Lehman v. Murtoff , 7 Pa. Super. 485 ( 1898 )

Opinion by

Rice, P. J.,

The plaintiff claimed, and gave evidence tending to show, that, when the defendant purchased, and also at the time of the alleged trespasses, the division line between his lot and the defendant’s was marked by a fence, and that ixi the erection of his buildings the defexulant built across the line a few inches, and in doing so tore down a portion of the fexice that was still standing. The defexxse was, (1) that the buildings were built wholly oxx the defendant’s own land; (2) that the plaintiff was estopped by his acts from alleging the contrary. The learned trial judge said in his charge that the uncontradicted testimony showed that the cornice of the water-closet projected over the plaintiff’s lot, but left tbe question as to tbe location of tbe other structures with reference to the fence line to the jury. On reconsideration of the evidence upon the rule for new trial he thought he had stated the evidence as to the water-closet too strongly. It may be remarked, however, in vindication of what he said in his charge, that the defendant’s own surveyor testified that the roof projected over the line six or eight inches. But be that as it may, it is sufficient for present purposes to say, that there was evidence from which a jury might have found the facts to be as alleged by the plaintiff, and the question we have to consider is, whether with those facts found by the jury, as possibly they might have been, the instructions as to the law of estoppel were correct. These were drawn out by the plaintiff’s first point, in answering which the court referred the jury to the general charge for instructions as to what acts or conduct would estop the plaintiff. The court said: “ There is another important matter, however, for consideration, in case you determine that the defendant has built across the line, and that is, did the plaintiff by his acts and conduct mislead the defendant as to Iris right to do so ? The law upon this subject is, that if an owner of land stands by and sees another, under a claim of right, place improvements upon his, the former’s soil, without warning him not to do so, he will not afterwards be permitted to set up an adverse claim to the land so built upon; and, of course, this principle is also applied in a still stronger degree where the landowner has not only failed to warn the builder whilst the improvements were being constructed but has actually encouraged him to do the work.” In another portion of his charge he said: “If the plaintiff either encouraged the defendant to so build the water-closet, or stood by without making any complaint, and actually approved of the erection, he is estopped from now saying that the defendant had not the right to construct the roof and cornice of the water-closet over his lot.” The instruction particularly complained of is that embraced in the excerpt from the charge first quoted; and in order to narrow the question for discussion it should be noted, that as to all of the alleged encroachments excepting, possibly, the projection of the roof of one of the buildings, this general statement of the law was not modified or qualified in any way.

The decisions which hold that mere silence will estop, rest on the ground that the circumstances were such as to raise a duty to speak, and the failure to do so was either a fraud, or would work such an injury as would be equivalent to a fraud, if the party should not be estopped. In such cases knowledge of the party’s own rights creates the duty to speak where he sees the party in possession under a bona fide claim of right making expenditures in placing valuable improvements upon the land: Logan v. Gardner, 136 Pa. 588. Possibly this principle would be applicable here were it not for the undisputed fact that the fence line is the division line. The defendant has never claimed otherwise. If, therefore, without any acts or declarations of encouragement on the part of the plaintiff, he built across the line thus visibly marked upon the ground, he acted at his peril, and cannot say that the plaintiff ought to have warned him against doing what he knew he had no right to do. Especially would this be true, if, as claimed by the plaintiff, he removed or destroyed a portion of the recognized landmark.

Estoppel from mere silence cannot operate in favor of one who must be conclusively presumed to have known that he was a wrongdoer, and, therefore, could not have been misled. “ Notice is required to a man who acts bona fide, not to him who wilfully and obstinately persists in using that to which he has no title, or pretence of title, without giving or offering compensation for its use.” These are a few of the many cases in which this principle has been applied or distinctly recognized : Hepburn v. McDowell, 17 S. & R. 383 ; Hill v. Epley, 31 Pa. 331, 334; Woods v. Wilson, 37 Pa. 379, 383; R. R. v. Paper Mills, 149 Pa. 18.

We need not elaborate further. Neither of the plaintiff’s points was entitled to an unqualified affirmance. There was abundant evidence to go to the jury that the plaintiff positively encouraged the defendant to build as he did, and, if the qualification of the points had only embraced instructions to the effect that this evidence, if believed by the jury, was sufficient to raise an estoppel, no error would have been committed. But in giving instructions which might naturally be construed by an unlearned jury to mean that the failure to warn the defendant not to build over the division line known and recognizecl by both parties, might, alone, estop the plaintiff from afterwards asserting title to the land, the court went too far. We have no means of knowing to what extent this instruction influenced the jury in their verdict. It may have influenced them; therefore, we cannot say that the error was harmless. See Davidson v. Traction Co., 4 Pa. Superior Ct. 86, 93.

The judgment is reversed, and a venire facias de novo awarded.