
    Pennsylvania Company v. Platt et al.
    
      Estoppel — Eminent Domain — Abandonment—Former Decisions — Practice.
    1. When it has been determined by this court that the petition in a case states a cause of action, and the case afterwards comes before the court for the review of alleged errors occurring at the trial, the court will follow the prior decision, unless very clearly satisfied that it is erroneous.
    2. In the decision of this case on the demurrer, reported in 43 Ohio St., 228, it was held, that upon the averments of the petition, the plaintiffs might treat the easement of The Lake Shore & Michigan Southern Railway Company in that part of its right of way described in the contract between that company and the defendant set forth in the petition, as abandoned, and recover of the defendant damages as upon an appropriation. The fact, upon which the petition based the alleged abandonment, was the making of the contract alluded to, by which the Lake Shore company undertook to transfer that part of its right of way therein described, to the defendant for railroad purposes in perpetuity. The averments of the petition relating to the abandonment, are, that by the agreement between the two companies, The Lake Shore & Michigan Southern Railway Company, for the consideration therein named, “ abandoned to the defendant and undertook to permit and license the defendant to use and perpetually occupy for its railroad,” that part of the former company’s right of way referred to; and, “that by the abondonment aforesaid,” the easement of The Lake Shore & Michigan Southern Railway Company “ceased and terminated;” and, “that portion of said lot so abandoned to and occupied by the defendant is of the value of ten thousand dollars.” The answer does not controvert the making of the contract between the two companies as alleged in the petition, but denies that the Lake Shore company intended .to or did thereby abandon any of its right of way, or that its easements or right of way ceased and determined by virtue of said agreement.
    
      Meld: (a.) These denials raise no issue of fact. They are the pleader’s construction of the contract, and his opinion as to its legal effect.
    (6.) By the decision upon the demurrer, it was settled that the effect of the contract made between the Lake Shore company and the defendant, was to work the abandonment claimed in the petition; and it was not error for the court,.on the trial of the case, to so instruct the jury.
    3. In order to estop an owner, from asserting title to his property, by his declarations or conduct, it must appear, that he was, at the time, apprised of the true state of. his title; that he knew, or had reason to believe, his declarations or conduct would be acted upon by another; that they were acted upon by such other person in ignorance of the title, and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him, to be disproved.
    
      4. While an owner, who stands by, and without objection, sees a public railroad constructed on his land, will, after the road is completed, or large expenditures have been made thereon, upon the faith of his apparent aequiesence, be estopped from reclaiming the land, or enjoining its use by the railroad company, he is not thereby estopped from claiming compensation for its value.
    (Decided May 20, 1890.)
    On the 14th of July, 1876, the defendants in error, Harvey P. Platt and Charles H. Scribner, commenced an action against the Pennsylvania Company, in the Court of Common Pleas of Lucas county, by filing therein the following petition.
    “ The plaintiffs, Harvey P. Platt and Charles H. Scribner, say that the defendant, the Pennsylvania Company, at the times hereinafter mentioned, was, and still is, a railroad corporation, created and organized under the laws of the state of Pennsylvania, and, during the period hereinafter mentioned, has been doing business in Ohio, and managing and operating a line of railway partly located in said county of Lucas, under and by virtue of the laws of the state of Ohio : but said defendant does not now have, nor has it ever had power under the laws of Ohio to appropriate lands for railroad purposes.
    “ Plaintiffs further say, that in the year 1851, one William Oliver was, and for some time prior thereto had been, the owner in fee simple of the following described lands, to wit: Lot thirteen (13) in the subdivision of fractional sections one and twelve, town ten, south, range seven, east, and of river tracts eighty-six (86) and eighty-seven (87), in the twelve mile reserve at the foot of the Rapids of the Miami of La.ke Erie, Lucas county, Ohio.
    “ That while the said Oliver was the owner of said lot as aforesaid, and on the 28th day of Februaiy, a. d. 1851, The Toledo, Norwalk & Cleveland Railway Company, a corporation created under and 'by virtue of the laws of Ohio, for the purpose of constructing and operating a line of railway in said state, instituted proceedings in the Court of Common Pleas of said county, to appropriate and condemn for its uses as such railroad corporation, a portion of said lot thirteen. Such action was had therein that a portion of said lot, being a strip of land one hundred feet in width and about twelve hundred feet in length, extending entirely across said lot on the westerly side thereof, was appropriated by said last mentioned railroad company for its uses aforesaid; but no compensation for said lands so appropriated was awarded or paid to said owner thereof.
    “ That shortly after said appropriation, and in virtue thereof, said The Toledo, Norwalk & Cleveland Railway Company constructed along and upon the westerly fifty feet of said strip of ground, a railroad track, and continued thereafter to run their cars over the same until said company was merged by consolidation, under the statutes of Ohio, into The Lake Shore & Michigan Southern Railway Company, which last mentioned company became the successor and was and is vested with the rights, property and franchises of said The Toledo, Norwalk & Cleveland Railway Company; and has since continued to run its cars over said track so constructed along and upon the westerly fifty feet of said strip of land appropriated as aforesaid; but neither the said The Toledo, Norwalk & Cleveland Railway Company, nor the said The Lake Shore & Michigan Southern Railway Company has ever made use of any portion of said strip of land lying east of the centre line thereof; nor has either of said railroad companies ever had any interest in said lands except as acquired by said appropriation.
    “Plaintiffs further say, that after the said appropriation the said William Oliver departed this life intestate, seized in fee of said lot thirteen, leaving one Harriet O. Hall his only child and heir-at-law; who thereupon became and was seized in fee of said lot, subject, only, to the rights acquired by said * railroad company under and by virtue of said proceedings to appropriate. And being so seized in fee, thdsaid Harriet O. Hall, on the 25th day of September, A. D. 1869, by her deed of that date duly executed, acknowledged and delivered, conveyed to these plaintiffs all of said lot thirteen, including said strip of ground one hundred feet in width, subject, however, to the rights acquired therein by said railway company as aforesaid; but excepting a portion of said lot off the southerly end thereof, and easterly of the centre" of the River Road, so called, containing five and acres, which had been before that time conveyed to one Stillman Brown. And plaintiffs say, that under and by virtue of said conveyance they therefore became and have ever since been vested with the full title and estate in and to said premises, in their own right and in trust, and they thereupon entered upon and have ever since been possessed thereof, subject only to the rights of said railroad company acquired as aforesaid.
    “ Plaintiffs further say that about the month of September, A. d. 1872, or shortly thereafter, the defendant, the said Pennsylvania Company, wrongfully and unlawfully, under a pretended license obtained from the said The Lake Shore & Michigan Southern Railway Company, entered upon so much of said strip of ground one hundred feet in width, appropriated as aforesaid, as lies easterly of the centre line thereof, and proceeded to, and did dig and excavate the same along and upon said lot for the entire length thereof, and proceeded to, and did lay down and construct thereon a railway track, and have ever since been, and now are, engaged in running their passenger and freight trains of cars daily, and many times each day, along and over the same; that on the 4th day of January, A. D. 1874, the said Pennsylvania Company entered into a contract in writing with the said The Lake Shore & Michigan Southern Railway Company, a copy of which is hereto attached, marked “ A,” and made a part of this petition, whereby it was agreed, among other things, between said companies, that for the consideration of $7,500, to be paid by defendant to said The Lake Shore & Michigan Southern Railway Company, and upon certain other considerations in said agreement mentioned, the said last mentioned company abandoned to the defendant, and undertook to permit and license the defendant to use and perpetually occupy for its said railroad, a strip twenty-five feet in width, part of said strip of one hundred feet in width, lying east of and adjoining the centre line of said last mentioned strip, along the entire length thereof; and also assumed, for the consideration aforesaid, to grant to defendant certain other rights and privileges in the lands and easements of said The Lake Shore & Michigan Southern Railway Company. The portion of said lot so abandoned by said last mentioned company to the defendant, is shown in the plat or diagram attached to, and forming part of said Exhibit “A,” and made a part of this petition. And plaintiffs say, that the defendant claims, under and by virtue of said contract with said The Lake Shore & Michigan Southern Railway Company, to have acquired the right to use and occupy said strip of ground for its said railroad purposes, during its will and pleasure.
    “And plaintiffs aver that by the abandonment as aforesaid of the easterly fifty feet of said strip of ground by the said The Lake Shore & Michigan Southern Railway Company, and of the portion thereof occupied by defendant as aforesaid, the said easement therein of the said last mentioned company acquired by said appropriation thereof, has ceased and terminated; that defendant has acquired no right in and to any portion of said lot under said contract with said company, or otherwise, and all its said acts are in violation of the rights of plaintiffs as the said owners of said premises; and plaintiffs aver that that portion of said lot so abandoned to and occupied by defendants, as aforesaid, is of the value of ten thousand dollars.
    “ Plaintiffs further say, that said lot thirteen extends, on the west, to the thread of the channel of the Maumee river, and embraces the easterly shore of said Maumee river for a distance of about twelve hundred feet; that as the owners of that portion of said lot thirteen conveyed to them as aforesaid, they are invested with the title to and ownership of said river front, extending to the thread of the channel of said river, as aforesaid, and all the rights and privileges connected therewith and attaching thereto; and but for the said wrongful and unlawful acts of the defendant hereinbefore complained of, the said property, rights and privileges of the plaintiffs would be of great value.
    “ Plaintiffs say that the said excavations made by the defendant, as aforesaid, are of great depth, and extend entirely across the said lot thirteen, at the westerly side of the River Road, so called, and are within a short distance of said river front of the plaintiffs for said distance of about twelve hundred feet; that said railroad track of defendant is constructed upon, and operated along that portion of said lot so excavated as aforesaid, at a different grade from that of the tracks - of said The Lake Shore & Michigan Southern Railway Company; and by reason of the premises aforesaid all communication between said river front and the remainder of plaintiffs’ said premises is cut off and destroyed; that in consequence of said wrongful and unlawful acts of the defendant, and of the proposed maintenance thereon of defendant’s said line of railway as aforesaid, the usefulness and value of plaintiffs’ said river front, and of the remainder of their said premises have been and are greatly injured and impaired and depreciated; and plaintiffs aver that they have sustained damages by reason of the premises aforesaid in the sum of fifty thousand dollars.
    “ Wherefore plaintiffs pray judgment against the defendant for the sum of sixty thousand dollars; and for all other proper relief.”
    A general demurrer to the petition having been sustained, the case was brought on error to this court, where it was held that the petition stated a cause of action, and the judgments below were reversed, and the cause remanded for further proceedings. The decision of the court is reported in Yol. 43 of the Ohio State Reports, p. 228.
    A copy of the contract between The Lake Shore & Michigan Southern Railway Company and the Pennsylvania Company, referred to in the petition as Exhibit “A,” is contained in the statement of the case there made, and need not be again set out here.
    After the case was remanded to the court of common pleas the defendant filed the following answer:
    “And now comes the defendant, and by leave of court files its amended answer to plaintiffs’ petition and says: It admits that it is a corporation of the state of Pennsylvania, .-and has been doing business in Ohio, operating the line of : railway named in plaintiffs’ petition; it admits that William 'Oliver was the owner of the premises described .in plaintiffs’ ¿petition, in the year 1851, and that The Toledo, Norwalk & Cleveland Railway Company, a corporation created under and by virtue of the laws of Ohio, duly appropriated and condemned for the use of its line of railway, a portion of the lot of said Oliver extending entirely across said lot and one hundred feet in width as averred in said petition; but it denies the averment in said petition that said Oliver was not compensated and paid for said lands so appropriated by said railway corporation; it admits that said The Toledo, Norwalk & Cleveland Railway Company afterwards constructed a line of railway upon said tract, and that thereafter said corporation was merged by consolidation under the statutes of Ohio, into The Lake Shore & Michigan Southern Railway Company, and that The Lake Shore & Michigan Southern Railway Company thereby became the successor and vested with all the rights, interests and property franchises of said The Toledo, Norwalk & Cleveland Railway Company, and has since continued to maintain and operate said railway upon said premises; but it denies the averment in said petition contained that neither the said The Toledo, Norwalk & Cleveland Railway Company, nor the said The Lake Shore & Michigan Southern Railway Company, has ever made use of any portion of said strip of land lying east of the centre line thereof; it says that it is not advised of the state of plaintiffs’ title, and therefore denies the same; it admits that on or about the month of September, A. x>. 1872, it entered upon a portion of said one hundred feet immediately east of the centre line thereof, to wit: a strip twenty-five feet in width, and that it has laid thereon a track as averred in said petition, and that it has since maintained and operated the same; but it denies that it did so wrongfully and unlawfully, and it denies that under and by virtue of the arrangement between The Lake Shore & Michigan Southern Railway Company and the defendant, The Lake Shore & Michigan Southern Railway Company intended to and did abandon the said twenty-five feet occupied by said defendant, or the remaining twenty-five feet east of the part occupied by the defendant, but it avers the fact to be that the said arrangement entered into by said railway companies was entered into by said The Lake Shore & Michigan Southern Railway Company and this defendant for the common benefit of both companies, in accordance with the powers conferred by the statutes of Ohio in such cases made and provided; and among other purposes it was designed to afford the means of interchange of traffic between said two named companies by furnishing means for connections of tracks, and that shortly after the construction of defendant’s railroad track, connection was made by the defendant with the tracks of The Lake Shore & Michigan Southern' Railway Company, and the same has ever since been maintained and operated and used as a means of interchanging traffic from either of said lines to the other. It further says that it denies that the easement and rights of said The Lake Shore & Michigan Southern Railway Company in and to the fifty feet easterly of the centre line have ceased and determined by virtue of said agreement of 1874, but it avers the fact to be that said The Lake Shore & Michigan Southern Railway Company still owns, occupies and controls the twenty-five feet easterly of the part occupied by this defendant; it denies the averment in said petition contained that the easement in the easterly fifty feet of said strip of The Lake Shore & Michigan Southern Railway Company has ceased and terminated; it further says that it denies that any acts of the defendant have affected the value of said portion fronting upon the river, and it denies that the strip of ground so as aforesaid occupied by it is of the value of ($10,000) ten thousand dollars, as it is averred in said petition; it denies that the excavations made by the defendant for the purpose of constructing its railway are of great depth, and that but for said excavation and the existence of defendant railway, said river front would be of much greater value than it now is; it denies that the construction of its said line of railway upon said strip of ground has in any. manner affected or impaired the communication and means of access from one portion of plaintiff’s premises to the other; but it avers the fact to be, that the original appropriation in 1851 completely severed the portion of said lots fronting upon the river from the portion lying easterly of the one hundred feet thus appropriated, and that prior to the construction of defendant’s railway the plaintiffs had no means of communication from one piece to the other across said one hundred feet; it further avers that the grade line, upon which it located and constructed its said track, was such grade line as said The Lake Shore & Michigan Southern Railway Company, as the successor of The Toledo, Norwalk & Cleveland Railway Company, has the full and perfect right, under the said appropriation, to adopt as the line for double tracks or side tracks in connection with its said line of railroad, and in furtherance of its said railroad.
    
      “Second Defense. — The defendant answering further says : that prior to the time of the construction of the defendant’s railroad bed upon the lands described in the petition, the plaintiffs had acquired the title to said lot No. thirteen (13) as alleged in their petition, and were the owners thereof at the time and during the construction of said railroad by this defendant, as alleged in said petition; that said plaintiffs then well knew that this defendant claimed title to said twenty-five feet of land whereon its said road was being built, and entered upon, took possession of and constructed its said road with the understanding and belief that it had a right to do so under its said contract with the said The Lake Shore & Michigan Southern Railway Company. That notwithstanding all this the plaintiffs stood by, acquiesced in and encouraged the defendant in the construction of its said railroad upon said lot thirteen (13), and made no protest or objection thereto; and asserted no claim to the ownership of said right of way until after the completion of said railroad, and the defendant says that by reason of the aforesaid acts of said plaintiffs they are thereby estopped from making the claim set forth in their said petition.
    “ Wherefore it asks to be dismissed with its costs.”
    The plaintiffs by their reply denied generally the allega tions of new matter contained in the answer, and upon the issues thus joined by the pleadings, the case was tried to a jury, which returned a verdict for the plaintiffs assessing their damages in the sum of $15,993.14.
    A motion for a new trial was overruled upon the plaintiffs remitting $500 of the verdict, and judgment was thereupon rendered for the balance.
    The judgment was affirmed by the circuit court, and this proceeding is prosecuted here to reverse the judgments of the courts below. The questions arising upon the record, which it is deemed important to notice in the disposition of the case, together with any further statement necessary to their understanding and decision, will appear in the opinion.
    
      E. W. Tollerton and J. H. Doyle, for plaintiff in error,
    cited and commented upon the following cases. Reckner v. Warner, 22 Ohio St. 275; Butt v. Green, 29 Ohio St. 671; 6 Hill, 48; 5 Hill, 468; 3 Comst., 519; East Ala. Rwy. v. Tenn. & Coosa Riv. Rd., 78 Ala. 274; Karnes v. Wingate, 94 Ind. 594; Timon v. Whitehead, 58 Tex. 290; Woods v. Seeley, 32 N. Y. 105; Union Dime Inst. v. Wilmot, 94 N. Y. 221; 46 Am. Reports, 137; Parker v. Crittenden, 37 Conn. 148; Bank v. Bowen, 80 Ill. 541; Kinnear v. Mackey, 85 Ill. 96; Camp v. Moseley, 2 Fla. 171; Wortham v. Gurley, 75 Ala. 356; Bigelow on Estoppel, 4th ed., 587, 588; Towns v. Needham, 3 Paige 545; Jones v. Powell, 6 Johns. N. Y. 194; Hills v. Miller, 3 Paige 254; Watertown v. Cowan, 4 Paige 510; Childs v. Campbell, 9 N. Y. 246; Bigelow on Estoppel, page 639; Lawrence v. Stratten, 6 Cush. 163; Holbrook v. Tirrell, 9 Pick. 105; Commonwealth v. Dudley, 10 Mass. 403; Howard v. Massengale, 13 Da. 577.
    
      Eranlc K. Kurd and Charles Pratt, for defendants in error,
    commented on the cases above, and also cited and commented on the following authorities and statutes. Hill v. Bassett, 27 Ohio St. 599; Sec. 5302 Revised Statutes; Roscoe Digest of Nisi Prius Evidence, 91; Esterwick v. Cooke, 2 Ld. Raym. 1557; 73 Ohio Law, 140; Walton v. U. S., 9 Wheat. 651, 
      Bradford v. Watts, Wright 497; Moore v. Brown, 10 Ohio 197; Hubble v. Renick, 1 Ohio St. 171; Markward v. Donat, 21 Ohio St. 637; Wells on Res. Adj., 569; Stacey v. R. R. Co., 32 Vt, 552; Bridge Co. v. Stewart, 3 Howard 425; Hunily v. Rose, 5 Cranch 314; Morton v. Hunter's Lessee, 1 Wheat. 304; Brown v. McArthur, 7 Wheat. 58; The Santa Maria, 10 Wheaton 442; Ex-parte, Sibold, 12 Peters 442; Case v. Beauregard, 101 U. S. 688; Law Bulletin Oct. 21, 1889, page 272; Bank v. Flour Co., 41 Ohio St. 552; 6 Am. & Eng. Ency., 508; Lewis on Em. Dom., sec. 586; Mississippi R. R. Co. v. Wooten, 36 La. Ann. 441; Kansas Central R. R. Co. v. Allen, 22 Kan. 285; Railroad Co. v. Kiegelo, 32 Kas. 608; Blake v. Rich, 34 N. H. 282; Lands' Appeal, 55 Pa. St. 16: Railway Co. v. Kidder, 21 Ill. 131; Railway Co. v. Switzer, 117 Ill. 399; Carpenter v. Baston & Amb. R. R. Co., 24 N. J. Eq. 240; S. C., Ibid, p. 408; S. C., 26 N. J. Eq., 168; 2 Curwen, 1394, sec. 10; Act of April 5, 1866; Baker v. Taunton, 119 Mass. 302; Munn v. Stanton, 42 Mich. 500; New-ville Road case, 8 Watts. 172; Lewis on Em. Dom., sec. 508 and 648; Goodwin v. R. R. Co., 18 Ohio St. 169; R. R. Co. v. Robbins, 35 Ohio St. 538; Oliver v. R. R. Co., 101 N. Y. 122; McAfferty et al. v. Conover, 7 Ohio St. 105.
   Williams, J.

In the former decision of the case, reported in 43 Ohio State 228, it was held, that the petition stated a cause of action entitling the plaintiffs to recover of the defendant, as in a proceeding by it to appropriate the strip of land occupied by its railroad, compensation for the value of the land so occupied, and damages for the increased danger and inconvenience in the use of the plaintiffs’ other lands from which the strip was severed, arising from the construction and operation of the defendant’s road. Upon the trial of the case, subsequently had in the court of common pleas upon the issues joined by the pleadings, it appeared, that The Lake Shore & Michigan Southern Railway Company continued to own and use the west half of the right-of-way originally appropriated, which completely separated the plaintiffs’ riverfront, from their other lands; and, that no privilege of crossing the right-of-way, as a means of access from their river front to their lands on the other side, belonged to the plaintiffs. The court, accordingly, instructed the jury that the plaintiffs were not entitled to recover damages for the alleged injury to their riverfront, and withdrew the evidence relating to such damages from their consideration.

With respect to the damages claimed for the injury to the plaintiffs’ land lying east of the strip occupied by the defendant’s road, and between it and the river road, evidence was given tending to show that The Lake Shore & Michigan Southern Railway Company never abandoned any part of its right-of-way lying east of the defendant’s road-way. Evidence was given by the plaintiffs tending to prove their damages, if such abandonment should be found by the jury. The jury found upon the question for the plaintiffs, and returned in their verdict, separately, the specific amount of damages so sustained. Upon the hearing of the motion for a new trial, the court, being of the opinion, that part of the verdict was not sustained by the evidence, required the plaintiffs to remit the damages so assessed, which was done, and judgment entered for the remainder of the verdict.

All questions have been thus eliminated from the case, except those relating to the plaintiffs’ right to recover the value of the strip of land occupied by defendant’s road. This right, on the trial, was contested upon two grounds. 1. That there had been no abandonment by The Lake Shore & Michigan Southern Railway Company, of that part of its right-of-way; and 2. That plaintiffs were estopped, by their conduct, from claiming such abandonment.

I. In the charge to the jury, after.stating that the right, acquired by the railroad company making the appropriation, was an easement in perpetuity for railroad purposes in the strip of land so appropriated, which, afterwards passed to and became the property of the Lake Shore company, and, that by the contract, referred to in the petition, between the defendant and the Lake Shore company, the latter company transferred to the defendant for railroad purposes, twenty five feet of the appropriated strip, the court said to the jury, that “ the supreme court of this state has decided that by virtue of such transfer, the Lake Shore company abandoned its easement to the said twenty-five feet, and that thereby the said twenty-five feet reverted to, and became the property of the plaintiffs, clear and free from the said easement.” After the jury had retired, they returned into court and requested that a portion of the charge be re-read to them, which was done without objection; and then, in response to an inquiry made by one of the jurors, the court further said to the jury; “ The supreme court decided that the contract made by the Pennsylvania Company and the Lake Shore company worked an abandonment of that twenty-five feet, and that thereby it reverted to the plaintiffs, and they became the absolute owners of the property free from the easement.” The defendant excepted to these portions of the charge, and requested the court to give in charge each of the following instructions, viz.:

“ There is nothing contained in the contract between the Lake Shore company and the Pennsylvania Company, of date January 4,1874, whereby the former grants to the latter the said twenty-five feet of land, which in law amounts to an abandonment by the Lake Shore company of its rights in said land. The Lake Shore company had a right to make said contract, and the Pennsylvania Company acquired thereby a right to construct its road as it did upon said twenty-five feet of land, as described in said contract.

“If the jury find that The Toledo, Norwalk & Cleveland Railway Company, in constructing its road, built the same substantially in the centre of its one hundred feet of appropriation, then I charge you that this was a user of the entire one hundred feet; and if you further find that said track has ever since remained where originally built, then there never has been any abandonment by said company, and your verdict must be for the defendant.

“If the jury find that such use of the east fifty feet for support and protection was necessary, and the grant to the Pennsylvania Company and the construction of its track was in aid of such protection and an additional protection, such grant would not amount to an abandonment.”

The court refused to give either of these instructions, and the defendant excepted.

It is clear, that if the charge given was correct, there was no error in refusing the instructions requested, unless the decision upon the demurrer should be overruled. And, though counsel for the plaintiff in error, question the soundness of that decision, they recognize the well established rule, that when it has been determined by this court that a petition states a cause of action, and the case afterwards comes before the court for the review of alleged errors occurring at the trial, the former decision will be followed, unless it is very clearly erroneous. Their contention is,- that the decision upon the demurrer, has not the effect ascribed to it by the trial court, in the portions of the charge under consideration. And whether it has, or not, is the question now before us.

The fact, upon which the petition bases the alleged abandonment, by the Lake Shore company, of its easement in the strip of land for which the plaintiffs claim compensation, is the contract made between that company and the defendant, by which, the former, undertook to transfer that part of its easement, to the latter, for railroad purposes in perpetuity. The averments of the petition are, that by the agreement between the two companies, The Lake Shore & Michigan Southern Railway Company for the considerations therein named “ abandoned to the defendant, and undertook to permit and license the defendant to use and perpetually occupy for its railroad,” the strip of land in question; and, “ the portion of said lot so abandoned ” is shown by the diagram attached to the contract; and, “ that by the abandonment as aforesaid ” the easement of The Lake Shore & Michigan Southern Railway Company “ ceased and terminated; ” and, “ that portion of said lot so abandoned to and occupied by the defendant is of the value of ten thousand dollars.” No other abandonment than that resulting from the contract, is alleg-ed in the petition; nor, is the abandonment placed upon any other ground. True, the petition avers that the Lake Shore company never had any interest in the land except that acquired by the appropriation, which was but an easement, and that it never used any portion of the strip so acquired, lying east of the centre line thereof. But it is nowhere charged, or claimed in the petition, that the abandonment resulted from such non-user. As we understand the decision upon the demurrer, it was held, that upon the averments of the petition, the plaintiffs might treat that part of the easement which the Lake Shore company transferred to the defendant, as abandoned by the former company, and recover of the defendant as upon an appropriation; and by that decision, fairly construed, in view of the allegations of the petition, it was settled, we think, that the effect of the contract between the Lake Shore company and the defendant, was to work the abandonment of that portion of the right-of-way described in it.

The answer does not controvert the making of the contract between the two companies, as alleged in the petition, but denies that the Lake Shore company intended to or did thereby abandon any of its right-of-way, or that its easement or right-of-way ceased and determined by virtue of the contract. These denials, in the light of the former decision, raised no issue of fact. They are the pleader’s construction of the contract, and his opinion of its legal effect. It is further averred in the answer that the contract was entered into for the common benefit of both companies, and was designed to afford means for the interchange of traffic between the two companies; and it is contended in argument, that the Lake Shore company retained a beneficial use of that part of its right-of-way transferred to the defendant by the contract, resulting from the protection afforded by the defendant’s roadway to the tracks of the Lake Shore company.

The agreement between the two companies is expressed in the written instrument. It is no part of that agreement, that the Lake Shore company shall retain for any purpose, any control of, or interest in, that part of the right-of-way transferred by the agreement to the Pennsylvania company, nor, that the latter shall so construct or maintain its roadway as to protect the tracks of the former. It may incidentally result, that the tracks of the Lake Shore company will receive some protection from the grade of the defendant’s road as now constructed, but such incidental protection confers on the former company, no right in, or control over, the latter’s road, or the strip of land transferred to it by the contract. The agreement imposes no obligation upon the Pennsylvania company, to maintain its roadway as now constructed. It may change the grade at pleasure, and any right to use or control any part of the right-of-way occupied by the defendant, which the Lake Shore company may hereafter acquire for the protection of its tracks, must depend upon future conventional arrangement between the two companies. And so, with regard to the interchange of traffic between the two companies, and the use of the tracks of each company for the common benefit of both; for nothing on either subject is found in the written contract. By that contract, the surrender by the Lake Shore company of its dominion over that part of its right-of-way therein described, was complete. The charge of the court, with respect to the effect of the former decision was, we think, free from error.

U. The estoppel pleaded by the defendant, is in substance, that the plaintiffs, being the owners of the premises on which the defendant was constructing its railroad, and knowing that the defendant claimed title under its contract with the Lake Shore company to that portion on which its road was being built, stood by, acquiesced in, and encouraged the defendant, in the construction of the road, and asserted no claim to any part of the right-of-way, until after the road was completed.

Upon the trial of the case, the inquiry in regard to the estoppel was allowed a somewhat more extended range, and evidence was admitted tending to show an estoppel, by declarations and conduct of the plaintiffs which induced the defendant to enter into the contract with the Lake Shore company. The defendant was given the benefit of this evidence, as well as of the evidence tending to prove the estoppel pleaded, as appears from the charge of the court, which, upon this branch of the case was as follows:

“ Where one person, by his acts or declarations made deliberately, and with knowledge, induces another to believe certain facts to exist,, and that other person rightfully acts on the belief so induced, and is misled thereby, the former is estopped to afterwards set up a claim based upon facts inconsistent with the facts so relied upon, to the injury of the person so misled. This definition embraces all the essential elements of an estoppel. It will be your duty to examine the evidence, and ascertain whether all these elements are proved in this case substantially as I have stated them. Inquire first if the plaintiffs said or ■ did anything, and if so, what, to induce the Pennsylvania Company to enter into this contract with the Lake Shore company, which is set out in the petition. Merely standing by with knowledge that the railroad company has entered upon the land and is constructing its railroad thereon, and making no objection, is not of itself sufficient. Such conduct might deprive the owner of his right to reclaim the land or to enjoin the operation of the railroad, or to recover the value of the improvements put upon the land by the railroad company; but something more is necessary to bar his claim to recover compensation for the land taken. Did the plaintiffs know that this contract, or substantially such a contract, was about to be made; and did they, by their conduct or declarations, fairly lead the defendant to understand and believe that by such contract the defendant would get the title to this strip of land free from any claim of the plaintiffs to compensation ? To estop the plaintiffs by their acts or declarations, such acts or declarations must have come to the knowledge of and be relied upon by the defendant. Any statements made by the plaintiffs to the Lake Shore company, of which the defendant had no knowledge, or upon which they did not rely, are not sufficient to create an estoppel. If the plaintiffs knew of this contract, they and the defendant are alike presumed to know what the legal effect of the contract was, viz.: that it would work an abandonment by the Lake Shore company of its easement in this strip Of land, and restore the land to the plaintiffs free Tom the easement. And the conduct of both parties must be considered in tbe light of such a presumption. The defendant, knowing the legal effect of such a contract, would enter into it at its peril, unless it was fairly led to believe by the declarations or the acts of the plaintiffs that it might do so without incurring any liability to them. If the plaintiffs knew that a contract was about to be made between the Lake Shore company and the Pennsylvania company, whereby the former company would cede to the latter company the right to occupy and forever maintain and operate its railroad upon this strip of twenty-five feet, and induced the defendant to believe that they had no claim or would assert no claim by reason of such contract, and in reliance upon this belief the defendant entered into the contract, the plaintiffs then would be estopped from maintaining this action. Or if plaintiffs requested the Lake Shore company to cede to the defendant twenty-five feet of said right-of-way, for the purpose of constructing and permanently operating defendant’s railroad thereon, and the defendant knew of such request, and in reliance thereon entered into the said contract, and the plaintiffs gave no notice to either company that such contract would be treated as an abandonment, then the plaintiffs are es-topped. But if the plaintiffs had no knowledge that a contract was entered into for a permanent occupation by the Pennsylvania company of this twenty-five feet for its railroad, or that such contract was about to be entered ipto, or if the defendant had no knowledge of the alleged acts or declarations of the plaintiffs, or if it had reason to believe that an abandonment would be claimed by the plaintiffs, then the plaintiffs are not estopped.”

The defendant took exceptions to portions of this charge. An extended discussion of the exceptions would not be profitable. We see no error in the charge prejudicial to the defendant. Upon the estoppel pleaded in the answer, it follows the case of Goodin v. The Canal Co., 18 Ohio St. 169, and the definition of an estoppel in pais, contained in the first paragraph above quoted, to which the defendant excepted, is adopted literally from the opinion of the court in the case of Ensel v. Levy, 46 Ohio St. 255. We have been unable to discover that any part of the charge is in conflict with the cases of Smiley v. Wright, 2 Ohio, 506, Resor v. O. & M. R. R. Co., 17 Ohio St. 139, Rosenthal v. Mayhugh, 33 Ohio St. 155, relied on by counsel for the plaintiff in error.

In Smiley v. Wright, a widow who was entitled to dower in land sold at public sale, was present at the sale, and agreed that the land might be sold free of her dower. It was publicly proclaimed in her presence that the land would be sold free of her dower, and it was so sold. It sold for a larger sum on that account than it otherwise would. She afterwards brought suit for dower against the purchaser, and she was held estopped. By her agreement and conduct she induced the purchaser to buy the land, and pay for it more than he would otherwise have done.

In Resor v. The O. M. R. R. Co., “ a vendor put his vendee into possession, and executed and placed in his hands a deed of conveyance for the land sold with - an understanding between them that the deed should not be considered as delivered, or become effectual, until the purchase money should be paid; and the vendee subsequently put the deed upon record, and, without paying the purchase money, mortgaged the land to Iona fide mortgagees for value, and without notice; ” and it was held that the vendor was estopped, as between him and the mortgagees, from denying the delivery of the deed, or asserting any claim to the land. In other words, the vendor clothed the vendee with all the evidences of title, enabled him thus to appear of record as the owner, and the mortgagees acted upon his title thus appearing of record. The vendor’s conduct amounted to a representation to the mortgagees that the vendee was the owner of the land, upon the faith of which, the mortgagees loaned their money. As was said by Welsh, J., in the opinion, the vendor “ by his own acts, in putting. the land and deed of conveyance therefor into the possession of the company, plainly said to the world that the company was the owner of the land, and might safely be dealt with as such. As much so as if he had stood by and told the mortgagees that the vendee was the owner.”

In Rosenthal v. Mayhugh, a woman whose husband had deserted her, and who had not been heard from for seven years, under,the belief that he was dead, joined with the children, to induce a sale of land which belonged to him, in representing that he was dead, and they thereby effected the sale. She also as widow, joined with the children in a conveyance in fee with covenants of warranty, and the contract was fully executed by the purchaser. It was held, that although the husband was still living, she was estopped from treating the contract as a nullity, and, upon the death of her husband, from asserting her right to have dower assigned her.

In each of these cases, all the elements of an estoppel as defined by the court in its charge, were present.

It is, we think, by these, and other adjudications in this state, fully established that in order to estop an owner from asserting title to his property, by his declarations or conduct, it must appear, that he was, at the time, apprised of the true state of his title, that he knew or had reason to believe his declarations or conduct would be acted upon by another, that they were acted upon by such other person in ignorance of the title, and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him, to be disproved; and, while an owner, who stands by, and without objection sees a railroad constructed on his land, will, after the road is completed, or large expenditures have been made thereon upon the faith of his apparent acquiescence, be estopped from reclaiming the land, or enjoining its use by the railroad company, he is not thereby estopped from claiming compensation for its value.

The charge of the court is in conformity with these rules. But the several instructions requested by the defendant, on the subject, which were refused, are not. Each lacks some essential ingredient of an estoppel. They are as follows:

“1. If the jury find from the evidence that the plaintiffs were the owners of the land in question at the time of the construction of the defendant’s railroad thereon, and knowing that the same was being built by the defendant upon the belief that it had the title thereto, stood by and made no objection or protest to the defendant against its construction upon their said land, then the plaintiffs are estopped from making their claim in this action, and your verdict must be for the defendant.”

“ 2. If the jury find from the evidence that the plaintiffs induced the Pennsylvania Company to locate its railway upon their property, and knew that the defendant in so constructing its road relied upon its title to said way and its right to so construct its road, then the plaintiffs are estopped from asserting any claim to any portion of said land, and your verdict must be for the defendant.”

“ 3. It was competent for these plaintiffs to waive the right' to insist upon an abandonment, and if the jury find that the plaintiffs requested the Lake Shore company to cede to the defendant twenty-five feet of the said right-of-way for the purpose of erecting and maintaining its track thereon, and made no claim to either company, and gave no notice that such action would be treated as an abandonment, the plaintiffs would now be estopped to claim that such ceding or grant was an abandonment.”

“4. If the plaintiffs knew of their rights, and- knowing-them, permitted the Lake Shore company to grant the right to the defendant herein to build, maintain and Operate its track, on the belief that it had the right so to do, and the plaintiffs saw the defendant spending money in making valuable and permanent improvements thereon without knowledge of plaintiffs’ rights, and the plaintiffs kept silent until after the expenditure and improvements were made, they will be estopped from claiming either compensation or damages, and your verdict must be for the defendant.”

The first instruction is in conflict with Goodin v. Canal Co., supra. The second, omits the essential elements, that the plaintiffs knew of their own title, and' the defendant was ignorant of it. Besides, there was evidence tending to prove that the defendant located and constructed its road on lands belonging to the plaintiffs, other than that for which they were claiming compensation in the action; and the instruction, if given, would have been misleading, for it would have authorized the jury to find the estoppel, if the plaintiffs induced the defendant to locate its road on any of their property. The instruction, if otherwise correct, should have •been limited to the property for which the plaintiffs were seeking compensation. The defect in the third instruction, is, that it is not made necessary to the estoppel, that the request of the plaintiffs should have been acted upon by, or have influenced the conduct of, either company. And the fourth, is not substantially different from the first.

Finding no error in the record,

The judgment is affirmed.  