Cautley v. Morgan.
| Decision Date | 29 March 1902 |
| Citation | 51 W.Va. 304 |
| Parties | Cautley v. Morgan. |
| Court | West Virginia Supreme Court |
C. and M. & H. owned adjoining lots. C, desiring to build a business house on her lot and to make a party wall, an agreement in writing was entered into providing mat such wall should be built to extend over on the ground of M. & H. ten inches only. C. without invoking the aid of M. & H. to assist in locating the division line or notifying them when she proposed to locate it, fixed the line herself with the aid of the city engineer and built the wall completing it in 1893, and in 1899, when M. & H. desired to nse the wall, they discovered it covered six inches more of their ground than was allowed by the contract. Held: That equity will not enjoin an action of ejectment by M. & H. against C. to recover possession of the said strip of six inches so built upon.
There can be no acquiescence without knowledge, (p. 307).
Mere silence or some act done where the means of knowledge are equally open to both parties does not create an estoppel in pias. (p. 307).
Silence will not estop, unless there is not only a right but a duty to speak, (p. 308).
Appeal from Circuit Court, Kanawha County.
Suit by Lucy R, Cautley against Benjamin S. Morgan and others. Decree for plaintiff, and defendants appeal.
Reversed.
Benjamin S. Morgan and Moli.oiian. MoClintic & Matthews, for appellants.
Payne & Payne, for appellee. McWhorter, Judge:
B. S. Morgan and J. II. Hiding being the owners of a twenty-two foot lot on Quarrier street in the City of Charleston, and Lucy R. Cautley, wife of R, K. Cautley, owning an adjoining lot, and, said Cautley being desirous of building a party wall between said lots for a business house on her lot, on the 4th day of August, 1892, the parties entered into a written agreement for the building by said Cautley of such party wall of a three story brick building then about to be erected by said Cautley, by which agreement it was provided that said party wall should extend over for the entire length of said wall ten inches upon the ground of Morgan and Huling and as much further as might be necessary for foundation purposes only, but the brick Avail should extend over upon the land of Morgan and Huling only ten inches and it was provided that Morgan and Huling, their heirs, vendees and successors in ownership should have the right to build, to use and join on and own one-half of said party wall for any distance they might elect upon the payment to Lucy R. Cautley, her heirs, vendees or successors in ownership of the actual value at the; time and to the extent thereof, of so much of said party wall as was built upon the lauds of Morgan and Hiding, and, in case they should not agree upon the then value of such party wall as should be upon their land and desired to be used by them, that the value should be determined by arbitration in the usual manner. In building said wall Cautley, by mistake, built six inches further on the land of Morgan a, nd Huling than was provided for in the contract. The wall was completed in the year 1893. In the fall of 1899 Morgan and Huling, desiring to use the Avail by putting up a temporary building on their lot, discovered the mistake made by Cautley in building loo far on their land. They notified Cautley of the fact and some correspondence took place between the parties with reference to an adjustment of the matter, hut no agreement was reached and at the May Rules, 1901, Morgan and Huling brought in the circuit court of Kanawha County their action of ejectment against Cautley to recover their said land.
Lucy E. Cautley filed her bill in the circuit court of Kanawha County praying for an injunction against the prosecution of said action of ejectment and from cutting away any part of said party wall and that Morgan and Huling be decreed to pay plaintiff for the use of said party wall according to the original agreement of August 4, 1892, and the subsequent agreement by correspondence made in the latter part of the year 1899, and to make such decrees and orders that might be necessary to affectuate justice between the parties, and for general relief. An injunction was accordingly granted plaintiff until the further order of the court. Defendants appeared and filed their de-murrer and answer. The cause came on to be heard on the 15th of November, 1901, upon the bill, the demurrer and answer and replication thereto, and upon the defendants' motion to dissolve the injunction. The court overruled the demurrer and refused to dissolve the injunction, from which decree the defendants appealed and for assignment say the court erred in overruling the demurrer to the bill and also in refusing to dissolve the injunction upon the defendants' motion. There was no evidence taken in the cause and. the same was heard solely on the pleadings, the bill and answer being sworn to.
The title; of the defendants to the lot in question is admitted by plaintiff, who disclaims any interest therein except her interest in the wall built thereon. It will be seen by the agreement in writing that the brick wall should extend, over upon the land of Morgan and Huling only ten inches. Plaintiff undertook, without any notice to the defendants, to locate said line which is claimed to have been done with the assistance of the City Engineer, and built the wall on such location, and it is claimed and seems to be tacitly admitted that the wall is built sixteen inches on the land of the defendants instead of ten inches as provided in the contract, and defendants claim that the wall is only sixteen inches wide instead of twenty inches as it was to have been as they claim under the contract. The bill does not allege that defendants had any actual knowledge of plaintiff's encroachment upon their lot prior to the time that they claim to have discovered it, in the fall of 1899 when they desired to use the wall in the construction of a temporary building. The bill does allege that the defendants acquiesced in the location, but not that they knew of such improper location. It appears from the bill that plaintiff undertook alone, and without invoking the assistance of the defendants, to make the location, and says she used every effort to get the location right. And defendants aver in their answer that they had no knowledge of the improper location until they undertook to use the wall in November, 1899. It is not claimed by plaintiff in her bill that defendants were called upon to take any part in the location of the line nor given notice of her action in making her measurements Avith the assistance of the engineer. The bill alleges an agreement between the parties that the defendants were to pay a sum of money for the use of the wall while using it temporarily, which she prays may be paid to her by the defendants, but this agreement is denied by the answer of defendants, and the exhibits filed with the bill and answer relating to such compensation do not shoAV an agreement to pay any particular sum. The written agreement of August 4th does not specify in terms how thick the Avail should be, but it Avould seem to be understood that it Avas to be twenty inches, the same providing that it should be ten inches from the line on the land of defendants the fair presumption is that the meaning and understanding was that it should be ten inches on the side of the plaintiff also from the line. If it was so built and it has been, by mistake as alleged, placed six inches too far on defendants' land then four inches of the wall stands upon the land of the defendants. If the encroachment is as claimed and the Avail is only sixteen inches thick, then the Avail stands wholly on the land of the defendants. In Blodgett v. Perry, 97 Mo. 263, 10 Am. St. Rep. 307, it is held to constitute an estoppel in pais "there must be a false representation or concealment of known material facts, made to a party ignorant of their truth or falsity, and made; Avith intent that the latter party would act upon them, and he must have so acted upon them." And it is there further held: "Mere silence or some act done where the means of knowledge are equally open to both, parties does not create an estoppel in pais" And in Estis v. Jackson, 111 N". C. 145, 32 Am. St. Rep. 784, it is held: "To create an estoppel in pais there must be some conduct of the party, against whom the estoppel is alleged, amounting to a representation or conceal- merit of material facts, and when everything is equally known to both parties, although they are mistaken as to their legal rights, no estoppel arises." Brant v. Coal & Iron Co., 93 U. S. 326; Liverpool Wharf v. PrescoU, 7 Allen (Mass.) 494; 2 Her. on Estop., s. 1062; 2 Pom. Eq. Jur., s. 809; 11 A. E. E. L. 421-432; Brewer v. Railroad Co:, 5 Mete. 478. In which last case A. and B. had a parol agreement on a line between them, which did not agree with the true line but they afterwards held possession by the agreed line. B. sold his land to C. Before the sale A. stated to C. that he (A.) claimed by the agreed line between him and B. and did not claim beyond that line. C. purchased and made improvements on the land next to the agreed line with the knowledge of A., who was often present and pointed out said line expressing no dissent to C. proceeding or giving notice that he had any claim to said land. A. afterwards discovered that the agreed line was not the true line and that C. was in possession, as B. had been, of land which according to the true line belonged to A. lie brought his action against C. to recover the land between the true line and the agreed line. It was Held: "That A. was not estopped to claim this land of C.. as he had acted under a mere mistake without fraud or gross negligence." In that case A took an active part in fixing the line where it should not...
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