93 Ind. 570 | Ind. | 1884
— It is alleged in the first paragraph of the appellee’s complaint, that the appellant, without right, increased the height of a dam across the Elkhart river, and thereby flooded her land. In the second paragraph a like allegation is mack;, and it is also charged that the land of the appellee was rendered useless, and that the stagnant water caused an injury to the public health and comfort. It is not necessary to give a more extended synopsis of the complaint as no question is made upon it.
The fifth paragraph of the answer of the appellant Scott is, omitting the formal pax-ts, as follows: “That said plaintiff had full knowledge of the height of said dam and of the manuer axxd extent to which the said dam set the water back on her land; that in the year 1879, the defendant, desiring to purchase said mill, made inquiries concerning the daxxx and the right of the then owners to maintain said dam at the height at which it was then erected, which was the same height which said daxxx now is; that this defexidant xvas a stranger iix the locality of said mill axid resided in the State of Michigan, which plaintiff xvell knew; that defendant was ignorant concerning the rights of the then owners of said mill and was seeking for information upon which to act in the purchase of said mill, as the plaintiff well knew; that he was informed before he purchased, that the said dam as then constructed was at the same height at which it has stood for more than twenty years, and that the owners of the mill had the lawful x-ight against the plaintiff and all others, to maintain said dam at its then height; that plaintiff knew that he was about to purchase said mill and dam and knew that he was inqxxiring coneex-ning The right of the owners to maintain the dam at the height it then xvas, and knew that he had been informed that the dam was at the height at which the then owners had the lawful right to maintain it, and no more, and knew that the defendant was ignorant of the truth in the matter of the height of the dam, and that he was inquiring for the purpose of purchasing and was about to purchase, relying on the information above set out, which he had received concerning the rights of the owners of the mill to maintain said dam at its then height, and yet she stood by well knowing of said facts, and permitted the defendant to purchase said mill for the sum of $8,000, without in any
If this answer pleads facts constituting an estoppel there must be a reversal.
The term “ standing by,” so -often used in the books and reports in discussing cases of estoppel, does not mean actual presence or actual participation in the transaction, but it means silence where there is knowledge and a duty to make a disclosure. In Gatling v. Rodman, 6 Ind. 289, it was held that the phrase “standing by” dogs not import an actual presence, but implies knowledge under such circumstances as renders it the duty of the possessor to communicate it. The cases of State v. Holloway, 8 Blackf. 45, Ellis v. Diddy, 1 Ind. 561, Catherwood v. Watson, 65 Ind. 576, and other cases, approve this definition. In Richardson v. Chickering, 41 N. H. 380, the definition is accepted as the correct one, and the doctrine of Gatling v. Rodman, supra, expressly approved.
Knowledge is essential on the part of the person sought to be estopped. Where a party is ignorant of his rights, and is free from actual fraud or culpable negligence, silence will not estop him, although he may have knowledge of what another is about to do. Robbins v. Magee, 76 Ind. 381; Lash v. Rendell, 72 Ind. 475 ; Hudson v. Densmore, 68 Ind. 391; Stewart v. Hartman, 46 Ind. 331; Greensburg etc., T. P. Co. v. Sidener, 40 Ind. 424; Fletcher v. Holmes, 25 Ind. 458.
If- the person about to act has 'knowledge, then there can be no estoppel in pais. Robbins v. Magee, supra; Cole v. Lafontaine, 84 Ind. 446.
In the answer before us there is shown knowledge on the one part and ignorance on the other, and in these particulars the pleading is undoubtedly good. It is not proper to plead evidence, and in the particular named the answer could not well have been more specific without violating this rule of pleading. ,
Although the appellant may have been ignorant and the appellee fully informed, still, if she was under no duty to dis
The right to maintain a dam at a given height is an incorporeal hereditament, and may, and usually does, form a very material part of the value of mill property. Scheible v. Slagle, 89 Ind. 323. The appellee knew, in legal contemplation at least, that the easement of flooding lands lying on the stream above the dam depended for its extent upon the height of the dam, and that this easement formed an important and valuable part of the property. This being true, it follows that the appellee knew that the appellant was about to buy property, the value of which depended in a great measure upon the right to enjoy the easement of flooding her lands.
Knowing all the facts, as the plea avers she did, the appellee was, as against the appellant, who was ignorant that the rights of the mill-owners were other than the appearance of the dam indicated, bound to know how far her own legal rights were affected, and she can not be heard to aver ignorance on this point. One who has full and complete knowledge of all the facts, can not, as against an innocent third person, after-wards assert that he was ignorant of the extent of the legal rights which arose out of the facts. Where there is full knowledge of the facts, a person who acts in good faith on the facts, as they are known, can not be deprived of his rights upon the ground that there was ignorance of the full extent of those legal rights. It is knowledge of the facts thát controls in such cases, for, where there is full and complete knowledge of the facts on the one side, and honesty and lack of knowledge on the other, there may be an estoppel, although one of the parties may have misconceived his legal rights. Barnes v. McKay, 7 Ind. 301.
We have shown that the right to maintain the dam at a given height was a valuable property right, and that where there is full knowledge of all the facts there may be an estoppel, although there may be a mistake as to the law, and
It is not necessary in order to the existence of an equitable estoppel that there should exist a design to deceive or defraud. The person against whom the estoppel is asserted must, by his silence or his representations, have created a belief of the existence of a state of facts which it would be unconscionable to deny; but it is not essential that he should have been guilty of positive fraud in his previous conduct. The cases upon this subject were thoroughly reviewed in Continental Nat. Bank v. Nat. Bank, 50 N. Y. 575, and it was affirmed that there need not be a purpose or intent to deceive or defraud. In Blair v. Wait, 69 N. Y. 113, it was said: “ It is not necessary to an equitable estoppel that the parties should design
It is essential to the validity of an equitable estoppel that the person who affirms it to exist should show that he had acted upon the conduct of the other party, and, on the faith of that conduct, and influenced by it, had parted with some thing or some right of value. It is quite clear that one who •has not parted with value, or who has not placed himself in a position where he would suffer loss, can have no just reason to conclude his adversary from averring the truth. The answer before us shows that the appellant purchased the mill property for $8,000, but it is not averred that any part of this sum has been paid.
A settled rule of pleading is that estoppels must be specially pleaded and pleaded with great particularity and precision, leaving nothing to intendment. This rule proceeds upon the theory that as an estoppel concludes a party from asserting the truth, all things essential to give the right to shut out the truth should affirmatively appear. Sims v. City of Frankfort, 79 Ind. 446; Robbins v. Magee, 76 Ind. 381; Lash v. Rendell, 72 Ind. 475; Wood v. Ostram, 29 Ind. 177.
Testing the answer by the rule of pleading we have just stated it falls. We can not presume that the purchase-money was paid, and, unless it was paid, the appellant can not be deemed to have parted with anything of value on the faith of the appellee’s conduct.
This defect goes deeper than the mere question of damages. In order that the estoppel can avail the appellant, it must appear that he stands as a bona fide purchaser, and this favored position can not be granted him, because it does not appear
The owner of a mill is only liable for injuries resulting from the backing of water, which occur after he becomes the owner; he is not liable for injuries which occurred prior to his acquisition of the property. Holmes v. Drew, 7 Pick. 141; Angelí Watercourses, section 510. Scott was not liable, therefore, for injuries which- accrued before his purchase.
It is probably true that where the evidence establishes separate and distinct wrongs, a joint verdict can not be sustained, for the defendants are liable not merely for different damages but for different causes. - Simpson v. Seavey, 8 Greenl. 138; Sprague v. Kneeland, 12 Wend. 161; Leidig v. Bucher, 74 Pa. St. 65; Bard v. Yohn, 26 Pa. St. 482; Cunningham, v. Dyer, 2 Mon. 50; Richards v. Walton, 12 Johns. 434; Holbrook v. Murray, 5 Wend. 161; 2 Hilliard Torts, 463. It is also probably true that an erroneous joint verdict, in a case where the wrongs are distinct and several, is bad as to all of the defendants. Hall v. Williams, 6 Pick. 232; Grusing v. Shannon, 2 Brad. 325 ; Richards v. Walton, supra; Palmer v. Crosby, 1 Blackf. 139; Allen v. Wheatley, 3 Blackf. 332; Everroad v. Gabbert, 83 Ind. 489, and authorities cited. There are, however, two reasons why the appellants can not
1st. Where the evidence is not in the record, this court can not determine whether the verdict was sustained by sufficient evidence, and in the present instance the evidence is not in the record.
2d. Where there is no motion for a venire de novo, this court can not reverse on the ground that the verdict is insufficient in form or substance, and in this record we find no such motion directed against the verdict.
It is settled that a motion for a new trial does not present the question of conflict between the general verdict and the answers to interrogatories, and that the question of a right to judgment on the answers must be raised in some other mode. Brickley v. Weghorn, 71 Ind. 497 ; Adamson v. Rose, 30 Ind. 380.
' The court, at the request of the appellants, found the facts specially upon the issue as to the right of the appellee to have the dam abated as a nuisance, and against this finding a motion for a venire de novo was directed, but not against the verdict.
The objection is made that the court adopted the answers of the jury to the interrogatories as part of its finding, and did not again set them out. We see no error in this. The facts were fully of record in the answers to interrogatories, and there was no good reason for burdening the record by repeating them. The reference to them incorporated them in the finding. Broom Legal Max. 522; City of Indianapolis v. Mansur, 15 Ind. 112.
We think that it clearly appears that the original right to maintain the dam was fixed by the facts fbund in the answers to interrogatories, and that’ the height originally was three feet. We are also satisfied that it sufficiently appears that the height was raised twelve inches. It is a plain principle of law that an easement existing by prescription is measured by the right acquired by the use, and that it can not be
The use in this case gave a right to maintain the dam at the height of three feet, and the appellants did wrong in increasing this height.
The appellee had a right to a decree abating the height of the dam, and as no objection was made to the form of the judgment in the trial court, no'ne can be considered here. Hardy v. Miller, 89 Ind. 440; Evans v. Feeny, 81 Ind. 532; Bayless v. Glenn, 72 Ind. 5; Baddeley v. Patterson, 78 Ind. 157.
Judgment affirmed.