Opinion by

The evidence in this case, which we regard as amply sufficient to establish the alleged agreements of Poindexter to build the *108fence, in consideration of the assent and permission of the appellee to the putting down and using of the switch upon his land, does not necessarily impart a promise which was not to be performed within one year, but an undertaking which ought, at least, to have been complied with when the right of way was granted; and it does not appear that it was contemplated by the parties, when they made the contract, that its performance should be deferred on either side for over one year; nor dó we think the obligation to make the fence failed for want of consideration. The privilege of using the switch carried with it, so far as was necessary and indispensable to that use, the right of ingress and egress, and Poindexter himself seems to have considered the benefit, thus secured to him a fair equivalent for his undertaking to make the fence.

The evidence and agreed statement of facts seem to sustain the allowance made by the commissioner, and the judgment confirming it.

Therefore the judgment is affirmed.