Enterprise Transit Co. v. Hazelwood Oil Co. , 1902 Pa. Super. LEXIS 196 ( 1902 )

Opinion by

Beaver, J.,

Plaintiff is the owner of lot 162 and defendant the owner of lot 163 in warrant 4008 in the township- of Foster, in the county of McKean. “ By stipulation between counsel for the respective parties, it is admitted that the legal title to lot 162 is in the plaintiff and to lot 163 in the defendant.” The southern boundary of 162 is the northern boundary of 163. Defendant bored an oil well in the neighborhood of this boundary line. Plaintiff claimed that it was north of the defendant’s northern line and defendant, that it was south of plaintiff’s southern line. No artificial boundary was shown upon the ground. Where was the true boundary line? This was a question of fact found by the jury in favor of the plaintiff. For the purposes of this case, therefore, we must assume that the well was upon the land of the plaintiff.

1. After the defendant, or its vendor, put down the well upon the land of the plaintiff, it continued to pump oil therefrom and, after doing so for a number of years, abandoned the well, “ pulled the casing ” and removed the machinery from the premises. The plaintiff, after the removal, erected a wire fence along at least a portion of the line which divides the two lots belonging to the plaintiff and defendant respectively. The defendant now alleges that the plaintiff had no such possession of lot 162 at the time this suit was instituted as entitled it to maintain the action. “ To enable a plaintiff to maintain this action, he must have the possession, actual or constructive, of the close which he alleges has been invaded. If the land entered by the trespasser is unimproved, possession will be presumed to accompany the title and this constructive possession will support an action. If the land is improved, that fact shows that it is in the actual possession of some one. In such case the plaintiff cannot rest on his title but must show his possession: ” Wilkinson v. Connell, 158 Pa. 126. The plaintiff does not show, it is true, an actual foothold or pedis possessio. Neither of the tracts of plaintiff or defendant seems to be actually improved in the sense in which that term is ordinarily used. Both were used for oil purposes and both had wells upon them. It is to be presumed, therefore, when the defendant abandoned his well and removed his machinery, bis possession of the plaintiff’s land ceased and that the plaintiff re-entered into the possession of the portion of the land which had been invaded by the defendant; but, when we add to such a presumption the actual building of a fence, the plaintiff must be held to have re-entered upon the possession of his land to the line thus indicated and this, it seems to us, would be sufficient to maintain the action. “ The general rule undoubtedly is that to maintain trespass quaere clausum fregit there must have been an actual possession in the plaintiff when the trespass was committed or a constructive possession in respect of the right being actually vested in him, the ground of the action being the injury to the possession. This doctrine does not apply in all cases in this country for, as an actual entry into wild and uncultivated land would give no notoriety of the possession or the change of property, it- is declared to be impracticable and an utterly useless thing and, of course, a plaintiff may maintain trespass in such cases, without actual possession of the premises, without ever having made an entry upon the land, for not to give him such a right would be to expose his possession to serious and destructive injury, without any adequate remedy or redress, for, if he is seized of a lawful estate by inheritance or in fee, the law presumes that he is rightfully in possession to the extent of his boundary and his seisin is not confined to his mere occupancy of actual cultivation ; but, if he enters without title, he is then confined by metes and bonds strictly to his actual possession.” See cases cited in note, 3 Blackstone’s Commentaries, Lewis’s edition, 210.

The plaintiff was undoubtedly in constructive possession of the premises, until that possession was invaded by the defendant, and, when the latter rvithdrew and the plaintiff reasserted its possession, it was not necessary to restore the plaintiff’s possession by an action of ejectment. “ Possession of the locus in quo of a trespass is the test of the right to sue for it. For an injury to wild land the owner may maintain an action by showing his title to it, but this is on the principle that the law gives him a constructive possession. When another person has the actual occupancy, the exhibition of a paramount title is not sufficient to sustain trespass either against the disseisor or against anybody else. The right of the true owner to the use and profits of the land is suspended, until he regains possession, either by an entry or under a legal judgment: ” Caldwell v. Walters, 22 Pa. 378. The right of re-entry is here distinctly recognized as it is in other cases. The re-entry of the plaintiff, therefore, which was not disputed, was sufficient and its right to maintain the action is, therefore, complete.

2. Is the plaintiff estopped from making its claim for damages ? The defendant thus states the question in this behalf: “ Where plaintiff saw the defendant’s predecessors in title drill the well on land in dispute and knew the location of the line or had the means of knowing its location and acquiesced in the drilling and operation of such well until the well was purchased by defendant, and thereafter for a period of about fifteen years, is it not estopped from now claiming damages by reason of said acts ? ” The elements of estoppel by conduct are thus stated in Bigelow on Estoppel, 5th ed., 569: “ (1) There must have been a representation or concealment of material facts. (2) The representation must have been made with knowledge of the facts. (3) The party to whom it was made must have been ignorant of the truth of the matter. (4) It must have been made with the intention that the other party would act upon it. (5) The other party must have been induced to act upon it.” Admitting that the plaintiff was bound to know where his line was, was it not equally incumbent upon the defendant, or those under whom it claims, to know the line? The knowledge was presumably the same in both cases. It is plain, therefore, that a material ingredient in estoppel of this kind is wanting, namely, the knowledge, on the one side, and ignorance on the other. Silence, under the circumstances, was not a misrepresentation as we view it and the plaintiff certainly did nothing which induced those under whom the defendant claims to drill the well and pump oil therefrom.

3. The market value of the oil removed from the well in question for six years immediately preceding the time of the bringing of the suit was agreed upon as $824.95. The jury found for the plaintiff this exact amount. It is, therefore, evident that they allowed nothing for the destruction of the well or for the injury done to it by reason of its having been “pulled.” The question as to the.right to recover for damages for the pulling of the well is, therefore, immaterial.

4. We find no error in the rulings of the court in regard to the admission of testimony contained in the first and second assignments of error.

Upon a consideration of the whole case, we see nothing which would justify a reversal.

Judgment affirmed.