#### CHARLES W. THOMAS and wife v. BLUE RIDGE AND ATLANTIC RAILWAY COMPANY.

(Filed 27 May, 1907).

Railroads — Contracts—Conditions—Forfeiture.—A railroad company cannot avoid a forfeiture under a time limit for the construction of its line of road, unless it substantially complies with the provision therefor in its deed.

(The opinion in McDowell v. Railway (next above) controls the disposition of this appeal).

Civil aotioN, tried before 0. R. Alim, J., trial by jury being waived by consent, at tbe Spring Term, 1907, of tbe Superior Court of MacoN County. From a judgment for plaintiff, defendant appealed.

*730Tbe facts in tbis case are substantially like.those in tbe case of McDowell v. Railway, at tbis term. Tbe deed executed to tbe defendant by plaintiff and wife contained the same condition as set ont in tbe McDowell case. Tbe same proceedings were bad, tbe parties entering into an agreed state of facts as in that case. Tbe facts in tbis case, in respect to tbe performance of tbe condition, are as follows: “About 1 May, 1906, tbe defendant entered upon and occupied tbe strip of land through 'and over said described tract for railway purposes, and on 23 May, 1906, about one-balf tbe grading of said road bad been done, and tbe work of grading, except surfacing, was finished on 16 June, 1906, but no ties nor track were-laid upon said land until August, 1906, after tbe commencement of tbis action. Tbe plaintiffs, soon after 23 May, 1906,. notified tbe contractors at work on said land not to do any more work thereon, and petitioners instituted tbis condemnation proceeding on 21 July, 1906. About fifty per cent, of tbe work of grading of said entire line of railway from tbe Georgia State line to Eranklin bad been done on 23 May, 1906, and about seventy-five per cent, of the grading between tbe Georgia State line and Prentiss, a station on said railway, five miles from Pranlclin, bad been done on said date. Tbe land of tbe plaintiffs is situated about one mile from Prentiss and between that station and the Georgia line. No track nor ties bad been laid upon any part of said line of railway, nor bad any part of tbe grading been completed, ready for the ties and track, upon said 23 May, 1906; but parts or sections of tbe grade on said line bad been approximately built, ready for tbe surfacing or subgrading necessary for exact grade. Tbe first contract for tbe grading of said road was let in the-year 1905, and work was begun upon said contract about May, 1905, and has been continually in progress since. The-track was laid and train service inaugurated to Prentiss station, above mentioned, on 29 August, 1906.”

*731The Court, upon the agreed facts, appointed commissioners to go upon tliat portion of plaintiffs’ land occupied by tbe defendant and assess their damages. Upon the coming in of the report, after hearing exceptions thereto, judgment was duly rendered in the Superior Court, at a regular term, condemning for defendant’s use a right-of-way over plaintiffs’ land and assessing the damages therefor. Defendant excepted and appealed.

There are several assignments of error in the record, but they are all involved in the two contentions argued in this Court:

1. That, in the light of the facts agreed upon, there has been no forfeiture by defendant.

2. That if there has been such forfeiture at law, upon the allegations in the answer and the facts agreed upon the defendant is entitled to be relieved therefrom by a court of equity.

Horn & Mann for plaintiffs.

J ones & J ohnston and Shepherd & Shepherd for defendant.

Connor, J.,

after stating the case: The decision in the case of McDowell v. Railway, at this term, controls the disposition of this appeal. The only difference between the two cases is found in the fact that “about 1 May, 1906, defendant entered upon and occupied the strip of land through and over said described tract for railway purposes, and on 23 May about one-half the grading of said road had been done.” We do not think that this act of the defendant substantially complies with the condition in the deed. It falls far short of constructing the road over the premises granted. In all other respects the two cases are conceded to be alike.

Eor the reasons set forth and upon the authorities cited in the opinion in that case, the judgment herein must be

Affirmed.