74 Wis. 26 | Wis. | 1889
If we rightly understand this case, the action is brought to enforce the specific- performance of a contract to erect a city hall and lock-up upon a lot mentioned in the complaint, and to restrain the common council from building or attempting to erect such building upon another lot. It appears from the complaint and supporting affidavits that the officers of the city, in 1887, purchased of the firm of Kendall & Go. a lot upon which to erect a city hall and lock-up. According to the conditions in the deed of conveyance, the building to be erected was to be of a certain height and constructed of specified materials, and in case the city failed to maintain the building on the lot for five years the title should revert to the grantors. The city accepted the conveyance, and took steps preparatory to the erection of the building. Some time subsequently the city obtained another lofy by gift or purchase, which was deemed more convenient and suitable for a public hall site, and abandoned the notion of building on the Kendall lot. It is alleged that the officers of the city threaten or are preparing to erect the city hall upon the new lot. Hence this
It seems to us there are serious objections to granting the relief asked for in this suit. Mr. Justice Story says it has been a matter of some conflict of opinion how far courts of equity ought to entertain a suit for the specific pei’formance of a covenant to build or rebuild a house of a specified form and size on particular land. In the earlier cases the jurisdiction was maintained, but in the more recent authorities the doctrine has been denied, and courts of equity have not enforced such a covenant. See 2 Story’s Eq. Jur. §§ 125, 726; Fry on Spec. Perf. §§ 65-76; Beck v. Allison, 56 N. Y. 366; Danforth v. P. & C. M. S. L. R. Co. 30 N. J. Eq. 12; Oregonian R. Co. v. O. R. & N. Co. 11 Sawy. 33, 37 Fed. Rep. 733. Furthermore, there are the most cogent reasons why the court should refuse to decree the specific performance of the agreement to build the city hall on the Kendall lot. The matter of erecting a public building which shall furnish suitable accommodations for the business and needs of the city is eminently a question for the common council to decide. In the decision of the question the common council exercises its judgment and discretion, and determines to erect a building, we must presume, where it will best meet the general convenience and wants of the corporation. Certainly a court of equity ought not to interfere to control or revise the discretion and judgment of the common council, if it acts honestly in the matter. How and 'where a public building shall be erected is necessarily a question of public policy, and involves a variety of considerations. The common council is vested by law with full authority to decide them. The court cannot wisely review their action on such a subject. It seems to us that this view is sound and rational.
It appears that the plaintiffs own other lots and valuable property adjacent to and in close proximity to the Kendall
By the Oourt.— The order of the circuit court is affirmed.