Shepherd's Adm'r v. Chapman's Adm'r, 83 Va. 215, 2 S. E. 125 230 Small v. Virginia Ry. & P. Co., 125 Va. 421, 99 S. E. 525- Standard Red Cedar Co. v. Monroe, 125 Va. 442, 99 S. E. Virginia Ry. & P. Co. v. Meyer, 117 Va. 409, 84 S. E. 742- Ward v. Churn, 18 Gratt. (59 Va.) 801 128 337 Ward's Adm'r v. Cornett, 91 Va. 676, 22 S. E. 494. 126 371 Ward v. Reasor, 98 Va. 399. 104 372 Washington-Va. R. Co. v. Bouknight, 113 Va. 696. Webb v. Lynchburg Shoe Co., 106 Va. 726, 56 S. E. 581, 107 Western Union Tel. Co. v. City of Richmond, 26 Gratt. 1. 99 109 104 242 116 62 100 475 Wooding v. Bradley, 76 Va. 614 126 Wright v. Camp Mfg. Co., 110 Va. 678, 687, 66 S. E. 843, 846.. 131 Yoder v. Commonwealth, 107 Va. 831, 832, 57 S. E. 581. ... 134 546 383 125 721 628 IN THE Supreme Court of Appeals OF VIRGINIA Staunton. WILLIAM BUCKLES, C. C. IRVINE AND R. L. REEDY, PARTNERS UNDER THE FIRM NAME AND STYLE OF BUCKLES, IRVINE COAL COMPANY V. KENNEDY 1. EASEMENTS-Right of Way of Mining Railroad-Parol Grant of Right of Way Becoming Irrevocable by Part Performance-Case at Bar.--In a suit by the owners of the surface to enjoin the operation and change of construction of a mining railway upon or across their lands, the preponderance of the evidence clearly establish that there were parol grants to the mining company, from the former owners of the surface of the land affected, of the rights of way in question, which grants were so far executed, prior to suit, by part performance on the part of the mining company, that it would be inequitable to rescind them. Held: That the grants would be upheld in equity as irrevocable, on the same principle that a partly performed parol contract for the sale of land would be upheld. 2. EASEMENTS-License, Real Property Frauds, Statute of-Parol Grants Partly Performed-Rights of Way.-Notwithstanding that the grant of an easement is embraced within the statute of frauds, and therefore must be in writing, yet it is held that a parol grant of an easement executed will be upheld and sustained under the same circumstances and on the same principle that a parol contract for the sale of land would be. Whether the doctrine is applicable to a mere license, so that an easement may be created thereby, has been the subject of an irreconcilable division of opinion among the American authorities. Syllabus. 3. EASEMENTS-License, Real Property-Parol Grants Partly Performed— Equitable Easement.--Although the line of distinction between an easement and a license is often obscure, if a transaction be one which, if it were under seal, would create an easement, it being classed as a license merely because it is oral, upon a part performance by the licensee by the expenditure of money, or otherwise, a court of equity may regard it as an equitable easement, and therefore irrevocable. 4. EASEMENTS-License, Real Property-Parol Grants Partly Performed— Equitable Easement.-Where the grant, consent, or license in question consists not merely in the permission given one to do something on his own land which injuriously affects, or puts a burden upon the land of the person giving the permission, but consists of the right to build and use, for a definite purpose, some structure on the land of the latter, and where the structure is accordingly built by the former, at large outlay of expense, which would not have been made but for the permission having been given, the right is held to be a contract right acquired by purchase for valuable consideration, which, indeed, does not rest entirely in parol, and which is coupled with an interest, creating an interest in the land, and which in equity at least is tantamount to, if not technically, an easement. 5. EASEMENTS-Right of Way of Mining Railroad-Parol Grant of Right of Way Becoming Irrevocable by Part Performance-Evidence Sufficient to Establish Parol Grant-Case at Bar.-In a suit by the owners of the surface to enjoin the operation and change of construction of a mining railway upon or across their lands, the internal evidence furnished by the manner in which the testimony of the respective witnesses was given, and the inferences to be drawn from the uncontroverted facts and from the testimony itself, satisfied the court that the existence of the parol grants of the rights of way in question from the predecessors of the complainants to the defendant was as clearly established by the preponderance of the evidence as a parol contract of sale of land is required to be established. 6. EASEMENTS-Mining Railway Right of Way-Dimensions of Right of Way. -Grants of right of way for a inining railroad in the first instance authorized the construction and operation of a standard gauge railroad, but the grantee was temporarily prevented from establishing such standard gauge by the intervention of the Government. The grantee thereupon constructed a narrow gauge road and the landowners acquiesced therein. When the Government released the control of the railroads the grantee began the conversion of the narrow gauge into a standard gauge railroad. Held: That the grants of right of way were sufficiently definite, with respect to the width of the right of way, to authorize the grantee to first construct and operate a narrow gauge and subsequently a standard gauge railroad. 7. EASEMENTS-Right of Way of Mining Railroad-Parol Grant of Right of Way Becoming Irrevocable by Part Performance-- Notice of Easements. |