Opinion bt
Henderson, J.,
The plaintiffs’ action is for the recovery of a wedge of land about 1,700 feet in length with a base line of about thirty-five feet. The controversy arises over the location of the division line between the farms of the plaintiffs [330]*330and defendant. Evidence was offered to show that the defendent’s occupancy overlapped the land of the plaintiffs to the extent described in the writ and that the true division line extended from a stone at the southwest corner of the farm of the plaintiffs to a point on the Allegheny river near a large stone having the letters “U. S.” carved thereon. The land of the plaintiffs and the defendant formerly belonged to Eobert Campbell who died in 1864. In 1881 his two daughters and his widow who inherited from him divided the land among themselves. The south half of the farm was conveyed by the daughters to the widow on June 6,1881, and by her to Ira Montgomery, December 23, 1890. The defendant acquired title from Montgomery by deed dated April 1, 1895. That portion of the northern half of the farm involved in this action was conveyed by the daughters of Eobert Campbell to Henry Myers, September 29,1884, and by Myers to Thomas Patton, the father of the plaintiffs, July 16,1885. It is the location of the division line established when the heirs of Eobert Campbell made partition among themselves about which the parties are contending. This line was surveyed by S. B. Gray. There is no question of interfering surveys nor allegation of defective title. The appellee defended on three grounds: first, that he occupied to the line adopted in the division by the Campbell heirs; second, that he acquired title to the land within the enclosure of his fences by adverse possession; third, that his cultivation and improvement of the land in question for a long time with the knowledge of the plaintiffs worked an equitable estoppel. The principal contention at the trial arose over the location of the Campbell division line, and the testimony offered raised an issue of fact as did also the testimony bearing on the question of adverse possession. After having read the evidence with care in the light of the argument of the appellants we are unable to agree with their conclusion that there was not any competent evidence presented by the defendant to [331]*331support the claim of title by adverse possession. Very soon after' the division made by the daughters and widow of Campbell a fence was built between the land now owned by the plaintiffs and that owned by the defendant. It was built with reference to the division line. The adjoining owners agreed to a separate construction of the fence, and a part of it at least was built along the line but not on it: The testimony tends to sho;w that this fence remained for more than twenty-one years before the action of ejectment was brought except that at one time it was partly torn down by the plaintiffs and immediately rebuilt by the defendant. There is no evidence in the case, however, which would justify the conclusion that the occupancy of the defendant was so disturbed by the plaintiffs’ attempt to remove the fence as to interrupt the defendant’s possession, nor did the occasional use of the private road, a small portion of which it appears was on the land in dispute, give the plaintiffs such occupancy as to prevent the running of the statute; certainly not as to any part except that covered by the way. It is contended, however, that the defense of adverse possession fails because the defendant had only been in possession for. about seventeen years; that it was necessary for him to connect his possession with that of his predecessor in title, Montgomery, and that the latter at the trial testified that during the time he occupied the land he did not claim any north or on the Patton side of the Gray survey. This is not an admission of Montgomery’s, however, against the. claim of the defendant who is insisting that the line to which he holds is the Gray line. Much of the evidence was introduced to show where that line was marked and each side stands for the same line but finds it in a different place. Under such circumstances the declaration of Montgomery that he did not claim north of the Gray line does not affect the validity of the defendant’s claim that he occupied to the line established on the division of the Campbell estate. The witness testified that short[332]*332ly after the survey he set stones where stakes had been placed by the surveyor and that these stones were on the line. The relation of these stones to the whole line had an important bearing in the case and the testimony of Montgomery clearly shows that he claimed to the line established by Gray. If that was the line found by the defendant’s surveyor, Wm. Aye, the defendant’s occupancy was the same as that of Montgomery and to the same line. Under such a state of facts the occupancy would be continuous.
By the defendant’s second point which was affirmed as set forth in the ninth assignment and that part of the charge embraced in the nineteenth assignment the attention of the jury was directed to the subject of estoppel, and instruction was given that if the plaintiffs stood by and saw the defendant “make any improvements of value in the way of buildings or in the way of fruit trees or in the cultivation of the land without objection on their part then they would be estopped from now asserting title to the property by reason of their laches in that respect and that need not be for a period of twenty-one years.” Under relevant circumstances there is no question as to the operation of equitable estoppel. The difficulty in this case is that the conditions did not exist which are necessary in order that it may apply. It is not alleged that the plaintiffs said or did anything to mislead the defendant to his prejudice. There was no encouragement by positive acts leading him to a course of conduct which he would not otherwise have adopted. At the most there was an omission to give notice of the plaintiff’s claim. But there is a clear distinction between silence and affirmative encouragement. The latter may amount to a positive fraud; the former has no legal effect except where it is one’s duty to speak, but this duty does not arise where the truth is known to the other party or where each party has equal means of knowledge: When an owner places his deed on record he gives the [333]*333information therein contained ivhich every person is bound to take notice of: Knouff v. Thompson, 16 Pa. 357; Hill v. Epley, 31 Pa. 331; Wickham v. Twaddell, 25 Pa. Superior Ct. 188. The titles of the plaintiffs and the defendant were on record. Each of the parties had access to the grants from the Campbell heirs who created the division line; each had an opportunity from examination of the premises to ascertain where the line was. There was no misleading, therefore, nor suppression of the truth. The effect of the instruction complained of was to permit the jury to find that the cultivation of the plaintiffs’ land without objection on their part would estop them from asserting title to the property, but under the facts as disclosed by the testimony there is no place for the application of the doctrine of estoppel. If the defendant cannot maintain his position by showing that the Gray line is that to which he holds or that his title is good by adverse possession his case cannot be made to stand on the doctrine of estoppel.
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Opinion bt
Henderson, J.,
The plaintiffs’ action is for the recovery of a wedge of land about 1,700 feet in length with a base line of about thirty-five feet. The controversy arises over the location of the division line between the farms of the plaintiffs [330]*330and defendant. Evidence was offered to show that the defendent’s occupancy overlapped the land of the plaintiffs to the extent described in the writ and that the true division line extended from a stone at the southwest corner of the farm of the plaintiffs to a point on the Allegheny river near a large stone having the letters “U. S.” carved thereon. The land of the plaintiffs and the defendant formerly belonged to Eobert Campbell who died in 1864. In 1881 his two daughters and his widow who inherited from him divided the land among themselves. The south half of the farm was conveyed by the daughters to the widow on June 6,1881, and by her to Ira Montgomery, December 23, 1890. The defendant acquired title from Montgomery by deed dated April 1, 1895. That portion of the northern half of the farm involved in this action was conveyed by the daughters of Eobert Campbell to Henry Myers, September 29,1884, and by Myers to Thomas Patton, the father of the plaintiffs, July 16,1885. It is the location of the division line established when the heirs of Eobert Campbell made partition among themselves about which the parties are contending. This line was surveyed by S. B. Gray. There is no question of interfering surveys nor allegation of defective title. The appellee defended on three grounds: first, that he occupied to the line adopted in the division by the Campbell heirs; second, that he acquired title to the land within the enclosure of his fences by adverse possession; third, that his cultivation and improvement of the land in question for a long time with the knowledge of the plaintiffs worked an equitable estoppel. The principal contention at the trial arose over the location of the Campbell division line, and the testimony offered raised an issue of fact as did also the testimony bearing on the question of adverse possession. After having read the evidence with care in the light of the argument of the appellants we are unable to agree with their conclusion that there was not any competent evidence presented by the defendant to [331]*331support the claim of title by adverse possession. Very soon after' the division made by the daughters and widow of Campbell a fence was built between the land now owned by the plaintiffs and that owned by the defendant. It was built with reference to the division line. The adjoining owners agreed to a separate construction of the fence, and a part of it at least was built along the line but not on it: The testimony tends to sho;w that this fence remained for more than twenty-one years before the action of ejectment was brought except that at one time it was partly torn down by the plaintiffs and immediately rebuilt by the defendant. There is no evidence in the case, however, which would justify the conclusion that the occupancy of the defendant was so disturbed by the plaintiffs’ attempt to remove the fence as to interrupt the defendant’s possession, nor did the occasional use of the private road, a small portion of which it appears was on the land in dispute, give the plaintiffs such occupancy as to prevent the running of the statute; certainly not as to any part except that covered by the way. It is contended, however, that the defense of adverse possession fails because the defendant had only been in possession for. about seventeen years; that it was necessary for him to connect his possession with that of his predecessor in title, Montgomery, and that the latter at the trial testified that during the time he occupied the land he did not claim any north or on the Patton side of the Gray survey. This is not an admission of Montgomery’s, however, against the. claim of the defendant who is insisting that the line to which he holds is the Gray line. Much of the evidence was introduced to show where that line was marked and each side stands for the same line but finds it in a different place. Under such circumstances the declaration of Montgomery that he did not claim north of the Gray line does not affect the validity of the defendant’s claim that he occupied to the line established on the division of the Campbell estate. The witness testified that short[332]*332ly after the survey he set stones where stakes had been placed by the surveyor and that these stones were on the line. The relation of these stones to the whole line had an important bearing in the case and the testimony of Montgomery clearly shows that he claimed to the line established by Gray. If that was the line found by the defendant’s surveyor, Wm. Aye, the defendant’s occupancy was the same as that of Montgomery and to the same line. Under such a state of facts the occupancy would be continuous.
By the defendant’s second point which was affirmed as set forth in the ninth assignment and that part of the charge embraced in the nineteenth assignment the attention of the jury was directed to the subject of estoppel, and instruction was given that if the plaintiffs stood by and saw the defendant “make any improvements of value in the way of buildings or in the way of fruit trees or in the cultivation of the land without objection on their part then they would be estopped from now asserting title to the property by reason of their laches in that respect and that need not be for a period of twenty-one years.” Under relevant circumstances there is no question as to the operation of equitable estoppel. The difficulty in this case is that the conditions did not exist which are necessary in order that it may apply. It is not alleged that the plaintiffs said or did anything to mislead the defendant to his prejudice. There was no encouragement by positive acts leading him to a course of conduct which he would not otherwise have adopted. At the most there was an omission to give notice of the plaintiff’s claim. But there is a clear distinction between silence and affirmative encouragement. The latter may amount to a positive fraud; the former has no legal effect except where it is one’s duty to speak, but this duty does not arise where the truth is known to the other party or where each party has equal means of knowledge: When an owner places his deed on record he gives the [333]*333information therein contained ivhich every person is bound to take notice of: Knouff v. Thompson, 16 Pa. 357; Hill v. Epley, 31 Pa. 331; Wickham v. Twaddell, 25 Pa. Superior Ct. 188. The titles of the plaintiffs and the defendant were on record. Each of the parties had access to the grants from the Campbell heirs who created the division line; each had an opportunity from examination of the premises to ascertain where the line was. There was no misleading, therefore, nor suppression of the truth. The effect of the instruction complained of was to permit the jury to find that the cultivation of the plaintiffs’ land without objection on their part would estop them from asserting title to the property, but under the facts as disclosed by the testimony there is no place for the application of the doctrine of estoppel. If the defendant cannot maintain his position by showing that the Gray line is that to which he holds or that his title is good by adverse possession his case cannot be made to stand on the doctrine of estoppel. It may be as stated by the appellee that the matter of estoppel was not an essential element in the determination of the case and in no way affected the real issue and that the defense on the other grounds was well established, but as the record comes before us the verdict of the jury may have been based on the failure of the plaintiffs to notify the defendant of their claim of title and the estoppel arising therefrom under the instruction of the court. The ninth and nineteenth assignments are therefore sustained. In the twentieth assignment complaint is made of the refusal of the court to allow the deed of Henry Myers and the deed of the Campbell heirs to him to be sent to the jury. We are unable to see that it was a matter of importance to the plaintiffs to have the jury inspect these documents, but no reason is shown why this request should not have been granted. They were conveyances in the line of title and it is customary to submit such papers to the jury: Riddlesburg Iron & Coal Co. v. Rodgers, 65 Pa. 416. We would not reverse on [334]*334this ground alone in view of the fact that the plaintiffs do not appear to have been prejudiced by the action of the court, but at another trial a similar request should be allowed.
There are thirty-eight assignments of error, some of them relating to incidents of the trial which will not occur again and need not therefore be considered. We have examined all of the assignments and are not convinced that any substantial error was committed by the court except in the respects referred to in this opinion.
The judgment is reversed with a venire facias de novo.