ON MOTION EOR REHEARING.
The argument of counsel for the city raises but two objections to the disposition made of the case, which are (1) the application of the doctrine of estoppel against the city so far as. to protect the county in the use of the site of the present jail as indicated in the opinion, and (2) the failure to secure to the city a like use of the site of the second jail called “the old jail,” granted to it by the county in the treaty by which the latter secured the right just mentioned.
1. The arguments now urged against the solution given in our original opinion were all anticipated and considered before the decision was announced. The difficulties in applying the doctrine of estoppel to the municipal corporation were fully appreciated, and yet we were satisfied and are yet satisfied that situations sometimes arise in which the .demands of justice to others ought to outweigh the considerations which ordinarily and properly protect such municipalities against the consequences of the unauthorized action or non-action of their officers and agents. Such a situation is presented by the facts of this case, which probably is unprecedented and will not be followed by any like it. The square was originally dedicated as ground for public buildings, and the city, on becoming the owner, was empowered to assign to the county by dedication sites for those so often mentioned. The action of the, city was so uncertain that it would have been difficult for a court, and much more so for the parties, to have defined at any time the extent of the rights of either. There is, we think, no violation of the spirit of any , principle in protecting one of them in a use of a part of such ground the same in character as those to which it was originally devoted under such an arrangement as that in question by which difficulties arising out of the uncertainties of the situation were practically adjusted. The equitable doctrine of estoppel and acquiescence is not so narrow or technical as to afford no guide. It can be" fitted .exactly to the situation and made the rule to secure a result just to both parties. The property is not diverted to a different kind of use from that originally intended and the community at large is not injured by the application of the principle. The statutory provisions concerning compensation for improvements in good faith in actions of trespass to try title do not fit the case. They proceed on the assumption that improvements have been made on an estate to be recovered by its owner enhancing its value to him. That which exists here is hardly to be called an improvement at all. It causes no addition to the value of the estate, in the sense of the statute, being comparatively valueless except as a jail.
2. That to which the agreement and the erection and use of the jail under it gave rise was held to be only the right to occupy *491the ground for that purpose so long as the jail is kept and used there. It follows that the city had only a corresponding right to use the old jail and the ground- it occupies. If the city voluntarily ceased to use the old jail for the purpose agreed on before it was ousted from the entire square by the county, its right to hold and use it and the ground it occupies ceased; but if the city while still making the use' which it was entitled to make by the agreement, was expelled by the county it should be restored. The county can not insist on keeping that which it received under the agreement and at the same time deny to the city the corresponding right. But the right was only to use the property, and a voluntary cessation of that use by either party would end such right. We received the impression that this was true, but as there may be some question about it, we have concluded to so enlarge the instructions given as to permit inquiry into the question whether or not the city voluntarily ceased to use the old jail or was ousted therefrom by the county and a judgment conformably to the finding thereon and what we have said in our opinions.
Reversed and remanded with instructions.