If the contract set up by the complainant were in writing we are not prepared to say that equity would .not decree a specific performance of it. The damages are so difficult to estimate with any approach to certainty that true equity would require a specific performance. The case in 32 Georgia, 550, stood on peculiar facts, since the defendant would only be called on to act when the plaintiff had freight ready, and there might be difficulty in enforcing the decree for that reason. But every decree for specific performance of an undertaking to do a continuous act, is subject to the objection, that the matter is never final. Nevertheless the judgment is final, and attachment for contempt in failing or refusing to obey it is always in the power of the court. But this contract is not in writing; it concerns an interest in land. The right of way on one side and an easement on that right of way on the other, and by the statute of frauds it can only be proven by a writing signed by the party to be charged. It is contended, in reply, that the contract has been performed on the part of the complainant, and that equity, to prevent the statute from being used as an instrument of fraud, will decree a specific performance of it, though it be only in parol.
The real question therefore, is, has there been a part or entire performance by the complainant. He alleges that he put the defendants into possession, or rather, that they went into possession, with this understanding and in pursuance of this contract. But the fact is that they were authorized by their charter to take possession. They had a right already in existence at the date of the contract, to take the right of way as they took it, on payment of just compensation. The complainant had no right to fix the route the road would take in. passing through his land. They might run through one part of it or another, along the line or through the middle. That was a matter exclusively for the determination of the railroad company, and the consequence of one route or another was to increase or lessen the damages. At last the contract set up is *202simply a substitute for, or a mode of, fixing the compensation. They would have gone into the possession of the right of way ■whether this contract was made or not. They did not take possession by virtue of and by reason of this contract.
A court of equity interferes to decree the specific performance of a parol contract void by the statute of frauds, only and solely because the parlies have so far acted upon and byv virtue of the contract as that it would be a fraud to permit the defendant to repudiate it. If the contract be so far exe-cuted by the party seeking relief and at the instance or by the inducements of the other party, that if the contract be abandoned the party acting cannot be restored to his former position, equity will interfere. Full payment alone, accepted by the vendor, or partial payment, accompanied with possession, or possession alone, with valuable improvements, if clearly proven in each case to be done with reference to the parol contract, will be a sufficient part performance to justify the decree: Code, 3187. These apt words of our Code contain the doctrine in a nut shell. The party seeking relief must have acted in some material matter by virtue of and by reason of the contract, must have put himself in a new position, so that he cannot be returned to his former position.
What has the plaintiff done here? He has simply stood by and permitted the railroad company to appropriate his land' without moving to have bis damages assessed. He has done no act, put himself in no new position. The company has simply done what it had a right to do, and the plaintiff ■stands just where he would have stood had the parol contract, ■as to the mode of compensation, never been made. He can ■now proceed to have his damages assessed as he could have ■done then. He has given up nothing. He is now attempting to charge the right of way with a burden the charter does not cast upon it, and that burden is an interest in the land, a ■duty to put up on the right of way a depot, and use a particular part of the right of way as a place for receiving and delivering .freight and passengers. For these reasons we think the deimuri’er was propexdy sustained. Judgment affirmed.