Richards v. Buffalo etc. R.

Opinion,

Mr. Justice Sterrett:

It was admitted that on and prior to February 2, 1866, Samuel Pew owned in fee a tract of land including the strip in controversy, and that under him, as a common source of title, both parties to this action of ejectment, respectively, claim and defend. The evidence shows that on that day Samuel Pew, by articles of agreement, transferred a part of said tract to his sons Joseph Y. and A. Preston Pew; that, by sundry mesne conveyances, a portion of said last-mentioned tract, including the land in controversy, became vested in Elizabeth Cousins October 8,1870; and that she was in possession thereof from that time until May 12, 1884, when she conveyed the same in fee to Anna R. Cousins, now Anna R. Richards, the beneficial plaintiff below. That evidence made a clear prima facie case in her favor, and entitled plaintiffs below to a verdict.

The railroad company, defendant, tfipn gave in evidence a grant of right of way over the land in controversy to the New Castle & Franklin Railroad Company, its predecessor, executed by Samuel Pew March 26,1874, and also introduced testimony to prove what occurred at and about the time the right of way was granted. The character of that evidence is sufficiently indicated by the points for charge submitted by defendant below. Its purpose was to show that Elizabeth Cousins, from whom the beneficial plaintiff directly derived title, was estopped by her action at and about the time the right of way was executed by Samuel Pew, and that the beneficial plaintiff took title with knowledge of the facts constituting the alleged estoppel.

It clearly appears that the New Castle & Franklin Railroad Company, predecessor of defendant company, entered upon the land in controversy, and constructed its road, under and in pursuance of the grant aforesaid. There was no evidence tending to show that the land was appropriated for railroad purposes, by either company, by virtue of its charter powers, or otherwise than under the grant of right of way. In other words, unless defendant company had a right of possession under the alleged grant, in connection with facts sufficient to constitute an estoppel, plaintiffs below were entitled to recover.

The court was requested to instruct the jury as follows :

“ 1. That, the plaintiffs’ testimony having shown that Elizabeth Cousins was the owner of the land on which defendant’s road was constructed, at the time the same was appropriated by them for the purposes of their road and for ten or eleven years thereafter, there can be no recovery in this case, for tbe reason that, as shown by the evidence, the defendant company entered upon the land in controversy and constructed its road without opposition from the owner; and this being an appropriation of the land, the right of action, if any existed, was in Elizabeth Cousins, and not in the plaintiffs.

“ 2. If the jury find from the evidence in the case that Elizabeth Cousins was the owner of the land in controversy, at the time the same was appropriated by defendant company; that she was present when her father, Samuel Pew, settled the right of way with W. E. Loy, the agent of the company, and either authorized him to make said settlement, or afterwards by her silence permitted or encouraged the defendant to make valuable improvements upon the land, then she and those claiming under her are now estopped from setting up title, and there can be no recovery in this case.

“ 3. That, under the law and the evidence in this case, the plaintiffs cannot recover.”

The refusal of the court to affirm the first and third points, and the qualified affirmance of the second, constitute the first three specifications of error.

The first point was rightly refused, for the reason suggested in the learned judge’s answer thereto. As has already been remarked, there is no evidence that the land in question was appropriated for railroad purposes otherwise than under and in pursuance of the grant above referred to. That, in connection with the alleged estoppel, was the only ground of defence the company had. Failing in that, it follows that the company was wrongfully in possession, and the principle of McClinton v. Railway Co., 66 Pa. 404, and that line of case, applies. As to the third point, it would have been error to have affirmed it, because the evidence necessarily carried the case to the jury on questions of fact relied on by the company, and especially the facts constituting the alleged estoppel.

Instead of simply refusing or affirming the second point, without more, the learned judge answered it thus:

“ If you find from the evidence that, at the time the defendant and Samuel Pew made the contract shown by the instrument dated March 26, 1874, Elizabeth Cousins was present, and was aware that the railroad company, through its agent, Mr. Loy, was about to take the grant of a right of way .... over the land in suit, and encouraged the making of this contract either by her words or by her silence; that she thereafter permitted the railroad company to pay the consideration mentioned in the writing, and construct its road on said land, without disclosing to the railroad company the true state of the title, then she and her successors in title would be estopped from setting up her title as against defendant’s right of way, and the plaintiffs could not recover, unless you find that the agent of the railroad company had knowledge at the time of the title of Elizabeth Cousins. If you find that the agent of the company knew at the time he took the grant from Samuel Pew that Elizabeth Cousins was the owner of a part of the land embraced in the grant, and that the part in controversy here, there would be no estoppel. In other words, if the railroad company knew the truth, at the time they took the grant, the plaintiffs would not be estopped from showing the truth now. Thus explained, the request is affirmed.”

With the single exception of the explanation or qualification contained therein, the answer above quoted is substantially in the language of the point. The qualification complained of was not erroneous. If the railroad company, through its agent, Mr. Loy, knew Mrs. Cousins owned the land in controversy, it should have procured a right of way executed by her in'person, or by her duly constituted attorney in fact. Instead of doing so, it was guilty of the folly of accepting a grant from one who was neither owner of the land, nor the duly constituted attorney in fact of the owner. If the company actually knew the fact that Mrs. Cousins owned the land, how could it be deceived or misled by her alleged acts and declarations indicating the contrary ? And on what principle can she or her vendee be estopped from asserting and proving the truth of that fact ? If vitality can be thus infused into an unauthorized grant, it would be a very convenient way of circumventing the statute of frauds and perjuries. We think the learned judge was right in saying: “ If the railroad company knew the truth, at the time they took the grant, the plaintiffs would not be es-topped from showing the truth now.”

The. last specification, reciting extracts from the general charge, presents substantially the same question of estoppel. The learned counsel for appellant, referring to the general ■charge on that subject, says: “ We would not complain of these ■instructions, if there had been any evidence to warrant the ■submission to the jury.” The evidence that the company’s representative knew, at the time he procured the grant from Samuel Pew, that Mrs. Cousins owned the land in controversy may be slight, but it was proper for the jury. In appellant’s history of the case,. it is substantially conceded that, as the owner of the land she had purchased four years before, Mrs. Cousins was then in possession thereof. That of itself was at least constructive notice of her title. One of the witnesses also testified, in substance, that while Mrs. Cousins was participating in the negotiations at the time of the grant, Mr. Loy knew or understood that she owned the land, and in the presence of the witness asked her if she was willing to have Samuel Pew settle the matter for her. The testimony, it is true, was conflicting, but it was all proper for the consideration of the jury.

There is nothing in the record that would warrant a reversal of the judgment; but, while that is so, it would be inequitable, in view of all the circumstances, to permit it to be enforced without giving the appellant an opportunity of condemning the land, and acquiring the right of way in the manner prescribed by the act of assembly in such case made and provided. This can be done by ordering a stay of execution for sufficient length of time to enable the company to appropriate the land according to law.

Judgment affirmed; and it is ordered that upon payment of costs the execution be stayed for four months; and in the meantime the company, defendant below, may proceed to condemn the land, and acquire the right of way, according to law.