Davenport Central Railway Co. v. Davenport Gas Light Co.

Adams, J. 1. estoppel : misrepresent tations. In this case the plaintiff, a street railway company, having laid its track on Brady street in the city of Davenport, over the gas pipes of the defendant Did beneath the surface of the street, seeks to enjoin the defendant from removing or disturbing said track in order to obtain access to its pipes for the purpose . of making repairs thereon. The gas company is the elder of the two companies, and it is not denied by plaintiff and appellee that the rights of the gas company in the street are prior and paramount to those of the plaintiff, unless the gas company by its representations and conduct has created an equitable estoppel, whereby it has precluded itself from claiming that its rights are paramount. The equitable estoppel upon which the plaintiff relies arises, it is alleged, partly out of the representations of the defendant’s officers and agents, and partly out of the defendant’s silence and failure to object to the location of the track while it was being laid. This leads us to consider first the character of the representations and the capacity in which the persons were acting who made them. As to the facts there is very little if any controversy. The plaintiff claims that it relied in the first instance upon the representations of one Phalon, who, on being told by the plaintiff’s agent that it was about to lay its track in Brady street, and wished to avoid defendant’s pipes, informed said agent that the pipes were laid in the center of the street. It is not denied that Phalon did so state. The plaintiff having a right to lay its track in the street, as much so as the defendant had a right to lay and maintain its pipes in the street, it was the plaintiff’s right to demand of the defendant information in regard to the location of the pipes. We are inclined to think,- too, that it was the defendant’s'duty, in view of the rights which others might acquire in the street, to know the precise location of the pipes and be able to give correct information to those who had a right to demand it. If we are correct, and the company did wrongly represent the location of the pipes so as to lead plaintiff to lay its track over them when it-was seeking to avoid them, and seeking information [305] from the defendant for the purpose of avoiding them, then we think the defendant would be estopped from claiming the right to disturb the plaintiff’s track, even though the defendant was mistaken in regard to the location of the pipes at the time the representations were made. Much importance, therefore, is to be attached tb the capacity in which Phalon was acting. 2 _._. agehey. Conceding that it is the duty of the officers of the company to know, either from excavations made for repairs, or the records of the office, or the traditions of the company, where the pipes are located, if they undertake to give information in regard to the matter, we cannot say that such duty rests upon a mere employe, and certainly not upon a person acting merely in the capacity of bookkeeper and collector. As to what capacity Phalon was acting in, it may be claimed that there is some conflict in the affidavits. Paddock, an employe of the plaintiff, being foreman of the hands who were laying the track, and the man who was sent to Phalon to obtain information about the location of the pipes, says that Phalon was acting as assistant superintendent, book-keeper and general agent for the gas company. Without stopping to inquire whether his representations would bind the company even if he were so acting, we have to say that we are satisfied that Paddock was mistaken. On this subject we have the affidavit of Greo. L. Davenport, the president of the gas company, who states that “Phalon was first introduced into the office of the company by Thomas Dermody, Baldwin’s predecessor as superintendent, as the clerk or employe of said Dermody to assist him in keeping the books, and was employed by said Dermody on his own responsibility, and as his own personal clerk; that after said Dermody’s death, said Phalon continued in the office for a time under Baldwin, as book-keeper and collector, until said Baldwin became familiar with the details of the business; that Phalon never had any authority to represent said company or bind it by his statements in respect to any matter whatever.” As Davenport is uncontradicted by any person showing any reasonable means of knowledge in regard to Phalon’s powers, [306] we must take his affidavit as true. We are of the opinion, therefore, that if the estoppel exists, it must be found elsewhere than in the representations of Phalon. The only other person who said anything about tlie location of the pipes was tbe superintendent, Baldwin, and what he said about it should have created distrust in regard to their location rather than confidence. lie said that they were in the center of the street so far as they knew, but that there bad been so much irregularity about laying the pipes he was not certain about it. 3 silence. The only remaining ground of estoppel is tbe knowledge, on the part of the defendant’s officers, that the track was being laid, and their failure to interpose any objection to its location. An estoppel may, of course, be created by silence, but not where, as in this case, there is no evidence that the persons whose silence it is claimed created the estoppel had knowledge of the matter in regard to which it is claimed that they should have spoken. We think the Circuit Court erred in granting the injunction. Reversed.