The foregoing quotation from the ordinance shows that by the terms of the ordinance the city of Xenia sought to exercise a measure of dominion, not only over the driveway, but also upon the station platform. An allegation appears in the pleadings to the effect that this ordinance was passed at the request of the railroad company, and that a copy of it was posted within the station building. No testimony upon this point was introduced; but in any event the allegations of the answer would not justify a conclusion that the ordinance was ever accepted by the railroad company, or that any contract relations existed between the city and the railroad company, as a result of the adoption of that ordinance.

It seems desirable to take the Court of Appeals' opinion as the basis of our discussion. That court did not find the prescriptive right in defendants in error as a result of the ordinance alone, nor as the result of the user alone, but rather by reason of the existence of the ordinance in connection with the long-continued user.

An ordinance can only be useful in establishing a right if it amounts to a grant, in which event no period of user need be shown. If on the other hand the right is based upon long-continued use, an ordinance or other form of grant would be unnecessary, unless the use were for a period less than 21 years; in which event the ordinance cannot eid, unless it does amount to a positive grant. It is apparent therefore that if either the ordinance or the use is lacking in any essential elements, the combination of the two cannot supply technical deficiencies which may exist in either. In disposing of this error proceeding, this court is not merely deciding a controversy, and is not permitted to sit as a court of equity in weighing and determining superior equities of the respective parties, but has the further task of declaring sound legal propositions, and must in any event necessarily be governed by the technical rules of law which measure prescriptive rights. We will first determine whether the ordinance amounts to a grant.

It is conceded that this property which is referred to as a driveway belonged to the railroad company in fee. A dedication of the property to the use of the city cannot therefore be made except by some affirmative | 145 N.E.-31

that an ordinance could be adopted by the city, whereby complete dominion would be exercised over property belonging to the railroad company, and that the railroad com pany might unequivocally accept and agree to such exercise of dominion on the part of the city, resulting in a dedication of the property of the railroad company to public use. This particular ordinance cannot be given any such force or effect. It will be observed that the ordinance purports to establish a public stand, not only in the roadway abutting upon the platform, but also on the platform itself. It should require no argument to show that the city could not have intended to exercise acts of ownership over the platform, and it is more reasonable to so construe the first section of the ordinance as to make the same merely regulatory and not the exercise of dominion. The entire property of the railroad being within the city limits, it was entirely proper for the municipality to provide for the orderly conduct of drivers of vehicles in carrying passengers to and from the railroad platform. It having no power to do more than that, it will be presumed that such was the intent of the city council, and such an intent is entirely consistent with the language employed and the purposes intended to be served, as indicated by the succeeding sections of the ordinance. Even if the city had sought to exercise dominion over railroad property, no acceptance thereof, no agreement thereto, is shown on the part of the railroad company. The case of Williams v. N. York & N. Haven Rd. Co., 39 Conn. 509, discusses the necessity, not only of the dedication by the landowner, but also of the acceptance of the dedication for public use by the public. This court has also declared upon this subject in the case of Railroad Co. v. Village of Roseville, 76 Ohio St. 108, 81 N. E. 178. The syllabus of that case is as follows:

"1. To show the establishment of a street by a common-law dedication, it is essential to prove clearly that the owner of the land intended to donate it for that use, and to prove also an acceptance.

"2. An intention by a railroad company to dedicate a street is not clearly shown by proof that a way over its tracks and uninclosed lands had been used for about 40 years by the public, when during the entire time the way was maintrons, and the use by the public was merely tained by the company, and was used by its papermissive.

"3. An acceptance, by a city or village, of the dedication of a street cannot be shown by proof of user by the public, but it is essential that acts of acceptance by its proper officials be shown.

"4. Title by prescription to a public street can be shown only by adverse user by the public, under a claim of right, and uninterrupted for 21 years.

"5. When a railroad company maintains a

way or street over its tracks and uninclosed land for about 40 years, for the use of its patrons, and incidentally it is used also by the public, the presumption is that the user was permissive."

It has been stated, though not shown in the record, that a copy of the ordinance was posted inside the station building. Such posting becomes no part of the city records, and cannot therefore aid the ordinance in establishing a grant. If such posting of the ordinance has any effect whatever, it is that of indicating that the use of the roadway and the platform by drivers of vehicles is permissive, which subject will be discussed in its proper order. We will next consider whether the long-continued use of the roadway creates a prescriptive right in the public which will accrue to the benefit of drivers of public taxicabs.

The statute of limitations is not involved in this matter, this evidently being the view of the trial court, because no reference to it is made in the opinions, and it is evidently the view of counsel for defendants in error, because no statute of limitations is pleaded. It is conceded that the use has been for approximately 60 years. But under the former decisions of this court 21 years is a sufficient period of time if other elements of prescriptive rights exist; that period having evidently been fixed by analogy to the statute of limitations.

It only remains to determine the character of user necessary to create a prescriptive right in favor of the public in property belonging to a railroad company. Some authorities hold that no prescriptive rights can arise against a railroad company after such company has acquired its right of way, because it would be ultra vires of a railroad company to grant such an easement, and this rule has even been declared by statute in the state of Massachusetts. The overwhelming weight of authority, however, is the other way, and in the usual and ordinary case of a crossing or way used by a portion or all of the public, where the way is open at both ends, and its use has no relation to the service being rendered by the railroad, there is no sound reason why the general principles applicable to prescriptive rights should not attach to crossings and ways over railroad property. This record discloses no such case. The way is not open at both ends, and it leads nowhere, except to the platform of the railroad station, and the way was originally opened and has always been maintained by the company for purposes of ingress and egress for the accommodation of the patrons of the railroad. The elements of a prescriptive right do not clearly differ from the elements of title by adverse possession, and yet there is one important essential difference. Prescription relates to incorporeal rights, while adverse possession applies to an interest in the title to the property.

[1] A prescriptive right is acquired by open, notorious, continuous, and adverse use for a period of 21 years. The title by adverse possession depends upon all of those elements with the additional element of exclusive possession. It is not doubted upon an examination of this record that the public has used this driveway for the period of 60 years, and that such use has been open, notorious, and continuous, but we are unable to find any evidence that the use has been adverse. That it is necessary that the use should be adverse all the authorities are in perfect harmony This court has so declared in Gill v. Fletcher, 74 Ohio St. 295, 78 N. E. 433, 113 Am. St. Rep. 962; Railroad Co. v. Roseville, 76 Ohio St. 108, 81 N. E. 178; Smith v. P. C. C. & St. L. Ry. Co., 5 Ohio Cir. Ct. R. (N. S.) 194, 16 O. C. D. 44, affirmed by this court, without opinion, 73 Ohio St. 391, 78 N. E. 1137; Pavey v. Vance, 56 Ohio St. 162, 46 N. E. 898. The character of use enjoyed by the public as shown by this record is only that of going to and from the railroad station as patrons of the railroad company by means of a driveway established for that purpose which so far as this record discloses is the only means of ingress and egress for vehicles. It seems very clear, therefore, that this use is not adverse, but rather permissive. If the use is permissive no prescriptive rights can be predicated upon such use. McCreary v. Boston & Maine Rd. Co., 153 Mass. 300, 26 N. E. 864, 11 L. R. A. 359; Currie v. Bangor & Aroostook R. Co., 105 Me. 529, 75 A. 51; Hastings v. Chicago, R. I. & P. Ry. Co., 148 Iowa, 390, 126 N. W. 786; Chicago, Burlington & Quincy R. Co. v. Ives, 202 Ill. 69, 66 N. E. 940; L. & N. R. Co. v. Hagan, 141 Ky. 20, 131 S. W. 1018, 35 L. R. A. (N. S.) 189; Pavey v. Vance, 56 Ohio St. 162 (Syl.), 174 (Opin.), 46 N. E. 898; Smith v. P.,, C., C. & St. L. Ry. Co., 5 Ohio Cir. Ct. R. (N. S.) 194, 16 O. C. D. 44.

No reported case of this court or of any other Ohio court is found involving facts parallel to the case at bar, but similar facts have been before other courts. In the case of L. & N. R. Co. v. Childers & Only, 155 Ky. 652, 160 S. W. 260, 48 L. R. A. (N. S.) 903, it was held that there is no presumption of a grant of a passway to the public over the right of way of a railroad from a mere use by the public of the passway for 30 or 40 years. The same principle was declared in Williams v. N. York & N. Haven R. Co., 39 Conn. 509, and in Loomis v. Connecticut Ry. & Lighting Co., 78 Conn. 156, 61 A. 539.

[2] The only conclusion which can be reached from the foregoing well-established principle is that the use by the public of this driveway has been permissive, and in no sense adverse, and that it does not establish a prescriptive right.

We are therefore brought to a consideration of the question whether under such circumstances the railroad company can con

"The court further finds that relator's contract of employment was subject to the statutory amendment becoming effective June [July] 29, 1923, as embodied in section 6602-14, General Code of Ohio [110 Ohio Laws, p. 341]. "The court further finds that the relator's bill for services set forth in this case, being in excess of the amount allowable for services of the relator for the year beginning June 29, 1923, was illegal, and that the county auditor properly refused to issue warrant.

"The court further finds that relator is entitled to be paid a reasonable amount for the services performed by said Allen and his assistants prior to June 29, 1923.

"The court further finds that the limitation of salary heretofore referred to applies only to the compensation of the sanitary engineer, and that such sanitary engineer may employ assistants, upon such reasonable terms as may be fixed by the board of county commissioners.

"For the reasons stated, the court finds that the petition in mandamus should be dismissed

and the writ refused. It is, therefore, by the court ordered and decreed that the defendant go hence without day, and that he recover from the relator his costs herein expended. To all of which findings and orders of the court, the plaintiff, by his counsel, excepts.

"This cause being heard on the motion of plaintiff to set aside judgment and for a new trial, the court, on consideration, overrule same, to which overruling of said motion counsel for plaintiff except."

To reverse the judgment of the Court of Appeals, error is prosecuted to this court. McCann & Whalen, of Dayton, for plain

tiff in error.

A. H. Scharrer and R. E. Hoskot, both of Dayton, for defendant in error.

A solution of the problem preDAY, J. sented must depend on the force. and effect which is given section 6602-14, General Code (110 O. L. 341), which became effective July 29, 1923, nearly two years after the date of the employment of the relator by the county commissioners for "Belmont Sanitary Sewer District No. 1," which was on August 4, 1921.

So much of section 6602-14, General Code, as affects this contract is as follows: "Provided, however, that the maximum compensation received by any commissioners or sanitary engineer serving in any county af

In the case of City of Lancaster v. Miller, 58 Ohio St. 558, at page 575, 51 N. E. 52, 55, it was said:

"Persons who deal with municipal bodies for their own profit should be required at their peril to take notice of limitations upon the powers of those bodies which these statutes impose."

This principle has been recognized many Frisbie Co. v. City of times by this court. East Cleveland, 98 Ohio St. 266, 120 N. E. 309.

While the statute, section 6602—1, General Code, under which this employment was made, authorized the county commissioners to employ a sanitary engineer "for such time or times and on such terms as they deem best," yet the contract of employment is silent as to any fixed time. This might have been a difficult thing to have done at that time, as the exact' plans and specifications and the amount and nature of the work were not known at that time. After the plans and specifications had been adopted, and the nature of the work, its probable extent, and other definite facts were known, the record does not disclose a renewal of the contractual relation between the relator and the county commissioners based upon the times and on such terms as they deem best." provision of the statute "for such time or terms" as the commissioners deem best, but Not only must the contract be upon "such it is equally mandatory as to such "time bind a subsequent board of county commisor times" as they deem best. In order to sioners and future Legislatures, the right not be left to inference alone from the naand power to so do must clearly appear, and ture of the contract and the kind of work affected thereby.

fected by this measure shall not exceed the amount of compensation received during the current year by the county auditor serving in the said county."