
    Isaac C. Hornback v. The Cincinnati and Zanesville Railroad Company.
    Where the owner of land, by his written contract, agreed to give to a. railroad company the perpetual right of way through the same, at a stipulated price which was paid to him, with a provision in the contract that when the road should be completed the company should fence the same — held: That after the road is completed, the owner of the land cannot, upon failure to put up tbe fence, eject the company from the land.
    Error to the district court of Pickaway comity.
    The original action was brought by the plaintiff in error, to recover possession of a strip of land occupied and used by the defendant as part of its roadway.
    The answer sets up, that in December, 1851, the plaintiff, by his written contract of that date, in consideration of fifty dollars paid to him, did “ grant and release ” to the company the right to “ enter upon ” the land in controversy, and to
    hold and use ” the same “ for the purposes of its railroad, so long as might be necessary.” Which contract, however, contained a provision that the company should, when the road should be completed, “ fence the road,” and let the plaintiff “ join fences with them.” The answer further alleges that the company, soon after the date of the contract, with the knowledge and consent of the plaintiff, constructed its road upon and over the land in question, and has ever since continued to use and occupy the same; but the answer does not allege that the company has ever fenced its road agreeably to the requirement of said contract.
    To this answer the plaintiff demurred.
    The common pleas overruled the demurrer, and gave judgment for the defendant.
    Upon petition in error in the district court this judgment was affirmed; and the question here is whether the judgment of affirmance is erroneous.
    
      Henry F. Page for plaintiff in error:
    Prior to the code, there is no doubt that the vendor might maintain ejectment against vendee.
    When the vendee was sued in ejectment his remedy was to file a bill in chancery setting up one of two things : Fvrst, That he had done all he was bound to do, and was not in default; or, Second, Offering to perform his part of the contract, and praying specific performance of the agreement.
    The code has not changed this law in any respect. It has not created any new defences. Rights remain as they did before the code. The only change has been in the remedy; in the mode of enforcing these rights.
    Before the code, the vendor had a right to dispossess the vendee in default, and before the code the vendee had a right to restrain the vendor by showing that he was not in default, or offering performance.
    This right of the vendee can be assei’ted by him under the same circumstances as before the code, except that he may now make his defence by answer to the petition instead of commencing a separate action. The elements of his defence are the same.
    “A vendor who claims merely by contract may, by the terms of it, have the right of possession secured to him, and in such case, as long as he complies with that contract, he may defend at law.” Baker v. Gittings et al., 16 Ohio, 488. That it must be performed, see 14 Wendell, 227; 7 J. J. Marshall, 318; Wright, 18; 15 Ohio, 408.
    In ejectment it is proper to allow the plaintiff to show that the defendant entered under a contract of purchase which he has refused to perform. Tilghman v. West, 13 Ill. 344. It is not by legal right, but by equitable defence, that one holding under a title bond can resist.ejectment, and he must do that by showing performance or readiness to perform or waiver by plaintiff. Hill v. Steel, 19 Texas, 76.
    The party who goes into possession under a contract to purchase is at law a tenant at will to the owner of the legal title. On refusing to comply with the agreement, he becomes at once a trespasser, and is not entitled to notice to quit, and is liable to be turned out by an ejectment. Smith v. Stewart, 6 J. C. R. 46, 49.
    Read the form of an answer in the case before the court in Wilcox’s Forms, under the code, 273 and 280. See, also, 44 Barbour, 138.
    The principles just stated were rights, not remedies, and consequently they are not changed by the code. What right has a vendee in default to keep possession since the code, any more than he had before the code 2 None whatever.
    
      But the defendant says, let the vendee file his petition for specific performance.
    To this proposition there are two answers: First. The vendor has the choice of two remedies. Either an action for the possession of the premises, or an action for Specific performance, and the vendee in default cannot dictate the choice. Second. It may be that the vendee is not entitled to specific performance, and it has not appeared in this case that he is so entitled. Consequently he cannot compel us, by the choice of remedies, to give him what he has no right to ask. If the vendor has no remedy but a bill for specific performance, then he can never oust or eject a vendee, though the vendee may absolutely refuse to perform the contract.
    If the vendee is entitled to specific performance, he has a simple remedy. He may set up the facts which entitle him to it and pray for a deed of conveyance. •
    If the vendee should renounce the contract and absolutely refuse to perform, yet remain in possession, will it be maintained that the vendor has no remedy but a bill for specific performance ? Hardly, I think.
    If the vendor may bring ejectment in the one case, why not in every case in which he was allowed to do so before the code. It is evident the code has not placed any restrictions-upon the rights of the parties, and if any such restrictions upon the rights of the parties is sought, it must be in judicial legislation.
    The law avoids circuity of action. If the vendee, when sued for the possession of land, is required of himself to aver or tender performance, then the whole controversy may be settled in one action. But if the vendor has no remedy but a bill for specific performance, then this anomalous and unjust consequence follows: He must offer specific performance to a vendee who has forfeited all claim to it.
    
    See 40 Barbour, 537; Dewey v. Hoag, 15 Barbour, 365; 33 Vermont—; 39 Vermont—; Wing v. Tottenham and Hampstead Junction Railway Co., Law Rep. 3 Ch. 740; Goodwin v. Cincinnati and White Water Canal Co. et al., 18 Ohio St, 169.
    
      If the consideration of the contract was only $50, and that sum was paid, then the stipulation in regard to the fence is entirely void of consideration. It is either without consideration, or the agreement to fence is part of the whole consideration.
    The.sale of the right of way is the consideration on the part of Ilornback; the payment of $50, and the erection of the fence, is the consideration on the part of the defendant.
    The fact that the fence was to be built subsequently does not prevent its constituting a part of the consideration, or render it a mere nudumpactum.
    
    The agreement was not executed on the part of the defendant. It is not pretended that the company has fulfilled the stipulations in regard to the fence. They never will be performed by the defendant unless this action lies. And the plaintiff cannot sue this defendant at law upon the contract, because a covenant to build a fence does not, at common law, run with the land.
    It is claimed that by this written instrument the defendant is invested with a legal estate, or at least that no other written conveyance of title is requisite in order to enable him tG defend at law. But see Thompson v. Gregory, 4 Johns. 83; 4 Kent, 490.
    In the statutes of Ohió, vol. 62, page 82, sec. 2, it is provided that where the railroad neglects to pay for the right of way, in some cases, “ the court may, by injunction, restrai/n such company from using or occupying the lands of such men, until the said judgment and costs shall be paid.”
    But the act was unnecessary. A court of chancery could have done the same thing, before the passage of this act, by an indirect proceeding. Hilliard on Injunctions, p. 426, sec. 23; Powell v. Thomas, 31 Eng. Ch. Rep. 300; 16 Hare.
    This is precisely the remedy which Hornback was seeking. He brought ejectment, and he expected the defendants to file a bill for specific performance and an injunction, and that the court would order the defendants to construct the fence in six months or more — in the meantime all proceedings to oe stayed. Stewart v. Raymond 7 S. & M. 568; Webster v. 
      Southeastern R. R. Co., 1 Eng. Law and Eq. 204; Walker v. W. H. and B. R. Co., 12 Jur. N. S. 19; 2 Story’s Eq., sec. 1231, b.
    It is also argued that the transaction amounts to a dedication.
    
    If this agreement amounted to a dedication in law, yet it is a dedication with special stipulations and conditions, which have not been performed; and consequently, the act of dedication is yet imperfect, and the “ donor,” as they must term him, holds the legal title, and cannot be prevented from asserting his legal rights, except by injunction. When an injunction shall be asked, it will be granted on terms.
    
    But it is extraordinary that a contract of sale should be termed a dedication. Every line of that instrument shows that it is a case of vendor and vendee. Homback never dreamed he was giving his land away when he made that agreement to sell it.
    
      Hunter & Daugherty for defendant in error:
    On what principle does the argument for the plaintiff rest, in support of the proposition that the plaintiff is entitled to-recover notwithstanding the matters alleged in defence? Upon this, and this only, that the plaintiff is admitted to be vested with the legal title. But how vested with it ? Subject to the servitude of the alleged easement. The two things may well co-exist, and each be a legal title. The easement granted by the owner of the fee, under such circumstances, is, in law, as valid a legal right, as contradistinguished from-a mere equity, as is the estate in fee. At least it is such a right as courts of law take cognizance of, and protect and enforce. Nor is it necessary for this purpose that the grant be evidenced by writing. It is equally effective by parol, if accompanied by possession and improvements made in faith of it. The case of Wilson v. Chalfant, 15 Ohio, 248, is full to this point.
    Such is the settled law of Ohio. But if the remedy, anterior to the code, were, exclusively, in equity, it is available, under the code, as a defence. Surely, if an easement like this be granted, and possession be taken under it, and improvements made with the knowledge and approbation of the grantor, though it be verbal, and especially for a consideration, no court of justice, whether of law or equity, will lend its aid to dispossess the grantee thus in possession.
    See also the “ Act to regulate railroad companies,” passed Feb. 11, 1848. 2 Curwen, 1396.
    We deny that the plaintiff is entitled to the remedy he seeks; or that he may assert his legal title for any such purpose as he proposes. On the contrary, we claim the legal effect of the contract, and the action of the parties under it, to be, to render the legal title of the plaintiff to the lands subservient to the easement to maintain, operate, and carry on the railroad so long as it continues to be a public use, perpetually; and that the proper and only remedy of the plaintiff is for a breach of the contract sounding in damages.
    It is, in no legal sense, a case differing in principle from that of a lease in consideration of a stipulated rent to be paid by the lessee, without a right of entry for non-payment. If the covenant of the lessee to pay i’ent be broken, the remedy is, by action for a breach of the contract; and not ejectment to recover the possession — and this would be so if the lease were for a thousand years, renewable forever.
    The argument advanced by the learned counsel for the plaintiff, that the transaction vested the railroad company with a mere equitable right to call for a conveyance of the legal title on fulfilment of its contract to build the fences subject to a liability to be ejected on a breach of the contract, is, we think, very wide of the mark. On the contrary, we think that the license to enter and construct, operate, and carry on the railroad, even if it were not a public use, vested in the company an indefeasible legal right to the easement, the road being constructed in faith of the grant and still existing, and in use.
    The stipulation to erect fences is not in any sense a condition whereby, if not performed, the easement granted was not either to take effect or to operate as a forfeiture. Nor yet is the case, upon the facts admitted by the demurrer, one for equitable relief by a decree for a specific performance, even if the object of the suit were to obtain such relief. It is clearly a case remediable in damages.
    But if a bill or petition for a specific performance would lie in the case, the decree would have to be that the fences be built. All else has been done, and on no possible ground could there be a decree against the defendant for a surrender of the possession if the decree were not performed.
    In this connection we refer the court to the case of McAuley v. The W. R. R. Co. (33 Vermont R. 311), the points ruled in which case are:
    1. Payment of land damages is a condition precedent to the acquiring of title by a railroad company to lands tahen for their road; but the condition is for the benefit of the land owner, and may be waived by him even by parol.
    “ 2. Where such owner acquiesces in the occupancy of his lands for the construction of a railroad, without payment of the land damages, upon an understanding or contract for future payment by the company, and the road is constructed-and put in operation, he cannot afterward, on failure to obtain payment, maintain ejectment or trespass for the land.”
   Welch, J.

We think the plaintiff has clearly mistaken his remedy. He cannot recover back the land for violation of the stipulation in regard to fences. That stipulation cannot be regarded as a condition, precedent or subsequent, upon which the right to possess or enjoy the easement was to depend. It was a mere inter-proprietary regulation, to take effect when the right and ownership of both parties should become vested and complete. It was a continuing contract between adjoining proprietors. It bound the company, not only to put up the fence, and permit the connection, but also to keep the fence up, and to continue the permission. It would be doing great violence to the language of the parties to this contract, to hold that they intended that the land might be reclaimed after the completion of the road, apon every failure to keep up the fence or the connection.

The question raised by counsel, whether under our laws regulating conveyances the legal title to the easement passed by the contract in question, being without acknowledgment or witnesses, it is unnecessary to decide. It is enough foi the present case to say'that the contract by which the company entered makes its possession rightful, and that the plaintiff cannot recover without showing that he is wrongfully kept out of possession. The contract is at least a parol license, and that license has been fully executed, with the knowledge and consent of the plaintiff, who has received the full price stipulated therefor.

The judgment is affirmed.

Brinkerhoef, C. J., and Scott, White, and Day, JJ., concurred.  