Mears, C.J and Lindsay, J.:— The judgement of the Court after stating the facts as above, thus proceeded:—
After hearing the arguments of counsel, we think the learned Judge of this Court was quite right. The law on the subject of equitable estoppel has been expounded in the case of Willmott v. Barber. In dealing with the subject of acquiescence, Fry, J., observed as follows at page 105 of the report:—
“It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstain from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it, but, in my judgement, nothing short of this will do.”
Applying these principles to the case now before ns, no case has been made out by either of the courts below for refusing the plaintiffs demolition of the construction. It has been argued that the defendant appellant was under a mistaken belief that the land in dispute belonged to him. Even assuming that, the defendant would still not be entitled to succeed in this appeal, for it would be necessary for him to establish the other matters referred to in the judgement of Fry, J. From the judgement of the courts below, however, it does not appear to us that the defendant appellant could have entertained any bonâ fide belief that he was the owner of the land in question.
We are of opinion that the appeal fails and we dismiss it accordingly with costs.
[N.B—It may be noted that “fraud,” as used by an Equity Judge, means “against good conscience” rather than fraud in the criminal, or colloquial, sense.—Ed.]
Appeal dismissed.