Henry, J. —
This was a suit for damages for an alleged unlawful entry by defendant upon Fifth street in the city' of St. Joseph, and digging up and obstructing said street in front of plaintiff’s premises, and constructing railroad tracks thereon, by means of which the street was obstructed and travel thereon impeded, and access to plaintiff’s said premises destroyed. The petition also asked for an injunction. The defense relied upon was, that by an ordinance of the city council the defendant was granted a right of way over said street, and authorized to construct its said road along and upon said street at the point where plaintiff’s premises are situated, upon certain conditions specified in said ordinance; provided the defendant accepted said grant in the manner in the ordinance specified ; and it was alleged that it was so accepted by defendant. Plaintiff' denied the existence of the ordinance. The court, after hearing the cause, found the issues for plaintiff, and rendered its judgment enjoining and restraining defendant as prayed in the petition, and the defendant has duly prosecuted his appeal.
The only questions presented which it is necessary to-consider are: First, In regard to the validity of the ordinance in question; Second, If valid, did a breach of the conditions upon which the right of way was granted terminate the right of defendant to use and occupy the street for its railroad tracks ? That the city authorities of -St. Joseph had power to grant defendant the right of way for its’railroad along the street is not controverted by respond[235]*235ent. If the ordinance in question was passed by the council and approved by the mayor, its acceptance by the company constituted a contract between the city and the company valid by the laws of this 'State, the obligation of which could not be impaired by any subsequent action of the State authorities. State v. Miller, 50 Mo. 133.
1. city ordinance: providence of approval by the mayor. The first question, therefore, for solution is, whether the ordinance was approved by the mayor. That it was adopted by the council is not controverted, but if not approved by the mayor, it was of no force or validity. The evidence for defendant on that issue was a copy of a resolution adopted on the 14th day of August, 1873, by the board of directors of the defendant company, accepting the grant on the terms prescribed by the ordinance, a copy of which resolution was delivered by said company to the city of St. Joseph and filed and kept in the office of the register of said city; a copy of the ordinance purporting to have been approved and signed by the mayor on the 8th day of March, 1873, attested by W. W. Brown, then city register, having the seal of the city attached, with the certificate of Hardin Davis that it was a “full and true copy of an ordinance of record in the book of special ordinances of the city of St. Joseph on file in the office of the city register;” a copy of “The Morning Herald,” a newspaper published in said city, and the official paper of the city, of date March 12th, 1873, in which ordinances of the city, from time to time passed and approved, were published, containing the ordinance in question, purporting to have been signed and approved by the mayor of said city. John Severance, mayor of the city in 1873 when the ordinance was adopted by the council, testified that his best impression was that he did signify his. approval of the ordinance by signing it as the law required.
In the record of ordinances the name of the mayor was not to the approval clause. Hardin Davis also testified that he had what purported to be the original ordinance, [236]*236and it did not show-an approval'by the mayor. What he supposed was the original ordinance,- (for in one place he states that it purported to be, and in another that he supposed it to be the original ordinance,) was written on several slips of paper, some of which were a good deal erased and interlined.' This witness further'testified that although it was the practice, after an ordinance was recorded in the record book of ordinances, for the mayor to sign it, this was' not always done, and that there were a number of ordinances in the record hook in that condition, among them one levying city taxes for the year 1873, It was out, under the city charter, necessary for the mayor to sign the ordinance in the book in which they were required to be recorded.
A lost or destroyed record may be established by parol evidence. Hedrick v. Hughes, 15 Wall. 124. And the evidence in this case, we think, fully established the fact that the ordinance in question was approved by the mayor. The slips of paper which the witness, Davis, thought purported to he the original ordinance, may have been, probably were, the ordinance prepared by the member of the council who introduced it; but it is hardly to be supposed that it would have been presented to the mayor for his approval on detached pieces of paper containing erasures and interlineations, or that he would have approved it in that condition. The only circumstance which witness stated, showing that these pieces of paper purported to be the original ordinance, was an indorsement on the envelope in which they were found, “Approved March 8th, 1878,” in the hand-writing of W. W. Brown, at that date city register. Nothing on the face of.the papers, or either of them, indicated that they contained the original ordinance; and in view of all the facts proved, it is not a violent inference that they were used in making tire copy which was presented to the mayor for his approval, and that the ordinance so approved was with these slips of paper kept by the register in that envelope.
[237]*237Mr. Severance testified that he desired the passage of the ordinance, and that his impression was he signed it. It was recorded in the book kept by the city in which ordinances passed and approved were entered. It was published in the official newspaper of the city as an ordinance passed by the council and approved by the mayor. The city received, filed and kept a certified copy of the resolution. of defendant’s board of directors accepting the grant on the terms proposed in the ordinance. The defendant proceeded to exercise the right granted by constructing its road-bed and laying its tracks on and along Fifth street, one of the public thoroughfares of the city, with the knowledge of the city officials. The city, so far as this record shows, did not then object, nor has it since complained of defendant’s proceedings. This group of significant facts leaves any conclusion out of the question, but that the mayor did approve the ordinance; and the loss or destruction of the original cannot deprive defendant of its rights derived from the ordinance. The facts clearly established by the evidence would estop the city from asserting against the company that the ordinance was not duly approved by the mayor, and if so, it does not lie in the mouth of any other person to allege the invalidity of the ordinance against the company.
2. condition subsequent: railroad right of way city ordinance. By the 5th section of the ordinance it was provided that if the railroad company should “ at any time remove their general office, principal machine shops .or car works from St.
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Henry, J. —
This was a suit for damages for an alleged unlawful entry by defendant upon Fifth street in the city' of St. Joseph, and digging up and obstructing said street in front of plaintiff’s premises, and constructing railroad tracks thereon, by means of which the street was obstructed and travel thereon impeded, and access to plaintiff’s said premises destroyed. The petition also asked for an injunction. The defense relied upon was, that by an ordinance of the city council the defendant was granted a right of way over said street, and authorized to construct its said road along and upon said street at the point where plaintiff’s premises are situated, upon certain conditions specified in said ordinance; provided the defendant accepted said grant in the manner in the ordinance specified ; and it was alleged that it was so accepted by defendant. Plaintiff' denied the existence of the ordinance. The court, after hearing the cause, found the issues for plaintiff, and rendered its judgment enjoining and restraining defendant as prayed in the petition, and the defendant has duly prosecuted his appeal.
The only questions presented which it is necessary to-consider are: First, In regard to the validity of the ordinance in question; Second, If valid, did a breach of the conditions upon which the right of way was granted terminate the right of defendant to use and occupy the street for its railroad tracks ? That the city authorities of -St. Joseph had power to grant defendant the right of way for its’railroad along the street is not controverted by respond[235]*235ent. If the ordinance in question was passed by the council and approved by the mayor, its acceptance by the company constituted a contract between the city and the company valid by the laws of this 'State, the obligation of which could not be impaired by any subsequent action of the State authorities. State v. Miller, 50 Mo. 133.
1. city ordinance: providence of approval by the mayor. The first question, therefore, for solution is, whether the ordinance was approved by the mayor. That it was adopted by the council is not controverted, but if not approved by the mayor, it was of no force or validity. The evidence for defendant on that issue was a copy of a resolution adopted on the 14th day of August, 1873, by the board of directors of the defendant company, accepting the grant on the terms prescribed by the ordinance, a copy of which resolution was delivered by said company to the city of St. Joseph and filed and kept in the office of the register of said city; a copy of the ordinance purporting to have been approved and signed by the mayor on the 8th day of March, 1873, attested by W. W. Brown, then city register, having the seal of the city attached, with the certificate of Hardin Davis that it was a “full and true copy of an ordinance of record in the book of special ordinances of the city of St. Joseph on file in the office of the city register;” a copy of “The Morning Herald,” a newspaper published in said city, and the official paper of the city, of date March 12th, 1873, in which ordinances of the city, from time to time passed and approved, were published, containing the ordinance in question, purporting to have been signed and approved by the mayor of said city. John Severance, mayor of the city in 1873 when the ordinance was adopted by the council, testified that his best impression was that he did signify his. approval of the ordinance by signing it as the law required.
In the record of ordinances the name of the mayor was not to the approval clause. Hardin Davis also testified that he had what purported to be the original ordinance, [236]*236and it did not show-an approval'by the mayor. What he supposed was the original ordinance,- (for in one place he states that it purported to be, and in another that he supposed it to be the original ordinance,) was written on several slips of paper, some of which were a good deal erased and interlined.' This witness further'testified that although it was the practice, after an ordinance was recorded in the record book of ordinances, for the mayor to sign it, this was' not always done, and that there were a number of ordinances in the record hook in that condition, among them one levying city taxes for the year 1873, It was out, under the city charter, necessary for the mayor to sign the ordinance in the book in which they were required to be recorded.
A lost or destroyed record may be established by parol evidence. Hedrick v. Hughes, 15 Wall. 124. And the evidence in this case, we think, fully established the fact that the ordinance in question was approved by the mayor. The slips of paper which the witness, Davis, thought purported to he the original ordinance, may have been, probably were, the ordinance prepared by the member of the council who introduced it; but it is hardly to be supposed that it would have been presented to the mayor for his approval on detached pieces of paper containing erasures and interlineations, or that he would have approved it in that condition. The only circumstance which witness stated, showing that these pieces of paper purported to be the original ordinance, was an indorsement on the envelope in which they were found, “Approved March 8th, 1878,” in the hand-writing of W. W. Brown, at that date city register. Nothing on the face of.the papers, or either of them, indicated that they contained the original ordinance; and in view of all the facts proved, it is not a violent inference that they were used in making tire copy which was presented to the mayor for his approval, and that the ordinance so approved was with these slips of paper kept by the register in that envelope.
[237]*237Mr. Severance testified that he desired the passage of the ordinance, and that his impression was he signed it. It was recorded in the book kept by the city in which ordinances passed and approved were entered. It was published in the official newspaper of the city as an ordinance passed by the council and approved by the mayor. The city received, filed and kept a certified copy of the resolution. of defendant’s board of directors accepting the grant on the terms proposed in the ordinance. The defendant proceeded to exercise the right granted by constructing its road-bed and laying its tracks on and along Fifth street, one of the public thoroughfares of the city, with the knowledge of the city officials. The city, so far as this record shows, did not then object, nor has it since complained of defendant’s proceedings. This group of significant facts leaves any conclusion out of the question, but that the mayor did approve the ordinance; and the loss or destruction of the original cannot deprive defendant of its rights derived from the ordinance. The facts clearly established by the evidence would estop the city from asserting against the company that the ordinance was not duly approved by the mayor, and if so, it does not lie in the mouth of any other person to allege the invalidity of the ordinance against the company.
2. condition subsequent: railroad right of way city ordinance. By the 5th section of the ordinance it was provided that if the railroad company should “ at any time remove their general office, principal machine shops .or car works from St. Joseph to any other point on the road, the right of way granted in this ordinance over Fifth street shall become null and void.” The principal machine shops were removed beyond the limits of the city, and it is contended that “the estate granted ceased,” or “ was determined by such removal.” The condition was not a precedent condition, to be complied with before the grant took effect, or a limitation which fixed the period of its duration; but a subsequent condition in which no one had any legal interest except [238]*238the parties, the city and the company. It was a matter of contract between them, and the city might have waived a compliance with the condition at any time, nor was an ordinance for such purpose necessary. The breach of the condition 'did not, therefore, ipso facto terminate the right of way, and, as against every one except the city, the right continued in the company, and the city herself might, have agreed to the removal of the shops, or after their removal expressly sanctioned it, or by long acquiescence been estopped from setting up the breach against the company. That no one but the city could take advantage of the breach of the condition on which the right was granted, is a doctrine well settled.
In his commentaries, volume 4, page 439, Chancellor Kent clearly stated the distinctions on this subject: “ Words of limitation mark the period which is to determine the estate; but words of condition render the estate liable to be defeated in the intermediate time if the event expressed in the condition arises before the determination of the estate or completion of the period described by the limitation.” “ The material distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs; and when the grantor enters, he is in as of his former estate.” “ Conditions can only be reserved for the benefit of the grantor and his heirs. A stranger cannot take advantage of the breach of them.” Kennett v. Plummer, 28 Mo. 145; St. Louis v. Atlantic & Pacific R. R. Co., 66 Mo. 251, and particularly cases there cited; Holden v. Joy, 17 Wall. 251. As the judgment must be reversed for the reasons above indicated, it is not necessary to pass upon the questions raised by the motion for a new trial on the ground of surprise and newly discovered evidence. Judgment reversed and cause remanded.
All concur.