I dissent from the conclusions reached by my associates.
The trial court found that the defendant “duly accepted the terms and conditions of said resolution, * * *' and plaintiff waived written acceptance thereof.” The opinion says:
“We find no justification whatever for the finding of the trial court that defendant did) accept the resolution.” “We find no justification for the finding that the city had waived written acceptance.”
The city council passed the resolution and was bound by it; they were suing upon it. These facts alone constituted an acceptance of all its terms. For many years the city arid the defendant acquiesced and acted upon this ordinance except that portion which required the payment of a rental. The defendant desired *459to extend and expand' its plant and needed, the consent of the city to do so. In accordance with the terms of the resolution, defendant extended its pole lines, wires, and equipment into the unoccupied territory, installing telephone instruments in such new territory, removing its poles from: the streets and alleys1 within the fire limits, and placing its wires within said fire limits under the ground, installing a new automatic telephone system, terminating the pending litigation between the parties in the state and federal courts, and settling the costs and thus closing the litigation.
Every one of these acts constituted an approval, an acquiescence, and acceptance of the ordinance. If such was not the intent, then the defendant was occupying the streets and alleys without the consent of the city; every dollar, spent, every pole erected, the restringing of the wires-, the placing of the wires under ground, the installing of the new- automatic system, the appearance before the Railroad 'Commission as to rates- and charges, were all acts of approval and acceptance.
Certainly the trial court was justified in making the finding of' waiver and approval. Defendant cannot accept the benefits and at the same time refuse the burdens. Under the ordinance defendant was granted the right of occupying the streets and alleys, and the instrument that permitted these things to be done provided for the payment of annual rentals for the use of the streets and alleys, and- every day of such occupancy constituted an approval and' acceptance- of the ordinance. When a license i-s given to the defendant to use the streets and alleys of the city and is acted upon, the ordinance 'becomes a valid contract which estops the grantees from denying the validity of the ordinance.
“It is the settled law in this state that the findings of the trial court are presumptively correct and will not be disturbed on ap-, peal unless it - appears from- the record1 that there is a clear preponderance of the evidence against them.”
Note — Reported in 193 N. W. 673. Bee, Headnote (1), American Key-Numbered' Digest, Telegraphs and telephones, Key-No. 10(9), 37 Cyc. 1632, 26 R. C. L. 505; (2) Telegraphs and telephones, Key-No. 10(9), 37 Cyc. 1632.