CITY OF GAINESVILLE, A MUNICIPAL CORPORATION, APPELLANT,

v.

W. R. THOMAS, APPELLEE

Cockrell J.,

(after stating the facts.) — The main argument here in support oí the bill is equitable estoppel. By express statutory enactment, municipalities are excepted from the operation of the statute of limitations, General Statutes, section 1714.

Whether in any case the doctrine should be applied to municipalities in the exercise of their governmental, as opposed to their proprietary functions, is a delicate question. In some States, under exceedingly pursuave conditions, it has been applied, as in Peoria v. Central Nat. Bank, 224 Ill. 43, 79 N. E. Rep. 296, 12 L. R. A. (N. S.) 687, while it seems to be wholly denied in the oft cited case of Webb v. City of Demopolis, 95 Ala. 116, 13 South. Rep. 289, an exhaustive opinion by the late Judge McClellan. There is nothing, however, upon the case as made before us to call for a decision upon this vexed question.

The complainant had bought but a year before filing the bill and his deed did not purport to convey to him the territory occupied by these streets, as against the public easement. His deed does not call for the spaces lying between the lots he purchased, but specifically describes the twenty lots by reference to the plat, and the plat filed as Exhibit A shows that lots 2, 3, 4 and 5 are separated from lots 6, 7, 8 and 9 by Hill Street in which the objectionable structure was placed by him. The plat further shows that lots 6, 7, 15 and 14 upon which the residence, commenced by his predecessor Chase, and completed by him, was located, constitute a block in said plat, surrounded by Hill, Bay, Lassiter and Line Streets, and there is nothing in the bill to indicate that his predecessor attempted to intrude the building one foot into any of these “streets.”

In spite of the allegation that the streets were never dedicated, the plat shows the contrary, as it would appear to have been voluntarily placed upon the records in 1886 by the then owners, as a continuing proffer to the city for use as streets, whenever the city should deem it advisable to assume the responsibility of its acceptance. This continuing offer has never, so far as we are advised, been revoked by the dedicators, who sold the tract with reference to this dedication, and we are advised that part of this tract is now owned by another than the complainant.

There are general allegations of adverse holding and occupancy, but no specific fact as to an actual ouster or interference with the public easement is set forth in the bill, other than the “part of said residence, viz: a driveway,” the building of which appears to have brought forth prompt resistance from the city authorities.

The complainant can acquire no equity by the expenditure of money in beautifying the premises. Before making the expenditure, it was open to him, as well as the city, to inquire into the title to these streets, and property dedicated for a public highway does not become private property because an individual may from his viewpoint, deem it to the best interest to the public,' to so divest it, however laudable the motive may be.

We do not understand that the city threatens to do aught else than to keep open as public streets, property theretofore dedicated for that purpose which is now accepted. It has done no affirmative act, which under any reasonable application of the doctrine of equitable estoppel as applied to a municipality, destroys its positive duty to keep open the thoroughfares which it accepts, to the full enjoyment of the general public.

The complainant seeks the aid of a court of equity to protect him in his encroachment upon a public right, he fails to show in himself title to these “streets” and the de- ' murrer should have been sustained. Decree reversed.

Whitfield, 0. J., and Shackleford, J., concur;

Taylor, Hocker and Parkhill, J. J., concur in the opinion.