dissenting. — I think this case should be reversed. The defendant, it is true, entered upon the land without obtaining a right of way.
But the damages having been assessed defendant appealed, and afterwards by agreement, judgment was entered in favor of plaintiff for the amount assessed, the judgment to bear interest at ten per cent, and execution was to be stayed for two years. The answer avers as follows: “ It was then agreed and understood between them, that defendant was to have said right of way, as its own, and its right of possession and occupancy was recognized thereunder.”
Plaintiff demurred to the answer, and the demurrer was' sustained. I think it should have been overruled.
In McAnlay v. Western R. R. Co., 33 Vt., 321, Eedfield, J., said: “ It is undoubtedly true that according to our general railroad statutes and special charters in this state, the payment or deposit of the amount of land damages assessed or agreed, is a condition precedent to the .vesting of the title or of any right to the company to construct their road, and if they proceed in their construction without this, they ar.e trespassers, and this has been repeatedly so held by this court.
This may have, led to the misapprehension in the present *384case. Rut it is certainly a very serious misapprehension. In these great public works, the shortest period of clear acquiescence, so as fairly to lead the company to infer, that the party intends to waive his claim for present payment, will be held to conclude the right to assert the claim in any such form, as to stop the company in the progress of their works, and especially to stop the running of the road, after it has been put in operation, whereby the-public acquire important interest in its continuance.”
The foregoing doctrine as announced by Judge Redfield, has not, so far as I am aware, ever been controverted in this state or elsewhere.'
The cases cited in the majority opinion are, to my mind, in harmony with it, and clearly distinguishable from the present case.