Now these maps say, both of them, that this street in question is a street sixty-six feet in width-one hundred links. It is marked on the large map, which is the last one made in 1857on the east end is marked one hundred links; on the north side of the college green it is marked one hundred links east of the campus; and it is marked one hundred links west of the campus. This establishes it, this map does, as a street sixty-six feet wide; the first map established it the same way.

As we have stated, the acknowledgment of these maps afterwards, and deeding according to them and following them, if they were so far adopted by the original proprietors, then that was a dedication of those streets sixty-six feet wide-one hundred links.

That being true, the only thing further is to see whether there has been an acceptance on the part of the public, and when we say on the part of the public we do not mean on the part of the lot owners. If the street was dedicated and the public has accepted it, that is all that is required.

The street was opened on the north side as a sixty-six foot street, and on the south side along by the college grounds or college green as it is called, it is a sixty-six foot street; then there is a jog in the street just beyond the college green of five or six feet, perhaps six feet, and that jog continues on the south side with the distance varying, growing less as Prospect street is approached, and beyond Cedar it grows less all the way out, but the narrowest place is in front of the property in question-of Miss Wright's property-which is only about twentyfive feet.

The witnesses testified that it is easy to be seen that there is a curve in the sidewalk, that it projects at this point along there, a long bend in it, that the west end of the sidewalk lies in on the lots and the east end also lies in on the lots further than the other, and the measurements confirm this testimony.

Now the monuments of this street are thoroughly established by the evidence of the surveyor and by those who have seen the monuments. There is a monument on the northeast corner of the college green; then there are monuments at the intersections of streets from that on, four monuments establishing the center

1904.]

Lorain County.

line of this street, and this street as laid out in the first place was laid out as being on the original lot lines; but it is impossible now, the surveyor tells us, to tell where the original lot lines are.

The description of the original lots included monuments that have long since perished and been obliterated and no trace of them can be found. Therefore there is no way of establishing the original lot lines, except to establish them by the streets that are laid upon them. This street being laid upon the original lot lines it must now be conclusive under the facts and the facts that are absent and can not be had by the court-it must now be conclusive that those monuments in West Lorain street are on the lot lines; and that lot line and those monuments we can not change. If the court could upset long established monuments and surveys of that character we would soon get landholders into great confusion. It would be impossible. As I stated, this street along the north side has been occupied as thirty-three feet; the line of occupancy has been thirty-three feet, uniform from the center as is established by those monuments; on the south side it has varied. We think, therefore, it is conclusive in this case that there has been a user of this street as a sixty-six foot street sufficiently to make a complete dedication of it for all uses, and we therefore say that this is a sixty-six foot street lawfully.

The question remaining is as to the statute of limitations. We are pointed to three cases (Cincinnati v. Church, 8 Ohio, 298; Williams v. Presbyterian Socy., 1 Ohio St., 478; Cincinnati v. Evans, 5 Ohio St., 594), wherein the Supreme Court of this state has held that the public may be estopped, or the statute of limitations may run against the public in its use of a street. Then we are pointed to cases, an equal number, a greater number we will say of the latest cases, where the Suprme Court has held that the public can not lose its rights in the street.

By some authorities it is held to be a nuisance to occupy any part of the public highway, and that repeating a nuisance from day to day and time to time, the statute can never run against a public nuisance; and if that is the law, if that is the ground,

why it is well taken, for that doctrine is well established in the law of nuisances.

Then it is claimed by some that the Supreme Court has never yielded this doctrine; for it has come to be thoroughly conceded, except in cases where it would work an extreme hardship by reason of the owner of the adjoining lands having built out upon the street very expensive buildings, and he may be greatly injured by having to cut them down, and the public good stood by and did not interfere; and some authors put it upon the ground of equitable estoppel; and it is claimed by some that this marks the distinct difference between the two classes of cases in this state.

Now in this case it has been argued that the real difference between these two holdings in this state, these two opposite holdings-apparently opposite-is this, that a county is only a quasi corporation representing the state, and the statute never can run against the state, and the county so representing the state as it does, the statute of limitations can not run against the county, and therefore a highway out in the country is distinguished from a street in the city; that no rights can be gained in it, on the ground it is the state that is being interfered with through its agent, the county commissioners of the county.

But a municipal corporation has two existences; one its individual rights and another its public rights. In its private rights and obligations it has always been held that the statute of limitations will run against it, but in its public rights, wherein it represents the state, it is held that the statute of limitations does not run against a city any more than it would run against a county or against the state.

Now in so far as the city exercises its dominion and jurisdiction over the streets of the city, it is one of its public duties; it is a duty that is placed upon it as the agent of the state, and not in its private right, or by reason of its private existence. That being true as to its streets, it stands in precisely the same situation that the county does to the highway. Hence the argument don't hold good.

We believe that some of the cases in this state that have held that the statute of limitations may run against a municipality

do cause a great hardship, and while they have not been overruled, and have been recognized in later decisions, yet I believe for one, and have so stated heretofore from the bench, that the real ground of those cases is on the ground of equitable estoppel, and that the doctrine to-day is in this state, thoroughly established outside of these cases, as an independent principle of law from those, that where any one trespasses by reason of fences or shrubbery or trees or anything of that nature upon the highway, whether it be a street or highway in the country, that the party can not plead the statute of limitations.

Now it is said this is going to work a great hardship, but the evidence in this case shows that the plaintiff has more land than the land she purchased, aside from the street claimed by the village or by the city. If the city gets all the land it claims there, she still has two feet more from rear to front than her deed calls for; she loses nothing; it seems like losing something, but it is really losing nothing, and the shrubbery that is along there as shown by the evidence amounts to mere nothing. That part of it that is prized at all can be easily set back. There are trees there; if they establish this as a sixty foot street that brings those trees right in the center of the walk, more nearly in the walk than it would to make it the width claimed by the city.

In establishing it by the claim of the city it would seem hardly necessary to destroy the trees, from the evidence here, because while they will lie in the walk, it will only be in the edge of the walk. You can not go into any town or city hardly that you do not see trees standing in that way; it is a common thing, and no one objects to it; they think more of the shade than they do for that little bit of walk.

We think, therefore, the plaintiff has not shown any right to recover in this case, and her petition is dismissed. A decree may be taken accordingly.

D. J. Nye, C. A. Metcalf and A. Z. Tillotson, for plaintiff. E. G. Johnson and W. B. Bedortha, for defendant.

Elyria v. L. S. & M. S. Ry. Co.

[Vol. III, N. S.

NUISANCE IN A STREET BY PERMISSION OF COUNCIL.

[Circuit Court of Lorain County.]

ELYRIA V. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.* Decided, May 27, 1902.

Municipal Corporations—Control of Council Over Streets a Continuing Power-Agreement by Council to an Obstruction Seriously Interfering with Use of Street Invalid.

Municipal authorities can not contract in such wise that a nuisance may be maintained in the street, and notwithstanding it may have been erected in accordance with an agreement entered into with council, injunction will lie against the further maintenance of an overhead railroad bridge abutment, which occupies a part of the street and is seriously interfering with the use of the street.

MARVIN, J.; CALDWELL, J., and HALE, J., concur. The case of the city of Elyria against The Lake Shore & Michigan Southern Railway Company is tried to us on appeal from the judgment of the court of common pleas.

The action is brought by the city of Elyria against the defendant railroad company, the purpose of which, and the prayer of which is for an injunction to restrain the defendant from further continuing and maintaining certain abutments which it has built at the crossing by the railroad of West River street in the city of Elyria, the point being where West River stree: is intersected by Huron street and West Bridge street, and for an order requiring the railroad commpany to remove those abutments.

The plaintiff, the city of Elyria, is the successor of the village of Elyria, and is, as the village was, a municipal corporation. poration.

The defendant is a corporation owning and operating a railroad; its tracks pass through what is now the city of Elyria. The railroad company for more than fifteen years last past has maintained its railroad track passing through this municipality, and its track during all that time has crossed West River street at the intersection of West River street with Huron

Affirmed by the Supreme Court, January 19, 1904 (69 Ohio State).