
    Uncanoonuck Road Co. v. Orr.
    A parol relinquishment of damages for land about to be taken by a road corporation in the exercise of the power of eminent domain cannot be revoked after the road has been built in reliance upon the relinquishment.
    If a land-owner orally agrees with a road corporation, which is about to take his land for a road under the power of eminent domain, that he will claim no land damages, and the corporation, relying upon the agreement, enters upon the land and expends money in the construction of the road, the land-owner is bound by his agreement, and a court of equity will decree a conveyance of the right of way.
    Trespass, gu. el., with a count in case. Facts found by the court. The plaintiffs are a corporation, chartered June 26, 1877 (Laws 1877, e. 133). The charter empowers them to lay out, make, and keep in repair a road loading from the base to the summit of the south Uncanoonuck mountain in Goffstown, by such route and in such direction as are most practicable; also to build and own toll-houses and other buildings necessary for their business, to erect and maintain gates across their road, and to collect rates and tolls from persons passing over it. It provides that the damages for land taken, if the corporation and the land-owner cannot agree upon the amount, shall be determined on the petition of either party to the supreme court.
    In July, 1877, the plaintiffs voted to build the road and an observatory on the summit of the mountain. The defendant owned the summit and adjacent land. Before the plaintiffs began to build, their president, acting pursuant to and under the charter, went to the defendant with reference to taking such of his land as might be necessary, and agreeing with him upon the amount of his damages. The defendant understood that the plaintiffs purposed to take a portion of his land for the road and the observatory by the right of eminent domain, unless they should be able to agree with him on the amount of his damages ; and with this understanding the defendant orally waived his right to compensation for such taking. The plaintiffs thereupon laid out and built the road and the observatory, at an expense of about SI,000, with the full knowledge of the defendant and without his objection ; and the road and observatory have since been kept in repair by the plaintiffs and used by the public, the net receipts from the tolls being a source of income on the capital invested. The damage to the defendant from the taking of his land was slight. He owns a large wood and timber lot around the summit of the mountain and adjacent to the road, and has used the road in clearing his lot, under the plaintiffs’ written permission. This privilege is valuable to him, the road being the only practical way of reaching and clearing the lot.
    
      From 1877 to 1891 the defendant did not question the plaintiffs’ right. In. 1891 he demanded rent of them, which was refused. In August, 1892, his servants, by his order, and without the plaintiffs’ consent, felled trees across the road so as to obstruct its free passage, and tore down parts of the observatory, which are the acts complained of in the writ, to their damage in "the sum of $50. If the action cannot be maintained, but the plaintiffs have an equitable remedy, leave to file a bill in equity as an •amendment was granted, without terms.
    
      David A. Taggart, for the plaintiffs.
    
      Burnham, Brown Warren and Samuel Upton, for the defendant.
   Smith, J.

The defendant, understanding that the road authorized by the plaintiffs' charter would pass through his land, and that they proposed to take by the power of eminent domain so much of it as would be required for the road unless he should agree with them upon the amount of his damages", verbally waived his right to compensation. The plaintiffs thereupon laid -out and built their road.

The title to land acquired by an exercise of the right of eminent domain is not founded upon a contract, but upon a compliance with certain conditions imposed by the law, one of which is the payment to the land-owner of the damages occasioned to him by the exercise of this right. This -condition being for the landowner’s benefit, compliance with it may be waived or relinquished by him. A parol relinquishment is sufficient, as it is not a relinquishment of an interest in land, but of a pecuniary claim. If a parol relinquishment is revocable, the revocation should take place before the other party acts, relying upon it. It is not material that damages are- waived before the land is taken, when it is done with the understanding and knowledge that the grantees are about to exercise the power granted in their charter. Fuller v. Commissioners, 15 Pick. 81; People v. Goodwin, 5 N. Y. 568; Marble v. Whitney, 28 N. Y. 297, 307; Mills Em. D. (ed. 1879) ss. 110, 111; 2 Dill. Mun. Corp. (3d ed.) s. 593. If in this case the plaintiffs took the defendant’s land under the power from the legislature, relying upon his consent and waiver, and expended money in the construction of their road, the defendant is estopped to deny the legality of their proceedings.

If the transaction between the parties was an agreement for the conveyance of an interest in land, the result is the same. The entry by the plaintiffs upon the land and the construction of their road were such part performance of the contract as to take it out of the statute of frauds. Phillips v. Thompson, 1 Johns. Ch. 131; Seavey v. Drake, 62 N. H. 393.

As we understand tlie case, tlie plaintiffs, in laying out and constructing tlieir road over the defendant’s land, did not proceed under the power of eminent domain, but under his agreement with them. They had leave at the trial term to file a bill in equity as an amendment, without terms. Upon filing a bill for a conveyance of a right of way, there will be a decree according to the facts, the deed to be as of the date when the damages were waived, and judgment will then be rendered upon the verdict.

Case discharged.

Blodgett, J., did not sit: the others concurred.  