
    RICHMOND & DANVILLE RAILROAD COMPANY v. THE DURHAM & NORTHERN RAILWAY COMPANY and RALEIGH & GASTON RAILROAD COMPANY.
    
      Railroads — License—Statute of Frauds — Easement—Estoppel.
    1. A parol license to enter upon the lands of another is revokable, although the licensee has entered and expended money under the license, unless the license is connected with, and necessarily incident to, the possession and enjoyment of property conveyed by a valid grant.
    2. Under section 1957 of The Code, providing that railroads shall unite in forming a physical connection, and, if they cannot agree, that commissioners are to be appointed to determine the place and manner of making such connection; one road cannot enter on the right-of-way of another for the purpose of connecting therewith without previous agreement, or condemnation proceedings.
    3. A parol agreement to allow one railroad company to extend its track on the right-of-way of another, for the purpose of connecting therewith, is a mere license, revocable at the will of the licensor, and will not operate as an estoppel although the licensee has entered and made valuable improvements.
    This is a civil action, heard upon motion for injunction, before Connor, J., at Spring Term, 1889, of VaNCE Superior Court.
    
      The Oxford & Henderson Railroad was chartered on the 23d day of March, 1871. In the month of August, 1881, it completed its track to a point in the town of Henderson,, designated as A” in the diagram, within a few feet of the right-of-way of the Raleigh & Gaston Railroad Company.
    From the point “A” to the passenger depot of the Raleigh & Gaston Railroad Company the distance is about_feet. For the purpose of making a physical connection with this latter road, the Oxford & Henderson Railroad Company, in 1881, through its lessee, A. H. A. Williams, entered upon the-right-of-way of the Raleigh & Gaston Railroad Company, and was proceeding to lay its track longitudinally on the said right-of-way in the direction of the latter’s passenger depot, when it was met by an opposing force of the Raleigh & Gaston Railroad Company which was building a track from the latter’s passenger depot in the direction of the point “ A.” The Raleigh & Gaston Railroad Co. forbade the lessee, Williams, from entering, or further trespassing, as it alleged, upon its right-of-way. A breach of the peace between the two opposing forces being imminent, warrants were issued, at the instance of the R. & G. Company, against Mr. Williams and some of his employees, under which they were arrested and bound over to Court. The said lessee was not enjoined against further proceedings with his track, but desisted, he says, in order to prevent bloodshed and the loss of life. That when the work was thus interrupted the said lessee had extended the track on the' said right-of-w7ay to' a point marked “B”' oil the diagram, some feet from the point “ A,” and it is alleged that it continued in possession of the same until the present time. It does not distinctly appear to what extent this track was used, but it was never removed, and appears to have been in the possession and under the control of the said lessee.
    In 1884 the lessee, Williams, extended his track along-said right-of-way to the point “ C ” in the diagram, where it was joined to a short spur-track of the R. & G. Railroad Company, which led to the latter’s depot, and the whole extension from “A” to the said depot has been used ever since by the Oxford & Henderson road, both under the lessee Williams and his lessor the R. & D. Railroad Company. This extension of the track from “ R ” to “ C,” and the use of the track from “C” to the depot, was made aud permitted under a parol agreement, the terms of which are seriously disputed by the contending parties.
    The Raleigh & Gaston Company, on this point, alleges that subsequent to the extension of the tract to “B” “the Raleigh & Gaston Railroad Company (in 1884), finding that it suffered much delay of its trains in stopping to transfer freight to the Oxford & Henderson Railroad Company, suggested to James A. White (the Superintendent) that he could extend his track a short distance further, so five or six cars could be left alongside it by the Raleigh & Gaston Railroad Compauy.
    The transfer of heavy goods could be easily facilitated, and complainants are informed and believe that the said extension was made to the point marked “C” by the Oxford & Henderson Railroad Company, under this suggestion and with the acquiescence of the Raleigh & Gaston Railroad Company.
    That subsequent to this John G. Winder suggested and proposed to said White, as plaintiffs are informed and believe, that if the Oxford & Henderson Railroad Company would agree to receive the cars of the Raleigh & Gaston Railroad Company on its track without transfer of freight, and would not require the Raleigh & Gaston Railroad Company to stop its passenger train at the depot of the Oxford & Henderson Railroad Company, as said company had a right to require, under the statute of the State, that the Raleigh & Gaston Railroad Company would consent that the Oxford & Henderson Railroad Company could make a physical connection with its track near the Raleigh & Gas-ton Railroad depot, by joining the Oxford & Henderson extension track to a short spur-track which the Raleigh & Gaston Railroad Company had put in át that point, and this proposition was accepted and agreed to by the Oxford & Henderson Railroad Company, and the track was accordingly again extended and' connected with the said spur-track, and the physical junction of the two tracks completed.
    The contention of the Raleigh & Gaston Railroad Company on this question is thus set out in its answer :
    “ Further answering, these defendants say, that in the spring of 1884 the said Williams, lessee of the Oxford & Henderson Railroad Company, was'allowed to extend his track over this land and to make a physical connection with the track of the Raleigh & Gaston Railroad Company, upon the express condition, stipulation and agreement that the entire track laid by him on the right-of-way of the Raleigh & Gaston Railroad Company should be taken up, the connection severed, and the right-of-way restored, whenever the Raleigh & Gaston Railroad Company should require this to be done, and that the said Williams expressly agreed to those provisions, and the track was accordingly extended and the connection made, the Raleigh & Gaston Railroad Company making no charge for the same.”
    The plaintiffs allege that the Raleigh & Gaston Railroad Company-has threatened to tear "up the whole of said track by which they will be irreparably damaged, and they pray for a perpetual injunction. The alleged threat is contained in the following letter from John' C. Winder, the General Manager of the Raleigh & Gaston Railroad Company, to W. H. Green, General Superintendent of the Richmond & Danville Railroad Company:
    
      “Dear Sir: — I had hoped before this that you would Rave removed your track, now upon the right-of-way of the Raleigh & Gaston Railroad at Henderson, which I notified you some days ago had been condemned by the Durham & Northern Railway Company for its use. As nothing has yet been done towards the removal of your track, I write now to say that as the right of way is absolutely necessary for our use, if your track is not removed within the next ten days, I will take it up, and place your ties and rails at as convenient a place for you as it is possible for me to do.”
    The Durham & Northern Railway Company, mentioned in the foregoing letter, has had the right-of-way of the Raleigh & Gaston Railroad Company, over which the track of the plaintiffs is laid, condemned to its use as a part of its main line. No notice of the proceedings were served on the plaintiffs, and they allege that they were collusive and void.
    The plaintiffs claim the right of way in question —
    “1. By a continued possession for more than ‘two years’ after the road has been ‘located,’ which is the provision of the Western North Carolina charter, or two years after the road was ‘ finished/ which is the provision of the North Carolina Railroad Company’s charter, because the Oxford & Henderson Railroad Company has the same ‘privileges, or immunities possessed or enjoyed by any other railroad in this State.’
    “2. The plaintiff also claims the right to build this track to ‘join or unite with the Raleigh & Gaston track.’
    “3. The plaintiff also claims by estoppel against the defendants, who acquiesced in the possession and gave consent to continue the track for its convenience and advantage.”
    
      There were many affidavits read on both sides which were, more or less, conflicting, especially as to whether the extension of the track was permitted upon an agreement that it should be removed upon the request of the Raleigh & Gaston Railroad Company.
    As the Court has found it unnecessary to pass upon the affidavits, they are not essential to a proper understanding of the opinion.
    His Honor below granted a restraining order, and it is for this order that the defendants appeal.
    
      Messrs. G. M. Busbee and F. H. Busbee {Mr. D. Schenek by brief), for the plaintiffs.
    Messrs J. B. Batchelor, John Deverem, Jr., and J. W. Hins-dale, for the defendants.
   Shepherd, J.

— after stating the case: The first two grounds upon which the plaintiffs base their right to the location in question are, to use their own language, as follows:

1. “By a continued possession for more than two years after the road has been located, which is the provision of the Western N. C. Railroad charter, or two years after the road was finished, which is the provision of the N. C. Railroad charter; because the Oxford & Henderson Railroad Company has the same privileges or immunities possessed or enjoyed by any other railroad in this State.

' 2. “The plaintiff also claims the right to build this track to ‘join or unite with the Raleigh & Gaston Railroad track.”’

The Oxford & Henderson Railroad Company was chartered by the General Assembly of 1870-71. Its charter gave it power “to have land condemned for right-of-way according to existing laws.” Under-the existing laws there was no such statute of limitations as is relied upon by the plaintiffs. They must, therefore, in order to sustain their contention, connect themselves with the charters of the Western N. C. and the N. C. Railroad Companies.

These charters confer upon the said companies the right to enter upon any lands “for the purpose of constructing” their roads, “and, for want of agreement as to the value thereof, or from any other cause, the same cannot be purchased from the owner or owners, the same may be taken at a valuation to be made by five commissioners,” &c. If there be no agreement or purchase, there shall be a presumption of a grant of an easement, “and,in case the owner or owners shall not apply within two years next after” the road is finished over his or their lands, or, in the case of the Western N. C. Railroad Company, within two years after the road has been located, the owner or owners “shall be .forever barred from recovering said land or having any easement or compensation thereof.”

In order to avail themselves of this limitation, the plaintiffs rely upon an amendment to the charter of the Oxford & Henderson Railroad Company (ch. 188, Acts 1879), which provides that it “shall have all the powers and enjoy all the privileges and immunities possessed or enjoyed by any other railroad in the State.” These amendatory words, standing-alone, would undoubtedly be sufficient to serve this purpose, but the act further provides that “ this act shall not apply to Henderson township.” The scene of this controversy being in, Henderson township, it must follow that the statute of limitation in question had no application to this case.

Conceding, however, that the two years’ limitation apply to this controversy, and that entries for the purpose of constructing a railroad maybe made before the institution of the proceedings for condemnation, we will inquire'whether the above-mentioned charters or the general laws authorize an entry upon the right-of-way of another railroad, where there has been no such proceeding, and where the sole object of such entry is to make a physical connection with such road.

It is well settled in this State that the right-of-way of one road may be appropriated, in part, to the use of another. N. C. Railroad Co. v. C. C. Railroad Co., 83 N. C., 489. And we think that, wherever there is a right to enter upon the lands of a private person for the construction of a road, before condemnation proceedings, a like right may be exercised upon that part of a right-of-way-which is not in actual use, subject, however, to the restraining power of the Court, which will determine whether such right-of-way is necessary and should be thus appropriated.

When land is taken for the purpose of constructing a railroad, all that the commissioners in condemnation proceedings are required to do is to fix the amount of compensation which should be made to the owner; but, where land is taken under § 1957 of The Code, the commissioners are not only to fix the amount of compensation, but they must determine, in the event of disagreement, “the points and manner” of the physical connection which is sought to be made. This distinction finds support in C. C. Railroad v. Love, 81 N. C., 434.

We are of the opinion that the'settlement of this important question is a condition precedent to the right of entry. To hold otherwise would encourage the very troubles of which this case furnishes such a sig;nal example. ' It could never have been intended that the depot and side-tracks of a railroad company should be subjected to the invasion of another read, which could run its track according to its own will or caprice, and seriously interfere with' the transaction of its business, as well as the convenience of the public.

We think that the above section of The Code was enacted for the very purpose of avoiding such unseemly conflicts, and that the best interests of all.concerned will be subserved by requiring a strict adherence to its provisions.

It may be argued that such harmful results may be prevented by injunction. This is open to the objection that much injury may be done, and even the peace of the State may be violated (as was apprehended in the present case) before this remedy can be obtained. It majr also be observed that, if the Court is to determine the location upon injunction proceedings, it would be practically abrogating the statutory tribunal of “ three disinterested and competent freeholders,” which has been constituted for the very purpose of settling such disputed questions.

We are not unmindful of the case of the N. C Railroad Co. v. C. C. Railroad Co., 83 N. C., 489. In that case, proceedings for condemnation had been instituted before entry, but, before the Clerk of the Court had acted, the defendant entered and commenced to work. The plaintiff sought to enjoin the defendant, and the Judge found all the facts necessary to show that the plaintiff had no equity. The Clerk afterwards appointed commissioners, from which action the plaintiff appealed, and both appeals seem to have been heard together in this Court. By reference to the opinion, it will appear that some stress was laid upon the pendency of proceedings for condemnation, and it was suggested that they might be a barrier to the prosecution of the suit for injunction. It was also suggested that the facts did not present a cause of irreparable damage. The opinion then discusses the merits of the controversy, so far as they could be properly considered at that “preliminary stage of the case,” stating that “the main, if not the only important questions argued,” were, whether the defendant had “ a right to proceed for the condemnation of lands for its use,” or whether its power for that purpose had been exhausted, and whether the right-of-way “was liable, under the law of eminent domain, to be taken for the use of the defendant company.” The Court then proceeded to discuss these questions, and the point, whether the land was subject to entry before any proceedings whatever were commenced for the purpose of making a physical connection, was not directly passed upon; nor does it seem that the attention of the Court was directed to the section of The Code now under consideration. We cannot, therefore, regard that decision as authority upon the particular question here presented:

In the present case, the O. & H. Railroad Company alleges that it had completed its track from Oxford to Henderson to the point marked “A” in the diagram (which was within a few feet of the right-of-way of the R. & G. Railroad Company), and “that, while preparing'to extend its track over said strip of land (the said right-of-way) to a point on the R. & G. Bailroad track, in order to make an intersection and junction therewith, as it was allowed'to do by the statute laws of North Carolina, it was forbidden to. proofed any further by the officers of the R. & G. Railroad Company.”

It thus plainly appears that the use of the land was not required for the completion of the road to the terminus, Henderson, but to make a connection, under § 1957 of The Code. This is the avowed purpose of the entry, and, as there was no agreement or condemnation proceedings, it was unlawful, and the possession under such an .entry would not be protected under the limitations of the charters mentioned, even if such charters were plainly applicable to this case.

Thus have we discussed this branch of the plaintiff’s contention in every aspect presented by them, and our conclusion is, that the 0. & H. Railroad Company and its lessee, the R. & JD. Railroad Company, have no title to the location in question by reason of their -entry and alleged adverse possession.

We will now consider the third ground relied on by the plaintiffs, which, they say in their brief, is “the safest basis” upon which “to ground its equity for an injunction.”

8. “The plaintiffs also claim by- estoppel against the defendants, who acquiesced in the possession and gave consent to continue the track for its convenience and advantage.”

As we propose to base our decision upon the admitted facts, we will exclude from our consideration the contention of the defendants that the track was extended from the point “B” to “ C” under an agreement that it was to be removed at the request of the R. & G. Railroad Company.

We then have the following case: The Oxford & Henderson Railroad Company, under a parol agreement, extended its track, in 1884, to the point “C.” The R. & G. Railroad Company has notified it to remove the same, and the plaintiffs having failed to comply with this request, the said R. & G. Railroad Company is about to take up the said track and place the “ ties and rails at as convenient a place ” (for the plaintiffs) “as it is possible for it to do.” This is the threatened injury complained of. There is no pretence that there was any agreement to grant an easement, and the most that can be said is that the extension was made under a parol license, and that valuable improvements have been made.

The plaintiffs rely chiefly on the case of Railroad v. Battle, 66 N. C., 546. That case was materially different from ours. The defendant Battle .had executed to the plaintiff a writing, which, the Court said, could be specifically enforced so as to create an easement. “ It was not,” says the opinion, “ a mere license; it was given for a valuable consideration and was coupled with an interest. It is true that, at law, no easement passed to the company, for an easement in land can be created only under seal. But the writing by which the defendant charged himself was binding within the statute of frauds; it was a contract, which, as has been heretofore said, this Court would specifically enforce.” In these few words we find the ratio decidendi of the case. The case of Rerick v. Kerns, 14 Sergt. & Rawle, 267, cited in the opinion in Battle’s case, is from Pennsylvania, where the doctrine of part performance obtains, and is not good authority here, where that doctrine has long since been repudiated. The quotation from that-case was unnecessary, and the principles there enunciated as to the binding effect of an executed parol license are, unquestionably, opposed to the decisions of this Court, as well as the general current of authority.

“ The doctrine of early cases, which converted an execution license into an easement, is now generally discarded as being ‘ in the teeth of the statute of frauds.’

“ The cases of Richer v. Kelly, 1 Me., 117, and Clement v. Durgin, 5 id., 9, cited by the defendants’ counsel, have now little following, and the case of Rerick v. Kearns, 14 S. & R., 267, also, relied on, which was an action at law for damages in favor of the licensee, is followed in but few States. Houghtaling v. Houghtaling, 5 Barb., 388; Jamieson v. Millemann, 3 Duer., 255; Washb. Easem., 24.

“ A simple reference to some of the more important cases, in support of the views herein expressed, will suffice. Cook v. Stearns 11 Mass., 533; Mumford v. Whitney, 15 Wend., 380; Wolf v. Frost, 4 Sandf., ch. 72; Foote v. New Haven & Northampton Co., 23 Conn., 214; Bridges v. Purcell, 1 Dev. & Bat. (law), 492; Hazelton v. Putnam, 3 Pin. (Wis.), 107; Woodard v. Seely, 11 Ill., 157; Wood v. Leadbitter, 13 M. &. W., 938; Wiseman v. Lucksinger, 84 N. Y., 31; S. C. 38 Am. Rep., 479.”

In cases where the license is connected with a valid grant, as of chattels, or fixtures, upon the land of the licensor, susceptible of being removed, it is subsidiary to the right of property, and irrevocable to the extent to protect the licensee, and save to him the right of entry—the right of possession following the right of property. Nettleton v. Sykes, 8 Metc., 34; Heath v. Randall, 4 Cush , 195; Wood v. Leadbitter, supra. But where it is sought to couple a license with a parol grant of the interest in the realty, the attempted grant being void, the transaction remains a mere license. Wood v. Leadbitter, supra: Johnson v. Thillman, 29 Minn., 95 Alabama Law Journal, 18.

The following words from Wood v. Leadbitter, 13 M. & W., 838, cited in Battle’s case, declare, we think, the correct principles : ‘‘ But where there is a license by parol, coupled with a parol grant, or pretended grant of something which is incapable of being granted otherwise than by deed, there the license is a mere license; it is not incident to a valid grant, and it is therefore revocable. The same rule prevails in equity, with this difference: that whereas the courts of law require the grant to which the license is incident to be valid at law, a Court of Equity only requires that it shall be one that is regarded as a valid grant in that Court.”

In our case there is, as we have said, no attempt to grant an easement, and the question is, whether a parol license which has been acted upon and the enjoyment of which necessarily involves expenditure in the way of improvements, can be revoked at the will of the licensor. This is expressly decided in the affirmative in Kivett v. McKeithan, 90 N. C., 106.

The plaintiff, with the verbal consent of the defendant, built a mill-dam on the defendant’s land. After the mill had been in operation for several years, the defendant revoked the license and notified the plaintiff to remove the dam, which he declined to do, and the defendant himself tore it down. The plaintiff sued him for the alleged trespass and relied upon the license, and the fact that, in pursuance thereof, he had' built his mill-dam and expended money. The Court, however, held that a parol license relating to land, whether voluntary or supported by a valuable consideration, may be revoked by the owner without incurring liability in damages.

In speaking of the doctrine of equitable estoppel, which is invoked in this case, the Court says: ‘‘In answer to a suggestion of bad faith in the defendant, in inviting the expenditure and then depriving the plaintiffs of its fruits, we must say all this is done with full knowledge of the law that the permission may be recalled, and it is the plaintiff’s folly and the result of misplaced confidence, for which the law makes no provision.

The plaintiff could have guarded against the loss by-purchasing and taking a conveyance of the easement from the defendant, or, if this could not be done, by pursuing the remedy pointed out in the statute (The Code, §1749) for the condemnation of lands,” &c.

It is needless for us to cite and- review the many conflicting decisions upon the subject in other States, as this Court has emphatically put at rest, with us at least, all doubt upon the question.

As the doctrine is so well stated in Kivett v. McKeithan, supra, and McCracken v. McCracken, 88 N. C., 272, we think it proper, in view of the importance of this case, to reproduce a part of the language of the opinions in those cases.

In Kivett’s case the late Chief Justice says: “The cases in which it has been held that a license acted on and expenditures made upon the faith of its continuance, when founded on a valuable consideration, vests an interest beyond the power of revocation at the will of the owner who gives it, proceed upon the same considerations and reasoning which support the doctrine of part performance, and these are, that the statute will not .countenance an attempted fraud and render it successful. Many will be found collected in the notes of the learned and discriminating editor of the American Decisions appended to Ricker v. Kelly, Vol. 10, p. 40; Rench v. Kern, Vol. 16, p. 501, and Mumford v. Whitney, Vol. 30 p. 71. But the subject of a parol contract, under which improvements, in good faith, have been put upon the land, and the relative resultant interests and rights to and between the parties to it, has been so fully considered in the recent case of McCracken v. McCracken, 88 N. C., 272, but little remains but to announce the conclusion there arrived at.

The Court uses this language (Ruffin, J.): “If we consider the contract as a license between the parties, as a license given to the plaintiff to enter upon the land and erect and enjoy the improvements, we cannot perceive that it, in the least, serves to help his case. ' If purely a license, it excused, it is true, his entry upon the land, which, otherwise, would have been a trespass. But it was still revocable, and its continuance entirely dependent upon the will of the owner. If intended to pass a more permanent and continuing right in the land, whereby the authority or estate of the owner could be in the least impaired, it was then not only necessary to be evidenced by writing, but would only be made effectual by deed.”

In view of the reasons given and the authorities cited, we are constrained to hold that the 0. & H. Railroad Company has acquired no interest in the right-of-wa.y in question. This being our conclusion, it necessarily follows that the said company cannot impeach the proceedings under which the said right-of-way was condemned to the use of the Durham & Northern Railroad Company.

In Marshall v. Commissioners, 89 N. C., 103, it is said that, where the relief sought is the object of the action, and not merely auxiliary, the injunction should be continued to the hearing; but this rule only applies where it is possible that the plaintiff may be entitled to the relief demanded, and as we are of the opinion' that, upon the pleadings and the admitted facts, the plaintiffs are not entitled to such relief, it would be useless to continue the injunction until the final hearing.

The late distinguished Chief'Justice concurred in this disposition of the case.

The plaintiffs moved in this Court for leave to file additional affidavits. After mature consideration, we declined to grant the motion, and we have, therefore, decided the case upon the testimony which was heard by his Honor below. If, as the plaintiffs suggest, they have newly discovered testimony tending to show the grant of an easement, valid either at late or in equity, they may still avail themselves of it either by amendment in the Court below, or by a new action, but no restraining order should be granted unless a 'prima facie case is presented in strict conforniity to the principles which we have declared in this opinion.

Much trouble and litigation would have been avoided had the O. & H. Railroad Company obtained a grant of an easement, or, failing to do so, pursued’the legal remedy provided in §1917 of The Code. It may not be improper to-observe that this provision of The Code is mandatory, and was not intended for the benefit of railroad companies alone. Extraordinary privileges are granted such corporations, and it has been well settled by the' Granger Cases,” 94 U. S.,. that, “ when private property is devoted to a public use, it is subject to public regulations.” Accordingly, it has been provided that railroads shall “unite” * * * “informing connections,” &c., and if they cannot agree, commissioners are to be appointed to determine the “points and manner” of making the same. , It is very clear that the purpose of the Legislature was to promote the convenience of the public,, and this paramount object should not be defeated by the dissensions and conflicts of rival corporations.

There is error. Let this opinion be certified to the Superior Court, to the end that the injunction be dissolved.  