54 Ind. App. 286 | Ind. | 1912
Lead Opinion
Appellee filed this suit to compel specific performance of a covenant contained in a deed by which she conveyed to the first named appellant a strip of land constituting its right of way across her farm for an electric interurban railway. The house and other buildings on appellee’s land were situated about forty rods back from the highway and were reached by a private lane extending over her lands. The right of way conveyed to appellants crosses the land of appellee about half way between the buildings and the road and, at the point where it intersects the private lane, there is a cut eight or ten feet in depth. The deed contained the following covenant, which constituted a part of the consideration for the conveyance: “It is agreed between the parties to this conveyance that the grantee shall construct and maintain a suitable and proper overhead crossing 14 feet wide over grantee’s railway track with proper approaches on either side, said crossing not to be less than 22 feet in the clear from the rail grade and to be located at a point where the present lane of grantor’s land will be intersected by grantee’s railroad grade.” The In
The trial court made a special finding of facts and announced conclusions of law thereon, and gave judgment in favor of appellee decreeing and ordering appellants to specifically perform the covenant in the deed by the construction of the overhead crossing.
There is no universal rule that courts of equity will not enforce a contract which required some building to be done or some supervision to be exercised. In the case of Union Pacific R. Co. v. Chicago, etc., R. Co. (1895), 163 U. S. 569, 16 Sup. Ct. 1173, 41 L. Ed. 265, the Supreme Court of the United States enforced by a decree for specific performance a complicated contract made by one railway company to permit another to use its tracks. In Murray v. Northwestern R. Co. (1902), 64 S. C. 520, 42 S. E. 617, the court specifically enforced a contract on the part of a railway company to establish and maintain a passenger station. Storer v. Great Western R. Co., supra, was a ease in which the court compelled the defendant to construct and forever maintain an archway and its approaches. The court said there was no difficulty in enforcing such a decree. In Wilson v. Furness R. Co., supra, the defendant ivas compelled to erect and maintain a wharf. The objection that the judgment in this case involves continuous acts and supervision of the court is well met by the reasoning in Joy v. St. Louis (1890), 138 U. S. 1, 47, 11 Sup. Ct. 243, 34 L. Ed. 843, where the court
Appellants, however, attempt to distinguish the cases cited in support of this opinion from the case at bar. Without taking up the question at length, we will say that we have examined the statute of New York which is relied on as the basis for distinguishing the cases cited from that state. We find nothing in the statute referred to which could afford the courts of that state any reasons for the decisions cited.
Our attention is called to the case of Columbus, etc., R. Co. v. Watson, supra, in which it is held that a contract to keep a cattle guard in repair will not be specifically enforced. We are not called upon in this ease to determine whether the contract to maintain the overhead crossing can be specifically enforced by ordering repairs when needed. The decree appealed from orders only that the crossing be built, and is silent upon the subject of repair. If the question of the power of the court to order repairs should ever arise, it will then be the duty of the court to decide it, but we are not required to anticipate such decision.
A number of other questions are presented by the briefs.
Rehearing
On Petition fob Rehearing.
It is earnestly contended by appellants in their brief on petition for rehearing that this court erred in holding the paragraph of appellants’ answer insufficient, upon the ground that it failed to show that the contract sought to be enforced specifically was unjust, unfair or inequitable. Appellants state the rule to be that, in a suit for specific performance of a contract, the plaintiff must show affirmatively that the contract sought to be enforced is fair, just and equitable, and that it is supported by sufficient consideration and is capable of performance. It is claimed that the ruling complained of places upon the defendant the burden of showing that the contract is unfair and inequitable, and that it is erroneous for that reason.
After a careful examination of appellants’ petition and briefs on petition for rehearing, we are confirmed in our view of the law as expressed in the original opinion.
Petition for rehearing overruled.
Note.—Reported in 99 N. E. 757; 100 N. E. 765. See, also, under (1) 33 Cyc. 318; (2) 16 Cyc. 41; (4) 36 Cyc. 587, 599; (6) 36 Cyc. 774; (8) 36 Cyc. 609. As to specific performance of a construction contract or contract to repair, see 9 Ann. Cas. 160; Ann. Cas. 1913 A 923.