KEY, Associate Justice.
This is an action of trespass to try title. Appellant was plaintiff and appellees were defendants in the court below.
The case involving a question of boundary, on application of appellant, J. W. Speight, a surveyor, was appointed to go upon the ground and survey and determine the true location of the line in dispute. Speight made a report, which, upon motion of appellees, was quashed and excluded from the testimony; and this action of the trial court is assigned as error.
In Schunior v. Russell, 83 Texas, 83, in construing the statute authorizing the appointment of surveyors in cases of this kind, it is said: “We "think it clear, that it was not intended that a surveyor appointed in pursuance of this statute should be empowered to determine any question of fact, or to gather up and report evidence for the guidance of the court ór jury. His simple duty is to go upon the land he is required to survey, with a copy of the field notes by which he is to be guided, to search for and survey its lines and corners, and to report to the court the result of his work; that is to say, to report such natural and artificial objects as indicate the true location of the lines and corners as he may have found upon the ground, and the course and distance of such. When no such objects can be found, then he should so report.”
The report in this case is obnoxious to the rule announced in that case, and the action of the court in sustaining the motion to suppress it was correct.
The instructions given the jury for their guidance in determining the question of boundary are not subject to the criticism urged against them.
• Error is predicated upon the court’s charge on the question of estoppel, in that it does not inform the jury that representations or acts, to operate as an estoppel against appellant, must have been made or done with the intention that appellees should act thereon. On this branch of the case, the court instructed the jury as follows:
“Each of the defendants pleads that if the north line of the Hugh Miller survey number 1 is where claimed by plaintiff, and if they are in possession of a portion of that survey, still the plaintiff should not recover, because they say he is estopped by his acts and representations from claiming as against them that the line is elsewhere than where they claim; and on this branch of the case you are instructed, that when a person by his words or conduct voluntarily causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief so as to change his previous condition, the person so inducing such belief will be estopped from afterwards denying the existence of such state of things, to the prejudice of the person so acting.
“Thus, if you should find from the evidence that the lower Hugh ' Miller survey embraces a portion of the land claimed by defendants, but if you should further find that the plaintiff, knowing where the north.
line of said Miller survey is, represented to either of the defendants that the said line was elsewhere, and if such defendant was deceived by such representation and was ignorant of the true location of such line, and if he relied upon such representation, and if in consequence of such representation of plaintiff he bought the land which plaintiff now sues him for, or made improvements thereon, then you will find for such defendant; and this though you may believe the said land to be on said Hugh Miller survey number 1.
“ On the other hand, if plaintiff did not represent to any of the defendants that the north line of the Hugh Miller survey number 1 was at any particular place; or if he did, but was then ignorant of the true location of said line; or if lie did make such representation knowing it to be false, but the defendants were not deceived or misled thereby, or did not act upon said misrepresentation, in either event the plea of estoppel will not avail as to such defendant; and if you so find, you will proceed to a decision of the case without reference to such plea.”
Bigelow, after discussing Picard v. Sears, the leading English case on the subject, and other cases, summarizes the doctrine of equitable estoppel thus:
“ To constitute this particular estoppel by conduct, represented by Picard v. Sears, all the following elements must be present:
“ 1. There must have been a false representation or concealment of material facts.
“ 2. The representation must have been made with knowledge, actual or virtual, of the facts.
“ 3. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter.
“ 4. It must have been made with the intention, actual or virtual, that the other party should act upon it.
“5. The other party must have been induced to act upon it.” Bige. on Estop., 5 ed., 569.
The American and English Encyclopedia of Law, volume 7, page 16, stating the essential elements of an estoppel in pais or by conduct, gives the fourth as follows: “ The representation must have been made, or the •concealment practiced, with the intention that it should be acted upon; but negligence amounting to a breach of duty supplies the place of intent.”
In treating of title to land by estoppel, Herman says: “ It is not necessary, in order to create an equitable estoppel, that the party should design to mislead. It is sufficient if the act was calculated to mislead, and actually has misled, a person acting upon it in good faith, and who exercised reasonable care and diligence under all the circumstances, and effectually estops the part)' from averring a state of facts different from what the party acted upon.” Ilerm. on Estop, and Res. Jud., sec. 953.
Mr. Pomeroy states the fourth element of equitable estoppel as follows: “ The conduct must be done with the intention, or at least with the
expectation
to the party estopped, that it will be acted upon by the other party; or under such circumstances that it is both natural and probable that it will be so acted upon.”
2
Pome. Eq. Jur., sec. 805.
In Rudd v. Mathews, 79 Kentucky, 483, it is stated, that the conduct sought to be made available as an estoppel must have been designed to be acted upon. But it is held, that the fact of admissions by a party that his signature to a note as surety was genuine, would operate as an estoppel, when the payee was thereby lulled into security, and prevented from collecting it from the principal, who had since become insolvent, was sufficient proof of intent.
In Muller v. Ponder, 55 New York, 325, it is said: “A party is only estopped by a declaration or representation, inconsistent with the facts asserted and attempted to be proved, when it is made with intent, or is calculated or may be reasonably expected to influence the conduct of another in a manner in which he will be prejudiced if the party making the statement is allowed to retract, and when it has influenced and induced action from which injury and loss will accrue if a retraction is allowed.”
In Blair v.
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KEY, Associate Justice.
This is an action of trespass to try title. Appellant was plaintiff and appellees were defendants in the court below.
The case involving a question of boundary, on application of appellant, J. W. Speight, a surveyor, was appointed to go upon the ground and survey and determine the true location of the line in dispute. Speight made a report, which, upon motion of appellees, was quashed and excluded from the testimony; and this action of the trial court is assigned as error.
In Schunior v. Russell, 83 Texas, 83, in construing the statute authorizing the appointment of surveyors in cases of this kind, it is said: “We "think it clear, that it was not intended that a surveyor appointed in pursuance of this statute should be empowered to determine any question of fact, or to gather up and report evidence for the guidance of the court ór jury. His simple duty is to go upon the land he is required to survey, with a copy of the field notes by which he is to be guided, to search for and survey its lines and corners, and to report to the court the result of his work; that is to say, to report such natural and artificial objects as indicate the true location of the lines and corners as he may have found upon the ground, and the course and distance of such. When no such objects can be found, then he should so report.”
The report in this case is obnoxious to the rule announced in that case, and the action of the court in sustaining the motion to suppress it was correct.
The instructions given the jury for their guidance in determining the question of boundary are not subject to the criticism urged against them.
• Error is predicated upon the court’s charge on the question of estoppel, in that it does not inform the jury that representations or acts, to operate as an estoppel against appellant, must have been made or done with the intention that appellees should act thereon. On this branch of the case, the court instructed the jury as follows:
“Each of the defendants pleads that if the north line of the Hugh Miller survey number 1 is where claimed by plaintiff, and if they are in possession of a portion of that survey, still the plaintiff should not recover, because they say he is estopped by his acts and representations from claiming as against them that the line is elsewhere than where they claim; and on this branch of the case you are instructed, that when a person by his words or conduct voluntarily causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief so as to change his previous condition, the person so inducing such belief will be estopped from afterwards denying the existence of such state of things, to the prejudice of the person so acting.
“Thus, if you should find from the evidence that the lower Hugh ' Miller survey embraces a portion of the land claimed by defendants, but if you should further find that the plaintiff, knowing where the north.
line of said Miller survey is, represented to either of the defendants that the said line was elsewhere, and if such defendant was deceived by such representation and was ignorant of the true location of such line, and if he relied upon such representation, and if in consequence of such representation of plaintiff he bought the land which plaintiff now sues him for, or made improvements thereon, then you will find for such defendant; and this though you may believe the said land to be on said Hugh Miller survey number 1.
“ On the other hand, if plaintiff did not represent to any of the defendants that the north line of the Hugh Miller survey number 1 was at any particular place; or if he did, but was then ignorant of the true location of said line; or if lie did make such representation knowing it to be false, but the defendants were not deceived or misled thereby, or did not act upon said misrepresentation, in either event the plea of estoppel will not avail as to such defendant; and if you so find, you will proceed to a decision of the case without reference to such plea.”
Bigelow, after discussing Picard v. Sears, the leading English case on the subject, and other cases, summarizes the doctrine of equitable estoppel thus:
“ To constitute this particular estoppel by conduct, represented by Picard v. Sears, all the following elements must be present:
“ 1. There must have been a false representation or concealment of material facts.
“ 2. The representation must have been made with knowledge, actual or virtual, of the facts.
“ 3. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter.
“ 4. It must have been made with the intention, actual or virtual, that the other party should act upon it.
“5. The other party must have been induced to act upon it.” Bige. on Estop., 5 ed., 569.
The American and English Encyclopedia of Law, volume 7, page 16, stating the essential elements of an estoppel in pais or by conduct, gives the fourth as follows: “ The representation must have been made, or the •concealment practiced, with the intention that it should be acted upon; but negligence amounting to a breach of duty supplies the place of intent.”
In treating of title to land by estoppel, Herman says: “ It is not necessary, in order to create an equitable estoppel, that the party should design to mislead. It is sufficient if the act was calculated to mislead, and actually has misled, a person acting upon it in good faith, and who exercised reasonable care and diligence under all the circumstances, and effectually estops the part)' from averring a state of facts different from what the party acted upon.” Ilerm. on Estop, and Res. Jud., sec. 953.
Mr. Pomeroy states the fourth element of equitable estoppel as follows: “ The conduct must be done with the intention, or at least with the
expectation
to the party estopped, that it will be acted upon by the other party; or under such circumstances that it is both natural and probable that it will be so acted upon.”
2
Pome. Eq. Jur., sec. 805.
In Rudd v. Mathews, 79 Kentucky, 483, it is stated, that the conduct sought to be made available as an estoppel must have been designed to be acted upon. But it is held, that the fact of admissions by a party that his signature to a note as surety was genuine, would operate as an estoppel, when the payee was thereby lulled into security, and prevented from collecting it from the principal, who had since become insolvent, was sufficient proof of intent.
In Muller v. Ponder, 55 New York, 325, it is said: “A party is only estopped by a declaration or representation, inconsistent with the facts asserted and attempted to be proved, when it is made with intent, or is calculated or may be reasonably expected to influence the conduct of another in a manner in which he will be prejudiced if the party making the statement is allowed to retract, and when it has influenced and induced action from which injury and loss will accrue if a retraction is allowed.”
In Blair v. Wait, 69 New York, 113, it is said: “ It is not necessary to-an equitable estoppel that the party should design to mislead. It is enough that the act was calculated to mislead and actually did mislead the defendants, while acting in good faith, and with reasonable care and diligence.” “
Horne v. Cole, 51 New Hampshire, 287, contains one of the most elaborate and instructive discussions of the doctrine of equitable estoppel to be found in any case. It is there held, that if the representations are such, and made under such circumstances, that all persons interested in the subject have the right to rely on them as true, their truth can not be denied by the party that has made them against any one who has trusted to and acted on them.
In Parker v. Moore, 59 New Hampshire, 454, it was held, that a party was not estopped by words or acts when he did not intend to bind himself thereby, and when his conduct did not afford reasonable cause for the-other party to believe that he would be bound.
While there are some decisions in this State tending to support the proposition as broadly as stated and contended by appellant (Blum v. Merchant, 58 Texas, 400; Bynum v. Preston, 69 Texas, 291), we do not believe that it is absolutely essential to the existence of any equitableestoppel that the representation or concealment should have been intended to influence the conduct of the party asserting the estoppel.
We think the New York cases, cited above, correctly state the rule. If a misrepresentation or concealment be designed to influence the conduct
of another person; or if, under the circumstances of the particular case, it be reasonably calculated to have that effect, while such other person is acting in good faith and exercising ordinary care and diligence, if the other elements of estoppel exist, the person misrepresenting or concealing the truth will be estopped.
Equitable estoppel rests upon the fundamental principles of right and fair dealing; its creed is justice between man and man. Its objects are not punishment; its remedies are not penal. Its mission is to protect the innocent and blameless. For this purpose it compares the conduct of men; and whenever loss must result to one of two persons because of the culpable conduct of one of them, it interposes and compels the wrongdoer to sustain the loss, not as a punishment for guilt, but in order to protect innocence.
The culpable conduct of which equity takes cognizance, may have its origin in a design to deceive and influence the conduct of another, or it may be the result of mere negligence and indifference. Conduct of the latter class, inasmuch as it flows from no evil purpose, and is -not designed to influence action, in right and justice ought not to operate as an estoppel, unless it not only influenced the conduct of another person, but might reasonably be expected to have that effect while such other person was exercising ordinary prudence.
It is believed the weight of authority, and the principles upon which the doctrine of equitable estoppel is founded, support the doctrine we have announced.
Tested by this rule, however, the charge of court was erroneous; and for this reason the judgment must be reversed and the cause remanded.
Reversed and remanded.
Delivered May 10, 1893.