On the Merits.
It appears that, on August 19,1882, the plaintiff granted, bargained and sold to the company a right of way, 100 feet broad, 50 feet on each side of the centre of a railroad to be constructed by defendant, on such line as the company might thereafter adopt as a permanent location for its road — in consideration of the benefits and advantages to be derived from the construction of the road.
The concession was made with the understanding that, should the railroad not be built within eighteen months from date of agreement, the contract shall be null and void.
This suit is brought on the assumption that the condition of building, within eighteen months, not having been complied with, tiie contract is null and void and therefore that the plaintiff is entitled to the value of the lands taken and to the damage done by the company.
There is no averment that the corporation was put in default.
The evidence shows that, authorized by the grant, the company entered upon plaintiff’s lands and, in March, April and May, 1883, built its road-bed, and in March of the following year laid its track through plaintiff’s place; that the first train from New Orleans to Wilson ran in June, and through to Memphis between two and three months later • — August or September, 1884.
Tt also shows that, while the work was progressing, the plaintiff was frequently present, interposing no objection; that the road was graded and the work performed with due precaution- as to drainage, protection by cattle-guards and wagon crossings.
The map or plat in the record apparently shows that the route pursued was judiciously selected.
There is no charge or evidence that the defendant has misused the the right of way conceded by the plaintiff.
The claim foy value and for damages might have a standing, but for the contract of August 19, 1882.
TIence the question is:
Whether that contract has or not been dissolved.
It is true that it provides that should the railroad be not built within eighteen months from the date, then the contract shall be null and void.
*273It is also true that, although the work was begun some seven months after the date of the contract, the road was not terminated until March, 1884, and that it was used in June and in September following-.
It does not however follow, that, on that account, the contract was ipso facto dissolved. Delsol, V. 3, No. 821.
The plaintiff contends that the decision of the ease is to be controlled by Art. 2038 R. C. C., which provides that: “When an obligation has been contracted on condition that an event shall happen -within a limited time, the contract is considered as broken when the time has expired without the event having taken place.”
Plaintiff leaves out of view other provisions of law on the subject of resolutory conditions which bear upen this question.
The Code defines the dissolving condition as that which, when accomplished, operates the revocation of the obligation, placing matters in the same state, as though the obligation had not existed. R. C. C. 2045.
It further declares, that the obligation is implied in all commutative contracts, to take effect in case either of the parties do not comply with his engagements, in which case the contract is not dissolved of right. It leaves to the party complaining a right to sue for its dissolution with damages, or exact specific performance, according to circumstances.
Indeed, the law wisely so provides, for the obvious reason that, although the obligor may apparently be in default, still he may not be so in reality, and for some good reason, such as vis major, obstruction by the obligee, actual or constructive extension of time, etc. This is the reason for which, according to circumstances, the court may allow some further delay for compliance with the obligation. Delsol, vol. 3, p. 483, No. 821.
When the resolutory condition is an event, not dependent on the will of either party, the contract is dissolved of right; but when that event is dependent on such will, the contract is not absolutely dissolved of right, and its dissolution must be judicially sought. R. C. C. 2047.
Under the spirit and letter of the law, the resolutory condition may therefore consist in an event which does not depend, in any man-er on the act of the parties, or it may have for object a fact depend-mt on the will of one them.
In the first-case, it operates its effect of right, while in the second, he party complaining may exercise the right which results from the ondition, only by having it judicially ordered as a penal clause.
*274The article relied on by plaintiff refers to an event not dependent on the parties; the others allude to acts dependent on the will of either party. With this distiction the case is clear.
Had the plaintiff sued the defendent at the expiration of the eighteen months within which the railroad was to have been built, a differ-' ent case would have been presented.
The building of that road within that time was a resolutory condition which, by non-compliance, would have had the effect of dissolving the contract, as the event was dependent on the will of the defendant; but the dissolution could not take place and be enforced, unless judicially demanded and declared.
There can be no doubt that the defendants, having failed, without excuse, to build the road within the time limited, the grantor had the right to avail himself of dereliction, and could have had the grant annulled, even in the absence of the express stipulation in the contract, which, as it reads, does not, however, magnify or secure better that right. The law implies such right even when not expressed, on the ground of equity.
By not insisting at the proper time on that right and by permitting the grantees to perform their obligation after the delay had expired, the grantor has lost the right to be heard to demand the dissolution.
Such a contract under that state of things, was not, as a matter of course, dissolved of right by the non-observance by the obligors of the obligation assumed by them. As long as they were not sued for the dissolution, the latter had a right to go on in the performance of their obligation.
The articles of our Code are literal extracts from the French Code. It is in the sense which we have expressed that the provisions in the latter have been understood and expounded. R. C. C. 1912, 2047, 2563; C. N. 1183, 1184.
We have examined the French authorities relied on by the plaintiff, but they do not apply, as they refer to the case of an imeertain event, not dependent on the will of either of the parties.
The record shows that it is not until some fifteen months after the road was in running order (September, 1884) that the present suit was brought-(January, 1886).
Under such circumstances, it is manifest that the plaintiff has no right of action; the less so, as the value of the land taken and the dam - ages said to have been sustained must have been considered by the plaintiff and covered by the benefits to be derived, when the parties entered into the contract of August 12,1882.
*275The refusal of the district judge to give to the jury certain charges asked by the company, is an explanation of the verdict which was rendered in the ease and which is unwarranted by the evidence and the law.
It is therefore ordered and decreed, that the verdict of the jury be set aside and that the judgment upon it be reversed; and
It is further ordered and adjudged that plaintiff’s demand be rejected with judgment in favor of the defendant company, with costs in both courts.