
    Ada N. Davenport and Others, Appellants, v. The New Jersey and New York Railroad Company, Respondent.
    
      Oontmct to convey land to a railroad which agrees to fence it — delay in fencing it, acquiesced in, does not forfeit the right of the railroad.
    
    Where a landowner and a railroad company entered into an agreement in 1871, by which the former agreed to give to the latter a deed of property on.which its road was to he constructed, and the railroad company agreed to erect and forever maintain fences, along the line of its road, the fact that the railroad company did not fulfill its agreement until 1884, when it erected fences upon the land, which it thereafter maintained, did not operate to terminate its interest in the contract, where it appears that, during the period of the default, the landowner and his successors in interest did not seek to assert the forfeiture, hut on the contrary acquiesced in the possession of the railroad company.
    
      Appeal .by the .plaintiffs, Ada N. Davenport and others, from a-judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 24th day of September, 1898, upon the' decision of the court rendered after a. trial at the Rockland Trial Term before the court without a jury. ■
    
      George R. Bristor, for the appellants.
    
      Henry Bacon, for the respondent.
   Per Curiam :

This action is an ejectment to recover a tract of land on which the defendant’s railroad is built. In 1871 the Hackensack, -etc., Railroad Company, the defendant’s predecessor in title, entered into, possession of the tract and constructed its road under -an agreement made between it and Thomas Gotty, the plaintiffs’ predecessor in title and the then owner of the property, by which, in substance, the landowner agreed to convey and give a deed of the property and the railroad company agreed to erect and forever maintain fences along the line of the road. The exact form of this agreement may be found in Helmke v. New jersey & H. Y. R. R. Co. (21 N. Y. Supp. 345) and Moxley v. New Jersey & N. Y. R. R. Co. (Id, 347). Neither the Hackensack Company nor this defendant fulfilled'its agreement until 1884, at which time it erected proper fences and has ever since maintained them. In 1875 Gotty conveyed his whole farm, including tlie tract in controversy, to one Adelaide Winant, who, in 1884, conveyed the same premises to Robert Hamilton. Hamilton, in 1884, conveyed the farm, excepting and reserving therefrom the land occupied by the defendant. Hamilton died intestate, in 1894, leaving the plaintiffs his heirs at law.

The contention for the plaintiffs is that ■ the instrument under which the Hackensack, etc., Railroad Company entered is not a present deed, but only an executory agreement for a subsequent, conveyance; that by the default of that company in erecting the fences it forfeited its interest under the agreement; that from the time of such defaultthe vendor might treat it simply as a tenant at willthat by the conveyance from Gotty to Winant, in 1875, of the whole farm, including the part on which the defendant’s tracks were laid, Gotty did, as a matter of law, terminate the railroad company’s tenancy, and from that time the latter lost all interest in the land, •either legal or equitable. We will • assume the agreement to have the legal character contended for; we may also concede that on the railroad company’s default the vendor might have forfeited the contract and ejected the company, though it is equally clear that equity anight, in a proper case, have relieved it from that forfeiture. (Pom. Eq. Juris. § 450 et seq.) But the landowner might not wish to abrogate the contract. The contract, in some respects, was advantageous to him; it required the company always to maintain fences along the railroad. The late General Term of this department, in the two cases already cited, held that the covenant to maintain the fences ran with the land and was enforcible against subsequent owners. At no time before the commencement of this action did the owners of the farm seek to oust the defendant or its predecessors, or to terminate the agreement. On the contrary, they seem to Irave acquiesced in the defendant’s possession. The acts of the parties continued the agreement in force, and in 1884 the defendant completely performed the agreement on its part. This is not the case of an entry under a parol license which may be revoked even when expenditures have been made on the faith of it, but that of an extension of the time of performance of a valid written agreement. The case of Eggleston v. New York, & Harlem R. R. Co. (35 Barb. 162) is distinguishable from this in that in that case the defense was based solely on the license and the expenditure made under it. Judge Emott points out that the question whether the instrument was a sufficient agreement to sell, or whether it could be enforced as such in equity, was not raised by the pleadings, and that, therefore, it was unnecessary to pass upon it. In that case, too, the plaintiff was to be paid a certain price per acre in the mortgage bonds of the company, which was never paid. Here the defendant has fully performed its agreement yeai'S before any attempt was made to abrogate it. We do not think it necessary to pursue' this discussion at length, for we regard the matter in controversy here as settled by the opinions of Barnard, P. J., at General Term, in the cases cited, which were affirmed in the Court of Appeals on those opinions. (143 N. Y. 648, 649.) Those actions were in ejectment, but the defendant was- allowed a specific performance of the contracts of the landowners to sell, on forthwith erecting the fences and paying the damages occasioned by its default in previously erecting them. - The plaintiffs acquiesced in the judgment and the defendant alone appealed, complaining of the conditions imposed for a conveyance as excessive. But in the Moxley Case (supra) the plaintiff bought the land after default in the agreement, and it was' there said by Judge Barnard : The plaintiff bought the land in question with full knowledge that the defendant was in possession. The covenant runs with the'land. It is not only to build, but to maintain4he fence on each side of the track that is secured by the contract. The land under the road of the defendant- was sold to plaintiff, of course, subject to the performance pf the original agreement to sell. The covenant to maintain a fence, even if it needs a new one, is an obligation -which the defendant owes, to Moxley.” We are of opinion, therefore, that when the defendant fulfilled its agreement in 1.884, it became entitled to a conveyance of the land, and that the judgment of the Special Term directing such conveyance was correct.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs. 
      
       This opinion was written by Mr.. Justice Cullen before his designation as an associate judge of the Court of Appeals, and is adopted by this court. The decision of the court wrs rendered after such designation was made.
     