*57St3t6)TI6nti *56(dissenting). — This case was assigned to me in Division and an opinion prepared in which two of the judges concurred and two dissented, wherefore the case was transferred to Banc, wherein the *57divisional opinion not being adopted, the , _ — , _ • -• cause was re-assigiied and is now disposed of in the majority opinion written by onr brother Graves.
I am unable to concur in the views expressed m that opinion. The material facts as they are shown in the record in this case are undisputed.
The streets sought to be recovered by the city in this action were formally dedicated to it by a recorded plat in 1858. They are known as portions of Seventh Street and Pacific Street. Across the intersection of these streets the defendant has laid tracks connecting its roundhouse, situated on abutting property, with other property owned by it, on which latter property its main tracks are laid. These connecting tracks are used for access and exit from the roundhouse. Defendant never at any time sought or obtained any franchise or right from the city of St. Joseph to make any use of the portions of Pacific and Seventh streets over which it laid such connecting tracks. Defendant, however, fenced' off that portion of these streets and placed in the inclosure an ash pit and a water tank. Defendant has never at any time paid any sort of taxes on the portions of the streets thus occupied by it. In 1899 the plaintiff city, at its own expense, built a district sewer along Seventh Street and that portion of it occupied by defendant. In assessing the cost of this improvement, Seventh Street was excluded from any assessment for the reason that it was a public street, tin? entire cost being paid by the city and other abutting property owners. In 1904, the plaintiff city constructed in a similar manner a sewer on Pacific Street and under the portion in possession of defendant. These improvements by the city, from the burden of which Seventh Street was thus exempted, are undisputed and were made with the knowledge of the defendant. Otherwise than such use of the streets by the city, *58the defendant has held possession of them for about twenty-five years. The abutting' property on which defendant established its roundhouse and other permanent improvements was acquired by it after a vacation of the streets running through it by the city. But the defendant did not, at .that time, seek to obtain a vacation of the portions of Pacific and Seventh Streets subsequently used by it and has never received any authority, either written or oral, from the city or any of its representatives to make such use of that property. None of the substantial improvements made by defendant are located on the portions of Seventh and Pacific Streets over which it subsequently placed its connecting tracks.
The president of the defendant company testified, in substance, that if it should be deprived of the facility of entering its roundhouse, afforded by its connecting tracks running across portions of Seventh and Pacific Streets, it might be necessary to remove its terminal plant from the city or to suffer a loss equal to its value, which he estimated at five or six hundred thousand dollars. The present suit concerns only a portion of Seventh Street. The defendant set up no title to the property, hut pleaded estoppel and abandonment against the city.
Upon the submission of the case a decree was rendered for plaintiff and writ of restitution ordered, from which defendant appealed.
II.
streets.3 The character of the possession of defendant cuts no figure in the solution of the question presented by this appeal; for since the statute which took effect August 1, 1860 (R. S. 1909, sec. 1886), no title resting on adverse holding can be created against the lands of the State or their auxiliaries in government, municipal corporations. [City of St. Louis v. Mo. Pac. Ry. Co., *59114 Mo. l. c. 24; Brown v. City of Carthage, 128 Mo. 10; Columbia v. Bright, 179 Mo. l. c. 454; Wright v. Doniphan, 169 Mo. l. c. 614; State ex rel. v. Road Co., 207 Mo. l. c. 106.]
Nor can a city vacate its streets except in the exercise of a power given in express terms or by necessary implication. [2 Elliott on Roads and Streets (3 Ed.), sec. 1177; Bingham v. Kollman, 256 Mo. l. c. 591.]
The Legislature has thought proper to prescribe a different rule with reference to “county roads,’’- for after providing for their establishment and legal status as such, the statute concludes, to-wit: “And non-user by the public for a period of ten years continuously o'f any public road shall he deemed an abandonment of the same.” [R. S. 1909, sec. 10446.] That statute was applied in a suit involving a county road (Johnson v. Rasmus, 237 Mo. l. c. 591) and also in a case where it appeared that Kansas City had "acquired the territory over which a road passed whose legal existence was claimed to have lapsed while it was a county road. Kansas City passed an ordinance for the grading of this road. Thereupon the adjoining property owners denied there was any such road in existence at the time of the enactment of the ordinance. The city had taken no steps after its acquisition of the property to open and establish a street over the line of the old road. Hence it was ruled that the issue thus joined was one of abandonment of a public road within the purview of the statute and cases cited in Kansas City v. Smith, 238 Mo. l. c. 336. In each of the above cases the statute 'was applied according to its terms to public roads established in a county and nothing was ruled affecting the application of that statute to the streets of a city. Indeed, the obvious fact that it has not application in such cases was noted in Clay Products Co. v. St. Louis, 246 Mo. l. c. 461, in which case it was *60ruled that a city is not estopped to assert title to its street by the written statement of the street commissioner that the street does not exist, nor by its own ordinance condemning a right of way over it for sewers and water pipes.
The result of the cases in this State is that a city has no power to part with the title to its streets which it holds in trust for the public except by a valid vacation.
III.
Estoppei? The learned counsel for appellant insists that plaintiff’s recovery is barred under the doctrine of equitable estoppel. The rule on this subject is that a municipal corporation in the attempt to exercise its lawful powers may encounter the preelusion of an estoppel under the same conditions which would make it a defense ' against an individual, if it should turn out that the act of the corporation was irregularly or imperfectly performed and that it would be against right and justice or a fraud to permit its disavowal against one who in good faith relied upon its validity and in consequence was injured. And that is as far as the rule has been carried in this State or in correct decisions elsewhere. [See cases cited in appellant’s brief.] No estoppel of any kind can ever arise in any case where the municipal corporation undertakes to do any act in violation of the general law or in contravention of its charter. Such an act would be in a strict sense ultra vires and, therefore, could not be the basis of any estoppel against its repudiation.
In the instant case the City of St. Joseph never attempted at any time to exercise its lawful power to vacate the portion of the street occupied by the defendant and never gave defendant any color of right to cross them with its tracks. The city was under *61no duty to grade, pave or improve these parts of its streets until such time as the growth of population and expansion of the city should render it necessary in the judgment of the municipal authorities that the streets should he put in a condition suitable for use by the public. Such improvement of its streets is, however, a matter wholly within the discretion of the city authorities and inaction on their part does not affect the right of the city to assert its title as trustees of the street for the public and to eject any intruders. [City of St. Louis v. Mo. Pac. Ry. Co., supra, l. c. 24.]
The defendant knew, from its terms, that the vacation ordinance of 1887 did not include either Seventh or Pacific Streets and it had actual knowledge of their location, for it purchased property adjoining and bounded by these streets. Besides, the law imputes knowledge of the existence of streets to all persons concerned. [Wright v. Doniphan, supra, l. c. 613.]
The city officials never stated to defendant that the property in question was not a public street, but on the contrary treated it as such by -running sewers and water pipes underneath it and exempting the property from any assessment therefor, on the ground that it was a public street, and this necessarily to the knowledge of defendant who was in the occupancy at the time. The bare facts of the record are that defendant has occupied these parts of these streets by crossing them with its tracks and afterwards fencing them off for twenty-five years and without any authority granted so to do and with knowledge at all times of the title of the city, and if now dispossessed, might suffer whatever injury might result from losing a track connection between its roundhouse and other property which it established, not in reliance on any affirmative act or representation on the part of the city, but in its own wrong.
*62It is impossible that these facts comprise the essential elements creating an estoppel in pais against the enforcement by the city of its rights to the use of its streets. [Blodgett v. Perry, 97 Mo. l. c. 273; Austin v. Loring, 63 Mo. l. c. 19; Spence v. Renfro, 179 Mo. l. c. 422; Bank v. Nichols, 235 Mo. l. c. 412; Bigelow on Estoppel (3 Ed.), 484.] Neither can the city be deprived of redress for the violation of its legal rights by defendant because the restitution of its property might inflict a substantial loss on the disseisor. [Steinmetz v. Federal Lead Co., 176 S. W. 1049.]
IV.
The learned majority opinion seems to rest its conclusion that the city has lost the title to the portion of its public street under the facts in this record, upon the doctrine of equitable estoppel. The fault with that conclusion is, not that such doctrine may not be applied in exceptional cases (where the city has imperfectly executed a power not forbidden in reliance upon which another has acted to his detriment), but that the opinion has wholly overlooked the undisputed facts in the present record which would preclude the application of that doctrine, not only in the limited instance in which such a defense may be interposed to a suit by a city or other auxiliary to the State government for the recovery of its streets, but would preclude its application to transactions between other persons wherein it is allowed the fullest latitude. The authority cited in the learned majority opinion is the “Town of Montevallo v. Village School District of Montevallo” post, p. 217. A mere glance at the conceded facts in that case will disclose that they are not clearly connoted in the learned majority opinion. In that case the issue between the Town of Montevallo and the School District of that town was the title to a public square (three *63hundred feet square) lying in the center of the plat which was dedicated in 1866 as the site of a future town. On the property thus dedicated, the town grew up and was incorporated in 1871. The dedication was properly recorded. Thereafter (in 1881 the board of trustees of the incorporated town entered an order of record on the town records, “ceding” the public square to the directors of the Village School District of Montevallo, for school purposes. Upon the' faith of this affirmative attempt to grant the land to it, the school board took possession of the property and erected thereon a stone school building costing three thousand dollars. About twenty-five years thereafter the town brought a suit to recover the public square which it had thus attempted to vacate to the use of the school district. It is perfectly evident from this brief recital of the material facts in the case of Town of Montevallo v. Village School District, that they only resemble the real facts of the present case, in the way that a resemblance can be claimed between things which are contradictory of each other. In the Montevallo case, the town, by affirmative action, entered upon its own records, endeavored to part with its title to a public square; in effect, attempted to make a deed to the school district and turned over the possession of the property to the school district for the purpose of enabling it to erect, at great expense, a stone building, and permitted it to hold the possession and use of it for about twenty-five years. Such a transaction is the exact opposite of what was done in the instant ease. In that case the city met with the estoppel of its deed or attempted deed. Here an estoppel is sought to be created against the city without the existence of any deed or affirmative action on its part whatever. Nor was there a scrap of paper denoting any intention on the part of the city of St. Joseph to part with its title to the small portion *64of Seventh Street which defendant has appropriated; neither is there a ray of evidence that the city, through any of its representatives, ever, at any time, gave the defendant any right or title to that portion of Seventh Street. In this state of facts there was no act or deed by the city upon which defendant could have relied as giving it title to the street and none is pointed out in the learned majority opinion.
Therefore I think that opinion contravenes the settled law conserving the right of a city to the use of the property held by it in trust for the people of the' State, and wholly misconceives the true basis upon which in exceptional instances an equitable estoppel may be invoked against it, and has undertaken to apply that rule, as against a city, to a state of facts which would not make it applicable as against an individual. For these reasons I cannot agree with the views expressed in the prevailing opinion.
Walker, J., concurs in these views.