Meigs's Appeal , 1869 Pa. LEXIS 208 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

The plaintiffs’ bill evidently proceeded on the ground of title. Its purpose was to restrain the agents of the United States from removing the buildings erected on the public common of York for military barracks and hospitals. These structures being put up by the United States for military purposes, and built of their own materials; the title to the materials must have been lost to the United States and vested in the plaintiffs before an injunction would be issued to restrain their removal. Hence the plaintiffs assume, that by the act of the United States, the buildings were annexed to the freehold; and thus the title to the materials passed out of them, and vested in the borough of York as trustees of the title to the common. The buildings were chiefly set upon posts let into the ground; and therefore the argument of the plaintiffs maintains that the question of fixture or not a fixture depends, not on the character of the foundation, but always on the question whether it is let into the soil. This is the old notion of a physical attachment, which has long since been exploded in this state. On the contrary the question of fixture or not depends on the nature and character of the act by which the structure is put in place, the policy of the law connected with its purpose, and the intentions of those concerned in the act. This subject has been so fully discussed in the recent case of Hill v. Sewald, 3 P. F. Smith 271, it is unnecessary to repeat what is there said.

The true question then is, Weré these .structures of the government incorporated into the realty ? We think they were not, and this is manifested by the entire character of the transaction, and the attending circumstances. And in the first place it was not the intention of either party that they should be annexed to the freehold. Evidently the authorities of the borough of York oannot be presumed to have so intended. - The grant from the proprietors of Springettsbury Manor to the burgesses and inhabitants of York of twenty acres of land was, — “ to be kept as an open common for ever for the use of said borough, and to and for no other use, intent or purpose whatsoever.” The borough authorities had no power to .assent to such erections, as permanent fixtures, and it was therefore clearly their duty to prevent their erection, if intended as such. Having made no objection and taken no steps to prevent it, they are entitled to the more favorable construction of their acts, that they knew and believed they were only temporary structures, for a casual purpose.

As to the United States the emergency and all the acts and measures of the government show that these were not permanent buildings to be occupied at all times, but were mere temporary structures to be used during the continuance of the war, or so long only as the necessities of the government made this location convenient for military purposes. It is very evident the United States intended no annexation to the freehold.

The nature and character of the structures are also to be considered. They were not improvements made for objects connected with the soil — neither intended to give value to it, nor to receive value from it. Their purpose was not different from that of the tents spread for the accommodation of the army, or its board huts used for winter quarters, the only real difference beings that these structures were intended for greater comfort, and a longer occupancy of the location.

The act is distinguishable from that of an ordinary trespasser. There was no intent to improve the ground, or to make it accessary to some business or employment. It was not an assertion of title in the soil, or of an intention to hold an adverse possession. Indeed there was not a single element in the case which characterizes the act of a tortfeasor, who annexes his structure to the freehold, and is therefore presumed to inténd to change the nature of his chattel and convert it into realty, and thereby to make a gift of it to the owner of the freehold. Neither the borough nor the United States looked upon the act in that light. The United States intended no dedication of the materials to the borough, and the borough expected none.

Herein it is that in equity the same principles apply that lie at the root of an estoppel. It is not estoppel in the ordinary sense which prevents an owner from claiming his own property, because he has done that which shuts his mouth to declaring his title. These materials never were the property of the borough, and therefore as owners they had no title to be estopped of. But the borough, by lying by and suffering the United States to put up the structures without objection, on a public common, where, as permanent buildings, they would be nuisances, is estopped from declaring that'the United States intended to annex their chattels to the freehold; from asserting that they were mere tortfeasors, to be treated as presumptively dedicating their property to the public. This, however, is the pivot on which the right to an injunction turns. The plaintiffs must convince us that in law and equity the United States have lost their title notwithstanding neither party intended there should be a gift of the chattels. They must stand in the attitude of one entitled in equity to appropriate these structures, and of whom it must be said he has done nothing to mislead or to encourage a belief that he has assented to the act. A license to use the land of another temporarily, may be inferred from circumstances. Thus a neighbor who enters to pay a visit cannot be treated as a trespasser. So a guest who enters an inn, or one who moors his vessel at a private wharf, to do business with the owner. And even a permanent right to the use of structures built on the land of another with his assent, may be acquired by the expenditure of money and labor: Lefevre v. Lefevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267. And it is said in Cook v. Stearns, 11 Mass. 533: “ Licenses to do a particular act do not in any degree trench on the policy of the law which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act which otherwise would he a trespass.” See also notes to Rerick v. Kern, 2 Am. Lead. Cases 514. There is nothing in the case to show express license, but the circumstances bear strongly on. the silence of the plaintiffs when they should have spoken out- The United States were engaged in a gigantic war, requiring all its means and the encouragement of all good citizens to suppress the opposition to their welfare and authority. Troops were constantly required to be raised and disciplined. York was within the theatre of war, and needed protection, the enemy coming up to her very door. Battles were fought near by, and none more than the citizens of York needed that the government should use all the means and appliances of war to preserve their lives and property. Can it be tolerated that now, when the enemy is defeated, and war is no more, that these citizens should claim the very property the government had used as part of the means necessary to their protection ? If equity has a conscience, it must revolt at this return for the services thus rendered by the common government.

This is an application to a court of equity, to use the arm of the law to restrain an unlawful act, on the ground that the removal of these buildings is an irreparable-injury. But surely this is not such a case. There is not any evidence that the United States have dedicated this property to the citizens of York, or that they have done any act which can justly forfeit their title to the property; and it is not the province of a court of equity to enforce penalties and forfeitures. . It is not necessary to invoke the power of eminent domain in this case, or any doctrines of necessity to override the rights of property., Equity will not interfere in such a case independently of these considerations.

The pro forma decree of the court below is reversed, and the plaintiffs’ bill is dismissed at their costs.