Kirchner v. Miller. troversy about the true location of a fence subsequently built by the defendant on the rear of the lot. The complainant's counsel insists that the principle of the decision in McKelway v. Armour, 2 Stock. 115, is applicable to this case. There, McKelway had by mistake built on Armour's lot instead of his own, which adjoined it. Armour supposed McKelway was building on his own property, and did not suspect that he was, in fact, building on his. It was held that McKelway was entitled to relief, and that Armour must buy the improvements at a valuation to be fixed by this court, or convey his lot to McKelway at a valuation to be fixed in like manner, or upon receiving a conveyance of another adjoining lot of the same size, and in fact, more valuable than his. In that case the improvements were a valuable dwelling-house, and McKelway would, if the court had refused relief, have been subjected to a large loss. Although in that case Armour saw McKelway building on his land, he did not know or suspect that the building was being erected on his land, but supposed it was being built on McKelway's land. The decision seems to have been based on the ground of mutual mistake. The court, in fact, compelled Armour, who was in nowise in the wrong, to sell his property to McKelway at a price to be fixed by the court, or to exchange properties with McKelway, or to pay for the improvements which McKelway had put on his, Armour's, lot, although they had been so put on that lot, not only without Armour's knowledge, but without any suspicion on his part that McKelway was putting them on his, Armour's, property. The principle of the case is that where one by mistake puts improvements on another's land, mistaking it for his own, equity will, in a proper case, compel the latter to sell and convey the land to the former, at a price to be fixed by the court, unless he will consent to pay for the improvements. The exercise of such a judicial power, unless based upon some actual or implied culpability on the part of the party subjected to it, is a violation of constitutional right. No tribunal has the power to take private property for private use. The legislature itself cannot do it. Kirchner v. Miller. In McKelway v. Armour, the defendant was, by judicial compulsion, forced to sell his land to the complainant merely because the latter had, by his own mistake, put valuable improvements upon it, supposing it to be his own. The alternative given to the defendant-the terms on which alone he was allowed to hold his own property-was to pay for those improvements. Sir William Grant, M. R., says in Pilling v. Armitage, 12 Ves. 78, 84: "There are different positions in the books with regard to the sort of equity arising from laying out money upon another's estate through inadvertence or mistake; that person seeing that, and not interfering to put the party upon his guard. The case, with reference to which that proposition is ordinarily stated, is that of building upon another man's ground. That is a case which supposes a total absence of title on the one side; implying, therefore, that the act must be done of necessity under the influence of mistake; and undoubtedly it may be expected that the party should advise the other that he is acting under a mistake." And on this subject Judge Story says in Bright v. Boyd, 1 Story C. C. 478, 493, quoting the above with approval, that the duty of compensation in such cases, at least to the extent of the permanent increase of value, is founded upon the constructive fraud, or gross negligence or delusive confidence held out by the owner; and he holds that the maxim Qui tacet, consentire videtur; qui potest et debet vetare, jubet si non vetat, is applicable. "In order to justify the application of the principle," says Mr. Kerr, "it is indispensable that the party standing by.should be fully apprised of his rights, and should, by his conduct, encourage the other party to alter his condition, and that the latter should act on the faith of the encouragement so held out." Kerr on F. & M. 132. "It will be observed," said Lord Cranworth, in Ramsden v. Dyson, L. R. (1 H. of L.) 129, 141, "that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and secondly, that the real owner, at the time of the expenditure, knows that the land belongs to him and not to the person expending the money in the belief that he is the owner." To the same effect are remarks of Lord Wensleydale, in the same case. Kirchner v. Miller. To warrant the interference of equity in favor and upon the application of the person who has expended his money upon another's land, there must obviously be some hardship against which he ought in conscience to be protected; as that through his mistake he has expended money upon another's land, of which that other ought not, under the circumstances, to have the benefit. Where there is no hardship there is no ground for interference. This case is not one for the application of the doctrine. In McKelway v. Armour, the complainant had built a valuable dwelling-house upon the defendant's land, which he must lose unless the court granted him relief. Here there is no hardship to justify a call upon equity for relief. If the defendant be not restrained from proceeding with his action of ejectment, the complainant must remove from the defendant's land the part of his building (a wooden one) which is thereon, viz., a piece of about five inches wide by fifteen feet long. The building does not occupy the whole width of the strip. The complainant says he built up to within an inch and a half or two inches of the line. The extension is between twelve and thirteen feet witle, and is two stories high. The cost of removing the part which is on the defendant's land, and closing up the side again, would not exceed $100. The complainant's claim is that inasmuch as he, misled by the mistake of the surveyor, honestly but mistakenly assumed that he was the owner of a strip of land which in fact belonged to the defendant, and consequently built a part of his house on it, he is, on that state of facts alone, although the defendant neither did nor said anything to confirm him in his mistake, and in fact did not know that there was a mistake, entitled in equity to a decree that the defendant convey the land to him at a price to be fixed by the court, or accept land on the other side of his lot in exchange for it. To state the claim is to demonstrate its untenable character. It is true the complainant's wife testifies that a short time after the survey was made, she showed the stakes to the defendant, saying, "See what a piece of your ground we take!" But she says she did not suppose that the stake was over the true line, or that they were encroaching upon the defendant's land. It is New York and Greenwood Lake R. R. Co. v. Stanley. admitted that none of the parties knew or suspected that the survey was incorrect. The complainant claimed the land up to the line given him by the surveyor, and the defendant, having no knowledge or suspicion that the claim was not correct, did not gainsay it. It is very important that in applying the principle above considered, care should be taken that the rights of property be not infringed upon without adequate reason to justify it. The bill will be dismissed, with costs. THE NEW YORK AND GREENWOOD LAKE RAILROAD COм PANY υ. THE HEIRS OF HENRY STANLEY. A master was directed to ascertain and report the value of certain lands taken by a railroad company for its right of way, and the consequent damage to the owner's adjacent lands, as of the time when the company took the land.Held, that the land covered by a public road, which was laid out through the land taken by the company, after the company had taken it, should not be excepted. On exceptions to master's report. Messrs. C. & R. Wayne Parker, for exceptants. Mr. S. G. Potts and Mr. W. I. Shreve, contra. THE CHANCELLOR. By the order of reference it was referred to the master to take testimony, ascertain and report to the court as to the following matters: the value of the land taken by the railroad company for its right of way, and the amount of the damages done to the adjacent lands of the defendants by the taking of that land, and also the cost of making and maintaining the fences; and New York and Greenwood Lake R. R. Co. v. Stanley. he was directed to assess those items of value of land and damages as of the time when the land was taken, and of the cost of the fences as of the time when the fence was made, and allow interest at the legal rate from those times, respectively, to the date of his report. To his report the complainant excepts, on the ground that the amount he has reported as the value of the land taken and for the damages is excessive, and that in making the estimate of the former, he has not excepted part of the land which has been taken for a public road, but has allowed the defendants compensation therefor; and also because he has allowed for fencing on the east side of the land taken for the right of way, although no fence has ever been erected there. The order of reference requested him to report the value of the land as of the time when the land was taken, which was in or about February, 1870. The public road above mentioned was not laid out until 1871 or 1872. The master did right in conforming his report to the requirements of the order. The exception taken on the ground that he did not exclude the land taken for the road, must therefore be overruled. Nor can the other exceptions be sustained. The estimates in the evidence of the value of the land and damages are various and conflicting, but the master has reached a conclusion on the subject, which is fully in accordance with the weight of the testimony, and is just and fair. As to the fencing, the counsel of the parties agreed before the master, as appears by the record, that "the fencing should be computed at one hundred and eighty-six panels, along the line of the road," and the master so computed it. The railroad cut off a tract of about four acres from the rest of the farm, and it was proper to include, in the damages, the cost of fencing on both sides of the railroad. In the agreement set out in the bill, the company agreed to make and maintain a fence on each side. The master has allowed for the making of the fence only, and has made no allowance for maintaining it. The defendants made the fence on the west side of the railroad, and have maintained it, but none has been made on the east side. The master has allowed the cost of the fence on the west side, |