specific per

4. The city has not furnished the right of way, as agreed, and the defendants have not caused it to be done, or procured it themselves, through either block. The Case made for question now arises whether, upon the facts herein a case is made for the interposition of a court of formance. equity so as to warrant a decree for specific performance as to the defendants Union Depot Company and Sabin, and to award a judgment for damages against other defendants, by way of compensation for the deficiency. The court will not undertake to compel the defendants, jointly or severally, to purchase the specific property, or to procure the right of way from the city. And it is not a case for compensation, because, conceding that the court might compel the depot company and Sabin to convey a partial interest representing a relative or proportionate share of individual obligors, as above described, the same would be relatively so small, as compared with the whole amount embraced in the contract, that the compensation or damages would apparently be the main object of the suit. In such cases a court of equity will not assess damages as compensation, but only where they are incidental to the principal ground of relief, and the court will leave the party to his action at law, unless he will consent to accept the part subject to conveyance without damages. Earl of Durham v. Legard, 34 Law J. Ch. 590. In some cases, however, where the vendor shows title to a portion only of the land contracted, or has wrongfully parted with part, justice may be done by an apportionment of the consideration, if the vendee consent to take part with an abatement of the price. 2 Lead. Cas. Eq. (4th Ed.), pt. 2, p. 1146. So, where the vendee knows at the time of entering into the contract (as may be implied in this case from the terms of the contract) that the vendor has title to a part only of the land, compensation will be denied. Wat. Spec. Perf.

506; 5 Wait, Act. & Def. 781. This is not a case between vendor and vendee. By the contract the right of way was to be procured by or from others by gift or purchase. The plaintiff did not contract for a conveyance from the defendants. It did not rely upon the individual ownership of the obligors. The city was to give the right of way; and, as to block 27, the defendants were to purchase the entire balf block jointly, and jointly bear the burden. It was not fairly within the contemplation of the parties that the interests which the individual obligors might have in some of the land embraced in the proposed right of way should be made subject to enforced conveyance under the contract, if unfulfilled in its scope and purpose by the obligors, who jointly entered into it. Equity, it is true, looks at the substance of

the contract, and, when the agreement can be substantially, though not literally, carried out, without changing the nature of the contract, or substituting a new one, and do justice between the parties, it will be so enforced. The doctrine of compensation rests upon this principle. And so where land is held as tenants in common by several persons, who have jointly agreed to convey the same, some of whom are not bound, or are deceased, those who are liable, or who survive, may be compelled, in a suit on the contract, to convey their individual or proportionate interests as tenants in common. Hooker v. Pynchon, 8 Gray, 550. But such is not this case. The contract did not contemplate a conveyance of individual interests, but the acquisition of the right of way by the public, and by the joint act or purchase by the obligors; and, as to block 27, an essential condition and inducement to the parties was the purchase of the half block, and not the right of way merely. In any view of the case, and apart from the question of laches, considering the nature of the contract, the state of the title, the indefiniteness and uncertainty in the description set forth in the contract, we think that the parties should be left to their action at law, and the interposition of a court of equity is not warranted. Order affirmed.

Specific Performance of Agreement to Convey Right of Way.-See note 43 Am. & Eng. R. Cas. 645.

Unrecorded Deed Conveying Right of Way -Company in Possession of Part Only-Right of Bona Fide Purchaser.-A railroad company having a deed of a right of way which it did not record, took possession of a part only of the right of way conveyed. The land-owner subsequently conveyed the premises to a third party, and the deed given by him recited that the conveyance was subject to the railroad right of way. Held, that the purchaser had notice of the railroad company's title to that portion only of which it was in possession. Cincinnati, I. & St. L. R. Co. v. Smith (Ind. Sup. Ct. March 18, 1891), 26 N. E. Rep. 1009.

Land Covered by Location-Estoppel of Company to Claim Title.—In an action to try the title to a parcel of land occupied by a railroad company, it appeared that the defendant company after filing the location of its road, accepted a deed from plaintiff's predecessor describing the land conveyed as the land taken by the location, which description did not include the land in dispute; and at the date of the location defendant did not admit, nor did plaintiff's predecessor claim that the latter had title to the premises. A license to use the land in question was given by plaintiff's predecessor to defendant, which, of course, would have been useless had defendant owned the land. Held, that the defendant was not estopped to claim that the land in question was covered by the location. Cunningham v. Boston & Albany R. Co. (Mass. May 18, 1891), 27 N. E. Rep. 660.

Interest Acquired by Company in Right of Way where there has been Neither Conveyance nor Condemnation.-In East Tenn. Va. & Ga. R. Co. v. Telford's Ex'rs (Tenn. Oct. 30, 1890), 14 S. W. Rep. 776, it appeared that the charter of the defendant contained the following provision: "In the absence of any contract with the said company in relation to land through

which the said road may pass, signed by the owner thereof or his agent, or any claimant or person in possession thereof, which may be confirmed by the owner, it shall be presumed that the land upon which the said road may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the company by the owner thereof, and the said company shall have good right and title thereto, and shall have, hold, and enjoy the same as long as the same be used only for the purpose of said road, and no longer unless the persons owning the said land at the time that part of the road which may be on said land when finished, or those claiming under him, her, or them, shall apply for an assessment for the value of said land, as hereinbefore directed, within five years next after that part of said road was finished. And in case the said owners, or those claiming under them, shall not apply for such assessment within five years next after the said part was finished, they shall be forever barred from recovering the said land, or having any assessment or compensation therefor," etc. Held, that where the company had occupied land for a right of way without any conveyance ever having been made, or a right of way condemned, the company acquired an easement only, and the land-owner was entitled to make any use of the right of way subject to the easement, not inconsistent with the company's use of the same.

Right of Railroad Company to Build Side-tracks on Right of Way-Interference with use by Land-owner.- Where by statute a railroad company acquires an easement 100 feet wide in the land over which its road is constructed, its right to build side-tracks is included in the original easement, and the building of a side-track within the 100 foot limit is no new taking of the land, although for thirty years prior thereto the land-owner had cultivated the right of way; such use by him is not adverse to the company's easement. East Tenn., Va. & Ga. R. Co. v. Telford's Ex'rs (Tenn. Oct. 30. 1890), 14 S. W. Rep. 776.

Parol Contract to Sell Land to Railroad-Statute of Frauds.-In East Tenn., Va. & Ga. R. Co. v. Davis (Ala. Nov. 15, 1890), 8 So. Rep. 349, it was held that a parol contract for the sale of land to a railroad company in consideration of the construction of a spur track to the mill of the grantor, is taken out of the statute of frauds by the actual construction of such spur track.

Release of Right of Way and Claims for Damages-Damages Caused by Overflow. In Updegrove v. Pennsylvania S. V. R. Co., 132 Pa. St. 540, it was held that an agreement between a land-owner and a railroad company to convey to the latter a right of way across the premises of the former, covers all damages, of whatever sort, suffered by the land-owner, for which he is legally entitled to recover compensation. Wherefore, a release to a railroad company, by a land-owner, of all claims for damages which may accrue by reason of the construction and maintenance of the railroad, is a bar to a recovery for injuries caused by a ditch and culvert constructed by the company upon its right of way subsequently to the original location and construction of the railroad.

SMITH

ย.

HOLLOWAY.

(124 Indiana, 329.)

Conveyance of Right of Way-Easement-Right of Grantor to Use Streams. A grant to a railroad company by a land-owner of a right of way is the grant of an easement only, subject to the right of the land-owner to make all lawful use of the land. Such a grant does not affect his right to use a stream of water flowing over the right of way.

Same-Parol Reservation of Water Right Statute of Frauds.-A parol agreement reserving to the grantor the right to use a stream of water running across the land granted for a railroad right of way, is not void under the statute of frauds; the right remains in the grantor to the water irrespective of such agreement, and it, therefore, but confirms his existing right.

APPEAL from Pike County Circuit Court.

E. A. Ely and J. W. Wilson, for appellant.
F. B. Posey, for appellee.

Case stated.

ELLIOTT, J.-The appellee alleges in his complaint that in August, 1869, he was the owner of a tract of land; that prior to that date he granted a right of way for the construction of a railroad to the Evansville, Indianapolis & Cleveland Railroad Company; that the company constructed an embankment; that on the day named he conveyed to Granville Carlisle all of the tracts lying south and east of the right of way; that by a series of conveyances the defendant became the owner of the parcel conveyed to Carlisle; that on the 15th day of August, 1885, the appellee sold to the appellant a strip of land for a road 15 feet in width; that there is a spring from which a stream of water constantly flows; that this stream crosses the strip granted the appellant, and runs along the south line of the embankment, and into the inclosed land of the appellant; that on the 1st day of June, 1885, an agreement was made between the appellee and the appellant under which they erected a partition fence on the top of the embankment; that for more than 15 years before the agreement was entered into the appellee had used and enjoyed the stream; that it was agreed that the appellee's right to have the stream flow into his field should never be disturbed; that the partition fence should never be so changed as to interfere with the appellee's use of the stream; that he continued to use the stream, and the flow thereof was unin

terrupted, until the 1st day of July, 1887, but on that day the appellant, against the protest of the appellee, so changed the fence as to shut off the field and pasture of the appellee from the stream; that the wrongful act of the appellant has caused the appellee to suffer damages in the sum of $150. This complaint was challenged for the first time by a motion in arrest of judgment, so that the question for decision is as to the sufficiency of the complaint after verdict.

The point made by the plaintiff that the grant of the right of way to the railroad company precludes the appellee from maintaining this action is without substantial merit.

The owner of the fee remains the owner of springs, to use water. streams, minerals, and the like; for all that he grants is an easement. The owner cannot interfere with the free use of the right of way; but, subject to this use, he may make all lawful use of the land. The point made by the appellant that the parol agreement relied upon is in

Statute of frauds.

valid under the statute of frauds is one of more difficulty; but, as the complaint shows that the strip granted the appellant was for the purpose of a road, we cannot say that the agreement reserving the waterright was not valid, for, upon the principle stated, the right to the water remained in the appellee as the owner of the fee. As the water-right remained in him, the parol agree ment did no more than confirm in him an existing legal right. We cannot disturb the finding upon the evidence. Judgment affirmed.

Title Acquired by Railroad Company Under Conveyance of Right of Way.See Robinson v. Missisquoi R. Co. (Vt.) 30 Am. & Eng. R. Cas. 299, note 303; Westchester & P. R. Co. v. Doddard (Pa.) 33 Id. 195; Frank v. Evansville & I. R. Co. (Ind.), 30 Id. 224; Chicago, etc. R. Co. v. Ward (Ill.), 39 Id. 150; Davis v. Memphis, etc. R. Co. (Âla.) 39 Id. 65; New Jersey, etc. Co. v. Morris Canal & Banking Co. (N. J.) 36 Id. 515; Atlantic, etc. R. Co. v. Lesueur (Ariz.) 37 Id. 368; Hargis v. Kansas City, etc. R. Co. (Mo.) 43 Id. 599; Vicksburg & M. R. Co. v. Barrett (Miss.) 43 Id. 595, note 597.

DIFFENDAL

V.

VIRGINIA MIDLAND R. Co.

(86 Virginia, 459.)

Interference with Water Supply of Railroad Company-Equity Jurisdiction. -Where there is an attempted unlawful interference with the water sup ply of a railroad depot, which will compel the company either to provide water at a heavy continual expense and inconvenience, or to allow its waterclosets to become nuisances, such irreparable damage is shown as gives equity jurisdiction to interfere by injunction.