City of Coeur d'Alene v. Spokane & I.E.R. Co.

• Decision Date: 28 December 1917
• Citation: 169 P. 930,31 Idaho 160
• Court: Idaho Supreme Court
• Parties: CITY OF COEUR D'ALENE, a Municipal Corporation, Appellant, v. SPOKANE & INLAND EMPIRE RAILROAD COMPANY, a Corporation, and CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, a Corporation, Respondents

169 P. 930

31 Idaho 160

CITY OF COEUR D'ALENE, a Municipal Corporation, Appellant, v. SPOKANE & INLAND EMPIRE RAILROAD COMPANY, a Corporation, and CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, a Corporation, Respondents

Supreme Court of Idaho

December 28, 1917

MUNICIPAL CORPORATIONS - FRANCHISES - ACCEPTANCE - WAIVER - ESTOPPEL.

1. Where a city, by ordinance, offers a franchise, based upon the express condition that it be accepted in a certain manner, it may waive the specified manner of acceptance and recognize another, although it is not bound to do so, and whether it has so waived or not is a question of fact.

2. In order to establish waiver the intention to waive must clearly appear, and it will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby unless, by his conduct, the opposite party was misled to his prejudice into the honest belief that such waiver was intended or consented to.

3. One of the necessary elements of an equitable estoppel is that the party relying upon it must have been misled to his injury by the conduct or representations of the one against whom it is sought to be invoked.

[As to estoppel by acquiescence of silence, see notes in 57 Am.Rep 429; 10 Am.St. 22]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Action for injunction. Judgment for defendants. Reversed.

Judgment reversed. Costs awarded to appellant.

Jas. H Frazier, F. W. Reed, and Black & Wernette, for Appellant.

There was no necessity for a formal declaration of forfeiture because by the provisions of the franchise ordinance itself it, declared the forfeiture in the case of a failure to comply with its provisions. (Wheeling & Elm Grove R. R Co. v. Town of Triadelphia, 58 W.Va. 487, 52 S.E. 499, 4 L. R. A., N. S., 321, 333; Kaiser Land & Fruit Co. v. Curry, 155 Cal. 638, 103 P. 341, 345; Town of Arcata v. Arcata & M. R. R. Co., 92 Cal. 639, 28 P. 676, 677; Oakland R. R. Co. v. Oakland, B. & F. V. R. Co., 45 Cal. 365, 13 Am. Rep. 181; McConathy v. Deck, 34 Colo. 461, 83 P. 135, 7 Ann. Cas. 896, 4 L. R. A., N. S., 358, 362.)

Where the forfeiture is expressed, it is self-executing. (Wilmington City Ry. Co. v. Wilmington & B. S. Ry. Co. (Del.), 46 A. 12, 21; In re Brooklyn, Q. C. & S. R. Co., 185 N.Y. 171, 77 N.E. 994.)

A municipality on granting the use of its streets to a street railroad company has absolute power to grant or withhold its consent, and may impose any condition which in the exercise of its discretion it deems proper as the terms upon which its consent is given. (Galveston & W. Ry. Co. v. Galveston, 90 Tex. 398, 39 S.W. 96, 36 L. R. A. 33.)

E. R. Whitla and W. G. Graves, for Respondent Spokane & In. Empire R. R. Co.

There need be no formal acceptance, for any act indicating an intent to proceed under the charter is sufficient. (1 Cook, Corp., 6th ed., sec. 2a.)

Acceptance will be presumed from "the fact that a charter has been applied for; or user of the franchises or powers conferred." (1 Thompson, Corp., sec. 60; McQuillin, Municipal Ordinances, sec. 579; City Ry. Co. v. Citizens' St. R. R. Co., 166 U.S. 557, 17 S.Ct. 653, 41 L.Ed. 1114.)

User is the most usual evidence of acceptance of a franchise ordinance, and, where unexplained, is conclusive of the fact. (Postal Tel. Cable Co. v. Newport, 25 Ky. Law, 635, 76 S.W. 159; Southern Bell Telephone etc. Co. v. Richmond, 103 F. 31, 44 C. C. A. 147.)

There may be an acceptance of the benefit of a legislative act otherwise than as provided in the act. (Zabriskie v. Cleveland C. C. R. Co. , 23 How. (U. S.) 381, 16 L.Ed. 488.)

"Where the acceptance actually reaches the person who has made the offer it is immaterial by what mode it is sent, unless a particular mode of acceptance is prescribed by the offer; but as a general rule if a particular mode of acceptance is prescribed by the offer the condition must be complied with, unless it is waived." (9 Cyc. 266.)

"Waiver is a mixed question of law and fact," and "is a matter of fact to be shown by the evidence." (40 Cyc. 267, 270.)

A municipality, like an individual, can waive its rights or estop itself, and the municipality had done so by allowing the company to enter upon and construct its line in the streets. (Town of Essex v. New England Tel. Co., 239 U.S. 313, 36 S.Ct. 102, 60 L.Ed. 301; City of Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 32 S.Ct. 572, 56 L.Ed. 934; Postal Tel. Cable Co. v. Newport, 25 Ky. Law, 635, 76 S.W. 159; New Orleans C. & L. R. Co. v. New Orleans, 44 La. Ann. 748, 11 So. 77; Hodges v. Baltimore Union Pass. Ry. Co., 58 Md. 603; Newport News & O. P. Ry. & Elec. Co. v. Hampton Roads Ry. & Elec. Co., 102 Va. 795, 47 S.E. 839; State ex rel. Smith v. Duluth St. Ry. Co. , 128 Minn. 314, 150 N.W. 917; People v. Rock Island, 215 Ill. 488, 106 Am. St. 179, 74 N.E. 437; Pennsylvania R. R. Co. v. Montgomery County Pass. Ry., 167 Pa. 62, 46 Am. St. 659, 31 A. 468, 27 L. R. A. 766; Spokane St. Ry. Co. v. City of Spokane Falls, 6 Wash. 521, 33 P. 1072.)

George W. Korte and Robert H. Elder, for Respondent Chicago, Milwaukee & St. Paul R. R. Co.

No formal written acceptance is necessary in any case if the facts show an actual, practical acceptance by the company, or action which would be only applicable in case the ordinance was accepted. (Spokane St. Ry. Co. v. City of Spokane, 6 Wash. 521, 33 P. 1072, 1073; People v. City of Rock Island, 215 Ill. 488, 495, 106 Am. St. 179, 74 N.E. 437; Chicago & N.W. Ry. Co. v. People, 91 Ill. 251; Sioux City v. Chicago & N.W. Ry. Co., 129 Iowa 694, 113 Am. St. 500, 106 N.W. 183; Jordan v. Washington & C. Ry. Co., 25 Pa. Super. Ct. 564; Hagerstown v. Hagerstown Ry. Co., 123 Md. 183, Ann. Cas. 1916B, 1267, 91 A. 170; Commercial Electric Light & Power Co. v. City of Tacoma, 17 Wash. 661, 50 P. 592.)

The act of the railroad in taking possession of the right of way granted by the city was an acceptance of the terms of the ordinance, and the railroad will not be heard to claim that it was not acting under its terms. (McQuillin, Mun. Corp., sec. 1650; City Ry. Co. v. Citizens' Street Ry. Co., 166 U.S. 557, 17 S.Ct. 653, 41 L.Ed. 1114.)

The failure of the railroad company to accept the ordinance in writing was waived by the city, and this waiver may be implied from its acquiescence in the defendant's acts in building and constructing the railroad. (Postal Tel. Cable Co. v. Newport, 25 Ky. Law, 635, 76 S.W. 159; Pembroke Tp. v. Canada Central R. Co., 3 Ont. 503; Pennsylvania R. R. v. Montgomery County Pass. Ry., 167 Pa. 62, 46 Am. St. 659, 31 A. 468, 27 L. R. A. 766.)

The defense of equitable estoppel may be asserted against any municipal corporation when the character of the action and the facts and circumstances are such that justice and equity demand the corporation should be estopped. (Dillon, Mun. Corp., 4th ed., sec. 675; Marshall County Supervisors v. Schenck, 5 Wall. (U. S.) 772, 18 L.Ed. 556; City of Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 32 S.Ct. 572, 56 L.Ed. 934.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

Appellant, the city of Coeur d'Alene, alleged in its complaint that on September 27, 1915, respondent, Spokane & Inland Empire Railroad Company, hereinafter called the company, prepared and submitted to the city council a proposed ordinance, which was passed and approved, by the terms of which there was granted to it the right to construct, maintain and operate a railroad track upon and over a portion of one of the city's streets; that it was provided in the ordinance, among other things, that it be in full force and effect from its passage, approval and publication, conditioned, however, upon the acceptance mentioned therein, and that unless the franchise and privilege therein granted be accepted by the licensee within thirty days from the approval of the ordinance, by writing properly subscribed and filed in the office of the city clerk, the franchise and license should become void and the rights and privileges granted thereby should be forfeited. It was further alleged that the company did not, at any time, accept the terms and provisions of the ordinance in the manner therein provided, or in any other manner, or at all, and that appellant never waived the requirements therein expressed that before the same should be effective it must...