
    WINSLOW v. BALTIMORE AND OHIO RAILROAD COMPANY.
    APPEAL FEOM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
    No. 125.
    Argued December 17, 18, 1902.
    Decided February 23, 1903.
    A lease containing a covenant to renew at its expiration with covenants, terms and conditions similar to those contained in the original lease, is fully carried out by one renewal without the insertion of another covenant to renew. Otherwise a perpetuity. is provided for, and this the court will not presume in the absence of plain and peculiar language.
    Where land is owned by three trustees under a trust requiting an exercise of the judgment and discretion of all the trustees and there is no evidence of authority for one of them to act alone, the execution of what purports to be a lease for five years by one of the trustees does not make a valid lease of the property, nor does it affect the share of the trustee executing it as in the case of ordinary joint tenants; and where all the trustees do not join in the execution of an instrument, the burden is on the grantee to . prove the deaths of those not joining therein. Recognition or ratification by the other trustees cannot be assumed unless it is shown to have been founded upon full knowledge of all the facts.
    The receipt of rent by tlie beneficiary under the trust directly from the tenant will not amount to a part- performance- of the contract in such manner as to make it binding upo.n the trustees not signing when it appears that the check received .for'such rent-was'not endorsed by the trustee and there is no proof that the beneficiary knew there was no binding lease in existence, but it does appear that subsequently rent was refused and only accepted under an agreement that the acceptance was without prejudice.
    Where a lease contains an option to the lessee to purchase at a price named in the lease during the continuance thereof and the trustees making the lease have no general or absolute power of sale, specific performance of that portion of the contract should be denied.
    Where a railroad company has built its line on land affected by sucha lease, and the trustees have commenced an action to recover rent for the peritsd of occupancy subsequent to the expiration of the lease, and also to recover possession of the property, there is no ground for an injunction against the prosecution of the action as-to the recovery of the rent; it is proper, however, for this court to enjoin for a reasonable period, in order to permit condemnation proceedings to be instituted and prosecuted, that portion of the action which is an attempt to oust the railroad company from land upon which it has entered with a view to its purchase and constructed its road thereon for public purposes under the sanction of public authority and over which the public have rights which should not be obstructed or destroyed either by the company itself or by antagonistic parties claiming ownership as a result of a private agreement.
    The Court of Appeals of the District of Columbia, reversing the judgment of the Supreme Court of the District, (which dismissed the bill of the railroad company,) directed that court •to give judgment in favor of the company, and from the judgment of the Court of Appeals an appeal to this court has been taken by the defendants below.
    The company brought this suit to obtain a judgment declaring the validity of an alleged lease to it for five years from the first day of August, 1897, and to compel the specific performance of an alleged contract to sell to it the same land mentioned in the lease and lying in the city of Washington, owned by the defendants as substituted trustees under'the will of the late Catherine Pearson, deceased, and to enjoin the defendants from continuing proceedings at law .which they had commenced to obtain possession of the premises, "and also to enjoin them from the prosecution of an action to recover damages for the use and occupation of the land by the railroad company. The facts are as follows :
    
      Catherine Pearson in her lifetime owned certain land, consisting of unimproved lots in the city of Washington, near , the Baltimore and Ohio Railroad Company’s depot, and lying on the line of its Metropolitan branch as subsequently constructed in that city. ■ After’ the decease of Mrs. Pearson, and on June 30, 1868, her . will was duly proved before the proper probate court in the District,. ..In it she devised the premises to trustees for the sole and separate use of her daughter, Eliza’ W. Patterson—
    “ During .the term Of her natural, life, and so that the same shall not be liable for the debts or subject to the control, contracts or engagements of her present or any after-taken husband ; to permit her by herself, or her special attorney appointed in writing, to be signed by her, to receive the annual income and profits of the same for her own sole, and separate use, her receipt or that of her attorney so appointed as aforesaid alone to be an acquittance to the person or persons charged with the payment of such income or any part of the same, and to the extent only therein expressed to have been paid — and if she please to occupy, possess and use for her own account, accommodation and convenience and that of her family any part of the property; real and personal, so held for her sepárate use and benefit, she shall be allowed to do so; and if at any time the said Eliza Patterson shall in writing, to be signed by her in the presence of and to be attested by a subscribing witness, desire the said Carlisle P. Patterson, William H. Philip and Walter S. Cox, or the survivors and survivor of them, to sell any part of the estate,.real and personal, held by them for her separate .use, for the purpose of changing the investment thereof, it shall be lawful for the said named trustees or the survivors or survivor of them to sell the same for such purpose' only, and to transfer and convey the absolute estate in fee therein, to the purchaser thereof; to receive the proceeds of any and every such' sale of the purchaser, who shall not be required to see to the application thereof; and to invest the same in such maimer as the said Eliza W. Patterson may require; and such new investment shall be held by the said trustees for the same use, trusts and purposes, and with'the same powers and authority, of sale and reinvestment asfis.-herein declared of and concerning the original trust,. subject.. and separate estate. , .
    “ And after the death of the said Eliza W. Patterson the said named trustees and their successors shall hold-the said trust;, - subject- and separate .estate, — original and subsequently acquired by sale and reinvestment — ¡-for the use and benefit, of- any child,.. or children, -of the said Eliza. W.s Patterson, and the issue ofany child or children of the said Eliza who ,may.die -leaving issyie-.in-, the lifetime of the said Eliza., and such issue shall take the share or portion of the: said-estate which their parent or parents would have taken had they .survived the. said Eliza. And if the, said Eliza W. Patterson shall die without leaving a child or children,’ or issue of any child or children, living at the time of her death,, the said trustees and their successors shall-hold the said trust, subject and separate estate for my right heirs.. And if it shall, happen that either of the said trustees shall die, or. .become incapable of acting, or shall refuse to act in the execution of-said trust, then and in every such case -the continuing trustees or trustee shall from time to time nominate some other person .or persons to be approved, by the said Eliza W. Patterson to. be trustee or trustees in the place and stead of the person or per- ‘ sons so dying, or becoming incapable or refusing to act,, and. shall convey and settle .the said- trust, subject and separate estate in such manner, that, the same shall be legally vested in such,continuing trustees or trustee, and spch person or persons so naméd and appointed to that office for the same uses, trusts and purposes, and with the same,power and,authority of administration, sale and- reinvestment as is hereinbefore declared of and concerning the said, trusts, subject and .estate, and the said new trustee or trustees shall have the same power to act in the premises in conjunction' with the continuing trustee or trustees, and as survivors of them,, as if they liad been originally, named trustee or trustees in the premises in this my last will- .and testament. -
    ■ “ I do hereby nominate -and appoint Carlisle P.- Patterson,. William, II. Philip and W. S. Cox to,, be the executors, of .this-my last will and testament.”
    
      In 1872 the trustees under Mrs. Pearson’s will leased to the railroad company the land for five years, the lease containing a privilege to the railroad company to purchase such land during those five years on payment of $12,592. It also contained an agreement to renew the lease with the same covenants and privileges for another term of five years, or until the lessors were prepared-to convey the premises as agreed in the lease with a perfect title in fee simple.
    Prom the time of the first lease in 1872, and under various leases thereafter, the company occupied the land, constructed part of its branch line thereon, and paid rent therefor up to 1888. On January 30 of that year alease was made, which was signed by the trustees and by the president of the railroad company, though not by Mrs. Patterson. By the terms of that lease the premises were rented for five years from August 1,1887, at the same rent and with the same covenants as to renewal and for the sale of the lands as contained in the first lease of 1872. The company continued in the occupation of the premises under this lease for the five years mentioned therein. Upon October 17, 1892, the company still being in occupation of the land, another instrument was executed in the form of a lease, signed by but one of the trustees, and purporting to lease the land for five years from August 1, 1892, at the same rental as the lease of 1888, and with the same covenants to sell at the same price ($12,592,) and to renew the lease for five years, as contained in the lease of 1888. This lease was signed by Winslow, alone, he then being one of the substituted trustees, but Jay, another qf the substituted trustees, did not sign it, and, so far as appears, never saw it. These two substituted trustees had been duly appointed prior to or in the year 1883. The former' trustee, Judge Cox, had resigned in June, 1892, and it does not appear that his successor had then been appointed.
    The company retained possession of the property from August 1, 1892, up to August 1, 1897, and paid the amount of money mentioned in the paper of 1892, being at the same rate that had been paid since 1872, and as was provided in the lease of 1888. About the first of August, 1897, questions arose as to the terms of future occupation of the land. The trustees refused to execute any further lease, denied any obligation to renew it for any term, and said they preferred to sell, but refused to do so on the old terms, the land having in the meantime largely appreciated in value. In September, 1897, Mr. Winslow, in a letter to the company, said they were prepared to convey the property with a perfect title, and that they also preferred to execute such conveyance to any renewal of the lease. The company, however, prepared a lease, which provided for again leasing the land to it on the same terms for a period of five years, commencing on August 1, 1897, and this lease also contained a provision for a renewal for another five years, or until the lessors could convey the premises in fee simple to the company. This lease was never signed. Negotiations continued in regard to the matter, the company insisting it had the right.to a renewal of the lease by virtue of the instrument dated August 1,1892, while the trustees denied that contention, and though willing to sell, were not willing to do so at the price named in the former lease, as they said that the value of the • land had increased from $12,592 to over $30,000. During these negotiations and disputes the company retained possession of the land, and on or about February 1, 1898, (the dispute and the negotiations between the trustees and the company being still unsettled,) in accordance with the custom which it had followed during the running of the various instruments since 1872, of paying the rent semi-annually on the first days of February and August as it accrued, it sent the money that would have been due for rent, (if a lease were then in existence,) in the form of a money order payable to the order of Mr. Winslow, trustee of Eliza W. Patterson, and enclosed it in a letter addressed to Mr. Winslow, in care of Fisher & Co., agents, who sent it to Mrs. Patterson, as Mr. Winslow was then absent in Nicaragua as secretary of the Canal Commission. This money order was received by Mrs. Patterson, who thereupon wrote the following letter, under date of February 5, 1898, to one of the officers of the company:
    “Dear Sir: I returned to you a few days ago the draft which you sent me for the rent of my property on First street, Washington, by the railroad company of Balto. & Ohio of $377.77.' -The draft'was made' out'to Mr. Francis Winslow', triisteé, and I'could hot draw it, as Mr. Winslow in Nicaragua, and I could not send it so far away to him, fearing it might be lost! I therefore return if to you, with the request that you would sign it, as you-always have done heretofore, Cox, Jay & Winslow, trustees. Judge Cox & Mr! Jay are both here, so that they can sign it at onCe arid I can have the money. By giving prompt attention to this small' matter of business you will greatly oblige, "
    
      :■■■(( Eliza W. Patteesoet.”
    The' statement in this letter, that Judge Cox could sign the draft of order, was evidently a mistake, as his resignation had been accepted by the' court'years prior to the'date of the letter.
    The company afterwards 'sent' back the" draft, and,' under some arrangement between Mrs. Patterson and Fisher & Co.', which if does not appear was known by'the trustees, but which was* consented to by the' company, the same was' endorsed “ Francis Winslow, trustee, by Thomas J. Fisher & Co., attorneys,” and oh such endorsement the money on the' voucher was obtained from the company and received by Mrs. Patterson. ' ‘ '
    On August 1, Í898, the company sent a draft or money order for $877.77, the amount of rent which would have been due if there had been a valid lease in existence, the draft being sent to Mr. Winslow, trustee; which he declined to negotiate, and insisted that the rights of the company'had been terminated by his notice prior to and in September, 1897, and that since that time the company had-been occupying the property as tenants by sufferance.
    This voupher, and those which succeeded it, and which' were forwarded'to Mr. Winslow, as trustee, and made payable to his order, were retained' by'him until January, 1900, when they were returned' to the company and a check given for the aggregate amount under an agreement that its acceptance should be without prejudice to the rights of the respective parties añd their claims relating -to he leasing of the land or the renewal of the lease,-or ..to any question or matter connected therewith;
    The dispute between the parties continued, as also did the negotiations in regards to a settlement thereof, until sometime in March, 1900, when Mr, Winslow, Mr. Jay and the American Security and. Trust Company, the, substituted trustees, took proceedings against tlie company before- of dhe-peace to obtain possession, of .the. premises, based upon a notice to .quit, giveir under the statute. Judgnteht tinjg tees was rendered int htat case by default, and an appeal by the company, as provided for by law, was prosecuted, and was undetermined at the time for the commencement of this suit On August, 15, 1900, the substituted,- trustees also commenned an action against the company for the use and occupation of the premises fro, August 1, 1897, to April 16, 1900, claiming $6500, withn interest form the last name date. Soon thereafter the comany commenced this suit asking for a judgment that the company was entitled to a lease form August 1, 1897, for five years and also for a judgment for specific performance of the contract to sell, and obtained an injuction restraining the prosecution of both of the prceedings abbove mentioned.
    ' The trial court held ithat ..there, had; j0qen pp.-yplid Jeptjja^jt-for a sale, and that there was then no valid lease in existence such as was required ,íe-he.,proyed ,.befpre a,cpurt;pf; equity would decree specific performance. The court expressed no opinion, as to,., the .effect of continued ;Qc.cupafdon alter: the-expiration of any lease' under the facts in the case with refer-, ence to the amount of the rental to be paid. That was a matter which i.t was.held.,could-be determined •-,pn--)the. lawi.si.deibf the court. A decree .>\yas..thei’efpre--enter%d dismissing theebilh and dissolving the injunction which had been granted.
    , The Courtl,of,.i^ppe<als,.reversed,, .-.the-, judgment ©Jmthe,-.trjal court,,,18. App,, D..( 4.38, dnd-xenaanded-fthe Gase,,--nncl.' ittits; opinion it;,was stn|e4 a?.|0líd'Ysvn ->-«■ mic
    "In view of what has been said, we are of opinion that unde the provisions of the lease of 1892, executed bt Francis Winslow, trustee, for and on behalf of the life tenant, Mrs Eliza W. Patterson, the appellant was and is entitled to one renewal of such' lease for the term of five years from and after the first day of August, 1897, upon the terms and conditions of said lease as to the rents to be paid therefor; and that during. the continuance of such term no suit for the dispossession of the appellant can be maintained. We are, also, of opinion that, for the time subsequent to the determination of said renewed lease for which the appellant shall require the use and occupation of said land, the appellant is entitled, and it is its duty to acquire the right to such use and occupation, under the exercise of the right of eminent domain conferred upon it by the act of Congress, by the ascertainment of the value of such use and occupation, and payment to the owners of the land of the just compensation so to be ascertained. And the bill of complaint in this cause máy be retained for the purpose of such ascertainment of value and just compensation: It follows that the decree of the Supreme Court of the District of Columbia dissolving the injunction granted in this cause and dismissing the bill of complaint, must be reversed, with costs; and that the cause will be remanded to that court, with directions to vacate said decree, to restore the injunction and make the same perpetual, and for such further and other proceedings as may be just and proper, according to law and in conformity with this opinion. And it is so ordered.”
    
      Mr. William G. Johnson for appellants.
    
      Mr. M. J. Colbert and Mr. George E. Hamilton for appel-lee.
   Mb.' Justice Peckham,

after making the foregoing statement of facts, delivered the opinion of the court.

It is quite plain that a lease containing a covenant to renew at its expiration with similar covenants, terms and conditions contained in the original lease is fully-carried out by one renewal without the insertion of another covenant to renew. Otherwise a perpetuity is provided for. Piggot v. Mason, (1829) 1 Paige’s Ch. 412; Carr v. Ellison, (1838) 20 Wend. 178; Syms v. Mayor, (1887) 105 N. Y. 153; Cunningham v. Pattee, (1868) 99 Massachusetts, 248; Taylor’s Landlord & Tenant, 8th ed. §§ 333, 334.

From the ordinary covenant to renew, a perpetuity will not be regarded as created. There must be some peculiar and plain language before it will be assumed that the parties intended to create it.

There is no question of the validity of the lease of 1888. It was for five years from the first of August of the year 1887, with a covenant of renewal, and that covenant would have been satisfied by giving a lease in 1892 for five years, up to August, 1897, without any covenant therein for a further renewal. In fact, however, the lease was not legally renewed in 1892, because the paper of that year was signed by one trustee only. In our opinion his signature did not make a valid lease. It required the signatures of all the- trustees. A deed of land executed by one trustee does not convey his share as in the case of ordinary joint tenants. So where a deed of land was executed by two out of three trustees, the burden is upon the purchaser to prove the third trustee was dead. 1 Perry on Trusts, (2d ed.), sec. 411; 2 Perry on Trusts, secs. 499, 502; 2 Story Eq. Juris. (12th ed.) sec. 1280; Brennan v. Willson, 71 N. Y. 502-507.

The authorities cited by the counsel for the company, to the effect that one of several trustees may, when so authorized by his associates, act with regard to the execution of some portions of the trust, as their agent, and that when not previously so authorized a subsequent ratification of his act by his associates may bind them all, do not embrace the facts in this case. There is no evidence of any authority to one trustee to sign a lease. The granting of a lease was an important and material act in the way of carrying out the trust under the will, requiring an exercise of the judgment and discretion of all the trustees. It was therefore necessary for them all to act in order to make a valid instrument.

That one of several trustees can be entrusted by his associates with the transaction of the business x>f the trust may be, under certain circumstances, conceded, but those circumstances will not justify the doing of an act by one trustee on his own responsibility which is of a nature to require the de- > liberate discretion and j udgment of all the'trustees. ’ ;In the case of a-lease bf-property, such üs"is presented herein; the signatures of all are necessary to the validity of the paper.

The case cited of Insurance Company v. Chase, 5 Wall. 509, relates ot an usurance effected bt one of several trustees, and the question was whether the poslicy covered the individual interest of the person taking out the insurance or his interest as trustee; if the former, it was void because he had no interest as an individual, and the policy was therefore one in the nature of wager. The court in the course of the opinion remarked:

"It is true, that in the administration of the trust, where there is more than one trustee, all must concur, but the entire body can direct one of thier number to transact business, which it may be inconvenient for the others to perform, and the acts of the one thus authorized, are the acts of all, and binding on all. The trustee thus acting is to be considered the agent of all the trusteesm and not as an individual trustee. If, within the scope of his agenct, he procures an insurance, it is for the other trustees, and not as an individual trsutee. Id, within authority, sitll it is a valid contract, which the underwriter cannot dispute, if his co-trustees subsequently ratify it. In fact, so liberal is the rule on this subject, that where a part owner of property effects an insurance for himself and others, without previous authority, the act is sufficiently ratified, where suit is brought on the policy in their names."

The facts in this casé do not bring if "within the principle mentioned, and-it’ is clear that to’ rénder thé léase originality valid it must -have been sighed by ail the trustees: 'Without it the instrument as a lease for five yeárs was void under the statute ofiirauds: Comp. Stat. D. C. 231, sec. 4.

It is Contended that the act of one of the trustees'in signing the leasé'was subsequently ratified by the other by a recognition of' its existence by- long continued silence,'if not by ah express ratification. But an express ratification would consist Of the signature of the Other trusted to thé* paper, and of that there is no'-préténse.' -A ratification of an invalid instrument of this nature-by- recognition, we do not understand. The instrument was void under the. statute of frauds, because of the lack of those signatures which could alone render it valid as a lease ior five years. Recognition could not take..the,place of the absent signatured Whether the conduct of the trustees, by qf Mrs. Pff-terson,amóurited, to such a'part performance of,an. invalid contract as would take the, place of the otherwise necessary signatures is . another question ., It is . difficult to see hpw .there could be any technical ratification of this instrument without a signing thereof by the'other trustee.

' But assuming that something in the 'nature of a. ratification might be based upon subsequent recognition, yet such recognition or ratification must be shown to. have, been founded upon a full knowledge of all the facts. There, is n.o evidence of that kind in the case ; none that .the other trustee even knew of ..the existence either of the written paper of- 1892 or that it. contained a covenant to rene w at. all for .any .time,. ..The .possession by .the company and the payment of rent .were provided for. by the'covenant to renew contained in the. lease of 1-888, ajad hencp .there wás a justification , for that possession and for. the: payment'of the money, which-was entirely,,compatible, with the nón-éxisteiicé of any written lease from 1892, prof any covenant to.a^ain.renew for five years from., August 1, 1897. This possession and payment cannot therefore be use(d as a basis,for the presumption of knowledge .op ,the part of .the . trustee of. the existence of the so-called lease of 18.9,2 or of. the covenant con: táihed therein'. ' ' , .

• Regarding the asserted part performance of the alleged contract Of léásein 1892, or of the covenant contained in that'lease, we think there was none such as to justify the contention that the covenant to renew in 1897 for five years was thereby sp far rendered valid as to call for its recognition and enforcement. In this case there was reason, as we have said, without reference to any assumed part performance of, and. aside from the alleged covenants in, the paper, of 1892, for the possession,by the company ánd for the taking of the rent of the land by the trustees up to 1897.' This reason was based upon , the obligation, which existed undér the valid lease of ,1888. The remaining in possession from 1892 to 1897 and the payment of the money need not, therefore, be referred to as a part performance of the invalid contract of lease and renewal contained in the paper of 1892. Without any reference to any paper of that character, possession and payment of rent were proper and amounted to nothing more than an acknowledgment of the obligations provided for in'the before mentioned lease of 1888.

Acts of part performance which will take a case out of the statute must be referable solely to the contract. Williams v. Morris, 95 U. S. 444, 457; Phillips v. Thompson, 1 Johns. Chy. 131; Byrne v. Romaine, 2 Edwards Chy. 445; Jervis v. Smith, Hoff. Chy. 470; Lord v. Underdunck, 1 Sand. Chy. 46; Wolfe v. Frost, 4 Sand. Chy. 72.

And again, specific performance of a void contract will not be decreed because of part performance, unless fraud and injustice would be done if the contract were held inoperative. Purcell v. Miner, 4 Wall. 513; Williams v. Morris, 95 U. S. 444. Such would not be the result here.

Nor can the receipt of rent in February, 1898, by Mrs. Patterson, under the circumstances detailed in the foregoing statement of facts, amount to such part performance of the invalid covenant to renew as to authorize its enforcement. Neither ■trustee received the rent. The signing of the name of Mr. Wins-low, one of the trustees, on the back of the draft from the company in February, 1898, was without the knowledge of or authority from such trustee, although .the endorsement was made in perfect good faith by Fisher & Co., and the money was paid to and received by Mrs. Patterson. That signing was not a part performance of the contract of lease on the part of the trustees or either of them.

Mr. Winslow was at this time absent in Nicarauga. There is no proof in the case that Mrs. Patterson knew there was no valid covenant in existence for the granting of a further five-year lease from August 1, 1897. Her receipt of the money as beneficiary under the will of her mother would not bind the trustees to renew a lease under an invalid covenant tó do so, or operate as a part performance of that invalid covenant. Especially would this be so where, as in this case, there had for months, or ever since August 1,1897, been a substantial refusal by the trustees to renew on the old basis or to sell at the old price, and negotiations were still in progress between the trustees and the company relative to the terms of a continued occupation of the lands. The trustees and the company were alone the parties who could agree upon a lease, and while negotiations were pending on the subject, the receipt, unknown at the time to the trustees, of the money by Mrs. Patterson, as stated, could not be equivalent to a part performance by the trustees or either of them, of an alleged covenant to renew contained in the paper of 1892, the validity of which was at the same time denied.

Subsequently when drafts were received by'the trustees they were not cashed, and when they were finally paid it was under a specific agreement that the payment should not in any way affect the situation between the parties. Hence the receipt of these drafts constituted no part performance upon which to base the recognition of the covenant to renew from August 1, 1897, which was repudiated as invalid by the trustees and which was in fact invalid.

Upon the question of the alleged contract to sell, after carefully examining all the facts, we agree with tl\e Court of Appeals in holding that the company was not entitled to a decree for the specific performance of that alleged contract, and, therefore, specific relief of that nature should be denied. Under the terms of the will it is plain the trustees had no general and absolute power of sale, and the conditions upon which it could be exercised did not exist.

Regarding the other relief, we are of opinion that the portion of the injunction prohibiting the further prosecution of the trustees’ action to recover the rental value of the land occupied by the company from August 1, 1897, up to the time mentioned in the complaint in that action, should be dissolved.

As to that part of the injunction which prohibits the further prosecution of the proceedings to recover the possession of the land there is more to be said. We agree with the Court of Appeals upon the subject of ousting the company from such possession. That court held that the evidence' showed the company entered upon the úse and occupation of the property in controversy with a view to its purchase when it could properly be effected: -It was understood by all the parties what the character of the'use and occupation of the land by the company was 'intended to "be. ■ Subsequently' to- its obtaining possession of the land in 1872 the railroad' company constructed what is known as its Metropolitan1 branch, part of a highway between Washington city, the* adjoining States and the West. This highway is not á mérely private enterprise nor a matter of purely private concern." It is a public road,-constructed for public purposéS, under the sanction of the public'authority band -over which the-public/have rights which cannot be permitted to be obstructed, much less destroyed, either by the: company itself, to which -the franchise has been granted as a public trust to construct and operate this road, or by antagonistic parties claiming the ownership of- • the land upon- which- -'it hks beeñ permitted to- enter without previous payment therefor, or ás the result of any private controversy between the railroad company and such parties. The compahy'having-entered,by the license of-the lessors, an action., át law for the dispossession of the railroad company cannot be maintained if the company is willing to make compensation-for its use and-Occupation of-the laftd.

•: These-views of the' Court of Appeals we'-concur in, but wfe do not say;that-the'company can-: take’proceedings .in-thisi'sui't tp condemn-' the-land'.'The---; proceeding. :to Condemn^ is -otherwise provided- for -by law,-.'arid- although--the -appellants contend -that the company has-no powerim-nder-the'-law tó ;do so, iwe are of opinion that by virtue-Of the Various acts -passed relative to the company, it has such power in this city With'reference'to-this land.- The court ought to-keep ih: force for - a-réasonáble -time, say six''months, -that-' portion "Cffuth'e'dn'junetioii ■ prohibiting -the trustees', from'.Continuing their'.proceeding:to' dispossess' the company from íhé'land, in.-Order to enable it- tomondeilin such-land' in .proper proceedings- for-'that purpose, -which cannot be taken in-the"present suit."' If.-’moré-time' is- needed,'the trial eourt.-may -upon.application;'after -notice; extend the time as to. it ' may' 'seem -reasonably - necessity.' - - Tf'' no ■' -'proceedings to' condemn are-taken' within ;six-"'mónths -f rom.the issuing1of '-the mandate from this court to the court below, then the injunction should be wholly dissolved.

Our judgment, therefore, will be ,to reverse the judgment of the Court of Áppeáls of the District of Columbia, with directions to remand the case to the Supreme Court of the District, with directions to that court to refuse 'specific performance of the alleged contract to sell the land, and to deny enforcement of any alleged covenant'to lease the skmé froto'August 1,1897, and also to dissolve that portion of tbe injunction enjoining the. trustees from’prosecuting theif suif' to recover the réritaí válue of the land .from. August 1, 1897, and, to,retain that portion which enjoins further action- on: the part, of; the trustees to oust the company .from' .the land,- for ■ six--raonthsfrom -the date of the mafidateof this court, and'for further timé, if the,Supreme Court of the District shall Be of ..opinion, that.it is proper. - If no. proceedings are,, taken to...condemn ¡/the .land, within, six months, then the injunction -shall- be. dissolved. ■ •When the condemnation proceedings' are concluded, or if not taken within the time stated, then, at the, end of that time, application may be made to the trial court, a.nd such, judgment then entered-as shall be consistent with this, opinion,-and with such- provision in regard to .-costs .incurred,* subsequent-to' the Mandate from this court, as shall to that court seém properi ’* ' ’

Reversed and remanded with directions to reverse-the -decree below and remand the case for further proceedings in conformity to this opnion.  