The opinion of the court was delivered by
Taft, J.I. The first question made is whether the witnesses, Royce and Smith, were competent. In making the contract with the intestate they acted as agents of the railroad company, and the plaintiffs claim that as Kittell is dead the agents of the company who made the contract with him should be excluded as witnesses by force of R. L. ss. 1002-3. Those sections apply to parties only, and do not exclude a mere agent or officer through whom a party negotiates. Poquet v. North Hero, 44 Vt. 91; Cheney v. Pierce, 38 Vt. 515.
II. The railroad company entered upon the land by consent of the owner, under an arrangement, that it might build the road, and when built, if they could not agree upon the damages, the same should be ascertained by leaving it out or having them fixed by commissioners.
The damages were subsequently appraised by commissioners. The defendants at the hearing before the master objected to the admission of the award in evidence upon the ground that it was not made within two years from the time of such entry. There is no limit fixed by the statute within which the commissioners may be called out. No action can be brought by the land owner, under s. 3371 R. L., until the expiration of two years from the time of the entry; but commissioners may be appointed at any time while the damages remain unliquidated. It would be rank *107injustice to hold that the land owner was deprived of pay for his land because its value had not been appraised, when he had no power to institute proceedings for an appraisal. Such proceedings can be instituted only “ upon application for that purpose- by the corporation.”
Neither was it a tenable objection that there was no record or other legitimate evidence .of the appointment of the commissioners. The law does not require such record, and the loss of the commission being shown, parol evidence was proper to establish the fact of the appointment.
III. The Statute of Limitations is insisted upon as a defence to this suit, and s. 3371 E. L. is cited to sustain such claim. This is not an action brought under that section. The award was made on the sixth of December, 1875, and this suit was brought in the year 1880, and is clearly not barred by the statute.
IY. The important question in this case is, what effect did the arrangement made by the railroad company and the orators’ intestate have upon the latter’s rights as land owner. The report shows that Kittell consented to the entry upon hi's land and to the construction of the road, under an arrangement as to the mode of ascertaining his damages, and subsequently being unable to agree upon the amount, the same were determined by commissioners, and remain unpaid. The defendants contend, having entered upon the land by consent of the owner, that he had no rights remaining in the land itself, but that the road became his debtor for its value at the time, and cannot now be disturbed in their possession, and that the mortgagees of the land hold it free from all claim whatever of the original owner. To give effect to this claim we must hold that consent to an entry upon land for the purpose of constructing a railroad, and without payment of its value, and without conveyance of it by the owner, with an agreement as to a future adjustment of damages, constitutes a complete contract of sale, the same as though the land had been conveyed by the owner and paid for. We think there is no authority for such holding. Unless by clear and express contract the land *108owner should not be deprived of compensation, and the right to retain a lien upon the land taken for its payment.
The cases of McAuley v. The Western Vt. R. R. Co. et al., 33 Vt. 311, and Knapp et al. v. McAuley and others, 39 Vt. 275, are cited by the defendants as sustaining the claim that the orators are not entitled to any equitable relief. They have been so often cited for that purpose that it is well to understand what is decided by them. McAuley brought an action of ejectment against the road, and, whether he could maintain it or not was the question in the first case ; and the latter cause was a bill in equity to enjoin the former.
In the equity suit J udge Barretr, in delivering the opinion of the-court, said: “ We adopt and reassert the doctrine propounded in the case of McAuley v. The Western Vt. R. R. Co. and Clark, 33 Vt. 311, that if the land owner foregoes his right to have his damages ascertained and 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 holds that in those cases whore by consent of the land owner the company enters upon the land and constructs their road without pre-payment of the damages, the owner loses all right and interest in his'land either at law or in equity. We do not understand that the McAuley case propounds any such doctrine and we refer to the case itself to ascertain what was before the court, and what was decided. The facts were shown that McAuley had agreed with the company to receive, in payment for his damages, stock of the company at its- par value; that certificates were issued in his name for the requisite a mount and tendered him, but he refused them, and they were deposited *109with the clerk for his use. Here was an agreement between the parties that the company might enter upon the land and construct their road and pay the owner in stock, which was duly tendered him. The company had performed all that they were required to perform, had taken the land, and in effect paid for it. Having entered upon the land bynousent they were not trespassers, and having tendered payment for it in the manner agreed upon, they were entitled to a specific performance of the contract, and it was well held that neither trespass nor ejectment would lie. But the court say that while the party cannot assert his claim in such a form as to stop the company in the progress of their works and in operating them, that he “ does not, of course, lose his claim or the right to enforce it, in all proper modes. He may possibly have some rights analogous to the vendors lien in England, and here, until the legislature cut it off.” This, although the vendor’s lien has been abolished in this State, recognizes an equitable one upon the land in behalf of the land owner, although he has consented to the entry upon his premises. And the learned Chief Judge Bedeield, who delivered the opinion, in his work on railway cases, suggests a remedy by placing the road in a receiver’s hands until the earnings would pay the land damages. There is nothing therefore in the McAuley case warranting the claim of the defendants.
We, therefore, hold that where a railroad company has entered upon land-and constructed its road without making compensation to the land owner, and such entry and construction wer by the latter’s consent, that ejectment and trespass cannot be maintained; and the same rule should apply where the original entry was without the consent of the land owner in case he stands by and, knowing of the entry and construction, makes no objection to it and permits the road to be used for years. He should, under such circumstances, be held to have acquiesced therein. But the owner should not be deprived of compensation for his land; he is entitled to an “ equivalent in money ” and he ought not to be held estopped from asserting a lien upon the land by such consent, with an accompanying agreement, as to the amount of his *110damages, or by submitting the same to the award of arbritrators. If the transaction between the parties constitutes a contract of sale the land owner should then look to his debtor for payment, and has no. lien unless by express contract.
In the cases under consideration the facts do not warrant us in saying that there was, in either, a contract of sale; all stand upon the law governing the taking of land by virtue of the right of eminent domain.
We do not say that an action at law, under the statute, cannot be maintained against the takers of the land under such circumstances ; but having, as we think, an equitable lien upon the land there is no reason why the owner is not entitled to a remedy in chancery to enforce it. What that remedy should be is for the court to determine. As before stated, it was suggested by the late Chief Judge Redfibld (2 Red. Am. Railw. Cases, 2d ed., 253) that the road could be placed in the hands of receivers until the damages were paid from the earnings. This in most cases would be a needless proceeding; and our courts have adopted an effective, expeditious, and probably a less expensive, method by enjoining the company from using the land until the damages are paid. Reed v. Lamoille Val. R. R. Co., Sup. Court, Fr. Co., Jan. T., 1879; Kendall et al. v. Mis. & Clyde R. R. R. Co. et al., 55 Vt. 438.
Y. In whatever manner the company took the land a record of the proceedings should have been made to complete their title. The record title remained in the original owner, and the land not being paid for, a subsequent vendee was chargeable with notice of the equitable lien resting upon the land, and took it subject to that burden.
The orators are entitled to a decree for the six hundred dollars assessed as damages, with interest since the first day of December, 1870, the date of entry upon the land. The master reports that the defendants, have not constructed the crossings and cattle pass, nor restored the water course, which are mentioned in the commissioners’ award, and that the orators’ damages resulting therefrom to the fourth day of December, 1882, amount to the *111sum of two hundred dollars; and there should be a decree for the payment of that sum with interest from the last named date.
Thq pro forma decree of the Court of Chancery'is reversed, and cause remanded with a mandate that a decree be entered for the orators in accordance with the foregoing views;'and for the reasons given herein, the cases of Hart v. the same defendants, and Bugbee v. St. Johnsbury & L. C. R. R. Co., and Dean v. the hitter, are disposed of in like manner.