author: Bradbury, J.

text:
    Ohio ex rel. v. Railway Company.

      Quo warranto to contest corporation claim to state canal lands— When statute of limitations bars action — Section 6789 Revised, Statutes —Act of February 4, 1825. [28 Ohio Laws, 50) — Rights granted by state to city of Cincinnati under act of March 24, 1868 — (60 Ohio Laws, 44-)

    1. An action in quo warranto will lie against a railroad corporation to contest its claim to exercise a right or privilege to or in the canal lands of the state.
    2. Neither the five years nor the twenty years limitations prescribed in section 6789 Revised Statutes, bars an action in quo warranto where its object is to oust a corporation from an unwarranted claim to a right or privilege in lands belonging to the state.
    3. By force of the provision of section 8 of the act to provide for ‘1 the internal improvement of the state of Ohio by navigable canals,” 23 O. L., 57, whenever the state actually occupied a parcel of land for canal purposes, a fee-simple title thereto at once and by virtue, alone, of such occupancy, vested in the state.

      4. By the act of March 24, 1863, 60 Ohio Laws, and the conveyance afterwards executed by the govenor pursuant thereto, the only right granted to the city of Cincinnati was to enter upon, improve and occupy the land described therein forever as a public highway and for sewerage purposes, the title to the lands remaining in the state subjected only to such use. The city acquired no right or interest that it could transfer to another; and if the city, after entering upon the occupancy of such lands under the deed, abandoned them in respect to either of the uses specified, the right of the city to that extent became forfeited.
    (Decided June 14, 1895.)
    Quo Warranto.
    The attorney general, for the purpose of testing the right of the defendant to occupy that part of the Miami and Erie Canal which lies between Broadway street in the city of Cincinnati and the Ohio River, filed in the court the following petition: “Petition in quo warranto. Now comes John K. Richards, attorney general of the state of Ohio, by direction of the general assembly of the state of Ohio, and gives the court to un derstand and be informed:
    “1. That the defendant, The Pittsburg, Cincinnati, Chicago and St. Louis Railway Company, is a consolidated railroad company, being a corporation engaged in operating a railroad in the state of Ohio and in other states, formed on the 28th day of August, 1890, by the consolidation under and in accordance with the laws of Ohio, of the Pittsburg, Cincinnati and St. Louis Railway Company, hereinafter referred to, a railroad corporation then and prior thereto owning’ and operating a railroad within the state of Ohio and other states, and The Chicago, St. Louis and Pittsburg Railroad Company, and the Cincinnati and Richmond Railroad Company, and The Jeffersonville, Madison and Indianapolis Railroad Company.
    “2. That, in the year 1869, the said Pitts-burg, Cincinnati and St. Louis Railway Company, one of the constituent companies of the defendant corporation; leased perpetually the line of railroad' of The Little Miami Railroad Company, a corporation formed under the laws of Ohio, and then owning and operating a .line of railroad from Cincinnati, Ohio, to Columbus, Ohio, together with all the rights, privileges and contracts, belonging to said Little Miami Railroad Company, and at that time entered into the enjoyment thereof under said lease, and so continued up to the time of its merger by consolidation into the defendant corporation, when the defendant entered upon the enjoyment thereof and still continues so to enjoy the same.
    “3. That, on and prior to the 24th day of March, 1863, the state of Ohio was the owner in fee and in full use and possession of that part of the Miami and Erie canal extending from the east side of Broadway street, in the city of Cincinnati, to the Ohio river, including the width thereof, as then owned and held by the state, the same being a part of the canal system and public works of the state of Ohio.
    ‘ ‘ 4. That, on said 24th day of March, 1863, the general assembly of the state of Ohio passed the following act: (60 O. L., 44.)
    “AN ACT
    fiTo authorize the city of Cincinnati to enter upon and occupy a a part of the Miami and Erie Canalas a public highway and for sewerage purposes.
    “Section 1. Be it enacted by the General Assembly of the state of Ohio, That authority and permission shall be granted, in the manner hereinafter pointed out, to the city of Cincinnati, to enter upon, improve, and occupy forever, as a public highway and for sewerage purposes,- all or any of that part of the Miami and Erie Canal which extends from the east side of Broadway, in said city, to the Ohio river, including the width thereof, as owned or held by the state; but the said grant shall be made subject to all outstanding rights or claims, if any, with which it may conflict: Provided, that no work shall be done by said city authorities on the premises hereby granted until the plan of improvement shall be approved of by the Board of Public Works.
    “Sec. 2. The said grant shall not extend to the revenues derived from the water privileges in said canal, which are hereby expressly reserved; and the said grant shall be made upon the further-condition that the said city, in the use as aforesaid of all or any of said portion of said canal, shall not obstruct the flow of water through said canal, nor destroy nor injure the present supply of said water for milling purposes, and that said city shall be liable for all damages that may accrue from such obstruction or injury; but it is not intended hereby to relieve the lessees of said canal, or their assignees, from any responsibilities imposed upon them by £an act to provide for leasing the public works of the state, ’ passed May 8, 1861, or by the instrument of lease executed in pursuance of said act, except as and to the extent that they may be interfered with as said city may, from time to time, enter upon, improve and occupy any part of said grant.
    “Sec. 3. Whenever the council of said city, by a vote of not less than two-thirds of the whole number of members thereof, shall decide to use said canal as herein authorized, the said council shall make known its decision to the governor, and thereupon the governor, in behalf of the state, shall execute and deliver to the city of Cincinnati a grant of the part of said canal herein described for the uses and purposes before mentioned, and upon the terms and conditions specified in this act. The attorney general shall prepare the form of said grant.
    ‘ ‘ Sec. 4. This act shall not be construed to confer upon said city any new power of taxation, or to borrow money, or to contract debts in the use as aforesaid of said canal.
    “Sec. 5. This act shall take effect from and after its passage.
    ‘ ‘ Passed March 24, 1863.
    “5. That, in accordance with the provisions of section three of the act last mentioned, the council of the city of Cincinnati, by a vote of not less than two-thirds of the whole number of members thereof, decided to use said part of said canal as authorized in the act, and made known its decision to the governor of the state, and' thereupon, on the 28th day of April, 1863, David Tod, then governor of Ohio, on behalf of the state, executed and delivered to the city of Cincinnati, the following grant of the part of the canal described in the act, for the uses and purposes and upon the terms and conditions specified in said act:
    “DEED
    “Prom the state of Ohio to the city of Cincinnati to part of the Miami and Erie Canal.

      1'Khoto all men by these presents, That, whereas, by an act of the general assembly of the state' of Ohio, passed oil the twenty-fourth day of March, in the year of our Lord, one thousand eight hundred and sixty-three, authority and permission was granted to the city of Cincinnati to enter upon, improve and occupy forever, as a public highway and for sewerage purposes, all or any of that part of the Miami and Erie Canal which extends from the east side of Broadway in the said city, to the Ohio river, including the width thereof as owned or held by the state, and the said grant made subject to all outstanding rights' or claims, if any, with which it might conflict; and the revenues derived from the water privileges in said canals, thereby expressly reserved; and that the said city in the use of said canal or any portion thereof should not obstruct the flow of water through the same, nor destroy nor injure the present supply of said water for milling’ purposes, and that the said city should be liable for all damages that might accrue from such obstruction or injury, and that whenever the council by a vote of not less than two-thirds of the whole number of members thereof, should decide to use said canal as in said act authorized, should make known its decision to the governor, and that thereupon the governor, in behalf of the state, should execute and deliver to the city of Cincinnati, a grant of the part of said canal, in said act described, for the uses and purposes before mentioned, and upon the terms and conditions specified in the said act,
    “And whereas, the said, council of the city of Cincinnati, on the twenty-fourth day of March, in the year of our Lord, one thousand eight hundred and sixty-three, decided to use said canal as in said act authorized according to the conditions thereof, and has made known its decision to me as required by said act.
    ‘ £I, David Tod, governor of the state of Ohio, in behalf of said state, by virtue of the authority conferred upon me in the premises, do hereby grant unto the said city of Cincinnati, all or any of that part of the Miami and Erie Canal extending from the east side of Broadway in said city to the Ohio river, including the width thereof as owned or held by the state. To enter upon, improve and occupy the same forever as a public highway and for sewerage purposes, upon the conditions, -and subject to all the rights, claims, reservations and restrictions mentioned in said act.
    “In testimony whereof, I have hereunto set my hand officially, and affixed the great seal of said state of Ohio, at Columbus, this 28th day of April, A. D., 1863.
    By the Governor: David Tod.

      W. W. Armstrong,

      Secretary of State.

    £ £ 6. That the city of Cincinnati duly accepted said grant, and on the 19th day of February, 1864, for the purpose of entering upon, improving and occupying the part of the canal described in said act as a public highway and for sewerage purposes, passed the following ordinance:
    “ORDINANCE NO. 321
    ‘! To open, widen and establish Eggleston avenue the- full width of ninety (90),feet from the Ohio river to Broadway.
    “Be it ordained by the city council of the city of Cincinnati, That Eggleston avenue be opened, widened and established the full width of ninety (90) feet from the Ohio river to the east line of Broadway.

      “Sec. 2. That, for the purposes aforesaid there be, and is hereby condemned to such public use all the real estate lying along and in the line of the Miami and Erie Canal from the Ohio river to the easterly side of Broadway as it is included between two lines parallel to a line drawn through the center of the canal locks as now located, the one being distant thirty-nine (39) feet to the northeast of said lock line, and the other distant fifty-one (51) feet to the southwestward of said lock line, as marked and designated upon a plat on file in the office of the city civil engineer, making a strip of ground ninety (90) feet in width between the said termini to be appropriated for the use and purposes of a public street.
    “The city solicitor is hereby instructed to institute the necessary legal proceedings to obtain full possession of said premises with the assessment of the damages to be paid therefor, and the damages and cost as found shall be assessed upon the lands bounding and abutting said street in proportion to the value of the said several lots as assessed for taxation upon the'general tax duplicate of the county.
    “Done at the council chamber in the city of Cincinnati, this 19th day of February, A. D., 1864.
    “7. That the city of Cincinnati, having, in accordance with the act of March’24,1863, submitted to the Board of Public Works of the state of Ohio its plan for the improvement of the part of the canal described in said act, and the same having been duly approved by said board, proceeded to and did ' enter upon that part of the Miami and Erie Canal extending from the east side of Broadway to the Ohio river, under the said grant from the state, and proceeded to and did improve and occupy the same, in pursuance of the ordinance quoted, as a public highway and for sewerage purposes, in the manner and to the extent hereinafter described and not otherwise: Land lying along and adjacent to the canal was condemned by the city of Cincinnati sufficient to open Eggleston avenue the full width of ninety feet from the Ohio river to Broadway. Along Eggleston avenue and within the limits of the canal, the city, between the years 1869 and 1873 or 1874, constructed a large sewer from Broadway to the Ohio river, and over this sewer a covered raceway to conduct the water leased by the state for power purposes prior to the grant aforesaid. About this time the city filled the gullies and ditches of the canal and partially graded Eggleston avenue from Fifth street to Broadway.
    “For the improvement of Eggleston avenue the city expended in all the following sums:
    “For the construction of Egglestonavenue sewer and raceway between 1869 and 1873 or 1874............... $726,494
    For grading from Fifth street to Broadway in 1872 or 1873 about..................................... 9,115
    For inspection and incidentals, approximately........................................................................................ 5,000
    For condemnation......................................................... 13,000
    Total................................................................................$753,609
    “The city has never permanently g-raded and paved said street for use as a public highway as are other improved streets of the city. Excepting the construction of the sewer and raceway aforesaid, no. work whatever in the way of improving Eggleston avenue, between Pearl street and the Ohio river, has ever been done by the city.
    “8. That, on November 15, 1867, the city of Cincinnati, by resolution of its common council, granted to the said Little Miami Railroad Company, a corporation under the laws of Ohio, then owning and operating a line of railroad from Cincinnati, Ohio, to Columbus, Ohio, the right to lay down and use a railroad track on Eggleston avenue, extending from Pearl street north to Broadwa3r, the said Little Miami Railroad Company being the lessor of the Pittsburgh, Cincinnati and St. Louis Railway Company, one of the constituent companies of the defendant consolidated corporation. In the year 1876, the said Pittsburgh, Cincinnati and St. Louis Railwa3r Company, then the lessee of the Little Miami Railroad Compan3p built said railroad track along the said. portion of Eggleston avenue, and it and the defendant company have ever since continued to use the same for railroad purposes, and have constructed for many propei^ owners on and near Eggleston avenue connecting tracks leading from said line on Eggleston avenue into the private property of said persons, for use in the conduct of their business, and large outlays have been made, both by said railroad companies and by said persons, upon the faith of said grant by said city. Since the construction and use of said railroad track along Eggleston avenue, a large number of factories and warehouses have been located and built on and near the avenue because of the existence of the track, and the railroad facilities thereby afforded.
    “9! That, prior to the building of the tracks mentioned in the last paragraph, namely, on the first day of December, 1871, the city of Cincinnati passed the following ordinance, vacating Eggleston avenue and Kilgour street between Front and Pearl streets (said Kilgour street not being involved in this controversy), and granting the same to the Newport and Cincinnati Bridge Company, and the Little Miami Railroad Company and its lessees, for railroad, bridge and depot purposes, subject, however, to the rights of the state of Ohio, and upon certain conditions and under certain restrictions, which are set out in the ordinance:
    “ORDINANCE NO. 629
    “To vacate Eggleston avenue and Kilgour street between Front and Pearl streets.
    “Whereas, on the 22d day of September, A. D., 1871, the Newport and Cincinnati Bridge Company filed its petition with the common council of the city of Cincinnati, praying for the vacation of Eggleston avenue between Front and Pearl streets, and of Kilgour street between Froiit and Pearl streets; and
    • ‘Whereas, notice of the pending and prayer of said petition has been given by publishing the same in the Cincinnati Daily Times and Chronicle, a paper published in said city, for six consecutive weeks preceding, according to the statutive in such cases made and provided ; now, therefore,
    “Be it ordained by the common council of the city of Cincinnati, that Kilgour street as laid out and dedicated by plat and subdivision of Kilgour, dated November 18th, 1835, and recorded in book 68, page 52, Hamilton county recorder’s office, from the north line of Front street to the south line of Pearl street, and Eggleston avenue, from the north line of Front street to the south line of Pearl street, as described in an ordinance passed by the city council on the 19th day of February, A. D., 1864, entitled ‘An ordinance to open, widen and establish Eggleston avenue the full width of ninety (90) feet from the Ohio river to Broadway,’ be and the same are hereby vacated in order that the same may hereaiter be used and occupied by the said Newport and Cincinnati Bridge Company and the Little Miami Railroad Company and its lessees for railroad, bridge and depot purposes.
    “Provided, however, that this vacation and grant to the said Bridge Company and Railroad Companies is made expressly subject to all the rig’hts of the state of Ohio, and of any and all persons lawfully claiming under or through it, to or in said streets or either of them, or to any easement in or over the same, and also subject to the legal rights of any other person or persons injured thereby.
    “Provided further, that the said Bridge Company, shall, at its own expense, cause Butler street to be widened to the width of ninety-nine (99) feet from Pearl street south to the wagon approach to the said bridge; and also the said Bridge Company shall ,at any'and all times hereafter permit its bridge and approaches to be used for railroad purposes on reasonable and equal terms as to tolls and charges by all railroad companies whose roads terminate in or pass through the city of Cincinnati, desirous so to do; and it is expressly understood, and the grant herein contained is upon the consideration, that the trustees of the Cincinnati Southern ■Railway any lessee thereof, shall have the right to use said bridge and the approaches thereto, on terms favorable as those granted any other railroad.

      “And provided further, that in no ease will the said companies use or permit the said g’rounds to be used as a stock yard or depot for the shipment, transfer or reception of animals of any kind, or for any other use than for depot buildings and for railway purposes.
    “And provided further, that said Bridge Company and Railroad Companies, or either of them, shall not, in any manner, hinder or prevent the city from going upon the grounds so vacated, and completing, maintaining and preserving the sewers or water ways already constructed or projected, or for carrying out any of its plans for sewers, or discharging any of its obligations for water ways or powers, that are now or may be hereafter fixed or determined from any rights now in existence.
    “Provided, that this ordinance shall take effect on the Newport and Cincinnati Bridge Company and the Little Miami Company and its lessees filing with the city clerk a written acceptance hereof
    “Passed December 1st, A. D., 1871.
    “10. That, immediately thereafter, the Newport and Cincinnati Bridge Company and the Little Miami' Railroad Company and its lessees, filed with the city clerk of Cincinnati a written acceptance of the said ordinance vacating Eggleston avenue and Kilgour street between Front and Pearl streets, and, thereupon, the said companies entered into possession of that part of Eggleston avenue lying between Front and Pearl streets in the city, of Cincinnati, and have ever since occupied and used the same for railroad, bridge and depot purposes, the part of said ground occupied and used by the Little Miami Railroad Company and its lessees and the nature of the occupation and use being described in the next succeeding paragraph.
    “11. Included in the part of Eggleston avenue between Front and Pearl streets vacated as aforesaid by the city of Cincinnati, was the following described real estate, which was formerly a part of the Miami and Erie Canal, the use of which was granted to the city of Cincinnati for a public highway and for sewerage purposes by the act of March 24, 1863, as already set forth:
    ‘ ‘ Being a tract of land in the city of Cincinnati, in Hamilton county, Ohio, lying within the limits of Eggleston avenue, as established by ordinance No. 321 of the city of Cincinnati, passed April 19, 1864, and between Front and Pearl streets in said city, and described as follows:
    “Commencing at a point on the southeasterly line of Pearl street, eleven feet northeasterly from the intersection of said line of Pearl street with the southwesterly line of Eggleston avenue; thence northeasterly along said line of Pearl street a distance of seventy-two feet to a point seven feet distant from the intersection of said line of Pearl street with the northeasterly line of Eggleston avenue; thence in a southeasterly direction on a ■line parallel with and seven feet distant from the northeasterly line of Eggleston avenue, as defined m the ordinance aforesaid but since vacated, a distance of one hundred and twenty-four and three-fourths feet; thence southwesterly on a line parallel with the southeasterly line of Pearl street a distance of seventy-two feet to a point eleven feet distant from the southwesterly line of Eggleston avenue, as defined in the ordinance aforesaid but since vacated; thence northwesterly on a line parallel with and eleven feet distant from the southwesterly line of Eggleston avenue, as defined in the ordinance aforesaid but since vacated, a distance of one hundred and twenty-four and three-fourths feet to the point of beginning; being- a ■ strip seventy-two feet wide and one hundred and twenty-four and three-fourths feet long, formerly a part of the Miami and Erie Canal, extending from the southeast side of Pearl street a distance of one hundred and twenty-four and three-fourths feet in the direction of the Ohio river, the use of which was granted by. the state of Ohio, by the act of March 24, 1863, to the city of Cincinnati for a public highway and for sewerage purposes, but now ■ occupied by the permanent train shed of the passeng-er depot of the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company.'
    ‘ ‘ Also, a tract of land in the .city of Cincinnati, Hamilton countjr, Ohio, lying within the limits of Eggleston avenue, as established by ordinance No. 321, of the city of Cincinnati, passed April 19, 1864, and between Front and Pearl streets in said city, and described as follows:
    “Commencing on the northwesterly line of Front street at a point eleven feet northeasterly from the intersection of said line of Front street with the southwesterly line of Eggleston avenue, as defined by the ordinance aforesaid but now vacated; thence northeasterly along said line a distance of seventy-two feet, to a point seven feet distant from the intersection of the northwesterly line of Front street with the northeasterly line of Eggleston avenue, as defined by the ordinance aforesaid but now vacated; thence in a northwesterly direction on a line parallel with and seven feet distant from the northeasterly line of Eggleston avenue, as defined by said ordinance aforesaid but since vacated, a distance of ninety-four feet; thence in a southwesterly direction on a line parallel with the northwesterly line of Front street a distance of seventy-two feet to a point eleven feet distant from the southwesterly line of Eggleston avenue, as defined by said ordinance but since vacated; thence in a southeasterly direction on a line parallel with and eleven feet distant from the southwesterly line of Eggleston avenue, as defined by said ordinance but since vacated, a distance of ninety-four feet to the point of beginning; being- a strip of land ninety-four feet long’ and seventy-two feet wide, formerly a part of the Miami and Erie Canal, extending from the northwesterly line of Front street a distance of ninety-four feet in the direction of Pearl street, the use of which was granted by the state of Ohio, by the act of March 24,1863, to the city of Cincinnati for a public highway and for sewerage purposes, but now occupied by the permanent freight depot of the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company.
    “Upon the land above described (and adjacent land), the Little Miami Railroad Company and its lessee, the Pittsburgh, Cincinnati and St. Louis Railway Company, and the defendant corporation, some years ago constructed, and for a long’ time have been and now are occupying and using in their railroad business, a permanent stone, brick and iron passenger depot, and a permanent brick freight- depot, each containing railroad tracks. The tract of land first above described, running from the south line of Pearl street, a distance of one hundred and twenty-four and three-fourths (124£) feet in the direction of the Ohio river, is at present wholly occupied by a part of the permanent train shed of the passenger depot of the defendant company in Cincinnati; the tract of land second above described, running from the north line of Front street a distance of ninety-four (94) feet in the direction of Broadway, is at present wholly occupied by a part of the permanent freight 'depot of the defendant corporation. As indicated in the ordinance vacating Eggleston avenue, the sewer and raceway theretofore constructed down Eggleston avenue, still pass throug-h and under the ground above described, to the Ohio river, and are still used lor their original purposes. By reason of such occupation and use of said and for depot purposes, it has become and is impossible to use the same, or any part thereof, as and for a public highway.
    “12. That that part of Eggleston avenue between Front street and the Ohio river, including a part of the Miami and Erie Canal, extending from Front street to the Ohio river, the use of which was granted by the state of Ohio by the act of March 24, 1863, to the city of Cincinnati for a public highway and for sewerage purposes, some years ago was taken possession of, and since then and for a long time, has been and is now occupied wholly by the yard tracks, side tracks and switches of the Pittsburgh, Cincinnati and St. Louis Railway Company and, the defendant corporation, and has for a long- time been and now is used exclusively by said railroad companies for railroad purposes, the city of Cincinnati having abandoned the use of said street as a public highway, although the larg-e sewer constructed down Eggleston avenue still passes under this abandoned portion to the Ohio river, and, by reason of such use and occupation, it lias become and is impossible to use said premises as and for a public highway.
    “13. The plaintiff avers and charges, that, ■ subject to the rights, privileges and easements therein, which were granted to the city of Cincinnati by the state, under the act of March 24, 1863, excepting, however, such of the rights, privileges and easements- thus granted as, by reason of the facts herein before stated, have since then been released, abandoned or forfeited by said city, the state of Ohio has been, since the said 24th day of March, 1863, and now is, the owner in fee and entitled to the full use and possession of that part of the Miami and Erie Canal extending from the east side of Broadway in the city of Cincinnati to the Ohio river, including the width thereof, as owned and held by the state on said date.
    “14. Plaintiff further avers.and charges, that the city of Cincinnati had no power or authority to grant to the Little Miami Railroad Company or its lessees, the right to lay and use a railroad track or tracks in Eggleston avenue ais aforesaid, on canal property, belonging to the state, which the state had permitted the city of Cincinnati to enter upon, improve and occupy only as a public highway and for sewerage purposes ; and that the construction and use of said railroad tracks by the Pittsburgh, Cincinnati and St. Louis Railway Company and the defendant corporation as aforesaid, was and is inconsistent with the use granted to the city of Cincinnati, and in violation of the rights of the state and in contravention of law.
    “15. Plaintiff further avers and charges, that the vacation of Eggleston avenue between Front and Pearl streets as aforesaid, was an abandonment by said city of the same, and of the canal property of the state embraced therein for use as a public highway and that the construction by the Little Miami Railroad Company 'and its lessee and the defendant of a permanent passenger depot and a permanent freight depot as aforesaid on land belonging to the state already described was and is an authorized and wrongful occupation and use of the property of the state which was granted to the city of Cincinnati for use only as a public highway and for sewerage purposes; and that such occupation and use of said canal land by the defendant was and is inconsistent with the use granted the city of Cincinnati and was and is repugnant to and subversive of the rights of the state and of the public in said land, and' in contravention of law.
    “16. Plaintiff further avers and charges, that the occupation and use of Eggleston avenue and the canal property of the state within its limits between Front strept and the Ohio river, by the yard tracks, side tracks and switches of the defendant corporation, was and is an abandonment of the same by the city of Cincinnati as a public highway, and was and is inconsistent with the use granted and permitted to the city of Cincinnati, and was and is without authority and in contravention of law, and repugnant to and subversive of the rights of the public and the state in said land.
    “17. The plaintiff further avers and charges, that the defendant railway company, in locating, constructing and operating its railway tracks and switches as aforesaid in and along Eggleston avenue and the part of the Miami and Erie Canal embraced therein between Broadway and Pearl streets; and in constructing, occupying and using its permanent passenger depot and permanent freight depot as aforesaid, on the part of the Miami and Erie Canal before described, embraced within the limits of Eggleston avenue between Pearl and Front streets, as originally established ; and in locating, constructing and operating its yard tracks, side tracks and switches as aforesaid, on, across and over that part of the Miami and Erie Canal embraced within the limits of Eggleston avenue between Front street and the Ohio river, as originally established, is now and has been for some time past, usurping and unlawfully exercising and using rights, privileges and franchises, in contravention of law.
    “Prayer — The plaintiff prays the advice of the court in the premises, and that the defendant railroad company be compelled to answer by what warrant it claims to have, use and enjoy the rights, privileges and franchises aforesaid; and that it be ousted from exercising the same, and be compelled to remove its tracks and switches from the part of the Miami and Erie Canal embraced within the limits of Eggleston avenue between Broadway and Pearl streets; and be compelled to remove its passenger depot and freight depot and railroad tracks from the part of the Miami and Erie Canal, before described, embraced within the limits of Eggleston avenue between Pearl and Front streets as originally established; and that it be compelled to remove its side tracks, yard tracks and switches from that part of the Miami and Erie Canal embraced within the limits of Eggleston avenue between Front street and the Ohio river as.originally established; and the plaintiff further prays that such other relief be granted in the premises as to the court may seem just and proper.
    Joseph B. Foraker, John K. Richards,
    David K. Watson, Attorney General.

      Of Counsel.

      To this petition the defendant demurred on the g-rounds: 1. That the court had no jurisdiction of the subject matter of the action. 2. That the ‘£ power or franchise ’ ’ from the exercise of which defendant was sought to be ousted had been exercised by it, and its corporate predecessor, for more than twenty years next before this action was begun, as shown by the petition; 3. That the petition does not state facts sufficient to constitute a cause of action.
    The demurrer was overruled whereupon the defendant answered as follows:
    ANSWER.

      u For the First Defense — 1. The defendant denies the allegations and each thereof contained in paragraphs 13, 14, 15, 16 and 17 of the petition and the defendant denies that the plaintiff on and prior to the 24th day of March, 1863, or at any time was, or is, the owner in fee of the real estate, or any part of the real estate mentioned in the petition; but, on the contrary, says that the plaintiff has not, and never had, any interest or estate therein, except the right to use and occupy a portion thereof for canal purposes; that no compensation was ever paid therefor by the plaintiff, and that no title in any of - said real estate was ever conveyed to the plaintiff, or otherwise acquired by it.
    ££2. About the year 1833 the Miami and Erie Canal which had been constructed southwardly to a point at or near Broadway, in the city of Cincinnati, was extended to the Ohio river. But by reason of the great fall, said extension was found to be impracticable; it was used for navigation a short time only, and under great difficulties, and was gradually abandoned and fell into decay. There were nine locks of eleven feet fall each, between Broadway and the river, making a total fall of ninety-nine feet. For ten years or more prior to the passage of the act of March 24, 1863, mentioned in the -petition, said canal between Broadway and the river had become, and was wholly abandoned for purposes of navigation, and was used only for supplying water for milling purposes and for the discharge and carriage of sewage from certain portions of the city of Cincinnati, largely from slaughter houses located along the side of the canal and Deer creek, which adjoined the canal. And said act of March 24, 1863, was passed for the purpose of securing an abatement of the public nuisance which had been so created and was existing, and of providing a trunk sewer' at the only available’site therefor in the eastern part of the city of Cincinnati. And the defendant says that all the reservations and conditions in said grant in favor of the plaintiff have been carefully preserved and fulfilled, • that ample provision is made for the flow of the water of the' canal, and for the maintenance of the supply of water for milling purposes. ' At the time of the passage of the ordinance of the city of Cincinnati of December 1, 1871, mentioned in the petition, the city of Cincinnati had constructed a trunk sewer along the site of the canal from Broadway to the river; but had not filled in over such sewer south of Pearl street, and the top of said sewer lay at a distance about forty feet below the grade of Pearl street, leaving a gully about forty feet deep and seventy feet or more in width at the top. There was a wharf and landing at Butler street and immediately west of Butler street, but there was not, and never had been., any landing at or near the mouth of the canal, and that having become the mouth of said trunk sewer, any use of the river at that point, for a landing, was wholly impracticable.
    “3. There was not and never had been any occasion for highway communication between Pearl street and the river along the course of said gully; the Newport and Cincinnati bridge, however, was then being constructed across the Ohio river so as to enter Cincinnati with its approach at Butler street, which street extended from the river northwardly to and across Pearl street, and lay — feet west of the line of Eggleston avenue. Said Butler street was of sufficient width to furnish proper and commodious access to said bridge; and said ordinance of December 1, 1871, was passed for the purpose of securing and providing highway facilities at. that point, where they were needed, in exchange for the gully along the site of Eggleston avenue south of Pearl street, where no highway facilities were required. The real estate for the widening of Butler street was provided by joint arrangement between the Bridge Company and the Railway Company, and at their joint expense and at great cost, it being then occupied by improvements consisting of factories and other buildings, which it became necessary for the Railway and Bridge Companies to acquire by purchase at heavy expense. And the value of the property • at that time, contributed by the Railroad and Bridge Companies to the widening- and improvement of Butler street was threefold the value of the premises given to them in exchange.
    “4. Thereupon the Railway Company and the Bridge Company having accepted said ordinance of December 1, 1871, as alleged in the petition, at their own expense did widen and improve Butler street, as provided in said ordinance, and entered into possession of that portion of Eggleston avenue lying between Pearl street and Front street, and they have ever since continuously used and occupied the same for railroad iDurposes.

      “5. Said arrangement and agreement with the said Railway and Bridge Companies was one which the city and the companies were authorized by law to make, and was for the great benefit and advantage of the city and the public, as well as of said Railway and Bridge Companies, as servants of the public.

      “6. The Railway Company on the faith of said ordinance and agreement with the city of Cincinnati, filled up said gully south of Pearl street, and at great expense acquired the real estate between Butler and Kilgour streets and Pearl and Front streets; and in good faith constructed thereon the railroad tracks, train sheds, passenger depot and f reig’ht depot, mentioned in the petition, and other terminal facilities at a cost of four hundred thousand dollars, in addition to .the cost of the real estate.

      “7. In addition to the expenditures aforesaid, and relying upon their right to occupy and use said premises the Little Miami Railroad Company and its lessee purchased large quantities of real estate near said depot grounds and havé constructed at a great expense thereon, and connected with said depot buildings, terminal tracks and facilities. If the order asked for in the petition is granted and the defendant compelled to remove its freight and passenger depot buildings and tracks from said premises between Pearl street and Front street the result to the defendants possessions and property will be the absolute destruction of the new freight depot and of the tracks and train sheds leading into the passenger depot, located at the corner of Butler and Pearl streets, and thus render the passenger depot practically inaccessible and the entire destruction of its whole terminal plant and the demolition and ruin of the structures, buildings and terminal arrangements upon which the defendant has expended such large sums of money.
    “8. The defendant owns the real estate abutting the former site of the canal between Pearl street and the river, and the premises sought to be recovered are not needed or desired for highway purposes, and would be wholly useless for such purposes.
    19. As to that portion of Eggleston avenue between Pearl street and Broadway, the defendant says that the use by it of said portion is simply the maintaining a single track thereon, four feet nine inches in width, from rail to rail, with connecting tracks leading into the property of abutting owners — and that its occupation and use of said portion of said street is only the use provided for by the laws of the state — and such a use of a street as has been repeatedly sanctioned and upheld by the adjudications of this court and is wholly consistent with the purposes of the said act of March 24. 1863, and the deed made in pursuance thereof.
    “10. The said Pittsburgh, Cincinnati and St. Louis Railway Company built said track under and pursuant to a grant by the city of Cincinnati, in good faith and relying upon the authority and power conferred by the statutes of the state upon municipal corporations in such matters; and has expended in the purchase of grounds for its yards and upon its said tracks and its yards at the head of Eggleston avenue, the sum of over one hundred thousand dollars. Said grant by said city was within its municipal power and was duly and legally made, and was accepted and acted upon by said Railway Company in the belief that it conferred the right upon said company to occupy and use said street for said purpose, and in the same good faith, reliance and belief, a number of owners of property abutting on said portion of Eggleston avenue have built factories and warehouses on their premises, and the Railway Company has put in side tracks or switches connecting therewith, which have ever since been in use.
    “11. At the December term, 1877, and before certain of the said factories and warehouses were built, and before certain of said side tracks and switches were constructed by the said Railway Company, this court in the case of Richards v. Cincinnati (31 Ohio State, 506), held that the said grant of the use of said Eggleston avenue between Pearl street and Broadway by said city, to the Little Miami Railroad Company was authorized and proper.
    “12. On November 7, 1884, the city council of Cincinnati, by joint resolution, ordered the city officers to remove said track in Eggleston avenue, from Pearl to Court street or Broadway. The said Pittsburgh, Cincinnati and St. Louis Railway Company duly brought an action in the Superior Court against the city of Cincinnati, on the 8th day of November, 1884, to enjoin the city from taking action for such removal, and the city filed a cross-petition, praying- that the Railway Company be perpetually enjoined from maintaining or using said tracks. The said court in general term held in said action that the city had by law, authority to consent to the laying of said railroad track by said company in Eggleston avenue, and branches-thereof to private property — that the city had duly consented thereto and entered a decree, which is in full force, in favor of said Railroad Company, forever enjoining said city from making said removal, and dismissing the cross petition, (16 Law Bull., 367). The city of Cincinnati prosecuted error to this court, and this court affirmed said decree November 18, 1890. A part of said factories and warehouses and tracks connecting with the same have been built since the entering of said decree by said Superior Court. Said Eggleston avenue, between Pearl street and Broadway, is ninety feet wide, and said railroad track is, from rail to rail, four feet and nine inches wide, and does not interfere with the free use of said avenue by the public, and said portion of Eggleston avenue is now being used, and ever since said track was laid has been used, strictly in conformity with the provisions-specified in said act of March 24, 1863, and said deed, to-wit: as a public highway and for sewerage purposes.
    “13. The acts hereinbefore recited as having been done in the premises by the said railroad companies, and the sums of money so by them expended were all done and expended under the belief that the plaintiff had no claim upon said premises or any part thereof.
    “14. Said Railroad Companies did not, nor did either of them, have any knowledge or notice during, the time said acts were being done and said money expended that plaintiff made any claim whatever to said premises or any part thereof— nor did they or either of them have any knowledge or notice thereof until about the time the general assembly passed the joint resolution authorizing this proceeding, to-wit: in January, 1893.
    “15. The board of public works of the plaintiff had, at the time of the passage of said act of March 24, 1863, and ever since has had charge of the canals of the state with full power to maintain and protect the same, and the defendant avers that said board had knowledge of said acts being done, and said sums being expended by said Railroad Companies, as aforesaid, -at the times the Same were' done and expended, and made no objection thereto, nor did said board or any member ■thereof, or agent thereof, ever make any claim that the plaintiff had any interest in said premises or any right to any control thereof, from the time of the execution of the said deed by the governor of the state down to about the time of the passage of said joint resolution.
    “16. During the time of the occupancy of said premises by the Little Miami Railroad Company, and the Pittsburgh, Cincinnati and St. Louis Railway Company, and the defendant, the plaintiff has received revenue from said companies in the way of taxes levied upon said buildings, improvements and rights of way. Wherefore, this defendant avers that the state of Ohio ought to be, and is es-topped from asserting’ any right or title to said real estate, if any it has, which this defendant wholly denies.

      1 ‘ 17. As to that part of said premises lying between Front street and the Ohio river, defendant says that on the 1st day of November, 1853, the plaintiff sold to one E. S. Hamlin the land bounding and abutting upon said canal on the west from Front street to the river, and at the same time, and as a part consideration of the sum paid by said Hamlin to the plaintiff, the plaintiff agreed in writing that said Hamlin and his assigns should have the right to culvert or build over said canal from Front street to the Ohio river, and to use the same in such way as not to interfere with .the navigation of the canal. Through subsequent conveyances and assignments the Little Miami Railroad Company on the 8th day of July, 1864, became seized, and is now seized in fee of said lands bounding and abutting on said portion of said canal, and by a like assignment acquired, and is now possessed of the said right to culvert or build over said portion of said canal.
    ‘ ‘ Second Defense — The defendant and its corporate predecessors have for more than twenty years next preceding the beginning of this action continuously used and exercised the powers and franchises mentioned in the petition.

      “ Third Defense — The defendant, if this action is decided in favor of the plaintiff, claims the benefit of the occupying claimant law, and of the equitable principles which that law recognizes and enforces.
    Ramsey, Maxwell & Ramsey,
    Watson, Burr & Livesay,

      Defendant's Attorneys.

    State of Pennsylvania, )
    Allegheny County, j
    ss'
    “ J. T. Brooks, being duly sworn, says that he is the second vice president of the defendant above named; that the denials, facts stated and allegations set forth in the foregoing answer are true, as he verily believes. ” J. T Brooks.

      “Sworn, to before me and subscribed in my presence by the said J. T. Brooks, this 1st day of June, A. D., 1894.
    I. M. McKibben,
    [Seal. ] Notary Public. ’ ’
    To this answer a demurrer was filed, on the ground that it did not state facts sufficient to constitute a defense to the action, and it was also attacked by a motion to strike out the larger part of its averments, because of their immateriality.

      John K. Picha/rds, Attorney-general, Joseph B. Foraker and David K. Watson, for plaintiff,
    Brief of John K. Picharás, Attorney-general.
    I. At the time of the grant of March 24, 1863, the state was the owner in fee of the part of the Miami and Erie Canal, between Broadway and the Ohio river. The state is still the owner in fee.of this land, subject to the easements granted the city by said act, and not abandoned by it. Section 8, of the act of February 4, 1825, 23 O. L., 56; State ex rel. v. Railway Company, 37 Ohio St., 157; Jones v. Tatham, 20 Pa. St., 398; State v. Garland, 7 Ired., 49; Delaware Railroad Tax Case, 18 Wall., 206. The act of March 24, 1863, grants to the city of Cincinnati “authority and permission to enter upon, improve and occupy forever ás a public highway, and for sewerage purposes,” the part of the canal mentioned. The grant was to be made subject to all outstanding rights or claims with which it might conflict.
    The revenues derived by the state from the water privileges in the canal were expressly reserved, and the city, in the use of the canal, was not to obstruct the flow of water, nor injure its supply for milling purposes. The city, by its council, having decided to use said canal as authorized by the act, notified the governor, who, on the 28th of April, 1863, executed a grant to the city of the part of the canal named, to enter upon, improve and occupy the same forever as a public highway, and for sewerage purposes. Plainly, this was not a grant of the fee in this canal property. It was a grant of an easement — a perpetual easement, if you please, in the land; a grant of the right to use the land for specific purposes, to wit: for a public highway, and for sewerage purposes. The ownership of the fee remained in the state.
    II. The city of Cincinnati having been g-ranted only a clearly defined easement in this land, could not, without the consent of the state, change or enlarge the public use, and thus confer additional privileges in and impose additional burdens on land owned by the state. While such change of use might not work an abandonment of the easement, it could only be made subject to the rights of the state, which rights the state might at any time assert. Chagrin Falls, etc., Plank Road Company v. Cane, 2 Ohio St., 419; Street Railway Company v. Cwmminsville, 14 Ohio St., 523; Hatch Case, 18 Ohio St., 92; State v. Laverick, 34 N. J. L., 202; Starr v. Camden & Atlantic Railroad, 4 Zab., 592; Railway Company v. Hartley, 67 Ill., 439; Railroad Company v. Schurmeir, 7 Wall., 272; Hickok v. Hine, 23 Ohio St., 523.
    III. As to the part of the canal from Pearl street to the river, the easement the city acquired to use this portion for a public highway, has been either vacated or abandoned, and in either event surrendered and extinguished, and, without consent to the state, the land of the state has been devoted to uses inconsistent with and destructive of its use as a public highway. Subject to the right of the city to maintain its sewer, the state has now the same dominion over this land that it had before the grant of 1863.
    Even without a formal vacation, a public easement of a city in a street may be lost by the city allowing a use of the ground inconsistent with its use as a street. Such was the situation in the case of Barney v. Keokuk, 94 U. S., 324; Grand Rapids Street Railway, 48 Mich., 433; Detroit Street Railway v. Mills, 85Mich., 634; Street Railway v. Cumminsville, 14 Ohio St., 548.
    IV. Quo warranto is the proper remedy to vindicate the rights of the state in this land, and oust the Railroad company from its franchises, privileges and rights which it exercises, in controvention of law, in occupying and using this state land for railroad purposes, without authority from the state. The other side say: “What you are really trying to do, is to recover possession of land from us; to do this, you must sue in ejectment.”
    What the state is really trying to do, is not to recover possession of land; it is trying to determine by what authority this Railroad company is occupying’ and using-, in the manner described, land belonging to the state; and it is seeking to oust the Railroad company from franchises and privileges which it is exercising in, and on land of the state, in contravention of law.- It is not the land we are after, but the Railroad company. State ex rel. v. Railroad Company, 36 Ohio St., 434; State ex rel. v. Railway Company, 29 W. L. B., 290; People ex rel. v. Turnpike Company, 2 Johns., 190; Commonwealth v. Turnpike Company, 153 Pa. St., 47; Darley v. The Queen. 12; Clark and Finnelley, 520.
    V. No statute of limitations or estoppel in pais stands in the way of the maintenance of this action. Ohio ex rel. v. Board of Public Works, 36 Ohio St., 409; State v. Pawtucket Turnpike Company, 8 Rhode Island, 524; Rex v. Wardroper, 4 Burr., 1963; Railroad Company v. Commissioners of Greene County, 31 Ohio St., 338.
    One defense is that the defendant has been in actual, continuous, and adverse possession of the land, under a claim of title, for over forty years. It is a plea of the statute of limitations. There is no merit in this defense. There is no better settled rule than this, that the bar of the statute of limitations cannot defeat a claim in favor of the state, unless the state is introduced merely as a formal party, and the real remedy sought in its name is but the enforcement of a private right. Booth v. U. S., 2 G. & J., 273; U. S. v. Beebe, 127 U. S., 338; U. S. v. Insley, 130 U. S., 263; U. S. v. Des Moines, 142 U. S., 510; Curtner v. U. S., 149 U. S., 662; Seeley v. Thomas, 31 Ohio St., 308.
    Acquiescence which occurs while the transaction is in progress is only estoppel. De Bussche v. Alt, 8 Ch. D., 314; 2 Pomeroy’s Eq., section 917.
    To constitute a defense it must have all the essential elements of an estoppel. Acquiescence which does not come up to this measure, cannot deprive a person of his legal rights. Russell v. Watts, 25 Ch. D., 585; Menendez v. Holt, 128 U. S., 524; Lamotte v. Wisner, 51 Md., 561. . The general rule is that a sovereign’s claim cannot be defeated by estoppel. Johnson v. U. S., 5.Mason, 425; Carr v. U.S, 98 U. S., 433.
    Another element of estoppel is either fraud or its equivalent, in culpable negligence. If it was negligence, it must have been the proximate cause of the loss, and the neglect must have been of some duty which was owing to the party misled, or to the public. Leather Mfrs. Bank v. Margan, 117 U. S., 108; Henshaw v. Bissell, 18 Wall., 271; LeHigh Co. v. Manford, 150 U. S., 665; Brown v. Insurance Co., 42 Md., 385; Brant v. Virginia Coal Co., 93 U. S., 336; Lake Superior Ship Canal Railway and Iron Co. v. Cunningham, 44 Fed. Rep., 819.
    Brief of Joseph B. Foraker.

    The court will observe that we do not complain alone of the placing of the tracks, and the operation of cars over them, between Broadway and Pearl street. If the whole property from Broadway to the Ohio river had been filled, graded, improved and opened for highway purposes, we should not probably have a right to complain of the use of the whole, or a part of it, for tracks, and the passing of cars over them, in view of the decisions in Hatch’s Case, 18 Ohio St., 92; Malone v. Toledo, 28 Ohio St., 643, and Richards v. The City, 31 Ohio St., 506; although these cases do not go further, in so far as they are applicable, than to hold that it is within the power of the legislature to authorize a change of the use of property acquired by the state for a public use, from one kind of public use to another of a like kind. ' It was the change of a canal to a railroad in Hatch’s case, and the change of a [canal to a street in the Malone case, and the occupation of a street with railroad tracks in the Richards case. What we claim, therefore, is assuming the deed from the Governor to be valid, that the property was turned over to the city and accepted as an entirety; and that it was not competent for the city to vacate or abandon, and allow to be wholly obstructed and diverted to other purposes than those expressed in the deed, any portion of the same; and that because it did so, without authority and in violation of the limitations expressed, the alleged rights and privileges of the defendant, which it claims and has exercised, are in contravention of law as to the whole of the property.
    When the state gave the whole property for an expressed use, the city was bound to devote the whole of it to that use. It could not give away a part of it to be used in a manner inconsistent with the use for which it took it, and estop the state to right the wrong as to that or any other portion of it. The city, by its violation of the trust, opened the way for the state to oust the defendant, who took the benefit of that violation, from all rights acquired from the city; especially when the defendant took with notice. Barclay v. Howell, 6 Peters, 507; Williams v. Presbyterian Society, 1 Ohio St., 497; Second Washburn on Real Property, page 17, Sec. 15, Chapter 14.
    The state never parted with any interest of any kind in this property, and, therefore, has a fee simple proprietary interest in the premises in controversy. The State ex rel. v. City, 20 Ohio St., 18; The State ex rel. v. City, 23 Ohio St., 445; The State ex rel. v. Pugh, 43 Ohio St., 98; Commissioners v. State ex rel., 31 W. L. B., 27; Elevator Company v. The City, 30 Ohio St., 629; Fox v. Cincinnati, 33 Ohio St., 492; Railroad v. Cincinnati, 16 L. B., 367.
    We have a case, therefore, where the state is the owner, not simply of an interest in, but of the fee of real estate with respect to ■ which the defendant, a corporation, created by the state, is holding' and claiming rights and privileges unauthorized by and in contravention of law. Can quo warranto be brought in such a case? State ex rel. v. Shields et al., 56 Ind., 521; People ex rel. v. Mutual Gas Light Company, 38 Mich., 154; West, 64 Pa. St., 194; State ex rel. v. Turnpike Co., 38 Ind., 71.
    The state is not estopped. The state has done nothing to estop it, except to allow time to run. It has taken no compensation. It has not misrepresented anything It has not induced any .expenditures of money by the defendant. It has not misled the defendant, nor caused any change of situation of any mind to the disadvantage of the defendant. It would seem an appropriate instance in which to apply the maxim nullum tempus occurit regi. Trustees v. Campbell, 16 Ohio St., 11; Herman on Estoppel, section 1128; Railroad v. City of Belleville, 122 Ill., 376; Attorney-general v. Marr, 55 Mich., 446; Reed et al. v. The State ex rel., 74 Ind., 252; Martin v. Zellerbach, 38 Cal., 300.
    Brief of L>. K. Watson.

    When does estoppel apply to sovereignty? The defendant invokes the application of the doctrine of equitable estoppel ag’ainst the state. Our contention is, that the petition does hot show such facts as will justify the application of this principle against the sovereignty.
    Three propositions will be considered.

      First — There were no state officers whose duty it was to know that the railroad company was erecting its depots and laying its tracks on the lands of the state, and consequently estoppel could not apply.

      It is essential to the doctrine of estoppel, as applied to sovereignty, that some officer or agent of the government should have official knowledge of the misconduct complained of. In the present ease there was no such officer.

      Second — In order to estop the state, the defendant must show that its officers knew the railroad company was erecting its depots and laying its tracks, as averred in the petition, and that such officers acquiesced in such conduct in their official capacity. 94 U. S., 324.
    The defendant could not, we insist, violate the condition of the grant from the state to the city,, and then seek to charge the state with notice of such violation. A party cannot knowingly commit a wrong and then plead estoppel against one who complains of his conduct. Conduct and knowledge are necessary and absolutely essential elements in the doctrine of equitable estoppel. Bigelow on Estoppel, 484; Black’s Law Dictionary, 437.
    The defendant must show that it was the statutory duty of some officer of the state to know that the company was constructing its depots, and laying its tracks so as to destroy said avenue for highway purposes, and that such officer actually had official knowledge to that effect, and that he permitted the laying of the tracks and the construction of its depots by the company without objection. Such, knowledge on the part of the state’s officers cannot be presumed. It must be shown to have existed. The mere fact that they might have known but did not act on it is not sufficient. Negligence on the part of an official will not be presumed. U. S. v. Kilpatrick, 9 Wheaton, 735; 64 Ala., 287; Mechem on Public Officer, Sec. 579; Sturgeon v. Hampton, 88 Mo., 213 ; Daiber et al. v. Scott, 3 O. C. C. Rep., 313; Pulaski County v. The State, 42 Ark., 118; Herman on Estoppel and Res Adjudicata, section 1128; Railroad Company v. Commissioners, 35 Ohio St., 1; Filor v. United States, 76 U. S., 49; Solbery v. City of Decorah et al., 41 Iowa, 501.

      Third — The railroad company knew' or was in a position to know, the title to the land in question, when it made its improvements thereon, and, therefore cannot now avail itself of estoppel. Brant v. Virginia Coal & Iron Co. et al., 93 U. S., 327; Fisher, Ex'r, v. Mossman, 11 Ohio St., 42; Mayor of the City of New York v. Law et al., 26 N. E. Rep., 471; Vaughn v. Hixon, Sheriff, 50 Kan., 773, Ketchum v. Duncan, 96 U. S., 666; Steele v. Smelting Co., 106 U. S., 447.

      Ramsey, Maxwell ds Ramsey, Watson, Burr ds Live-say and Harmon, Colston, Goldsmith ds ILoadly for defendants.
    Brief of Ramsey, Maxwell ds Ramsey and Watson, Burr ds Livesay, for the Railroad Company.
    The demurrer rests upon three grounds:
    1. Want of jurisdiction of the subject matter.
    2. The twenty-year limitation.
    3. That the petition does not set forth a cause of action.
    This is an action in quo warranto ostensibly to oust the defendant from exercising certain alleged rights, privileges and franchises.
    It is really and in fact however an action, under the guise of quo toarranto, to recover possession of real estate. The only cause of action alleged, which has not been decided by ’this court adversely to the relator, is' that relating to the occupancy of that part of Eggleston avenue lying between Pearl and Front streets, being the portions occupied by the passenger and freight depots. Richards v. City, 31 Ohio St., 506.
    ■ Before the court can make the order asked for it must determine the contract rights of the defendant. The question is not whether the defendant company is unlawfully exercising a franchise derived from the state, but by what right it has built its depots upon and holds possession of certain lands. 'This court has not jurisdiction of such matters in quo wwrranto. Spelling on Extraordinary Relief, section 1873, Work v. The State, 2 Ohio St., 302; Blackstone, Book 3, p. 261; State ex rel. v. Railroad Co., 29 W. L. B., 293. The only authority we have been able to find that even appears to sustain the view that the title of real estate may be determined in a quo wa/rranto proceeding is the case of The State v. Shields, 56 Ind., 528. It is by virtue of express provision warranted by the constitution that in Indiana the state may recover es-cheated and forfeited lands by a proceeding’ in quo wa/rranto. This caséis, therefore, not an authority in point. State v. Hannibal & Ralls Co., 37 Mo. App., 503.
    The real gist of the inquiry in quo warranto is, and always must be, by what right does the defendant exercise a certain franchise — not by what right has it acquired or taken under the exercise of that franchise certain property — a franchise in this sense being as stated above, “a right or privilege conferred by law.” A franchise consists of the entire privilege embraced in the grant, but does not embrace property acquired by the exercise of the franchises as at first granted. Boone on Corporations, section 35.'

      It is evident that an ordinary action was contemplated, and the situation presents a fit occasion for the application of the rule that extraordinary remedies can be resorted to only when relief cannot be had In the usual course of legal proceedings. Hig’h on Extraordinary Remedies, section 617; State v. Marlow, 15 Ohio St., 114; 2 Beach on Corporations, section 436; State v. Commercial Bank, 10 Ohio St., 539; State v. Farmer's College, 32 Ohio St., 489; Maybury v. Mutual Gas Co., 38 Mich., 155.
    We are aware of the proceedings had in the State v. Railway Co., 37 Ohio St., 157, but the question of jurisdiction was not made or considered in that ease. The railway company is empowered to hold land for its depot grounds. The inquiry here is by what right it holds certain premises. This is. trying in quo warranto an ejectment issue — not an issue as to whether the defendant is authorized to> exercise a franchise or privilege derived from the state, or has misused such franchise or privilege. Stale v. George, 34 Ohio St., 669; State v. Penn. & Ohio Coal Co., 23 Ohio St., 126. Revised Statutes, section 6789.
    There are three distinct situations disclosed by the petition:

      First — The part of Eggleston avenue between Pearl street and Broadway.

      Second — The part between Pearl and Front streets.

      Third, — The part between Front street and the Ohio river.
    We maintain that if any cause of action can be found in the petition it is in that part that relates, to the portion of the canal ground lying between Pearl and Front streets; that there is nothing whatever shown that will authorize the court to call upon the defendant to show by what warrant it occupies with its track the street called Eggleston avenue between Broadway and Pearl and between Front street and the river. As to these (the first and third situations referred to above), the allegations are as follows, to wit: That the .legislature authorized the grant of that part of the canal to the city of Cincinnati “to enter upon, improve and occupy forever as a public highway and for sewerage purposesthat the grant was accordingly made by the Governor, April 23, 1863; that the city accepted the grant, and in pursuance thereof, entered upon that part of the canal, established Eggleston avenue over it and improved and occupied it in the manner and to the extent set forth in paragraph 7; that on November 15, 1867, the city granted to the Little Miami Railroad Company the right to lay down and use • a railroad track on Eggleston avenue from Pearl street to Broadway, and in the year 1876 the Pittsburg, Cincinnati and St. Louis Railway Company, lessee of the Little Miami Railroad, built said track thereon, and it and the defendant company have ever since used the same for railroad purposes. These allegations cover the first situation above referred to, and as to the third, to-wit, that portion 'between Front street and the river the allegation of fact relating to it are found in the 12th paragraph of the petition — being- in substance that that part was taken possession of some years ago, and since then and for a longtime has been and is now occupied wholly by the yard tracks, side tracks and switches of the Pittsburg, Cincinnati and St. Louis Railway Company and the. defendant company, and for a long time has been and now is used exclusively by said companies for railroad purposes, the city having abandoned the use of the street as a highway (although the sewer still remains), and that by reason of such use and occupation it had become and is impossible to use the premises for a public highway.
    For the purposes of this branch of the demurrer we may consider, therefore, only the allegations respecting the second portion or subdivision of Eggleston avenue.
    The state has no proprietary interest in the premises in controversy. The property has not reverted to the state, and the' averments show no right or interest in the state to or in the premises. A grant of these iands forever was duly made to the city of Cincinnati. No fact is stated that changes the legal status fixed by the deed. No revocation, no forfeiture is shown; no reversion is claimed. At most a misuser is alleged. Williams v. The First Pres. Society, 1 Ohio St., 496; Barclay v. Howell's Lessee, 6 Peters, 507; Webb v. Moler, 8 Ohio, 553. No abandonment by the city is shown. Ravenna v. Pennsylvania, Co., 45 Ohio St., 123; Railroad Co. v. Lewton, 20 Ohio St., 412; Giesy v. Railroad Co., 4 Ohio St., 308.
    The use authorized by the city’s agent is a public use, and the power of the state to authorize the city to grant public property for another public use than that for which it was originally acquired, or to which it was dedicated, is fully settled in this state. Malone v. Toledo, 28 Ohio St., 643; People v. Kerr, 27 N. Y.
    The petition states that the title of the state was a fee simple. There can be no question, therefore, in this cause as to the rights of prior owners of the premises. And no question as to the right of the state as a property owner can arise, as the state not only gave the property to the city but clothed the city with the power which it subsequently exercised under section 3283. State v. Railroad Co., 37 Ohio St., 157.
    The situation presented by the petition then is, that there is one part of the use subsisting in its original character, in the other part there has been a change — but the new use is entirely consistent with the expressed purposes of the grant. There is not shown, therefore, in the petition any release, abandonment or forfeiture on the part of the city, and hence no ground of action. The state is es-topped. A state may be estopped by deed, by judgment, by pleading, by contract and there is no reason why it should not also be estopped by acquiescence. In other words, the doctrine of estoppel in pais is applicable to sovereignty under certain circumstances. Resolute good faith should characterize the conduct of states in their dealings with individuals and there is no reason, in morals or law, that will exempt them from the doctrine of estoppel. State v. Milk, 11 Fed. Rep., 387; Lane v. Kennedy, 13 Ohio St., 49; City of Cincinnati v. Evans, 5 Ohio St., 594; Fox v. Hart, 11 Ohio, 414;. Verdier v. Railroad Co., 15 S. Car., 483; Hamilton v. The State, 106 Ind., 361; Simplot v. Railway Co., 16 Fed. Rep., 364; Cahn v. Barnes, 5 Fed. Rep., 327; State v. Bailey, 19 Ind., 452; Easton & McMahon v. Railroad Co., 24 N. J., 58; Nieto v. Carpenter, 7 Cal., 533; State v. Taylor, 28 La. An., 462; States. Ober, 34 La. An., 361; Peoples. Society, etc., 2 Paine, 558; Mayor of Athens v. Railroad, 72 Ga., 800; Gregory v. Knight, 50 Mich., 63; Brooks v. Reding, 46 Ind., 24; Cheek v. Aurora, 92 Ind., 114; Logan County v. Lincoln, 81 Ill., 159; Railroad Co.
      v. Joliet, 79 Ill., 25; Simplot v. City of Dubuque, 49 Iowa, 630; Goodrich v. Milwaukee, 24 Wis., 437. Dillon’s Municipal Corporation, section 675.
    Not only has the state permitted the long occupancy and great expenditure of money on the part of the railroad company — but it has received revenue from the taxes imposed upon this right of way and upon these depot buildings and tracks of the company. Railway Co. v. People, 91 Ill., 254. Thus it appears that there was during all this time, a department of the state government specially charged with attention to this matter. High on Ex. Leg. Remedies, section 716; State v. Beecher, 15 Ohio, 725.
    An answer in quo warranto, of not guilty or non usurpavit, is bad ; it-should either justify the holding or disclaim. Attorney General v. Foote, 11 Wis., 14; State v. Alcott, 6 N. H., 77; People v. Teadier, 55 N. Y., 529; Clark v. People, 15 Ill., 217; Angell on Corporations, section 756; The Queen v. Blagden, 10 Modern, 296.
    We are therefore, not only warranted in setting forth fully the facts upon which we rely as our defense, but are required to do so by the rules of pleading in quo warranto — to set out, as High states it, our title specifically and distinctly. The state calls upon us to show by what warrant we occupy and use a certain highway — or certain premises alleged to belong to the state.
    Our averments are pertinent and show:
    1. That there was no abandonment by the city.
    2. The state has not such an interest in the premises as would enable it to maintain this suit.
    It is claimed the city abandoned the premises granted it for public highway purposes, because, as, it is contended, the occupation by the railway company is inconsistent with the use granted the city.
    The laws of our state and the decisions of this court are against this view. It is provided in Revised Statutes, section 3283, that if it be necessary in the. location of any part of a railroad, to occupy any public road, street, alley, way or ground of any kind, or any part thereof, the municipal, or other authorities, and the railroad company may agree upon the use or occupation, and if the parties cannot agree the company may appropriate so much of the same as may be necessary for the purpose of its road. Richards v. Cincinnati, 31 Ohio St., 511; Ravenna v. Penn. Co., 45 Ohio St., 123; Railroad Co. v. Lewton, 20 Ohio St., 412.
    The situation, as presented by these allegations, is, that there is one part of the use subsisting in its'original character; in the other part there has been a change — but the new use is entirely consistent with the expressed purposes of this grant, and these allegations show there has been no release, abandonment or forfeiture on the part of the city, and hence no ground of action.
    The state has not such an interest in the premises as would enable it to maintain this suit. The most that cap. be claimed is a misuser. The legal effect of this situation is clearly set forth in Williams v. The First Presbyterian Society, 1 Ohio St., 496; United States v. Railroad Co. et al., 154 U. S., 225.
    It is true this Eggleston avenue ground was not dedicated by plat, but it was dedicated to street purposes — granted to the city for highway uses, by an instrument of quite as high a character, the deed of the governor, made in pursuance of an act of the legislature.

      All this was done by the railroad company in entire good faith and under a strong claim of right, and, as we think, presents a clear case for the application of the principle óf equitable estoppel. We maintain that the answer shows a state of facts wherein “upon all the circumstances of the case” right and justice require that the state should be estopped. We know of no case in Ohio directly in point. Lane v. Kennedy, 13 Ohio St., 49.
    The doctrine has, however, been recognized in other states. Verdier v. Railroad Co., 15 S. Car., 483; Hamilton v. The State, 106 Ind., 361; Simplot v. Railway Co., 16 Fed. Rep., 364.
    The doctrine of estoppel applies to the state just as it does to individuals. State v. Taylor, 28 La. An., 462; State v. Aber, 34 La. An., 361; People v. Society, etc., 2 Paine, 558; Mayor of Athens v. Railroad, 72 Ga., 800; Gregory v. Knight, 50 Mich., 63; Brooks v. Reding, 46 Ind., 24; Goodrich v. Milwaukee, 24 Wis., 437.
    A plea that the defendants have, for twenty years, exercised the franchise which they are accused of usurping, is valid under the statute. The State v. The Miami Exporting Co., 11 Ohio, 126; The State ex rel. v. Beecher, 16 Ohio, 358; 49 Ohio St., 187.
    We further submit that this proceeding and the laws of Ohio attempting to authorize the same are in contravention of the constitution of the United States, and especially of the fifth and fourteenth articles of amendment. Hurtado v. California, 110 U. S., 516; Pennoyer v. Neff, 95 U. S., 714; Scott v. McNeal, 154 U. S., 34.
    Brief of Harmon, Colston, Goldsmith c& ILoadly, for Eggleston avenue property holders.

      Even though it should be held that the railroad company’s use of Eggleston avenue was inconsistent with a public highway, the state of Ohio would have no right to question any unauthorized use of the street applying only to the surface and not amounting to an interference with the underground conduits for the passage of water to the river.
    The only right which the state of Ohio retained in the canal territory between Broadway and the Ohio river, after making delivery of the deed in pursuance of the legislative act of 1863, was the right to have the flow of water continue uninterrupted to the Ohio river for the benefit of that part of the canal west of Broadway, and the right to have the water powers, existing at the period of 1863, continued as an incidental source of revenue. Every other right that the state ever had in the land once.occupied by this portion of the cana* it parted with forever by the deed to the city of Cincinnati. Although such deed stated that the transfer to the city was for a public highway and for sewerage purposes, yet so far as the state is concerned, the transfer was absolute, except as to the express limitations in the law making certain reservations in favor of the state. All else was parted with forever by the state to the city of Cincinnati. The state gave up once and forever all right, title and interest in and to all of the land and all rights therein, retaining only the water privileges, the water powers and the water flow to the river, and the incidental right of access to the flumes and raceway conducting this water, in case such access thereto should become necessary for any purpose. The preservation of the surface as a street was, by this legislative act, and by the deed in pursuance thereof, devolved upon the city of Cincinnati. ' The state dismissed itself of all control over and future concern for the use of the ground as a street. So that any use or occupation of the street thereafter by a railroad company or other person in a manner inconsistent with its use as a public highway could by a civil action be taken advantage of, only by the city or abutting property owners.
   Bradbury, J.

The first, and principal, question to be determined in the case arose • upon the demurrer to the petition and respects the jurisdiction of this court over the subject of the' action. That the original jurisdiction of this court cannot be enlarged or diminished by legislative action, but is such, only, as the constitution confers, was settled at an early day after the present constitution was adopted. Kent v. Mahaffy, 2 Ohio St., 498; Wheeler v. Lynn, 8 Ohio St., 393. The jurisdiction thus conferred is confined to proceedings in quo warranto, mandamus, habeas corpus and procedendo.” Article IY, section 2. Therefore the subject matter of an original action in this court must fall within the scope of one or the other of those four specified proceedings, or its jurisdiction fails. True, Okey, J. in Knapp v. Thomas, 39 Ohio St., 377, expressed an opinion that the extent of the jurisdiction of this court ‘ ‘ in habeas corpus as well as the manner of its exercise, is undoubtedly, in some measure, within legislative control.” If this opinion is not in direct conflict with Kent v. Mahaffy, 2 Ohio St., 498, supra, and the other decisions of this court upon the question of its original jurisdiction, nevertheless it must be regarded as announcing a principle that can operate only within extremely limited boundaries, and if not confined to proceeding’s in habeas corpus, yet can not be invoked to clothe this court with original jurisdiction over any substantially new subject matter on the assumption that • it falls within either of the other three heads of original jurisdiction.

The subject matter of the present inquiry, if within the jurisdiction of the court at all, falls properly within an action in quo warranto. It relates to a right or privilege claimed and exercised by the defendant, a body corporate under the laws of this state, in respect of lands that now constitute or formerly did, a part of the public canal system of this state, and calls upon the defendant to set forth the grounds upon which it claims such right or privilege. This isa proper office of a proceeding in quo warranto.

Quo warranto was anciently employed by the king to question the title of individual proprietors to lands of the crown, as well as to nearly every other privilege or franchise that emanated from or was held by the crown.” However, no modern instance of its exercise in England for the former purpose has been shown. 2 Reeves’ His. Eng. Law 211; People v. McKinch, et al., 23 Wend. (N. Y.), 222.

By the statutes of this state in force when our existing constitution was framed and adopted, quo warranto would lie against a corporation “whenever it shall have misused any franchise or privilege conferred, or exercise any franchise or privilege not conferred upon it by law.” 36 O. L., 69. Privilege is a comprehensive term; and to enter upon and occupy lands that form a part of the canal system of the state by anyone is exercising a privilege, in one sense of that term, and if this is done without authority from the state, it is “exercising a privilege not conferred by law.” The statute on the subject in force now is more specific. Its language authorizes an action in quo warranto to be brought against a corporation “when it claims or holds, by contract or otherwise, * * * a franchise, privilege or right in contravention of law.” This would seem to expressly declare that any specific contractual right asserted by a corporation to which it had no illegal right might be made the subject matter of an action in quo warranto, at least if it concerned the public. We have seen, however, that the legislature has no authority to enlarge the jurisdiction of this court in quo warranto. It has been suggested in this connection that the later act of the general assembly is merely a legislative construction of the earlier one — that in force at the time of the adoption of our present constitution. This suggestion, however, has little or no value in solving* the question under consideration, for where the general assembly is without authority to alter a statute directly, it cannot accomplish the same end indirectly by an attempt to construe its meaning.

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. What the proper practice might be if the controversy was between the state and a private person we need not stop to discuss. The case before us being one where a corporation, a mere creature of the state, is occupying lands admitted to have formed a part of the canal system of the state, is required to set forth the grounds by which its occupation is justified.

The practice of bringing in this court, proceedings in quo warranto to determine controversies, similar in all essential respects to that involved in this action, originated nearly a score of years ago. In State ex rel. v. Railway Co., 37 Ohio St., 157, a case like the one under consideration, the original jurisdiction of this court was successfully invoked. True, the jurisdiction of the court does not seem to have been challenged in that case, a circumstance doubtless weakening its force as an authority. Since that decision was rendered, however, and upon its authority the jurisdiction of this court, in cases involving the same question, has been exercised a number of times. And in the unreported ease of The State ex rel. v. The Toledo and Walhonding Valley R. R. Co., the jurisdiction being assailed was sustained after argument. The validity of a number of judgments rests solely upon this jurisdiction; if the jurisdiction did not subsist those judgments are absolutely void. In view of the serious consequences that would follow from overruling those cases, it should not be lightly done.

The statute in force when the constitution was adopted, as we have seen, authorized proceedings in quo warranto against a corporation whenever it exercised any “franchise or privilege” not conferred upon it by law. The contention that the word “privilege” was used advisedly by the legislature as more comprehensive than “franchise,” and in a sense broad enough to comprehend a specific claim in respect of public property, is not without reason for its support. If the word “privilege” was employed as synonymous with “franchise” its use was superfluous. If not employed as synonymous with franchise, in what sense was it employed ?

In this connection it may prove profitable to refer to the difference between the language this statute used to authorize a proceeding in quo warranto, and that employed to limit the time within which to bring the proceedings, 36 O. L., 69, and section 8 and section 26, p. 73. The action may be brought whenever a corporation exercises a “franchise or privilege not conferred upon it by law.” The limitation of time is made to apply to the exercise of a “power or franchise” under its charter. The phrase “franchise or privilege not conferred * * by law ” is more comprehensive than the words “ power or franchise * * under its charter.” The' former phrase, according to the sense it ordinarily bears, doubtless includes many things not embraced by the latter. This marked difference of phraseology should not, needlessly, be attributed to accident. If the general assembly intended that where a corporation merely exercised a power or franchise under, that is by virtue of its charter, this power or franchise should not be challenged by the state after twenty years’ user, and also intended that an action in quo warranto might be brought against a corporation, and that too without limitation of time, whenever it claimed or exercised an unwarranted right or privilege respecting the property of the state, it chose, in the language just quoted, an appropriate medium to express such intention.

The former decisions of this court sustaining its jurisdiction in this class of cases must be based upon doctrines of the common law or upon the provisions of the statute just referred to, which were in force when the present constitution was adopted. If we concede that the common law doctrine had become obsolete at the time the constitution was adopted, then the court, heretofore in entertaining-original jurisdiction in this class of controversies, must have held that it was authorized by the statute. The ancient rule of the common law authorizing proceedings in quo warrcmto by the crown against a subject asserting some right respecting lands claimed by the crown, together with the aptness of the proceeding to advance the inquiry, are not wholly immaterial upon this question of statutory construction. If it once existed and had become obsolete, that, together with its appropriateness as a remedy, may have been the cause of legislative action on the subject.

In view of these considerations we adhere to the former decision^ of the court upon the question of its original jurisdiction in this class of cases.

Having sustained the jurisdiction of the court, the other grounds urged in support of the demurrer to the petition present but little difficulty. True, the petition discloses that the defendant has occupied lands forming- a part of our public canal system under a claim of right, for more than twenty years ; but statutes of limitation do not run against the state unless the intention that they shall so run is obvious. The limitation of time within which an action in quo warranto is to be commenced is found in section 6789, Revised Statutes, which reads: “Nothing in this chapter contained shall authorize an action against a corporation for forfeiture of charter, unless the same be commenced within five years after the act complained of was done or committed; nor shall an action be brought against a corporation for exercising a power or franchise under its charter which it has used and exercised for a term of twenty years. ’ ’ * * * * As the present proceeding does not seek a forfeiture of the charter of defendant the five years’limitation does not apply. Neither does the twenty years’limitation apply, because the proceeding is not directed against the exercise of 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 of the canal lands of the state, and no limitation is prescribed to the bringing of an action to secure that end.

Whether the petition states a cause of action depends upon the title the state acquired in the lands in controversy when it appropriated them to canal purposes, and the construction that should be given to conveyance it made to the city of Cincinnati.

That the title of the state to its canal lands is one in fee simple is a question of law. The only fact to be ascertained is whether the lands were in fact a portion of the canal system. How the acquisition was made is not material. The mere seizure and appropriation of a parcel of land for canal purposes, by force, of the statute under which our canals were constructed, was alone sufficient to vest in the state a fee simple title to them. Nor could any other title than one in fee simple be received by the state for lands to be devoted to a canal. A mere occupation of lands by the state for canal purposes, was a seizure and appropriation of it to that purpose, and to be devoted to that purpose was to give to the state a fee simple title thereto. No conveyance was necessary ; the seizure and occupation transferred to the state the entire estate in the lands so seized and occupied, leaving to the former owner simply a claim for compensation. 23 O. L., 56 (section 8.) Malone v. Toledo, 28 Ohio St., 643; Malone v. Toledo, 34 Ohio St., 541.

The lands, the occupation of which is the subject of controversy in this action, were a part of the canal lands of the state, to which, as before stated, the state had a fee simple title. The statute of 1863, 60 O. L., 44, did not authorize a conveyance in fee to the city of Cincinnati of the parcel of land in controversy, nor did the deed of the governor made pursuant thereto purport to convey such title. The statute, as well as the deed, expressly describes the interest conveyed. It was an “authority and permission to the city of Cincinnati to enter upon, improve and occupy forever as a public highway and for sewerage purposes,” the land in controversy. No other estate, right or interest was granted or intended to be granted than that just recited. Grants made by the state are not to be extended by construction. The grant was of a right to occupy and improve this strip of land for two specified purposes — for sewerage and a public highway — the fee remaining in the state. No power of sale passed to the city nor any power to barter this strip of land for another strip or parcel lying elsewhere, although the latter should be used for street or sewerage purposes. The limits of the rights of the city under the conveyance was to improve and use the land conveyed for sewerage and street purposes; it could use or apply it to no other purpose itself, nor could it grant to another any right whatever in these lands. The city, by the ordinance of December 1, 1871, vacated Eggleston avenue from the north line of Front street to the south line of Pearl street. That was a direct abandonment of the right which had been conveyed to the city by the state to improve and use for a street the portion thus vacated; and by the use to which it permitted the defendant to appropriate that portion of the strip which is situate south of Pearl street, it may be fairly inferred, that the city has abandoned that also. The city having abandoned this right it reverts to the state from which the right emanated. The state was the absolute owner in fee of the whole estate and interest in this strip of land; it conveyed to the city a right to use it for two specified purposes only; upon the abandonment by the city of either purpose' the interest, to that extent returns to the grantor. By the express terms of the deed made to the city, as well as by the terms of the statute authorizing it, the city was authorized to enter upon, improve and occupy * * *■ all or any part of the strip of land which is the subject of controversy, so the fact that the city has abandoned a part of the land for street purposes does not work an abandonment of the whole. Nor is the use to which the city has permitted the defendant to devote that part of the land which lies between Broadway and Pearl streets, inconsistent with its continued use by the city for street purposes, and therefore such use by the defendant does not work an abandonment of the city’s rig’hts. But as the right granted to the city only authorized a use by the city itself of the premises granted, the city could grant no right to the defendant to lay its track thereon, and therefore such, use of the premises by the defendant is without authority of law.

These views require us to overrule the demurrer to the petition.

We now pass to a consideration of the answer which, as we have seen, is attacked by both a demurrer and a motion.

The first defense among other things denies the allegations of the thirteenth, fourteenth, fifteenth, sixteenth and seventeenth paragraphs of the petition. These paragraphs, excepting the thirteenth, state no facts upon which relief is predicated, but are in the nature of conclusions drawn by the pleader from material facts before averred in the petition, and their denial therefore raises no material issue.

The thirteenth paragraph of the petition is in the following- words:

‘ ‘ 13. The plaintiff avers and charges that subject to the rights, privileges and easements therein, which were granted to the city of Cincinnati by the state under the act of March 24, 1863, excepting, however, such of the rights, privileges and easements thus granted as by reason of the facts hereinbefore stated have since then been released, abandoned or forfeited by said city, the state of Ohio has been since the said 24th day of March, 1863, and now is the owner in fee and entitled to the full use and possession of that part of the Miami and Erie canal extending from the east side of Broadway in the city of Cincinnati to the Ohio river, including the width thereof, as owned and held by the state on said date.”

To deny the averments of this paragraph would seem to put in issue the title of the state to land occupied by the defendant. The first defense of the answer not only denies the averments of this paragraph, but proceeds as follows: “And the defendant denies that the plaintiff on or prior to the 24th day of March, 1863, or at any other time was or is the owner in fee of the real estate, or any part of the real estate mentioned in the petition; but, on the contrary, says that the plaintiff has not and never had any interest or estate therein, except the right to use and occupy a portion thereof for canal purposes, that no compensation was ever paid therefor by the plaintiff and that no title in any of said real estate was ever conveyed to the plaintiff or otherwise acquired by it. ”

We have already adverted to the method by which the state acquired its canal lands; no conveyances were required, nor was any legal or formal proceedings of any kind necessary; it simply occupied such as the canal commissioners desired — this occupancy by force of the statute, 23 O. L., 56, section 8, vested the legal title in the state. No direct averment of title was necessary; from the fact alone that a tract of land was occupied by the state for the purposes connected with its canal system, it followed as a matter of law, that the state owned it in fee simple. Under this state of the title, to simpty deny that the state had a title in fee was to deny a conclusion of law. To contest the state’s title, the party must deny that the lands were part of the canal system of the state, and the answer falls short of doing so. In fact, when the whole answer is considered, the connection of the lands occupied by the defendant, with the canal system of the state as clearly appears, as it does on the face of the petition, the attempted denial of title therefore is not sufficient to raise a material issue and the demurrer to it should be sustained.

The remainder of the answer contains no matter entitled to an extended discussion. The defendant knew, or had the means of knowing’ the terms of the conveyance made by the state to the city of Cincinnati; they appear not only in the conveyance itself, but also in the act of the legislature by which the conveyance was authorized. It made the arrangement with the city by means of which it entered into occupancy of these lands, and expended its money in erecting structures, and placing railroad tracks thereon at its peril. If in any case the property of the state can be lost by an estoppel predicated upon the negligence, or bad faith of one of its officers or agents, the facts of this case do not create one. Neither was the state a party to any of the eases which are claimed to sustain the defendant in its contention that practically the whole interest and title of the state passed to the city by virtue of the deed made to it for these lands, and that the defendant acquired by its .contract with the city the same rights. Doubtless if the city had any rights in the premises which it could convey, they passed by the deed to the defendant; but as the city had no rights therein other than that of occupancy by itself for specified purposes, and such rights not being subject to a -conveyance, of necessity nothing passed by its deed.

The demurrer to the answer should be sustained.

This disposes of the answer; true, the larger part of it might be stricken out as immaterial, but we deem it unnecessary to consider it with a view to that end.

The defendant, upon the day the cause was finally submitted, asked and obtained leave to file the following amendment to its answer: “The defendant, for amendment to its answer says, in addition to thé allegations thereof, that this proceeding and the laws purporting to authorize the same aré in contravention of the constitution of the United States, and especially of the fifth and fourteenth articles of amendment.”

As our attention has not been directed to any inconsistency between the proceeding under consideration, or the statute by which it authorized, and the constitution of the United States, and as we perceive none, we enter upon no discussion of the question. Judgment for relator.