Opinion
Opinion filed February 6, 1940.
Acquiescence and Waiver. — 1. No Acquiescence by Silence. — 2. No Duty to Complain to One Who Knowingly Commits Wrong. — 3. Equitable Estoppel Requires Prejudice. — 4. Equitable Estoppel Requires Claim that Misled. — 5. Waiver Defined. — 6. One Claiming Waiver Must Prove It. — 7. Receipt of Electric Service Not Acquiescence to Trespass.
1. Acquiescence in the construction and maintenance of a power line across the plaintiffs' premises can not be found in their failure to object to the construction or maintenance thereof for eleven years.
2. Construction by a power company of a transmission line across farmers' premises with knowledge that it had no permission so to do does not create a duty on the part of the landowners to warn the company and they are not prejudiced by failure so to do.
3. Equitable estoppel requires that one who claims it must show he has been misled and thereby prejudiced by the conduct of the other party.
4. In the absence of a claim that one has been misled by another's conduct, there can be no equitable estoppel.
5. A waiver is an intentional relinquishment of a known right.
6. One who claims an implied waiver has the duty of establishing it by showing some act or conduct on the other's part which is unequivocal in character.
7. That land owners sought and received electrical service from a transmission line constructed across their premises without their permission does not, under the circumstances, show an unequivocal act indicating an intention on their part to forego any rights they may have in relation to the construction and erection of a transmission line.
BILL IN EQUITY to determine right to maintain power line across defendants' land brought pending a trespass suit by defendants against plaintiff. Heard at March Term, 1939, by Rutland County Court of Chancery, Adams, Chancellor. Findings of fact were made, decree dismissed the bill, exceptions to plaintiff. The opinion states the case. Affirmed.
Jack Crowley and Edwin W. Lawrence for the plaintiff.
Asa S. Bloomer for the defendants.
Present: MOULTON, C.J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is a suit in equity in which plaintiff seeks a decree establishing that its right to construct and maintain its line of poles and wires across defendants' farm is that of a licensee, without compensation, and that such license is irrevocable during the life of said line and for such other and further relief as is just and equitable. Decree was entered dismissing the bill and the case is here upon plaintiff's exceptions.
The record shows the following material facts:
Plaintiff is a public service corporation organized in 1919 or 1920, operates an electric power system and serves the towns of Shrewsbury, Mt. Holly, and a part of Wallingford. Defendants are husband and wife and as such own a small farm in Mt. Holly. In connection with its business, plaintiff has a power line leading from a sub-station at Mt. Holly across defendants' farm to Hortonville. This branch was laid out in October, 1919, locating twenty poles on defendants' farm and was completed by plaintiff in August, 1920, since which time it has been in continuous operation, serving about fourteen customers. At the time of this construction work upon defendants' farm Fred Bussino was not at home but Mrs. Bussino was there and knew about this matter. Defendants are the first customers to receive service after leaving the said sub-station.
At some time after August, 1920, defendants applied for electrical service at their house. Plaintiff promptly made necessary installations which included placing a transformer and setting one pole. Since this was done defendants have continued to receive electrical service from said distribution system and have been regular customers of plaintiff.
Defendants made their first objection to this line crossing their farm in 1931 which was after they had been receiving electrical service for some time. On this occasion Mr. Bussino demanded that plaintiff should pay to defendants $200 damages because of plaintiff having built and maintained the line in question across their lands. This demand was not complied with and in 1933 defendants brought their suit in trespass against plaintiff in Rutland County Court which suit is now pending. The line as originally constructed is the one now in service.
Plaintiff in its brief presents two questions for consideration. First. It is claimed that defendants have acquiesced in the construction and maintenance of said line across their premises as a matter of law because of their failure to object thereto for a period of about eleven years. Therefore it is contended that defendants are now not in a position to insist that what plaintiff has done in building and maintaining its distribution system across said farm has been done without right.
This claim is without merit. When plaintiff built this line upon defendants' farm it knew, through its officers, that it was building on defendants' land and that no permission had been obtained to do so. Under these circumstances, as disclosed by the record, there was no duty on the part of defendants to warn plaintiff and so they are not prejudiced by failure to do so. Boynton v. Hunt, 88 Vt. 187, 189, 92 A. 153.
A cardinal principal in the doctrine of equitable estoppel is that he who claims it must show that he has been misled, and thereby prejudiced, by the conduct of the other party. Boynton v. Hunt, supra, 88 Vt. 187, 189, 92 A. 153; Weinberg v. Norton, 107 Vt. 279, 292, 178 A. 913. No claim is made that plaintiff has been misled by defendants' conduct, hence there is no equitable estoppel here.
Second. Plaintiff contends that defendants have made an implied waiver of any rights they might otherwise have had by asking for and receiving electrical service as hereinbefore stated.
A waiver is an intentional relinquishment of a known right. Since plaintiff claimed there had been an implied waiver, it had the duty of establishing same by showing some act or conduct on the part of defendants that was unequivocal in character. Barber v. Vinton et al., 82 Vt. 327, 334, 73 A. 881; Rogers v. Whitney, 91 Vt. 79, 81, 99 A. 419.
Plaintiff points to no reason, nor can we see any, why defendants in asking for and receiving electrical service, under circumstances disclosed by the record, have committed an act which shows unequivocally, as a matter of law, an intention on the part of defendants to forego any rights they may have had before making such application.
Decree affirmed with costs to defendants.