'(01lrcuit Court, D.CoZerlldo. March 17,1890.)
EllTOPPlq. IN P.us-BOUNDARY LINE.
A land-owner who in good faith points out to the owner of adjoining land an incorrect division line, both, parties being iR1J.orant of the true line, is not estopped from denyipg that such line is the trUe boundary. ,. ' A trespasser who knowin!l"1.v takes stone from the land the value of. the ston,e a:f!ter it has beenqliarried.
MEASURB OI!'.DUA(H£S-WIJ,LPUL TRBSPASS-STONE IN QUARRY.
another is liable for
A corporatiun will not be granted anew trial on the ground of newly-discovered evidence, to be 8WOl'nto by its own otll.eara, who were present at the former trial, and shown by its own books,.where the failUre to produce suo)1. evidence at the former trisl is not excused.
At On motion for a new trial. A. L. Dottd, for plaintiff. Wolcott Vaile, for defendant.
HALLETT, J. Pla'intiffand defendant own adjacent tracts of 1£1.04. This action was brought May 14, 1889, to recover the value of stone frpQl plaintiff's hmd.by defendant between the lstday of April, 1889, and the beginningofthe suit. On the trial it a,ppeared that plaintiff was in the,l$ervice of defendant when the quarry from which the stone was T,his was during the year 1888, and some months priof:.to the alleged trespo,ss. At that time, inquiry was made of plainti,ff £I.e .to the botinclary line between his land and defendant's land, Of it. Plaintiff pointed out a line, blazed upon trees that 10caHt)'l', whicbwas then thought to be the true line by all parties. Jt does not appear by this ,line was run, or that plaintiff had any better knQwledge of it than the officers ,and agents of defendant, and other persQ'ns.)ri the neighborho.od. '1'he quarry was opened immediateJy east of,this. line, and tfpon ground which afterwards. proved to be plaintiff's,:: Dqpbts having arisen as to the location of the quarry, and whetherit walluponplaintiff.'s ordefenq,ant's land, a survey was made in March; the knowledge and assent of both parties; and it ",as thenaf\certained that the greater part of the quarry was on plaintiff's land.· l'his ,/lCtion is brought to recover the,vahle of stone taken from the by defendant after the true line betwel'ln the tracts owned RY had been surveyed·. At the qefendant contended that, inasmuch as the qllarry was first opened under the Gircumstances stated, at an expense to of· about. $700 estopped to claim any stone at that timeuncoveredj and, as all the stone taken by defendant between the dates named was so uncovered, with the knowledge and consent of plaintiff, before the survey was made, there was no right of action. In this, however, there is nothing on which to found an estoppel. It does not appear that plaintiff had any better knowledge of the line
CHEI!lNEY 11. NEBRASKA & C. STONE CO.
than defendant. He accepted the line marked by some ·one, we know not who, and pointed it out to defendant; but there is nothing to show that he intended to mislead or deceive, or that there was in his conduct anything more than a mistakeoffact. Mr. Bigelow says, (4th Ed. 596:) "The principle upon which these cases proceed is that there must have been, .when the incorrect line was acted upon, knowledge of the true boundary by the one party, and ignorance of it by the other, in order to estop the party from asserting it within the period of limitation; and this though it may have l>l:len intended that the incorrect line should be fixed upon as the true one, and acted on .accordingly; and this too, it is held, though the admission was in writing.. provided the instrument did not operate as a conveyance." In this instance, there was ignorance on the part of defendant as to the · true boundary line between the tracts; but there was not such knowledge ·on the part of plaintiff as will work an estoppel against him in this action. .. It is also urged that the jury was misdirected as to the measure of damages, in that they were told to find the value of the stone after it wa·s broken in the quarry, and ready for removal. Defendant contends that it is liable only for the value of the stone as it lay in the land, and as part of the realty. The plaintiffasked only for the value of stone taken after the line was surveyed, and the true boundary ascertained; and it is very clear that as to such stone the trespass was willful. In many cases of willful' trespass, it is held that the value of goods in a distant market, and after they had been greatly improved by the trespasser, may be recovered. Wooden-Ware 00. v. U. S., 106 U. S. 432, 1 Sup. Ct. Rep. 398. In the case at bar the jury was advised to find only the value of the stone after it was detached from the land, and had become alty; and that is within the rule as laid down in all courts. In assuming that the rule of damages would be the value of the stone as it lay. in the ground, it is said that defendant's counsel was so far misled that he made no inquiry or research as to the amount and value of the stone broken in the quarry; and affidavits are filed to show that the quantity of stone taken was much less than the jury have found, and that this fact may be shown from the books ofthe company. But the qua,ntity of stone taken would be the same whether the value shall be assessed in one way or the other, and it is difficult to understand in what way the measure -of damages could affect the condnct of counsel in respect to producing evidenC'e relating to the qnantity of stone taken. And there is no ground on which it can be claimed that the evidence now offered is newly discovered. Two of the officers of the company whotnako affidavits as to the new fa.cts were examined at the trial, and the third was present, and not sworn. Plaintiff made extraordinary efforts to get the books which defendants now wish to use as evidence in another trial. All this evidehce was in defendant's possession, or within its reach, at the time of the trial; and the. failure to produce it is not in any way excused.. The motion for new trial will be denied.
l.Of!rWUOourt,N.,D. Iowa. JUly, 1882.}1
,1. Fnilll '.. . '.. . , .. A' policy, of insurance provided tlillit;lin case difterenoes'should arise touching any lOBB,the matter, should I'>ll.t' of either,party, " be submittel!. to.srbitrat.ars, whose aWllol;'d should !:le, qii,1,din8 ss'to the spIount of theJoss, ,but nqt , as to the coInp'any's liabilily I'. also that aotion cOUlpany fOr ll.tlY claim under the polloyshOu d be any oourt of law or chanoery tmtil after an awand should be obtained, filIiing the amount of 'such "lin, the'manner !' : ; H6/,d,i it was'neoessary for tMaisured 1:,0 !equeat a.n arbitration, and, where none had been requested by the cOUlpany, he mIght main, tai'U his .8Ction ll>n award having been made. I. .S-WE--CON8TRUCTION OIl' PqLIOY. ..' . ' . ' ," ! Wll.im the words ernploYee.' by an insurance oompany bie, 'pblioy,of themselves, '¢' in ponJleptio)1 with otliler language:therein, or In refereheeto; the subject-matter to which they relate, are susceptible of the interpretation given them by thll as.sured, although in fact intentled otherwise by the the policy will ,be construed itl favor of the aSsured.
At Law. '. On motion ,for a new triaL , 'Fo;rqecision on demurrer,see :2Fed,Rep. 658. Duzee &fIubbard" &- OlQ:rk and 1IfJnry. Rickel, for defendant.
MCCRARY,;J'. This is':anaction upon.a policy isstledby defendant to plaintiff him against lOBS by fire upon a certain there. in There was a trial by jury, and a verdict for plaintiff for $1,788.78. .The case is now before the court on a motion for anew trial!. It is insisted that, under the terrus of the policy sued on, an arbitration fixing the llmouqt of theJoss is a conditioli ,precedent to plaintiff's right to'maintain this action., ,The same question was raised at an early stage of thil\ proceeding by demurrer to the replication, and was decided adversely to the defendant. .1 McCrary,. 335, 2 Fed. Rep. 658. Weare asked .to reconsider the question upon the ground that it was not fuUy argued by counsel f1,t the tirne.ofthe hearing upon demurrer. There cau, we think, be no valid objection upon the part of the courHo reconsidering, upon final hearing, any question passed upon in the pre. liminary in ,a case where our judgment must he final;. the sum involved not being sufficient to authorize a writ of error. clause or The policy contains the following prQvisions: In the condition it is provided that"In casepitlerences sball ',arise touching any loss or <damage,after proof thereof has in due form, ,the.matter shall, at the written request pf eitherparty,be 8ubmitted to impartial arbitrators, whose; !l-ward in writipg shall be binding on ,the parties as, 't,he .amount of 8,uch lo!\s, Or but shaH not .the liability of the company under this 'policy." ., .': 'fhe or' the follqwing: ., , .. "It is furthermore herebY provided and mutually no Buit.or ae-. tion against the company 'for the recovery of any claim by virtue of this polI
Publication delayed because of failure to receive copY'.