Mylius v. Koontz

• Decision Date: 31 October 1911
• Citation: 73 S.E. 319,69 W.Va. 621
• Parties: MYLIUS v. KOONTZ et al.
• Court: West Virginia Supreme Court

73 S.E. 319

69 W.Va. 621

MYLIUS v. KOONTZ et al.

Supreme Court of Appeals of West Virginia.

October 31, 1911

Submitted March 4, 1910.

Rehearing Denied Jan. 12, 1912.

Syllabus by the Court.

The principles of estoppel enunciated in Railroad Co. v Perdue, 40 W.Va. 442, 21 S.E. 755, Bates v Swiger, 40 W.Va. 420, 21 S.E. 874, Stone v Tyree, 30 W.Va. 687, 5 S.E. 878, Williamson v Jones, 39 W.Va. 231, 19 S.E. 436, 25 L. R. A. 222, Id., 4.3 W.Va. 562, 27 S.E. 411, 38 L. R. A. 694, 64 Am. St. Rep 891, 4 Am. & Eng. Dec. in Eq. 258, 371, and note, Atkinson v. Plum, 50 W.Va. 104, 40 S.E. 587, 58 L. R. A. 788, Hanly v. Watterson, 39 W.Va. 214, 19 S.E. 536, and Pomeroy Eq. Jur. § 907, applied to the facts in this case.

Appeal from Circuit Court, Randolph County.

Bill by Charles E. Mylius against Jacob Koontz and others. Decree for plaintiff, and defendants appeal. Reversed, and bill dismissed.

C. H. Scott, H. G. Kump, S. T. Spears, and Mollohan, McClintic & Mathews, for appellants.

W. B. Maxwell, for appellee.

MILLER J.

The injunction, which the court below, by its final decree, of August 5, 1909, refused to dissolve, in accordance with the prayer of the bill, enjoined defendants, Jacob Koontz, E. F. Phillips and John Stamm, their servants, agents and employees, from severing and removing any timber whatever from either lots number 14, 15 and 21, and especially from number 14 and 15, of the subdivision of the Phillips and Law survey, of nineteen thousand acres, as platted by David Goff, commissioner of forfeited and delinquent lands for Randolph County, in 1840.

The plaintiff's claim of title to these lands, particularly to lots 14 and 15, is the same as that relied on by him in Mylius v. Raine-Andrew Lumber Company, an action for damages for cutting timber, in which the judgment below in his favor was reversed by this court, and the case remanded for a new trial. -- W.Va. --, 71 S.E. 404.

The defendants, Koontz, Phillips and Stamm, claim title to 411.8 acres, part of the land in controversy, by deed from their co-defendant, Thomas J. Arnold, and Eugenia H., his wife, dated November 12, 1906. Their title to the four other tracts involved they derived as follows; a half undivided interest therein, by deed from said Thomas J. Arnold and wife, and Elizabeth E. Arnold, executrix, etc., dated November 14, 1906; the other undivided half interest therein, they obtained from Charles R. Durbin and wife, by deed dated November 27, 1906. The object of the bill is not to try the legal title to these lands, but to maintain a status quo, until the legal title can be adjudicated in a suit in ejectment which the bill alleges plainttiff has brought and has pending against defendants.

As we view the case presented by the pleadings and proofs, it is wholly unnecessary to enter upon any consideration of the conflicting legal titles to these lands. The decree appealed from, though modifying the injunction in certain particulars, not necessary to notice, in effect, overrules the motion of defendants to dissolve the injunction as modified. This, then, is simply an appeal from an order refusing to dissolve the injunction. The decree in terms specifically provides that: "Nothing in this order shall be construed as settling the rights of the parties as to matters in controversy relative to lots No. 14, No. 15 or No. 21, but all rights of the parties relative to said lots are reserved for the future order of the court."

The real and only question presented for decision, therefore, is not whether the plaintiff, as against Thomas J. Arnold, has the better legal title to the lands in controversy, but whether, as defendants allege in their answers, he is stopped by his contract, or his conduct, or by both, from denying their title to these lands, and from intervening by injunction to stop them from cutting the timber thereon.

The facts pleaded by respondents are not denied, but admitted by plaintiff; that in the spring of 1907, some months after Koontz, Phillips and Stamm had obtained their deeds for these lands, and had begun building their mills and houses, preparatory to cutting the timber, Mylius notified them of his claim, and not to cut or remove the timber. This interference of Mylius was at once brought to the attention of Arnold, who a day or two afterwards met Mylius in the law office of Arnold's son at Elkins, Stamm being present, where Mylius and Arnold, as they both admit, verbally agreed on a settlement of their differences, as Arnold claims, on the terms of a prior agreement in writing between them, made in 1904. Stamm, though present, or nearby, claims not to have heard the full terms of this agreement; but he says, as both Mylius and Arnold admit, that they then notified him that they had settled, and that he and his co-partners were free to go ahead with their operations. Arnold's testimony in reference to this agreement in substance is, that Mylius and he had a previous written agreement about this 411.8 acres, and that he supposed it was settled; that when Mylius made objection to the operations of Koontz, Phillips and Stamm they came to him about it, and that he and Mylius talked the matter over again and had a further understanding, satisfactory to him, namely, using his language, that "in event any of this land was determined to be his, I was to pay Mr. Mylius the price per acre for that that was uncut, and for that part of the land that Mr. Mylius had cut over, I was to give him other land of equal value in place of it. That was about the agreement between us, and that's what they came to see me about. The agreement was satisfactory between Mr. Mylius and myself."

The agreement in writing of 1904, referred to by the witness and exhibited with his evidence provides, in substance, that if in the suits of Arnold against the Raine-Andrew Lumber Co. and Mylius against the same company it should be found that the northern line of lot No. 14, of the Phillips and Law survey, is the same as what is known as the Kupfer line; or wherever the northern line of said lot No. 14, and the northeastern corner of lot No. 15, should be located in said suits, then, in consideration of one dollar, in hand paid, and the covenants thereinafter set forth, Mylius agreed to release to Arnold all his claim to the land north of the Kupfer line, and east of three beeches, or east of wherever said corner of lot No. 15, might be located, and north of a line extending from where said corner might be located by said...