(after stating the facts). It'appears from the record that the Douglass Coal Company transferred their mining lease, and sold to the defendant, HarbottleBailey Coal Company, their mine fixtures on the'6th day of November, 1918. At that time the Douglass Coal Company was operating its mines under an agreement with the St. Louis, Iron Mountain & Southern Railway Company for the construction of a spur track upon which to load coal from their mine. The spur track was constructed by the Douglass Coal Company under an agreement with the Railway Company and extended out on the land of the Douglass Coal Company 92 feet. On the 6th of November, 1918, the Douglass Coal Company, a partnership, transferred their interest in their agreement with the railway company to the defendant.
It is claimed by counsel for the plaintiffs that this transfer is void because, under the terms of the agreement between the railway company and the Douglass Coal Company, the latter could not assign their interest in the contract without the written consent of the railway company. This provision, however, was evidently inserted for the benefit of the railway company and might be waived by it. The railway company permitted the defendant to use the spur track under the terms of the original agreement between the railway company and the Douglass Coal Company. It thereby waived the provision of the contract that no assignment thereof should be made without the written consent of the railway company. Therefore, the defendant succeeded to the rights of the.Douglass Coal Company in the contract with the railway company and had the right to the exclusive use .of the spur track in question. The plaintiffs were permitted to load coal from their mine on- cars placed on this spur track *477under a verbal permission to do so. This was revocable at tbe will of tbe party granting it. It does not appear that the Douglass Coal Company or tbe defendant ever entered into an agreement Avith tlie plaintiffs or their grantors to use the spur track to load their coal on cars for any definite length of time.
According to the evidence for the defendant, the plaintiffs were permitted to use the track so long as it did not interfere with the business of the defendant. When the business of the defendant increased to such an extent that it was necessary for it to use the spur track at all times to load' its own coal, it refused to alloAv the plaintiffs to use it any longer to load their coal. This the defendant had a right to do, and the plaintiffs had no right to- use tlie spur track after their license to use it was revoked by the defendant:
As we have already seen, the contract between the railway company and the Douglass Coal Company for the construction and use of the spur track was transferred by the Douglass Coal Company to the defendant, and the latter continued to operate its coal mine and use the spur track under the provisions of the agreement. The railway company, having consented to the transfer, is in no attitude to object that the transfer was not in writing, and it does not do so.
The plaintiffs have no right to object; for they are not parties to the contract, 'and, no matter how great their necessities may be, they have no right to use the spur track to load their coal unless by the consent of the defendant. The spur track is a private one, and not an industrial track open to the use of the public.
Therefore,- the court erred in making any finding in favor of the plaintiffs, and the decree will be reversed with directions to the chancery -court to dismiss the bill of the plaintiffs for want of equity.