The evening herald. [volume] (Shenandoah, Pa.) 1891-1966, 1897-03-23
NEW TRIAL GRANTED.
A Reversal in the Case of Keenan, Against
Van Dusen.

I hh bhhtHs
Among the civil court decisions handc d
down at Pottsville yesterday was one by
Judge Endlich in the case of Luke Keenan,
against Thomas H. Van Dusen, both Of
town, granting new trial to Van Dusen
The case was one Of ejectment.
On the trial Of the case at the January
term Of court it appeared that Keenan, and
Van Dusen were owners Of adjoining lots Of
ground on West Lloyd street both properties
being formerly part Of the Sheafer estate.
Keenan, beeame the Cwner Of his 3O-foot lot
on August 81, 1869, Van DIsen the owner Of
his 3O-foot lot on December 9, 1873. In 1883
defendant Van Dusen built upon his lot,
placing his western wall upon line which is
alleged by plaintiff to encroach 1Ol inches
upon his land and at that width to occupy
strip there Of PSI feet in depth, north and
south
Keenan, WAS awarded Judgment Of evic-
ton, but the verdict WIS subjected to the
following reservation: "The evidence Of
the plaintiff being that he was cognizand Of
the line upon which the defendant was erect
ing his wall, apd which plaintiff now claims
to be an encroaehmept upon his property,
and that there was at the Tins no remon-
STRANGE on plaintiffs part against the act of
the defendant, the question whether there
can be any recovery in this action is re-
served"
In his decision Judge Endlich says THE
rule for Judgment non obstante veredicto is
discharged the rule for a new trial is made
absolute and the verdict is set aside and
new trial ordered"
In his written opinion on the case Judge
Endlich makes some interesting comments
on ejectmepts and says there is no difference
of opinion between the court and counsel as
to the existence and correctness Of the rule
which declares that if one knowingly,
though he does it passively by looking on,
suffers another to purchase and spend money
on land, under an erroneous opinion of title,
without making known his claim, he shall
not afterwards be permitted to exercise his
legal right against such person" To
properly understand this rule, says
the court, il is necessary to bear in
mind and distinguished another line
Of cases which declares that, where one
actively induces another to purchase or spend
money upon land in the innocent belief that
he has title to it, oven the ignorance of the
former party of the existence Of his own
right, at the time will not permit him to
assert it thereafter to the prejudice of the
person he has actually misled. The dis
tinoti0n between the two lines of cases lies
just in the difference between mere passive
ness and positive encouragement the
former in order TO operate as an
estoppe, requiring that the party to
be affected by it because of his silence
knew, at the time, what his rights were the
latter closing his mouth whether he acted
with knowledge, or in ignorance of his rights
Involved in the terms of either of these
Los L. i'll 4.
toppel can never operate in favor of one who
was not misled by the act relied upon to
create it. There Is no pretence in this case
that the plaintiff actively encouraged the de-
fendant in building to the line in dispute
The reliance is upon his silence In order
therefore, to justify his being now treated as
estopped from asserting title to this strip of
land against defendant, it would have to
appear % that defendent honestly believed
his right to extend to the line to which he
built, and (2i that plaintiff when he failed
to object thereto, not only was oOgnizant of
the fact that defendant was building to that
line, but himself knew that the same was
upon his property. These elements are not
admitted ON the record, nor do they appear in
the point reserved, for the simple reason
that the evidence does not clearly establish
them, SO that the point falls short of disclos-
ing facts necessary to predicate a decision for
the defendant Of non Qbstante veredicto.
On the question of a new trial Judge End
lieh says that the decision of the case by the
jury did not as was stated in the charge,
depend upon the sole question whether there
had in fact, been an encroaehment on plain
tif's property, or not. Even though there
wQs yet if the plaintiff knew it, aud know
ing it failed to object, he would be debarred
from recovering provided the defendant be-
lieyed himself entitled to the ground he
took. The question of the plaintiffs know-
edge that defendant was on his land
was submitted to the jury, but only
a bearing upon the actual loca-
tiQH Of his property line 1t ought |
to have been submitted as a question inVolv- .
ing the existence, or nop-existenee of a sub
stantiye defence if coupled with finding Of .
defendants innocence. 1t is altogether
possible, perhaps probable, that the result
would have been the same had all these
matters been properly referred to the jury;
but inasmuch as it cannot be said with GER
-ainty that such would have been the case, a
new TRIAL must be allowed.