dissenting: I am compelled to enter my dissent to tbe opinion of. tbe Court because in my judgment it is contrary-to tbe decisions of this Court, as well as against the overwhelming weight of authority.
This action is brought to compel specific performance of a contract made 31 March, 1859, between James M. Parrott, tbe plaintiff’s ancestor, and tbe Atlantic and North Carolina Railway Company, tbe material part of wbicb contract is as follows:
“And in tbe second place, tbe said railroad company covenants and agrees with said James M. Parrott, bis heirs, .executors, and administrators, that tbe passenger trains run, and hereafter to be run, on said road shall, on due' notice being given, stop at tbe platform to be erected according to the subsequent terms of this agreement, for tbe purpose of landing and of reception of passengers and baggage, and that whatever freight may be hereafter directed and destined to said place where said platform is to.be erected any freight train shall stop at said platform for the delivery of tbe same, and tbe said freight trains shall also, on due notice being given, stop ,at said platform for .the reception of such freight as may be there ready for transportation.”
*309The motion to nonsuit should be granted.
1. The contract is against public policy and void.
In Edwards v. Goldsboro, 141 N. C., 70, this Court said: “Tbe question bas frequently arisen in the establishment of railroad depots. Railway companies are gwcm-public.corporations, and it has been said that the public have an interest in the location of their depots, the public convenience and accommodation being involved. It is in recognition of the paramount duty of railway companies to establish and maintain their depots at such points and in such manner as to subserve the public necessities and convenience, that it has been held by all courts, with very few exceptions, that contracts materially limiting their power to locate and relocate their depots' are against the public policy, and therefore void.
“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. Cases and text-books to the same effect can be cited numerously. We give only a few of them: R. R. v. State, 31 Fla., 508; R. R. v. Ryan, 11 Kan., 602; R. R. v. Seeley, 45 Mo., 212; R. R. v. People, 132 Ill., 559; R. R. v. Marshall, 136 U. S. Supreme Court, 393; R. R. v. Louisville, 11 Ky., 417; Holladay v. Patterson, 5 Oregon, 177; Marsh v. R. R., 64 Ill., 414; Greenhood on Public Policy, 319 ; 2 Beach on Contracts, sec. 1517.”
This opinion of Mr. Justice Walker, delivered as late as 1906, was approved by a unanimous Court, and is cited and followed in subsequent eases: Solomon v. Sewerage Co., 142 N. C., 449; Smathers v. Insurance Co., 151 N. C., 103; Floyd v. R. R., 151 N. C., 540.
The validity and feasibility of such contracts should not be submitted to a jury. “When a contract belongs to a class which is reprobated by public policy, it will be declared illegal, though in that particular instance no actual injury may have resulted to the public, as the test is the evil ‘tendency of the contract, and not the actual result.” 15 A. and E., 934; Edwards v. Goldsboro, supra; Glenn v. Commissioners, 139 N. C., 412; Bridge Co. v. Commissioners, 81 N. C., 491.
*310In addition to the above eases, see People v. O. and A. R. R., 130 Ill., a very strong opinion fully sustaining this opinion and approved in Edwards v. Goldsboro, supra. R. R. v. Mathers, 11 Ill., 592, and 104 Ill., 257; Taylor on Corporations, sec. 162, and authorities cited.
In Woodley v. Telephone Co., 163 N. C., 284, this Court says: “Our decisions are to the effect that these public-service corporations, including telephone and telegraph companies, take and hold their charters subject to the obligations of rendering service at uniform and reasonable rates and without discrimination, and, further, that they have no right to make or to continue in the performance of a contract which renders them unable to perform the duties imposed upon them by their charter, and whether such contract is evidenced by municipal ordinance or by agreement between the parties.”
In Clark on Contracts, on page 424, the author says: “Railroad and other common carriers, for instance, are regarded to' some extent as public servants, and it is contrary to public policy for them to make any agreement whereby they may be hindered in serving the public. For this reason, most courts have refused to uphold subscriptions or other contracts with railroad companies under which they bind themselves to build their road along a particular route or to locate their station or depot at a particular point or not at a particular point.”
This subject was fully considered by Chief Justice Shaw in Fuller v. Dame, 35 Mass., 473. It was an action of assumpsit on a note given in consideration of an agreement to locate a railroad station on certain land of payee, and although the station had- been erected, the Court held that the note was not en-foreible, because against public policy.
This is a leading case and has been almost universally approved and followed. In that case the Court says:
“The work is a public work, and the public accommodation is the ultimate objection. In doing this, a confidence was reposed in them, acting as agents for the public — a confidence which it seems could be safely so reposed, when it is considered that the interests of the corporation as a company of passenger and *311freight carriers, for the profit was identical with the interests of those who were to be carried — that is, the public interest.
“This confidence, however, could only be safely so reposed under the belief that all of the directors and members of the company should exercise their best and unbiased judgment upon the question of such fitness without being influenced by distinct and extraneous interests, having no connection with the accommodation of the public or the interests of the company.
■ “Any attempt, therefore, to create and bring into efficient operation such undue influence has all the injurious effects of a fraud upon the public, by causing a question which ought to be decided with a sole and single regard to the public interests, to be affected and controlled by considerations having no regard to such interests. . . . It is obvious that if one large landholder may make a valid conditional promise to pay a large sum of money to a stockholder, or influential citizen, on condition that a work of great public improvement may be so fixed as to enhance the value of his estate, all other great landholders may make like promises, on similar conditions, and great public works, which should be conducted with a view of public interest, and to the just rights of those who make advances for the public benefits, would be in danger of being overlooked and sacrificed in a mercenary conflict of separate local and private interests.”
In 1859, when this contract was made' the General Assembly had the same authority it now has in the regulation and control of railroad corporations, but it had not asserted it to the same extent.
Now the statute law vests in the Corporation Commission the power to require railroads to locate stations, etc., with a proviso that the Commission shall not require any railroad company to establish any station nearer to another station than 5 miles. Revisal, sec. 1091.
The evidence shows that Parrott’s Avenue is within 2 miles of the station of Falling Creek, established in 1870; 4 miles of Kinston, and 2 miles of a station called Hines Junction. The purpose of this limitation upon the power of the Commission is *312for the benefit of the traveling'public, wbo are interested,in the speed of the trains and the quick termination of their journeys. Whether or-not the railroad company can make this particular stop without detriment to the public service is not a matter a jury can pass on. It is a matter of legislative regulation through the established governmental agency.
If the railroad company has made other contracts like this, the issue may be decided in different ways by different juries.
The safest and wisest course is to follow our previous decisions and the overwhelming weight of authority, and declare such contracts void.
2d. The action is brought to compel specific performance, and regardless of whether the contract is valid in law, a court of equity should not decree specific performance, as the plaintiffs have an adequate remedy at law, and should therefore, seek their redress, if any, by an action at law for damages; and no time being fixed, the contract is indefinite, and if perpetual, a court of equity would be assuming an endless duty, inappropriate to-its function. Wilson v. Winchester and R. R. Co., 99 Fed., 642; Marsh & Fairbury v. P. and W. R. R. Co., 64 Ill., 414; Conger v. New York W. S. and R. R. Co., 120 N. Y., 29; R. R. v. State of Florida, 20 L. R. R. (O. S.), 419; Mobile and Ohio Ry. Co. v. People, 132 Ill., 559; Holladay v. Patterson, 5 Oregon, 177; Clark on Contracts, sec. 292; BisphamVEquity (6th Ed.), secs. 375-77; Fry on Specific Performance (3d Ed.), secs. 68-9; Soloman v. Sewerage Co., 142 N. C., 439.
Texas and Pacific Ry. v. City of Marshall, 136 U. S., 393, is a case in which the-Supreme Court of the United States refused to decree specific performance of a contract very much like this. In the opinion Mr. Justice Miller says:
“But we are further of opinion that if the contract is to be construed as the appellant insists, it is not one to be enforced in equity. We have already shown that to decree the specific enforcement of this contract is to impose upon the company aji obligation without 'limit of time, to keep its principal office of business at the city of Marshall, to keep its main machine shops there, etc., etc., although the exigencies of railroad business in *313Texas may imperatively demand that these establishments be removed to places other than the city of Marshall, and that this would be also required by the convenience of the public.
“It appears to us that if the city of Marshall has under such a contract a remedy for its violation, it is much more consonant to justice that the injury suffered by the city should be compensated by a single judgment in an action at law, and the railroad placed at liberty to follow .the course which its best interests and those of the public demand. Nor do we see any substantial difficulty in ascertaining this compensation.
“Though there may not be any rule by which these damages can be estimated with precision, this is not a conclusive objection against a resort to a court of law, for it is very well known that in all judicial proceedings for injuries inflicted by one party on another, whether arising out of tort or out of contract, the relief given by way of damages is never the exact sum which compensates for the injury done, but, with all the rules which have been adopted for the measurement of damages, the relief is only approximately perfect.”
And in same case, on page 390, the Court -says:
“If the court had rendered a decree restoring all the offices and machinery and appurtenances of the road which have been removed from Marshall to other places, it must necessarily superintend the execution of the decree. It must be making constant inquiry as to whether every one of the subjects of the contracts which have been removed has been restored.
“It must consider whether this has been done perfectly and in good faith, or only in an evasive manner. It must be liable to ‘perpetual calls in the future for like enforcement of the contract’, and it assumes, in this way, an endless duty, inappropriate to the functions of the court, which is as ill calculated to do this a.s it is to supervise and enforce a contract for building a house or building a railroad, both of which have in this country been declared to be1 outside of its proper functions, and not within its powers of specific performance.”
In Soloman v. Sewerage Co., 142 N. C., 448, our Court holds that the plaintiff was not entitled to specific performance, as *314there was no time fixed for the duration of the contract, and on page 448 says: “The difficulties in attempting to make or enforce a decree in suck a case are pointed out in Texas, etc., R. R. v. Marshall, 136 U. S., 393.” See, also, Fry on Spec. Performance, sec. 286; Waterman Spec. Perf., 196; Ten Eyck v. Manning, 52 N. J. Eq., 47; Marble Co. v. Ripley, 77 U. S., 339.
It is useless to multiply authorities.* The courts appear to be .unanimous that equity will not decree specific performance of a contract of this kind, but will leave the party to his remedy at law.
3d. The contract has no fixed duration, and does not continue forever. It has been fully complied with by the stopping of trains during the lifetime of James M. Parrott, and after his death until 1885.
The contract passed on by the Supreme Court of the United States in the City of Marshall case had no limit, and that Court said in reference to it: “It appears to us so far, from this, that the contract on the part of the railroad company is satisfied and performed when it establishes and keeps a depot, and -sets in operation, car works and machine shojis, and keeps them going for eight years, and until the interests of the railroad company and the public demand the removal of some or all of these subjects of the contract to some other place.”
In R. R. v. Scott, 37 L. R. A. (O. S.), 94, the Court had under consideration a contract like this, and said: “It cannot be true that an agreement on the part of a railway company to establish» a station at a particular point is an agreement to keep it there forever. It must be that such agreement is made subject to the general exigencies of business, the public interests, and to the change, modification, and growth of transportation routes, as these may affect the requirements of the railway company’s business. The contract having this limitation, we think that the establishment of a railway station, and its maintenance, to the full extent expected or claimed, for thirty years, is, under all the circumstances, a substantial and sufficient compliance with the terms of the contract relied on here. So that, viewing this case from either standpoint, assuming the contract *315to be valid or invalid, we are satisfied that no cause of action is shown, against the railway company.” R. R. v. Florida, 20 L. R. A., 419; Wilson v. Ry. Co., 99 Fed., 642.
4th. Another reason why specific performance should not be decreed is that the plaintiffs and those under whom they claim have been guilty of gross laches.
The evidence shows that the platform, which is required by the contract to be kept up by James M. Parrott, was abandoned prior to 1885 and never rebuilt, and the evidence fails to disclose that -the defendants’ trains recognized the place as a flag station or stopped there from 1885 to the present date. Under such circumstances, the contract is deemed to have been abandoned.
Those who unduly sleep on their rights need not appeal to equity for aid. Vigilantibus et non dormientibus jura sub-veniunt. Bispham Eq., 376.
5th. The paper-writing sued on is a personal contract with James II. Parrott, and is not a covenant running with the land. Therefore the action cannot be maintained by Parrott’s heirs at law, but, if at all,- only by his administrator for damages.
The obligations contained in the agreement rest only in personal covenant, and are entirely extinguished by a sale of the land or by the death of Parrott. There can be no room for doubt that the parties did not intend to create a burden or servitude upon the land tq be borne by it for all time. The contract does not operate as a grant, and creates no easement or' burden upon the land which the railroad company can enforce.
If the owners of the land refuse or neglect to keep up the platform, as they have done, the defendants cannot compel them to do so.
In order that a covenant may run with land, that is, that its benefit or obligation may pass with the ownership, it must respect the thing granted or demised, and the act covenanted to be done must concern the land or estate conveyed. 11 Cyc., 1080.
• “If a man covenants for himself and his assigns, yet if the thing to be done be merely collateral to the land, and does not *316concern the thing demised in any sort, the assignee shall not be charged.” Spencer's case, 1 Smith L. C.; Nesbit v. Nesbit, 1 N. C., 494; Norfleet v. Cromwell, 64 N. C., 12.
It-seems to be clear that the agreement upon which this action is based was a personal contract upon the part of James II. Parrott, made for his personal convenience, and that it created no burden upon the land, but was collateral to it.