Boynton v. Hunt

• Decision Date: 14 October 1914
• Citation: 92 A. 153,88 Vt. 187
• Parties: BOYNTON v. HUNT.
• Court: Vermont Supreme Court

92 A. 153

88 Vt. 187

BOYNTON

v. HUNT.

Supreme Court of Vermont. Windham.

Oct. 14, 1914.

Exceptions from Windham County Court; Willard W. Miles, Judge.

Ejectment by D. A. Boynton against W. L. Hunt. Judgment for defendant, and plaintiff excepts. Reversed and remanded.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

O. B. Hughes, of Brattleboro, for plaintiff.

Barber & Barber, of Brattleboro, for defendant.

POWERS, C. J. The parties to this controversy own adjoining lots in the village of South Londonderry. In the summer of 1907, the defendant erected a building on his lot. He set his foundation wall about a foot from the line between the two properties, the location of which line was well known to both owners. When finished, the cornice of the defendant's building overhung the plaintiff's lot something like a foot at the rear, and about six inches at the front. The action is ejectment to recover possession of so much of plaintiff's property as is occupied by this cornice.

When the plaintiff was on the stand as a witness, he was asked by his counsel if he intended to use the land over which the building projected. An objection being made, he offered to show that he planned to erect a building on his land, and claimed that this was admissible on the question of damages. The testimony was excluded, and the plaintiff excepted. We have no occasion to examine the question thus presented, for the jury found for the defendant on the main question of liability, and so the matter of damages was not in the case; and the ruling, right or wrong, was quite harmless.

Subject to exception, the defendant was allowed to testify that it would be quite expensive to remove his cornice, and that its removal would disfigure his building. The plaintiff argues that this evidence was wholly immaterial, because it was the plaintiff's right that was being tried, and if that was established, the damage or inconvenience to the defendant was of no consequence. On the other hand, it is urged in support of the ruling, that the evidence was material, because it was necessary to show that the defendant would be damnified unless the estoppel, which was relied upon as a defense, was allowed. The facts testified to were perfectly obvious. It was just as apparent to the jury before the testimony was given as after that it would cost something to remove the cornice, and that its removal would injure the appearance of the building. The testimony could not have harmed, and the exception is unavailing. Niles v. C. V. Ry. Co., 87 Vt. at page 361, 89 Atl. 629.

As we have suggested, the defendant asserted an equitable estoppel, and this was his main defense at the trial. The plaintiff says that this defense is not available in actions of ejectment. While expressions to this effect are to be found in the books, the authorities are to the contrary. Shea v. Shea, 154 Mo. 599, 55 S. W. 869, 77 Am. St Rep. 779, and note; Kirk v. Hamilton, 102 U. S. 68, 26 L. Ed. 79.

The defendant gave evidence to show, and the verdict in his behalf has established, that the plaintiff, all the time the building and cornice were in process of construction, knew the location of the line dividing the lots, and that the cornice was being built in such a way as to overhang his property, yet made no protest or objection. And this, the defendant asserts, estops the plaintiff from now objecting, and bars the suit. The court charged the jury, in effect, that if the plaintiff was present when this building was being constructed, and knew where the line was, and that the cornice was being built out over his land, and made no objection, the defendant would have a right to understand that he consented to its construction, and he could not maintain his suit. To this the plaintiff excepted. The instruction was fatally defective. It omitted one essential element of an estoppel; it failed to call attention to the fact that, in order to make out an estoppel, it was necessary to show that the defendant had been misled by the plaintiff's conduct. Without this, there was no estoppel. Clement v. Gould, 61 Vt. 573, 18 Atl. 453; Pond v. Pond, 79 Vt. 352, 65 Atl. 97, 8 L. R. A. (N. S.) 212; Royce v. Carpenter, 80 Vt. 37, 66 Atl. 888; and many other cases.

If we were to treat the real question involved as a question of implied license, as we might if it would save...