Opinion by
Rice, P. J.,
This controversy arose out of the location and maintenance of two pipe lines for the transportation of petroleum across the plaintiff’s land. A concise and connected statement of the facts necessary to a proper understanding of the questions involved is contained in the findings and opinion filed by the [442]*442learned judge specially presiding below. The defendant takes the position, if we have not misapprehended the argument of its learned counsel, that the plaintiff is not only estopped from questioning the companj^s right to maintain the pipe lines upon his land, but is also estopped from claiming further damages beyond the nominal sum awarded in the trespass case brought in 1902. We are unable to adopt this conclusion, principally because we cannot take the same view that counsel take of the evidence relative to the question of the plaintiff’s knowledge of, and failure to object to, the concededly unauthorized construction of the pipe lines.
One of the court’s findings of fact is, that the defendant entered upon the plaintiff’s land and laid the two pipe lines in controversy “ without the permission of the plaintiff and without any authority of law.” This findingof faetwasnot excepted to ; but exception was taken to the refusal of the defendant’s fifth request for finding of fact, that the plaintiff had knowledge, through his agent and attornejq that the land was being so occupied “about the time of the location of the pipelines, or soon thereafter.” It is not perceived how a finding so indefinite as to the time of entry as that requested by the defendant could affect the question of the plaintiff’s right to treat the defendant’s entry and occupancy of his land as a trespass. And if it could not affect that question, the refusal of the request did not harm the defendant. But assuming that the point called for a finding upon the question of fact, whether the plaintiff, through his agent and attorney, had knowledge of the construction of the pipe lines upon his land in time to prevent or to protest against it, the evidence warranted the court in determining that question in the negative. The plaintiff and Mr. Diclcen, the agent or attorney referred to in the point, deny such knowledge, and the circumstances from which it is argued that they must have had knowledge are not so conclusive as to warrant an appellate court in overturning the finding of the trial court upon the question of fact. The findings of the court upon a trial under the equity rules of 1894, especially if the credibility of witnesses be involved, will not be set aside on appeal, unless there be manifest error: Commonwealth ex rel. v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371; Steinmeyer v. Siebert, 190 Pa. 471; Dilworth v. Kennedy, [443]*443201 Pa. 388; Mackintyre v. Jones, 9 Pa. Superior Ct. 543, Hunter v. Bilheimer, 22 Pa. Superior Ct. 622 ; Obney v. Obney, 26 Pa. Superior Ct. 116; Wentzel’s Estate, 30 Pa. Superior Ct. 628. Adopting any statement of the rule that can be found in any of the foregoing eases, and applying it to the evidence in this case, it must be accepted as a fact, on this appeal, that the defendant constructed the pipe lines in question upon the plaintiff’s land without complying with the conditions precedent to the exercise of the power of eminent domain, and without the plaintiff's consent, either express, or to be implied from knowledge and failure to object. If, therefore, this were an action at law — and the same must be true in equity — the controlling principle that was held applicable to the facts of Hankey v. Philadelphia Company, 5 Pa. Superior Ct. 148, upon which the appellant’s counsel rely, would be inapplicable. The plaintiff in that case, as stated by Judge Wickham, “was fully aware of what was being done by the defendant and made no active attempt to stay the work by bill in equity or otherwise.” Not only so, but, according to his own admission, he actually assisted in the work. While the plaintiff’s acts were not such as to debar him of his constitutional right to compensation, it was held that they did estop him “ from depriving the defendant of the easement it acquired.” So, where an owner was “ passively derelict in knowingly permitting ” a railroad company to put its improvements on his land, it was held that it would be inequitable to allow the judgment in ejectment he obtained to work a forfeiture of those improvements ; accordingly, execution was stayed upon the judgment to enable the company to proceed under the statute and have the damages assessed: Allegheny Valley R. R. Co. v. Colwell, 2 Mona. 300. In the case cited by the appellant’s counsel — Oliver v. Pittsb., Va. & Charleston Ry. Co., 131 Pa. 408 — it is very clearly stated: that if a corporation having the power of eminent domain enters without compliance with the law, or treaty with the owner, it acquires no title, but is a trespasser and liable to action of trespass or ejectment, at the election of the owner; but if he consents to the entry by the corporation and sees the expenditure of large sums of money, while this will not debar him of the right to compensation, he ought not to be allowed to treat its entry as a trespass. In this case, there are no facts, [444]*444such as express or implied consent, or “passive dereliction,” which upon equitable grounds estopped the plaintiff from treating the construction of the pipe lines as a trespass, or precluded him from suing in that form of action and recovering such damages as he had sustained up to the time of bringing suit, and then bringing successive actions until the cessation of the injurious acts, or the defendant should acquire the right to continue them by proper proceedings in the exercise of. its power of eminent domain. He was not bound to have, his damages assessed upon the same basis as if the defendant’s pipe lines had been constructed in the lawful exercise of that power.
But assuming for the purpose of this discussion that he could have elected to have the damages assessed upon that basis (as the plaintiff did in the frequently cited case of Thompson v. Citizens’ Traction Co., 181 Pa. 131), does the record of the trespass case show that he so elected ? We think it clearly shows the contrary. The gravamen of the complaint, as to damages, in that case is set forth in this clause of the statement : “ That by the construction and maintenance of said pipe lines by the defendant company in manner stated on and across plaintiff’s said premises, said plaintiff has not had the free and uninterrupted use of his said property, but lias been annoyed and put to inconvenience by defendant’s trespass and occupancy, and plaintiff has been prevented thereby from making sale of his said property, as he was desirous of doing, whereby he (plaintiff) has been specially damaged and has sustained pecuniary loss in a large sum of money.” Here was a distinct setting forth of an interference with the plaintiff’s use and enjoyment of his premises as the ground of his complaint. The evidence given on the trial, so far as any evidence was given .relating to the measure of damages, was consistent with that view of the plaintiff’s claim. Moreover, during the progress of the trial the counsel for plaintiff said : “ This action is not brought expecting to recover more than nominal damages. We wish to bring this suit to establish our right at law, and the dead line cuts very little figure.” No evidence was given on either side relative to the difference in the value of the land before and after the construction of the pipe lines, and at the conclusion of the trial the judge charged the jury that the plaintiff was entitled to recover nominal damages only. We [445]
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Opinion by
Rice, P. J.,
This controversy arose out of the location and maintenance of two pipe lines for the transportation of petroleum across the plaintiff’s land. A concise and connected statement of the facts necessary to a proper understanding of the questions involved is contained in the findings and opinion filed by the [442]*442learned judge specially presiding below. The defendant takes the position, if we have not misapprehended the argument of its learned counsel, that the plaintiff is not only estopped from questioning the companj^s right to maintain the pipe lines upon his land, but is also estopped from claiming further damages beyond the nominal sum awarded in the trespass case brought in 1902. We are unable to adopt this conclusion, principally because we cannot take the same view that counsel take of the evidence relative to the question of the plaintiff’s knowledge of, and failure to object to, the concededly unauthorized construction of the pipe lines.
One of the court’s findings of fact is, that the defendant entered upon the plaintiff’s land and laid the two pipe lines in controversy “ without the permission of the plaintiff and without any authority of law.” This findingof faetwasnot excepted to ; but exception was taken to the refusal of the defendant’s fifth request for finding of fact, that the plaintiff had knowledge, through his agent and attornejq that the land was being so occupied “about the time of the location of the pipelines, or soon thereafter.” It is not perceived how a finding so indefinite as to the time of entry as that requested by the defendant could affect the question of the plaintiff’s right to treat the defendant’s entry and occupancy of his land as a trespass. And if it could not affect that question, the refusal of the request did not harm the defendant. But assuming that the point called for a finding upon the question of fact, whether the plaintiff, through his agent and attorney, had knowledge of the construction of the pipe lines upon his land in time to prevent or to protest against it, the evidence warranted the court in determining that question in the negative. The plaintiff and Mr. Diclcen, the agent or attorney referred to in the point, deny such knowledge, and the circumstances from which it is argued that they must have had knowledge are not so conclusive as to warrant an appellate court in overturning the finding of the trial court upon the question of fact. The findings of the court upon a trial under the equity rules of 1894, especially if the credibility of witnesses be involved, will not be set aside on appeal, unless there be manifest error: Commonwealth ex rel. v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371; Steinmeyer v. Siebert, 190 Pa. 471; Dilworth v. Kennedy, [443]*443201 Pa. 388; Mackintyre v. Jones, 9 Pa. Superior Ct. 543, Hunter v. Bilheimer, 22 Pa. Superior Ct. 622 ; Obney v. Obney, 26 Pa. Superior Ct. 116; Wentzel’s Estate, 30 Pa. Superior Ct. 628. Adopting any statement of the rule that can be found in any of the foregoing eases, and applying it to the evidence in this case, it must be accepted as a fact, on this appeal, that the defendant constructed the pipe lines in question upon the plaintiff’s land without complying with the conditions precedent to the exercise of the power of eminent domain, and without the plaintiff's consent, either express, or to be implied from knowledge and failure to object. If, therefore, this were an action at law — and the same must be true in equity — the controlling principle that was held applicable to the facts of Hankey v. Philadelphia Company, 5 Pa. Superior Ct. 148, upon which the appellant’s counsel rely, would be inapplicable. The plaintiff in that case, as stated by Judge Wickham, “was fully aware of what was being done by the defendant and made no active attempt to stay the work by bill in equity or otherwise.” Not only so, but, according to his own admission, he actually assisted in the work. While the plaintiff’s acts were not such as to debar him of his constitutional right to compensation, it was held that they did estop him “ from depriving the defendant of the easement it acquired.” So, where an owner was “ passively derelict in knowingly permitting ” a railroad company to put its improvements on his land, it was held that it would be inequitable to allow the judgment in ejectment he obtained to work a forfeiture of those improvements ; accordingly, execution was stayed upon the judgment to enable the company to proceed under the statute and have the damages assessed: Allegheny Valley R. R. Co. v. Colwell, 2 Mona. 300. In the case cited by the appellant’s counsel — Oliver v. Pittsb., Va. & Charleston Ry. Co., 131 Pa. 408 — it is very clearly stated: that if a corporation having the power of eminent domain enters without compliance with the law, or treaty with the owner, it acquires no title, but is a trespasser and liable to action of trespass or ejectment, at the election of the owner; but if he consents to the entry by the corporation and sees the expenditure of large sums of money, while this will not debar him of the right to compensation, he ought not to be allowed to treat its entry as a trespass. In this case, there are no facts, [444]*444such as express or implied consent, or “passive dereliction,” which upon equitable grounds estopped the plaintiff from treating the construction of the pipe lines as a trespass, or precluded him from suing in that form of action and recovering such damages as he had sustained up to the time of bringing suit, and then bringing successive actions until the cessation of the injurious acts, or the defendant should acquire the right to continue them by proper proceedings in the exercise of. its power of eminent domain. He was not bound to have, his damages assessed upon the same basis as if the defendant’s pipe lines had been constructed in the lawful exercise of that power.
But assuming for the purpose of this discussion that he could have elected to have the damages assessed upon that basis (as the plaintiff did in the frequently cited case of Thompson v. Citizens’ Traction Co., 181 Pa. 131), does the record of the trespass case show that he so elected ? We think it clearly shows the contrary. The gravamen of the complaint, as to damages, in that case is set forth in this clause of the statement : “ That by the construction and maintenance of said pipe lines by the defendant company in manner stated on and across plaintiff’s said premises, said plaintiff has not had the free and uninterrupted use of his said property, but lias been annoyed and put to inconvenience by defendant’s trespass and occupancy, and plaintiff has been prevented thereby from making sale of his said property, as he was desirous of doing, whereby he (plaintiff) has been specially damaged and has sustained pecuniary loss in a large sum of money.” Here was a distinct setting forth of an interference with the plaintiff’s use and enjoyment of his premises as the ground of his complaint. The evidence given on the trial, so far as any evidence was given .relating to the measure of damages, was consistent with that view of the plaintiff’s claim. Moreover, during the progress of the trial the counsel for plaintiff said : “ This action is not brought expecting to recover more than nominal damages. We wish to bring this suit to establish our right at law, and the dead line cuts very little figure.” No evidence was given on either side relative to the difference in the value of the land before and after the construction of the pipe lines, and at the conclusion of the trial the judge charged the jury that the plaintiff was entitled to recover nominal damages only. We [445]*445cannot agree with the appellant’s counsel in their contention expressed in their sixth point of law that the verdict in that case must be presumed in law “ to be compensation for the injury suffered, or for the difference in the value of the land immediately before the occupancy by the defendant company and after the occupancy by the defendant company.” The verdict and judgment in that case established the plaintiff’s right and the tortiousness of the defendant’s act in constructing the pipe lines. Maintaining them on the plaintiff’s land thereafter was, under the circumstances, a trespass from day to day, for which successive actions would lie: Holmes v. Wilson, 10 Ad. & E. 503; Dill v. McCloskey, 9 Phila. 76; Pollock on Torts, 813.
The foregoing conclusions involve no hardship. to the defendant company of which it can justly complain, for, as stated by the appellee’s counsel, there is now and always has been a method whereby the right of way needed by the defendant can be acquired upon payment of proper compensation or giving security therefor as the statute prescribes.
The decree is affirmed at the costs of the appellant; the period of stay mentioned therein to be computed from the date of the decree of this court.