The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-10-01

such action was had on the part of both
the grantee and the grantor, hut that the
record thereof was designedly omitted
from the record of the proceedings of
/ both parties and if fraud is assigned OF
such omission as being against the rights
Of the plaintiffs. the evidence must prove
| beyond a reasonable doubt that such
fraud exists. In this case there is no evil
dence on the records of the city council,
nor of the minutes of the business pro-
J ceedings of the defendant corporation to
show surrender of the franchise and it's
acceptance by the oity council, and there
/ is not sufficient evidence to justify ind
! ing that there was at any time an agree
nent between the city council and the cor
Doration that the franchise should be
surrendered, ana that by any design or
/ fraud or collision the agreement was
omitted from the amentatory ordinance
of April, 1891
| in respect to the evidentiary facts which
plaintiffs counsel suppose are effectual to
work an eStoppei against the defendant. L
find therefrom chat the conduct of the di-
rectors, and the Wells letter, and the as
! surances given them by Mr.: Horn. did
have the effect TO cause the aburtlnS
property to discontinue their eff
forJs 10 prevent the passage of the ordi-
nance of April, 1894 But admitting that
this evidence proves all that plaintiffs
claim for it, the question of whether it
constitutes an esuoppel depends principal
~ upon the relation of the parties. The
parties to the ordinance of 1889 and the
amendatory ordinance of 1894 were the
city on the one part and the defendant
company on the other. The thing granted
on The part of the city and accepted by
the defendant is the privilege of laying Il
railroad track in 4 strete of the town. The
thing granted on the part ftlle city and
accepted by the defendant is the privi-
of the town. The thing granted
is an incOrporeal hereditament. In
it neither these plaintiffs had any
right property or estate g. what so
defendant company is. concerned, is I'M
assignable by it either in law or in equity,
The defendant company could make no
contract or bargain with q third person
uniting its franchise in any way, which
would be enforceable either at law or in
equity. Therefore there are no parties to
that grant, and can be none. except the
city government and the defendant COM
pany. Neither of the parties plaintiff here
has any privity, by estate or by contract,
with the defendant in that grant.
EstopDels, whether by deed by matter
of record, or in pals, operate only be-
tween the immediate parties. and their
privles, whether by blood. by estate, or by
contract. A stranger who is not u party,
nor Drivy. can neither be bound nor
aided by an eStOppel
1t is not required that authorities be
cited in support of these propositions.
They are doctrines familiar to every we'll
instructed lawyer.
The question of whether there has been
acGuiescence is governed by the same
considerations as respects parties and
priVies, as the question of an estoppel
Acquiescence, considered in itself is a
negative estoopeL Mr.. Pomeroy calls it
quasi estoppeL Anyway, acquiescence
in the non-uSe of the franchise as be-
tween these plaintiffs and the defendant,
can not be pleaded or enforced in equity
against the defendants legal rights I'M
der the grant. Indeed. l believe that as
between the City government and the de-
PENDANT company, a non-user of the fran
chise would not defeat it, until the city
government should take the appropriate
legal action to declare a forfeiture for
such non-user.
1t may be that under the circumstances
OF this case the defendant company is
under a moral obligation to these abut-
ting property-ownerS not to lay it's tracks |
on this street; that is a matter about
which men might differ. A man who owes
a debt against which the statute of linn
itatlons has run. is still under moral OBJ
legation to pay it. And a man who makes |
a verbal promise to convey lands, Il prom |
Use which the statute of frauds requires to !
be in writing. is under moral obligation !
not to repudiate his promise; but such OBJ |
legations the courts can not undertake to |
enforce. They can enforce only legal and |
equitable obligations according to the |
rules of law and equity.
Let findings and decree be entered for |
the defendant.
OGDEN HILES,
Salt Lake City. Sept. 80, 1885