130 Mass. 388 | Mass. | 1881
This is a hill for the specific performance by the defendants of two oral agreements made by the Danvers and Georgetown Railroad Company with the plaintiff, by which that corporation undertook to release to the plaintiff certain parcels of land included in its location. The bill alleges that two of these parcels were owned by the plaintiff when the location was filed, and that the others were owned by one Nelson, from whom the plaintiff bought them, subject to the easement of the corporation, and with the right to receive to his own use the compensation due for the land taken.
The bill further alleges that the corporation, not wishing to use and pay for all the land included in its location, agreed orally to release to him the two parcels described in his bill, which were a part of his estate when the location was filed, and the four parcels described, which were a part of the estate of Nelson when the location was filed, the consideration for the agreement being that the plaintiff should not demand nor collect damages for taking the lands so released.
The bill alleges further that in the year 1855, after the filing of said location and after the said oral agreements were made, the Danvers and Georgetown Railroad Company and the Newburyport Railroad Company united and became one corporation under the name of the Newburyport Railroad Company which
Thus far the bill states the case of an oral agreement for the transfer of an interest in lands. The taking of the lands in question, by filing a location of the railroad which included them, gave to the railroad corporation an easement in them which entitled it to exclusive possession for the purpose and as a means of exercising the privileges and performing the functions defined by its charter. But the mode of occupation, and the degree of exclusiveness necessary or proper for the convenient exercise of its franchises, were within the absolute discretion of the corporation. Its right was not a fee nor a freehold, but an incorporeal right, subject to which the fee remained in the plaintiff. This right could not be conveyed to a stranger, so as to invest him with authority to occupy the land taken for purposes foreign to the business of the corporation, but was an interest in land which would not pass by an oral agreement. Hazen v. Boston & Maine Railroad, 2 Gray, 574. Proprietors of Locks and Canals v. Nashua & Lowell Railroad, 104 Mass. 1.
To take the case out of the operation of the statute of frauds, the plaintiff relies on certain facts, which are stated in the bill, as amounting to such part performance as to give a court of equity jurisdiction to compel a specific performance of the contract.
These facts are of two classes: first, that certain things were done by the railroad corporation which took the lands, or by one of the corporations which have succeeded to its rights in whole or in part; and second, that certain things were done by the plaintiff. The railroad corporation which took the lands is alleged to have built fences, after the oral agreement was made, dividing that part of the lands in question which belonged to
The things done by the plaintiff which are relied on as constituting part performance are two: first, paying the agreed consideration for the release by refraining from collecting compensation for the taking of the lands covered by the agreement; and second, the continued occupation of the premises by the plaintiff. The refraining from collecting damages for the taking was, at most, nothing more than a payment of price, which it is well settled does not take an oral agreement out of the operation of the statute. The occupation of the premises by the plaintiff was not under such circumstances as to constitute a part performance. It is not the case of an entry by one previously a stranger to the title, and a continued occupation by him, obviously adverse to the rights of the corporation under its location.
The result is, that the decree sustaining the demurrer and dismissing the bill must be
Affirmed.