General Realty Company v. Silcox

• Decision Date: 05 February 1925
• Docket Number: 11,930
• Citation: 146 N.E. 408,84 Ind.App. 451
• Parties: GENERAL REALTY COMPANY v. SILCOX
• Court: Indiana Appellate Court

146 N.E. 408

84 Ind.App. 451

GENERAL REALTY COMPANY v. SILCOX

No. 11,930

Court of Appeals of Indiana

February 5, 1925

Rehearing denied May 12, 1925. Transfer denied April 8, 1926.

From Marion Superior Court (A 18,425); Clinton H. Givan, Judge.

Suit by the General Realty Company against Sarah Silcox. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Samuel D. Miller, Frank C. Dailey, William H. Thompson, Albert L Rabb, Thomas D. Stevenson and Perry E. O'Neal, for appellant.

M. L Clawson, for appellee.

MCMAHAN J. Nichols, J., dissents.

OPINION

MCMAHAN, J.

Complaint by appellant in two paragraphs for an injunction. A demurrer to each paragraph having been sustained, appellant appeals. Both paragraphs were in substance alike and alleged: That in October, 1920, appellee and her husband, Schuyler C. Silcox, were the owners as tenants by the entireties of a certain lot in the city of Indianapolis; that on said day appellant and Schuyler C. Silcox entered into a written agreement, whereby the latter gave appellant the right to cause an extension to be added to the north end of a certain railroad switch then on said real estate and agreeing appellant should have the right to cross this track in the regular course of its business with empty or loaded cars of freight when necessary, and that appellant should pay Mr. Silcox one dollar for each car loaded or unloaded on its premises. It was also agreed therein that Silcox was to keep the track across "his" ground in repair so the railroad company would at all times be in position to serve the needs of appellant, the agreement to be binding on both parties, their heirs and assigns, until they mutually agreed to discontinue it. Silcox expressly warranted he was the owner of the real estate described in the agreement.

It is also alleged Mr. Silcox died August 4, 1921, and that appellee is now the owner of said lot; that since a date prior to the making of said agreement, appellant has been the owner of the two lots adjacent to and north of appellee's land, all of said lots being close to a certain railroad; that when said agreement was entered into, appellee knew that the contract was made and was informed as to its nature and contents; that appellant, in reliance upon such contract, and in anticipation that it would be able to operate railroad cars between its land and the railroad and over and across appellee's said land, it expended $ 50,000 in the construction of an industrial building; that the efficient use of such building for the purpose for which it is adapted requires that there be free access therefrom to the railroad and that cars be freely hauled over the switch on appellee's land; that any obstruction of the switch which will prevent such use will materially depreciate and almost destroy the usefulness of appellant's said building for any purpose; that appellee at all times knew appellant had and was constructing such building largely in reliance upon said contract and on the faith thereof had expended great sums of money; that appellee knew that the money expended by appellant in the construction of such building would result in a material loss to appellant if it should thereafter be deprived of the right to run cars over said switch; that appellant expended $ 2,000 in extending said switch and thereafter transported cars over the same; that in August, 1922, appellee notified appellant it could not thereafter move any cars over said switch on her land; that later, appellee placed a gate across such switch and on her land and locked the same so that appellant was not able to use said switch; that appellant had no way to and could not acquire access to the main railroad except over appellee's land. It also alleged that appellant paid Silcox one dollar for each car loaded or unloaded and hauled over said switch, and that, after his death up to November 1, 1921, it paid appellee one dollar for each car so hauled over said switch since the death of Silcox, except that since November 1, 1921, appellee has demanded three dollars per car and refused to accept one dollar per car, which appellant was ready and willing to pay. There was a prayer that appellee be perpetually enjoined from doing anything to prevent appellant from transporting cars over said switch.

Appellant, recognizing the peculiar nature of an estate by entireties and the law applicable thereto, states its claim for a reversal as follows: "Admitting the ordinary inability of one tenant by entireties to convey or incumber the entirety property or defeat the right of survivorship of the other tenant, appellant relies upon the allegations of said paragraphs concerning appellee's full knowledge of the facts, her acquiescence in appellant's expenditure in reliance upon the contract when she knew the fact, and her acceptance of the money paid under the contract as estopping her to interfere with appellant's use of the tracks."

Before entering upon a discussion of the allegations of the complaint, it may be well to call attention to some of the elementary principles of equity jurisprudence, and ascertain, not only the necessary elements in so far as the person sought to be estopped is concerned, but also the necessary elements which must be present in order to give the other person the right to claim an estoppel.

The essential elements of estoppel are: (1) There must be conduct--acts, language, or silence--amounting to a representation or a concealment of material facts; (2) these facts must be known to the party estopped at the time of said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him; (3) the truth concerning these facts must be unknown to the party claiming the benefit of the estoppel, at the time when such conduct was done, or at the time when it was acted upon by him; (4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon; (5) the conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it; (6) he must in fact act upon it in such a manner as to change his position for the worse. Pomeroy, Equity Jurisp. (2d ed.) § 805.

And the same author, in § 810, in discussing the ignorance of the truth by the party claiming the benefit of the estoppel, says: "The truth concerning these material facts must be unknown to the other party claiming the benefit of the estoppel, not only at the time of the conduct which amounts to a representation or concealment, but also at the time when that conduct is acted upon by him. If, at the time when he acted, such party had knowledge of the truth, or had the means by which with reasonable diligence he could acquire the knowledge so that it would be negligence on his part to remain ignorant by not using those means, he cannot claim to have been misled by relying upon the representation or concealment."

And in § 811, the author says: "In fact, it is only by means of the doctrine of estoppel that the original owner can be divested of his title in opposition to the rules of the law...