#### Allegheny Valley R. R. Co. *v.*Colwell.

While silence on the part of a land-owner, or positive acts, towards a railroad compaiw, in acquiring an easement over his land, may possibly operate as an estoppel of an action of ejectment to assert the legal title, as against the easement, yet the evidence in this case was not sufficient.

Where the land-owner is passively derelict, by knowingly permitting the improvements, the court will order a stay of execution, for a certain time, so as to permit condemnation proceedings, and to prevent a forfeiture of the improvements.

*It seems,*that a corporation will be subject to the provision of the constitution of 1838, requiring previous payment or security for land-damages, in a case where an Act of Assembly was passed in 1837, authorizing the construction of a railroad in a certain time, and it expired by limitation, and an Act, subsequent to the constitution of 1838, revived the former Act.

Oct. 9, 1888.

Error, No. 176, Oct. T., 1888, to C. P. Armstrong Co., to review a judgment on a verdict for the plaintiff in an action of ejectment, by John A. Colwell, against the Allegheny Valley R. R. Co., at Sept. T.,1883, No. 232.

The writ claimed to recover about one-fourth of an acre, being land covered by the track of the defendant. Plea, not guilty.

On the trial, before White, P. J., defendant’s counsel offered to show the annual expenditures for the yearly repairs from the time of the original construction up to the time of the bringing of this suit, as evidence upon the question of estoppel, and that Mr. Col-well knew of the progress of the construction of the road and encouraged and acquiesced in it at the same time, as an item on the question of estoppel.

Plaintiff’s counsel objected to the offer as irrelevant and incompetent, and say they have no claim here for mesne profits, and that the defendant has had the use of the land during all these years.

The Court: “ As the case now stands, we do not think this would be competent, upon the question of estoppel, there being nothing before us showing an encouragement of Mr. Colwell to incur expenses for repairs, nor is there any question before us of profits in this case that would make it relevant for the reduction of the quantum' of the mesne profits claimed by reason of betterments made on the property, and therefore the objection is sustained.” Exception. [8]

Defendant’s counsel offered to prove the annual value of the expenses of that road upon this ground, that is, of the labor and material expended on the road.

Plaintiff’s counsel objects to the offer as irrelevant.

Whereupon the court asked the counsel if they propose to connect Mr. Colwell with that expenditure or that it was occasioned by his encouragement or made with his knowledge; whereupon the counsel reply that they do not, except so far as the testimony already offered may indicate; whereupon, the Court say, if this offer had been continued, with evidence other than that which is before us, to connect Mr. Colwell with knowledge of it or with encouragement of expenditures, year by year, the evidence would be pertinent; in *301the absence of that material evidence, we think the expenditure of so much per year in the way of repairs would not, in itself, be relevant here. The objection is therefore sustained. Exception. [9]

The court charged the jury, inter alia, as follows:

“ There is no evidence whatever, in this case, that, prior to going upon this land in 1864 or 1865, to construct their road and lay their tracks, the defendant company ever tendered a bond, ever made an effort to arrange .for the payment of damages, or ever presented a bond and filed it in this court in compliance with the law. Therefore, in so far as these plain statutory requirements are concerned, there has been no such compliance as would defeat the plaintiff’s title to the land.

“ The defendant company contends, however, that they are not subject to § 4 of Article vn of the Constitution of 1838. Why? They contend that an Act of Assembly was passed in 1837, approved April 4, 1837, entitled an Act for the incorporation of the Pittsburg, Kittanning and Warren Railroad Co., and this Act of Assembly, having been passed prior to the adoption of the Constitution of 1838, relieved them from the provisions of the Constitution of 1838. In other words, that the contract with the Commonwealth for the exercise of the right of eminent domain was made in 1837, before the new Constitution was adopted, and that their rights were vested and that such vested rights, under our constitution of the United States, would only be subject to the constitution of the state then existing. Now, then, a moment about this contention. By the Constitution of 1790, which was in force when this Act was passed in 1837, we have a provision: ‘Nor shall any man’s property be taken or applied to public use without the consent of his representative and without just compensation being made.’ This provision of the Constitution of 1790 has been adjudicated by our highest court, and it has been held that, under this section, it is not necessary that the conpensation should be actually paid before the property is appropriated, if a sufficient provision for compensation be directed by the Legislature, either in the Act creating the corporation itself, or by virtue of any general law existing, to which it would be subject.

“ So, then, it would appear, by § 6 of this Act of 1837, that a corporation authorized by that Act, had the power to .enter upon lands to construct their lines of road when located, and the method of securing compensation to the land owner was provided. So, then, if, as contended by the defendant, they are only subject, when they laid their line in 1864 or 1865, to the Constitution of 1790, because of this Act of 1837, they would be relieved of the provisions of the Constitution of 1838, if their rights were so vested that they could not be divested by subsequent legislation. How is this ? It is necessary briefly for us to inquire. By this Act, we observe in §17, this provision: ‘ If the president and'manager of the company shall not proceed to carry on said work within five years from the passage of this Act, and shall not complete the same as aforesaid by *302ten years, according to the true intent and meaning of this Act, or if, after the completion of the said road, the said corporation shall suffer the same to go to decay and be impassable for the term of two years, then this charter shall become null and void, except as far as to compel said company to make reparation for damages.’

“ This Act was passed on April 4, 1837. By its provision, to protect it in going upon the lands of the owners to construct its lines, it was necessary to do so within five years from the date of this Act. It does not appear before us, in the first instance, that any rights were acquired under this Act of Assembly. It does not appear to us that the letters patent, as provided in this Act, were issued to this railroad company authorized by the Act, that is, the Pittsburg, Kittanning and Warren Railroad Co.; it does not appear before us, by any evidence in the case, that any money had ever been subscribed in pursuance of that Act, that any ground had ever been broken, that any labor had ever been expended or any rights acquired.

“ It is in evidence, however, that letters patent were issued by the Commonwealth in 1865 to the Allegheny Valley Railroad Co., which • recite this Act of 1837. Now, this line was not constructed until 1865. In 1847, however, we have a supplement to this Act which provides: ‘ That the time for commencing the construction of the Pittsburgh, Kittanning and Warren Railroad shall be and is hereby extended until the 1st of June, 1852, and that said company is hereby authorized to extend said road from Warren to state-line, and the time for completion is extended to 1862.’ This was passed in 1847, no work appearing to have been done, no rights acquired, as it is made to appear to us, by any evidence in the case, under the Act of 1837; we think the Act of 1847, extending the time for completion of the road, was passed subject to the provisions of § 4 of Article vii, of the Constitution of 1838. This is made more apparent by subsequent legislation upon the subjects, for we find the Act of April 15, of 1851, which is a further supplement, and all the supplements are referred to in the letters-patent that have been presented in evidence. ‘ That the Pittsburg, Kittanning and Warren Railroad Co. shall have full power and authority to locate and construct a railroad with as many tracks as they may deem expedient, with all the fixtures necessary for the regulation, management, and well-being of the same, from the city of Pittsburg to Kittanning, and thence by the most direct and eligible route to the New York State-line, with all the rights, privileges, immunities, and subject to all the provisions and penalties provided for and enjoined by the said Act of which this is a supplement. That the time for the construction of the road shall be extended to June 2, 1855, and for the completion until June 1, 1865.’

“ Then, we have to the Act, a further supplement, passed April 14, 1852, which changes the corporation name of the company, the Pittsburg, Kittanning and Warren Railroad Co., to the 'Allegheny *303Valley Railroad Co., that then followed with certain privileges authorizing counties to subscribe for the stock and other features not necessary now to refer to. It is proper to remark here, that the Act of 1837, while it gave a title to the corporation, does not designate where shall be its location, does not indicate which side of the river it shall run on, or how it shall pass or run between two points named in the Act. The first we hear of the direction in this regard is by the Act of April 15, 1851, giving full power and authority to locate and construct a railroad, with as many tracks as they might deem expedient, from the city of Pittsburg to Kittanning, and thence by the most direct and eligible route to the New York state-line. [So, then, gentlemen, under the evidence before us, we do not think that the defendant acquired any right to go upon the premises of the plaintiff in this cáse in disregard of the provisions of § 4, article vii, of the Constitution of 1838. That the Act of 1837, having expired by its own limitation, for the commencement of the road, and the supplements giving it vitality and power to go on, thereafter being passed subsequent to the Constitution of 1837, were subject to its provisions.

“ The question has been raised that only the Commonwealth could complain of the invalidity of the powers of the company under the Act of 1837, because they were exercised after the Act had expired by its own limitation. While that is true, as a general principle, while no prosecution could be instituted, at the instance, probably, of an individual, to void the charter, because of its limitation or some act occasioning forfeiture, yet, where they claim to exercise rights of eminent domain which can only be exercised by virtue of special authority from the Commonwealth, that exercise must be made as the terms of the Act creating the authority provide, and not having been exercised here during the limitation indicated in that Act, the subsequent legislation passed under the Constitution of 1838, giving authority for proceeding and extension of the time for the construction, we think they are subject to the provisions of the Constitution of 1838.] [1]

“ It is contended, however, by the defendant, that the plaintiff is estopped from asserting title, as against the defendant here. The doctrine of estoppel, that will close the mouth of the owner of the land in asserting title to it, is recognized in Pennsylvania, and, of course, we recognize it, and it can obtain in actions of this kind. We realize that, in an action against a railroad company, which has gone upon the lands of another, without complying with these provisions of the Act of Assembly and the Constitution about the assessment of damages necessary to give them a right to an easement of passage, such right can be acquired by an encouragement of the land-owner for them to do so or by acquiescing in their taking possession and encouraging them to make expenditures in construction and in the way of repairs, or by silence at the time when he should have spoken out, and when that silence becomes a fraud to the party *304claiming rights as against him. But we are not to assume that fact sufficient to create an estoppel in a case. The facts and evidence necessary to establish it must be produced. An estoppel, without discussing the doctrine generally, can be acquired in two ways, by the positive acts or words of inducement or encouragement by the owner of real estate to another to expend his money and incur liabilities. When those liabilities and expenses are incurred under such circumstances, it would be inequitable for the owner of the land to assert his title against the person making such expenditures, and when expenditures are being made and liabilities are being incurred and the party knows it and is silent, it would be a fraud and inequitable under such circumstances for the owner to assert his legal rights, against the party making such expenditures.

“With this general doctrine, how is it here? We have a railroad company, the defendant, setting up this possession, who, when they went upon the land had no title to the land as against the plaintiff. They did not claim to own the land. They located their line upon it and laid their track to acquire an easement over it.

“The laws of our state provide a method for so doing. Every man is presumed to know the law and the defendants are presumed to know that they could only acquire that right by pursuing the statute in such cases. It does not present the situation of the owners of adjoining land and the owner of the one piece claiming title, or having actual title of the other, and allowing the other party to go on and make expenditures and incur liabilities on the land, and then turning, — that this, the owner of the adjoining land who encouraged the expenditure, — turning and asserting his legal rights, the party making the expenditures being in ignorance of any claim the other party may have had. It does not present any circumstance of that kind. The railroad company, the defendant here, only claiming an easement or right of passage, knew how they could acquire it. The general principle of our law in this respect is as follows: Equity will not, on the mere ground of silence, relieve one who is perfectly acquainted with his rights or has the means to become so, and yet willfully undertakes to proceed in expending money on the lands of another without obtaining or asking his consent. His ignorance of it is willful and he acts at his peril. Such is the doctrine of our supreme court announced in the case of Carr *v.*Wallace, 7 Watts, 401 ; Crest *v.*Jack, 3 Watts, 240, and approved in the case of Knouff *v.*Thompson, 16 Pa. 364. And then, again, Chief Justice Gibson says : ‘ While courts of justice, on one hand, endeavor to repress dishonesty, they have, on the other hand, exacted the utmost vigilance and caution. It is difficult to imagine how the concealment of a fact of which an individual of common prudence and sagacity can discover, can constitute a fraud.’ We could accumulate authority in that direction.

[“ Yet, notwithstanding that, we recognize the doctrine that a party can so act by silence or by positive acts towards a railroad *305company, in acquiring an easement over his land, as to estop him from asserting his legal title as against such easement that they should have. But such a state of facts must be shown in evidence as will justify the application of that doctrine. Does there exist here sufficient facts to submit that to you? What is the evidence on that behalf produced by the defendant ? It. is in evidence that Mr. Colwell had some property at Mahoning Furnace, some distance away. He did not live upon the land at the time. It is in evidence that he knew the railroad was constructed. He is asked: ‘ *Q.*You knew them to put their track over there? A. Yes, sir. Q. Were you up there? A. No, sir; I believe not. Q. You made no objections? A. No, sir; I don’t know as I did. I don’t remember of making any objections, not any in writing. *Q.*Did you ever make any objections till you brought this suit? A. No; I don’t believe I made any. Q. Did you ever claim any damages off the company till you brought this suit? A. The only damages I ever claimed off any person I talked about it with Col. Phillips one time. Q. What was said? A. I don’t remember. Q. When was that? A. It was some time, I presume, after the road was made. Q. You have traveled over that road very often? A. Yes, sir; very often.’

“ Now that is the only evidence on the subject of his knowledge of the road being constructed. Then, again, they have called a Mr. Hutchison, who testified that, in 1867 or 1868, after the road was constructed, there were appraisers for the appraisement of damages on his land, which was above the land in dispute, and that Mr. Colwell was a witness and testified to the advantage of the railroad to the land in that neighborhood, and also Mr. Thomas McLemmon testified that he knew of his testifying as a witness for the railroad, and also Mr. Barclay Nulton, a member of the bar, who was concerned for some of the land-owners in that proceeding.

“ This, you perceive, was several years after the railroad was built, and the question now arises, is this evidence sufficient to raise the question of an estoppel as against the railroad company, the defendant. We do not think it is; we do not think that the evidence produced by the defendant is sufficient to estop the plaintiff from asserting his rights under his legal title. Desirable as it may be that this matter should have been settled at an earlier period, yet we find the.law protecting the rights of parties in their property and it must be enforced. We think that the evidence of estoppel is insufficient to defeat the plaintiff’s right of recovery, and therefore we do not see that there is anything further left for this jury but to find a verdict for the plaintiff] [2]

[“There is nothing, then, gentlemen, left for you, under the instructions we have given you, but to return a verdict for the plaintiff for the land described in the draft, which seems to have been submitted in evidence, and of which the defendant is in possession.”] [7]

*306The defendant presented the following points :

“ 1. If the jury find,from the evidence, that the defendant company entered upon the land in dispute, under and pursuant to an Act entitled for the incorporation of the Pittsburg, Kittanning and Warren R. R. Co., approved April 4, 1837, and the letters patent issued in accordance therewith, and appropriated and used, and continue to use, only so much of the land as was necessary for the construction and operation of its roadway and tracks, in that event its entry and occupation was by authority of law, and the present action of ejectment cannot be maintained^ *Ans.*That point asserts correct doctrine if the facts were sufficient to justify our submission of the question it raises to you. We have expressed ourselves upon this subject fully in our general charge about the authority given by this Act of 1837, and, for the reason given in our general charge, we refuse this point. [3]

“ 2. If the defendant company’s entry and occupation was confined to the construction and operation of its road as authorized by law, and was either permissive by the owner or authorized by law, in that event, the action of ejectment could not lie, and the verdict should be for defendant. [4]

“ 3. If the defendant company’s entry and occupation was confined to the construction and operation of its road, and was by^ the consent of its owner, then ejectment will not lie, and the verdict should be for defendant. [4]

“ 4. If the defendant company’s entry and occupation was confined to the construction and operation of its road, and was by the acquiescence of the owner of the land, then ejectment will not lie, and the verdict must be for defendant. [4]

“5. If the defendant’s railroad was constructed and completed in 1865 with the full knowlege of the plaintiff who acquiesced in its occupation of the ground until 1883, when this suit was brought, the plaintiff will be held to have waived any provision in his favor for previous compensation, and is now confined to his remedy, under the Act of Assembly incorporating defendant company, for his compensation, which remedy is ample and adequate. [4]

“ *Aits.*These points, all raising the same question, asserting a doctrine which would be correct if there were facts sufficient to support them to submit the questions to the jury, we would affirm ; but, for the reasons given in our general charge, all these points are refused. [4]

“6. If the defendant company’s railroad was constructed and completed in 1865 with the knowledge of the owner of the land, who lived in the same neighborhood and traveled upon the road very frequently, without objection or raising any question of the company’s occupation of the lands until bringing of this suit in 1883, the jury may infer, from this fact and the plaintiff’s action as a witness for the company, and declarations as to the value of the land taken by the company in the vicinity of the land in dispute, that de*307fendant’s occupation of the land was with the plaintiff’s consent, and that he, the plaintiff, waived any provision in his favor for previous compensation, and, in that event, the action of ejectment will not lie, and verdict should be for defendant. *Ans.*We do not think, gentlemen, the fact that the owner of the land subsequently traveled over the road after its construction, or that he was called as a witness subsequent to its construction, to testify as to the effect of railroads upon the value of lands, would be such acts as would be a waiver of his right to assert his title to the land, or claim damage therefor. For this reason, this point is refused, in addition to the reasons that we have given in our general charge. [5]

“ 7. Upon the whole evidence, the present action of ejectment will not lie, and the verdict must be for the defendant. *Ans.*That point is refused.” [6]

Verdict and judgment for plaintiff.

*The assignments of error*specified, 1, 2, 7, the portions of the charge embraced within brackets, quoting them-; 3, 4, 5, 6, the answers to the defendant’s points, quoting the points and answers; 8 and 9, the rulings on the evidence, quoting the bills of exceptions.

*E. S.*Golden, for the plaintiff in error.

The right of forfeiture belongs to the state. Irvine *v.*Lumbermen’s Bank, 2 W. & S. 204; Hanover Junction R. R. *v.*Haldeman, 82 Pa. 45; Douglass’s Ap., 118 Pa. 65 ; Kishacoquillas, etc., Turnpike Road Co. *v.*McConaby, 16 S. & R. 144; McCully *v.*P. & C. R. R., 32 Pa. 25; Angelí & Ames, Corp., p. 507; Kent, Com. 313.

The state having waived the right of forfeiture, the plaintiff cannot now have it enforced against the defendant. Cin., H. & I. R. R. *v.*Clifford, Ind., 13 Western R. 387.

The old franchise continues in force until forfeited by the state. 2 Morawetz, Private Corp., pages 1013, 1029, 1030; State *v.*Society, 5 Atl. R. 275, N. J.

The entry without previous payment or security was therefore lawful, and this action will not lie. Pittsburg *v.*Scott, 1 Pa. 314; McClinton *v.*R. R., 66 Pa. 407 ; Dimmick *v.*Brodhead, 75 Pa. 464.

The plaintiff, having acquiesced in defendant’s occupation of the land, is estopped from claiming it. Patterson, etc., R. R. *v.*Kamlah, 6 Atl. R. 444, N. J.; West Penn. R. R. *v.*Johnston, 59 Pa. 295; Redfield, Railroads, * I £0, § 6, -n. 7; 2 Woods, Railway Law, § 243. PP- 784-6, 789, n., 792, 821, n.

Moreover, ejectment will not lie; the remedy under the statute controls. Koch *v.*Williamsport Water .Co., 65 Pa. 288.

*Joseph Buffington*for the defendant in error.

The -land in dispute is on the eastern side of the Allegheny river. As originally chartered by the Act of 1837, the railroad to be built was on the western side of the river. There was, therefore, no right existing *308in the railroad company to construct a road on our land without further legislation.

Oct. 29, 1888.

Section 17 of the Act of 1837 provided for an absolute voiding of the charter unless the road was completed in ten years. The subsequent legislation was subject to the constitution of 1838. Watson *v.*R. R., 2 Pitts. R. 99; Colgan *v.*R. R., 3 Pitts. R. 396.

The doctrine of estoppel does not apply to this case. There was no permissive entry. The entry was therefore a trespass and ejectment will lie. Phila. R. R. *v.*Cooper, 105 Pa. 241 ; Gilmore *v.*R. R., 104 Pa. 280; McClinton *v.*R. R., 66 Pa. 406; Harrisburg *v.*Crangle, 3 W. & S. 460; Yost’s Case, 17 Pa. 532; Wheeling, Pitts. & B. R. R. *v.*Cleland, 37 Leg. Int. 466.

Per Curiam,

The judgment in this case must be affirmed; but, as Colwell was at least passively derelict in knowingly permitting the railroad company to occupy and put its improvements on his land, we agree that it would be inequitable to allow the judgment to work a forfeiture of those improvements. We therefore affirm the judgment, and direct a stay of execution, on payment of costs, for the period of four months; and, in the meantime, the company may proceed to condemn the land, and acquire the right of way in the manner prescribed by the Act of As.sembly in such case made and provided.