Williamston & Tarboro R. R. Co. v. Battle

• Decision Date: 31 January 1872
• Court: North Carolina Supreme Court
• Parties: WILLIAMSTON & TARBORO R. R. CO. v. WILLIAM S. BATTLE.

66 N.C. 540

WILLIAMSTON & TARBORO R. R. CO.

v.WILLIAM S. BATTLE.

Supreme Court of North Carolina.

January Term, 1872.

1. CASE:--A railway company having a right, by virtue of its charter, to locate its road-bed on a certain portion of the land of B, he proposes by letter that if the company will refrain from such location, it may locate it over another portion of his land, Provided it would open, grade and p??nt in order a street on that part in front of his house eighty-five feet wide. The company accept the proposition, locate their road-bed accordingly in December, 1869, but fail to open the street, &c., as late as September, 1871. The company became insolvent before September, 1871, and executed a mortgage of its propertv. In September, 1871, B. notified the company that unless the condition was performed within 15 days, he should re-possess himseif of his land covered by the road-bed. Held,

(1.) That the opening, &c., of a street was not a condition precedent to the exercise of the right to locate.

(2.) That the proposition contained in B's lett??cr was not a mere license revocable at will.

(3.) That while at law no easement passed to the company, because an easement in land can be created only under seal, yet, the writing by which the defendant charged himself was binding within the statute of frauds, and would be specifically enforced, and as between the parties and to protect the rights of the licensee, this Court acting upon the familiar maxim of equity, that what ought to be done is considered as done, would consider that a grant of the easement had been made.

2. A license even under seal (if it be a mere license) is as revocable as one by parol; on the other hand a license by parol, coupled with an interest and founded on a valuable consideration is as irrevocable as if made by deed.

3. The license specified above is of the latter class.

4. The transaction may also be viewed as a contract, entitling either party to a specific performance.

5. The question of eminent domain does not arise, as all that was done was by the consent of B.

6. The insolvency of the company is immaterial, as any purchaser would take subject to all the burdens which were borne by the company.

7. The injury threatened is within the technical??meaning of irreparable damage, and the company is entitled to have the injunction continued to the hearing upon the equity confessed in the answer, but it was erroneous to perpetuate the injunction before a final hearing.

This was an appeal from the Superior of Edgecombe County at Fall Term, 1871, His Honor Judge Moore presiding.

The plaintiff, a railway corporation, commenced a civil action and presented an affidavit (sworn complaint) to His Honor, praying for an order of injunction.

This was granted, and at the term aforesaid, a motion was made to His Honor on affidavit to vacate the order.

The plaintiff made a counter-motion to perpetuate the injunction.

His Honor denied the former and granted the latter motion, and the defendant appealed.

The facts necessary to a correct understanting of the points are sufficiently stated in the opinion of the Court.

Battle & Sons for the plaintiff .

Moore & Gatling for the defendant .

The alleged contract was the appropriation of land in a different place than where the law allowed it, except by the owner's consent; and the compensation agreed on was the performance of specific work for the owner.

2. The owner did not contract to waive his security for the compensation. If the road bed had been located by the company in rear of the dwelling, the land or right of way would have vested in the Company, “so soon (and not before) as the compensation may have been paid or tendered.” Sec. 18 of charter.

3. Such security is guaranteed by the Constitutions, both of the State and United States. By the Constitution of the State: R. R. Co. v. Davis, 2, D & B., 451, at pp. 459, 4, 60, 46, 1. By the Constitution of United States: Art. 1, Sec. 10, §1, which forbids the passing of any State law, “impairing the obligation of contracts.” Though private rights, acquired by special grant from the State, may be taken for public use “in the exercise of the power of eminent domain,” it can only be done by providing for a just compensation. If not so provided the taking would impair contracts. State v. Glenn, 7 Jones, 321; Fletcher v. Peck, 6 Cr., 128; Stanmire v. Taylor, 3 Jones, 207; Cornelius v. Glenn, 7 Jones, 512. The defendant held his land under grant from the State, and the State cannot grant it to another without compensation. 2 Kent's Com. and notes, 397 to 406, 8 edition. In such cases the Court will enjoin occupation till compensation is made. 2 Kent's Com. 399, N. A., Redfield on Railways, 147, 8, notes 5.

4. If the defendant had led the plaintiff into occupation and expensive improvements by a promise of gift the Court would enjoin him from entering on the premises without paying for the betterments. Baker v. Carson, 1 Dev. and Battle Eq., 381. There is no pretence of allurement upon such terms. The plaintiff seeks to hold the land without a conveyance or payment just as if it were absolutely conveyed without compensation.

5. The proceeding, in substance, is a special equity application to enforce a contract. It is a demand for performance by the defendant, while the plaintiff not only declines to offer to perform but admits its inability to do so. In other words the plaintiff calls upon the Court to protect its possession of propperty, which it has entered on by false promises, and boldly asks the Court to sanction the act of injustice, because it is a Railroad Company and insolvent. The Company should have offered to perform its part of the agreement and placed itself within the power of the Court to enforce the performance, before it can have redress by injunction or otherwise. Lane v. Patrick, 3 Mur., 473; Prater v. Miller, 3 Hawks, 628; Ellis v. Ellis, I Dev. Eq., 398; Falls v. Carpenter, 1 Dev. and Battle Eq., 237; Oliver v. Dix, 1 D. and B. Eq., 605; Albea v. Griffin, 2 Dev. and Bat. Eq., 9; Deaver v. Parker, 2 Ired. Eq., 40; McGalliard v. Aikins, ib., 186; Suggs v. Stowe, 5 Jones Eq., 126; Capps v. Holt, ib., 153; Winton v. Fort, ib., 251; White v. Butcher, 6 Jones Eq., 231.

RODMAN, J.

The provisions of the charter of the company are only material so far as they may tend to explain the contract of the parties. The company had a right to condemn land for the use of their road, (yards, gardens, &c., excepted,) and they propose to run their road in the rear of the defendant's house, through his field. He, however, preferred that it should run in front of his house, and finally by his letter of 31st of May, 1869, he proposed to allow the Company to run their road in front of his house, and to leave the question of damages to the Company, if it would open, grade, and put in order a street in front of his house, 85 feet wide, but the doing of this was not made a condition precedent.

It may be remaarked here, that the Company by its complaint, alleges a somewhat different contract from this. If there is really any controversy between the parties, as to the terms of the contract, that can be determined hereafter. It is not material for the present decision, whether the terms stated in the complaint, are those stated in the defendant's letter of 31st of May, were those agreed on. We may assume therefore without prejudice to any future inquiry, that the terms were substantially to open and grade the...