By the terms of the resolution raising and appropriating the gratuity, it was declared to be appropriated for the purpose of aiding in the construction of that part of the Manchester Keene Railroad between Greenfield and Keene. The object was to furnish means for building the road, and in order to make it available for that purpose, as the gratuity was not payable until the road should be completed for use, it might, and probably would, become necessary for the corporation to assign it as security to parties who might undertake the construction of the road. Such an assignment was made to Dawe Bonnallie, who subsequently *Page 120 assigned to the plaintiffs in interest; and the assignees, having proceeded with the work relying upon the gratuity as part payment, bring this action to recover it. It is reasonable to suppose that such an assignment was contemplated by the parties, and the objection that the road must be completed by the corporation and no one else, and that the gratuity was not assignable, is not sustained.
A majority of the referees find "that on the first day of December, 1878, the railroad of the plaintiff corporation was constructed from Greenfield to the terminus in Keene, and was reasonably safe, fit, and convenient for the public use and accommodation, as new railroads are ordinarily used in similar localities." Upon this finding of fact, a majority of the referees find "that the railroad from Greenfield to the terminus in Keene was completed for use on the first day of December, 1878;" and the question of law is raised whether the standard of completion adopted is the legal standard required by the words "completed for use," in the resolution of the city councils of Keene, raising and appropriating the gratuity to the Manchester Keene Railroad Company.
A majority of the referees construe the phrase "completed for use" as meaning such a degree of completion as would make a railroad "reasonably safe, fit, and convenient for the public use and accommodation, as new railroads are ordinarily used in similar localities." It is conceded that the words "completed for use" do not call for a perfect railroad; that no road probably was ever completed in that sense; but it is claimed that the road must be "in a condition such that a fair man, of sound judgment and practical common-sense, one experienced in such things and having no interest in the result, would say it is a completed road, ready for use in the way railroads are ordinarily used for public traffic, the carrying of freight and passengers." This is the defendants' standard of completion. Stated as a legal definition, it is that the railroad must be so far completed as to be ready for use as railroads are ordinarily used for the carrying of freight and passengers. The qualification, that the question should be determined upon sufficient evidence by an impartial tribunal exercising sound judgment and common-sense, being implied, adds nothing to the legal proposition. Does the defendants' standard of completion, that the railroad must be so far completed as to be ready for use as railroads are ordinarily used for carrying freight and passengers, import a higher degree of completion than that adopted by a majority of the referees, — that the railroad should be reasonably safe, fit, and convenient for the public use and accommodation, as new railroads are ordinarily used in similar localities? What is the difference in degree of completion between a railroad ready for use as railroads are ordinarily used for carrying freight and passengers, and a rail road reasonably safe, fit, and convenient for the public use and accommodation, as railroads are ordinarily used?
In declaring the legal construction of the phrase "completed *Page 121 for use," the defendants define the word "use" to mean "as railroads are ordinarily used." A majority of the referees define it by the phrase "as new railroads are ordinarily used in similar localities." And the defendants contend that the standard of comparison adopted by the referees is erroneous, because it is limited to new railroads in similar localities. The objection is not well founded. The resolution of the city councils of Keene had reference to a new railroad to be constructed between Greenfield and Keene. The language was used with reference to a new railroad in that particular locality. The parties understood that the railroad to be "completed for use" was a new railroad between Greenfield and Keene, and when such new railroad was "completed for use," the terms of the resolution would be complied with. The finding of a majority of the referees, that the railroad, on the first day of December, 1878, was reasonably safe, fit, and convenient for the public use and accommodation, as new railroads are ordinarily used in similar localities, is in effect a finding that the railroad was reasonably safe, fit, and convenient for the public use and accommodation as a new railroad in that locality; and we think there is no error of law in the standard of completion adopted by a majority of the referees. The determination of the question whether the road was completed for use, necessarily involved a comparison of the condition of the road with the test of completion adopted by the referees. This test was based upon the common knowledge, information, and observation of the referees Hayes v. Waldron, 44 N.E. 580, 587), and not upon evidence introduced on the trial, as we understand it; and the phrase "as new railroads are ordinarily used in similar localities" is used by the referees merely as descriptive of the legal standard of completion adopted by them.
The defendants claim that the report of the referees should be set aside, because, as they contend, the facts reported show, as matter of law, that the road was not completed for use; and in the agreement upon this point they rely upon the fact that the corporation had not acquired the right of way over the whole line of the road. The referees report that land damages to the amount of $881, representing 6,431 lineal feet out of 29 1/2 miles, were and still are unpaid, but were all assessed, and the amounts assessed tendered in all cases except one, and in that case the damages were agreed and a partial payment made. No land-owner has attempted or threatened to disturb the possession of the plaintiffs, or objected to the plaintiffs' occupying the land taken for the road. No part of the unpaid damages has been deposited with the state treasurer. There was no evidence of express waiver, but from these facts the referees find that the unpaid land-owners have waived their right to dispossess the plaintiffs.
Payment or tender of the damages awarded to the land-owner is a condition precedent to the right to enter upon the land for the *Page 122 construction of a railroad, but the provision being for the benefit of the land-owner may be waived by him. Smart v. Portsmouth Concord Railroad,20 N.H. 233, 238. The statute expressly recognizes the right to enter with the land-owner's consent without prepayment. "Damages awarded to any land-owner shall be paid or tendered him, if known and resident in the state, before the proprietors shall enter on his land to make their road, except by his consent." Gen. Sts., c. 146, s. 20. "If an appeal is taken from the award of damages, the proprietors may enter upon and use the land upon payment of the damages awarded to the owner, or, on his refusal of the same, to the state treasurer, and filing in his office reasonable security, to the satisfaction of either of the county commissioners, for the payment of any further damages and costs which may be awarded to the land-owner upon said appeal." Gen. Sts., c. 146, s. 22. The provision for security for the payment of the damages which may be awarded on the appeal being for the protection of the land-owner, may be enforced or waived by him.
It appears that the land-owners had full knowledge of the proceedings of the company in locating and constructing the railroad over their land. In the case where the damages were agreed upon and a partial payment made, the reception of a part of the damages without objection, with knowledge that the plaintiffs were building the road, was evidence of a waiver of the right to insist upon full payment as a condition precedent to the right to enter upon and use the land. In the other cases the damages had been assessed in the statutory mode, and tendered. The fact is not stated in the case, but is admitted by counsel, that appeals were taken in these cases by the land-owners, and that judgment has since been rendered. Meanwhile the road has been built and put in operation, and the fact appears that no land-owner has attempted or threatened to disturb the possession of the plaintiffs, or objected to the occupation of the land taken for the road. Nor does it appear that any land-owner now objects, or claims the right. to dispossess the plaintiffs. The proceedings for condemning the land were legal, and the only irregularity suggested is the neglect to deposit the amounts tendered with the state treasurer. It does not appear that the land-owners insisted that the first appraisal should be deposited during the pendency of the appeals, or that they now complain that it was not done. It was in their power to stop the construction of the road and prevent the plaintiffs' entering upon the land for that purpose until the provisions of the statute relating to appeals had been complied with. As they did not choose to insist upon their legal rights, and allowed the plaintiffs to proceed with the construction of the road at a large expenditure of money and put it in operation, whereby the rights of the public have intervened, and in the meantime prosecuted their appeals to final judgment without objection, we think these *Page 123 facts are evidence sufficient to sustain the finding of the referees that they have waived their right to dispossess the plaintiffs of the land. "A clear acquiescence by the land-owner in the company's taking possession and constructing its works under circumstances making it his duty to resist the entry, if he intended afterwards to set up that it was illegal, will be treated as a waiver. The waiver, however, while depriving him of the right to dispossess the company, does not deprive him of the right to damages under the special remedy." Pierce R. R. 169, 170.
The case of McAulay v. The Western Vermont R. R., 33 Vt. 311, sustains this view. Redfield, C.J., says, — "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 the works, and especially to stop the running of the road after it has been put in operation, whereby the public acquire important interests in its continuance. The party does not, of course, lose his right to enforce it in all proper modes. He may possibly have some rights analogous to the vendor's lien in England, and here until the legislature cut it off. But it is certain, according to the English decisions, that he cannot stop the works, and especially the trains upon the road, if he has in any sense, for the shortest period, clearly given the company to understand, either by his express assent or by his silence, that he did not intend to object to their proceeding with their construction and operation."
It is true the plaintiffs have no legal title to the land, although the road was located and the damages assessed in the statutory mode. Payment is essential to the vesting of the title, and upon such payment the right of way will be acquired. The title remains in the land-owner until payment is made, and, although he has waived the right to dispossess the corporation, his right to compensation in the nature of a lien may be enforced against the corporation or their successors. Drury v. Midland R. R. Co.,127 Mass. 571. And equity will enforce the land-owner's right of compensation. Elwell v. Eastern R. R. Co., 124 Mass. 160. "A court of equity may, upon a bill to enjoin a company which has unlawfully entered upon the permanent occupation of private property for the construction of a railroad without compensation, allow, as incident to equitable relief, and as the alternative of a perpetual injunction, the payment of damages to the land-owner for his entire injury; and the company, upon paying the amount, will have the right of permanent use in like manner as if due proceedings had been had, with the appraisement and payment of damages as provided by the special remedy." Pierce R. R. 230, 281; Henderson v. N.Y. C. R. R. Co.,78 N.Y. 423. Such an exercise of equity jurisdiction secures the rights of the land-owner, the proprietors of the railroads, and the public, and is analogous to that *Page 124 exercised to protect the rights of a licensee, in cases of a revocation of a parol license to enter on land after expenditures have been incurred on the faith of the license. Houston v. Laffee, 46 N.H. 505, 508; Batchelder v. Hibbard, 58 N.H. 269, 270. This principle of equitable relief is recognized in Gen. Sts., c. 146, s. 27, which provides, "If land occupied by a railroad was not laid out and the damages appraised at the time of its construction, the road shall not be obstructed, but the land may be set off and the damages appraised, as should have been done originally; and the cost of the proceedings shall be assessed by the railroad commissioners and paid by the proprietors of the railroad." Without affirming the constitutionality of this statute, we cite it as indicating the intention of the legislature to guard against the obstruction of railroads when once put in operation.
If a land-owner, after a railroad has been located over his land and his damages assessed, may lie by without insisting upon payment, or other objection, until the road has been constructed not only over his land but over its entire line, and put in operation as a public highway, and then insisting that the entry upon his land was illegal by reason of the non-payment of his land damages, and refusing to accept compensation, maintain an action for the land increased in value by the improvements put upon it, and obstruct the operation of the road, the inconvenience and injury to the public might be very serious. In such a case there is no injustice in restricting the land-owner to a remedy that will give him the value of his land and leave the proprietors of the railroad and the public in the use of the easement. If the land-owners have waived the right to dispossess the plaintiffs, the defendants cannot avail themselves of the objection. Pierce R. R. 163; Haskell v. New Bedford, 108 Mass. 208.
A substantial compliance with the conditions of the resolution is sufficient. The construction of written conditions should be reasonable and such as will facilitate the object of the enterprise, and should have regard to a substantial compliance with the agreement rather than to a severely literal execution of its terms. People v. Holden, 82 Ill. 93. A condition, that the road shall be completed and the cars running to a certain place, is complied with by the running of hired cars. Courtright v. Deeds, 37 Iowa 503. If the state of the road is such that the cars can be run with reasonable safety and regularity, the condition is complied with, although it may not be finished in every particular. Freeman v. Matlock,67 Ind. 99; Ogden v. Kirby, 79 Ill. 556; Pierce R. R. 62, 63.
Judgment for the plaintiffs on the report, with interest from December 5, 1878.
STANLEY and SMITH, JJ., did not sit: BLODGETT and CARPENTER,_ JJ., concurred: DOE, C.J., and ALLEN, J., were of opinion that interest should be reckoned from September 15, 1880. *Page 125