The village of Oak Park, carved out of the town of Cicero, is a municipal corporation organized in 1903 under the laws of Illinois. In 1898 the town of Cicero granted a franchise to the Cicero & Harlem Railway Company, the predecessor of the Chicago & Oak Park Elevated Railroad Company. This ordinance, known as the original ordinance, imposed upon the railroad company the obligation to pave certain streets, including South boulevard, and to maintain all of said pavements.

The provision for maintaining the pavements is found in section 7 of the ordinance, and reads as follows:

“ * * * All of said pavements to he maintained by said company, its successors, lessees and assigns, during the life of this ordinance, and, if It or they shall refuse to make and maintain such pavements or planking, or to make and maintain any of the other pavements in this ordinance provided for, the same may be done by the town of Cicero, and the said company, its successors, lessees, and assigns, shall be liable for and hereby agrees to pay to the town of Cicero the cost thereof. * * * ”

On the 22d day of December, 1900, the town of Cicero amended this original ordinance, and we set forth below the parts thereof that bear upon this appeal.1 To better understand the reference to section 7, *596referred to in paragraph (c) of the amended ordinance, we set forth in full that portion of section 7 of the original ordinance thus referred to:

“ * * * Provided, however, that instead. of paving that portion of South boulevard and Lake street from Pine avenue west to Seventy-Second avenue to be occupied by the tracks herein authorized and required to be laid on said street, the north sixteen (16) feet of the roadway south of that part of said streets used and occupied by the track of said railroad shall be curbed and paved as above provided, in conformity with the improvement of the south part of said streets now made or hereafter to be made by order of the authorities of said town. And upon the failure to so pave and curb said sixteen (16) feet the said railway company, its successors, lessees, or assigns, shall pay the cost of paving and curbing the same to the town of Cicero, or its successors, and such may be recovered by said town in any appropriate action of law, from said company, its successors, lessees or assigns: Provided, no pavement shall be required of said company on Lake street between Pine avenue and Fifty-Second avenue: Provided, further, that where said company, is herein required to pave and keep paved sixteen (16) feet in width of any street said company, its right of way and franchises shall not be assessed for the paving of any other portion of said street.”

A comparison of the amended and the original ordinance leaves no doubt as to the intent of the grantor. It was merely intended to change the part of South boulevard which the railway company was required to pave. No intention was evidencéd to repeal the provisions elsewhere found in section 7, which required the grantee to maintain the pavement it constructed.

While it is quite elementary that grants of the character under consideration should be construed in favor of the public (25 R. C. L. 1089; 36 Cyc. 1177; Stein v. Bienville Water Supply Co., 141 U. S. 67, 11 Sup. Ct. 892, 35 L. Ed. 622; Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 561, 12 Sup. Ct. 689, 36 L. Ed. 537; Hannibal & St. Joseph Railroad Co. v. Missouri River Packet Co., 125 U. S. 260, *597271, 8 Sup. Ct. 874, 31 L. Ed. 731) it is not necessary to invoke any such rule in this suit, for nothing appears, express or implied, that would in any way suggest a modification of the obligation to maintain the pavements, an obligation which was a distinct and additional burden imposed upon the grantee.

We find nothing in the conduct of the parties that in any way affects or throws light upon the question. It appears that the officers of the village of Oak Park did not enforce this provision of the ordinance, but it also affirmatively appears that such officers were ignorant of the provision of the ordinance granted by the town prior to the incorporation of the village. Acts of parties to be persuasive in construing any contract must be knowingly performed.

It follows, from what has been said, that the obligation to maintain the pavements remained with the railroad company after the ordinance was amended, and the decree of the District Court is reversed, with directions to enter an order in accordance with the views here expressed.