There are two questions raised by the briefs of counsel: (1) Whether the plaintiff proved a prima facie title to the premises in dispute; and (2) whether the statute under, which the defendant’s railroad was located justifies us in holding that it acquired a legal estate or right of possession under an executory contract for the sale of land.
Bach party claims title from Dennis Smith, plaintiff by deed, and defendant under a writing which reads as follows:
“In consideration of the sum of one dollar to me in hand paid, and of other valuable considerations to me moving, I hereby agree to convey, free of any incumbrance, to the Muskegon, Grand Rapids & Indiana Railroad Company, its successors and assigns, a strip of land thirty (30) feet in width over and across the following described premises, to wit: The northeast quarter of the northeast quarter of section thii’ty-one (31) in the township of Muskegon, county of Muskegon, State of Michigan. The said railroad being one to be constructed from a point on or near the lake shore in the city of Muskegon, Muskegon county, Michigan, to the city of Grand Rapids, in the same State. And I further promise and agree to make such conveyance on request of said railroad company at any time when it shall have definitely settled upon and located its line between the points above named, and determined upon the construction of the road: Provided, however, that such time shall be within one year from the date hereof. This agreement for right of way shall not inure or be assigned or transferred to any other railroad company now entering the city of Muskegon with its railroad.
“In witness whereof, I have hereunto set my hand and seal this 25th day of February, 1886.
“Dennis Smith.
“ In presence of “N. L. Keating,
“Lizzie J. Cavanaugh.
“ State of Michigan, County of Muskegon,
ss‘
“On this 25th day of February, 1886, before me, a notary public in and for said county, personally came *471Dennis Smith, who acknowledged that he executed the above instrument as his free act and deed.
“ L. N. Keating,
“Notary Public,
“Muskegon Co., Mich.”
Were this a contract between natural persons, it would be held to convey nothing. It would give an equitable interest, and it might be held to give (by implication) a license to survey and determine a line for the projected railroad. It would not be said to transmit a right of title or possession that would avail as a defense in an action of ejectment. Presumably this railroad company with which the contract was made was organized under the general law, and had. all of the rights which the statute gives to any railroad. It was authorized to acquire a right of way, and to take voluntary grants and donations of real estate and other property. It is urged that this contract, made for the purposes of railroads, when construed in the light of the statute (2 Comp. Laws, § 6234), gives a right of possession in the railroad company making it, especially where the road has been constructed and possession maintained for a time by such company. We may eliminate the latter portion of the proposition, because if the contract did not, of itself, when considered in the light of the statute, confer this right, there would be nothing left for it to rest upon but an estoppel in pais, and it has been repeatedly held that interests in land cannot rest on estoppel alone. The statute of frauds forbids.
I am not satisfied that the legislature contemplated any such construction. It is true that railroad corporations acquired the right to take and hold property by virtue of the statute, but there is nothing to indicate that they were to acquire it in any other way than any other citizen could do, except it should become necessary to condemn it by virtue of the power of eminent domain. It was apparently not necessary to do this in the present case. The railroad company was able to acquire the land by contract of purchase, and did so. What was the contract? Nothing but a plain everyday land contract, which gave it a right to a *472deed when it performed the contact on its part. No right of possession was given by the terms of the writing. It is only by inference that we can say that it gave a right to enter for the purpose of survey. It could acquire title to land by grant or lease, or it could acquire it by judicial procedure.
What remedies the defendant has in equity is not a question for our consideration. If there is a valid executory contract, presumably it can be specifically enforced. If there is none, and none can be secured, it may be that it will be necessary to resort to condemnation proceedings, as in the case of Minneapolis, etc., R. Co. v. Marble, 112 Mich. 12 (70 N. W. 319), where it was said:
“It may be a matter of hardship to the railroad company, after all these years of occupancy, and after expending large sums of money in improvements, to be compelled to take condemnation proceedings; but we are unable to agree with its counsel that it acquired title by this parol arrangement, or that it can hold land by dedication.”
It occurs to the writer to say that it would take but a slight extension of the construction of this statute asked for in this case to make it applicable to the state of facts in that case, for it is as easy to say that this statute .abrogates the rule that contracts for the sale of land must be in writing, as that a right of possession goes with a written contract that does not mention it, and, under existing rules, does not include it. Harrett v. Kinney, 44 Mich. 457 (7 N. W. 63); Moran v. Moran, 106 Mich. 13 (63 N. W. 989, 58 Am. St. Rep. 462). If adopted, such construction must be a matter of first impression, for no analogous case is cited. The case of Greenwood v. School District, 126 Mich. 81 (85 N. W. 241), was an injunction bill to restrain the erection of a schoolhouse, and it was dismissed because the district had been in possession under a contract which, though oral, was so far performed that it was inequitable to permit the complainant to repudiate it. It is not, in my opinion, an authority upon which the defendant’s contention in this case can be safely sustained.
I think the judgment should be affirmed.
*473Moore, Carpenter, and Montgomery, JJ., concurred with'Hooker, C. J.