106 Me. 248 | Me. | 1909
This is a bill in equity brought by the plaintiff corporation to compel the specific performance qf an undertaking en the part qf the defendant, created by a reservation in a deed of land, to construct and maintain an overhead street crossing suitable for .foot passengers and teams. The case was reported for the determination of the Law Court upon bill, answer and replication, and so much of the evidence reported as is legally admissible.
John B. Brown of Portland, the plaintiff’s predecessor in title, was the owner of a tract of land in Portland over which the right of way of the Maine Central Railroad was located, and in 1873 he conveyed a part of it to the defendant, the Boston and Maine Railroad, by a deed containing the following reservation, to wit: "The
grantor reserves to himself, his heirs and assigns, the right to an overhead street crossing at such point northerly of the Portland & Ogdensburg location as he, his heirs or assigns may designate, suitable for foot .passengers and teams, to be on request constructed and always maintained by the grantees, their successors and assigns, so far as concerns the property herein conveyed, the obligation to do which is imposed upon the said grantees, their successors or assigns, by the acceptance of this deed.”
The tract described in this deed is one hundred feet in width and is bounded on the east by the westerly line of the location of the Maine Central Railroad. But the grantor still retained title to the remaining parts of the original tract-, one lying on the west side of and adjoining the strip conveyed to the defendant by the deed
The defendant’s answer raises no question respecting the title to the several tracts of land mentioned in the bill, and admits the acceptance of the deed of the tract in question with the reservation as stated. It also admits that a demand was made by the plaintiff upon the defendant for the construction of an overhead street crossing, and that a place was designated by the plaintiff for the construction of it across the tract of land conveyed to defendant, and the tracks of the Boston and Maine railroad. The defendant further says that it has at all times been ready and willing to perform any obligations assumed by virtue of the acceptance of the deed in question, but that no street crosses the land of the plaintiff or the location and tracks of the Maine Central Railroad, or the location and tracks of the defendant at the point designated for the overhead crossing by the plaintiff. "That an overhead crossing at that point over the land of the defendant could not be an overhead street crossing; that an overhead crossing at that point, if constructed, would end in the air above the point where the location of the Maine Central Railroad Company adjoins the location of the defendant; that an overhead crossing would not cross the location of the Maine Central Railroad Company, and would not be suitable for and could not be used by, foot passengers and teams; that the construction and maintenance of such an overhead crossing would be impracticable, useless and of no benefit to the plaintiff, and would impose upon the defendant, great, useless and uncalled for expense and hardship, and become a source of danger to the defendant and its employees; and that the obligation to maintain the bridge is continuous.” The defendant also denies that the plaintiff
It appears from the testimony of a civil engineer called by the defendant, that an overhead street crossing suitable for foot passengers and teams across the strip of land conveyed to the defendant, must be 102i feet long and 23 feet high, and if' built 60 feet wide in accordance with the resolution of the city council respecting new streets, the cost of such a structure would be fairly estimated at $18,000. The witness expressed the opinion, however, that a bridge 30 feet wide would be suitable and sufficient in that place for any travel that might be expected to go over it. But with the appropriate reduction in the estimate of $18,000, required by this difference in width, it is obvious that the expense of such a structure 30 feet in width would still be very large. He further states that in his opinion such a bridge would not be of any benefit to any one, but only a source of annoyance by reason of the fact that it might obstruct signals in the yard, and in .case of any derailment a pier would naturally aggravate any damage that might happen.
It is conceded by the plaintiff that an overhead bridge extending only across the 100 foot tract conveyed to the defendant and terminating in the air 23 feet above the pavement, at the westerly line of the Maine Central location, would be a useless structure; but it is contended that such a bridge would not be a suitable overhead street crossing such as was contemplated by the parties and described in the reservation in the deed. The plaintiff contends that the defendant must be presumed to have had knowledge of the grantor’s ownership of the tracts of land on both sides of the strip conveyed, and that in making the reservation in the deed the parties must have contemplated the construction of an overhead crossing which would afford communication from one of these tracts of land to the other over both the Maine Central and the Boston and Maine locations. It is urged that any other construction of the contract would defeat the purpose for which the reservation was made.
This statement of the situation has the merit of plausibility, but the soundness of the argument must be tested by reference to the terms
It is true that the defendant subsequently obtained a majority of. the stock of the Maine Central Railroad Company, and the plaintiff contends that it thereby acquired the power and came under obligation to build the bridge across the Maine Central location. But this view cannot be accepted by the court. If the defendant had become the owner of the fee of the Maine Central location, that
The relief afforded by a bill for specific performance of contracts is purely equitable and is given as a substitute for the legal remedy of compensation whenever the remedy at law is inadequate or impracticable; and the granting of the equitable remedy is uniformly deemed a matter of sound judicial discretion, controlled by established principles of equity and exercised upon a consideration of all the circumstances of each particular case. 6 Pomeroy’s Eq. Remedies 11, sects. 744, 762; Rogers v. Saunders, 16 Maine, 92; Snell v. Mitchell, 65 Maine, 48; Telegraphone Corp. v. Canadian Tel. Co., 103 Maine, 444; Curran v. Holyoke Water P. Co., 116 Mass. 90; Washington Irr. Co. v. Krutz, 119 Fed. 279; Stoughton v. La Campagnie, 113 Fed. 21; Willard v. Tayloe, 8 Wall. 557. In the last named case the court said :
"No positive rule can be laid down by which the action of the court can be determined in all cases. In general it may be said that the specific relief will be granted when it is apparent from a view of all the circumstances of the particular case that it will subserve the ends of justice ; and that it will be withheld when from a like view it appears that it will produce hardship or injustice to either of the parties. It is not sufficient, as shown by the cases cited, to call forth the equitable interposition of the court, that the legal obligation under the contract to do the specific thing desired may be perfect. It must also appear that the specific enforcement will work no hardship or injustice.”
In Pomeroy’s Eq. Rem., sect. 796, it is said : "Specific performance not being an absolute right the fact that enforcement would be of little or no benefit to the complainant, and a burden upon the defendant, is sufficient to constitute performance oppressive and it will not be given,” See also Conger v. N. Y. W. S. & B. R. R.,
"The equities here do not demand the interposition of the court. No available crossing can be made in compliance with the covenant, and even if the defendant should be required to construct the under-passage it would only lead to a narrow strip of unproductive land, which can be reached much better further north where the railroad is built on the natural grade, and the plaintiffs have reserved the right to cross -the railway when constructed to and from the same strip of land.
"These and the facts that the under-passage would be subject to the inflowing tide seem quite sufficient to justify the court in refusing to compel the defendant to expend a large amount of money, without any practical utility to the plaintiffs.”
There is still another rule respecting this remedy, uniformly recognized by courts of equity, that is also applicable to the facts in the case at bar. It has not been overlooked that by the terms of the reservation the overhead street crossing was not only to be constructed but "always” maintained by the defendant. In Beach
See also Blackett v. Bates, 1 Chancery App. Cases, 117; Powell Duffryn Steam Coal Co. v. Taff Vale Ry. Co., 9 Law Rep. Chancery Appeal Cases, 334.
In the case at bar it is manifest that performance of the contract according to the terms of the reservation would not be beneficial to the plaintiff, but would prove imperfect and nugatory ; that it would impose an unnecessary expense and burden upon the defendant; and that since the bridge must be maintained forever, no decree could be made which could be wholly performed at once, but must be for the performance by the defendant of the perpetual duty of
It is therefore the opinion of the court that a decree of specific performance would be unequitable and ought not to be granted, and that the certificate must accordingly be,
Bill dismissed with costs.