Belzoni Oil Co. v. Yazoo & Mississippi Valley Railroad Co.

• Decision Date: 02 November 1908
• Parties: BELZONI OIL COMPANY ET AL. v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY ET AL
• Court: Mississippi Supreme Court

47 So. 468

94 Miss. 58

BELZONI OIL COMPANY ET AL. v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY ET AL

Supreme Court of Mississippi

November 2, 1908

October 1908

FROM the chancery court of Washington county, HON. PERCY BELL Chancellor.

Consolidated suits, in one the Yazoo & Mississippi Valley Railroad Company was complainant one Cassleman, the president of the Belzoni Oil Company and the Delta Southern Railway Company, were defendants; in the other the Belzoni Oil Company was complainant and the Yazoo & Mississippi Valley Railroad Company was defendant. From a decree, seemingly unsatisfactory to all parties, the oil company and others appealed to the supreme court and the railroad company and others prosecuted a cross-appeal.

The facts are fully stated in the opinion of the court.

Reversed.

Campbell & Cashin, for appellant and cross-appellee.

In Wheelock v. Noonan, 108 N.Y. 179, a mandatory injunction was granted to compel the removal of a large quantity of stone from plaintiff's land, placed there by the defendant under a license, which he had abused, and also which had expired, on the ground that the stone constituted a continuous trespass, which involved, for its redress, a multiplicity of suits; and in Broome v. New York, etc Co., 42 N.J.Eq. 141, a similar injunction, on the same ground, was granted, commanding the removal from plaintiff's land of a number of poles; and the jurisdiction of chancery courts to grant mandatory injunctions, and, to do so in proper cases upon interlocutory application, is so firmly established as to obviate the necessity of citing authorities. However, numerous cases showing various circumstances and conditions under which such injunctions have been granted, are collected in the note to Murdock's case, 20 Am. Dec. 398, and in the note to the City of Moundville v. Ohio River Co., 20 L. R. A 161, and in the latter note, it is shown that it is no longer necessary that such injunctions should be in a negative or prohibitory form, but that the tendency, in the present day, is for the court to say, in the first instance, what it means, and direct the removal of the injury by a plain command to that effect.

In Alcorn v. Alcorn, 76 Miss. 907, 25 So. 877, the granting of a preliminary mandatory injunction was sustained, the court saying, in effect, that while such injunctions are granted with great caution prior to a full hearing, nevertheless, they are to be granted prior thereto, "where the exigencies of the case are great;" and in Gulf Coast Co. v. Bowers, 80 Miss. 570, 32 So. 113, the court recognized the propriety of granting a preliminary mandatory injunction, saying that "it is a sound rule that a writ of this character should not issue, unless the right to it is so satisfactorily shown that there can be no reasonable doubt of its propriety. The case made should be such that there can be no probability that the defendant can make a valid objection to it;" and, "unless the grounds for a preliminary injunction be inexpungable, it is the safer rule to hear both sides before directing its issuance."

In section 2 of High on Injunctions, it is said that "where, upon interlocutory application it is clear that the plaintiff will be entitled to a final mandatory injunction, an interlocutory mandatory injunction may be allowed. And, when there is a wilful and unlawful invasion of the plaintiff's right against his protest and remonstrance, the injury being a continuing one, a mandatory injunction may be granted in the first instance."

The record in this case shows with what stubborness the Yazoo, etc. Railroad Company has sought to prevent said crossing and connection, and to hinder said oil company in the management and control of its affairs and property, by the continuous occupany of the oil company's land with its tracks. It based its right of occupancy upon the written contract between it and S. Castleman, who had no interest whatever in the land; and alleged acquiescence therein by the oil company, resulting from its said tracks; and, in all of its pleadings, first, in its original bill, and then in its answer to the oil company's bill, and then in its amended and supplemental bill, and then by the affidavits of the several witnesses, it refers to said contract with said Castleman, as the basis of its right; while the affidavits, in behalf of the oil company, clearly showed that neither it, nor any of its directors, other than said Castleman, ever knew of the existence of said contract; and everything, in support of the railroad company's claim of the oil company's acquiescence in said contract, or its estoppel growing out of its use of said tracks, was presented to the chancellor as fully as it is likely could be done on the final hearing. So that, the substantive facts relied on by said railroad company, to-wit: said contract with Castleman, and the use of said tracks by the oil company were duly presented to the chancellor by the pleadings, exhibits and affidavits; and the chancellor, seeing that, on the final hearing, the oil company would be entitled to a mandatory injunction, granted it on the preliminary hearing.

The contract with Castleman, by virtue of which said tracks were constructed, was, in legal effect, nothing more than a license, and, even if he had been the owner of the land, the license thereby given, was revocable at will; for it is settled by the weight of authority that a mere license, whether for valuable consideration, or where great expense has been incurred by the licensee in pursuance of the license, is revocable at the will of the licensor. Beck v. Louisville, etc. R. Co., 65 Miss. 172, 3 So. 252; Kremer v. Chicago, etc. R. Co., 38 Am. St. Rep. 468; note to Lawrence v. Springer, 31 Am. St. Rep. 712, and it makes no difference whether the license is oral or in writing. 25 Cyc. 645.

In some states, when a licensee has acted under the license, and has incurred expense in making valuable improvements, or otherwise, equity regards it as an executed contract, or ground of equitable estoppel, and will not permit it to be revoked; but, in the note to Lawrence v. Springer, ubi supra, the authorities pro and con on that proposition, are collected; and it is there said that the line of cases holding revocability of the license under such circumstances is founded upon the better reason; and, among the cases there cited as supported by the better reason is Beck v. Louisville, etc. R. Co., ubi supra, wherein our supreme court repudiated the doctrine that acquiescence on the part of the owner of the land, in the building of a railroad thereon, at great expense, will estop him from recovering the land, and held that the owner could enjoin in chancery the use of said land for the railroad.

The contract with Castleman, upon which said railroad company relies, provides that Castleman should furnish the land needed for the construction of the tracks, but does not use a single word of grant or transfer, or as showing any intention to vest any interest in the land to the railroad company. On the contrary, it is therein expressly stipulated that the tracks should be and remain personal property, and no part of the real estate, and that the same could be removed by the railroad company at any time on thirty days' notice; and since the contract contained no words of grant or transfer, and by its terms excluded all intention of vesting any interest in or claim to the land occupied by the tracks, the true construction and legal effect of the contract, was to confer upon the railroad company a mere license, and as such, revocable even by said Castleman, had he been the owner of said land.

At the time said tracks were constructed, the railroad company assumed that said Castleman was the owner of said land, and the oil company did nothing to aid, encourage, or mislead the railroad company in making the expenditures necessary to construct the tracks.

The oil company's title to the land was on record, and it did nothing to mislead the railroad company in regard thereto. Nor did it do or say anything to induce the railroad company to incur the expense of constructing said tracks. All that was done by the oil company was to look on in silence, and to allow, without objection, the railroad company to use said tracks; and that did not amount to estoppel. Staton v. Bryant, 55 Miss. 261; Sulphine v. Dunbar, 55 Miss. 255; Murphy v. Jackson, 69 Miss. 403, 13 So. 728; Hill v. Nash, 73 Miss. 849; and Beck v. Louisville, etc. R. Co., 65 Miss. 172, 3 So. 252.

Having undertaken to show that the court did not err in granting the mandatory injunction on the oil company's amended bill, we will now undertake to show briefly that the court did err in dissolving the injunction theretofore granted on the oil company's original bill.

Had the oil company's amended bill made a new and different case from that made by its original bill, or materially changed the object sought by the latter bill, the injunction theretofore granted on the latter bill might, with propriety have been dissolved, regardless of the state of the case made by the amended bill; but there was no material or practical difference in the object sought by the two bills, nor did the amended bill state a different case.

It is true that the amended bill in its statement of the facts and its prayer for an injunction was framed in language somewhat different from that used in the original bill; but practically, in both, one and the same object was sought, and that was to enable the Delta Southern Railway to reach the oil mill over the right of way, which the latter had conveyed to it.

Mayes & Longstreet and C. N. Burch, for appellees and cross-appellants.

The decree of the court below dissolving the injunction granted on the...