Pioneer Mining & Manufacturing Co. v. Shamblin

McCLELLAN, C._ J. This bill is filed by the Pioneer Mining & Manufacturing Company against Mary J. Shamblin and others, her brothers and sisters, the heirs-at law of John Shamblin, deceased. As amended, its purpose and prayer is to enjoin the respondents from breaking or interfering with a pipe line carrying water which the complainant has laid and is operating on and across the southeast quarter of the northeast quarter of section 35, township 20, range 6, west. The bill does not allege title in complainant to this land, but only that it owns an undivided one-half interest in the mineral deposits in the land; that the Tennessee Coal & Iron Company owns the other undivided interest in said deposits, and that the Tennessee Company has consented for complainant to lay, maintain and use this acqueduct on the land. The respondents have the fee in the land save the mineral interests. The minerals in this land are not being mined by the complainant, nor is its alleged right to maintain this pipe line at all rested on any easement it may have in respect of mining these mineral deposits. No argument, discussion or citation of authorities is needed to demonstrate that on the facts so far stated the complainant has no right whatever to maintain this pipe line on respondent’s land, and that there is no ground for any presumption or even anticipation that such right will ever be adjudged or decreed to complainant on the final hearing, and hence there is no occasion, so far, at least, as these facts are concerned, to consider the relative injury which may result on the one hand to the com [489] plainant from a dissolution of the injunction, and, on the other, to the respondents from its continuance: That is a matter of proper consideration only when it can be seen, at least, that the complainant may establish its right and title on the final hearing. There is no probability, or even possibility of this on the facts to which we have adverted. But, in apparent recognition of this, averments are made in the bill Avhicli are intended to show that respondents are estopped to assert their title to this land and their exclusive right to its possession and uses as against complainant’s use of it to maintain and operate their acqueduct. Two grounds of alleged estoppel are averred. First, it is averred that John Shamblin, respondent’s ancestor, consented for complainant to construct and operate the pipe line over this land, pending the settlement of dispute between him and the complainant about the title. If this consent was given by John Shamblin, which is denied, and if it had. reference to this particular tract of land, which is open to diverse inference even on the averments of the bill, it was of a limited character and, in a sense, conditional. The consent was limited to the time necessary to settle the dispute, and conditional upon a settlement favorable to complainant. But had the consent been unlimited and unconditional, it cannot bind the respondents by way of estoppel or otherwise. It was in parol, and therefore, revocable at the will of John Shamblin, and assuming that the consent was acted on, in his lifetime, it was still revocable by the respondents after his death; and if, as appears by the answer, the pipe was not laid ’till after John Shamblin’s death, his alleged consent had no operation at all, not even to save complainant’s entry from being a trespass. It is further averred in the bill that these respondents stood by and allowed complainant, without objection, to lay this pipe line at great cost, etc., etc., and hence that they are now estopped to insist upon its removal. On general principles, these averments present no case of estoppel. There is no pretense that the complainant was ignorant of the true state of the title or of any of respondent's rights in the premises. To the contrary the [490] company knew that John Shamblin originally and these respondents since his death had the title to this land. It is not even pretended that these respondents induced complainant, or that complainant was misled by their silence to construct their aqueduct on their land. Having a knowledge of all the facts, which importune a to£al want of right on its part to carry its line over this land, and not being induced thereto — even assuming without deciding, that would make any difference — by the respondents there is no recognized general principle of estoppel which could operate to deny the respondents the possession and use of their land to the exclusion of the complainant and its aqueduct. There is no abstract equity in the contrary view. One man should not in equity and good conscience be allowed to appropriate the land of another by merely taking it with full knowledge of the other’s ownership and without some assurance beyond passive silence on the owner’s part that the owner consents or acquiesces in the taking. It is the duty of the stranger to keep off. The owner forfeits no right by failing to warn him off unless such failure occurs under circumstances which are calculated to induce and do induce the stranger to go upon the land. This case on the averments of the bill presents no element of that sort. The answer, moreover, denies any acquiescence on the part of the respondents in complainant’s use of the land, and, to the contrary, show affirmatively that the mother of the respondents who resides on the place of which this is a part, and who, on the facts stated, may well be considered as the agent of all the respondents in this matter, expressly.objected to and protested against complainant’s constructing its pipe line on the land. So we conclude that complainant’s attempt to show an es-toppel upon the respondents has failed; and that upon the whole case there arises no predicate for the exercise of discretion as to continuing or dissolving the injunction upon a consideration of the relative injury to result to the parties. If, as is argued by counsel, our cases hold that where the owner of land acquiesces'in by failing to object to the construction of a railway over his land, he is estopped to [491] recover tbe land upon which the road is built, the doctrine should not be extended to cases of this sort, in which the public have no interest and where there is no principle of public policy involved. In our opinion, the chancellor properly dissolved the injunction in this case, and the decree must be affirmed. Affirmed.