Ohio ex rel v. Railway Company. If it was its equivalent, in culpable negligence. 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; Le High 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 Ohio ex rel. v. Railway Company. 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 Ohio ex rel. v. Railway Company. 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 D. K. Watson. When does estoppel apply to sovereignty? The defendant invokes the application of the doctrine of equitable estoppel against the state. Our contention is, that the petition does not 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. Ohio ex rel. v. Railway Company. 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 case 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. Ohio ex rel. v. Railway Company. 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 & Ramsey, Watson, Burr & Livesay and Harmon, Colston, Goldsmith & Hoadly for -defendants. Brief of Ramsey, Maxwell & Ramsey and Watson, Burr & 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 warranto, 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 oc |