Green, J.
We have included in the foregoing statement so much of the evidence as we deem material in the consideration of this case.
It is contended by appellant that the contract of April 3, 1873, between appellee and the Cairo & St. Louis Railroad-Company, was not a lease; that it expired by its terms on the last day of April, 1878, when the road was operated by the receiver, who positively repudiated its terms and refused to pay the contract price for the use of the track; that when' defendant'came into possession of the railroad it continued to use plaintiff’s track as the receiver had been doing, without any agreement, and without anything being said in relation to the use of this track or the compensation therefor, and there is nothing to show the defendant knew there was or had been any written contract. Hence this suit can not be maintained, because it is brought upon an alleged-agreement of defendant to pay $25 per day for the use of plaintiffs track, and no such promise can be implied from the facts and circumstances proven.
To us it seems the contract possesses all the essential qualities of a lease, and was intended to be such by the parties executing it. The Cairo & St. Louis Railroad Company’s road was a narrow gauge road, the northern terminus of which was East St. Louis. At the date of the contract its road extended north only to the- junction below Cahokia, and from that point to reach East St. Louis and carry freight and passengers over the line to its northern terminus, it became necessary to run its trains over the track of appellee, and also to have the use of a rail to be placed and maintained between the rails of appellee’s track and thus furnish a narrow gauge. To meet this necessity this contract was made. By its provision the lessee was given the right to use the track of appellee and the single rail furnished by the lessee (evidently in tended for its exclusive use), for the term of five years at a stipulated 'minimum compensation of $25 per day, to be paid appellee monthly after July 1, 1873. The use of the track contemplated by both parties was for the purpose of enabling appellant to carry passengers and freight for hire on its trains running upon the narrow gauge track constructed by putting in said single rail on appellee’s right of way. To exercise the right to carry on such traffic, the use of appellee’s franchise was necessarily given, because without this, appellant could not lawfully so carry on its business as a common carrier over appellee’s road. City of Chicago v. Evans, 24 Ill. 52.
It thus appears by the record that the use of appellee’s right of way and the exclusive use of the single rail attached to the soil was given by the contract, and this was a use of realty in legal contemplation, and the use of appellee’s franchise was also intended to be and wras included, which was a use that could lawfully be demised. The general rule is, that not only lands and tenements, but franchises, can be demised. A railway company may lease its franchise and property by authority of the Legislature. Taylor’s Landlord and Tenant, 8th Ed., Sec. 17.
In Rohn et al. v. Harris et al., 130 Ill. 525, which was a proceeding for partition, it was held that a ferry franchise, while strictly speaking not real estate, partook so far of the nature thereof that it might be partitioned in the same manner as real property, citing 3 Kent, 458, 459, and Dundy v. Chambers, 23 Ill. 369, in which case the court held a ferry franchise could only be transferred in accordance with the provisions of the statute of conveyances. We perceive no difference between the franchise whereby the right is given a ferry company to exact and collect toll for the transportation of passengers and property over water, and the franchise whereby the right is given to a railroad company to exact and collect compensation for the transportation of passengers and property over the land, so far as the matter of conveyance or leasing is concerned.
The record discloses that the lessee company entered and held under this lease until December 6, 1877, when the receiver took charge of and operated its road over and upon this narrow gauge track while the lease was still in force and before the expiration of the five years, and continued such use and operation after such term expired until he turned over the possession of all the lessee’s property, including the track, mentioned in the lease on February 1,1882, to appellant, and paid as rent §333.33 each month, which the lessor received and receipted for only on account and not in full, refusing at all times to reduce the rent, or make a new contract. Smithers knew all this, and if he did not wish to pay the full amount of rent reserved he should have quit the use. He could not as receiver enter under this contract and continue to use and occupy the premises as he did, and without the consent of the lessor either repudiate or change the terms of the contract Higgins v. Halligan, 46 Ill. 173; Griffin v. Knisely, 75 Ill. 411.
On February 1, 1882, appellant, as grantee in the deeds of the trustees and receiver, entered into possession of, and from that time continued to use and occupy arid run its trains over the same track, and pay rent therefor in the same manner the receiver did; accepting without objection receipts on account and not in full, until it terminated the contract, August 31, 1883, by giving the notice therein provided for. The evidence shows, as we understand it, that the relation of landlord and tenant between appellee and appellant existed, and aside from its legal liability as assignee of a lessee, holding over, to pay the rent reserved by the terms of the lease, the proof also shows that in fact appellant used the track, right of way, and franchise of appellee under and by virtue of the contract, and it was bound to pay the rent according to the terms thereof. The lease was executed in duplicate, one being retained by each party. Smithers evidently found the one kept by the lessee, because he refers to it in his testimony as the old contract. Hamilton (appellant’s superintendent) says he had charge of the lessee’s property for the receiver, and most probably had seen it. He testified he knew about the pay. ment of rent during the receivership. He paid it. The monthly sums paid were the same in amount and paid in the same manner during the time appellant continued in possession. Thomas, appellee’s cashier, testified that monthly statements, charging appellant with rent at the rate of $25 per day, were transmitted to it or its officials, and that he in person presented such a statement for the rent of Hay, 1882, to appellant’s cashier in June of that year. That when he went to collect the rent monthly, at the appellant’s office, he would be first presented with the voucher for a month’s rent at the rate of $333.33 per month, with a receipt for that sum in payment attached, which he would refuse to sign, but would sign and deliver a receipt for that amount on account, which was accepted. The superintendent says he made out this form of voucher and that appellee’s officer would attach the receipt for $333.33. He knew then the voucher and receipt-in full, prepared by him, wras not signed by appellee’s officer, and the receipt which was so signed and given was itself a notice to him.
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Green, J.
We have included in the foregoing statement so much of the evidence as we deem material in the consideration of this case.
It is contended by appellant that the contract of April 3, 1873, between appellee and the Cairo & St. Louis Railroad-Company, was not a lease; that it expired by its terms on the last day of April, 1878, when the road was operated by the receiver, who positively repudiated its terms and refused to pay the contract price for the use of the track; that when' defendant'came into possession of the railroad it continued to use plaintiff’s track as the receiver had been doing, without any agreement, and without anything being said in relation to the use of this track or the compensation therefor, and there is nothing to show the defendant knew there was or had been any written contract. Hence this suit can not be maintained, because it is brought upon an alleged-agreement of defendant to pay $25 per day for the use of plaintiffs track, and no such promise can be implied from the facts and circumstances proven.
To us it seems the contract possesses all the essential qualities of a lease, and was intended to be such by the parties executing it. The Cairo & St. Louis Railroad Company’s road was a narrow gauge road, the northern terminus of which was East St. Louis. At the date of the contract its road extended north only to the- junction below Cahokia, and from that point to reach East St. Louis and carry freight and passengers over the line to its northern terminus, it became necessary to run its trains over the track of appellee, and also to have the use of a rail to be placed and maintained between the rails of appellee’s track and thus furnish a narrow gauge. To meet this necessity this contract was made. By its provision the lessee was given the right to use the track of appellee and the single rail furnished by the lessee (evidently in tended for its exclusive use), for the term of five years at a stipulated 'minimum compensation of $25 per day, to be paid appellee monthly after July 1, 1873. The use of the track contemplated by both parties was for the purpose of enabling appellant to carry passengers and freight for hire on its trains running upon the narrow gauge track constructed by putting in said single rail on appellee’s right of way. To exercise the right to carry on such traffic, the use of appellee’s franchise was necessarily given, because without this, appellant could not lawfully so carry on its business as a common carrier over appellee’s road. City of Chicago v. Evans, 24 Ill. 52.
It thus appears by the record that the use of appellee’s right of way and the exclusive use of the single rail attached to the soil was given by the contract, and this was a use of realty in legal contemplation, and the use of appellee’s franchise was also intended to be and wras included, which was a use that could lawfully be demised. The general rule is, that not only lands and tenements, but franchises, can be demised. A railway company may lease its franchise and property by authority of the Legislature. Taylor’s Landlord and Tenant, 8th Ed., Sec. 17.
In Rohn et al. v. Harris et al., 130 Ill. 525, which was a proceeding for partition, it was held that a ferry franchise, while strictly speaking not real estate, partook so far of the nature thereof that it might be partitioned in the same manner as real property, citing 3 Kent, 458, 459, and Dundy v. Chambers, 23 Ill. 369, in which case the court held a ferry franchise could only be transferred in accordance with the provisions of the statute of conveyances. We perceive no difference between the franchise whereby the right is given a ferry company to exact and collect toll for the transportation of passengers and property over water, and the franchise whereby the right is given to a railroad company to exact and collect compensation for the transportation of passengers and property over the land, so far as the matter of conveyance or leasing is concerned.
The record discloses that the lessee company entered and held under this lease until December 6, 1877, when the receiver took charge of and operated its road over and upon this narrow gauge track while the lease was still in force and before the expiration of the five years, and continued such use and operation after such term expired until he turned over the possession of all the lessee’s property, including the track, mentioned in the lease on February 1,1882, to appellant, and paid as rent §333.33 each month, which the lessor received and receipted for only on account and not in full, refusing at all times to reduce the rent, or make a new contract. Smithers knew all this, and if he did not wish to pay the full amount of rent reserved he should have quit the use. He could not as receiver enter under this contract and continue to use and occupy the premises as he did, and without the consent of the lessor either repudiate or change the terms of the contract Higgins v. Halligan, 46 Ill. 173; Griffin v. Knisely, 75 Ill. 411.
On February 1, 1882, appellant, as grantee in the deeds of the trustees and receiver, entered into possession of, and from that time continued to use and occupy arid run its trains over the same track, and pay rent therefor in the same manner the receiver did; accepting without objection receipts on account and not in full, until it terminated the contract, August 31, 1883, by giving the notice therein provided for. The evidence shows, as we understand it, that the relation of landlord and tenant between appellee and appellant existed, and aside from its legal liability as assignee of a lessee, holding over, to pay the rent reserved by the terms of the lease, the proof also shows that in fact appellant used the track, right of way, and franchise of appellee under and by virtue of the contract, and it was bound to pay the rent according to the terms thereof. The lease was executed in duplicate, one being retained by each party. Smithers evidently found the one kept by the lessee, because he refers to it in his testimony as the old contract. Hamilton (appellant’s superintendent) says he had charge of the lessee’s property for the receiver, and most probably had seen it. He testified he knew about the pay. ment of rent during the receivership. He paid it. The monthly sums paid were the same in amount and paid in the same manner during the time appellant continued in possession. Thomas, appellee’s cashier, testified that monthly statements, charging appellant with rent at the rate of $25 per day, were transmitted to it or its officials, and that he in person presented such a statement for the rent of Hay, 1882, to appellant’s cashier in June of that year. That when he went to collect the rent monthly, at the appellant’s office, he would be first presented with the voucher for a month’s rent at the rate of $333.33 per month, with a receipt for that sum in payment attached, which he would refuse to sign, but would sign and deliver a receipt for that amount on account, which was accepted. The superintendent says he made out this form of voucher and that appellee’s officer would attach the receipt for $333.33. He knew then the voucher and receipt-in full, prepared by him, wras not signed by appellee’s officer, and the receipt which was so signed and given was itself a notice to him. that a larger sum was claimed for the month’s rent by appellee, and that the sum of $25 per day was charged in the monthly statements transmitted to appellant’s officials, which he says were not presented to him; but the cashier, to whom one at least was presented, as Thomas says, was not introduced to deny having received the same. But, in addition to all this, the official correspondence between Hamilton, superintendent for appellant, and Hill, superintendent for appellee, conclusively shows that both understood appellant had been and was using and occupying the demised premises under and by virtue of this lease, and not otherwise.
On May 30, 1883, Hamilton, by his letter of that date, advises Hill that appellant would not require the use of appellee’s road after May 31st. On June 1, 1883, Hill replies to this: “ I have your letter of May 30, 1883, advising me 3rou will not require the use of this road after May 31,1883. My understanding of the agreement under which your company has used this road, is, that it requires ninety days notice to terminate it, and 1 shall so construe your notice.” Hamilton’s understanding is the same, evidently. He does not reply as he would have done if he understood the old contract, reserving a minimum rent of $25 per day, was not binding on appellant, but continues to use and occupy the demised premises for it, without further correspondence, until August 29, 1883, when he writes to Hill, informing Mm appellant had at last gotten on its own track between East St Louis and South Junction, and had no longer use for appellee’s road between those points; that the ninety days claimed by Hill would expire the next Friday, and he desired to take up the rail of appellant as soon as possible. The right to take up this rail is given only by the lease, and the notice required to terminate the contract is one of the provisions thereof. The remarks made concerning the refusal of Smitliers to pay the full rent demanded will apply to the like refusal of appellant. Having availed itself of all the rights and benefits it acquired by the lease, under the facts proven it is liable for the rent. The damages assessed were not excessive. Appellant used and occupied the demised premises for a period of 577 days, and paid $6,333.65. The court properly found appellant liable to pay the minimum rental o-f $25 per day, amounting to $14,425. Deducting payments made, a balance of $8,091.35 remained unpaid on September 10, 1883, and interest added at six per cent on such balance from that date to September 17, 1889, the date of trial, which was properly allowed, makes a sum greater than $11,004.64, the amount of judgment.
We think the judgment was warranted by the evidence, and it is affirmed.
Judgment affirmed.