February, 1898, the certificate of incorpora-, tion of the appellee was amended under the provisions of the general incorporation law,

and the new certificate declared that the corporation was formed for the purpose of constructing and operating a railway, etc., and also "for the purpose of manufacturing, generating, selling and furnishing electricity for lighting, heating, power and other purposes, and to buy, purchase, construct, build, equip and operate such plants, works and machinery as may be necessary for such purposes." The railway company then acquired by assignment the electric plant, contracts, and franchises of Powell Evans in Hagerstown, and on the 1st day of March, 1898, executed its bond to the mayor and council of Hagerstown, in the penalty of $5,000 for the faithful performance by it of the contract between Evans and the board of street commissioners. On the 29th of March, 1898, the board of street commissioners passed the following resolution:

"Whereas, Powell Evans has sold to the Hagerstown Railway Company of Washington County, Maryland, the electric light plant in Hagerstown and has requested the board of street commissioners to accept the bond of the said railway company in the penalty of five thousand dollars in lieu of a bond filed by him, the said Powell Evans. Now, therefore, be it resolved, that the board of street commissioners of Hagerstown, Maryland, do hereby accept the bond of the Hagerstown Railway Company of Washington County, Maryland, principal, and the Fidelity & Deposit Company of Baltimore, Maryland, as surety, in the penalty of five thousand dollars in lieu of the bond heretofore accepted by the said board of street commissioners from Powell Evans and now on file in the office of the mayor and council of Hagerstown, and that the contractual obligations now existing by and between Powell Evans and the board of street commissioners are hereby accepted by the board of street commissioners, to be performed and carried out by and on the part of the Hagerstown Railway Company of Washington County, Maryland, in lieu of the said Powell Evans and as referred to in the bond filed by the Hagerstown Railway Company of Washington County, Maryland, and being a part thereof."

By the Act of 1898, c. 479, approved April 9th, entitled "An act to amend the charter and to extend the powers of the Hagerstown Railway Company of Washington County, Maryland, so as to confer upon said company," powers, "in addition to the powers heretofore granted," the charter of the appellee was again amended, and it was provided: "That the said company shall have the right to carry over its railway or any of its connections, for hire, express matter and merchandise, and shall also have power to manufacture, furnish and sell to persons or corporations electric light, electric heat and electric power, and to contract for, and to furnish electric light for lighting streets, roads, private or public buildings in said county and to furnish electricity for motive power and other purposes, to any and all persons and corporations; * *and by and with the consent of the municipal authorities or town officers, in any city or town in said county, to lay, purchase, construct, and build lines, conductors and conduits under, along, upon or over the streets or alleys in any town in said county, and to

After the assignment by Powell Evans to the railway company of his plant, contracts, etc., the railway company operated that plant, lighting the streets and furnishing light and power to the citizens of Hagerstown, in accordance with the provisions of the ordinance and contract, until the fall of 1898, when it built a new and very much larger plant for that purpose. After the erection of the new plant the appellee continued to furnish electricity for lighting the streets of the city until the expiration of the contract referred to, and ever since it purchased the Evans plant it has been engaged in furnishing light and power to private consumers in the city and suburbs of Hagerstown. During that time, in addition to the establishment of the new plant, new poles have been erected, lines have been extended, and new contracts have been obtained for furnishing light and power to individuals and corporations. The poles erected or maintained by the railway company for supplying light and power were from time to time changed, replaced, and painted in accordance with resolutions passed by and an agreement with the mayor and council, and have been used by the city in connection with its fire alarm system.

By the Act of 1898, c. 381, the mayor and council of Hagerstown were authorized "to issue bonds to raise a sum of money to erect a plant for the purpose of supplying the town with electric light and power, or either, in the discretion of the mayor and council," and by the Act of 1900, c. 75, provision was made for the establishment by the city, with the approval of a majority of the voters of the city, of an electric light plant of suffi cient capacity to light the streets and to supply the citizens with light. The plant was completed in 1902, and since then the mayor and council have been furnishing light to private consumers in the city. In 1910 and 1913 the mayor and council notified the railway company to cease furnishing light and power to the citizens of Hagerstown, and to remove all poles used by it for that purpose from the streets and alleys of the city, and upon the failure of the railway company to comply with said notices the mayor and council on the 17th of January, 1913, filed a bill of complaint in this case for an injunction as we have stated.

The contentions of the appellant are: (1) That the mayor and council had no power to pass the Powell Evans ordinance, and that the ordinance is void; (2) that the Act of 1894, c. 308, did not confer upon the mayor and council of Hagerstown any power to grant a franchise for furnishing light and power in the city, did not give any right to Powell Evans because he was not an “electric light company," and did not confer any pow

er upon the railway company because at the time that act was passed the railway company was not an "electric light company formed under" that article; (3) that after the railway company became, by an amendment of its certificate of incorporation, an electric light company, it did not apply to the mayor and council for an ordinance prescribing the regulations under which it could exercise the rights granted by the act of 1894; (4) that after the passage of the Act of 1898, c. 479, the railway company could no longer exercise the right to furnish electric light and power in the city without the consent of the mayor and council, which could only be given by an ordinance regularly passed for that purpose; and (5) that the use of the streets by the railway company for the purposes stated is a trespass and a nuisance.

Even if we assume, without so deciding, that the Powell Evans ordinance is void as a grant of a franchise to use the streets for the purpose of furnishing electric light and power to private consumers, that the appellee, after the amendment of its certificate of incorporation, failed to avail itself of the powers granted to electric light companies by the act of 1894, and that after the amendment of its charter by the act of 1898 the rights and powers thereby granted could only be exercised "with the consent of the municipal authorities or town officers" of Hagerstown, the question remains whether the consent referred to in that act must, under the circumstances disclosed by the record, be evidenced by an ordinance of the mayor and council.

It is not necessary to determine in this case whether an electric light company, with such authority as was granted the appellee by the act of 1898, must secure from the mayor and council of Hagerstown an ordinance consenting to the exercise of its powers before attempting to do so, and the only question we need determine is whether, under all the circumstances, the city is estopped from denying that its consent was obtained by the appellee.

Learned counsel for the appellant insist that the erection and maintenance of the poles of the appellee in the streets of the city amount to a trespass and a nuisance which cannot ripen into a franchise, and they cite cases to the effect that an encroachment upon a highway cannot grow by prescription into a private right, that franchises must be obtained by legislative rights, and that a municipal corporation cannot be estopped from asserting that it had no power to grant the particular franchise. Baldwin v. Trimble, 85 Md. 396, 37 Atl. 176, 36 L. R. A. 489; Purnell v. McLane, 98 Md. 594, 56 Atl. 830; Water Co. v. Baltimore Co., 105 Md. 159, 66 Atl. 34; Mealey v. Hagerstown, 92 Md. 753, 48 Atl. 746.

In the case of Mealey v. Hagerstown, supra, the court said:

"A municipal corporation may set up a plea of ultra vires or its own want of power under its charter or constituent statute, to enter into a given contract or to do a given act in excess of its corporate powers and authority,"

and held that it could not be estopped from doing so because the other party to the contract expended money "on the faith of the agreement." The rule there stated has not been questioned and may be regarded as settled in this state. Here, however, there is no question as to the power and authority of the mayor and council of Hagerstown under the Act of 1898, c. 479, to consent to the exercise by the railway company of the rights therein granted, and the application of the doctrine of equitable estoppel to the facts of this case does not operate to confer upon the mayor and council powers not vested in the municipality by its charter or the statute, or to exact from it rights and privileges it had no power to grant. The act of 1898 expressly authorized the railway company to erect its poles and furnish light and power in the city with the consent of the "municipal authorities," and the authority of the mayor and council to give that consent cannot be, and is not, disputed.

* * *

The distinction between a case in which the municipality has the power to grant the franchise in question, and a case in which it has no such authority, is well recognized. It is said in 4 McQuillin, Mun. Corp. § 1687: question the use of its streets without a fran"That a municipality cannot be estopped to chise, or the validity of a franchise, where it had no power to grant such a franchise. On the other hand, if a municipality service company uses the streets with the knowlhas power to grant a franchise, and a public edge of the municipality, the latter may be estopped to question the right to use the streets without a franchise, or the validity of the franchise granted where it does not violate statutory or charter requirements. For instance, a municipality, which has acquiesced for years in the use of its streets by a public service company, which has spent thousands of dollars in connection with such use, and which has received the benefits of such use of the streets and has regulated the use and levied licenses and granted permission as to certain uses, cannot contest the right of the company to use the streets. Likewise acquiescence by a municipality in the use of streets by a railroad company islature precludes the municipality from objectpursuant to a grant of such right by the Leging thereto."

In 3 Dillon, Mun. Corp. (5th Ed.) § 1242, Judge Dillon says:

"And if the municipality has the power to grant such right or franchise, and a corporation, believing and assuming that it has the consent or grant of the municipality, has, with the knowledge of the proper municipal authorities, proceeded to exercise the right or franchise, and has constructed, maintained, and operated its works and appliances in the city streets, the municipality will, in a proper case, be estopped by the acts and conduct of its officers and representatives in knowingly permitof the streets, from asserting the invalidity of ting and acquiescing in the use and occupation the grant of the franchise, so far, at least, as

The same principle has been repeatedly recognized and applied by this court. Baldwin v. Trimble, supra; Arey v. Baer, 112 Md. 541, 76 Atl. 843; Cushwa v. Williamsport, 117 Md. 306, 83 Atl. 389; Whittington v. Com'rs of Crisfield, 121 Md. 387, 88 Atl. 232. In Baldwin's Case, Chief Judge McSherry, after stating that an encroachment upon a highway can never grow by prescription into a private right, said that that rule was in perfect harmony with the doctrine that an equitable estoppel may be asserted even against the public in favor of individuals. where justice requires it, and quoted the statement of Judge Dillon (2 Dillon, Mun. Corp. [2d Ed.] § 433) that:

"There is no danger in recognizing the principle of an estoppel in pais as applicable to such cases, as this leaves the court to decide the question, not by the mere lapse of time, but by all the circumstances of the case, to hold the public estopped or not, as right and justice may require."

In Arey's Case Judge Burke said: "The statute has long since become a complete bar to the assertion by any one against the appellees of rights in the alley. and, if it be conceded that it were a public alley, under the circumstances of the case an equitable estoppel would be created against the public to assert a right to the use of the highway."

In Cushwa's Case, Chief Judge Boyd refers with approval to the statement of the court in Baldwin's Case, and in Whittington's Case the court adopts Judge Dillon's statement of the principle in the fourth edition of his work (section 675). It is true that in Baldwin's Case there was evidence of an abandonment of the highway, but the principle announced is not founded upon an abandonment of a street or highway, and may be applied whenever under all the circumstances justice requires it. Nor does the doctrine conflict with the rule stated in Purnell v. McLane, supra, and Water Co. V. Baltimore Co., supra, that the assertion of the existence of a franchise must be supported by a grant from the municipality or Legislature. It rests upon the principle that the municipality may, in obedience to the demands of justice, be estopped by its own conduct, or the conduct of its officers, from denying the existence or validity of such a grant.

Numerous cases from other jurisdictions support the rule, and many of them are cited in the briefs of counsel for the appellee; but the principle is so clearly approved in this state that only a few of them are referred to here. In the case of People v. City of Rock Island, 215 Ill. 488, 74 N. E. 437, 106 Am. St. Rep. 179, the Supreme Court of Illinois said:

acting in good faith under affirmative acts of a city has made such expensive and permanent improvements that it would be highly inequitable and unjust to destroy the rights acquired, the doctrine of equitable estoppel will be applied. The hardships that would result from a contrary holding, and the necessity of raising an estoppel in particular cases to prevent fraud and injustice, have induced the establishment of the rule, and it has been several times said that there is neither danger to the public nor injustice in the application of the doctrine."

In the case of Louisville v. Cumberland Tel. Co., 224 U. S. 649, 32 Sup. Ct. 572, 56 L. Ed. 934, the court, speaking through Mr. Justice Lamar, said:

"The company, in pursuance of the collateral contract contained in the ordinance, and of the requirements of the consolidation statute, carried the police and fire wires of the city free of charge. With the knowledge and acquiescence of the city, and in reliance on the statutory conveyance of the street rights, the Cumberland Company, at an expense of more than a million dollars, erected many new poles, laid additional conduits, and strung miles of wire in extending and improving the telephone system. This action of the council could not enlarge the charter grant, but did not operate to estop the city (Boone County v. Burlington & M. R. R., 139 U. S. 684, 693 [11 Sup. Ct. 687, 35 L. Ed. 319]) from claiming that the ordinance was inoperative, and it also prevented the council from denying that the Cumberland Company had succeeded to every right and obligation of the Ohio Valley Company."

In City of Bradford v. New York & P. Tel. & Tel. Co., 206 Pa. 582, 56 Atl. 41, the case is stated in the syllabus as follows:

"A city filed a bill to compel a telegraph and telephone company to remove its poles and wires from the streets which it had occupied for more than 21 years without objection, after an expenditure of about $100,000. Many resolutions of the city council had given permission for the erection and use of the poles and crossarms on the streets. In consideration of the use of the poles for the carrying of the fireprivileges, the city had obtained a right to the alarm system, and had also levied licenses and pole taxes, and had used telephones furnished by the company down to the date of the hearing, and had regulated by ordinance the manner in which the poles should be erected under the direction of the street committee of council or the city engineer."

There the Supreme Court of Pennsylvania, in dismissing the bill, said:

"In the present case the acquiescence and the laches of the appellant are clearly in the way of any equitable relief to it."