11 Pa. Super. 243 | Pa. Super. Ct. | 1899
Opinion by
In making out their paper title to the lands upon which the alleged trespass was committed the plaintiffs offered in evidence a certified copy of the record of a judgment in the Circuit Court of the United States against James Wilson, and of the execution issued thereon, by virtue of which, it is alleged, the lands in controversy were sold at marshal’s sale; also the deed from the United States marshal to Abraham Kerns, pursuant to this sale. Numerous objections of a technical nature were made to the offer, but as the parts of the record material in any proper consideration of the objections have not been printed, we have no means of knowing whether they are well founded or not. Therefore, the first assignment of error is dismissed. See Rule 17, and P. & L. Dig. of Dec. & Ency..of Pa. Law, 878.
So far as the objections to the marshal’s deed are based on the record above referred to they should be dismissed for the same reason. The objection that the deed does not cover the land in dispute is not well taken. This comprises ten tracts, known
Even if John C. Smith’s paper title to three of the ten tracts was defective that furnished no valid objection to the admission of the deed from him, and no valid reason why the plaintiffs could not recover for the trespass upon that portion of the land covered by the deed to which it gave them a good title. It seems scarcely necessary to dwell upon this assignment. The court committed no error in admitting the deed in evidence. The third assignment is overruled.
In order to make anj discussion of the remaining assignments intelligible it will be necessary to recite the facts at some length. It should be premised, that the main question in the case is as to the ownership of a tramroad constructed on the land. Was
On October 30, 1885, Alexander Silliman, Lewis Rothermel and others, being then the owners of the land, entered into a contract with the same Lewis Rothermel and Albert Lichtenwalter, whereby, in consideration of the moneys to be paid and the covenants to be kept and performed by Rothermel and Lichtenwalter, the former sold to the latter all the timber on a tract of 7,425 acres known as the Weiker run lands and comprising the ten acres above mentioned; provided, however, that the same should be cut down and removed within ten years. The grantees covenanted to cut and ship certain specified quantities of several kinds of lumber each year and to pay between the 25th and 28th of each month, at certain specified prices, for all lumber, bark, palings and sills shipped from the lands during the previous months ; also “ for the proper prosecution of the business, to construct a tramway on said lands, for which the party of the first part agrees to contribute $1,300 (if the same may cost that sum), said $1,300 is not to be advanced in cash, but is to be an offset to timber leave.” It is also to be noticed that the grantees were to have the right to use the lumber necessary for building tramways, roads, houses, sawmill and other improvements upon the premises needed in the prosecution of the lumbering business free of charge. It was further provided that “ this lease,” as it was called, “ should not be transferred without the consent of the party of the first part.”
The tramway was built and the lumbering operation carried on by Rothermel and Lichtenwalter until March 9, 1888, when Lichtenwalter sold to Rothermel “ all his right, title and interest in and to a certain lease dated October 30,1885 ” (the paper above mentioned), “also everything owned jointly by Lewis Rothermel and Albert Lichtenwalter .... including sawmill and all machinery, one locomotive, house, stables, offices, office fixtures, lumber trucks, tramway,” etc.
By paper of April 24, 1888, recited in deed of July 25, 1889, the plaintiffs consented to this sale of Lichtenwalter’s interest
The tramway originally laid was a stringer road with wooden rails — strap iron in places on top of the rails. In June, 1889, it was partially destroyed by a flood, and shortly afterwards Lewis Rothermel died. A month later, July 25, 1889, Mary G. Rothermel, his executrix, resold to Lichtenwalter all the right, title and interest of Rothermel in the “lease ” of October 30,1885, Lichtenwalter covenanting on his part to “ assume all the duties and undertake, perform, keep and discharge all the terms, conditions and covenants upon the part of the parties of the second part in and to said contract .... the said contract or lease .... being made a part of this agreement for the purposes hereof the same as if the terms, conditions and covenants thereof .... by the said Albert Lichtenwalter . . . . to be kept, performed and discharged were herein at length recited and set out.” The agreement of Mary G. Rothermel specifically mentions the following property as sold: “The sawmill, including the lath mill located at Pardee; the tramway trucks, locomotive engine, all tramway tools, the office building at Pardee; steam pump; the piece of tramway now remaining on the ground, all the strap iron belonging to tramway.” On the same day the plaintiffs executed a deed to Lichtenwalter referring to the several agreements above mentioned and granting their consent to the said sale and transfer of Rothennel’s interest subject to covenants of Lichtenwalter as set forth and referred to in the contract of resale to him.
Let us stop for a moment to consider Lichtenwalter’s rights in the tramway at this time. Was it the duty of the court to charge the jury as matter of law that it belonged to Lichtenwalter?
Whilst the contract is silent as to the ownership, it is to be
Whenever the terms of an agreement are equivocal or doubtful, whenever the language of a contract is ambiguous, the practical interpretation of it by the parties is entitled to great influence: Straus v. Wanamaker, 175 Pa. 213-231; Topliff v.
Whilst we are upon tiffs subject, namely, the ownership of the tramway originally constructed, it will be appropriate to consider the offers of evidence as to usage.
The defendants claimed and offered to show, that, according to a well-known usage in lumbering operations upon unseated lands, where the' operator or jobber, as he is called in the offers, contracts with the landowner to construct a tramroad over the lands and the contract is silent as to the ownership of the same after it is constructed, it belongs to, and is removable at the will of, the operator, even though the contract provides that the landowner shall contribute to the expense of its construction, and he doyes so contribute. The rejection of these offers of evidence is the subject of the fourth and fifth assignments of error.
The offers were properly rejected upon broader grounds. The proposition viewed in the light of the verdict amounts to this: that it is competent to show by the testimony of witnesses that according to a local, or a trade, usage, property belongs to one person, which by the settled principles of law applicable to the facts belongs to another. Usage is a matter of fact, not of opinion: Gordon v. Little, 8 S. & R. 533, 550. The understanding of a community or of a class as to a legal effect or an implication of law is not a valid usage, and evidence to prove it is not competent to determine legal rights under contracts: Haskins v. Warren, 115 Mass. 514. Such a usage has been characterized as the mere adoption of a doctrine as to the legal rights of parties, such doctrine being contrary to the rules of the common law: Thompson v. Ashton, 14 Johns. 316. Such a usage is not valid; strictly speaking, it is not a usage at all. In the application of this and the cognate principle that a usage must not be contrary to law, it has been held, that whether or not a particular bond or note is negotiable is a matter of law and no local usage can alter the legal character which the law fixes upon it: Vermilye.v. Adams Exp. Co., 88 U. S. 138; Gunn v. Bolckow, L. R. 10 Ch. 491; Crouch v. Credit Foncier, L. R. 8 Q. B. 374; Hathesing v. Laing, L. R. 17 Eq. 92. Evi
. There is another objection to, or defect in, the offers, which, beyond all question, prevents us from saying that the court committed error in rejecting them. The whole theory of usages rests upon the presumption that parties, in making a contract, do so with the intention that the usages of the place or trade should be regarded as part of the contract. It is as part of the contract that a usage is to be judged: 27 Am. & Eng. Ency. of Law, 712; First Nat. Bank v. Fiske, 133 Pa. 241; McMasters v. P. R. R. Co., 69 Pa. 374; Bremerman v. Hayes, 9 Pa. Superior Ct. 8. This contract was made in 1885, but the offers do not allege that the usage had existed so long before that time as presumably to be known to the landowners, some of whom, by the way, were not in the business, nor even that it existed at all at the time the contract was made. A party is entitled to have his contract interpreted in accordance with the general principles of law, unless he made it with reference to a particular usage. He cannot be presumed to have knowledge of a particular usage which is not shown affirmatively to have existed at the time the contract was made and we have no right to reverse the action of the court below upon a surmise that the defendants might have made their offer broader. The fourth and fifth assignments are overruled.
It cannot be successfully contended that Rothermel and Lichtenwalter, or Lichtenwalter as the successor of Rothermel, had a right of way to which the defendants succeeded, across the plaintiffs’ lands, for the purpose of removing timber from other tracts not belonging to the plaintiffs. The right of way referred to in the agreement of April 24, 1888, was not to begin until all the timber was removed from the plaintiffs’ lands. And there was no evidence of this essential fact. Even if, by any construction, it could be held that all the rights of Rothermel and whomsoever he might associate with him passed with undi
Thus far we have devoted our attention principally to a consideration of the rights of the parties under the original contract of October 30, 1885, and the supplemental agreements of April 24, 1888, and July 25, 1889. We now come to a consideration of the evidence as to what was done after the execution of the last mentioned agreement.
After the transfer to him on July 25, 1889, Lichtenwalter reconstructed the tramroad, at least partially, and subsequently replaced it with an iron tramroad under the following circumstances :
On January 1, 1890, Lichtenwalter entered into a' contract with Whitmer & Sons, these defendants, who owned 'what were known as the Treaster valley lands lying to the west of the plaintiffs’ lands, in which it was agreed that Lichtenwalter would within six months “ construct a railroad or tramway into and upon the said lands for the purpose of enabling both parties to take timber from the lands above mentioned .... by extending the railroad or tramway now made and existing .... to and upon all of said lands; ” also that “ the whole railroad or tramway when completed as aforesaid, shall be equally and
On September 20, 1890, Lichtenwalter “leased” from the Steel Railway Supply Company a quantity of twenty pound steel rails, splice joints and railroad spihes, and with these and other steel rails and materials relaid and reconstructed the tramway on the plaintiffs’ lands, and extended it to the Treaster valley lands. After the sheriff’s sale to which I shall refer hereafter the rights of the Steel Railway Supply Company were transferred to the defendants.
Thus far it is clear that no privity is shown between the plaintiffs and these defendants, at least none such as would defeat the action. The latter and the supply company entered into the two last mentioned contracts with Lichtenwalter with full notice of all the latter’s obligations and the plaintiffs’ rights under the contract of October 30,1885, and its supplements. If the existing tramroad was a part of the realty— as under the verdict of the jury we must assume it was^ — its character was not changed in consequence of any arrangement which Lichtenwalter made with third persons concerning the materials used in its reconstruction, or concerning its ownership. The rights of such persons rise no higher than would the rights of Lichtenwalter if he had reconstructed the tramroad with materials purchased with his own money exclusively and for the sole purpose for which the road was originally donstructed. As we understand the case the transfer to Lichtenwalter on July 25,1889, put him precisely where he would have been if the contract of October 30, 1885, had been made with him alone and there had been no subsequent transfers. If anything, his obligation to reconstruct the tramway and put it in condition to carry out the purposes of the contact is plainer, for he renewed the covenants of that contract in the full light of the fact that it was necessary for him to do so if he was to perform the other covenants and conditions. And, although he reconstructed it of different materials and not wholly on the precise line of the original road yet, as between the parties to this action, the judge was clearly right in holding that the tram-road as reconstructed after the flood of 1889 must be deemed the same in nature, whether realty or personalty, as that origi
■ We come now to the last question requiring particular notice, namely, the question of estoppel. It arises in this way:
When Mary G. Rothermel, executrix (who it is to be noticed is one of the plaintiffs in this action), sold to Lichtenwalter she took three judgment notes for the price, and in December, 1893, entered them of record and issued executions returnable to March term, 1894. Later, fifteen other fi. fas. were issued by other creditors returnable to the same term. The returns to these executions are not printed, as they ought to have been. It appears, however, that on February 3, 1894, the sheriff indorsed on the Mary Rothermel executions the following .levy: “ By virtue of sundry writs of fi. fa., March term, 1894 .... I this day levied on the goods and chattels of A. Lichtenwalter, to wit: . . . . also defendants’ interest in tramrailroad, and all other personal property belonging to the defendant.”
The defendants ’ proposition of law may be stated thus: In the action of trespass quare clausum fregit all the cotenants must join as plaintiffs ; if one of them be estopped to maintain the action, his cotenants are precluded from maintaining it; Mary G. Rothermel, one of the cotenants, of the land, having caused the tramroad in question to be levied on and sold as the property of Albert Lichtenwalter, is estopped to deny the title of the purchaser, these defendants; therefore, the court should have given binding instructions, that the action, so far as it related to the subsequent use of the tramroad by the defendants for the purpose of transporting lumber from the Treaster valley lands, could not be maintained.
Granting, for the purposes of the argument, the correctness of the legal proposition that her coplaintiffs would be barred from maintaining the action, if Mary G. Rothermel was es-topped, does it clearly and distinctly appear that she, levied upon and sold the identical tramroad now in question ? That the sheriff undertook to sell it would seem clear from the bill
Having induced action by another on a belief in a given state of facts, it is unjust to permit him who induced the action to deny the facts and strip the action of the protection which they would have afforded. But one who has not been misled cannot invoke this doctrine in his behalf. The rule, as repeatedly-stated in the cases, is, that one shall be estopped from alleging the truth, only when his falsehood or his silence has induced action by the other party that would lead to loss except for the estoppel: Sensinger v. Boyer, 153 Pa. 628. Acts which do not amount to an unequivocal assertion of a fact inconsistent with the truth, and do not reasonably induce belief contrary to the truth, and consequent action based on that belief, cannot bind
The great question in the case was whether the tramroad was for the permanent improvement of the lands on which it was built, and was a part of the realty, or for the mere temporary convenience of the operators or jobbers in the lumbering operation and was personalty. The question was one largely dependent on the intention of the parties and was for the jury to determine under all the evidence, as the defendants correctly contended in their second and fourth points. We think it was fairly submitted to the jury, and that no error was committed in the trial which calls for reversal.
In some particulars the appellants paper-book does not conform strictly to our rules of court, but the defects and omissions are not such as to warrant us in sustaining the plaintiffs’ motion to suppress it. The motion is denied.
The judgment is affirmed.