(After stating the foregoing facts.)
It was error to dismiss this case as to the O cilia Southern Bail-road Company on general demurrer. The petition alleged that the *412plaintiff leased the rails and fastenings to Henderson, who either assigned the lease or sublet the property to that company, which was in possession and had adopted the contract, and that the defendants had failed to pay the rent and refused to deliver the leased property. In regard to rights of way it has been held that when a railroad company is in possession of land using it as a right of way, although not having acquired the legal title thereto, the landowner will be estopped from ejecting the company from the premises, if it is shown that either the original entry was with his consent, or that the entry without his consent was so long acquiesced in that to allow the company to be ejected would either dismember the property of such company, or essentially interfere with its ability to discharge the public duties incumbent upon it; but that this is subject to the qualification that the landowner is entitled to some compensation for his property, and that this must be ascertained and paid to him.before the corporation is vested with a complete right to hold and enjoy such property as its own. Charleston &c. Railway Co. v. Hughes, 105 Ca. 1, 17 (30 S. E. 972, 70 Am. St. R. 17). The destruction of the ability of a railroad company to perform its duties to the public was considered important in reaching that result. If this or similar reasoning should be considered applicable to rails and fastenings intended to be attached and actually attached to the railroad as a part of a track to be used by a railroad company, under a contract of the character of that here involved, so as in any way to affect the agreement as to the right of the lessor of such rails and fastenings to remove them on failure to pay rent for them, there would be no question that the railroad company in possession and use of the property would be not only a proper but a necessary party defendant to an action to enforce the contract. If, on the other hand, it should be held that the rails and fastenings, though thus leased and used, stand like ordinary personal property hired, with a reservation of a right to retake possession upon failure to pay rent (Webster Lumber Co. v. Keystone Lumber &c. Co., 51 W. Va. 545, 42 S. E. 632, 66 L. R. A. 33, and note p. 58), then the railroad company was, under the allegations, in possession and use of the property, and wrongfully refused to deliver it. In that event it could be properly made a party to an action to recover the property.
. In addition to this, it was alleged that the company adopted the *413contract of Henderson; and it was sought to enforce a lien upon a portion of the right of way in the possession and use of the company, for the purpose of obtaining payment of the sums of money alleged to be due to the plaintiff. The requirement of a written assent in advance by the lessors to a sublease to a railroad company was expressly stated to be for the benefit and protection of the lessors, and could be waived. The Ocilla Southern Bailroad Company was a proper party to such a proceeding. See, in this connection, Williams v. Terrell, 54 Ga. 462. This contract was called a lease, the payments .to be made were termed “rent,” and the technical words “demise, lease, and farm-let” were used, and a privilege of purchase was given. The writer of this' opinion has to some extent employed the terms which the parties themselves have used. If such a contract be considered like a lease of realty, see Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451 (69 S. E. 734). The action invoked the equitable jurisdiction of the court. It was dismissed on general demurrer. We need not decide the important questions above indicated, in advance of a trial and a full development of the facts, or declare what may be a proper decree to be entered with respect to the company. But in no event was it right to dismiss the case as to it.
Counsel for the defendant in error relied on the decisions in Waycross Air-Line R. Co. v. Southern Pine Co., 115 Ga. 7 (41 S. E. 271), and Atlantic & Birmingham R. Co. v. Southern Pine Co., 116 Ga. 224 (42 S. E. 500), both of which cases grew out of the same transaction. An examination of the facts there involved will show that they were entirely different from those in the present case. In them there was no question of lease and sublease or assignment of a lease; none as to the propriety of dismembering a railroad and tearing up a part of its track on failure to pay rental for rails, or as to what should be the proper judgment or decree in such a situation; no question of making a person in possession of property sought to be recovered, and refusing to deliver it, a party defendant; and no effort to enforce a conveyance given as security for a debt, and covering several miles of a right of way in possession of a railroad company and used by it in the conduct of its business. They involved personal contracts between a firm and.a railroad company as to erecting a sawmill and shipping lumber over the railroad, a sale by such firm to another, with an agreement *414on the part of the purchaser to erect the mill and ship the lumber over the railroad, and a sale by such purchaser to another, with a like agreement between them.
Judgment reversed.
All the Justices concur, except Fish, G. J., absent.