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Optnioh,

Mr. Chief Justice Gordos :

The following is the history of this case, as we find it in the charge of the learned judge of the court below. The action is debt brought for the recovery of damages on an alleged breach of the conditions of an estrepement bond, executed by the defendants April 7, 1884. This bond originated in the manner following: Three of the defendants in this suit, Kulp, Williams and McConnell, at the date above mentioned, brought an action of ejectment against the present plaintiffs, the Bow-ens and Kline, for the recovery of the possession of a certain tract of land in the writ specifically described, and which was warranted to James Hepburn July 16, 1793. The estrepement was issued under the second section of the act of April 2, 1803, for the purpose of preventing waste on the land described in the writ, and the bond was executed in accordance with the directions of the act of April 11, 1862. On March 25, 1885, the plaintiffs in this ejectment suffered a nonsuit, and thereupon the present action was brought upon the estrepement bond.

*86Now, of course, it lay upon the plaintiffs to show that they were injured in consequence of the execution of the writ of estrepement, so that the very first question is, have they succeeded in showing that they were at all damaged by this action of the defendants ? We may here pause to emphasize the fact that this writ could, under the act of 1803, restrain waste only on the James Hepburn tract, and that it neither did nor could prevent the defendants from operating on any other tract. But the defendants in the ejectment, plaintiffs here, were not in possession of the Hepburn tract; never put a foot on it, and never struck an axe into its timber; in fine, they never professed to have right in or possession of it. Their operations were conducted on the Bowersox, a tract adjoining the Hepburn on the south, to which the defendants in the case in hand bad no pretence of claim, nor the slightest disposition to interfere with the plaintiffs’ work thereon. All this was well known to the plaintiffs, for if we are to believe the testimony of Samuel Bowen, they made an examination of the lines before they commenced work under their Bowersox agreement.

How then were they injured by the estrepement ? And why did they quit operation on the Bowersox tract, when they were only enjoined to commit no waste on the Hepburn ? The answer of the learned judge to these interrogatories is not as clear as might be desired. “ The plaintiffs,'’ says he, “ in the estrepement, having brought their action against the defendants for that survey,” i. e., the James Hepburn, “they declared of record that they,” the defendants, “ were in possession of the same according to the metes and bounds set out in the writ. The affidavit on which the estrepement is granted declares that the present plaintiffs had cut, and were still cutting, timber, and committing waste on the James Hepburn survey. We charge you that this constitutes an estoppel in law, and that the defendants here cannot defeat the claim of the plaintiffs boy evidence that the James Hepburn survey was not located where they said it was in the action of ejectment, or that the plaintiffs were not in possession at the time the ejectment was brought, and were not restrained from taking the lumber thereupon by the writ of estrepement.”

We are obliged to take exception to what is here said by the learned president of the Common Pleas, notwithstanding the *87many instances wliich he has heretofore given us of his clearness and legal precision, for the following reasons: In the first place, the service of the writ of ejectment raised a merely prima facie legal presumption that the defendants were in possession of the land described in it, but which conclusively bound no one. In the second place, it is conceded that the allegation in the estrepemeut affidavit, that the defendants had cut and were cutting timber on the J ames Hepburn tract, was a mistake, and could not therefore affect those defendants.

Finally: It is not alleged that the writ mislocated the Hepburn survey, or that the present defendants or any one else ever attempted to show that that tract was not in fact situated as described in the writ. Truly, had the defendants, in their ejectment, so described their claim as to cover the Bowersox survey, the case would have been different; then might they have been estopped had they in this suit attempted to locate it elsewhere. But as they did nothing of the kind, and as they did not in any manner interfere with that survey, we cannot see how they can be estopped from showing the truth, or from taking advantage of the truth when shown by the plaintiffs. The only estoppel apparent in this case is that arising from the plaintiffs’ own evidence, from which it is obvious that they ought to have been estopped from a recovery. They exhibit a writ ordering them to commit no waste on a tract of land to which they had no title, and of which they had no possession — - on which they never did commit waste, and never intended to. How, then, were they hurt ? Suppose the affidavit did allege that they were in the possession of and were committing waste on the Hepburn tract, how could that mistake, or lie, if you please, prevent their cutting on the Bowersox? The writ of estrepement was the only thing the defendants in the ejectment had to look to, and as that only warned them to avoid the commission of waste on land with which they had nothing to do, it could do them no possible harm, and it is amazing how they came to entertain the thought that that writ either did, or was intended to, interfere with their work on a neighboring tract to which they knew the plaintiffs had no claim.

It is, indeed, difficult to believe that the plaintiffs abandoned their operations on the Bowersox land for the reason now alleged; but if they did so they committed a stupid blunder, *88the result of which they must bear themselves, and cannot be allowed to charge it upon the defendants.

The judgment is reversed.

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