William West vs. Andrew Flannagan, 4 Md. 36

Mason, J., delivered the opinion of this court.

The alleged equities of the present bill consist in the averments that the complainant as tenant of the defendant had made certain marine railways, at a heavy expense, upon the demised premises; that “the construction of said railways took place with the knowledge and approbation and acquiescence, and by the implied leave and license of the said West, whose office was hard by all the time, and who was frequently present during their construction, and furnished materials for the machine with which the piles were cut, and expressed his approval of the manner in which the work was done; and that said railways would not have been made if the parties making them had supposed there was any probability of their removal while fit for use, and that said West during their construction never gave their makers any reason to suppose that they would he so removed;” and that “it is well known to said West, that yonr orator and those concerned would never have encountered the expenses of their construction, but upon the faith that they would be permitted to use them, so long as they were fit for use;” and then complains, “ that notwithstanding the premises, the said West has given him notice to quit,” &c.

It is admitted by the complainant in his bill, that he and his predecessors held the property of the defendants, under a lease from year to year; and it is also admitted and proved. that he repeatedly requested West to give him a more permanent lease, and that West as often refused. From such a state of facts we cannot recognise any equities entitling the complainant to the injunction prayed for in his bill.

The defendant on the one hand relies upon the express contract between himself and the complainant, that the latter should hold and enjoy the property as tenant from year to year, as the rule by which their respective rights, in the present transaction are to be governed; while the complainant sets up an implied agreement or license creating rights wholly inconsistent with those existing under the express contract or lease.

The terms of the lease or contract are expressly established by the admissions of both parties; while the facts, out of which grows the alleged implied contract or license, are denied by the defendant, and are far from being satisfactorily established by the evidence.

As a general rule implied contracts are only sustained in order to supply the place of express agreements, and we know of no case where the latter have been made to yield to the former unless by the express or implied understanding of the parties thaf such should be the result, Indeed an express agreement, admitted to be, as this one is, in full force, negatives an implied, inconsistent agreement, relating to the same subject matter.

Therefore conceding that there was no dispute about the facts charged in the bill, and out of which the implication of a contract or license might under other circumstances arise in the absence of an express contract, yet, we can discover no reasons why the general rule should be departed from, in the present instance, and the implied contract substituted in the place of the one expressly established and still recognised as continuing, up to the time of filing the bill.

The lease from year to year being established and recognised by both parties,, they are in law supposed to know the nature and incidents of such a tenancy. The improvements made by the complainant and permitted and sahetioned by the defendant, are in perfect consistency with the terms of the lease under which the former was enjoying the property, and, therefore, no other implication of a contract or license is necessary as a justification or authority for the conduct of the complainant in making those improvements, than is to be drawn from the lease itself.

He must be presumed to have been acting under and by virtue of the lease, and with his eyes open as to the rights and powers conferred by that lease, upon both himself and the defendant; and “the knowledge, approbation and acquiescence, and the implied leave and license” of the defendant, could have had no more to do with enlarging the rights of the complainant under the lease, than an opposite course would have had in curtailing them. Such then is the case as made by the bill.

But admitting et gratia argumentó, that the allegations of the bill do actually disclose equities in favor of the complainant, how are those equities affected by the subsequent proceedings in the case ? In the first place the answer swears away every substantial equitable allegation made by the bill, and if the case stood alone upon bill and answer the complainant would be out of court. But it is contended that the force of the answer is broken, and the averments of the bill established by the proof in the Cause. Is this true?

The force of an answer, responsive to the bill, can only be avoided by the contradicting testimony of two witnesses, or by the testimony of one, supported by pregnant circumstances. The complainant’s witnesses do not sufficiently concur in their statements so as to destroy the weight of the answer taken in connection with the defendant’s proof. As to the circumstances developed in the progress of the trial, so far from being pregnant with support of complainant’s case, they in fact mainly tend to sustain the truth of the answer.

The anxiety of the complainant to obtain a more permanent lease than the subsisting one, and the refusal of the defendant to grant it, are facts almost conclusive that the defendant did not intend to surrender the rights he held under the then ex» isting lease, one of which was the right to terminate the tenancy at the end of any one year.

And admitting what the witnesses say to be undenied, that the defendant said, complainant must confide in him, and that he would not disturb him in the use of the roads, and that they were built upon the faith that the defendant would not interfere with him, fyc., and that all this evidence supported the averments of the bill; still the demand at this time by the defendant to be restored to the possession of his property, would not be in conflict with the obligations imposed upon him by such promises and assurances.

How long was the complainant, under the above assurances, to remain undisturbed in the enjoyment and use of the defendant’s property? For two, four, or seven years? If so, the pledged faith of the defendant was not violated. The first railway was used for more than ten, the other for more than seven years. But it is said the obligation is, to allow the complainant to enjoy the road as long as it lasts, or is fit for use. Is then the first defect or break in the road, requiring repair or renewal, to amount to a forfeiture or termination of the complainant’s rights?

Clearly not, we presume, for this doubtless repeatedly occurred during the period in which he was undisturbed in the use of the roads: for one of the witnesses says “ these railways require constant repair and watchfulness to beep them in working order.” If these repairs are once allowed when and where are they to end ? The same witness says, and no doubt truthfully, “ by constantly renewing the defective parts, the railway might be kept fit for use for an indefinite time.” Thus the license would become perpetual.

Such an interest in realty, little less than a fee-simple estate, could hardly be supposed to rest upon so flimsy a basis as the one set up by the complainant. A striking peculiarity of this case is to be found in the circumstance that the complainant has proved a better case than he has made in his bill. If the conduct of the defendant as shown by the witnesses had induced the faith upon which the complainant acted, is it not singular that at the time he filed his bill that conduct did not occur to him so that he might have averred it?

The equity alleged to be raised by the proof, consists in the fact, assumed to have been proved, that the railways were made upon the faith that the defendant would permit the complainant to use them as long as they were fit for use. The evidence establishes no such fact, so far'from showing that these improvements were made upon the faith of the acts and conversations of the defendant, the proof is express that those acts and conversations took place after one of the roads had been completed, and while the other was in progress of construction.

Upon the whole we regard the doctrine contended for by the appellee on the present appeal, as fraught with the most serious and dangerous consequences, and we cannot see that it is sustained by any sound principle, or well adjudicated decision. It amounts virtually to the assertion of the right in this court under certain circumstances, to condemn the property of one individual, against his will, for the private beneficial purposes of another. The views already expressed will render unnecessary any •opinion upon the subject of the operation of the statute of frauds upon the present transaction.

The decree in the present case, which was a pro forma decree continuing the injunction, must be reversed. Decree reversed, injunction dissolved, and bill dismissed with costs to the defendant, in both courts.