BURNETT, J.
Considering the proceeding in equity first, we find the substance of the testimony to be that the engineer of the Lumber Company at the instance of its officers went with its vice-president and manager upon the premises, surveyed out a road across the O’Connell property, and made a map thereof, which the vice-president, as manager of the Lumber Company, submitted to O’Connell, reaching a result by negotiation culminating in the execution of the contract already mentioned, which had attached to it a copy of the map mentioned. Upon it was delineated the line of road from the Columbia River across some of O’Connell’s land, but not touching the 40 acres in question. The greater portion of the proposed road was indicated by two solid parallel lines between which the space was divided equally between cross-sections of black and white. The other portion of the liné, known as main line No. 2, was indicated on the map by a dotted line; but neither by the terms of the contract itself nor by the portrayal of the line of the road on the map made part of the contract, did the line pf road touch the premises in dispute.
[572]*5721. It is stated in the 'cross-bill and urged in the testimony that it is the custom among civil engineers to use a dotted line to designate a tentative line of road which is subject to change of direction in actual construction. It is not alleged in the pleadings or revealed by the testimony that this alleged custom was in general observance, or that it was known to, O’Connell, or that it was of such general notoriety as to be presumed to be known to him. The testimony fails to disclose that O’Connell knew that the railroad was being constructed across. the premises in dispute. The most that is shown is that after he had sold his timber in that' region to the Livestock Company, in which concern he was the principal, if not the sole owner of stock, the timber on that and adjacent tracts originally belonging to O’Connell was hauled out over the line of road and deposited in a slough adjacent to the Columbia Eiver. For all that appears in the testimony, so far as O’Connell or his' successor in interest is concerned, the logs might have been dragged over a skid road by oxen or snaked out by donkey engines. No one can be estopped in such a case by what happens without his knowledge. The rule is thus stated in Roberts v. Northern Pacific R. R. Co., 158 U. S. 1, 11 (39 L. Ed. 873, 15 Sup. Ct. Rep. 756, 758, see, also, Rose’s U. S. Notes):
“So, too, it has been frequently held that if a land owner, knowing that a railroad company has entered upon his land and is engaged in constructing its road without having complied with the statute, requiring either payment by agreement or proceedings to condemn, remains inactive and permits them to go on and expend large sums in the work, he will be estopped from maintaining either trespass or ejectment for the entry, and will be regarded as hav[573]*573ing acquiesced therein, and be restricted to a suit for damages.”
It is true that in the Roberts case the railroad company involved wqs one possessing the power of eminent domain, while in the case at bar the Lumber Company' constructed the road as a private enterprise; but the principle common to both is that estoppel must be grounded on knowledge of the party to be estopped, respecting the acts of the other party which the former may not gainsay. In the instant case there is no evidence that the owner of the particular tract had knowledge until afterwards that the road had been built upon it, hence there can be no estoppel to challenge its being there.
2, 3. The plaintiffs in the cross-bill, count upon arrangements they made with one Stennick, who purchased the timber from O’Connell or his corporation and was empowered to go upon the premises and take off the timber in any way he chose. The plaintiffs in equity urge that Stennick was O’Con-nell’s agent, but the testimony does not show this in any degree. He was merely a purchaser from O’Connell, privileged to go upon the ground and take away the timber, but he was not in any sense the agent with whom the equity plaintiffs could contract so as to bind O’Connell. The Lumber Company contends that when the Livestock Company bought the land from O’Connell the railroad was there in operation, which put the purchaser on inquiry and was notice to it of the former’s rights. All that doctrine amounts to is that the purchaser will be charged with what could be ascertained by reasonable inquiry. In the present juncture, according to the record, search would have disclosed that the Lumber Company, without the knowledge of [574]*574O’Connell, had assumed to act with Stennick, who had no authority to bind O’Connell. By the well-settled rules of agency, one who deals with another representing himself to be an agent of a third party sought to be bound, deals at his peril. Yet this is what the Lumber Company did with Stennick.
4. Neither is the evidence sufficient to prove a mistake. The Lumber Company took the initiative by actual visitation upon the land, prepared its plat upon which was designated the line of road, submitted it to O’Connell and had a contract drawn up which complies precisely with that map. No knowledge is imputed to O’Connell of any other line upon which the road should be constructed. There was no mutuality of mistake whatever. Descanting upon the dotted line, indicating as the engineer says, a tentative road, he himself says in effect that this was a mental conception of his own, not communicated to O’Connell, and that he never- saw the latter until after the road had been constructed. To be available in the reformation of a contract, the proof of mistake must be clear and satisfactory; and the error must be mutual. No such situation is disclosed by the testimony, and hence the Circuit Court was right in dismissing the cross-bill in equity.
The amended answer of the defendants in ejectment essayed to put in as a defense the matter counted upon in equity as an estoppel. The court refused to allow it to be proved. At the close of the testimony in the trial of the law action, the plaintiff there moved for a directed verdict in its favor according to the prayer of its complaint and that the jury be authorized to' assess the damages. This motion was denied, and its refusal constitutes the sole objection on behalf of the ejectment plain[575]*575tiff to the rulings of the court as disclosed by the bill of exceptions.
5. It will be observed that there are two causes of action stated in the complaint — one for the recovery of the possession of the realty, without damages; and the other is a claim for special damages for injury to the freehold. As to the first cause of action, the motion was well taken and should have been allowed, for it is admitted by the pleadings that the plaintiff is the owner in, fee -simple of the property. This title draws with it and includes the right to the possession of the land, unless something else is shown by the pleadings. It is said in Section 328, L. O. L.:
“The defendant shall not be allowed to give in evidence any estate in himself, or another in the property, or any license or right to the possession thereof, unless the same be pleaded in his answer.”
6.
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BURNETT, J.
Considering the proceeding in equity first, we find the substance of the testimony to be that the engineer of the Lumber Company at the instance of its officers went with its vice-president and manager upon the premises, surveyed out a road across the O’Connell property, and made a map thereof, which the vice-president, as manager of the Lumber Company, submitted to O’Connell, reaching a result by negotiation culminating in the execution of the contract already mentioned, which had attached to it a copy of the map mentioned. Upon it was delineated the line of road from the Columbia River across some of O’Connell’s land, but not touching the 40 acres in question. The greater portion of the proposed road was indicated by two solid parallel lines between which the space was divided equally between cross-sections of black and white. The other portion of the liné, known as main line No. 2, was indicated on the map by a dotted line; but neither by the terms of the contract itself nor by the portrayal of the line of the road on the map made part of the contract, did the line pf road touch the premises in dispute.
[572]*5721. It is stated in the 'cross-bill and urged in the testimony that it is the custom among civil engineers to use a dotted line to designate a tentative line of road which is subject to change of direction in actual construction. It is not alleged in the pleadings or revealed by the testimony that this alleged custom was in general observance, or that it was known to, O’Connell, or that it was of such general notoriety as to be presumed to be known to him. The testimony fails to disclose that O’Connell knew that the railroad was being constructed across. the premises in dispute. The most that is shown is that after he had sold his timber in that' region to the Livestock Company, in which concern he was the principal, if not the sole owner of stock, the timber on that and adjacent tracts originally belonging to O’Connell was hauled out over the line of road and deposited in a slough adjacent to the Columbia Eiver. For all that appears in the testimony, so far as O’Connell or his' successor in interest is concerned, the logs might have been dragged over a skid road by oxen or snaked out by donkey engines. No one can be estopped in such a case by what happens without his knowledge. The rule is thus stated in Roberts v. Northern Pacific R. R. Co., 158 U. S. 1, 11 (39 L. Ed. 873, 15 Sup. Ct. Rep. 756, 758, see, also, Rose’s U. S. Notes):
“So, too, it has been frequently held that if a land owner, knowing that a railroad company has entered upon his land and is engaged in constructing its road without having complied with the statute, requiring either payment by agreement or proceedings to condemn, remains inactive and permits them to go on and expend large sums in the work, he will be estopped from maintaining either trespass or ejectment for the entry, and will be regarded as hav[573]*573ing acquiesced therein, and be restricted to a suit for damages.”
It is true that in the Roberts case the railroad company involved wqs one possessing the power of eminent domain, while in the case at bar the Lumber Company' constructed the road as a private enterprise; but the principle common to both is that estoppel must be grounded on knowledge of the party to be estopped, respecting the acts of the other party which the former may not gainsay. In the instant case there is no evidence that the owner of the particular tract had knowledge until afterwards that the road had been built upon it, hence there can be no estoppel to challenge its being there.
2, 3. The plaintiffs in the cross-bill, count upon arrangements they made with one Stennick, who purchased the timber from O’Connell or his corporation and was empowered to go upon the premises and take off the timber in any way he chose. The plaintiffs in equity urge that Stennick was O’Con-nell’s agent, but the testimony does not show this in any degree. He was merely a purchaser from O’Connell, privileged to go upon the ground and take away the timber, but he was not in any sense the agent with whom the equity plaintiffs could contract so as to bind O’Connell. The Lumber Company contends that when the Livestock Company bought the land from O’Connell the railroad was there in operation, which put the purchaser on inquiry and was notice to it of the former’s rights. All that doctrine amounts to is that the purchaser will be charged with what could be ascertained by reasonable inquiry. In the present juncture, according to the record, search would have disclosed that the Lumber Company, without the knowledge of [574]*574O’Connell, had assumed to act with Stennick, who had no authority to bind O’Connell. By the well-settled rules of agency, one who deals with another representing himself to be an agent of a third party sought to be bound, deals at his peril. Yet this is what the Lumber Company did with Stennick.
4. Neither is the evidence sufficient to prove a mistake. The Lumber Company took the initiative by actual visitation upon the land, prepared its plat upon which was designated the line of road, submitted it to O’Connell and had a contract drawn up which complies precisely with that map. No knowledge is imputed to O’Connell of any other line upon which the road should be constructed. There was no mutuality of mistake whatever. Descanting upon the dotted line, indicating as the engineer says, a tentative road, he himself says in effect that this was a mental conception of his own, not communicated to O’Connell, and that he never- saw the latter until after the road had been constructed. To be available in the reformation of a contract, the proof of mistake must be clear and satisfactory; and the error must be mutual. No such situation is disclosed by the testimony, and hence the Circuit Court was right in dismissing the cross-bill in equity.
The amended answer of the defendants in ejectment essayed to put in as a defense the matter counted upon in equity as an estoppel. The court refused to allow it to be proved. At the close of the testimony in the trial of the law action, the plaintiff there moved for a directed verdict in its favor according to the prayer of its complaint and that the jury be authorized to' assess the damages. This motion was denied, and its refusal constitutes the sole objection on behalf of the ejectment plain[575]*575tiff to the rulings of the court as disclosed by the bill of exceptions.
5. It will be observed that there are two causes of action stated in the complaint — one for the recovery of the possession of the realty, without damages; and the other is a claim for special damages for injury to the freehold. As to the first cause of action, the motion was well taken and should have been allowed, for it is admitted by the pleadings that the plaintiff is the owner in, fee -simple of the property. This title draws with it and includes the right to the possession of the land, unless something else is shown by the pleadings. It is said in Section 328, L. O. L.:
“The defendant shall not be allowed to give in evidence any estate in himself, or another in the property, or any license or right to the possession thereof, unless the same be pleaded in his answer.”
6. As stated, the record shows that in the law action the trial court refused to allow any proof of matter tending to show estoppel, but left it to the jury to say whether the entry of the defendants upon the land was wrongful, holding, in effect, that the matter of estoppel had been determined adversely to the defendants in the litigation upon the cross-bill. Whether this ruling in the law action was erroneous or not is not necessary to be decided, for the defendants have not appealed from the judgment.
7. The case presented on the? motion for a directed verdict as to the first cause of action, therefore, is this: The plaintiff is admitted to be the owner in fee simple of the property. No license or other adverse estate has been pleaded, and an estoppel against the ejectment plaintiff has not been proved. Consequently the court should have directed a verdict in [576]*576favor of the plaintiff for the possession of the land. The case was submitted to the jury on thé question of damages, and a general verdict in favor of the defendants was returned. This is conclusive on the question of fact involved in the claim for damages, and it cannot be disturbed on this appeal. The conclusion of the whole matter is that the cause must be remanded to the Circuit Court, with directions there to enter a judgment for the plaintiff and against the defendants for the recovery of the possession of the land, but without damages.
Remanded With Directions.
Rehearing Denied.
McBride, C. J., and Benson and Harris, JJ., concur.