
    John Stewart vs. Raymond Railroad Company.
    If the owner of land through which a company wishes to run a railroad, agree to refer to arbitrators the question of .damages to be paid by the company for the right of way, and there be no express agreement that time shall be given for the payment of the damages awarded ; the damages must be paid, before the right of way can vest in the company.
    He who seeks to compel a specific performance of a contract, must do all that is incumbent upon him, or he cannot succeed. Where, therefore, a railroad company, agreed with the owner of land to refer to arbitrators, the question of how much the company shall pay him for the right of way over his land; they cannot prevent him from the exercise of full ownership over the land until they have paid, or tendered to him the damages awarded.
    A purchaser of land who, at the time of purchase, executed a deed of trust to secure the purchase-money, cannot convey to a company, even an easement over the land, except subject to the payment of the purchase-money ; when therefore such a purchaser did convey to a company an easement over the land, and the land was subsequently sold under the deed of trust, and the purchaser at the trust sale, agreed with the company to refer to arbitrators the question of damages they should pay him for the enjoyment of the easement; it was held, that the company were not entitled to an indefinite credit for the payment of the damages awarded, and to the enjoyment of the easement, until the payment of the money; but that ,they were bound to pay, or tender the amount of damages before they could have any right to the enjoyment of the easement.
    The doctrine in regard to the dedication of land to public uses, has no sort of application to that class of cases arising out of the right of a railroad company to run their road through land, without first paying the owner thereof the damages awarded to him for their so doing.
    Whether the road of a railroad company is subject to sale under an execution at law, quiere?
    
    Where a railroad company neglect to pay the owner of the soil the damages awarded him for their right of way through his land, and he is exposed to. the transit of the cars of the company over his land for an indefinite period, with but little prospect of compensation, a court of equity can grant him an injunction, restraining them from the use of his land.
    
      Appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    On the 27th day of February, 1841, the Raymond Railroad Company filed their bill in the superior court of chancery, alleging that when their road was commenced the farm of John Stewart was held afid owned by John W. ’Covington, to whom Stewart had previously sold it, and upon which Coving-ton had executed a deed of trust to secure the payment of the purchase-money; that on the 24th day of September, 1838, while Covington was in possession, he regularly deeded and gave them full right of way through the land, and they, apprehending no difficulty proceeded to make and lay their railroad ; that during the month of-, 183 , Stewart by virtue of the deed of trust, had the land sold, became the purchaser himself, resumed possession, and insisted that they should render him compensation for the injury done his farm, by the road; that not being able to agree on the amount of damages, they should allow him, it was agreed to refer the question to the arbitrament of their mutual friends; that the arbitrators awarded nine hundred dollars damages to Stewart, which sum they obligated themselves to pay, and proceeded to the completion of the road; that they regretted extremely that they were then wholly unable to pay him the sum they acknowledged to be due him, but they had no means of paying him, except from the receipts of the road, and they had tendered to him the whole receipts to commence in a short time, after paying some debts due to mechanics who had built the road, and which were privileged debts, but he refused to accept them; and that he appeared to be resolved, and had publicly threatened unless they paid him the amount due, he would run his fences across the road and prevent their use and enjoyment of it; that they were advised and believed he had no legal right to do so, and that although he might originally have prevented their running the road through his farm without first resorting to a writ of ad quod damnum, to assess his damages, yet as he had voluntarily waived that right, and consented to a friendly arbitrament of that question, he had no more right to obstruct the operations of the road than any other general creditor of the company. They made John Stewart a defendant, and prayed that he should be enjoined and restrained from throwing any difficulties in their way in the use and enjoyment of their road, either by running fences across it; or otherwise. Upon this bill, the Hon.rJ. R. Nicholson granted an injunction, as prayed for by complainants. The defendant answered the bill, admitting that before the commencement of the railroad, he had sold his farm to John W. Covington, and took from him a deed of trust to secure the purchase-money; that on the. 24th day of September, 1338, while Covington was in possession of the land, he conveyed the right of way; but he stated that the conveyance was voluntary, and without any consideration paid by the company, and conveyed only Covington’s right; he also admitted that Covington, having failed to pay the purchase-money, he had the land sold under the deed of trust, and became the purchaser of it, and by such purchase he obtained the land back again clear of any legal incumbrance by any act of Covington; that he found the road running upwards of a mile through his land, and about three quarters of a mile through fields, lying along the rich bottom on the south-west side of Snake Creek, and very materially injuring his farm, and he therefore informed the company that they would not be permitted to have the right of way over the land, without compensation for the damage done his estate. He admitted that not being able to agree with the company on the amount of damages they should pay him, the question was referred to arbitrators, who awarded to him nine hundred dollars, but the arbitrators were required to assess the damages in cash, and there was no agreement, stipulation, or understanding that any credit should be given, or future time of payment fixed; that when the.damages were assessed, he had a right to expect and did expect the company to pay him the money; that after repeatedly calling on them for his money, and offering to execute to them a deed, conveying to them the right of way through his farm if they would pay it, without being able to get anything from them; and not knowing any process by which he could recover the damages, as the company owned nothing, he sent them notice that they might continue to use the road until the first day of March, 1841, on which day he would attend at the office of P. M. Alston, a justice of the peace, in the town of Raymond, to make them a deed, and receive his money, and if the money should not be paid on that day, he would forthwith extend his fences across the road, and prevent them from any further use of his land; that in January, 1841, he had a similar notice published in the “ Raymond Times,” a newspaper published in the town of Raymond; that he accordingly on the first day of March, 1841, caused a deed, duly acknowledged by him, to be deposited in the hands of Esquire Alston, in his office, and authorized him to receive the money, and deliver the deed to the company; that the company failed, and refused to pay the money, and he, in the afternoon of that day, closed the road, and about eleven o’clock that night, when he returned home, be found copies of the subpoena and injunction in this suit, which had been left with his wife during his absence. He finally insisted that his title to his land was exclusive, and none had a right to enter thereon without his consent.
    On the third day of March, 1841, John Stewart, filed in the superior court of chancery, a bill against the Raymond Railroad Company, alleging substantially the same facts stated in the foregoing answer, and in addition setting out his claim of title to the land from the government of the United States, and praying for an injunction against the company, restraining them from entering upon or passing over his land. Upon this bill also the Hon. J. R. Nicholson'granted an injunction. The answer of the company, admitted nearly all of the allegations of the bill filed by Stewart, and repeated the statements made in their bill against him; insisted that Stewart could only be regarded as a creditor at large, and entitled to no greater or higher powers, privileges, or immunities; and denied that he had any power or right to take away from or deprive them of the right of way through his land, after submitting to the arbitrament as above stated. They acknowledged the justice of Stewart’s debt, and urged their poverty as the only reason for its non-payment, and admitted that the company owned no property, except the road, and that they were indebted to various persons, but they believed the receipts of the road, if they were not obstructed in the use of it, would be sufficient to pay all their debts. Both cases were submitted to the chancellor at the same time, on the bills, answers, and exhibits; and he, on the I3th day of May, 1843, rendered a 'final decree, dissolving the injunction of Stewart, and dismissing his bill, and making the injunction granted upon the bill of the company perpetual. From which decree of the chancellor, Stewart appealed to this court
    
      Foot and Hutchinson for the appellant,
    contended that Co-vington had no right to encumber the land to the prejudice of Stewart, and that the company had no legal or equitable right to enter upon, or pass over the farm of Stewart, without his consent. And that the decree of the chancellor, should unquestionably be reversed.
    
      E. W. F. Sloan, for appellees.
    The chancellor held that the grant from Covington at least gave the right of entry to the company, and having entered, they were exempt from the charge of being trespassers.
    And though Stewart might have insisted upon a legal course to divest his title, and for the assessment of damages, and thus make the payment of the money a condition precedent to the right of the company to proceed. Yet that it is competent for Stewart to waive this, and to negotiate privately for the right of way. That as he did so, permitting the company to go on and complete the road, there was such a part performance of the contract as to render it binding upon all parties, and as would enable the company to enforce a specific performance.
    The principle is well established, that a conveyance of the fee-simple is not necessary to pass the right of way. That right is an incorporeal hereditament, an easement, and may pass by parol. If even a private road be laid out pursuant to legislative enactment, with the consent of the owner of the land, the proceeding will be vali.d. Nor need the consent of the owner be in writing, but it may be parol. 6 Hill’s Rep. 47.
    Stewart did everything necessary to constitute a dedication, and the law of dedication applies. A dedication to the public may be made in various ways, and for that purpose, a deed is not necessary.. 2 Strange, 1004; 4 Camp. R. 16, 3 Bingham, 447. See City of Cincinnati v. Lessee of White, 6 Pet. 431, 437, where it was expressly held that no deed.or writing, was necessary to constitute a valid dedication of the easement. Per Thompson, J. There is no particular form or ceremony necessary in the dedication of land to public use.” All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.” And again, “ after being thus set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, .the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication. It is a violation of good faith to the public and to those who have acquired private property with a view to the enjoyment of the use thus publicly granted.” Vick v. The Mayor and Aldermen of Vicksburg, 1 Howard, 380, is to the same effect. . In fact the cases are all to the effect that simple assent, and consequent user, are sufficient to establish a dedication, or grant of an easement.
    A railway for the accommodation of travellers, and the transportation of freight, is a public highway, 2 Barn. & Aid. 646, Rew v. Severn. And per Chancellor Walworth, in Beekman v. Saratoga and Schenectady Railroad Co. “It is objected, however, that a railroad differs from other public improvements, and particularly from turnpikes and canals, because travellers cannot use it with their own carriages, and farmers cannot transport their produce in their own vehicles; that the company in this case are under no obligation to accommodate the public with transportation; and that they are unlimited in the amount of tolls which they are authorized to take. If the making of a railroad will enable the traveller to go from one place to another without the expense of a carriage and horses, he derives a greater benefit from the improvement, than if he was compelled to travel over a turnpike road at the same expense.” “ The privilege of making a road and taking tolls thereon is a franchise, as much as the establishment of a ferry or a public wharf, and taking tolls for the use of the same. The public have an interest in the use of the railroad, and the owners may be prosecuted for the damages sustained, if they should refuse to .transport any individual or his property without any reasonable excuse, upon being paid the usual rate of fare.”
   Mr. Justice Clayton

delivered the opinion of the court.

The appellant Stewart sold to one Covington a tract of land in Hinds county, and took from him a deed of trust upon it to secure the payment of the purchase-money. Covington after-wards granted to the Raymond Railroad Company the right of way over this tract of land, so far as he had title, or power to do so. This seems to have been without consideration, and a mere gratuity. Subsequently the land was sold under the deed of trust, and was again purchased by Stewart. In the meantime the road had been constructed, and put in operation. A controversy then arose between him and the Raymond Railroad Company, as to the payment of damages, for the right of way over the land. By mutual agreement they referred the amount to arbitration, and the sum awarded to Stewart was nine hundred dollars. No part of this sum has been paid; and the company alleges its total inability to pay, as an excuse for its failure to do so. The appellant, on more than one occasion, sought payment, and finally gave a notice that unless the damages were paid by a specified day, he should close his fences and obstruct the passage of the cars. Before the day, the company obtained an injunction to prevent the obstruction of the way by Stewart. He then filed a bill and procured an injunction against the company, to prevent the running of the cars over his premises. The chancellor made the injunction of the company perpetual, and dismissed the bill of Stewart.

It is insisted in argument, that Stewart is a creditor at large of the company for his damages, and has no right to urge their payment as a condition precedent to the enjoyment of the right of way by the company. There was no stipulation in the contract for a credit, the presumption therefore is, that the damages were to be paid before the right became vested. If this were not the case, a man might be forced to part with his property, and never be able to obtain compensation. See Thompson v. Grand Gulf R. R. and Banking Company, 3 How. 240.

If not a condition precedent, the payment ought at least to have been a concurrent act, to perfect the right. He who comes into equity, must do equity. He who seeks to compel a specific performance, must do all that is incumbent upon him, or he cannot succeed. Viewed in this light, we do not perceive how the company can have right to prevent the full exercise of ownership by the complainant, until they pay or tender the amount of damages. Covington was not entitled to convey even an easement to the company, except subject to the payment of the purchase-money. He could place them in no better condition than he occupied himself. The company does not pretend that the purchase-money has been paid; neither does it deny its liability to pay the damages awarded. It only insists, that it is entitled to an indefinite credit, and to the intermediate enjoyment of the easement, until the money to pay can be made. We know of no principle to sustain this assumption; and the decree upon the bill of the company must be reversed, and the bill dismissed.

If the company has no right to the easement, before payment of the damages, the proposition that Stewart has a right to restrain the passage of the cars until such compensation, would seem to follow as an inevitable consequence.

The doctrine in regard to the dedication of land to public uses, has no sort of application to this kind of case.

The only question with us, is as to the power of a court of equity to interpose. An action at law would give no adequate relief, as the company is unable to pay, unless the road could be made subject to the execution — about which we give no opinion.

The jurisdiction of equity to prevent waste, where no compensation can be had at law, seetns to be established; especially “ where the nature of the injury is such that a preventive remedy is indispensable, and where it should be permanent.” 2 Story’s Eq. 200. Unless such jurisdiction in this instance be exercised, Stewart is exposed to the transit of the cars over his land for an indefinite period, with but little prospect of compensation. It is a case, in our view, for equitable relief.

The decree of the court below is reversed, and the bill of the Railroad Company dismissed with costs. The bill of Stewart, together with its injunction, is directed to be retained in the chancery court for farther proceedings. Upon payment of the damages in reasonable time, that court will make a decree for the quiét enjoyment of the easement by the company; upon failure to make such payment, the injunction will be made perpetual.

Decree reversed.  