Bleckley, Chief Justice.
The record is such a medley and mass of stuff that it is impossible to tell in any reasonable time how many errors are covered up in it. We shall deal with only a few of the most obvious points, and leave the case tó come up hereafter in a better shape if either of the parties think proper to bring it here again.
It was error to admit parol evidence of the contents of the alleged bond for titles from Yanzant to Strickland, the bond being relied upon in the abstract of title, and .its non-production not being sufficiently accounted for. If it was in existence and accessible to the party wanting to use it, it should have been produced. If it was lost or destroyed, the fact of its loss or destruction should have been proved as a necessary preliminary to proving its contents by other evidence.
If the railroad was graded under the deed from Yanzant to the Georgiá Western Railroad Company, the work of grading was a part payment of the consideration for that deed, and the subsequent finishing of the road by the successor of that company, was the completion of the payment. Strickland having witnessed the execution of that deed with a knowledge of its contents, was bound to object to the construction of the work if he claimed title to the premises, and as he did not do so, he is estopped from asserting his title. He is in the situation of one who sees another purchase property and pay for it, and then endeavors to recover it on a title which he did not disclose. That the agent who took the deed in behalf of the com pany knew of his claim of title,would have been notice to the Georgia Western company if Strickland had not by attesting the deed virtually given the company written notice to the contrary. When he attested the deed by which Yanzant conveyed the right of way, he impliedly assented to that deed; and if he meant that it should not affect his rights, he ought to have objected to the construction of the road, he having, according to the evidence in the record, actual knowledge both of the contents of the deed arid of the work done on the premises at all stages of its progress. His mere attestation of the deed would not have been binding upon him if he had not afterwards stood by and seen money expended on the faith of it. Certainly the Georgia Pacific company had no reason to apprehend that he would ever assert a title in opposition to the deed which he had’ attested; that company, so far as appears, had no notice whatever of any claim on his part adverse to the title which the Georgia Western company acquired under the deed — the very deed to which his attestation gave authenticity and credit.
We do not agree with the apparent position of the court below, that a railway company is not to be considered in continuous, actual and adverse possession of its graded or partially graded work until after track is laid and trains begin to run. We think, on the contrary, that entering upon the right of way under a conveyance of it, and grading or partially grading the line at a given place, will constitute possession at that place, and that mere delay to finish the work and put on trains will not hinder the possession from being complete and continuous. It may take years to finish the work of a railroad, and the prosecution of the work may be suspendend and resumed many times. No mere suspension of work will oust the company from possession. In determining whether there is possession or not under a grant, the nature and purpose of the grant must be considered; and a grant which contemplates the construction and operation of a railroad, involves for its enjoyment the..possession of the premises from the.time.construction commences and during the whole period construction is in progress.
The application of these views to the present case will carry back the possession to the. time when the Georgia Western company entered tinder the grant to it from Yanzant, and began to construct its road way by clearing and grading for the same on these premises.
The court erred in not granting a new trial.
Judgment reversed.