Acton v. Dooley

• Decision Date: 10 December 1878
• Parties: EDWARD ACTON, Appellant, v. WILLIAM DOOLEY, Respondent.
• Court: Missouri Court of Appeals

6 Mo.App. 323

EDWARD ACTON, Appellant,

v.WILLIAM DOOLEY, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 10, 1878.

A. and D. owned adjoining lots in a city addition. D. had his lot surveyed by the surveyor who laid out the addition, and commenced to build his house up to the western boundary-line. A., relying upon D.'s survey, measured off twenty-five feet westward, and built up to his western boundary-line, finishing his house months before D. finished his, and, by permission, used D.'s fence for the eastern wall of his coal-shed. Eight years afterward, A. discovered that D. encroached upon his lot four inches, and commenced an action of ejectment. Held, that these facts constitute an estoppel, and that A.'s ignorance of the true line was immaterial, the question being one of estoppel by acts in pais.

APPEAL from St. Louis Circuit Court.

Affirmed.

FRANKLIN FERRISS and FISHER & ROWELL, for appellant: Estoppel.-- Boggs v. Merced, 14 Cal. 367; Glidden v. Strupler, 52 Pa. St. 403; Hill v. Epley, 31 Pa. St. 334; Taylor v. Zepp, 14 Mo. 482; Knowlton v. Smith, 36 Mo. 507; Bales v. Perry, 51 Mo. 449; Smith v. Hutchinson, 61 Mo. 83.

LUCIEN EATON, for respondent: Estoppel.-- Hart v. Giles, 7 Cent. L. J. 47; Soward v. Johnston, 65 Mo. 102; Melton v. Smith, 65 Mo. 315; Slagel v. Murdock, 65 Mo. 522; Betts v. Brown, 3 Mo. App. 20; Turner v. Baker, 64 Mo. 218; Dibble v. Rogers, 13 Wend. 539; Collins v. Rogers, 63 Mo. 515; Evans v. Snyder, 64 Mo. 516; Morgan v. Railroad Co., 96 U. S. 716; Major v. Rice, 57 Mo. 384; Allen v. Sales, 56 Mo. 28; Hamilton v. West, 63 Mo. 93; Thomas v. Pullis, 56 Mo. 211; Dolde v. Vodicka, 49 Mo. 98.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff is owner of lot 5 in city block 950, having a front of twenty-five feet on the north side of Carr between Twentieth and Twenty-first Streets, in the city of St. Louis. Defendant owns lot 4, which adjoins plaintiff's lot on the east. Defendant's lot was owned in 1866 by Michael Lynch, who then built on it a three-story dwelling, at an expense of more than $13,000. In 1872, Lynch sold and conveyed to the defendant, who now resides on the premises. The addition in which these lots lie was originally surveyed and laid out in blocks and lots by William H. Cozzens, surveyor. When Lynch was about to build, he got Cozzens to survey and mark out the lines of his lot, and thereupon laid his foundation up to the western boundary-line thus established. He also built a fence on the same line to the alley in the rear. Before the superstructure of the house was begun, the plaintiff, having recently purchased lot 5, measured twenty-five feet westwardly from Lynch's foundation-wall, and there establishing his own western boundary, built up to it the dwelling in which he afterwards resided. There was a space of about three feet between plaintiff's east wall and the west wall of Lynch's building. The plaintiff, in thus fixing the dimensions of his lot, acted upon advice that he would thus save the expense of a survey by Cozzens which would only give him the same result. This was in the year 1867. Plaintiff's house was finished and occupied several months before that of Lynch. Plaintiff built a coal-shed on the rear part of his lot, using for its eastern wall the fence of Lynch by his permission. In 1875, the plaintiff first learned, from a survey made by Julius Pitzman, county surveyor, that the west line of defendant's occupancy was four inches too far west, and that the west wall of his own house encroached to the same extent on the lot of his neighbor on the west. He informed defendant of the discovery, and, failing to obtain a satisfactory settlement of the difficulty, instituted this suit in ejectment for possession of the strip four inches wide covered by the defendant's west wall and fence. The cause was tried before the court sitting as a jury, and judgment was rendered for the defendant.

By the shape in which the record comes before us but one question is presented for our examination. No exceptions were saved to the admission or exclusion of testimony. The defence of limitation was cut off by an instruction given for the plaintiff. There was a direct conflict in the testimony touching the location of the true dividing-line; and as the court declared the law to be that if the strip of ground sued for was within the limits of defendant's lot, according to the original monuments and landmarks of the location, then the plaintiff could not recover, the issue on that point is settled, and the finding of fact is beyond our review. From the instructions given and refused, it is apparent that the court found in the acts and omissions of the plaintiff an estoppel barring his recovery. Whether those acts and omissions were sufficient to create an estoppel, is the question to be determined.

Our attention is firstly drawn to the circumstance that when the plaintiff accepted and acted upon Lynch's location of the dividing-line as the proper one for their building arrangements the work upon Lynch's house was barely begun. Lynch was thus encouraged to go on and complete a costly structure upon ground which it may be presumed he would not have thus occupied if the plaintiff had then asserted the rights claimed in the present suit. Here are, primâ facie, the elements of an estoppel. The plaintiff, in accepting the result of the survey made for Lynch, said, in effect, “I adopt that survey as correct, and as fixing the dividing-line just where it would be found if a new survey were made at my expense. I am so well satisfied of its correctness that I will expend my means in building a house whose walls shall depend wholly on its accuracy to avoid an encroachment upon my neighbor on the west.” Neither language nor action could have more emphatically notified Lynch of the plaintiff's intention to abide forever by the dividing-line...