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Opinion of the court.

donation, it became dedicated to the specific purposes indicated. By this act upon the part of the United States, through their agent, the defendant, as well as the public through it, has acquired an easement in the property, so long as it continues to use it for the purposes granted, which is said "to be a liberty, privilege, or advantage which one may have in the lands of another without profit." The owner of the fee, whoever he may be, cannot revoke the license granted. The fee will remain in the original owner, or his grantees, but the right of the defendant to the use is paramount to the title of the owner of the fee, and does not require the fee for its protection. M. E. Church v. Hoboken, 33 N. J. L.; Wilson v. Sexon, 27 Iowa, 15.

And here the doctrine of equitable estoppel may be justly applied. Under the permission given, the defendant built its railroad over the land of the complainants, with their knowledge and assent, which depends for its value on remaining in its present position. Acting in good faith, it was influenced to make large expenditures both of time and money in its construction.

The plaintiffs were influenced in granting the license by the benefits to be derived from the construction of the road in furnishing them with better facilities of transportation at reduced rates. It was simply the advantage of a railroad for transportation over the old wagon-roads, which, in the light of subsequent events, proved to be of incalculable benefit to the property. The benefits thus derived, whilst they may not amount to a valuable consideration, were the inducements that operated upon the complainants to grant the license. It was a power coupled with an interest, which was both necessary to the possession and enjoyment of the rights acquired under the permission, and is not revocable as long as the interest exists. Were it otherwise, a revocation of the power would follow, and the defendant would be constrained to remove its railroad at a great loss. Such a result would work gross injustice to the defendant, and would allow the complainants to take advantage of their own wrong.

It is here that equity interposes her power to estop the complainant from disturbing the defendant in the rights acquired by it under the agreement, otherwise it would have no remedy. It is now the settled doctrine that "equity will execute every agree

Opinion of the court.

ment, for the breach of which damages may be recovered, when an action for damages would be an inadequate remedy." In this case no adequate compensation could be made the defendant for the damages it would sustain by the revocation of its license and the loss of rights acquired under it. The complainant having without objection permitted the defendant to construct over their lands a public railroad, "cannot, after the road is completed, or large expenditures have been made thereon, upon the faith of their apparent acquiescence, reclaim the land or enjoin its use by the railroad company." Goodin v. Cincinnati and Whitewater Canal Company, 18 Ohio St., 169; Cumberland Valley Railroad Company v. McLanahan, 59 Penn., 24, 31. And this doctrine is reaffirmed in 21 Ohio, 553, in which case the learned court declare that "it is the dictate of natural justice that he who, having a right or interest, by his conduct influences another to act. on the faith of its non-existence, or that it will not be asserted, shall not be allowed afterwards to maintain it to his prejudice." Out of this just principle has grown the equitable doctrine of estoppel in pais, so well stated and strongly approved by Fonblanque in his Treatise on Equity, vol. i, chap. 3, sec. 4; by Chancellor Kent in Wendell v. Van Rensselaer, 1 Johns. Ch., 344; by Lord Macclesfield in the leading case of Savage v. Foster, 9 Modern R., 35.

In the case under consideration, no one can question the fact that the defendant was influenced in the course it pursued by the conduct of the government through its officer, the Secretary of War. The company entered upon the premises under its agreement with the government, and remained in the peaceable possession and the quiet enjoyment of them for a period of upwards of thirty years. During all this time not the slightest intimation was ever given to it of any claim whatever upon the part of the government to the disputed premises. I therefore conclude that, upon every principle, both legal and equitable, the complainants cannot and ought not to be permitted at this late day to disturb the defendant in the possession of the premises under the agreement of 1838.

Nor do I think a right of compensation exists in this case. No actual consideration is expressed in the agreement, and the omis

Statement of the case.

sion to do so implies that both parties understood that none was demanded.

It is manifest that the Secretary of War required no consideration, for the reason that he looked to the additional facilities of transportation the construction of the railroad would furnish, as well as to the enhanced value of the residue of the property consequent upon its construction.

It seems to me, therefore, that every consideration of justice between the parties requires me to treat and hold the license in this case as an executed contract giving an absolute right. I am therefore of the opinion that, upon any view of the case presented by the pleadings, the bill should be dismissed for the reasons assigned.

United States Circuit Court, Eastern District of Virginia, at Alexandria, January, 1877.

WM. B. ROGERS et al. v. DAVID B. PARKER, U. S. MARSHAL.

Where a judgment at law had been rendered against a defendant, who had entered his appearance, through the inattention and neglect of his counsel, and the counsel was not pecuniarily responsible for the amount of the judgment, on a bill brought by this defendant to restrain all proceedings to collect the judgment;

Held, on demurrer, that the bill must be dismissed.

IN equity.

The bill alleges the following series of facts:

Jesse J. Simpkins was appointed United States Collector at the port of Norfolk, Virginia, and the complainants became his sureties for the sum of $50,000, prior to the war.

On the breaking out of the war Simpkins was indebted to the United States in the sum of $11,000 and upwards.

He had in his hands, including that amount, in all $16,489.80, of which $10,000 was in gold belonging to the United States.

Statement of the case.

At the commencement of hostilities he was ready and willing to pay to the United States the amount then in his hands, and used every possible exertion for that purpose.

Owing to the occupation of Norfolk by the confederate military forces, he was unable either to send the money to the United States or to keep it safely, and with a view to its greater security deposited the same secretly at night in the vaults of a bank at Norfolk.

The money subsequently becoming more insecure there, and feeling that he might be liable for moving the money contrary to law from the vaults in the custom-house office, it was secretly returned to the vaults again.

Major General Huger having at his command, present, an active and ample military force, demanded the money from Simpkins as an officer of the confederate authorities. Being unable to resist that demand, and hoping to secure the money to the United States, a conference was held between Simpkins, the sureties on his bond, and the United States District Attorney, and by the advice of that attorney it was arranged that the money should be placed as a special deposit in the treasury of the State of Virginia, under the belief that it would thus be secured to the United States, in the event of the failure of the confederate arms. General Huger consenting thereto, the money was so placed as a special deposit, and no part of the same has ever been removed, but is now there, as the complainants insist, the property and subject to the order of the United States.

Under these circumstances a suit at law was commenced by the United States in the Circuit Court of the United States for the District of Virginia, against the complainants in this suit, on said bond, Simpkins in the meantime having died insolvent.

The complainants employed counsel to defend said suit, and to appear and cause their names to be entered upon the docket, and upon whom the complainant relied to plead and make the defence to the said suit at law.

Upon the trial the said counsel, although regular practitioners at that bar, were not present, and the complainants did not know of the said trial, nor that a judgment was rendered in said cause, until long after the said judgment had become final and absolute.

Statement of the case.

In June, 1872, an act of Congress was passed for the relief of Simpkins's sureties, authorizing the Attorney-General to demand and receive from the State of Virginia the amount so deposited, and the Attorney-General was also authorized to stay proceedings on the said judgments until it was ascertained whether Virginia would make payment of said deposit.

Subsequently, and on April 3d, 1873, the agent of the AttorneyGeneral demanded such payment of the State of Virginia, but the demand was refused on the ground that such payment was forbidden by the constitution of the State.

On the 29th of April, 1873, the complainants, as required by the said act, delivered to David B. Parker a forthcoming bond, in the sum of $20,180, to satisfy the amount of the said judgment of $11,795, with costs and interest.

The only consideration for the said forthcoming bond was the said judgment against them as Simpkins's sureties.

No part of the money which that judgment represented was lost, or squandered, or embezzled by Simpkins.

No part of that fund has ever come into the possession of either of the persons against whom the judgment runs.

They are chargeable with no fault or neglect, and have in no way contributed to produce either the loss or peril in which the money is placed.

The judgment was not only recovered against them without any fault or neglect on their part, but neither one nor all of the attorneys or counsel so employed by them, and relied upon to make their defence, are able to pay the amount of the judgment or to indemnify the complainants against the same, wherefore they pray a perpetual injunction against the said party from attempting to enforce the said forthcoming bond. All parties are citizens of Virginia.

The bill was brought against D. B. Parker, as Marshal of the United States for the Eastern District of Virginia. After it was commenced Parker resigned, and C. P. Ramsdell, his successor, was made, by order of court, defendant in his place.

To the bill the defendant, C. P. Ramsdell, interposed a general demurrer, and made affidavit to it in usual form.

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