Gilbert v. White

Opinion by Orlady, J., The defendant’s title to the alleyway in controversy was limited by the clearly defined reservation in his deed, as follows : “ The said parties of the first part reserve to the said Susan E. Fry and to the heirs of the said Peter A. Fry, and their assigns, or the occupant of the dwelling house now on the southern part of the said lot, the right to use the alleyway between the house now occupied by Mrs. Fry, and the one hereby conveyed to the said Cormany for passing in and out and also to keep, have and maintain at all times the new house occupied by the said Susan E. Fry over and above the said alley as the same now is,” and cannot be extended so as to include any change in the building above the second story over and above the said alley, which is to remain “ as the same now is.” The defendant attempted to justify the construction of the third story to his building over the archway by offering to show a parol agreement with the plaintiff, under and by which he was given permission to make the improvements, and for the purpose of creating an estoppel, — he insisted that the plaintiff had assented to the doing of the work as it had progressed. In his fourth point he claims the right to build the third story to the house under his grant in the deed, and in the evidence which was rejected he seeks to extend his estate in the land through the parol agreement. The change made in the building constituted a permanent taking, while from the appellant’s own showing, objection was made to the work before it was completed. Assuming that the plaintiff did assent to the change at the inception of the work, under the decisions, she cannot be held by such an agreement. The interest of a married woman in real estate cannot be divested except in the way pointed out by statute, and the alleged parol agreement would not protect the defendant by creating an estoppel, as he was not misled by it. The law was open to him in declaring the only way in which he could secure her title: Bingler v. Bowman, 194 Pa. 210. He cannot allege that he was misled by the parol agreement and had expended his money solely on the faith of it, and at the [192] same time insist on his right to make the change under the grant in his deed. The encroachment on the plaintiff’s land was made with full knowledge of her title, and the doctrine of estoppel does not apply: Baldwin v. Taylor, 166 Pa. 507; 6 P. & L. Dig. p. 9111. The evidence was inadmissible for the purpose of mitigating the damages, for the reason that punitive or vindictive damages were not claimed; and in reducing the verdict the court below relieved the defendant from any disadvantage he was under by reason of a misunderstanding of the testimony in regard to “ the amount which will put her premises ' in the condition they were in before the trespasses were committed.” The right of the plaintiff to recover was clear, and the case was carefully tried, so that the reduced verdict represents as fair a result as the defendant could expect after his wilful trespass. The assignments of error are overruled and the judgment is affirmed.