Acton v. Dooley

• Decision Date: 31 October 1881
• Citation: 74 Mo. 63
• Parties: ACTON, Appellant, v. DOOLEY.
• Court: Missouri Supreme Court

74 Mo. 63

ACTON, Appellant,

v.DOOLEY.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.--This case is reported in 6 Mo. App. 323.

REVERSED.

Franklin Ferriss and Fisher & Rowell for appellant.

1. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up. 51 Mo. 449.

2. In order to estop appellant, it must appear that he did or said something that influenced respondent's grantor to locate or continue his improvements where they are. 72 Mo. 503; Eitelgeorge v. The Mut. H. B. Asso'n, 69 Mo. 52; Hill v. Epley, 31 Pa. St. 334; Commonwealth v. Moltz, 10 Barr 531.

3. Silence without knowledge works no estoppel; and if the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel. Dezell v. Odell, 3 Hill 215; Crest v. Jack, 3 Watts 240; Hepburn v. McDonnell, 17 S. & R. 383; Dessaunier v. Murphy, 22 Mo. 95; People v. Brown, 67 Ill. 437; The D. C. R. Co. v. The D. G. L. Co., 43 Iowa 301.

Lucien Eaton for respondent.

1. Plaintiff has but a trivial cause of action. The value of the land claimed does not exceed $25. He seeks to destroy a house costing $13,500. His claim is technical, stale and without merit.

2. The principle of estoppel in pais is designed for

the benefit of one who is misled to his prejudice; the injury to him is the same whether his informant deluded him through ignorance, mistake or willful misrepresentation. Hart v. Giles, 67 Mo. 175; Storrs v. Barker, 6 John. Ch. 166; Herman on Estoppel, 417, § 416; Miller's Appeal, 84 Pa. St. 391, (5 Cent. Law. Jour. 450).

3. Where the owner stands silently by for years, while the occupant is making lasting and valuable improvements on property, he will be estopped from afterward enforcing a claim. 63 Mo. 515; 65 Mo. 316; Morgan v. R. R. Co., 96 U. S. 716.

4. An agreement between adjoining owners fixing their common boundary, will be enforced by the courts, whether proved inferentially by long acquiescence or directly by expressed understanding. Betts v. Brown, 3 Mo. App. 20; 64 Mo. 218; 14 Mo. 482; 16 Mo. 273; 57 Mo. 384; Allen v. Sales, 56 Mo. 28; Huntsucker v. Clark, 12 Mo. 333; Hamilton v. West, 63 Mo. 93; Thomas v. Pullis, 56 Mo. 211; Dolde v. Vodicka, 49 Mo. 98; Lindell v. McLaughlin, 30 Mo. 28; 69 Mo. 52; Highley v. Barron, 49 Mo. 103; Dibble v. Rogers, 13 Wend. 539; Soward v. Johnston, 65 Mo. 102; Melton v. Smith, 65 Mo. 315; Slagel v. Murdock, 65 Mo. 522.

HENRY, J.

This is an action of ejectment, in which plaintiff seeks to recover a strip of land four and a half inches front on the north line of Carr street, in the city of St. Louis, by 155 feet in depth, which plaintiff claims is a part of lot number 5, in block 950. The petition is in the usual form, and the answer a general denial and the statute of limitations. There was a judgment for defendant, from which plaintiff appealed to the St. Louis court of appeals, where it was affirmed, and plaintiff has appealed to this court.

Plaintiff bought his lot, then unimproved, November 13th, 1865, and Lynch bought lot number 4, adjoining it on the east, in December, 1866. Desiring to build on his lot, Lynch had Cozzens to survey and ascertain its boundaries. Acton was not notified of, nor did he participate in, the survey. It may be assumed, so far as the question now before us is concerned, that by this survey a parcel of plaintiff's lot, four and a half inches wide, was encroached upon. Soon after it was made, without any consultation with Acton, or anything said or done by him, Lynch excavated for his cellar, and built the foundation walls of his house, the west wall of which we assume was four and a half inches on Acton's lot. At the time of said survey, there were no stakes or corner stones on either of said lots, or contiguous lots, indicating their boundaries, and Acton and Lynch were equally ignorant of the true line between them. After Lynch's cellar wall was built, and before he began to erect the superstructure upon it, Acton commenced to build a house on his lot, and, instead of having a survey made, located the west line of his lot by measuring twenty-five feet (the width of his lot) from Lynch's west wall, and completed his house before Lynch finished his. There is nothing in the testimony to show that Lynch knew how Acton ascertained his west line, or that Acton had built his house to the line ascertained as above stated. After Acton and Lynch had moved into their houses, Acton asked, and obtained permission of Lynch, to put a few boards on Lynch's fence, running north and south from the west wall of Lynch's house, and built a coal-shed, adopting Lynch's fence as the east wall of the shed. This fence was made about the time that Lynch's house was erected. It does not appear whether the coal-shed was built after or before the completion of Lynch's house, but it was after Lynch moved into it. It appears also, that sometime after the completion of the two dwelling houses, Acton complained to Lynch of the projection of the cornice of Lynch's house, two or three feet, over on Acton's lot, and it was removed. The circuit court and the court of appeals held, that on the foregoing facts, Acton was estopped from claiming the strip of land in dispute, and the correctness of that view, is the only question before us.

1. ESTOP PEL BY CONDUCT.

In Bigelow on Estoppel, 438, it is stated that: “The following elements must be present in order to an estoppel by conduct: 1st, There must have been a misrepresentation or concealment of material facts. 2nd, The representation must have been made with knowledge of the fact. 3rd, The party to whom it was made must have been ignorant of the truth of the matter. 4th, It must have been made with the intention that the other party should act upon it. 5th, The other party must have been induced to act upon it. The term ‘representation,’ is used for convenience. It is not necessary that there should have been express statements. The representation may be implied from acts, silence or concealment.” Again he says: “The rule is well settled, that if the representation containing all the foregoing elements has also been acted upon, the estoppel arises.” Ib., 492. “But unless the representation is acted upon, the estoppel cannot arise,” (Ib., 493;) and “it seems that it must be exclusively acted upon; at all events, there can be no estoppel where the party claiming one, is obliged to inquire for the existence of other facts, and to rely upon them also in acting.” Ib., 493.

In Herman on Estoppel, the doctrine is thus stated: “Before the party is concluded by an estoppel, it must appear, 1st, That he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title or the claim he proposes to set up. 2nd, That the other party has acted on the admission. 3rd, That the other party will be injured by allowing the truth of the admission to be disproved. When the acts and representations of the party must have influenced the other to do acts which he would not otherwise have done, and when a denial or repudiation must operate to the injury of such other party, the estoppel is created.” Page 337. Taylor v. Zepp, 14 Mo. 482; Bales v. Perry, 51 Mo. 449; Spurlock v. Sproule, 72 Mo. 509, recognize these general principles.

2. ______: agreements as to boundary lines: adverse possession.

Most of the cases relied upon by respondent, arose upon controversies between co-terminous proprietors respecting the line between them; and, where they were not lines established by agreement between the parties, in ignorance as to the true line, they were lines acquiesced in by both parties, and in reliance upon such acquiescence one of the parties had made permanent valuable improvements up to the line, and on the land in dispute. The former cases are frequently cited on the subject of estoppel, while, strictly speaking, they do not involve a question of estoppel, although frequently, but incorrectly, we think, placed in that class of cases. Turner v. Baker, 64 Mo. 218, belongs to that class. There, certain acts of co-terminous proprietors were held admissible as evidence to prove an agreement between the parties, which the law sanctions, by which a division line was established, both parties being in ignorance of the true line; but the facts were not held to be such as would create an estoppel. In many of the cases which have been decided on the ground of estoppel in pais, the facts, as in Turner v. Baker, might have been relied upon as evidence of an agreement, and the case might have been decided on that ground, as well as that of estoppel. In Knowlton v. Smith, 36 Mo. 512, it was said, that although parties agree upon a division line, under a mistake of facts, neither of them is precluded from claiming to the true line, unless the rights of innocent third persons have intervened; but Turner v. Baker announces a different doctrine, and one, which we think more in accord with reason and authority. The mistake of facts is the very element which makes such an agreement valid. If the parties are not mistaken as to where the true line lies, an agreement between them by which a different line is established, which gives a portion of the land of one to the other, would be void under the statute of frauds. The facts which will establish an adverse possession, are not to be confounded with those which will create an estoppel in pais, as seems to have been done in Knowlton v. Smith. Lynch's possession was certainly adverse to Acton, and had it continued long enough in him and his grantee, (the defendant,) would have barred a recovery...