Mr. Justice Sheldon
delivered the opinion of the Court:
A question is raised as to the effect of the plat of Juliet made by Jas. B. Campbell; that, as recorded, it does not appear to have been acknowleged in conformity with the statute, and therefore did not vest the fee of the streets, and what is marked “public ground,” in the town or city, as the statute declares that a plat made out, certified, acknowledged and recorded as required by its provisions, shall do. An attempt was made, by parol evidence, to supply the apparent alleged defect.
We shall not stop to discuss the sufficiency of this evidence to the end proposed, as the conclusion which we reach in nowise depends upon whether there was or not such a statutory dedication as to vest the fee in the streets and “public ground” in the town or city. It must be admitted that there was here a common law dedication. The difference between a statutory and common law dedication is, that the one vests the legal title to the ground set apart for public purposes in the municipal corporation, in trust for the public, while the other leaves the legal title in the original owner, charged, however, with the same rights and interests in the public which it would have if the fee was in the corporation.
The rights of the public are not affected by the question. Manly v. Gibson, 13 Ill. 308. We will proceed, then, on the assumption that there was a statutory dedication of the “public ground.”
The only dedication of the property being, as “public ground,” it is an unrestricted dedication to public use. In such case, the use is indefinite, and may vary according to circumstances. The public not being able themselves to manage it, the care of it must devolve upon some local authority or body corporate, as its guardian, who may direct its use, subject to the control of the law and the courts, in case of any abuse of the trust. Commonwealth v. Alburger, 1 Whart. 485.
In 1836, when the county of Will was established, and its public buildings required to be built on the public square by legislative enactment; in 1846 and 1847, when the present court house was built thereon; in 1847, when the railroad company was authorized to construct its railroad, by way of Ottawa and Joliet, to the city of Chicago; in 1851, when the line of the road was established by the directors of the company through the town of Joliet, and Avhen the county authorities granted to the company the right of way over the public square in Joliet, and in 1852, Avhen the Avork of the construction of the road in the city AA'as completed, there was, as Avill be seen by the statement of the case, no incorporation of the town of Juliet, or of the city of Joliet, and, at all those times, this community had no municipal organization or municipal authority.
There Avas, then,.at these times no power authorized to represent the public, and to direct the public use Avhich should be made of these streets and public grounds in Joliet, except the legislature of the State, and under it, the county of Will. That such power was vested in the legislature, must, we think, be conceded. Dillon, in his work on Municipal Corporations, section 513, thus lays down the doctrine: “As between the municipality and the general public, the legislative power is supreme; and so it is in all cases where there are no private rights involved. If the municipal corporation holds the full title to the ground for public uses, without restriction, the legislature may doubtless direct and regulate the purposes for which the public may use it.”
In The People v. Kerr, 27 N. Y. 213, the power was asserted on the part of the State legislature, without the consent or license of the municipal corporation, to so control the use of the public streets of the city, the fee whereof was in the city, as to authorize the construction of a railroad track therein; and this upon the principle that the interest in the streets being publici juris, the power of governing and regulating such uses is vested in the legislature, as the representative of the whole people; that the city corporation, as holder of the fee of the streets, in trust for the public, as highways, was but an agent of the State, and any control which it exercised over them was a mere police or governmental power, delegated by the State, and subject to its control and direction.
The legislature, here, acted upon the theory of its power to control the public square and the streets for the public benefit. It ordered, by the act establishing the county of Will, that the public buildings should be erected upon the land marked “public ground;” in 1849, a portion of Joliet street was vacated by legislative enactment; in 1851, the legislature detached a portion of Oneida street, and granted it to the abutting property owners, in payment for labor done on the highways, and, in the same year, vacated a portion of Michigan street, and the power to determine whether or not sidewalks should be built upon certain streets, ivas granted by express legislative enactment.
The legislature conferred upon the board of directors of the railroad company the power to locate and construct its railroad on such line, course or way as should be designated by it. provided that it should be through the towns of Ottawa and Joliet, to the city of Chicago.
In the exercise of this power, the board of directors located the road through the town of Joliet, and across these public grounds, which, as above attempted to be shown, were then under the control of the legislature. The board of directors, in the location of this line, exercised the authority conferred by the legislature, and were, to all intents and purposes, public agents in so doing.
The terms of the grant of the authority were certainly broad enough to include the power to locate the railroad over this “public ground;” and such location of the road was the act of the State, by its agents, unless there was that in the use to which the “public ground” had been dedicated, and applied previously by the legislature, and the extent to which that use would be impaired or diminished by the location and operation of the railroad over the ground, from which the power of locating the road over it may be presumed to have been restrained by the legislature. Boston Water Power Co. v. Boston and Worcester Railroad Co. 23 Pick. 360; Indiana Central Railroad Co. v. The State of Indiana, etc. 3 Ind. 421.
That it was deemed that the use to which the “public ground” had been applied by the legislature, that of a court house, would not be too seriously interfered with by the location and operation of a railroad over the ground, is evidenced by the desire of the citizens to have the road located there; by the county authorities, who had the care and custody of the court house, granting to the company the right of way over the ground; by their calling upon the company, in 1863, to perform the consideration of the grant of the right of way, after the road had been in operation ever since the summer of 1852, and the experiencing of its actual effects for that length of time, and by the operation of the road for more than 20 years by the company, without objection from any quarter, so far as the record shows.
Can it be said that there was a diversion of the use of the ground to another use, inconsistent with the purpose for which it was dedicated ?
The dedication, as observed, was not to any specific public use. It was dedicated to no other use than was indicated by the mark upon it, on the plat, of “ public ground.”
The dedication was merely to public use. It is assumed, on the part of the appellee, that there was here an encroachment upon public grounds for private purposes—an application of public grounds to private uses.
But it is the settled doctrine that the appropriation of property to the construction or use of a railway for the transportation of persons or property, is an application of such property to the use of the public. The People v. Kerr, 28 N. Y. 188; Noll v. The Dubuque, Burlington and Missouri River Railroad Co. 32 Iowa, 68.
The right to take private property for railroad purposes, by the exercise of the power of eminent domain, rests wholly upon the doctrine that the railroad use is a public use, it being well settled that the legislature has no power to take the property of the citizen for any other than a public use. The corporation itself is private—has its private rights; still its uses are public.
The railroad use, then, is not a private use, but a use for a public purpose, the use of the road being free and common to the whole public upon the same conditions. The dedication was simply as “public ground,” denoting that it was for a public purpose, and the long and universal acquiescence in the use of the ground for the public purpose of a railroad, affords evidence that such use is in consistency with the design of the dedication.
The legislature, in 1836, in establishing Will county, assuming that it had control of these “public grounds,” and the power to direct the public use to which they should be applied, required that the public buildings of the county should be erected thereon. The court house and jail were accordingly so erected, and the board of supervisors of the county having, by statute, the care and custody of the court house, the railroad company, in November, 1852, before the road was constructed, obtained from the board of supervisors, as the representative of the county, a formal grant of the right of way over the ground, in consideration of certain conditions to be thereafter performed. This grant, singly, is not so important as affecting the right of appellant. Its more important bearing is, as taken in connection with the after action of the city of Joliet.
It is not necessary to rest the right of the railroad company upon the statute under which the road was located and the grant of the right of way by the county.
The validity of these grants, and the rights of the railroad company under them, have, as we regard the evidence, been recognized by the express action of the city of Joliet for a period of over 20 years.
The evidence shows that the company, in 1852, preferred another and more direct line. The person who had the general charge of the building of the road, and who was a director and vice president of the company, testifies that, at a public meeting of the citizens of Joliet, in the court house (he thinks), he made a speech, and remonstrated against running the railroad through the court house square; pointed out the annoyance and inconvenience that would arise therefrom ; but the popular demand for the track and depot where they now are, overbore all opposition, and, as the agent of the company, he yielded to the demand of the citizens, much against his own judgment. All the directors but one preferred a different line, and the testimony of the witness shows satisfactorily that, but for this popular demand, the road would have been located elsewhere.
This is referred to, not to show that any right was given by such an assemblage of citizens, or by the “popular demand,” but as a circumstance, to be considered among others, as bearing- upon the question of an equitable estoppel.
On the 3d day of January, 1853, within six months after the first train of cars ran over the public grounds, the common council of the city of Joliet, in answer to a petition of the railroad company for certain privileges in order that they might locate their depot on certain named blocks in proximity to these grounds, passed an ordinance whereby they vacated certain alleys and parts of alleys, and authorized the use of Certain streets, among- which was the use of so much of Ottawa street “'as is occupied by the bed and tracks of said railroad company for the purpose of running ears and locomotives over the same.”
Ottawa street bounds the “'public grounds” upon one side, and lies between them and the ground upon which the depot was proposed to be, and was established, and now stands. This grant of privileges from the city could not have been made available by the railroad company without continuing the operation of its trains over these public grounds. In the language of the testimony, “'the present depot of the company could not be made use of without the track running across the public square, as it now does.”
Here was not only recognition, on the part of the common council, that the company had a valid grant of the right of wav over these grounds, and confirmation thereof, but there was express grant by ordinance of aid and conveniences in order to the future permanent and more full enjoyment of the right of way which had been granted to the company over this “public ground.”
"When the county authorities, in 1863, moved to have the railroad company perform the consideration for the grant of the right of way by fencing part of the public square, they (the county authorities,) did so, as the evidence goes to show, with the knowledge of the city authorities, and their encouragement thereto. In the construction, afterward, of its share of the improvement of the public square, the company expended some $4000.
The evidence shows that, commencing in 1854 or 1855, and terminating just prior to the commencement of this suit, the city of Joliet assessed local taxes against these “public grounds,” as the property of Will county, and that those assessments were uniformly paid by the county. The levying of local taxes under the ordinances of the city, was, in effect, a declaration upon the part of the city that the county was the owner of this property; an admission that it had the dominion over it, and the right of directing its use, and consequently a virtual assent to and confirmation of the grant of the right of way over the same, which it had made to tiie railroad company.
From all these positive acts of recognition on the part of the city of Joliet of the right claimed by the railroad company, and long acquiescence in its exercise, there must be held to be an estoppel in pais against the city, if that principle be applicable at all to municipal corporations, as respects public rights.
There is a conflict among the authorities whether the rights of a municipality or of the public may be lost by non-user, or adverse possession. There are cases which bold that the public may lose their right,to streets or public places by long continued adverse occupation by private individuals. A number of them may be found collected in the note to section 529, in the work of Dillon, before quoted. Upon a review of the cases upon this subject, that author, in section 533. states, as his conclusion, that he “can not assent to the doctrine that, as respects public rights, municipal corporations are within ordinary limitation statutes. * * * But there is no danger in recognizing the principle of an estoppel in joais as applicable to such cases, as this leaves the courts to decide the question, not by the mere lapse of time, but by all the circumstances of the case, to hold the public estopped or not, as right and justice may require.”
In The City of Peoria v. Johnston, 56 Ill. 51, this court held the following language upon this subject, in respect to the claim of a highway: “But, independently of this principle, conceding this highway was laid out as claimed by appellant, and conceding there was an intention to dedicate the premises on the south-east of section 4, we are of opinion that the adverse possession of the appellee, open and exclusive as it has been, and the complete non-user of the easement by the public for more than twenty years, are a sufficient answer to the claim now made by the city.” We would not be understood, in making this citation, as sanctioning the language thus used in the full breadth, that, in such case, the mere non-user of the easement by the public for more than twenty years would bar the claim, but the reference is made as having pertinence here, under the facts of this case.
In Goodwin v. The City of Milwaukee, 24 Wis., it was distinctly held that the doctrine of estoppel in pais was applicable to a municipal corporation in respect of a matter of public right; and see, as to recognition of the doctrine, Peck v. Burr, 10 N. Y. 294, Lane v. Kennedy, 13 Ohio St. 42, Commonwealth v. Miltenberger, 7 Watts, 450; and, as to delay, in an application of this character, as affecting those who assert a public right, Easton & McMahon v. N. Y. and L. B. Railroad Co. 24 N. J. Eq. 50, The Attorney General v. Sheffield Gas Consumers’ Co. 3 De Gex, M. &. Y. 312.
We think there is sufficient warrant of authority for the application of the principle of an equitable estoppel to a case of the character disclosed by this record, and that it should be applied here.
The objection taken by appellee’s counsel, that there is here lacking an essential element of an estoppel in pais, in that it does not appear that the railroad company did, or forbore to do, any thing, by reason of the conduct of the city, we do not regard as founded in fact.
By the action of the city, the company had the right to repose, in security, upon the belief that it had acquired a valid right of way over the public grounds, and that it would ever be suffered to enjoy the same undisturbed in the right by any interference against it on the part of the city. By the ordinance of the common council, before referred to, of January 3, 1853, the company was encouraged to build its depot where it did, and where it could not be made use of without the track of the road running across the public square. The road had then but just gone into operation, and had the city, at that time, instead of recognizing the company’s right of way over the public grounds, and granting increased facilities for the exercise of it, denied the right, or made objection to its exercise, the company might have then changed its line to the one it had originally preferred, at little cost for the right of way, the evidence being that it would then have been cheap. But the testimony is, that the change of the line would be at the cost, now, of $100,000 for the right of way; that it would involve a further expenditure of some $250,000 on the new portion of the line, much of which we can see would be in consequence of circumstances intervening since January 3,1853; and that a loss of about $130,000 would be incurred by abandoning the property which now constitutes a part of the road. The payment by the company, in 1863, of the consideration for the grant of the right of way across the public grounds by the building of a fence around a portion thereof, appears to have been done with the knowledge and encouragement of the city authorities.
There was quite enough in the respect of being induced by the conduct of the city to take or forbear action, upon which to found an estoppel.
As respects the question of nuisance, there is no doubt that the running of engines and trains across the public square causes a considerable interruption in the transaction of court business in the court house. But in respect of. this, the city does not seem to be the proper party entitled to make complaint. The providing of conveniences for the holding of courts is an affair of the county, and not of the city. The board of supervisors of the county have the care and custody of the court house. They have granted the privilege to lay ■this track and operate the road across the public square, and as long as the county is- content, and makes no complaint, we do not think the city should be admitted to interfere on this score.
The evidence shows that the operation of the railroad over the crossings of Chicago, Jefferson and Scott streets has been attended with a good deal of injury to persons and property. There have been several instances of the loss of life. The track, at these places, runs upon a curve, and the adjoining lots having been built upon by their owners to within a few feet of the streets, passers upon the streets- are so prevented from seeing approaching trains, as to render the operation of the-road there peculiarly dangerous from that cause.
The legislature authorized the construction of this railroad through Joliet. It acted with knowledge that its operation over and across common streets and highways would subject the public to inconvenience and danger. It was said, in Illinois Central Railroad Co. v. Grabill, 50 Ill. 244, that “such consequences of the construction and use of railroads must be borne by all living near them, without complaint, and without hope of redress, for they are inseparable from the purposes and objects of such structures.” The necessarily injurious consequences attending the operation of railroads are largely increased in degree, where they run through towns and cities. But to set against this, there is the public accommodation.
The exclusion of railroads from cities would be a most serious public inconvenience. It is the practice of the lawmaking power to expressly authorize railro.ad companies to lay and use their tracks through cities and villages. Bail-roads are, in fact, now operated through the principal cities of this and other States.
It was held, in the case of Drake v. The Hudson River Railroad Co. 7 Barb. 508, that a railroad, passing through streets in the city of New York, when the cars were drawn by steam power, into a crowded part of the city, was not, per se, a nuisance.
Similar decisions have been made in other cases. The Lexington and Ohio Railroad Co. v. Applegate, 8 Dana, 289; Hunter v. Long Island Railroad Co. 13 Barb. 646; Moses v. P., Ft. W. and C. R. Co. 21 Ill. 516.
In Murphy v. City of Chicago, 29 Ill. 279, it was held to be a legitimate use of a street or highway, to allow a railroad track to be laid in it.
The evidence shows nothing as to whether or not, in the case of the accidents which had occurred at these crossings, there was the use of proper care and caution on the part of the persons who suffered injury. The evidence goes to show that much of the exposure to danger at these places is in consequence of the recklessness and gross negligence of persons in disregarding plain warnings of danger. Protection against the consequences of recklessness and gross negligence, no one has the right to expect or call for. The increased danger at these places, from the curve in the track and the private buildings which have been erected, calls for increased carefulness and diligence. It would seem that such increase of danger might, in most part, if not wholly, be guarded against by the increase of safeguards against it. Indeed, it appears," from the evidence, that a flagman has been appointed and kept stationed there by the railroad company, since when, three years ago, there has been no loss of life there. It is competent for the city, in the exercise of its police powers, to make reasonable regulations of railway operations within the limits of the city. It is believed that, through such proper regulations as it, is within the competency of the city council to make, and the use of proper care and precaution, the danger here may be so guarded against, that the operation of the railroad can be rendered reasonably safe to the public; that in this way, to a reasonable degree, the evils complained of are remediable, and that the intervention of a court of equity is not called for.
As to the ordinance of the common council of the city of Joliet, of September, 1872, declaring the railroad a nuisance, we regard that as without effect upon the case, although the charter of the city confers upon the common council the power to abate and remove nuisances, and to punish the authors thereof, and to define and declare what shall be deemed nuisances. We will, in this respect, but refer to the language of the Supreme Court of the United States in Yates v. Milwaukee, 10 Wall. 505: “It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws, either of the city or the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities.” And see State v. Jersey City, 5 Dutch. 170.
Some stress is laid upon a certain proviso in the ordinance of the common council, of January 3, 1853, before referred to, which is as follows: “Provided, that said railroad company shall be subject to all laws and ordinances that may hereafter be passed to regulate railroads in the city.” That only means, that the company should be subject to all reasonable and legal ordinances for the regulation of the road. It had no such scope, that the railroad company should abandon or take up and remove its track at the bidding of the common council.
We are of opinion that there was error in decreeing against the defendant, and the decree will be reversed and the cause remanded, with directions to the court below to dismiss the bill at the costs of the appellee.
Decree reversed.