| U.S. Cir. Ct. | Jun 2, 1885
I shall notice but a single question, for that is decisive. The relator does not insist that by the charter authorizing tho railroad company to build its road from Leavenworth, a duty was imposed to complete the whole line which can bo enforced by mandamus, but rests the case upon the land grant and its acceptance, claiming that thereby a contract obligation was assumed by the company which the courts will enforce by mandamus. Conceding, for the purposes of this case, that contract obligations of a similar nature may sometimes be enforced, yet where the parties in their contracts expressly provide a penalty for a broach, such penalty will exclude any other remedy; and in this contract the parties have named a penalty for any breach. The grant provides that upon the completion of each consecutive 20 miles of road it shall become operative as to alternate sections, and that, upon the failure to complete the road within 10 years, the unearned lands revert to the United States. In other words, this reversion or forfeiture is the penalty for failure to complete the road. The grant does not prescribe at what point in the line the work shall be commenced. It was within the option of the company to commence at Leavenworth, the northern terminus, or at the southern boundary of the state, or at any intermediate point.
It might have commenced at the northern and southern termini at the same time, and, upon the completion of 20 miles from each terminus, would have been entitled to tho alternate sections adjacent thereto. When it completed any 20 consecutive miles, it earned the alternate sections adjacent, and if it failed to complete any portion of the road within 10 years, it lost all interest in the adjacent lands. Suppose it had never built a mile of road during the 10 years, and so earned none of tho lands, could it bo seriously claimed that mandamus would lie to compel such construction in the face of this provision,— that by its failure the whole grant had failed; and if that bo true in case of total failure, is it not equally true in case of partial failure ? The parties prescribed the terms of the contract, and what should be the result in the case of a failure of the beneficiary to perform. As was well said by the counsel for the defendant, this application in some respects represents a bill for a specific performance; and where the whole consideration has failed, and the plaintiff is powerless to perform on his part, would a court of equity compel a defendant, receiving nothing, to perform ? Clearly, the defendant would be entitled to receive the consideration if obliged to perform his contract, and if the consideration was lost, the contract to perform would not be enforced. The case of the State v. Southern Minn. Ry. Co. 18 Minn.
The motion to quash the writ will be sustained, and judgment accordingly.