Meigs' Appeal. tions, but merely on posts, and built in the simplest and cheapest way, without cellars or chimneys, and without plastering. The court below decided as follows: "This case having been previously argued by counsel, the court is pressed for a decision to enable the parties to take the same to the supreme court, to be heard on the 3d day of May, at the time fixed for hearing the cases from the nineteenth judicial district. Without, therefore, examining the case, or preparing an opinion, but for the purpose of enabling the supreme court to decide it without any further delay, the court make this pro forma decree. "And now, to wit, April 28, 1868, the court do adjudge and decree, that the said defendants have no right in law or equity to remove and carry away the buildings and materials in the said bill mentioned and described. And it is further decreed, that the said defendants, their servants, agents and alienees, be strictly enjoined to desist and abstain from such removal of said buildings, or the materials of which they are composed, and from intermeddling or interfering in any wise or in any manner with the use and enjoyment thereof by the said plaintiff." Meigs appealed to the supreme court, and assigned the decree for error. 1. E. Cochran, for appellant. J. S. Black, M. S. Eichelberger, and J. L. Mayer, for appellees: The question of fixture depends upon whether it is let into the soil This is the case of a trespasser erecting permanent buildings on another's land: he cannot remove them. The government could not take the land without compensation; besides, the right of eminent domain belongs to the state exclusively. That it was desirable, proper and convenient that the United States should have barracks and hospitals in time of war may be conceded; but it was not more necessary than that they should have clothes, guns, provisions, tents, munitions, etc. The rule, that private property cannot be taken without compensation, is the supreme necessity, and the "life of a nation" which habitually violates it is not worth saving. The taking or destruction of private property can be excused only when it is absolutely and manifestly necessary to meet some immediate danger, which can be averted in no other way, or to deprive the enemy of some direct advantage, which he would be sure to obtain. Mitchell Meigs' Appeal. v. Harmony, 13 How. 115. Estoppel exists only where the act is done under a color or belief of right. The complaint is not of what is past, but as to the future; the claim is, that an act should not be repeated in time of peace which even in war was without justification. The president or commander-in-chief could not confer authority on subordinates not warranted by law. Little v. Barreme, 2 Cranch, 179. AGNEW, J. The plaintiffs' bill evidently proceeded on the ground of title. Its purpose was to restrain the agents of the United States from removing the buildings erected on the public common of York for military barracks and hospitals. These structures being put up by the United States, for military purposes, and built of their own materials, the title to the materials must have been lost to the United States, and vested in the plaintiffs, before an injunction would be issued to restrain their removal. Hence the plaintiffs assume, that, by the act of the United States, the buildings were annexed to the freehold; and thus the title to the materials passed out of them, and vested in the borough of York, as trustees of the title to the common. The buildings were chiefly set upon posts let into the ground, and, therefore, the argument of the plaintiffs maintains that the question of fixture or not a fixture depends, not on the character of the foundation, but always on the question whether it is let into the soil. This is the old notion of a physical attachment, which has long since been exploded in this state. On the contrary, the question of fixture or not depends on the nature and character of the act by which the structure is put in place, the policy of the law connected with its purpose, and the intentions of those concerned in the act. This subject has been so fully discussed in the recent case of Hill v. Sewald, 3 P. F. Smith, 271, it is unnecessary to repeat what is there said. The true question then is, where these structures of the government incorporated into the reality? We think they were not, and this is manifested by the entire character of the transaction, and the attending circumstances. And, in the first place, it was not the intention of either party that they should be annexed to the freehold. Evidently the authorities of the borough of York cannot be presumed to have so intended. The grant from the proprietors of Springettsbury Manor to the burgesses and inhabitants of York of twenty acres of land was, "to be kept as an open common for Meigs' Appeal. ever for the use of said borough, and to and for no other use, intent or purpose whatsoever." The borough authorities had no power to assent to such erections, as permanent fixtures, and it was therefore clearly their duty to prevent their erection, if intended as such. Having made no objection and taken no steps to prevent it, they are entitled to the more favorable construction of their acts, that they knew and believed they were only temporary structures, for a casual purpose. As to the United States, the emergency and all the acts and measures of the government show that these were not permanent buildings to be occupied at all times, but were mere temporary structures to be used during the continuance of the war, or so long only as the necessities of the government made this location convenient for military purposes. It is very evident the United States intended, no anexation to the freehold. The nature and character of the structures are also to be considered. They were not improvements made for objects connected with the soil-neither intended to give value to it, nor to receive value from it. Their purpose was not different from that of the tents spread for the accommodation of the army, or its board huts used for winter quarters, the only real difference being, that these structures were intended for greater comfort, and a longer occupancy of the location. The act is distinguishable from that of an ordinary trespasser. There was no intent to improve the ground, or to make it accessory to some business or employment. It was not an assertion of title in the soil, or of an intention to hold an adverse possession. Indeed, there was not a single element in the case which characterizes the act of a tort-feasor, who annexes his structure to the freehold, and is therefore presumed to intend to change the nature of his chattel and convert it into realty, and thereby to make a gift of it to the owner of the freehold. Neither the borough nor the United States looked upon the act in that light. The United States intended no dedication of the materials to the borough, and the borough expected none. Herein it is, that, in equity, the same principles apply that lie at the root of an estoppel. It is not estoppel, in the ordinary sense, which prevents an owner from claiming his own property, because he has done that which shuts his mouth to declaring his title. These materials never were the property of the borough, and there Meigs' Appeal. fore; aз owners, they had no title to be estopped of. But the borough, by lying by and suffering the United States to put up the structures without objection, on a public common, where, as permanent buildings, they would be nuisances, is estopped from declaring that the United States intended to annex their chattels to the freehold; from asserting that they were mere tort-feasors, to be treated as presumptively dedicating their property to the public. This, however, is the pivot on which the right to an injunction turns. The plaintiffs must convince us, that, in law and equity, the United States have lost their title, notwithstanding neither party intended there should be a gift of the chattels. They must stand in the attitude of one entitled in equity to appropriate these structures, and of whom it must be said, he has done nothing to mislead or to encourage a belief that he has assented to the act. A license to use the land of another, temporarily, may be inferred from circumstances. Thus, a neighbor who enters to pay a visit cannot be treated as a trespasser. So, a guest who enters an inn, or one who moors his vessel at a private wharf, to do business with the owner. And even a permanent right to the use of structures built on the land of another, with his assent, may be acquired by the expenditure of money and labor. Lefevre v. Lefevre, 4 S. & R. 241; Rerick v. Kern, 14 id. 267. And it is said in Cook v. Stearns, 11 Mass. 533: "Licenses to do a particular act do not in any degree trench on the policy of the law which requires that bargains respecting the title or interests in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act which otherwise would be a trespass." See, also, notes to Rerick v. Kern, 2 Am. Lead. Cases, 514. There is nothing in the case to show express license, but the circumstances bear strongly on the silence of the plaintiffs when they should have spoken out. The United States were engaged in a gigantic war, requiring all its means and the encouragement of all good citizens to suppress the opposition to their welfare and authority. Troops were constantly required to be raised and disciplined. York was within the theater of war, and needed protection, the enemy coming up to her very door. Battles were fought near by, and none more than the citizens of York needed that the government should use all the means and appliances of war to preserve their lives and property. Can it be tolerated, that now, when the enemy is defeated and war is no more, these citizens should claim the very property the government Mishler v. The Commonwealth. had used as part of the means necessary to their protection? If equity has a conscience, it must revolt at this return for the services thus rendered by the common government. a case. This is an application to a court of equity, to use the arm of the law to restrain an unlawful act, on the ground that the removal of these buildings is an irreparable injury. But surely this is not such There is not any evidence that the United States have dedicated this property to the citizens of York, or that they have done any act which can justly forfeit their title to the property; and it is not the province of a court of equity to enforce penalties and forfeitures. It is not necessary to invoke the power of eminent domain in this case, or any doctrines of necessity, to override the rights of property. Equity will not interfere in such a case independently of these considerations. The pro forma decree of the court below is reversed, and the plaintiffs' bill is dismissed at their costs. MISHLER, appellant, v. THE COMMONWEALTH. (62 Pa. 55.) Criminal recognizance. Where a recognizance for the appearance of a principal is joint, and not several the failure of the principal to appear is a breach of the condition, and it is not necessary to call upon the bail to produce the body of such principal. Where the recognizance has been forfeited by a breach of its condition the forfeiture is not rendered invalid by a subsequent respite of the recognizance. Where the condition of the recognizance is, that a prisoner shall appear and not depart. the court without leave, the mere appearance of the prisoner, and then departure without leave, does not release the surety. It is at all times in the discretion of the court, at any stage of a criminal trial, to call the defendant and forfeit his recognizance. ERROR to court of common pleas of Lancaster county. This is an action upon a forfeited recognizance. The facts appear sufficiently in the opinion. Verdict and judgment below were in favor of the commonwealth. VOL. I.-48 |