Cooper, J.,
delivered the opinion of the court.
The dismissal by this court of the former bill exhibited by Bagsdale as to the six acres of land now in controversy, “ without prejudice as to any right of [or] title which the said Bagsdale may hereafter assert, either in laAv or equity, to said six acres,” left the appellant at liberty .to renew the ligitation unprejudiced by any decision in reference to the six acres. The court in effect said, by the modification of its original decree, that for some reason satisfactory to it it Avould then make- no decree whatever, save as to the other lands embraced in the suit. The dismissal was not without prejudice as to any right or title which Bagsdale might thereafter acquire, but as to any which he might “ assert.” In no event would the decree have affected any other right than that in issue in the suit or dependent on it, and it would have been unnecessary to reserve liberty to the complainant to litigate other subsequently accruing rights. The effect of such dismissal is similar to that of a nonsuit at law, or, under certain circumstances, of remanding a cause to the rules for the introduction of further proof.
[488]*488In the case of Innis v. Roane, 4 Call (Va.) 379, referred to by counsel for the appellee, certain officers claimed pensions under the acts of the Assembly of Virginia, and two questions were involved.
First, At what date did the Revolutionary War end? Second, Were the.claimants in service at that time? The court decided that the war ended on the 22d of April, 1783, and that the claimants, on the facts then shown, were not in service at that time, but dismissed the cause “without prejudice as to any future claim of the appellees made on fuller proof.”
A new suit was instituted, and it was attempted to re-argue the question as to the termination of the war. It was said that the former decision had covered and concluded this question.
In Lang’s Heirs v. Waring, 25 Ala. 626, the former opinion of the court, reported in 17 Ala. 143, was referred to, not as res adjudieata, j>ut as a decision upon the question involved.
Our researches have failed to discover any case in which a dismissal without prejudice has been held to operate as a restriction upon the right of complainant to re-litigate the matters in controversy ; on the contrary, in all the cases which have fallen under our observation such decrees have only been made where the court has refused to finally decide the cause. In the absence of any restriction in the decree of the right to retry the cause, we must assume that it was intended to be unrestricted. The opinion of the court in the former suit, as reported, contains all that was said on the whole case. Much of this was applicable only to the case as involving both the sixteen acres and the six acres, and was intended to demonstrate both the right of the complainant to the sixteen acres and the right of the company to the six acres. All this was then decision because appropriate and essential to a disposition of the cause, but when the court withdrew its decree and substituted another declaring that as to the six acres nothing should be decided, it necessarily withdrew all argument and findings by which'its former decree as to this land had been supported.
Eliminating from the former opinion all expressions having reference solely to the six acres now in controversy, and retaining all that was necessarily said in deciding as to the sixteen acres, [489]*489nothing remains therein decided which is conclusive upon the right now asserted by complainant. The extent of the decision, is, that the railroad company had abandoned all claim to the sixteen acres and were estopped to reclaim it after Ragsdale, acting on the faith of such abandonment, had conveyed portions of the property 'to third persons. This estoppel was founded by the court on the parol contract made between Ragsdale and Smedes in 1858, by which the company was to surrender all but six acres, and to retain that on condition of erecting its depot on or adjacent to this land.
Admitting that by consenting to the arrangement made by the three railroad companies in March, 1866, for a joint passenger depot, Ragsdale extended the time for the performance of the condition on which the land was held, and that either the erection of its own depot by the appellee or of the joint depot by the three companies would have been a compliance with the condition of the grant, it was yet necessary that such depot should be erected within a reasonable time, and we are of opinion that by delaying action from March, 1866, to September, 1867, Ragsdale had afforded to the appellee a reasonable time in which, at least, the work should have been commenced, and nothing having then been done by the company in performance of the condition, he was warranted in declaring a forfeiture and re-acquiring his original title.
The decree is reversed, and a decree directed to be entered here in accordance with this opinion.
Campbell, C. J.,
delivered the following opinion in response to suggestions of error made by counsel for the appellee as to the foregoing opinion in this case.
In Railroad Co. v. Ragsdale, 54 Miss. 200, Ragsdale was held to be entitled to relief as to sixteen acres of the land granted to the railroad company, on the ground that the company was es-topped to question his title as to that. We are now asked to estop Ragsdale as to the six acres. We cannot do that, because it would be to employ the beneficent doctrine of estoppel to do wrong, instead of to prevent it. The agreement of the parties was that the [490]*490railroad company should have the six acres upon the condition that it put its depot on that parcel of land or contiguous to it, and it has not complied with the condition. The grant of the twenty-two acres was abandoned and a new arrangement made. There was not a release or dispensation by Ragsdale of the condition of the grant, but there was an abandonment of the grant, by the determination of the company not to conform to the Haupt survey, and putting its road elsewhere than was prescribed by the terms of the grant of the twenty-two acres.
When the road was constructed the title of the company to the twenty-two acres was at once subject to reverter to Ragsdale. The condition was broken and the right of the company liable to be defeated by the claim of Ragsdale. That he had consented to the change in the location of the road did not preclude his claim of forfeiture of title for breach of the condition, because his consent was conditional, and the condition on which he consented was not complied with. In Ludlow v. Railroad Co., 12 Barbour 440, so often cited and much relied on by counsel, the grantor got what he bargained for, but there was some delay in the performance of the condition, and he was held to have acquiesced in and impliedly consented to the loss of time, and to be estopped to claim a forfeiture because of such delay. Here there was not performance by the company, even after time. Ragsdale has never got what he bargained for.
The parol agreement, substituting one thing for another as to the location of the depots, was not obligatory. It was made before the time for performance of the condition of the grant.
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Cooper, J.,
delivered the opinion of the court.
The dismissal by this court of the former bill exhibited by Bagsdale as to the six acres of land now in controversy, “ without prejudice as to any right of [or] title which the said Bagsdale may hereafter assert, either in laAv or equity, to said six acres,” left the appellant at liberty .to renew the ligitation unprejudiced by any decision in reference to the six acres. The court in effect said, by the modification of its original decree, that for some reason satisfactory to it it Avould then make- no decree whatever, save as to the other lands embraced in the suit. The dismissal was not without prejudice as to any right or title which Bagsdale might thereafter acquire, but as to any which he might “ assert.” In no event would the decree have affected any other right than that in issue in the suit or dependent on it, and it would have been unnecessary to reserve liberty to the complainant to litigate other subsequently accruing rights. The effect of such dismissal is similar to that of a nonsuit at law, or, under certain circumstances, of remanding a cause to the rules for the introduction of further proof.
[488]*488In the case of Innis v. Roane, 4 Call (Va.) 379, referred to by counsel for the appellee, certain officers claimed pensions under the acts of the Assembly of Virginia, and two questions were involved.
First, At what date did the Revolutionary War end? Second, Were the.claimants in service at that time? The court decided that the war ended on the 22d of April, 1783, and that the claimants, on the facts then shown, were not in service at that time, but dismissed the cause “without prejudice as to any future claim of the appellees made on fuller proof.”
A new suit was instituted, and it was attempted to re-argue the question as to the termination of the war. It was said that the former decision had covered and concluded this question.
In Lang’s Heirs v. Waring, 25 Ala. 626, the former opinion of the court, reported in 17 Ala. 143, was referred to, not as res adjudieata, j>ut as a decision upon the question involved.
Our researches have failed to discover any case in which a dismissal without prejudice has been held to operate as a restriction upon the right of complainant to re-litigate the matters in controversy ; on the contrary, in all the cases which have fallen under our observation such decrees have only been made where the court has refused to finally decide the cause. In the absence of any restriction in the decree of the right to retry the cause, we must assume that it was intended to be unrestricted. The opinion of the court in the former suit, as reported, contains all that was said on the whole case. Much of this was applicable only to the case as involving both the sixteen acres and the six acres, and was intended to demonstrate both the right of the complainant to the sixteen acres and the right of the company to the six acres. All this was then decision because appropriate and essential to a disposition of the cause, but when the court withdrew its decree and substituted another declaring that as to the six acres nothing should be decided, it necessarily withdrew all argument and findings by which'its former decree as to this land had been supported.
Eliminating from the former opinion all expressions having reference solely to the six acres now in controversy, and retaining all that was necessarily said in deciding as to the sixteen acres, [489]*489nothing remains therein decided which is conclusive upon the right now asserted by complainant. The extent of the decision, is, that the railroad company had abandoned all claim to the sixteen acres and were estopped to reclaim it after Ragsdale, acting on the faith of such abandonment, had conveyed portions of the property 'to third persons. This estoppel was founded by the court on the parol contract made between Ragsdale and Smedes in 1858, by which the company was to surrender all but six acres, and to retain that on condition of erecting its depot on or adjacent to this land.
Admitting that by consenting to the arrangement made by the three railroad companies in March, 1866, for a joint passenger depot, Ragsdale extended the time for the performance of the condition on which the land was held, and that either the erection of its own depot by the appellee or of the joint depot by the three companies would have been a compliance with the condition of the grant, it was yet necessary that such depot should be erected within a reasonable time, and we are of opinion that by delaying action from March, 1866, to September, 1867, Ragsdale had afforded to the appellee a reasonable time in which, at least, the work should have been commenced, and nothing having then been done by the company in performance of the condition, he was warranted in declaring a forfeiture and re-acquiring his original title.
The decree is reversed, and a decree directed to be entered here in accordance with this opinion.
Campbell, C. J.,
delivered the following opinion in response to suggestions of error made by counsel for the appellee as to the foregoing opinion in this case.
In Railroad Co. v. Ragsdale, 54 Miss. 200, Ragsdale was held to be entitled to relief as to sixteen acres of the land granted to the railroad company, on the ground that the company was es-topped to question his title as to that. We are now asked to estop Ragsdale as to the six acres. We cannot do that, because it would be to employ the beneficent doctrine of estoppel to do wrong, instead of to prevent it. The agreement of the parties was that the [490]*490railroad company should have the six acres upon the condition that it put its depot on that parcel of land or contiguous to it, and it has not complied with the condition. The grant of the twenty-two acres was abandoned and a new arrangement made. There was not a release or dispensation by Ragsdale of the condition of the grant, but there was an abandonment of the grant, by the determination of the company not to conform to the Haupt survey, and putting its road elsewhere than was prescribed by the terms of the grant of the twenty-two acres.
When the road was constructed the title of the company to the twenty-two acres was at once subject to reverter to Ragsdale. The condition was broken and the right of the company liable to be defeated by the claim of Ragsdale. That he had consented to the change in the location of the road did not preclude his claim of forfeiture of title for breach of the condition, because his consent was conditional, and the condition on which he consented was not complied with. In Ludlow v. Railroad Co., 12 Barbour 440, so often cited and much relied on by counsel, the grantor got what he bargained for, but there was some delay in the performance of the condition, and he was held to have acquiesced in and impliedly consented to the loss of time, and to be estopped to claim a forfeiture because of such delay. Here there was not performance by the company, even after time. Ragsdale has never got what he bargained for.
The parol agreement, substituting one thing for another as to the location of the depots, was not obligatory. It was made before the time for performance of the condition of the grant. If it had been carried out according to its terms, it might well be claimed that Ragsdale was estopped to insist on the breach of a condition he had agreed to dispense with, but it is indisputable that his consent to the abandonment of a near approach to the Haupt survey was conditional on the establishment of the depots of the company on or near the six acres, and this condition has not been complied with. The company lost the twenty-two acres by breach of the condition of the grant. Ragsdale’s consent to a change of the terms on which the company was to have part of the land was con[491]*491ditional, and the condition was not performed, and therefore his claim to be in as of his original title is just and must be maintained.
It is always a question of intention as to whether the grantor waived or dispensed with a condition, and it is incontrovertible that Ragsdale did not intend to waive the forfeiture or dispense with the condition. He had no thought of freeing the railroad company from its obligation to put its depots on the six acres or contiguous to them, and he did not act inconsistent with his right to insist on performance and claim the estate for a breach of the condition on which he had consented for the company to have the land.
It is unnecessary to inquire whether the decision in 54 Miss, cited above was put on the true ground or not. The result was right as to the sixteen acres as to which relief was afforded to Ragsdale, and it may well be supposed that the reason why the bill was dismissed “ without prejudice,” so far as related to the six acres, was to give an opportunity for a contest as to that part of the land upon the principles announced by the court, and which had not been made the ground of the claim of the railroad company to any part of the land in the court below. It had claimed all of the land granted to it by Ragsdale, and insisted that its title had become absolute by performance of the condition on which it held. The court was of opinion that it had certainly lost all claim to sixteen acres of the twenty-two, and so decided, but as to the remainder of the land, as to which the parties themselves had made a difference in their dealings Avith each other, the court finally declined to decide, and left the right to that an open question by dismissing the bill as to that “without prejudice.” The effect of that Avas to decide nothing as to the six acres, and to place the matter just as if there had never been a suit about it.
We have made a careful examination of the suggestions of error, and are satisfied with our formér conclusión and adhere to it. '