*7. In case of a deed to a railway company of land, on which to construct their road, the assent of the company will be presumed, and they are bound by the conditions of the grant, as that the road shall be so constructed as not to interfere with buildings on the land.6

8

8. An oral permission to take and use land for a railway is a bar to the recovery of damages for such use, until the permission is revoked. In a very late case before the House of Lords, a very important, and as it seems to us reasonable and just qualification is annexed to the familiar doctrine of implied assent to the appropriation of land to a permanent use by the owner standing by and not objecting. It is here ruled, "If a stranger builds upon the land of A., supposing it to be his own, and A. remains wilfully passive, equity will not allow him to profit by the mistake; but if the stranger knows that the land upon which

the company against a subsequent mortgagee. Merritt v. Northern Railw., 12 Barb. 605. But the payment by the company of the price of the land, and changing their route in faith of the title, might give them an equity superior to that of a subsequent mortgagee. Ib. The deed of one tenant in common is a good release of his claim for damages, although it convey no right as against his co-tenant. Draper v. Williams, 2 Mich. R. 536. But an agreement to sell land to a railway company, and a tender of the price by the company, creates no title in them. Whitman v. Boston & Maine Railw., 3 Allen, 133.

And the rights

• Rathbone v. Tioga Navigation Co., 2 Watts & Serg. 74. and duties of the company, in such case, are precisely the same as if the land had been condemned, by proceedings in invitum, under the statute. Norris v. Vt. Central Railw., 28 Vt. R. 99. Such grant carries the incidents necessary to its enjoyment. And if it becomes necessary, in constructing the road, to make a deep cut, that may be done, and the company are not bound to protect the banks of the excavation by a wall. Hortsman v. Lexington & Cov. Railw., 18 B. Mon. 218. See also Louisville & Nash. R. v. Thompson, 18 B. Mon. 735.

7 Miller v. Auburn & Syracuse Railroad, 6 Hill, 61. And such license, when executed, by the construction of the work, is not allowed to be revoked. The only relief the party is entitled to is compensation for his land. Water Power v. Chambers, 1 Stock. Ch. 471. And it was held in a somewhat recent English case, Corby v. Hill, 31 Law Times, 181, that where the owner of land had given oral permission to one for a private way, he could not obstruct, or give permission to others to obstruct, such way; and that where a third person, by permission of the landowner, placed building materials in the way, whereby an injury accrued to the person having the way, he might sue for such injury. Ramsden v. Dyson, 12 Jur. N. S. 506.

he is building belongs to A., then A. may assert his legal rights and take the benefit of the expenditure. And a tenant building upon his landlord's land, in the absence of such special circumstances, acquires no right against him at the expiration of the tenancy. But a mere license to build works connected with a railway, the damages to be settled with a person named, or "on equitable terms hereafter," does not amount to any definite agreement.9

9. Where land is conveyed, for the use of a railway, upon condition that it shall revert to the owner upon the abandonment of the road, and the road was sold, under a mortgage, to the state, and by the state and by new companies chartered for that purpose completed, it was held, that the grantor was not entitled to hold the land.10

10. Where land was conveyed to a railway company, for the purpose of constructing their road, on which was a tenement, and to this water was conveyed by an aqueduct from another portion of the land of the defendant, and the price of the land was fixed by the commissioners, the defendant at the time claiming the right to withdraw the water, and this not being objected to by the president and engineer of the company, who were present at the time it was held, that the deed containing

• Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58.

10 Harrison v. Lexington & Ohio Railw., 9 B. Mon. 470. So, too, if land is conveyed on condition that an embankment (water-tight) over a brook crossing the land shall be erected by the grantors, and that the embankment, or dam, with the floodgates or sluices therein might be used for hydraulic purposes by the grantors, their heirs, and assigns, the grantees not to be liable to the grantors for any damage they might sustain by a break in such dam, unless the same should happen through the gross neglect or wilful misfeasance of the grantees, but that the grantees should repair the dam forthwith, it was held to be a condition subsequent, the failure to perform which would give the grantors, or their heirs, a right of re-entry at their election. But it was further said, that the conveyance of the estate by the grantees defeated the condition, and that the assignee had no remedy upon it. Underhill v. Saratoga & Wash. Railw. 20 Barb. 455. And such conditions may be waived by the party in whose favor they are made, as in a grant of land for a railway track, the road to be completed by a day named, or the deed to be void, which was not done; but the grantor continued to treat the company as having the right to use the land for the purposes of the grant, and it was held a waiver of the condition. Ludlow v. New York & Harlem Railw., 12 Barb. 440.

no exception in regard to the water, the company acquired the right to its use, in the manner it had been before used, and the defendant was liable to an action for diverting it,11 and the intention of the parties could not be determined by extraneous evidence.

11

11. So, also, the principle that a grantor, knowing the purpose for which his deed is accepted, cannot derogate from his own grant, applies to the case of a compulsory conveyance, under legislative authority, and the act is sufficient notice to the grantor of the purposes of the conveyance. But this rule will not apply to any accidental state of facts, existing at the time of the grant, as the support resulting from an excavation being filled with water at the time, so as to entitle the grantee to insist upon its continuance.

12. And accordingly, where a railway took the land above a mine for the support of the abutments of a bridge, the mine having been abandoned for forty years and full of water, it was held they could not insist upon having the water remain in the pit, as a support to the earth, but that they were entitled to be protected from damage likely to result from working the mine.12

13. If a railway have power to take land by consent of the owner, an oral consent is sufficient.18 And if the company take land and put it to their use without the consent of the owner, or any other proceeding under their powers, it is a trespass, but can only be sued by the person then owning the land, and not by his grantee.13 But this case was reversed upon error, and it was decided, somewhat at variance with the present English rule, that such a license, coupled with an interest, was still revocable at the option of the licensor. But the final conclusion of the court of error, that "consent," in such an act, meant the effectual consent of the law expressed with due formality, seems altogether the more reasonable ground upon which to place the

case.

14. The New York Court of Appeals 14 held that municipal

11 Vermont Central Railw. v. Hills, 23 Vt. R. 681.

12 North Eastern Railw. Co. v. Elliott, 6 Jur. N. S. 817.

13 Central Railw. Co. v. Hitfield, 5 Dutcher, 206; s. c. in error, Id. 571.

14 Mayor &c., of the City of New York v. The Second Avenue Railw., 32 N. Y. Repts. 261; s. c. 34 Barb. 41, where the case was similarly ruled.

corporations, as to their rights and powers over lands owned by the corporation, were to be viewed the same as any other owner of land, and that their acts and resolutions in regard to the use of such lands by others were not to be regarded as either of a legislative or governmental character; and that although such corporations have no power as a party to make contracts which shall control or embarrass their legislative powers and duties, yet, as these legislative duties, or powers, only extend to regulations of police and internal government, and not to the mere imposition of a sum of money for revenue purposes, consequently an ordinance imposing a license duty upon city cars, for revenue purposes only, is not an ordinance for police and internal government, and the imposition of an annual tax upon a city passenger railway, in derogation of its rights, as defined by a specific agreement between the city and the railway company, for purpose of revenue merely, is unlawful and void.15

15 The terms of this contract appear more fully where the case is reported in Barbour. It prescribed the regulations to which the company should be liable, requiring no further license, and reserving no power to require one thereafter. This was held to preclude the city authority from making the imposition demanded. It would seem, the case might have been decided, in conformity with the dissenting opinion of Mr. Justice Ingraham, in the court below, without any great violence to principle. See also Branson v. Philadelphia, 47 Penn. St. 329; Veazie v. Mayo, 45 Me. R. 560; People v. New York & Harlem R. Co., 45 Barb. 73; Vilas v. Mil. & Miss. R. Co., 15 Wisc. R. 233. A grant of land to the use of a highway seems to be regarded as giving the municipal authorities the same rights in regard to its use as where the land is condemned for that purpose. Murphy v. The City of Chicago, 29 Ill. R. 279.

The grant to a railway company of a right to build a tunnel will not preclude the owner of the land from digging minerals under the tunnel, in conformity with the general railway acts, London & N. W. Railw. Co. v. Ackroyd, 8 Jur. N.

S. 911.

§ 62. 1. There can be no doubt courts of equity will decree specific performance of contracts for land, made by consent of the owners, as well after the act of parliament as before.1

2. If the agreement contains provisions for farm-crossings, fences, and cattle-guards, either express or implied, the master will be directed to make the proper inquiry, and any decree for specific performance should provide minutely for all such incidents.2 But, upon general principles, if the agreement provide that the price of land is to be fixed by an arbitrator or umpire, it has generally been held that a suit for specific performance is not maintainable.3

3. But if the arbitrator have acted and fixed the price,1 and by parity of reason, if the umpire is named, and ready to act, there *being no power of revocation, a court of equity may decree specific performance. Hence in the case above, the Vice-Chancellor held, that, as the contract was to take the land on the terms prescribed in the act of parliament, the court had the means of applying those terms, so as to get at the price, and might there

1 Ante, § 13, et. seq; Walker v. The Eastern Counties Railw. Co., 5 Railw. C. 469; s. c. 6 Hare, 594.

2 Sanderson v. Cockermouth & Washington Railw. Co., 19 Law Jour. Ch. 503; 11 Beavan, 497.

3 Milnes v. Gerry, 14 Vesey, 400. But in this case the umpire was not agreed upon, and the court held they could not appoint one. But the Master of the Rolls held that an agreement to sell, at a fair valuation, may be executed. See Tillet v. Charing Cross Company, 5 Jur. N. S. 994.

* Brown v. Bellows, 4 Pick. 179.