Condron v. Pennsylvania Railroad , 233 Pa. 197 ( 1911 )

Opinion by

Mr. Justice Potter,

When this case was first called for argument in this court, it appeared that no final decree had been entered, dismissing the bill, and the record was therefore remitted to the court below for further hearing and the entry of a final decree. The case was then heard again before Judge Reed presiding specially, who entered a final decree, in which he overruled the exceptions to the findings of fact and conclusions of law, and dissolved the injunction and dismissed the bill. As the case is now presented, it appears that the specifications of error are defective, in that the final decree of the court below is not assigned for error. Such an assignment is requisite: Clymer v. Roberts, 220 Pa. 162; Kenworthy v. Trust Co., 218 Pa. 286. We refused to hear argument when the case was brought here without a final decree; and now that such a decree has been entered, it has not been assigned for error. This leaves the case substantially as it was before in so far as the decree is concerned.

In the first specification, complaint is made that the court below erred in dismissing an exception to a finding of fact. This assignment is not pressed in the argument, and the matter to which it refers does not seem to be material to the issue. It does not seem to be warranted by anything in the evidence, but the finding could not have harmed appellant in any way.

In the second and third assignments, complaint is made of the dismissal of the exceptions to portions of the opinion of the court below; but it has been repeatedly pointed out that it is the decree of the court which is assignable as error, and not the opinion: Seltzer v. Boyer, 224 Pa. 369; Johnston’s Estate, 222 Pa. 514; Fullerton’s Estate, 146 Pa. 61.

The alleged error set forth in the fourth assignment is the dismissal of plaintiff’s exceptions to the decree suggested by the trial judge, dissolving the preliminary injunction on condition that the defendant should file a bond. This was not a final decree, and is therefore not assignable for error. It was merely a suggestion of the trial judge of what he considered a proper requirement before the entry of a decree.

In the fifth assignment, it is alleged that the court below erred in the admission of a statement of certain facts. There was, however, no exception taken to the findings of facts, and in the assignment itself they are admitted; but it is denied that the legal effect given to them was proper. It is apparent, therefore, that the objection here raised is to the conclusion of law reached by the court, rather than to the admission of the facts in question.

In the sixth assignment there is a general allegation that the court below erred in its findings of fact and conclusions of law. But no findings of fact or conclusions of law, to which objection was made, are definitely set forth, nor does it appear that any exceptions were taken to the findings and conclusions. In United Electric Co. v. East Pittsburg Boro., 230 Pa. 65, we pointed out (p. 70) that, “The assignments should be to the final action of the court upon exceptions to the rulings of the trial judge. Each assignment should show an exception filed and the disposition made of it by the court.” And in Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, it was held, as set forth in the syllabus, “Assignments of error to findings of fact and law, although showing that exceptions were filed, are defective if the dismissal of the exceptions is not assigned for error.”

In the seventh assignment of error complaint is made of the overruling of the exceptions of the plaintiff to the order of the court below made on May 5, 1910, and to the form of decree then suggested by the court. As we havé already held that this order was not a final decree, to which an appeal would lie, it is not therefore properly to be made the subject of an assignment of error. Especially is this true, since a final decree was afterwards entered, after final hearing in the court below.

The only question here involved is as to the right of the plaintiff under the circumstances to claim the benefit of a remedy which is solely equitable in its nature. The court below was of opinion that the plaintiff by his conduct, had precluded himself from applying for relief through equity. Judge Reed says, “The plaintiff stood by and saw the defendant expend $50,000 on the faith of the original ordinance in question, and he cannot now be heard to question its validity. He was a member of the body that enacted it, and the somewhat technical objection which he now raises to strike it down was as well known to him before the defendant had spent a dollar on the faith of the ordinance as it was at the time he filed this bill. He was silent then and the law will not permit him. to speak now. In these circumstances the plaintiff’s complaint does not come within the province of equitable relief.”

Without anticipating in any way the consideration of the legality of the ordinances involved, as that may be properly raised by the plaintiff in an action at law, we are of opinion that upon the ground of laches by the plaintiff, the injunction asked for in this case was properly refused. The court below, probably through inadvertence, spoke of plaintiff as being estopped. But the doctrine of estoppel can hardly apply here, for the reason that the defendant company had the same opportunity to know the facts with regard to the passage of the ordinance as the plaintiff had. It was not deceived in that respect. In Woods v. Wilson, 37 Pa. 379, Mr. Justice Thompson said (p. 384) that the law of estoppel operates “only in favor of those who, after the exercise of diligence, are still ignorant of an opposing title, and against those who, aware of their own title and knowing it to be secret, are silent. When both parties are aware of their respective rights, it has no place in law or equity.” But the inexcusable delay of the plaintiff, in asserting his rights, is another matter, and the consequent injury and prejudice to the defendant company, in permitting it to expend large sums in reliance upon its contract with the borough council, may well be held to bar his right to recover in a court of equity.

In 2 Pomeroy on Equity Jurisprudence (3d ed., 1905), sec. 817, it is said: “Acquiescence in the wrongful conduct of another by which one’s rights are invaded may often operate, upon the principles of and in analogy to estoppel, to preclude the injured party from obtaining many distinctively equitable remedies to which he would otherwise be entitled. This form of quasi estoppel does not cut off the party’s title, nor his remedy at law; it simply bars his right to equitable relief, and leaves him to his legal actions alone. . . . The equitable remedy to which this quasi estoppel by acquiescence most frequently applies is that of injunction, preliminary or final, when sought by a proprietor to restrain a defendant from interference with easements, from committing nuisances, from trespasses, or other like acts in derogation of the plaintiff’s proprietary rights.” In 1 High on Injunctions (4th ed., 1905), sec. 643, it is said, “As in all cases of the exercise of the strong arm of equity by injunction, the right to the relief may be lost by one’s own negligence and delay in seeking protection.” As an instance of the application of the rule, the author says (sec. 618): “Where a property owner, who seeks to enjoin a railway company from using its tracks upon a street in front of his premises, has permitted the company to expend large sums of money in the construction of its track, and has acquiesced in their use for a considerable number of years without objection or complaint, such acquiescence will deprive him of relief by injunction regardless of what his original equities may have been.”

The general principle is thus stated in 16 Am. & Eng. Ency. Law (2d ed.), 356: “A suitor who by laches has made it impossible for a court to enjoin his adversary without inflicting great injury upon Mm, will be left to pursue his ordinary legal remedy. TMs rule is especially applicable where the object of the injunction is to restrain the completion or use of public works, and where the granting of the injunction would operate injuriously to the public as well as to the party against whom the injunction is sought.

In the present case there can be no question but that the interest and safety of the public require that such a dangerous grade crossing over so many tracks, should be abolished. As Mr. Justice Dean said in Penna. R. R. Co. v. Bogert, 209 Pa. 589 (p. 598): “The policy of the commonwealth and this court with reference to grade crossings has been frequently and in no unc'ertain terms ahnounced. It is, that the murderous grade crossing must go.”

Under the well-established principles of equity jurisprudence, as above noted, we think the court below was justified in refusing an injunction and in leaving appellant to his remedy at law. The assignments of error are all dismissed, and the decree of the court below is affirmed.