duct was at all influenced by that silence, while making their improvements and spending their money, of which they now complain. It tends to show that they had not relied on the silence of the city at that time, or they would not have been so long in pleading it after suit was brought; and the other circumstances of the case confirm the suggestion of the plaintiff that reliance on that silence in spending the money is an afterthought, long after the improvements were made, and never considered before.

The most remarkable feature about this case, as it appears to any impartial mind, is the reprehensible silence of both parties upon the subject-matter now in litigation, if they were ever dealing with each other on the respective footings of either the petition or the answers. If the city has ever, at any time since 1849, claimed to have any "control" over, or right of "possession" to, the locus in quo, as a street, why did it wait until 1893 to set it up for the first time? It has seen the railroad companies taking "exclusive" possesgion, a word not in the contract, or assuming an "exclusive" use; has seen what Judge McLean said in the Holmes Case was about 20 acres of accretions grow into over 51 acres now; and has seen the companies occupy that vast area, and use it exclusively, all this time. Yet it has never exercised or demanded any kind of possession or control for itself or the public, other than its uses by the public for the railroad traffic. Not by any act, syllable, or suggestion has the city indicated that the companies were usurping larger rights or uses than they had under the contract; and all this, for nearly 50 years. On the other hand, the defendant railroad companies, in 1853, four years after the contract, in the Case of Holmes, before cited, defined their understanding of the contract, and by their sworn answers admitted that they held only as licensees of the city. One of these answers, which are all substantially alike, will be copied in the margin, so far as it relates to the admissions of the city's title. Mr. Justice McLean thus states his construction of these answers: "The defendants insist that the title to all of said land covered by the water of Lake Erie is in the public, and not in any trustee for them; and, as to the residue of said land, rely for a defense upon the equitable bar furnished by lapse of time, want of title in equity in the complainants, and upon a dedication of said land to the public by the Connecticut Land Company, as early as 1796, accepted immediately thereafter, and ever since used in accordance with the purposes of the dedication. They deny that they are in possession under the title derived from said Lloyd, and aver that they are in possession under the authority of a statute of Ohio, in pursuance of a license granted by the city of Cleveland, and using the same in a manner consistent with the original dedication."

Measured by what is now claimed by the defendant companies, who set up an absolute title, by the contract, by estoppel, by the statute of limitations, etc., the construction then given to the instrument is noticeably narrower than is now urged upon us. Indeed, these answers quite disclaim any other construction of the contract than that which the city now gives it by the bringing of this suit. They certainly then admitted that the contract is only a license; that the city, after the contract, continued in the rights of licensor and See ("B") at end of this opinion, page 141.

owner of the street, and they acquired only the rights of a licensee. That was then the mutual interpretation of the instrument, or the view of their rights taken by the defendants.

The plea of estoppel, the proof and argument in favor of it, now assume the broader construction of the instrument set up in this litigation in favor of the defendant companies; that the city is a vendor of the whole estate, or, possibly, it would be conceded, minus the naked legal title; and that the companies are the vendees thereof, all by deed of grant sufficient to convey this much-enlarged estate from any that was ever claimed before. Obviously, however, the question of estoppel in pais by silence, etc., is to be governed by the conduct of the parties, judged by the interpretation which they themselves, at the time of the conduct complained of, gave the instrument, and not that legal construction by the courts which is first invoked some 50 years later. The coloring of the conduct of the city, alleged to be culpatory in this matter of estoppel, must, in law and in all fairness, be taken from the then state of mind of the parties, and not that which is subsequently established by the ultimate and conclusive adjudication of the courts. We do not yet know, by any judgment of a court, what is the proper construction of this contract, and how is it possible to impose on the parties a legal conclusion which is retrospectively to give coloring to their conduct in this matter by estoppel in pais. It seems to me impossible, however long the time elapsed, to work an estoppel under such circumstances.

It is said there was no obligation on the defendants to speak; that they might properly keep silent, and permit the lapse of time to cure whatever defects there may have been in their title. In some circumstances this would be true, but not those we have here. After che defendants, almost in the beginning of the contract, had, by their solemn oath of record, admitted that they were only licensees, and nothing more, the city might well rely on that admission and that attitude of the defendants towards the city's rights. It is indisputable that as licensees, under the very terms of the instrument, they might claim the right to spend all the money they did spend in laying tracks, etc., and in erecting costly and lasting structures. It was wholly consistent with that holding to do this. It might have been their folly to so improve, at the cost of immense sums, upon a mere licensee's title, if the license be revocable at the pleasure of the licensor, or at all, under any circumstances. Nevertheless, the formidable character of the improvements and the largeness of the cost, although, under ordinary circumstances, sufficient to put any rival claimant for ownership on notice, and potential enough to invoke the rule to speak up and claim his rights within a reasonable time, do not require him to speak, if he be not in fact a rival claimant, but one whose claim is at that time fully recog nized as existing, and, in a certain sense, dominant. If a lessor have a contract with his lessee to improve the estate, the lessee cannot claim that the lessor is estopped by standing by, and seeing the improvements going on without objection, until after he has given notice that he shall claim more than the estate of a licensee, or unless there is something in the character of the improvements

themselves showing that they go beyond the contract, and thereby advise the lessor of a larger claim. There is nothing here of that kind. From the date of the Holmes suit, the railroad companies have never given a breath of notice that they should claim more than they claimed in the Holmes answers. Never, until their pleas in this case. Mr. Justice Field said on the circuit, in Adams v. Burke, 3 Sawy. 415, Fed. Cas. No. 49, that the possession must be hostile, which means adverse, of course, and that entry by permission of another, or with the admission of another's title, would not set the statute of limitations running,-no more will it set an estoppel running, and that the recognition of another's title after the statute had begun to run, no matter for how brief a period, will avoid the statute. That, too, was the case of a complaint or pleading"a sworn admission"-that the defendants did not hold the premises by a claim of title hostile to the title of the plaintiff, but with a recognition of that title. The truth is, both these parties have been contented all these years with this mutual construction of the contract, and have been silent accordingly. The question in my mind has been whether they are not now mutually estopped from denying this construction, and ever asking for another. Topliff v. Topliff, 122 U. S. 121, 131, 7 Sup. Ct. 1057; Chicago v. Sheldon, 9 Wall. 50, 54; District of Columbia v. Gallagher, 124 U. S. 505, 510, 8 Sup. Ct. 585. On the other hand, in the year 1851, in the case of City of Cleveland v. Price (Price & Crawford Case), in the supreme court of Ohio, not reported, but the record of which is in evidence here for the same purpose as that in the Holmes Case, namely, to prove the admission of the city as to its construction of this contract, the city's answer thus construed this contract:

*

*

*

"That, after the location of the railroad from Columbus to Cleveland, it became necessary, in the opinion of the directors, to obtain the whole of the tract of land called 'Bath Street,' and they made a formal appropriation of the same by resolution of the 12th of September, 1848. The entire title of that tract was involved in a controversy between the city and Camp & Lloyd. * A suit was already pending, which had been decided against the city, and was then depending on exceptions. ** That the opinions, not only of people generally, but also of men professing to understand the legal questions involved, differed so much as to the probable result that it was impossible to anticipate the event. * * That respondent wishes to get clear of all controversies, whether legal or otherwise, and for that reason respondent was unwilling to have said company obtain possession of said property by the power given them by their charter; and that respondent believed it to be for the interest of all parties having any interest in said property to make an amicable arrangement, by which said company might be invested with all the rights of this respondent in said property. Upon these views, this respondent, being compelled to transfer to said company said property, and preferring to do so under negotiation, than to have it taken under and by virtue of said company's charter and appropriation, and desirous of avoiding all controversies with said company for the convenience and advantage of this respondent, the said negotiations and contract were made between said company and respondent. Respondent admits that, by the terms of said contract made on the 13th of September, 1849, safd company took the interest of said city in said Bath street property, subject to all the rights and privileges of all other persons * *

*

* 串

which

could be legally enforced against the property had the city continued to hold the same, * but because said company, as this respondent is informed and believes, succeeded to the rights of the city, and having by said agree

ment with Camp & Lloyd compromised all matters in controversy, the city ceased to make further defense," etc.

The whole of this portion of the answer will be copied in the margin, to more fully exhibit it."

The record explains that the plaintiffs, Price & Crawford, filed the bill against the city, Camp & Lloyd, and the Cleveland, Columbus & Cincinnati Railroad Company, with which the contract of September 13, 1849, was made. They held leases from the city, and alleged that there was a conspiracy between the defendants to deprive them of their property, by making the contract with Camp & Lloyd of August 8, 1849, by which the Camp & Lloyd ejectment suits against the city were compromised and dismissed, and by making the contract of September 13, 1849, by which the railroad company acquired the property according to its terms. They prayed to enjoin the writs of possession in the ejectment suits brought against them, and from disturbing their possession, etc. The bill was at last dismissed, and there was an appeal, and it was again dismissed.

Now, here is the construction by the city of the contract almost immediately after it was made. This and the Holmes suit are of themselves a practical construction by both sides, such as is referred to by the authorities last above cited, and show, beyond all possible question, the construction that both sides have had from that day to the bringing of this suit; neither one having given to the other any notice, by word of mouth, writing, or by act or deed, of any change in the state of mind of either party as to that construction, but, on the contrary, have acted in perfect harmony about it for about the period of 45 years.

These respective admissions were made of record and under oath. In the Holmes Case the defendants here were defending against a claim of title by the heirs at law of the original proprietors, and they set up, by their construction of the contract of 1849, a continuing title in the city, claiming themselves only as licensees, and that they were holding under the city as such. They might just as well have set up the larger title they claim now, the absolute ownership,-and have defended it in the same way, but they did not. The city, in the Price & Crawford Case, was more liberal to the railroad companies in the construction it gave to the contract than the companies subsequently were to themselves in the Holmes Case. There is nothing in these admissions militating against a claim for that control of the street qua street which is demanded by this action, subject, as they now admit, to whatever easement in the street the railroad companies have acquired by the contract. But the admissions show that there was then quite an entire harmony between them as to the character of the holding of the locus in quo. Whatever quantum of right or title either had under the contract was left open, as the contract itself leaves it open, under its ambiguous and indefinite terms. But whatever other effect these admissions of record may have on the proper construction of the contract, if any, certainly, on the defense of estoppel, they preclude, under all the circumstances of this

8 See ("C") at end of this opinion, page 146.

case, every possible reliance on the intervening 50 years of silence, as an estoppel to deny the construction of the contract that the defendants now insist upon. The parties acted harmoniously, as to the holding of the property all this time, in a construction of the contract that may have been erroneous; and, if they be not bound irrevocably to that construction by mutual estoppel, certainly neither can take advantage of that silence, which the harmony produced, by any present complaint of it.

That these answers are evidence for that and other purposes in this case is settled by the authorities. Jones, Ev. §§ 206, 207; Slatterie v. Pooley, 6 Mees. & W. 664; Edgar v. Richardson, 33 Ohio St. 581, as to the admissions concerning the doings of the Connecticut Land Company; Jones, Ev. § 236 et seq.; Id. § 241, citing authority that such admissions may operate, if proper foundation is laid, as estoppels in pais; Id. § 274 et seq., as to admissions in pleadings; and Id. § 277 et seq., as to when they operate as estoppels. And when under oath, as to their effect, see Id. § 298; Pope v. Allis, 115 U. S. 363, 370, 6 Sup. Ct. 69; Railroad Co. v. Ohle, 117 U. S. 123, 129, 6 Sup. Ct. 632; Delaware Co. Com'rs v. Diebold Safe & Lock Co., 133 U. S. 473, 487, 10 Sup. Ct. 399; Combs v. Hodge, 21 How. 397, 404. And the admissions of the corporation are likewise binding on its successors by consolidation or other like devolution of corporate existence. Railroad Co. v. Howard, 13 How. 307. These admissions, however, even under oath, are subject to explanations, and thus to be relieved of the estoppel they might otherwise entail. Jones, Ev. $§ 274-277, 298. In a jurisdiction where the sternest rule of estoppel by oath, in aid of public policy and good morals, obtains, it was held that the admissions of an oath might be explained, and, if done, the estoppel does not arise. Behr v. Insurance Co., 4 Fed. 357. No proof is offered in this case of any explanations of the admissions made under oath in the answers in chancery, but the explanations are found in the circumstances. The city and the railroad companies, being at that time harmonious, and altogether friendly, about the use of this street, and perhaps indifferent, so that the use was secured, how it was done or what title was acquired (except that the city said in its answer that it did not desire to have the railroad company take it by appropriation in invitum), were unaffected by any consideration as to the effect the statements then made in the answers would have in the future, as against each other, if they should fall out about the contract. They did not expect to fall out. The language used came of the then existing harmony, but mutual doubt of the city's title and power to convey it. The answers were framed according to the professional strategy of the then employed counsel, who proceeded obliviously of any prospect or expectation of conflict between the city and the companies as to quantum of estate, title, or right conveyed or received. The long time elapsing before any conflict did occur shows only the substantial quality of the amity and harmony on the subject, and has justified somewhat the reliance upon its strength as a factor of safety against any future denial of their mutual construction of the contract. Under such circumstances, no public policy or concern for morals justifies treating these answers as an

93 F.-9