conclusion. Clearly, no individual or private corporation could for a moment escape the estoppel. We cite, therefore, on the doctrine of estoppel as applicable to the state under the facts set forth in this case: Flowers v. Logan County, 138 Ky., 59, 137 Am. St. Rep., 361; Curran v. Arkansas, 15 How., 304; Hall v. Wisconsin, 103 U. S., 5; Davis v. Gray, 16 Wall., 203; People v. Stevens, 71 N. Y., 527; Chapman v. State, 104 Cal., 690, 43 Am. St. Rep., 158; Carr v. State, 127 Ind., 204, 22 Am. St. Rep., 626; State v. Taylor, 28 La. An., 460; Fletcher v. Peck, 6 Cranch., 87; State, ex rel., v. Power Co., 32 L. R. A., 391; Attorney General v. Railroad Co., 27 N. J. Eq., 1; Commonwealth v. Turnpike Co., 153 Pa. St., 47; Audubon County v. Emigrant 
      
      Co., 40 Ia., 460; Sioux City v. Railway Co., 129 Ia., 694; Walker v. United States, 139 Fed. Rep., 409, 148 Fed. Rep., 1022; United States v. Budd, 43 Fed. Rep., 630; United States v. White, 17 Fed. Rep., 561; United States v. Tin Co., 23 Fed. Rep., 279, 125 U. S., 273; People, ex rel., v. Auditor General, 38 Mich., 747; Simplot v. Railway Co., 16 Fed. Rep., 350; Los Angeles v. Cohn, 101 Cal., 373; Oliver v. Synhorst, 48 Ore., 292; Turnpike Co. v. Waechter, 15 C. D., 605; United States v. Wagon-Road Co., 54 Fed. Rep., 811; United States v. Railroad Co., 142 U. S., 615.
    In the case at - bar the act of the governor in executing this deed, was not the act of an agent or official of limited power. It was the executive act of the state, performed by the state in the only way possible for the state to act executively. Moreover, the mode of execution of the enactment in question; and the form and scope of the grant, were prepared and approved by the attorney general, whose action in that behalf was expressly invoked by the terms of the statute. If the state is not absolutely concluded by the form of the conveyance thus sanctioned both by the attorney general and the governor, their practical construction of the legislature’s intent is entitled to very great weight, and taken in connection with all the other facts pleaded, goes far to feed the estoppel. Insurance Co. v. Hoge, 21 How., 35; Edwards v. James, Admr., 7 Tex., 372; Scanlan v. Childs, 33 Wis., 663; State v. Smith, 71 Ohio St., 39; Indiana v. Milk, 11 Fed. Rep., 390; People v. Stevens, 71 N. Y., 527; Lindsey v. Hawes, 2 Black (U. S.), 554; St. Paul, etc., Rd. Co. v. Railroad Co., 26 Minn., 31.
    The authorities are almost unanimous in holding that a state can be estopped by the enactments or resolutions of its legislative body. Opinion of Court, 49 Mo., 216; Penrose v. Griffith, 4 Bin. (Pa.), 231; Saunders v. Hart, 57 Tex., 8; State v. Dent, 18 Mo., 313; Alexander v. State, 56 Ga., 478; United States v. Wagon-Road Co., 54 Fed. Rep., 807; Enfield v. Permit, 5 N. H., 280; Mower v. Kemp, 42 La. An., 1007; State v. Galveston City Co., 38 Tex., 12.
    Where a state, by statute, grants lands, rights, privileges or franchises, and where it is not shown that there was any fraud or imposition practiced in procuring the passage of the statute, the state will be estopped to deny the validity of the grant. Attorney General v. Wharf Co., 12 Gray, 553; Neito’s Heirs v. Carpenter, 7 Cal., 527; Land Co. v. Saunders, 103 U. S., 316; Commonwealth v. Andre, 3 Pick., 224; State v. Ober, 34 La. An., 359; State, ex rel., v. Bailey, 19 Ind., 542; State v. Railroad Co., 89 Mich., 481; Michigan v. Railroad Co., 69 Fed. Rep., 116; Mt. Vernon v. State, 71 Ohio St., 428; People v. Rock Island, 215 Ill., 488, 106 Am. St. Rep., 185; United States v. McLaughlin, 30 Fed. Rep., 161; United States v. Stinson, 125 Fed. Rep., 907; Flowers v. Logan County, 138 Ky., 59, 137 Am. St. Rep., 354; Johnson v. So. Pac. Co., 196 U. S., 1; Wetmore v. Markoe, 196 U. S., 68; United States v. Freeman, 3 How., 556; Stockdale v. Ins. Co., 20 Wall., 331; Cope v. Cope, 137 U. S., 682; Cincinnati v. Bridge Co., 20 C. C., 396.
    
      
      Mr. Timothy S. Hogan, attorney general; Mr. John A. Alburn and Mr. Frank Davis, Jr., for defendant in error.
    This action is not barred by the statute of limitations. We are not questioning the right of plaintiffs in error to lease lands generally under the authority of their respective charters. We are questioning a particular lease and questioning the occupation and use of lands belonging to the state of Ohio. Once admit that quo warranto is the proper remedy in this case, and it must follow that the state cannot be deprived of its sovereign power over its lands by a statute of limitations, and it must follow also that the state cannot be barred by the occupation and use of a corporation any more than it can be barred by occupation and use of state lands by individuals. Seeley v. Thomas, 31 Ohio St., 308; State, ex rel., v. Board of Public Works, 36 Ohio St., 414.
    These Ohio decisions are in entire harmony with the uniform decisions of United States courts upon this subject. United States v. Railroad Co., 118 U. S., 125; United States v. Insley, 130 U. S., 266.
    It is well recognized that no statute of limitations runs against the state unless the state has specifically provided that such statute of limitations shall apply to it. It is universally conceded that ho statutes apply to the state of Ohio which are in anywise in derogation of the sovereignty of the state, or any rights of the state, unless such statute is specifically made to apply to the state.
    The immunity of the state from the statute of limitations is well known as an attribute of sovereignty. 1 Bates’ Digest, 1135; State, ex rel., v. Railway Co., 53 Ohio St., 189; State, ex rel., v. Bingham, 14 C. C., 245, 9 O. C. D., 522.
    Since it is admitted that the state was the owner in fee of those lands on April 29, 1872, it must be- presumed that the state continues as owner in fee, unless the state has clearly and unequivocably parted with all its title to such lands. Cooley Const. Lim. (7 ed.), 565; Blair v. Chicago, 201 U. S., 400; Cleveland Elec. Ry. Co. v. Cleveland, 204 U. S., 116; Perrine v. Canal Co., 9 How., 172; Penn. Rd. Co. v. Commission, 21 Pa. St., 22; Railroad Co. v. New Orleans, 34 La. An., 429.
    The deed of Governor Bishop must conform with, and should be construed by, the provisions of the act, and the act should not be construed by the deed.
    Although plaintiffs in error are compelled to admit this in their brief, they nevertheless attempt to give weight to the language of the deed of Governor Bishop. We believe that the law is well settled that contemporaneous • construction of other than judicial officers cannot change the terms of an act of the general assembly. The words and expressions in Governor Bishop’s deed to which plaintiffs in error call the attention of the court, must therefore be construed in favor of the state.
    When we remember that the act was passed April 29, 1872, and that the deed of Governor Bishop was given October 31, 1879, more than seven and one-half years after the passage of the act, the deed does not become a contemporaneous construction. Even if it did, any construction which plaintiffs in error may attach to such deed will be more than offset by the construction which the city of Cleveland gives to the act of 1872 by expressing in its lease of November 4, 1879, its doubt as to “the authority of said city to lease the same for the purposes herein stated.” Blair v. Chicago, 201 U. S., 470; Cleve. Elec. Ry. Co. v. Cleveland, 204 U. S., 116.
    The state retained and still retains the fee in such lands and the city received and held only a privilege or license for the specific purposes set out in the act of 1872.
    The legislation in Ohio relating to the abandonment of canal lands shows a fixed policy on the part of our general assembly to part with no title in state lands unless the statute clearly and specifically sets out in definite terms the intention of the state to part with such title.
    That the Cincinnati act (60 O. L., 44) conveyed only a privilege or license and not a fee simple, is fully decided in State, ex rel., v. Railway Co., 53 Ohio St., 189.
    That the Toledo act (61 O. L., 67) conveyed a privilege or license and not a fee is shown in Malone v. Toledo, 28 Ohio St., 643. The fact that 61 O. L., 67, conveyed only a privilege or license to the city of Toledo is further shown by the act of 68 O. L., 17, by which the general assembly conveyed to Toledo a fee and authorized the governor to deliver to Toledo a quit-claim deed to the lands in which Toledo received a privilege or license by the act of 61 O. L., 67.
    The similarity of the Cleveland act to the Cincinnati and Toledo acts above cited, clearly demonstrates that the general assembly intended to convey to the city of Cleveland only a privilege or license, just as the state conveyed only a privilege or license to Cincinnati by the act of 60 O. L., 44, and only a privilege or license to Toledo by the act of 61 O. L., 67.
    The attempt of the defendant, The Cleveland Terminal & Valley Railroad Co., in its brief, to distinguish between the Cleveland grant of 69 O. L., 182, and the Cincinnati grant of 61 O. L., 44, is not only contrary to the policy of Ohio legislation, as above shown, but also exaggerated, inaccurate and contrary to the plain meaning of the language employed in these two acts.
    The city council of Cleveland, like the city councils of Cincinnati and Toledo, could only determine as between the specific purposes set down in each act applying to the use and occupation by the city. The words of the Cleveland act “used and occupied by said city, as its council shall determine, for any or all of the purposes before mentioned,” clearly indicate that the Cleveland council can do nothing outside of the “purposes before mentioned” in Section 1 of the Cleveland act. No broader meaning can possibly be given to the 'words “as its council shall determine.” Likewise, the defendants err in their interpretation of the words “all the interest of the state.” The Cleveland act does not authorize the governor to convey a “grant of all the interest of the state.”
    The act of 1872 granted only a privilege, permit or license to the city of Cleveland, giving the city authority to use these lands, but not a title in the lands. State, ex rel., v. Railway Co., 53 Ohio St., 189; Bouvier’s Law Dict. and Black’s Law Dict., “license;” Morrill v. Mackman, 24 Mich., 282; Stewart v. Railway Co., 89 Mich., 315; Metcalf v. Hart, 3 Wyo., 513; Cook v. Ferbert, 145 Mo., 462; Rodefer v. Railroad Co., 72 Ohio St., 281; Yeager v. Tuning, 79 Ohio St., 124; Fowler v. Delaplain, 79 Ohio St., 289.
    Any arguments to the effect that the state is estopped cannot prevail in this case. Estoppel was the main defense in the Eggleston avenue case in the Cincinnati act and the supreme court so thoroughly disposed of that question in the case of State, ex rel., v. Railway Co., 53 Ohio St., 189, that it can no longer be claimed in this state that the state can be estopped in a case of this character.
    The real question is, “What is the state of Ohio?” Is it any officer of the state acting legally or illegally, and doing things whether authorized or unauthorized? Nothing of the kind. Bingham v. Miller, 17 Ohio, 445. The state is not bound except through legal and authorized acts of its officers and only in case the officers of the state act in strict accord with the constitution and laws of the state.
    The state is not estopped in the manner claimed by plaintiffs in error. Improvement Co. v. McCourt, 26 Ore., 93; Land & Cattle Co. v. State, 68 Tex., 526; Pulaski County v. State, 42 Ark., 118; State, ex rel., v. Brewer, 64 Ala., 287; Throop on Public Officers, Sec. 551; Mechem’s Public Officers, Sec. 924; United States v. Kirkpatrick, 9 Wheat., 735; State v. Tin & Japan Co., 66 Ohio St., 182.
    The joint resolution of April 23, 1896 (92 O. L., 793), relied upon by plaintiffs in error, had no legal effect whatever upon the title of these lands, and a joint resolution, which may be passed by a majority of a quorum in each house in accordance with the rules of the two houses, cannot have the effect of a law which must be passed by a majority of the members elected to each house in accordance with the rules prescribed by the constitution of the state of Ohio. No act or law can be passed, amended or repealed in this state except by an act or law which conforms with the provisions of the constitution of Ohio. May v. Rice, 91 Ind., 546; Barton v. McWhinney, 85 Ind., 481; State v. Rogers, 10 Nev., 250; Boyers v. Crane, 1 W. Va., 176; State v. Patterson, 4 S. E. Rep., 350.
    That a resolution of the general assembly is not a statute is clearfy set out in the case of Barry v. Viall, 12 R. I., 18; Brown v. Fleishner, 4 Ore., 132; Wolfe v. McCaull, 76 Va., 876; In re District Court, 34 Ohio St., 431; Seat of Government Case, 1 Wash. Terr., 115; Sjoberg v. Security, etc., Assn., 73 Minn., 203; Lewis’ Sutherland Stat. Const. (2 ed.), 115-123; Cooley on Const. Lim. (6 ed.), 93; Mullan v. State, 114 Cal., 578.
    The state believes that State, ex rel., v. Railway Co., 53 Ohio St., 189, is conclusive as to practically every question raised in this case, with the possible exception of the question of parties, and the question of the effect of the joint resolution, although the principles laid down by the supreme court in this case are decisive on the two latter questions, first, since the city of Cincinnati was involved in the Cincinnati case, and second, since the state if not estopped by unauthorized actions of its state officers in the Cincinnati case cannot be estopped by actions of state officers in passing a joint resolution containing matter not authorized by the constitution of Ohio.'
    
      Mr. D. K. Watson, of counsel, for defendant in error.
    As the present proceeding does not seek a forfeiture of. the charter of the defendant, the five years’ limitation does not apply; neither does the twenty years’ limitation apply, because the proceeding is not directed against a “power or franchise under the charter of the corporation.” Its object is to oust the defendant from a right it was exercising in respect to the canal lands of the state, and no limitation is prescribed to the bringing of an action to secure that end.
    The state maintains in this case that it had a fee simple title to the land involved. That under the act of April 29, 1872, it conveyed to the city of Cleveland only the right “to take, enter upon and improve” as a highway the land for the purpose mentioned in the act, the title remaining in it. That when the city leased the land for railroad purposes, it forfeited any right or interest it had therein. Malone v. Toledo, 28 Ohio St., 655, 34 Ohio St., 541; State, ex rel., v. Railway Co., 53 Ohio St., 189; State v. Griftner, 61 Ohio St., 201; State v. Snook, 53 Ohio St., 521; Vought v. Railroad Co., 58 Ohio St., 123; Miller v. Wisenberger, 61 Ohio St., 583.
    
      The state starts then in this case with the title to the land involved admittedly in her. This being so, the burden of showing that the title passed from the state is upon the plaintiffs in error. State v. Tin & Japan Co., 66 Ohio St., 183.
    The deed to the city of Cleveland did not convey the fee of the state in the lands in question.
    We shall insist that whatever title the city of Cleveland took it got from the act of April 29, 1872, and not from the deed which the governor executed to the city on the thirty-first of October, 1879. The deed could not of course rise above the act, and could not convey a greater interest in the property in question than the act authorized. It is the language of the act, and not of the deed, that must determine the rights of the city of Clevein the premises in question. Vought v. Railroad Co., 58 Ohio St., 123; Webster v. Clear, 49 Ohio St., 392.
    The language of the grant to the city of Toledo was the first to come under judicial consideration. Malone v. Toledo, 28 Ohio St., 660.
    The next consideration of this language is found in the case so frequently referred to, of The State, ex rel., v. Railway Co., 53 Ohio St., 189.
    It will be observed that the act of 1863 limited the grant to the city of Cincinnati, and it will also be observed that the deed of Governor Tod followed the language of the act, and limited the grant to the city of Cincinnati. The same can be said of the act of March 26, 1864, which authorized the governor to make a deed to the city of Toledo, and the same may be also said of the deed which Governor Haj^es made to the city of Toledo. In each of these acts and in each of these deeds the grant was to the city and not to its assigns. The same is true of the act of April 29, 1872, which authorized the governor to make a conveyance to the city of Cleveland. But when we come to examine the deed which was made by the governor to the city of Cleveland, we find a very wide departure from the language of the act authorizing the deed to be made. Instead of limiting the grant to the city of Cleveland, there was inserted in the deed, immediately after the word “Cleveland” the words, “and its assigns.”
    Further on in the deed, we find the words “or disposed of,” following the words, “to be held and forever used and occupied.” Making the deed read, “to be held and forever used and occupied or disposed of.” The words “or disposed of” are not in the act of April 29, 1872, conveying the land to the city of Cleveland. These words, together with the words, “and its assigns,” above referred to, were placed in the deed without authority of law, either ignorantly, or by design.
    Again, in the closing part of the act authorizing the governor to make a deed to the city of Cleveland, we find this language: “A grant of all the interest of the state in that part of the said Ohio canal herein described, to be forever used and occupied by said city, as its council shall determine, for any or all other purposes before mentioned.”
    This language, which is such a wide departure from the language of the act, could hardly have been inserted in the deed innocently. It is this language of the deed which counsel rely upon to establish a deed in fee simple in the city of Cleveland. We insist that all words in the deed in excess of those which appear in the act, must be disregarded by the court. State v. Ward & Briggs, 9 Heisk. (56 Tenn.); 124; Commissioners v. Nichols, 14 Ohio St., 260; State, ex rel., v. Board of Education, 35 Ohio St., 519.
    It is claimed by opposing counsel that the words “for other purposes,” which appear in the act of April 29, 1872, authorizing the governor to make a deed to the city of Cleveland, are broad enough to have justified the city of Cleveland in deeding the premises for railroad purposes.
    But this contention is certainly erroneous. Those words, as used in the act, mean simply other purposes similar to those designated in the act for which the city of Cleveland might use the property. The words “or other purposes,” have frequently undergone judicial construction. Building & Savings Assn. v. Graham, 7 Neb., 173; Fishkill v. Road Co., 22 Barb., 635; Commissioners v. Mining Co., 3 Colo. App., 223; United States v. Garretson, 42 Fed. Rep., 22.
    The contention of the state in this case is, that when the city of Cleveland transferred the land involved in this case to the railroad company to be used for the purpose of a railroad, as it did, by that act it permitted the use of the land for a purpose which thwarted and defeated the purpose for which the land was conveyed to the city of Cleveland. Amos v. State, 73 Ala., 501; Spier v. Baker, 120 Cal., 370; Shepherd v. Helmers, 23 Kans., 508; Ryerson v. Utley, 16 Mich., 277.
    
      The first clause of the act provides that authority or permission shall be granted in the manner hereinafter stated, to the city of Cleveland “to take, enter upon, improve and occupy as a public highway, or for other purposes, and for laying therein gas and water pipes, and for sewerage purposes, as the city council of said city may determine,” etc., followed by a description of the real estate conveyed to the city of Cleveland. This language is largely relied upon by counsel for the plaintiffs in error to show that the grant from the state to the city of Cleveland was a grant in fee simple, and passed a fee simple title from the state to the city of Cleveland.
    Such a claim, we maintain is preposterous. Corwin v. Cowan, 12 Ohio St., 632; McCombs v. Stewart, 40 Ohio St., 664; Washington Cemetery v. Railroad Co., 68 N. Y., 591.
    Among the different acts passed by the general assembly of this state, by which certain permits were granted in certain portions of the Ohio canals, there are three which it will be instructive to the court to examine, as each has undergone judicial interpretation. The first act was passed March 24, 1863 ( 60 O. L., 44); the second was passed March 26, 1864 (61 O. L., 67), and the third act was passed April 29, 1872 (69 O. L., 182).
    These are all the acts which have been passed by the general assembly of Ohio by which any city of the state was authorized to enter upon any part of the canal and use it for the purpose of a highway. No one can read these three enactments without noticing the remarkable similarity in the language of the grants. If not precisely alike in language they are • certainly alike in meaning and substance. There is no difference between the first and the second of these acts, to-wit, the one to the city of Cincinnati and the one to the city of Toledo. The only respect in which the one to the city of Cleveland differs is that it contains the words “to take” and also the words “for other purposes.”
    It has been observed that this court has construed the grants in the Cincinnati and in the Toledo acts as not conveying a title in fee. But on the contrary, the fee to the property conveyed to the city of Cincinnati and the city of Toledo remained in the state.
    These three acts are in pari materia, that is to say, they all relate to the same general subject-matter and come within the same general class of acts and consequently are to be construed together. Cincinnati v. Guckenberger, 60 Ohio St., 353; The State, ex rel., v. Jones, 66 Ohio St., 453; Street Ry. Co. v. Pace, 68 Ohio St., 205; Sutherland on Stat. Constr. (1 ed.), Sec. 288; Commissioners v. Baker, 74 Ohio St., 269.
    Opposing counsel have devoted many pages of their brief in maintaining that the state was estopped to bring this action, by the act of 1872, and the deed to the city of Cleveland, and by the conduct of the state officers. But estoppel cannot apply against the state in this case. The whole transaction was a public one and the plaintiffs in error, as well as their predecessors, were bound at their peril to know the authority of those with whom they dealt. Mechem on Public Officers, Secs. 829, 830; The Floyd Acceptances, 7 Wall., 680; Sutro v. Pettit, 74 Cal., 332; McDonald v. Mayor, 68 N. Y., 23; School Township v. Furnishing Co., 107 Ind., 45; Sturgeon v. Hampton, 88 Mo., 204; Boggs v. Mining Co., 14 Cal., 280; State v. Griftner, 61 Ohio St., 201; Brant v. Coal & Iron Co., 93 U. S., 337; Hill v. Epley, 31 Pa. St., 334; Crary v. Dye, 208 U. S., 521; Ensel v. Levy & Bro., 46 Ohio St., 255; State v. Tin & Japan Co., 66 Ohio St., 182; Steines v. Franklin County, 48 Mo., 167; Commonwealth v. Sanderson, 40 Pa. Sup. Ct. Rep., 416.
    The passage of senate joint resolution No. 50 was a confession by the plaintiffs in error that they had no title to the land involved in this suit. If their defense that the state was otherwise estopped, or that the act of 1872, or the deed made in 1879 in pursuance of said act, were valid defenses, why should they have hastened to have this resolution passed?
    They claim that the passage of the resolution was an exercise of legislative power and therefore binding in this action.
    It is the contention of the state that a joint resolution of the general assembly of Ohio, and a bill passed by the same body, are not equal in the expression of the legislative will or authority. In other words, that a joint resolution is not a law within the meaning of the Ohio constitution. The distinguishing feature between a joint resolution and a bill when this resolution was passed, were very broad and now are broader. Secs. 9 and 16, Art. II, Constitution; Wolfe v. McCaull, 76 Va., 876; Railroad Co. v. Chicago, 174 Ill., 445; San Antonio v. Micklejohn, 89 Tex., 82; Rice, Auditor, v. State, 95 Ind., 46; Blanchard v. Bissel, 11 Ohio St., 103; State v. Kinney, 56 Ohio St., 724; Hunt v. Lambertville, 45 N. J. L., 281; Newman v. Emporia, 32 Kans., 463; 34 Cyc., 1667; Mullan v. State, 114 Cal., 578; May v. Rice, Auditor, 91 Ind., 546; Boyers v. Crane, 1 W. Va., 176; Balderston v. Brady, 17 Idaho, 568; Zanesville v. Telegraph, etc., Co., 64 Ohio St., 67; Denny v. Mattoon, 2 Allen, 361; Forster v. Forster, 129 Mass., 559; Opinion, 3 R. I., 299; Burt v. Williams, 24 Ark., 94; Taylor & Co. v. Place, 4 R. I., 324; De Chastellux v. Fairchild, 15 Pa. St., 18; Fairview v. Giffee, 73 Ohio St., 183; Greenough v. Greenough, 11 Pa. St., 489; Calhoun v. McLendon, 42 Ga., 405; Lawson v. Jeffries, 47 Miss., 686; Goodsill v. Brig St. Louis, 16 Ohio, 179; Schooner Aurora Borealis v. Dobbie, 17 Ohio, 126.
    It is claimed that the resolution was a ratification and confirmation of the deed.
    Before there can be a ratification or a confirmation there must be something which can be ratified or confirmed; something in esse; something in existence. This is a fundamental rule of the law of ratification or confirmation. Here there was nothing to ratify or confirm, hence the resolution was void. Blessing v. House’s Lessee, 3 Gill & Johns. (Md.), 308; Hone v. Woolsey, 2 Edw. Ch. Rep., 291; Braham v. Mayor, 24 Cal., 586; Carter v. Pomeroy, 30 Ind., 441.
    
      As applied to the present case, the resolution was intended to ratify and confirm the interest in the premises which the deed conveyed. The deed itself was the mere instrument of conveyance; it was the interest, therefore, which the state was supposed to have parted with in the lands described, which the resolution undertook to ratify. As this interest had reverted to the state, and had ceased to exist at the time the resolution was passed, it is apparent that under the definition of ratification and confirmation the resolution failed to accomplish anything. Earl of Leicester v. Heydon, 1 Pl. Com., 398; Hays v. State, 7 Hill, 132; 7 Words & Phrases, 5930; People v. Supervisors, 16 N. Y., 424; Bigelow v. Forrest, 9 Wall., 339; Elec. Ry. Co. v. Cleveland, 204 U. S., 130; Railroad Co. v. Commission, 21 Pa. St., 9; Cooley on Const. Lim. (7 ed.), 564-565; Binghampton Bridge Case, 3 Wall., 51; Fertilizer Co. v. Hyde Park, 97 U. S., 659; Webster v. Clear, 49 Ohio St., 399; Meighen v. Strong, 6 Minn., 177.
    We maintain that the operation of' the joint resolution if it is held valid would amount to a repeal of the act, and this is supported by a decision of this court. Commissioners v. McComb, 19 Ohio St., 320.
    But the provisions of the joint resolution cannot be permitted to stand, because of the holding of this court in the case of State v. Kinney, 56 Ohio St., 721. Thomas v. Evans, 73 Ohio St., 140.
    Since the state undertook the construction of its canals, this is the only instance in which the legislature has undertaken to transfer title to canal land belonging to the state by joint resolution. The unbroken line of precedence is by an act of the legislature and a deed by the governor executed in pursuance of the act, except perhaps where a mere right of way or lease was executed in one or two instances.
    Direct reference is made by the resolution to the deed made by Governor Bishop, and the permission conveyed by that deed to the city of Cleveland was sought to be enlarged into a deed in fee simple. Mergerle v. Ashe, 27 Cal., 322, 328; Shepley v. Cowan, 52 Mo., 599; Boatner v. Ventress, 8 Mart. N. S. (La.), 335; Oakland v. Water Front Co., 118 Cal., 160.
    We maintain the state holds its canal lands in trust for the people of the state and that it cannot give them away to railroad corporations. The State, ex rel., v. Railway Co., 37 Ohio St., 171.
    This case in many respects is very similar to the great case of Railroad Co. v. Illinois, 146 U. S., 387. Hunter v. Williams, 16 La. An, 129; People v. Kerr, 27 N. Y, 188; Mt. Hope Cemetery v. Boston, 158 Mass., 520; Water Co. v. Gardner, 185 Mass., 194; Opinion, 58 Me., 591; Board of Education v. State, 51 Ohio St., 531.
   Shauck, J.

Notwithstanding obvious and important differences between the case here presented, and that which was presented in State, ex rel., v. Railway Company, 53 Ohio St., 189, some propositions which are material here, and which might otherwise be regarded as doubtful, are determined in that case. Conclusions material to this case which are settled in that and in other cases, and statutory provisions cited in the briefs of counsel, may be stated without argument as being no longer open for discussion. Their statement will conduct us to the points in the present case entitled to further, consideration. The propositions to be taken as established are: the state became the owner in fee of all the lands, which it originally used in the construction of its canal system, including the lands in controversy; quo warranto will lie to protect the interest of the state in lands so acquired; the circuit court of Franklin county had jurisdiction of the subject of the action; no limitation bars the action since it does not seek the forfeiture of a charter, or to prevent the exercise of a power or franchise under its charter; the statutes of the state empower the attorney general to make this relation without further authorization; to test the rights asserted by the railway companies under the lease from the city of Cleveland, it is not necessary that the city be joined as a party, and the deed of the governor to the city of Cleveland is valid and effective only so far as it is authorized by the act of April 29, 1872, or ratified by subsequent acts of the state.

The case cited, State, ex rel., v. Railway Company, presents not only points of resemblance, but points of difference which are of not less legal importance. That case affirmed the authority of the state by a proceeding in quo warranto to preserve and protect an interest which it retained in lands, notwithstanding its previous grant of a mere easement. It is no authority whatever for the statement that such an action may be maintained in a case where the state has no interest ■whatever to protect; and it leaves the question of the state’s interest in the present case wholly unaffected. In the present case the grant in controversy was upon a valuable consideration, in the former case it was upon no consideration whatever. In that case nothing was granted but an easement. In the present case the act of the general assembly provided that “the governor on behalf of the state, being satisfied that said connection has been so made and approved and accepted by the Board of Public Works, shall execute and deliver to the city of Cleveland, a grant of all the interest of the state in that part of said Ohio canal herein described, to be forever used and occupied by said city, as its council shall determine, for any and all of the purposes before mentioned;” and the governor in the exercise of the power so conferred upon him did “give, grant and forever quit claim unto the city of Cleveland and its assigns, all the right, title and interest of the state of Ohio” in that part of the canal. In the case cited the city of Cincinnati vacated and abandoned Pearl street which was a prominent portion of the grant, whereas, here the city has reserved the right to cross the premises leased to the railway company for such streets as it may desire to establish without the payment of compensation therefor, and it is continuing in the exercise of that right. In that case nothing occurred after the making of the grant whereby the state could be said to be estopped from the assertion of the rights which it claimed, except the legal estoppel arising from its deed and the enactment by which it was supposed to be authorized; whereas, here are numerous acts out of which by familiar doctrines of equity, estoppels arise against the prosecution of this action by the state, if equitable estoppels may be pleaded against the sovereign.

Moreover the obvious attempt of the general assembly by a joint resolution to determine the present controversy in accordance with the claim of the plaintiffs in error, presents an aspect of the case that was not there present. It should not need the citation of authorities to establish the proposition that a joint resolution is not an act of legislation, and that it cannot be effective for any purpose for which an exercise of legislative power is necessary, and if a revesting of the title to these lands in the state had occurred by reason of the transactions between the city and the railway companies, it should be conceded that the exercise of legislative power would be necessary to waive the right so revesting. But the action of the legislature in the appointment of a committee to consider and report on the subject of the present controversy, the consideration given to the subject and the report of that committee, followed by the joint resolution, served very conclusively to show the knowledge of the state during all the period of its acquiescence in the assertion by the city of Cleveland and the plaintiffs in error of the rights that are now challenged.

In support of the judgment below it is urged that an estoppel cannot be pleaded against the state, and very much of the brief of the defendant in error is devoted to supporting that proposition. This portion of the brief shows conclusively that by established law the statute of limitations does not bar an action of this character, that mere laches cannot be pleaded against its prosecution, and that all persons dealing with public officials must take notice of the extent of their authority; but none of these propositions, nor all of them combined, ■ are equivalent to the proposition that when the general assembly of the state, which is vested with all legislative power, and which is the source of power in cases of this character, actively participates in the encouragement of a course of dealing resting upon an assumed state of facts, the state does not thereby become bound. Unquestionably the general assembly represented the state in this matter, and in both the original act and in the subsequent act, under which the plaintiffs in error expended money for establishing the boundaries of the premises conveyed, its concurrence and acquiescence with the knowledge clearly imputed to it serves to bind the state, for in this respect the state was acting, not in its capacity as a sovereign, but in its proprietary capacity as the owner of lands, and when it acts in that capacity it is bound by the same rules as those which it applies to its citizens. Nothing presented casts doubt upon the correctness of the view thus comprehensively stated by Ranney, J., in State v. Exr. of Buttles, 3 Ohio St., 309: “We agree when she (the state) appears as a suitor in her courts to enforce her rights of property, she comes shorn of her attributes of sovereignty, and as a body politic, capable of contracting, suing, and holding property, is subject to those rules of justice and right, which in her sovereign character, she has prescribed for the government of her people.” In State, ex rel., v. Railway Co., supra, it was said: “This question of jurisdiction does not so much concern the ultimate rights of the parties as it does methods of procedure. The right of suitors respecting the subject-matter in dispute will be determined by applying to the facts, when ascertained, the same principles and rules of law, whether the action was commenced in this court in quo warranto or in the court of common pleas by a real action.” A consequence which follows the application of this doctrine to the present case is that the state must fail in its action for want of a provision in the act and a stipulation in the deed for the revesting of title in the state, if the property should be used for a forbidden purpose. The theory upon which the suit is prosecuted is that the designation of purposes for streets, etc., in the act of providing for the grant to the city of Cleveland and carried into the terms of the governor’s deed, operated as limitation upon the rights of the city, and its assigns, to use the premises for other purposes, and that the devotion of the property to the uses contemplated by the lease of the city to the railway company operated as a perversion. But the state in its proprietary capacity is amenable — if we assume that there was a departure from the designated use — to the rule well established in this state, that however it may be with respect to deeds of gift, where deeds rest upon a valuable consideration and a statement of inducements or purpose with respect to the use of property granted, is disregarded, title will not revest in the grantor unless it be in pursuance of a stipulation in the grant that it shall revest.

In the case of the Village of Ashland v. Greiner et al., 58 Ohio St., 67, where in the opinion deeds of gift were expressly excluded from consideration, the case being one of grant upon consideration, it was said in the second proposition of the syllabus: “As said deed had no words of forfeiture or re-entry, the diverting of said lands to uses and purposes, other than those expressed in the deed, did not in legal effect revest title to said lands in the grantor, or his heirs.” Why should it have such effect in the present case? If by the terms of the grant to the city of Cleveland the state has divested itself of all interest in the lands conveyed, in what respect would it be benefited by an observance of the uses that were in mind at the time of the execution of the grant? But here is no perversion of a trust, or departure from the purposes in contemplation. For this conclusion, Malone v. Toledo, 28 Ohio St., 643, is ample authority. That case arose out of the disposition of lands which the state had acquired for canal purposes, and which it originally held by a title differing in no sense from that by which it held those here in controversy. That title, as is there held, was a title in fee simple. As the basis of the decision in that case, notice was taken of the familiar use of premises by streets and railroads in common, and it was said railroads cross highways and no one has ever supposed that this was such an abandonment of the highway as that the soil reverted to the original owner. All the uses to which it was expected at the time of the grant that these lands would be devoted, and all the uses to which they are now devoted, are uses of like character. This conclusion is supported by other cases cited, as well as by the reasons involved.

The original petition in the case and the brief of the defendant in error wholly ignore the real nature of the transaction between the state and the city of Cleveland. Very obviously the general assembly was of the opinion that the substituted connection of the canal with the Cuyahoga river, which the city was required to construct at its own expense, acquiring the right of way therefor, was the equivalent to the state of the connection over the lands granted to the city. The making of that substituted connection was a valuable consideration for the grant. It is not intimated that the state was in any way defrauded, or even that the legislature exercised an erroneous judgment upon that subject, and yet it is insisted that the state, retaining all that it received in the way of consideration for the grant, may revoke the grant. Of course, there is assigned no reason equal to such a conclusion. In Charles River Bridge v. Warren Bridge, 11 Pet., 420, Mr. Justice Story said:

“But what, I repeat, is most material to be stated, is that all this doctrine in relation to the king’s prerogative of having a construction in his own favor, is exclusively confined to cases of mere donation, flowing from the bounty of the crown. Whenever the grant is upon a valuable consideration, the rule of construction ceases; and the grant is expounded exactly as it would be in the case of a private grant, favorably to the grantee. Why is this rule adopted? Plainly, because the grant is a contract, and is to be interpreted according to its fair meaning. It would be to the dishonor of the government that it should pocket a fair consideration, and then quibble as to the obscurities and implications of its own contract.”

All agree, and this court has repeatedly decided in the cases cited in the briefs, that the state became the owner in fee simple of all canal lands upon their construction. By the act of April 29, 1872, the general assembly authorized the governor to execute and deliver to the city of Cleveland a grant of all the interest of the state in the described portion of the canal, and thereupon the governor, being satisfied, according to the requirements of the act, that the city had done all things by it to be done, including the establishing of the substituted connection, executed to the city a deed whereby he did for divers considerations convey all the interest of the state to the city. There remains in the state no interest in the lands to be protected by quo warranto, the title of the city is an unqualified fee and its lease to the railway company is valid. It cannot be necessary to point out other infirmities in the case of the state.

The judgment will be reversed, the demurrer to the petition will be sustained, and the petition dismissed

Reversed.

Davis, C. J., Price, Johnson and Donahue, JJ., concur.

Spear, J., dissents.  