after making the foregoing statement, delivered the following opinion of the court.
There are a number of interesting questions presented by the assignments of error and ably argued by counsel, both for appellants and appellee, in the briefs and orally before us; but we find it necessary to consider and decide only those which will be dealt with in their order as stated below.
The first question we shall consider is the following, namely: •
1. Does the preponderance of the evidence clearly establish that there were parol grants to the appellee, from the former owners of the surface of the lands affected, of the rights of way in question, which grants, were so far executed, prior to suit, by part performance on the part of the appellee, that it would be inequitable to rescind them, so that the grants will be upheld in equity as irrevocable, on the same principle that a partly performed parol contract for the sale of land would be upheld?
This question must be answered in the affirmative.
1. Whether the doctrine in question is applicable to a mere license, so that an easement may be created thereby, when partly performed, has been the subject of an irreconcilable division of opinion among the American authorities. As said in note to the case of
Lawrence
v.
Springer,
49 N. J. Eq. 289,
It seems to be the practically unanimous holding of the authorities that the doctrine in question is applicable to the parol grant of easements, such as the right of way in question in the causes before us. See note to the case of
Smith
v.
Garbe,
As said in the note just cited, at p. 692 of 136 Am. St. Rep.: “* * * The statute of frauds, as it is well known, is evaded in so many other instances'by part performance of obligations, that it would be strange indeed if it did not also include the parol creation of an easement. In
Wynn
v.
Garland,
In 1 Minor on Real Prop., sec. 136, this is said: “It seems, however, to be admitted that if the transaction be one which, if it were under seal, would create an easement, it being classed as a license merely because it is oral, upon a part performance thereof by the licensee by the expenditure of money, or otherwise, a court of equity may regard it as an equitable easement, and therefore irrevocable.”
This statement of the law is cited with approval, as aforesaid, in
Kent
v.
Dobyns,
And there is a class of cases, which, while not inr elusive of all easements which may be created by parol under the doctrine under consideration, are yet so far on the hither side of the line of distinction just mentioned that few, if any, of the authorities have any doubt in treating them as involving easements created by parol; whether the method by which they are created be designated a “license,” or by some other name. In that class of eases the grant, or consent, or license in
*17
volved, to use the land of another, consists, not merely in the permission given one to do something on his own land which injuriously affects, or puts a burden upon the land of the person giving the permission, but which consists of the right to build and use, for a definite purpose, some structure on the land of the latter, and where the structure is accordingly built by the former, at large outlay of expense, which would not have been made but for the permission having been given; and the right is held to be a contract right acquired by purchase for valuable consideration, which, indeed, does not rest entirely in parol, and which is coupled with an interest, creating an interest in the land, and which, as it is believed, the great weight of authority holds to be, in equity, at least tantamount to, if not technically, an easement. The opinion of the court in
Lawrence
v.
Springer,
49 N. J. Eq. 289,
When the test furnished by the authorities referred to above is applied to the rights of way in question in the causes before us we see that they constitute either easements, or what, in reason and by the great weight of authority, is in equity, tantamount thereto.
*18 2a. But it is contended on behalf of appellants that the evidence in these causes does not establish the existence of the parol grants of the rights of way in question — at least not by that degree of certainty of proof which is required to establish a parol contract for the sale of land. The testimony on this subject is conflicting. It has been referred to in the statement preceding this opinion to an extent which it is believed sufficiently discloses the nature of the controversy and of the conflicting testimony. The conflict is so sharp that the testimony cannot be reconciled. Where the truth lies depends upon the credibility to be given the conflicting testimony of the respective witnesses on the subject, when read in the light of the uncontroverted facts- touching the surrounding circumstances. We deem- it sufficient here to say that the internal evidence furnished by the manner in which the testimony of the respective witnesses was given, and the inferences to be drawn from the uncontroverted facts and from the testimony itself, satisfy us that the existence of the parol grants of the rights of way is clearly established by the preponderance of the evidence; and as clearly as a parol contract of sale of land is required to be established by the well settled rule on that subject, where possession of the land has been taken and improvements have been made thereon — that being in principle the situation involved in the instant causes.
2. Are the parol grants proved sufficiently definite in their terms, with respect to the width of the right of way, to authorize the appellee to first construct and operate a narrow gauge and subsequently a standard gauge railroad?
This question must be answered in the affirmative.
The proof is that the grants in the first instance authorized the construction and operation of a standard *19 gauge railroad. Because of the unexpected interposition of the United States Government the appellee was temporarily prevented from so constructing the railroad in the first instance. Appellee thereupon proceeded with the construction and operation authorized to the full extent that it then could. The land owners affected acquiesced in this at the time. Subsequently and promptly following the release of the government control of railroads appellee began the conversion of the narrow gauge into a standard gauge railroad, which was merely fully executing the grant in pursuance of the original contracts proved.
In
Atkins
v.
Bordman
2 Metc. (Mass.) 457, at page 468,
3. Are appellants purchasers for value, without notice of the aforesaid easements over the lands affected, so that the doctrine of the parol grant of such easements, which we have above considered, cannot be held applicable in the causes before us?
This question must be answered in the negative.
It is settled, and, of course, well understood, that the doctrine mentioned is not applicable as against purchasers for value without notice of the easement. But in the cases involved in the instant causes, in so far as the nineteen acre tract of land is concerned, the appellants, being partners, were affected at the time the partnership acquired such parcel of land with the same notice which the appellant Reedy, the former owner of it, theretofore had of the existence of said right of appellee to the said easement thereon and thereover; *20 and the preponderance of the evidence clearly shows, that that notice was actual, full and complete. So far as the other tract of three and a half acres is concerned, the preponderance of the evidence also clearly shows that before any purchase money was paid by the partnership of appellants and before the deed thereto was made to the latter by Mrs. Yanee, the former owner of such parcel of land, the appellants had what amounted to actual notice of the existence of said right of appellee to the said easement thereon and thereover.
The decrees under review in both of the above entitled causes will be affirmed.
Affirmed.