concurring: The defendant is using and claiming a right of way about a mile in length, under a deed executed by the ancestor of the plaintiff, and under- whom the plaintiff claims, and the sole consideration for the deed, as expressed therein, is the promise and agreement that trains running along this right of way shall, upon notice, stop at a platform erected 'and maintained by the owner of the land, and it would seem to be unjust to permit the defendant to retain the right of way and at the same time repudiate the agreement, which it proposes to do.
I concur in the opinion of the Court, that the agreement is valid and enforcible in a court of equity, because it is not exclusive and does not limit the power of the defendant to locate and relocate depots; and I agree fully in the opinion expressed by Mr. Justice Brown, that “it seems to be universally well settled that contracts undertaking to obligate:a railroad company to establish-its depot exclusively at a particular point are void as against public policy.” (The italics are mine.) ,
The case of R. R. v. Sumner, 106 Ind., 59, classifies contracts of this character and clearly points out the distinction between those that are valid and those that are invalid. The Court says:
“Covenants of the character in question, so far as they have been the subject of judicial interpretation, are of three classes:
“1. There are those which stipulate for the location of stations or depots at particular places, and which prohibit the location of others - within prescribed limits. All such as contain restrictive stipulations by which the railway company undertakes to prohibit itself from thereafter erecting other station-houses or depots within prescribed limits are uniformly held to be void, as being violative of public policy. Railroad corporations are regarded as public agencies, owing duties to the public *302generally. Accordingly, they can make no pontract which shall • prohibit them from serving the public as the future demands of business or concentration of population may require. . Williamson v. C. R. I. and P. R. R. Co., 53 Iowa, 126 (36 Am. Rep., 206); St. Louis, etc., R. R. Co. v. Mathers, 104 Ill., 257; St. Louis, etc., R. R. Co. v. Mathers, 71 Ill., 592 (22 Am. Rep., 122); St. Joseph, etc., R. R. Co. v. Ryan, 11 Kan., 602 (15 Am. Rep., 357).
“2. Another class consists of those cases in which a,n officer or other person supposed to be influential with a railway company, for a consideration promised him, agrees to secure the location of a station, depot, or railway at a particular place. A conspicuous case in this class is Fuller v. Dame, 18 Pick., 472. All such contracts are void as against public policy. Bestor v. Wathen, 60 Ill., 138; Linder v. Carpenter, 62 Ill., 309.
“3. Still another class is that to which the case under consideration is allied. Such are the cases in which an agreement has been made, between an individual and a railway corporation, for the location of a station or depot at a particular place, in consideration of a donation of money or property to the corporation, without any restriction or prohibition against any other location. No case has been brought to our notice in which this question was involved, and the decision of which was not controlled by other considerations, which condemns such an agreement. On the contrary, it has been held that an agreement to pay a railway company a stipulated sum in consideration that it would locate its route at a particular place is valid, and may be enforced. Cumberland R. R. Co. v. Baab, 9 Watts, 458; First National Bank v. Hendrue, 49 Iowa, 302 (3.1 Am. Rep., 153). So a conditional subscription of stock is valid. New Albany, etc., R. R. Co. v. McCormick, 10 Ind., 499; Jewett v. Lawrenceburgh, etc., R. R. Co., 10 Ind., 539. A voluntary grant to a railroad, on condition that it would locate its route and establish a depot at a certain place, was sustained as-not being in contravention of public policy. McClure v. Mo. Riv., etc., R. R. Co., 9 Kan., 373.”
*303Tbe quotation by Mr. Justice Walker in Edwards v. Goldsboro, 141 N. C., 70, from People v. R. R., 130 Ill., 184, “that contracts materially limiting-their power to locate and relocate depots are against public policy, and therefore void,” condemns contracts of the first class, and the case of Fuller v. Dame, 35 Mass., 473, belongs to the second class, as in this last case the action was on a note given to Fuller, who was one of the proprietors of the railroad, in consideration of his promise to induce the railroad to establish a depot at a particular place.
In R. R. v. State, 31 Fla., 508, there was no contract, and the action was to compel the establishment of a depot for public convenience; in Wilson v. R. R., 99 F. R., 645, the contract was to establish a depot, and that no other should .be established within a certain distance; in Holliday v. Patterson, 5 Ore., 177, the contract was to pay the plaintiff, who owned a controlling-interest in the road and was a director, certain sums if a different and more expensive, route should be adopted than the one surveyed; in R. R. v. Mathers, 71 Ill., 598, the contract required the establishment of a depot at Ashland, and provided that no other depot should be established within 3 miles of that place; in R. R. v. Seely, 45 Mo., 222, the contract was to establish a depot on several considerations, and among others,, a conveyance of lands for speculative purposes; in R. R. v. People, 132 Ill., 183, there was no contract, and the action was to prevent a change of depot; in Marsh v. R. R., 64 Ill., 415, the contract was to locate at a certain place and at no other in town; in R. R. v. Mathers, 104 Ill., 257, the-contract was to locate a depot and no other within 3 miles.
In these cases, where there were contracts, they were held invalid because they' contained limitations upon the power to establish other depots, or on account of speculative provisions or inducements to officers of the railroads to have routes or depots established at certain places. The contract before us contains no such stipulation, and such contracts have almost without exception been held to be valid and enforcible. Bank v. Ayers, 12 Wis., 517; Gray v. R. R., 189 Ill., 408; R. R. v. Miller, 31 Mo., 20; Chamberlain v. R. R., 15 Ohio St., 248; Harris *304v. Roberts, 12 Neb., 634; R. R. v. Robaras, 60 Tex., 549; R. R. v. Dowson, 62 Tex., 260; Matterson v. R. R., 74 Pa. St., 215; R. R. v. Parks, 86 Tenn., 229; Herzog v. R. R. (Cal.), 17 L. R. A. (N. S.); Griswold v. R. R., 12 N. D., 441; R. R. v. Camp, 130 Ga., 1; Lyman v. R. R., 190 Ill., 321; R. R. v. Sumner, 106 Ind., 59; Gilmer v. R. R., 79 Ala., 572; Whalen v. R. R., 108 Ind., 11.
In the note to the case from Georgia, reported in 14 A. and E. Ann- Oases, 441, the cases are collected and classified, and the editor says: “(1) It is a well settled rule that a contract by a railroad to locate its station at a certain point or place or within certain limits, which does not prohibit 0r restrict the location of any other station, is not contrary to public policy, and is valid and enforcible. The rule stated above is so well settled that in many cases the validity of such contracts has not been questioned, but has apparently been conceded by the litigants and recognized by the courts. See the following cases: . . . (2) Contracts that materially limit the power of a railroad company to locate and relocate its stations are against public policy, and therefore void. Accordingly, in all cases where a railroad company agrees with an individual to preclude itself from establishing or locating depots or stations on its roads at any other than certain localities, or within certain prescribed limits, such agreements are void. (3) Another class of void agreements respecting the location of stations a're those whereby a private individual or an officer or agent of a railroad company, under an assumption of influence with that corporation, agrees for a consideration to secure from the corporation the location of stations or depots in a particular locality.”
The next question presented'is,, whether, such contracts can be enforced in a court of equity by specific performance. If the contract belongs to the first or second class mentioned in the Indiana case, it is void, and a court of equity cannot aid it; but if it belongs to the third class, performance will be. enforced. Lytton (Sir Edward Bulwer) v. R. R., 69 Eng. R. Reprint, 836; Herzog v. R. R., 17 L. R. A. (N. S.), 429; Taylor v. R. R., 54 *305Fla., 638; McCowen v. Pew, 153 Cal., 141; Lawrence v. R. R., 36 Hun., 474, approved in R. R. v. R. R., 144 N. Y., 153.
In Taylor v. R. R., supra, tbe contract, was to maintain a spur track and depot, and to stop regular passenger trains at a certain point in consideration of tbe conveyance of a right of way, and it was beld tbat tbe plaintiff was entitled to specific performance; tbe Court, speaking through Mr. Justice Whitfield, saying: “It is tbe duty of a common carrier railroad corporation to have regard for tbe rights of tbe public in tbe service it engages to perform under tbe franchises tbe State permits it to .use primarily for tbe benefit of tbe public. This requirement embraces tbe duty to render a service adequate to meet all tbe just requirements of tbe public, including reasonable dispatch, convenience, regularity, and promptness in tbe transportation of passengers, provision and maintenance of adequate depot facilities suited to tbe business and convenience of tbe communities along, tbe ¡road, and tbe performance of tbe duties and tbe rendering of the- service due to tbe public, without unjust discriminations of any character as to persons, localities, or conditions. This duty, however, does not relieve tbe corporation from its contract obligations to individuals when an observance of tbe obligations does not materially and injuriously affect tbe rights of tbe public. It is tbe duty of tbe corporation to observe tbe obligation of its contracts with individuals, tbat are made in good faith, and' tbat do not necessarily, directly, and materially affect injuriously substantial rights of tbe public, until tbe corporation is relieved from such contracts by due course of law. . . ! Tbe defendant appears to have asked for and received in kind tbe property and advantages from tbe complainants under tbe contract, and promised in consideration thereof to perform its stated undertakings. Under tbe facts alleged it is prima facie equitable that tbe complainants should have tbe benefit of a performance by tbe defendant of tbe agreement on its part in tbe manner and to tbe extent agreed on, at least in tbe absence of a proper showing of superior rights of tbe public against the corporation as a common carrier. . . . "While *306equity will not ordinarily decree the specific performance of contracts requiring continuous acts involving skill, judgment, and technical knowledge, contracts relating to the operation of railroads have been specifically enforced in a number of cases. Where a railroad company, in consideration of the conveyance to it of land, makes a reasonable agreement to perform, in return for such conveyance, certain service that is fairly within its corporate powers and purposes and that is not essentially inconsistent with the company’s duty to the general public, such agreement, if not otherwise illegal or unenforcible, will be specifically enforced in equity upon proper allegations and proofs.”
This case from Florida is reported in 14 A. and E. Ann. Oases, 472, and in the note the authorities are collected and the comment is made that, “Although there are but few cases wherein specific performance of a contract by a railroad to erect a depot or station has been actually decreed, it is generally recognized that' a contract between a railroad company and a landowner whereby the landowner conveys certain land in consideration of an agreement by the railroad company to erect and maintain a suitable depot may be 'enforced in equity.”
The case of R. R. v. Marshall, 136 U. S., 393, is not in conflict with these authorities. In that ease the city of Marshall conveyed certain land and other property to the railroad in consideration of an agreement to make Marshall a terminus of the road and to locate and maintain its machine and'car shops there, and the action was brought to prevent the removal of the shops after their erection. The city of Marshall contended that the contract required the railroad to maintain the shops permanently, and that it could not remove them, although required by the public interest; and it was in reference to this contention that the Court said: “But we are further of opinion that, if the contract is to be construed as the appellant insists it should be construed, it is not one to be enforced in equity,” and that the remedy for the violation of such a contract is an action at law to recover damages.
In Conger v. R. R., 120 N. Y., 32, spécifíc performance was denied, but on the peculiar facts .of the case, the Court saying *307in explanation of its judgment and in recognition of the right to the equity in a"proper case: “As we have seen, the Long Clove .gorge is located upon the side of a steep mountain, in a sparsely settled district, and is approached by a steep grade, and that a passenger station with an approach thereat could be constructed only at a considerable expense. These are reasons worthy of consideration; but if there were no others, the trial court might not have deemed them sufficient to refuse specific performance. But they are followed by another, which gives additional force and weight, and that is that public travel will be delayed by the stoppage of trains, and that the public convenience will not be promoted.”
In Carp v. R. R., 7 Ont., 332, the right to specific performance was also denied on account of peculiar conditions.
If the contract is valid and enforeible in equity, can the plaintiff, who holds under the original grantor, maintain this action? And this depends on whether the agreement-or covenant is personal or one running with land.
In Gilmer v. R. R., 79 Ala., 569, it was held that “A covenant by a railroad corporation, in consideration of a grant of the right of way through plaintiff’s lands 50 feet wide on each side of the track, to erect a ‘flag station’ at a point convenient to his house, to permit him to cultivate all the land embraced in the grant which was not needed for use by the railroad company, and if a depot was built, not to permit the sale of ardent spirits on the premises, runs with the land,” and in Whalen v. R. R., 108 Ind., 11, in which the plaintiff was not the original grantor, that covenants (1) to construct and maintain a turn-out and siding at a certain place, (2) to take up and set down at said siding by its passenger ears all persons going to and from the farm, were covenants running with the land; and I think there is no authority in' this State opposed to this view, and I have found none elsewhere.
This seems to me to be in accord with reason and right.
The defendant is in the enjoyment of a right of way or easement across the land of the plaintiff, the title to the fee being in the plaintiff. This easement can be conveyed from time to *308time, and rests as a burden on tbe land in tbe bands of successive, owners, and tbe same deed wbicb passes tbe easement contains tbe .agreement or promise wbicb is its price.
Both go band in band — tbe easement and tbe promise — and are continuous in tbeir nature.
I am, therefore, of opinion that tbe contract is valid and enforcible in equity, and that tbe plaintiff may maintain this action, but that bis right is subject to tbe proper performance of tbe duties tbe defendant owes to tbe public. How far this idea of private rights yielding to public necessity, frequently without compensation, ought to go, is a question of serious moment, but it pervades all departments of the law. Tbe tendency is to destroy individuality, and to deal with men en masse, wbicb may not conduce to tbe public good.
I do not express an opinion as to tbe right to recover damages in that event, as tbe question is not before us.