27 N.J. Eq. 286 | New York Court of Chancery | 1876
The causes of demurrer assigned on the argument were, that the contract on which the bill is filed was ultra vires, and' that if it were not, the complainants have an adequate remedy at law. The bill is filed by the executors‘of William L.’ Hoppock, deceased, and the claim to relief is based on an agreement in writing, made on or about the 27th of June, 1834, between the testator and John S. Wilson, of the one part, and the Delaware and Earitan Canal Company, of the other part, by which the company guaranteed to Hoppock and Wilson, and their heirs and assigns forever, out of the feeder of the canal, sufficient water (to be taken out above the dam then to be built across Wickhechcoke creek,) for three runs of stones at all times, and for a fourth run of stones at all times except when the water for it could not be taken out without injury to the company, as to which it was to be the judge. The water used for the mill was to be discharged into the feeder, and Hoppock and Wilson, by the agreement, agreed “ to release to the company the damages assessed by the commissioners,” and agreed also that the company, in passing through their land, might take, if it, saw fit, a strip of that land not exceeding fifteen feet in width in addition to what it then had along the line of its canal, and also land, in size not to exceed thirty by fifty feet, for a house for the keeper of the guard-lock; and they thereby yielded up all privileges or rights of taking water for mills out of the river Delaware. The bill alleges that Wilson subsequently transferred all his
The bill seeks relief on the ground of the inability of the complainants to obtain redress at law from want of information as to whom they should sue, and it asks discovery. I am satisfied that the complainants are entitled to the aid of the court in the premises. With a cause of action for damages against the canal company, (and by the act of February 15th, 1831, against the Camden and Amboy Eailroad Company, also,) they are unable to proceed against either of them, because these companies have both ceased to exist. The United Yew Jersey Eailroad and Canal Company, which succeeded them, received, as a consolidation, all of the property of the consolidated companies, “ subject,” in the language of the act, “to all the duties and obligations” then “existing upon or made by said three corporations,” and “subject to all contracts, Agreements and engagements” theretofore “lawfully made” by those companies or either of them. That company has parted with the possession of all the property which belonged to the consolidated companies, by leasing it, as above mentioned, to the Pennsylvania Eailroad Company and delivering it over to that company, which now holds it accordingly, and according to the bill, denies its liability to answer for the breach of the covenant. The property of the covenantor (part of it, perhaps, that which entered into the consideration of the covenant,) is here in the hands of lessees, whose lessors received it “ subject to ” the covenant, and the lessees claim to hold it free from obligation or liability in respect to the covenant. The lessors have no property which can be reached at law. Under the circumstances, the complainants are entitled
But the defendants insist that the agreement stated in the bill and on which this suit is founded, was ultra vires; and the case of Armstrong v. Pennsylvania R. R. Co,, 9 Vroom 1, is cited in support of this position. That case, however, does not sustain it. On the contrary, it was there held that it was not' ultra vires for the canal company, having a right to draw water from the Delaware river for its chartered purposes, to agree to discharge its waste water at a certain point; and that an action on such an agreement could be maintained. The ■ agreement stated in the bill was not, as the defendants’ counsel
The bill prays specific performance of the covenant as part of the relief.
The demurrers will be overruled, with costs-.