Kulp v. Bowen

• Decision Date: 01 October 1888
• Docket Number: 404
• Citation: 122 Pa. 78,15 A. 717
• Parties: D. R. KULP ET AL. v. SAMUEL BOWEN ET AL
• Court: Pennsylvania Supreme Court

15 A. 717

122 Pa. 78

D. R. KULP ET AL. v. SAMUEL BOWEN ET AL

No. 404

Supreme Court of Pennsylvania

October 1, 1888

Argued May 21, 1888

ERROR TO THE COURT OF COMMON PLEAS OF SNYDER COUNTY.

No. 404 January Term 1887, Sup. Ct.; court below, No. 8 September Term 1885, C.P.

On July 24, 1885, the defendants appeared to an action in debt sur estrepement bond brought by Samuel Bowen, Sylvester Bowen and Frederick Kline against Darlington R. Kulp, Curtis D McWilliams, William C. McConnell, Eli Keeler and John Hass. The defendants pleaded, nil debet, payment, payment with leave, etc.

At the trial on September 30, 1886, it was made to appear that on April 7, 1884, Kulp, McWilliams and McConnell, defendants herein, had brought an action of ejectment against Samuel Bowen and the others, plaintiffs herein, to recover a tract of about 400 acres of land known as the James Hepburn, and on filing a bond executed in accordance with the provisions of the act of April 11, 1862, P.L. 430, they caused to be issued against the defendants a writ of estrepement under § 2 act of April 2, 1803, 4 Sm. L. 89, to prevent the commission of waste by the cutting of timber trees upon the land described in the writ. The praecipe described the land by courses, distances and adjoiners, and alleged it to contain 400 acres and 60 perches, warranted in the name of James Hepburn, and that the defendants had it in their actual possession. The writ of ejectment followed the description contained in the praecipe, and the affidavit upon which the writ of estrepement was awarded, averred that the defendants were committing waste and destruction of and in the premises for which said action of ejectment was pending. The defendants in the ejectment, the plaintiffs in this suit were then engaged in cutting timber upon a tract which in truth was not the James Hepburn, but another, called the Samuel Bowersox. Subsequently, on March 25, 1885, the plaintiffs in the ejectment, the defendants in this suit, suffered a nonsuit in the ejectment, and the defendants therein then brought this suit on the estrepement bond referred to.

The plaintiffs offered to prove, in substance, their possession of a tract of mountain land, their operations thereon, and that they ceased therefrom upon the service of the writ of estrepement. The plaintiffs objected to the offer as incompetent and irrelevant unless it was proposed to show that the operations abandoned on the service of the estrepement were upon the lands described in the praecipe, writ of ejectment and writ of estrepement. The objection was overruled and evidence admitted.

Samuel Bowen, one of the plaintiffs, called on examination in chief:

Q. I show witness draft of the Samuel Bowersox tract as made by Daniel Weirick, dated April 26, 1883; will you be kind enough to look at that and state whether that represents your tract? A. Yes, sir. Q. Were those lines shown to you before you commenced operations? A. Yes, sir. Q. By whom? A. By Samuel Bowersox. He got Mr. Weirick, and Mr. Bowersox came along, and showed him where the corner was and he said he was such an old man he could not go along; this was on the corner here, on the Northeast corner, and we run up along here the first day and out to the top on the north line; this north line was not run because we thought it was not necessary as there was no timber along there. Q. You found the corners on each side? A. Yes, sir; I said I did not want to cut across the lines and I wanted Bowersox to show me the lines; this is the south line (indicating).

In the defendants' case an offer was made to prove by official copies of the original surveys and other competent evidence, in substance, that the plaintiffs' operations which ceased on the service of the writ of estrepement were upon lands not embraced in the James Hepburn tract described in the praecipe, writ of ejectment and writ of estrepement. The offer was objected to by the plaintiffs, objection sustained and evidence excluded.

The court, BUCHER, P.J., after reciting a history of the case, charged the jury:

The question for you to try is whether this estrepement bond has been broken and whether the present plaintiffs have suffered damages by reason of its breach. [The plaintiffs claim that they have suffered damages because the plaintiffs in the ejectment failed in their action against them and because they were prevented by the estrepement from cutting timber and because the estrepement was issued without right. Now to the extent that you find from the evidence that the plaintiffs were interfered with and prevented from operating on the lands described in the estrepement they are entitled to damages. You will bear in mind that the writ of estrepement restrained the defendants from cutting timber on the James Hepburn tract only. It did not apply to any other lands owned by the plaintiffs. You see the ejectment was brought for the James Hepburn and the writ of estrepement allowed them to cut timber anywhere under the sun except on the James Hepburn tract, according to the metes and bounds set out in the writs of ejectment and estrepement. It did not apply to any other land owned by the plaintiffs. If, therefore, the plaintiffs stopped lumbering operations on any lands other than the James Hepburn survey, it must have been through their own volition, because the writ of estrepement only restrained their operations on the James Hepburn tract. If, therefore, they ceased operations outside of the limits of that survey, it was voluntary and they cannot recover damages here. The plaintiffs in the estrepement having brought the action against the defendants for that survey, they declared of record that they were in possession of the same, according to the metes and bounds set out in the writ. The affidavit on which the estrepement is granted declares that the present plaintiffs had already cut and were still cutting timber and committing waste on the said James Hepburn survey. We charge you that this constitutes an estoppel in law, and that the defendants here cannot now defeat the claim of the plaintiffs, by evidence that the James Hepburn survey was not located where they said it was in the action of ejectment, or that the plaintiffs were not in the possession of the same at the time the ejectment was brought, and were not restrained from taking the lumber thereupon by the writ of estrepement. A party cannot be allowed to blow hot and cold in the same breath. The plaintiffs having asserted that the defendants were in possession and committing waste on the James Hepburn survey, they cannot now be permitted to defeat the action by proof that such was not the fact and that it lay in another locality.

The plaintiffs have given evidence that they were in possession of a tract in the name of Samuel Bowersox, surveyed originally in the warrantee name of Jacob Weidner and in his right, which according to their evidence, if believed, in no way comes in contact with or interferes with the James Hepburn survey. It looks to us that the bringing of the ejectment and the estrepement by the plaintiffs therein, was an assertion on their part that the defendants therein and the plaintiffs here were occupying lands covered by the James Hepburn survey, the superior title to which they claimed was in them, and that this action cannot be defeated by evidence that it lay elsewhere. You will understand that it cannot defeat the action entirely. Whilst this is so the plaintiffs were only restrained by the writ of estrepement from operating and lumbering on the lands described in the writ, and if they ceased to operate on other lands they cannot recover damages here for that. The plaintiffs have given in evidence the boundaries of the Samuel Bowersox tract held in right of Jacob Weidner, containing about 350 acres and upwards, and that they were operating on this tract and none other when the estrepement was issued; that they had a contract with Samuel Bowersox, the owner, for all the timber growing upon the land; that they had a saw mill erected thereon where they were working and manufacturing the timber standing upon the land into lumber, when they were interrupted and prevented from carrying on the work by reason of the estrepement issued by some of the defendants. This contract provided that the timber should be removed from the tract by them within a certain time, to wit: Between April 2, 1883, and April 2, 1885; that they had already cut and had lying upon the ground some lumber which they were prevented by the estrepement from taking away, as well as about six hundred thousand feet of standing timber, the period fixed by the contract for the removal having expired before the ejectment suit was terminated and the estrepement dissolved. Their contention is that during this period their hands were tied and they were prevented from operating on the land, and after the ejectment was decided that the period fixed by the contract for the removal of the timber had expired, and for this reason they suffered damages for the loss of what might have been made if they had not been interfered with.

We instruct you that the measure of damages will be the actual loss that the evidence shows that the plaintiffs have sustained by the issuing of this writ of estrepement. The plaintiffs claim that there were six hundred thousand feet of standing timber on the land that they could have removed and were prevented by the defendants, which would have been worth to them six dollars a thousand. In addition they claim about two thousand feet of oak and three thousand feet of pine lumber, and a quantity of hemlock, which was left on the land and they were...