The opinion of the court was delivered by
Barrett, J. .The bill in this case asks for a perpetual injunction upon the action of ejectment which is pending in the county court in favor of said McAuley v. The Western Vt. R. R. Co. and Clark.
The case before us embodies and presents the entire subject matter of that action at law ; and, in the relation the orators sustain to that subject matter, it is conceded that they have properly resorted to the court of chancery for the adjudication and final determination of the litigation.
We adopt and reassert the doctrine propounded in the case of McAuley v. The Western Vt. R. R. Co. and Clarke, 33 Vt. 311, that if the land owner foregoes his right to have his damages ascertained *288and paid before the making of the road over his land is commenced, and, under some arrangement as to the subsequent ascertainment and payment of his damages, consents that the work may proceed before the damages are to be ascertained and paid, he cannot thereafter interpose and prevent the work in progress, or prevent the use of the road ; nor, unless, at least, there is some special and binding contract to that effect, can he assert a lien on the land taken and occupied for the road, in the nature of a mortgage for the purchase money, or value of the land.
This is as far as we are called upon in the px’esent case to discuss1 or pronounce the law, in the view that we take of the evidence, and of the conclusions of fact that we educe from it.
McAuley agreed in writing to take his damages- in corporation! stock. It was-obviously the understanding of all concerned at the time he signed that agreement, that the ascertainment and payment of' his land damages Were not to he made before the work on the road through his land was to begin.
The evidence in behalf of the orators, standing by itself,, would leave no doubt that the work of making the road through, the defendant's land, was commenced and proceeded with for a considerable time with his consent ^ and that, when he first forbid the workmen to proceed with the work, it was not for the reason that he had not consented to the work being begun, and thus far proseeuted •, nor because he had been misled by Mr. Deming into the signing of the agreement to take his land damages in stock nor because he had not got his pay for his damages ;. but it was because the Irishmen were about'to spoil a valuable marble boulder that he wished and'claimed the right to save and work up for his own benefit.
The defendant claims and testifies that he was misled by Mr. Deming’s representations and conduct into signing that agreement j and that, as soon as he discovered the misadventure, he repudiated the agreement, and forbid to Mr. Deming anything being done on his land till his damages should be ascertained and paid.
The precise point of the alleged imposition is, that the road was to run the west side of a certain elm tree, instead of the east, as an indispensible condition to his agreeing to take his land damages in *289stock ; tlmt the subject was negotiated between him and Mr. Deming on this basis; that Mr. Deming sent him word that the road bad been located in conformity to bis requirement; that he signed the. agreement fully relying on that representation, not knowing that at that time the location of the road had been changed from the west to the east side of the elm tree ; and that Mr. Deming withheld from him, at the time he signed the paper, information of such change of location. Unless these matters be found from the evidence substantially as the defendant claims them to be, his defence cannot prevail f for, unless the matter of fraud practiced on him be established, the other attendant and related facts are ineffective. The written contract- must stand, unless avoided for the alleged fraud ; and if it does stand, we have no difficulty in finding that the making of the road properly proceeded, with the consent of the defendant.
# X? -t- 3?
( The analysis and discussion of the evidence is omitted by order of the judge.)
The contradiction the defendant encounters in Hill; the disparity between his account and that of Canfield and Cochrane as to material facts ; the fact, shown by the evidence, that, aside from his own testimony, he never claimed to any body that he had been deceived as to the location of the road as bearing on his agreement to take his pay of land damages in stock ; the fact that, by his own testimony, he does not appear to have made that the ground of forbidding the work on his land to proceed; the character of some parts of his testimony already commented upon ; and the singularity of some of the facts testified by him in their relations and combinations, lead us not to find that he was procured to sign said agreement by any falsehood or fraudulent withholding of facts by Mr. Deming as to the location of the road.
Our belief, from all that appears in the case is, that the only point made by the defendant or condition talked about, upon which he would agree to take his land damages in stock, was, that the railroad should be located through the west village instead of East Arlington ; that the word sent by Mr. Deming through Mr. Brown meant this, and the defendant so understood it, and, with this understanding. *290signed said agreement. This places the defendant on the same ground and in the same position as his neighbors who signed the same agreement; this preserves a life-long good character to Mr. Deming ; this saves Mr. Hall from the charge of knavery in the transaction, and of perjury as a witness ; this accords truth instead of falsehood to Mr. Harmon and Mr. Cochrane ; this explains and renders consistent the conduct of the defendant as to the grounds and reasons for objecting to the work proceeding on his land, and in never to any body living asserting or pretending any deception or fraud in the location of the road till'' after the appraisal of the damages ; this explains the defendant’s answer to the 17th interrogatory, and leaves only the testimony of the defendant in other respects and that of his brother-in-law, John B. Lathrop to be reconciled with the other evidence in the case, or to be disregarded as unreliable or incredible, so far as it cannot be reconciled.
In the view we take of the law as applicable to the facts shown by the evidence, it becomes needless to consider rights that might appertain to, and be asserted by, the present orators, by reason of the relation they hold as mortgagees in trust, under a forcelosed and unredeemed mortgage. It is sufficient for the purposes of this case to permit them to stand upon the same rights as might be asserted by the corporation if the mortgage had not intervened. We hold that Mr. McAuley became obligated by valid agreement to take his land damages in stock, and that, as concurrent with said agreement, it was understood between himself and the railroad company that the making of the road through his land might be prosecuted before the appraisal and payment of the damages were made ; that at some convenient time thereafter said damages were to be duly appraised in the mode prescribed in the charter and statutes ; and when so appraised the amount was to be paid to him in the stock of the corporation ; that in pursuance of said agreement and understanding, and with the consent of the defendant, McAuley, the making of the road through his land was commenced, prosecuted and completed, and that he became thereby entitled and bound to have his pay in said stock, and was not, and is not, entitled to any lien or claim upon the road way', as the same has been surveyed and located through his land as security *291for, or as a means of enforcing and realizing, the payment of said damages.
The decree of the chancellor is reversed, and the case is remanded to the court of chancery, with a mandate that by decree of said court the said defendant, McAuley, be perpetually enjoined from the further prosecution of said action of ejectment, and from all further interference with or occupation of said land, and from all disturbance of the complainants, and those holding or entitled under them, in their possession and occupation thereof for the purposes of said road, on account of any right or claim for land damages accrued by reason of the location, construction and use of said railroad through the land of said McAuley. And that the orators recover their costs of this suit, to be duly taxed and allowed against the said McAuley.