Irish v. B. & S. W. R. , 44 Iowa 380 ( 1876 )

Seevers, Ch. J.

i.railroads: atf quod dam-tract'. The agreement referred to and made a part of the answer, was entered into after the appeal was taken, and is as follows: “In this case the Burlington Southwestern Railway Company propose to have the case docketed and a judgment affirmed or rendered for the amount assessed by the jury, to-wit: three hundred and sixteen dollars ($316.00), with stay of execution for two years; said judgment to be for said sum with six per cent on the same from date of the finding by the jury up to the judgment, and ten per cent on said judgment from date of same. There is to be judgment for costs also if not paid, but the same is not to be stayed. If the said Irish agrees to this proposition, then the same is to be acted upon, if not, then it is to be withdrawn.” Judgment was entered on the basis of this proposition, except it recites “ that execution or other proceedings to collect it is to be stayed for two years from the date of the judgment.” It is claimed by defendant that the agreement amounted to a sale of the right of way, or at least to a license to enter on the premises, and that it did so enter and has constructed the road with the knowledge and consent of the plaintiff, or if neither of these propositions are true, then it is claimed that, by the terms of the contract, the plaintiff is not entitled to an injunction, but must collect his judgment by issuing execution or other proceeding at law as best he can. There cannot and has not been any well founded reason given for the claim made that the agreement amounted to a sale. It is possible upon payment being made in accord with its terms the defendant would be entitled to a specific performance, but this we are not called on to determine, for the reason that no such question is before us. Nor can it be successfully maintained that the agreement alone gave the defendant the right to enter into possession, for even an agreement to sell is not a license to enter into possession. Eggleston v. N. Y. & H. R. R. Co., 35 Barb., 162. In that case there was a written agreement to sell, and much stronger in favor of the defendant than in the present case. Whatever possession the defendant took or had must have been under a parol license or simply knowledge on the part of the plaintiff that the road was being built over the premises and his acquiescence implied therefrom. A parol license or right to possession-of real estate is revocable at the pleasure of the party giving such license. Foot v. N. H. & N. H. Co., 23 Conn., 214; Eggleston v. N. Y. & H. R. R. Co., supra. “A permanent interest in land cannot be created by or under a parol license.” Per Selden. J"., in Selden v. D. & H. Canal Co., 29 N. Y., 634. It is true that such license, until revoked, will protect the licensee from all damages during its existence, but it can never ripen into an estate or permanent interest in the land. This action at least amounts to a revocation of the license, but whether this be true or not, or that there never has been such revocation is not material, for all the plaintiff seeks is compensation for his property taken, which is guaranteed to him by the Constitution.

The agreement and judgment rendered in accordance therewith fairly construed amount to this and nothing more: that the plaintiff agreed not to enforce the collection of the judgment by legal "proceedings for two years, and at the expiration of that time he was remitted to all his legal rights and remedies. It is settled in this State that among such remedies is the right to an injunction. Richards v. D. V. R. R. Co., 18 Iowa, 260. It is urged the provision that the judgment is to draw ten per.cent has an important bearing in the construction of the agreement. In this view we do not concur. It was entirely competent for. the parties to agree upon any compensation they saw fit. The fact they have done so deprives the plaintiff of no right that would have existed had the damages been assessed by a jury in strict accord with law. In Richards v. D. V. R. R. Co., supra, the damages were assessed by a jury, and judgment rendered therefor in the District Court, and no steps were taken to collect the judgment until after the road was completed, the plaintiff in that case acquiescing in the possession and acts of the defendant during construction; and yet it was held he was entitled to an injunction. The plaintiff in that case was passive after the recovery of the judgment; in this, the plaintiff agreed to remain passive for a stated time. We are unable to see any difference between agreeing to be passive during construction and remaining so without any agreement. That there is no estoppel under such circumstances is held in Hibbs v. C. & S. W. R., 39 Iowa, 340, and on the general question involved, see Evansville v. Grady, 6 Bush, 140, Ungast’s Appeal, 55 Penn. St., 128. Upon both principle and authority we have no hesitation in holding that the decree of the Circuit Court must be

Affirmed.