
    Rodefer et al. v. The Pittsburg, Ohio Valley & Cincinnati Railroad Company.
    
      Siding constructed by a railroad company to a factory — At the expense of and for the benefit of the factory — May not be maintained by the railroad, when — License revocable • at option of licensor — Law of contracts.
    
    A siding or switch constructed by a railroad company from its road to a manufactory at. the expense and over the land of the latter, solely for its benefit and for the sole purpose of affording it facilities for receiving and shipping freight, and under a written agreement silent as to the length of time it is to remain, may not be maintained by the railroad company against the objection of the owner of the manufactory; the agreement, so far as the right of the railroad company is concerned, being merely a license revocable at the option of the licensor or his grantee.
    (No. 8394
    Decided April 11, 1905.)
    Error to the Circuit Court of Belmont county.
    On the fifteenth day of January, 1883, the Bellaire "Window Glass Works, the Bellaire Goblet Company and Bodefer Brothers entered into the following contract with the Ohio Valley Bailway Company: “Memorandum of agreement entered into this fifteenth day of May, 1883, by and between the Bellaire Window Glass Works, the Bellaire Goblet Company and Bodefer Brothers, of the first part, and the Ohio Valley Bailway Company, of the second part, in relation to the contract for a railroad from a connection with the Cleveland & Pittsburgh Bailroad Company through South Bellaire, as follows:
    “For the consideration hereinafter mentioned, said parties of the first part agree to pay to said Ohio Valley Railway Company the following sums, to-wit: The said Bellaire Window Grlass Works the sum of $2,000; Rodefer Brothers, $1,250; $250 of the sum subscribed by Rodefer Brothe'rs shall not be payable for six months after the time fixed for payment of the other amounts, said sums to be paid on the condition that the railway company shall on or before the first day of December next, and before any standard gauge track shall be constructed between the points hereinafter named, construct its own road from the point of connection with the Baltimore & Ohio Railroad track, on the property of the Bellaire, Zanesville & Cincinnati Railway Company to a point near the Belmont Coal Works in South Bellaire. Said sums to be paid within thirty days from the time said track is ready for use between said points.
    “It is further agreed that said railway company shall construct a siding or switch from a point in the main track on the lands of Jacob Heatherington into and through Union street in South Bellaire to the north line of the lands of the Bellaire Window Grlass Works, and also a siding on the lands of Rodefer Brothers, at their glass works. Said parties of the second part to provide the necessary right of way for the said first mentioned sidings or switches, and the same to be constructed on or before the first day of December, 1883, or as soon thereafter as said right of way can be provided by said parties of the second part. Said Rodefer Brothers are to furnish’the right of way for last named siding.
    “It is further agreed that no transfer charges shall be made on business passing between the Ohio Valley Railway Company and the Cleveland & Pittsburgh Railroad Company in or out.
    
      “It is further agreed that until connection shall be made with the Cleveland & Pittsburgh Railroad said Ohio Valley Railway Company shall receive from and deliver to any other standard gauge railroad company connecting therewith at Bellaire, all loaded and empty cars at a charge not to exceed $2.00 a car for loaded cars and no charge for empty cars. And if said railway company shall fail to furnish the motive power to handle said cars, said parties of the first part may employ the motive power of any other railroad company to do said work at customary rates, at the cost of the Ohio Valley Railway Company, and shall have the use of its tracks for said work and pay said Ohio Valley Railway Company therefor the rates above specified.
    “It is further agreed that if the Baltimore & Ohio Railroad refuses to connect with said Ohio Valley Railway Company at the northern boundary of the property of the Bellaire, Zanesville & Cincinnati Railway Company, and the Ohio Valley Railway Company shall fail to furnish the motive power to furnish said power as aforesaid, then said parties of the first part shall have the said connection laid and use said track on the terms above specified until said Ohio Valley Railway Company shall make connection with the Cleveland & Pittsburgh Railroad Company.
    “It is further agreed that all the conditions of this agreement applying to the Ohio Valley Railway Company shall apply to any lessee or successor of said Ohio Valley Railway Company.
    “It is further agreed that said parties of the first part or either of them, shall be entitled to receive stock of said Ohio Valley Railway Company at par for the amount paid by them respectively, if they or either of them so elect at the time of making said payments.
    “And it is further agreed that if said tracks shall not be constructed within the time above specified and on the conditions aforesaid, then this agreement shall be void.”
    The contract was duly signed by the parties, and thereafter they extended the time for performance to February 1, 1885, prior to which time the road, switches and sidings were constructed and the money paid. At that time the plaintiff in error, Thornton A. Rodefer, and his brother, Albert, composed the firm of Rodefer Brothers and owned and operated a glass factory on a tract of land owned by them abutting on the east the right of way of the Bellaire, Zanesville & Cincinnati Railway Company, a narrow gauge railway, and on the south, Twenty-first street in the city of Bellaire. At the time of the commencement of this action Thornton A. Rodefer had succeeded to the rights of said partners and was the sole owner of the factory and real estate and the defendant in error was the successor of the Ohio Yalley Railway Company and had succeeded to all of its rights and had assumed all of its obligations under said contract. In addition to the foregoing the circuit court found the following facts:
    “8. That in constructing the siding mentioned in said contract in front of the glass house property belonging to Rodefer Brothers, as provided in the agreement aforesaid, said siding left the main line of said Ohio Yalley Railway at a point south of the lands of said Rodefer Brothers and of said Twenty-first street, and crossed the tracks of said Bellaire, Zanesville & Cincinnati Railway and thence in a northerly direction by an overhead structure across said Twenty-first street onto the lands of said Rodefer Brothers and thence along and over the lands of said Rodefer Brothers, in front of their glass factory as the same was then located, and said track and siding were located and constructed by the mutual consent and assent of said railway company and said Rodefer Brothers.
    “9. That afterwards, about the year 1892, said glass factory was entirely consumed by fire, and about the year 1893, it was rebuilt by said Rodefer Brothers,' thfe new building being about twice as large as the old, the size of the same being increased by extending the same south of where the old building stood, and the east side of said building was about twenty-one feet west of the east side of the old building.
    
      1 ‘ 10. That after the new building was constructed said railway company moved its siding by the consent of said Rodefer Brothers, about twenty-one feet west of its original location so as to accommodate itself to the business of said Rodefer Brothers in receiving and discharging freight to the said new glass factory.
    . “11. That after the construction of said railway and the siding aforesaid, the Baltimore & Ohio Railroad Company, which is a common carrier, owning and operating a road for the carrying of freight and passengers, by agreement with the Bellaire, Zanesville & Cincinnati Railway Company, laid a third rail west of the west rail of said Bellaire, Zanesville & Cincinnati Railway Company’s máin line, to enable it by using the east rail of said Bellaire, Zanesville & Cincinnati Eailway Company, and the said third rail, to rnn standard gauge cars over the same; that said third' rail and the east rail of said Bellaire, Zanesville & Cincinnati Eailway was and is used by said Baltimore & Ohio Eailroad for switching cars to various manufacturing plants located in southern Bellaire.
    “12. That said defendant, Thornton A. Eodefer, was about and before the time the rails and tracks mentioned in the petition were torn up and removed, contemplating the erection of an extension to his glass factory, by which it was proposed to extend the same in a southerly direction in a line with the factory building theretofore constructed, about ninety feet. The southeast corner of said property extension was to extend to a point forty-one feet from the north side of said Twenty-first street; that the said defendant, Eodefer, had adopted plans and specifications and had called on contractors and had made contracts for work and material for the erection of said extension. This addition or extension, if placed upon the premises where said Eodefer contemplated putting it, and if placed in line with the east front of the old building, would require the removal of.a part of the siding aforesaid, of said Ohio Valley Eailway Company, at the southeast corner of said contemplated extension or addition, and if completed as contemplated as aforesaid, would occupy about four feet of the ground, at the southeast corner of said contemplated building, which was then occupied by said siding, and would he placed directly on the track of said siding as then located.
    “13. That some considerable time after defendant, Eodefer, had contracted for the erection of said extension or addition to his said glass factory, he gave notice to the said plaintiff to remove the part of its track that would interfere with the erection of said building as contemplated and contracted for, so as not to interfere with the construction of said addition. . And said plaintiff failing to remove its track eastwardly as requested, said defendant, Rodefer, tore up that part of said siding which extended from the north side of said Twenty-first street to a point ninety-seven feet north of the same; and procured the Baltimore & Ohio Railroad Company to build a switch over the same ground a little east of plaintiff’s said switch; that at the time the temporary injunction herein was granted said Rodefer, by his contractor, had completed about four-fifths of the stone foundation for said addition and extension.
    ‘ ‘ 14. That some years prior to the commencement of this suit said Ohio Valley Railway Company had constructed a spur track commencing on said siding where the same crosses the south side of said Twenty-first street, and extending in a southerly direction west of the Bellaire, Zanesville & Cincinnati Railway Company’s main line track and said third rail of said Baltimore & Ohio Railroad in front of the Bellaire Stove Company’s factory; that said spur was constructed for the purpose of enabling said Ohio Valley Railway Company and its successors to receive and discharge freight from the factory of said Bellaire Stove Company, and.in so receiving and discharging the same, it was necessary to run cars onto the siding heretofore mentioned, and then back said cars out onto said spur.
    “15. That the southeast corner of the foundation of the proposed extension or addition is twelve feet and nine inches from the third rail of the Bellaire, Zanesville & Cincinnati Eailway, and if the siding of plaintiff company was bnilt in this space of twelve feet and nine inches, there wonld not be clearance room if standard gauge cars were moving on the Bellaire, Zanesville & Cincinnati third rail and plaintiff’s said switch, i. e., they could not pass each other at the same time; that this want of clearance would extend for about twenty-four feet north of the southeast corner of said extension; that at the point named, both south and north of the same, there is a clear view for several hundred yards, so that switching trains, if using the'siding, and trains of cars using the Bellaire, Zanesville & Cincinnati Eailway for switching purposes, would have full view of any approaching trains or locomotives.
    “16. That Eodefer Brothers or defendant, Thornton A. Eodefer, never conveyed to said Ohio Valley Eailway Company, nor to the plaintiff, by deed, contract or any paper writing, any right of way for a siding over their or his premises except as hereinbefore stated and found.”
    The action was commenced in the court of common pleas of Belmont county in November, 1900, by the railroad company against the plaintiff in error to prevent them from further removing the siding and to require them to restore so much as had been already removed. The facts connecting the defendant, McClain, with the subject of the litigation do not appear, but presumably he was the contractor for Eodefer. The court of common pleas found for the defendants and dismissed the petition. The railway company appealed. The circuit court found the facts as above and granted the relief prayed for. The defendants prosecute error in this court, their contention being that upon the facts found the judgment should have been in their favor.
    
      Messrs. Driggs & Heinlein and Mr. James G. Tollman, attorneys for plaintiffs in error,
    cited and commented upon the following authorities:
    
      Hornback v. Railroad Co., 20 Ohio St., 81; Washburn on Easements (4 ed.), 6; 4 Lead. Cas. Am. Law of Real Prop., 128; Nellis v. Munson, 108 N. Y., 453; Wiseman et al. v. Luckinger, 84 N. Y., 31; Cronhite v. Cronkhite, 94 N. Y., 323; 19 Am. & Eng. Ency. Law, 840; White v. Railroad Co., 139 N. Y., 19.
    
      Messrs. Carey & Mullins and Mr. C. L. Weems, attorneys for defendant in error,
    cited and commented upon the following authorities:
    
      Hornback v. Railroad Co., 20 Ohio St., 81; Jamieson v. Millemann, 3 Duer, 255; Merrill v. Calkins, 73 N. Y., 584; LeFevre v. LeFevre, 4 Serg. & R., 241; Rerick v. Kern, 14 Serg. & R., 267; Lane v. Miller, 27 Ind., 534; Hodgson v. Jeffries, 52 Ind., 334; Wickersham v. Orr, 9 Ia., 260; Upton v. Brazier, 17 Ia., 157; Russell v. Hubbard, 59 Ill., 335; Cook v. Pridgen, 45 Ga., 331; Lee v. McLeod, 12 Nev., 280; Wilson v. Chalfant, 15 Ohio, 248; Meek v. Breckenridge, 29 Ohio St., 642; Paper Co. v. Hydraulic Co., 8 Circ. Dec., 248; 15 C. C. R., 118; Maxwell v. Bay City Bridge Co., 41 Mich., 467; 13 Am. & Eng. Ency. Law, 539.
   Summers, J.

Plaintiff in error contends that the right given by the contract to thé railway company to construct a siding on his land was merely a license revocable at any time or when it ceased to be useful to tbe owner of tbe land.

Tbe railway company contends that the intention of the parties to the contract was, of Rodefer’s predecessor in title, to secure facilities for sending and receiving freight at its factory, and of the railway company to carry the freight; that the siding still may be used to effect that intention and that so long as it may be so used the right to maintain it subsists; that such a right may be created by contract and that if the right is merely a license then it has been executed and is irrevocable.

In Wolfe v. Frost, 4 Sanford’s Chancery, 72, the assistant vice chancellor defines an easement and a license as follows: “An easement is a privilege, without profit, which the owner of one neighboring tenement has of another, in respect of their several tenements, by prescription or by grant; by which the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the. dominant owner. A license is an authority to do a particular act or series of acts upon another’s land, without possessing any estate therein. A license, when executed, will prevent the owner of the land from maintaining case or trespass for the acts done under it; but it is revocable at pleasure, and will not be a defense to any act done after it is revoked.” In The Greemvood Lake & P. J. Railroad Co. v. The N. Y. & G. L. Railroad Co., 134 N. Y., 435, 439, Vann, J., defines them as follows: “An easement is a right without profit, created by grant or prescription, which the owner of one estate may exercise in or over the estate of another for the benefit of the former. A license is a personal, revocable and non-assignable- privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein.” Similar definitions may be found in the text-books.

That a right such as is claimed by the railway company to maintain and use in perpetuity a siding for its benefit on the land of the defendant is an easement and not a license is, we think, apparent from a study of the cases, and that a failure to discriminate between them has occasioned much of the confusion that exists upon the question of the revocability of a license. The right indefinitely to maintain and use its track upon the land of the defendant would be in effect an appropriation of it to plaintiff’s use. It would be permanent in its nature and an interest in the land. The Junction Railroad Co. v. Ruggles, 7 Ohio St., 1.

In Cook v. Stearns, 11 Mass., 533, 538, a right to enter on the land of another to’ repair a dam was claimed under a license given by a former owner to build the dam. Chief Justice Parker, speaking of what is technically a license, and of licenses which in their nature amount to the creating of an easement, says: “The distinction is obvious. Licenses to do a particular act do not in any degree trench upon the policy of the law, which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanent right to hold another’s land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by our statute. If tbe defendant had a license from tbe former owners of tbe plaintiff’s close, to make tbe bank, dam and canal in tbeir land, tbis extended only to tbe act done, so as to save him from tbeir action of trespass for that particular act; but it did not carry with it an authority, at any future time, to enter upon tbe land. As to so much of tbe license as was not executed, it was countermandable; and transferring tbe land to another, or even leasing it, without any reservation, would of itself, be a countermand of tbe license. For although, when one is permitted to do certain things upon tbe. land of another, an implied authority is given to enter upon tbe land to do the thing, and to repair it, if it is of a permanent nature; yet tbe first permission or license must be by grant, in order to draw after it tbis consequence.”

Permission to cross another’s land or to enter upon it, and to cut a tree, or to do some other act, is very different in its consequences from those arising from tbe execution of a permission to appropriate part of the land, or to erect upon it a permanent fixture. And to call permission to do tbe latter a license, and then to say that when executed it is irrevocable because a license executed is irrevocable, is not only to overlook tbe distinction between an easement and a license but also in a measure to defeat tbe object of tbe statute of frauds and of our laws respecting tbe conveyance of land.

A license may be revoked at any time. What is meant by the statement that a license executed is irrevocable is not that tbe license may not be revoked as to future acts, but that tbe licensor may not recover against tbe licensee for tbe acts already done. It is contended that the rule is otherwise in this state, and Wilson v. Chalfant, 15 Ohio, 248; Hornback v. Cincinnati & Zanesville Railroad Co., 20 Ohio St., 81; and Meek v. Breckenridge, 29 Ohio St., 642, are cited.

The earlier cases were decided when land was cheap, water power a necessity, and the policy of the state to encourage manufacturing. The rule contended for does not seem to have been applied in the later case of Wilkins v. Irvine, 33 Ohio St., 138.

In Jones on Easements, sec. 69, the author says: “Although there are numerous decisions which hold that in equity a permanent license becomes irrevocable after the licensee has expended money on the faith of it, these decisions seem opposed to sound law and to the weight of authority, both in America and in England.” In Crosdale v. Lanigan, 129 N. Y., 604, 610, Andrews, J., says: “There has been much contrarity of decision in the courts of different states and jurisdictions. But the courts of this state have upheld with great steadiness the general rule that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is, nevertheless, revocable at the option of the licensor, and this, although the intention was to confer a continuing right and money had been expended by the licensee upon the faith of the license. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements, easily misunderstood. It gives security and certainty to titles, which are most important to be observed against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land, is clearly defined and well understood, and is indisputable; but to change what commenced in a license into an irrevocable right, on the ground of equitable estoppel, is another and quite different matter. It is far better, we think, that the law requiring interests in land to be evidenced by deed, should be observed, than to leave it to the chancellor to construe an executed license as a grant, depending upon what, in his view, may be equity in the special case.” In White v. Manhattan Railroad Co., 139 N. Y., 19, the court of appeals ruled that: “It seems that an easement to do some act of a permanent nature upon the lands of another cannot be created by a license, even when in writing and executed upon a good consideration; it can only be created by deed, or conveyance operating as a grant,” In Jackson & Sharp Co. v. The Phila., W. & B. Railroad Co., 4 Del. Ch., 180, it is held that: * ‘ It is settled that at law a license can not create or transfer any interest in land. Hence, a mere license affecting land is, at law, always revocable though granted for a valuable consideration, and though the licensee may have expended money on the faith of it. This rule is modified in equity by the principle of equitable estoppel, but equitable estoppel proceeds always on the basis of preventing fraud. Its effect is to restrain the exercise of a legal right, and this even a court of equity can not do unless there has •been such conduct as would render the assertion of the legal right a fraud. The erection of a side track connecting with a railroad, at the expense of plaintiff, and the subsequent expenditure of large sums of money by it in the erection of car works, from which cars were delivered by means of tbe side track, beld not to estop tbe railroad company from revoking tbeir license to connect the side track with tbe company’s track.” However, tbe matter need not be further pursued since tbe case at bar is disposed of on other grounds presently to be stated, and what has been here said is not to be considered as in any Way modifying tbe rule laid down in previous decisions of this court, but is intended merely as a caution against a blind application of a rule.

That tbe railway company has no right to maintain and use tbe siding without permission of tbe owner of tbe land must be concluded from tbe considerations following. Tbe agreement does not purport to grant any interest in tbe land. An interest in tbe land was not necessary to tbe accomplishment of tbe object of tbe agreement, and there is nothing in tbe agreement or in tbe circumstances surrounding tbe parties at tbe time they entered into it from which may be inferred an intention to grant such an interest. Tbe railway company did not pay for the privilege of putting in a siding for its benefit. It received pay for constructing tbe siding on tbe owner’s land and for tbe owner’s sole benefit. No right to use it otherwise is provided for in tbe agreement, nor is it provided that tbe owner shall ship on plaintiff’s road. The contract is with Rodefer Brothers, tbe defendant is not privy to it and not bound by it, and if be does not choose to use tbe siding for shipping or receiving freight what possible benefit could tbe plaintiff derive from maintaining it ? Tbe sole obj ect of tbe agreement, so far as relates to tbe siding, was to secure an accommodation from tbe railway company for tbe owner of tbe land, not to grant to the railway company a privilege in the owner’s land. The siding being on the land of the defendant and solely for his benefit, he may termi-' nate the right to maintain it and may require its removal. The following observations of defendant’s counsel seem pertinent. “This is an important question. Hundreds of manufacturing plants have paid railroad'Companies for building switches on their premises, leading to their factories, which were designed and intended for their accommodation only, and if it is the law that when the railroad company builds the switch its interest in the ground on which the switch is built is superior to that of the owners to extend or remodel their factories; that the railroad company, by so doing, acquires a. permanent easement in or interest in the grounds on which the switch is located that is superior to all rights of the owners, then it is high time that the manufacturing plants were finding it out. ’ ’

The judgment of the circuit court is reversed and upon the facts found judgment is rendered for the plaintiff in error and the petition is dismissed.

Reversed and judgment for plaintiff in error.

Davis, C. J., Price and Spear, JJ., concur.  