Howell, J.
This suit was instituted by the Attorney General in August, 1873, to annul the lease to Richard Taylor of the New Canal and appurtenances in 1866, for fifteen years, and recover the unpaid rent, on the ground that the lessee has failed to comply with the terms of the lease.
The allegations of the petition are substantially as follows:
By act No. 12 of 1866 the Governor on the sixth of March, 1866, leased to the said Taylor the New Canal and Shellroad belonging thereto, and such other appurtenances and property as thereunto belonged, for the term of fifteen years, ending on the fourth of March, 1881, for an annual rent of §36,000 for the first year, §37,000 for the second, and increasing irregularly to §85,000 for the last year, none of which sums have been paid. By the terms of the lease said Taylor was to put said leased property in good condition, as required in certain specifications by the State Engineer, for §68,000, one third of which was to be credited to him on the rent due for each of the three first years, making the money rent for each of said years §13,333 33J, §14,333 33J, and $15,333 33¿-, which, with tlie rent for the subsequent years, make the amount of $208,000, with interest, due the State on the fourth of March, 1873. Said lessee has not complied with the terras of his lease, or kept the property in proper order and repair, or paid the rent as stipulated, and he has thereby forfeited his right to the same.
The lessee alleges that lie is dispensed by act No. 118 of 1867 and the contract thereunder of the twenty-ninth of April, 1867, from paying any rents, and in lieu thereof lie was to'widen the canal to one hundred feet and deepen it to eight feet and perform other conditions in said act.
Now plaintiff alleges that the said act is no law and nothing done under it is binding on the State, because it was expressly reserved from approval by the constitution of 1868, and is in violation of article 149 of said instrument. Should, however, there be any force in said act, the lessee has not complied with the terms and conditions thereof “ and especially, that he did not complete the works and enlargements of said canal and the making of the three basins therein provided for within the time required by said act' No. 118 or by said notarial agreement; nor has he now completed said work of enlargement, etc., although said time has long since expired ; nor in the work undertaken by said lessee or his agents in the enlargement of said canal or the construction of said basins did he leave sufficient earth on the embankment to afford such ample protection as existed at the time of making such lease.” Hence, all [462]*462rights under said acts of 1866 and 1867 are forfeited, and tho rent during occupancy is due, and the prayer is that the lease of the sixth of March, 1866, bo declared null, the law No. 118 of 1867 unconstitutional, the contract of the twenty-ninth of April, 1867, thereunder, null and void, all rights resulting therefrom forfeited, and that there be judgment for $208,000, with interest on the annual installments, and for rent duo up to recovery of leased premises.
The defendant excepted, on tho grounds that tho petition disclosed no cause of action; that the Attorney General was not authorized to institute this suit; and that the matters set up in the petition relating to the constitutionality of the laws set forth therein have been heretofore heard and decided in a judicial proceeding to -which the State and exceptor were parties; to wit, the suit of Charles Case, Receiver, vs. Richard Taylor, in which the State appeared, and the judgment therein has become final, and tho Attorney General and his representatives are precluded thereby, and arc estopped from questioning the same.
The answer of defendant contains general and special denials and tho averment that all his obligations in the premises arise under his contract with the State as modified and amended by tho statutes of 1867 and of 1870, and as interpreted by the Legislature of the State.
The exceptions were overruled, and upon trial on the merits before a jury verdict and judgment wore rendered in favor of the defendant, and tho State has appealed.
In our opinion tho last ground of tho exceptions should have been maintained. In the case of Charles Case, Receiver, vs. Richard Taylor, the State intervened, alleging that tho rights of said Taylor under the. notarial act of lease of the sixth of March, 1866, no longer exist as therein provided, but have been materially modified and altered by tho act No. 118 of 1867 and No. 82 of 1870, and assorting tho binding force and operation of said acts to protect the rights of tho State in relation to the said canal, etc., and succeeded in her demand. Having deliberately and solemnly invoked these statutes when she considered them essential to the protection and preservation of her rights under the contracts with tho defendant now in question, she is estopped from assailing them or denying their validity when she may think her interests as to the same rights will require it. The State is bound by her judicial pleadings and admissions the saíne as private persons, and is entitled to no greater right or immunity as a litigant than they are. The doctrine of. estoppel applies to the State just as it does 'to individuals. Tho plea, in this respect, is not res adjuiMcata, but estoppel, and should have boon maintained, and consequently tho State can not be heard in this action to deny the constitutionality of these two statutes tho validity and benefits of -which she has heretofore invoked.
[463]*463The other two grounds of exception were properly overruled.
The plea of no cause of action is not identical with nor does it involve that of inconsistent arid contradictory allegations, or that of vague and insufficient allegations. A cause of action is sot out in the petition, although the charges may be vague or inconsistent. No bill of exceptions is reserved to the introduction of evidence as to facts not alleged.
The case was argued at considerable length, both orally and by brief, and after the oral argument plaintiff’s counsel filed a brief, in which the issue involved is thus stated:
“ The main question in this case is, has the plaintiff proved a noncompliance on the part of the defendant with his contract ? In answering this question, and the brief of the defendant, we shall confine ourselves to those questions of fact which arc proved by many witnesses, and have never been disputed:
“ First — By the lease of 1866 the defendant was to build now wharves on both sides of the canal from the head of the basin down to the tollgate (Claiborne street). All of the witnesses prove that the wharves extend only to the Magnolia bridge. The surveyors place Claiborne street from nine hundred to one thousand feet beyond the bridge. There is a failure, then, to build from eighteen hundred to two thousand feet of new wharf.
“ Second — The defendant agreed to pay a certain annual rent. The witnesses proved he had paid only the first year’s rent. But the defendant sets up as a defense to this, that by act and contract of 1867 this payment of rent was dispensed with. This admits the non-payment and sets up an excuse for the failure.
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Howell, J.
This suit was instituted by the Attorney General in August, 1873, to annul the lease to Richard Taylor of the New Canal and appurtenances in 1866, for fifteen years, and recover the unpaid rent, on the ground that the lessee has failed to comply with the terms of the lease.
The allegations of the petition are substantially as follows:
By act No. 12 of 1866 the Governor on the sixth of March, 1866, leased to the said Taylor the New Canal and Shellroad belonging thereto, and such other appurtenances and property as thereunto belonged, for the term of fifteen years, ending on the fourth of March, 1881, for an annual rent of §36,000 for the first year, §37,000 for the second, and increasing irregularly to §85,000 for the last year, none of which sums have been paid. By the terms of the lease said Taylor was to put said leased property in good condition, as required in certain specifications by the State Engineer, for §68,000, one third of which was to be credited to him on the rent due for each of the three first years, making the money rent for each of said years §13,333 33J, §14,333 33J, and $15,333 33¿-, which, with tlie rent for the subsequent years, make the amount of $208,000, with interest, due the State on the fourth of March, 1873. Said lessee has not complied with the terras of his lease, or kept the property in proper order and repair, or paid the rent as stipulated, and he has thereby forfeited his right to the same.
The lessee alleges that lie is dispensed by act No. 118 of 1867 and the contract thereunder of the twenty-ninth of April, 1867, from paying any rents, and in lieu thereof lie was to'widen the canal to one hundred feet and deepen it to eight feet and perform other conditions in said act.
Now plaintiff alleges that the said act is no law and nothing done under it is binding on the State, because it was expressly reserved from approval by the constitution of 1868, and is in violation of article 149 of said instrument. Should, however, there be any force in said act, the lessee has not complied with the terms and conditions thereof “ and especially, that he did not complete the works and enlargements of said canal and the making of the three basins therein provided for within the time required by said act' No. 118 or by said notarial agreement; nor has he now completed said work of enlargement, etc., although said time has long since expired ; nor in the work undertaken by said lessee or his agents in the enlargement of said canal or the construction of said basins did he leave sufficient earth on the embankment to afford such ample protection as existed at the time of making such lease.” Hence, all [462]*462rights under said acts of 1866 and 1867 are forfeited, and tho rent during occupancy is due, and the prayer is that the lease of the sixth of March, 1866, bo declared null, the law No. 118 of 1867 unconstitutional, the contract of the twenty-ninth of April, 1867, thereunder, null and void, all rights resulting therefrom forfeited, and that there be judgment for $208,000, with interest on the annual installments, and for rent duo up to recovery of leased premises.
The defendant excepted, on tho grounds that tho petition disclosed no cause of action; that the Attorney General was not authorized to institute this suit; and that the matters set up in the petition relating to the constitutionality of the laws set forth therein have been heretofore heard and decided in a judicial proceeding to -which the State and exceptor were parties; to wit, the suit of Charles Case, Receiver, vs. Richard Taylor, in which the State appeared, and the judgment therein has become final, and tho Attorney General and his representatives are precluded thereby, and arc estopped from questioning the same.
The answer of defendant contains general and special denials and tho averment that all his obligations in the premises arise under his contract with the State as modified and amended by tho statutes of 1867 and of 1870, and as interpreted by the Legislature of the State.
The exceptions were overruled, and upon trial on the merits before a jury verdict and judgment wore rendered in favor of the defendant, and tho State has appealed.
In our opinion tho last ground of tho exceptions should have been maintained. In the case of Charles Case, Receiver, vs. Richard Taylor, the State intervened, alleging that tho rights of said Taylor under the. notarial act of lease of the sixth of March, 1866, no longer exist as therein provided, but have been materially modified and altered by tho act No. 118 of 1867 and No. 82 of 1870, and assorting tho binding force and operation of said acts to protect the rights of tho State in relation to the said canal, etc., and succeeded in her demand. Having deliberately and solemnly invoked these statutes when she considered them essential to the protection and preservation of her rights under the contracts with tho defendant now in question, she is estopped from assailing them or denying their validity when she may think her interests as to the same rights will require it. The State is bound by her judicial pleadings and admissions the saíne as private persons, and is entitled to no greater right or immunity as a litigant than they are. The doctrine of. estoppel applies to the State just as it does 'to individuals. Tho plea, in this respect, is not res adjuiMcata, but estoppel, and should have boon maintained, and consequently tho State can not be heard in this action to deny the constitutionality of these two statutes tho validity and benefits of -which she has heretofore invoked.
[463]*463The other two grounds of exception were properly overruled.
The plea of no cause of action is not identical with nor does it involve that of inconsistent arid contradictory allegations, or that of vague and insufficient allegations. A cause of action is sot out in the petition, although the charges may be vague or inconsistent. No bill of exceptions is reserved to the introduction of evidence as to facts not alleged.
The case was argued at considerable length, both orally and by brief, and after the oral argument plaintiff’s counsel filed a brief, in which the issue involved is thus stated:
“ The main question in this case is, has the plaintiff proved a noncompliance on the part of the defendant with his contract ? In answering this question, and the brief of the defendant, we shall confine ourselves to those questions of fact which arc proved by many witnesses, and have never been disputed:
“ First — By the lease of 1866 the defendant was to build now wharves on both sides of the canal from the head of the basin down to the tollgate (Claiborne street). All of the witnesses prove that the wharves extend only to the Magnolia bridge. The surveyors place Claiborne street from nine hundred to one thousand feet beyond the bridge. There is a failure, then, to build from eighteen hundred to two thousand feet of new wharf.
“ Second — The defendant agreed to pay a certain annual rent. The witnesses proved he had paid only the first year’s rent. But the defendant sets up as a defense to this, that by act and contract of 1867 this payment of rent was dispensed with. This admits the non-payment and sets up an excuse for the failure.
“ Third — But by contract of 1867 the defendant, among- other things, agreed to construct throe large basins, each one thousand feet long by three hundred feet wide, with wharves around them, and graded approaches to them, according- to plans and specifications.
“The proof is, that not one of these basins was over commenced. This fact, is admitted in the brief to which this is a reply.
“ But the defendant sots up the act of 1870 as a defense to the part of his contract requiring three basins, etc.; and hero it may be as well to observe that the act of 1870 was his defense and pleaded by him. The State had no occasion to plead it.
“Fourth — The act of 1870 substituted ! sixteen.’ for ‘ three’ (basins), ‘not less than two hundred feet in length/ for ‘ one thousand feet,’ and ‘ fifty feet in width’ for ‘ three hundred feet,’ as the size of the basins. These are the only changes.
“ The testimony of all the surveyors of ICcnnor and the two maps show that only nine of the sixteen basins have been dug, and that no [464]*464wharves or approaches to them have been mado at any one of these basins. They are said to be in the swamp, whore no wharves are required.
“On all those four points, then, wo assert that the testimony is affirmative and overwhelming, notwithstanding the assertion in the brief that ‘'this proof the State has equally failed to make.’
“Fifth — But the defendant says the State'Engineer and others in-authority have approved the work, and that therefore the State is now barred from sotting up a non-compliance.
“ The only approval is, ‘ so far as done.’ There is no acceptance of the work by any one, and, carrying the doctrine of approval .to the full extent claimed by defendant, which can not be allowed, the approval can cover only toorlc actually done. It might possibly stand as a good defense against the charge of imperfect work. Bui no approval short of positive legislative action could stand in lieu of work never commenced. '
“ Such work is the two thousand feet of new wharf from Magnolia bridge to Claiborne street, the three largo basins, and the wharves, etc., around them, or oven seven of the sixteen substituted basins, with wharves around the whole sixteen.”
We consider the foregoing as the grounds on' which counsel for the State rely for annulling the contracts with the defendant; and we will hero remark that the main object of the Legislature, as expressed in act No. 118 of 1867, seems to be the widening and deepening of the canal for the benefit of commerce — the title to the act being, “An Act to authorize the widening and enlarging the New Canal and Basin,” and the consideration for the necessary outlay therefor, including three additional basins, the needed wharves, piers, bridges, etc., declared to be the relinquishment of the annual rent under the existing lease, amounting in the aggregate to seven hundred and fifty-five thousand dollars, and we think this position taken by counsel (as the. evidence malees reasonably clear) admits that this main object has been attained, and the question arises: “ Is the non-compliance, as above set forth, if fully established, of such-character and importance as to demand the abrogation of the .contracts between the State and defendant ?”
Of the four points relied on by counsel, two, “the annual rent” and “the three largo basins,” may bo laid out of view — the rent having been relinquished, and the three basins having been substituted by sixteen small ones by the Legislature, and the only matters for consideration are the wharves around the basin or city terminus, under the first contract, and the sixteen small basins under act of 1870. '
Act No. 12 of 1866 and a clause in the contract of sixth March, I860, provide that the lessee shall “ make the repairs described by specifications and plans in the report of the State Engineer to the Governor, [465]*465dated January 18,1866, which shall be made a-part of the lease.” The said report says on this subject:
“ 7. Much additional wharf accommodations required at the basin or city terminus of the canal, and it is proposed that the present line of wharves be repaired and now ones continued on each side of the canal until they roach the present toll-gate.
“ 8. The increasing business of the canal demands the construction of the wharves, and the piling necessary for the same, with additional revetments, will prevent the caving in of the banks, the filling up of the canal, and the encroachments upon the landings or property thereof.” The wharves to be of the best materials and labor, and kept in good order. In the act 118 of 1867, and the contract thereunder, the only reference to the subject of wharves, except in relation to the wharves around the three new basins, is the following: '•* * “ And all wharves, basins, pierSj abutments, bridges, etc., shall be constructed according to plans and specifications prepared by the State Engineer.”
The- plans referred to are not before us, and there is nothing in the specifications of that year (1867) in regard to the wharves at the city terminus of the canal, and it must be admitted that the requirements in the contract and specifications of I860 are very indefinite. It is stated, in general terms, that the increasing business of the canal demands the construction of the wharves, and it is -proposed that the line of the existing wharves be continued to the toll-gate (at Claiborne street), but there is nothing in the statutes, the contracts, or specifications fixing the time within which the line of wharves should be completed to the toll-gate. It is to depend on the demands of business, and the evidence does not show that there is a deficiency of wharf accommoda ions for the business up to this date, or that any one is complaining. The only evidence in the record on the subject is that the wharf accommodations are sufficient for the business, which is shown to have considerably declined since 1867.
From the tenor of the statutes and contracts, and the indefinite stipulation in relation to the extension of the wharves to Claiborne street, and especially the faet.that it was to depend on the demands of commerce, and is not a specific, fixed condition as to time, we can not justly hold the failure, as yet, to construct some nine hundred feet of new wharves on each side of the canal such a material part of the contract of lease as to bo a cause, under the circumstances, to annul the contract at this time. The obligation still exists to construct the wharves whenever the trade requires it, and the State, or those interested, can demand their construction on such contingency, if the interest of the defendant should not prompt him to do so, it being evident, as well as proven, that his interest is promoted by having every facility for conducting the business in the canal and keeping the cantil in good order.
[466]*466Tho next point is in regard to tho sixteen basins substituted by act No. 82 of 1870 for the three largo ones required by act No. 118 of 1867.
On this subject the defendant contends that he has complied with his obligations, and his agent, D. F. Kenner, in his testimony, says: “ Tho sixteen basins have been dug of tho length and width contemplated by the statute. Tho location of those basins was loft entirely with tho les-seo. My instructions wore to place them where they would best serve the interests of commerce. I put one of them at Claiborne street, one at Prieur; I put three of them at Galvez, and two of them between Gayoso and Salcedo streets, two of them between Genois and .Clark streets, one-nearly opposite tho lower toll-gate, one about a mile below the toll-gate, one about liali'-way between the toll-gate and tho lake, then four together near the bridge, where a large basin'was needed. That is the distribution I made of them.” Tnis, ho sa.yS, was considered most judicious for the benefit of commerce, and was adopted after consulting with a number of timber merchants.
Tho act No. 118 of 1867 required three large basins with wharves around them. Act No. 82 of 1870, entitled “ An Act to facilitate Commerce by providing for tho Construction of Additional Basins on the New Canal,” enacted “ that in lieu and instead of the three basins heretofore provided for by existing law, tho lessee of the New Canal is hereby required and directed to dig and construct sixteen basins, each not less than two hundred feet in length, with a width of one hundred and fifty foot, measured from tho west bank of said canal.”
This is the only provision in said act. The engineers appointed by the court a qua to examine tho canal and report its measurement, condition, etc., found only nine basins, but their aggregate dimensions equal those of tho sixteen prescribed by tho statute, and correspond in location and size with those described by the witness Kenner, and as facilities of that description needful to commerce was the object, and the amount of such facilities designated by the statute has been furnished, and it is not pretended that commerce is suffering or impeded, wo doubt whether there is a good ground for annulling tho lease simply because the basins have not been kept separate and distinct from each other. Wo can not see that the State or the interests of commerce have been injured or the spirit of the contract violated in a material part in this respect.
The defendant offered to prove that the work to bo done by him under his contracts with the State and under the supervision and subject to the approval of tho State Engineer was so done, with his approval and to-liis satisfaction; that committees of tlie Legislature, appointed for the purpose, examined said work and reported that it had been satisfactorily performed (including the basins required by the act of 1870), and that by the journals the report had been adopted by tho Legislature. We think [467]*467the evidence was admissible, as the statute and the specifications made a part of the contract directed that the work should be under the supervision and approval of the State Engineer. .Evidence, however, was given by two of the above engineers, appointed by the court, and the State Engineer, also, that the lessee has substantially complied with his contract, and the State Engineer so reported to the Legislature. This, with the other evidence, we think sufficient to protect the lessee from the annullment of his lease in this suit.
As to the order and condition of the canal and appurtenances, the evidence shows that they are constantly requiring repairs, -which the lessee makes as needed.
Under the circumstances presented in this record, we do not think it necessary to disturb the verdict of the jury and judgment of the court below.
J udgment affirmed.