SECTION IX. Specific Performance. 1. Courts of equity will often hold control over | 6. A contract between different companies for the use of each other's track is permanent, and will be enforced in equity. 2. But where the legal right is clear, equity 7. Will decree specific performance in regard will not interfere. to farm accommodations. 3. And where the affidavits are conflicting, 8. Specific performance affected by mistake court declined interfering. 4. So, too, where the company agreed to stop at a refreshment station. 5. So, also, if there is doubt of the legality of the contract, or its character. of the parties. Subscription to stock will not be annulled because made through mistake, except upon prompt action. § 213. 1. There can be no doubt courts of equity will, in proper cases, decree specific performance of contracts between different railways, or between natural persons and railway companies. But where the legal rights of the parties are doubtful, and no irreparable injury is to be apprehended, an action at law to try the legal question was ordered, and the business of the companies concerned was ordered to go on, the injunction of the Vice-Chancellor being dissolved by the Lord Chancellor for that purpose, and an account of passengers and traffic upon the railway, * in the mean time, ordered to be kept, to enable the Chancellor ultimately to adjust the question of damage according to the decision of the question at law.1 2. But it was said, in another case,2 by the Lord Chancellor, 1 The Shrewsbury & Birmingham Railw. v. The London & N. W. Railw. & The Shropshire Union Railw., 1 Eng. L. & Eq. 122. The question in this case was whether the defendants, according to a certain contract, claimed to exist between the companies, were at liberty to do business between certain points. It was claimed, among other things, that the contract was wholly void, as against public policy. Furness Railw. Co. v. Smith, 1 De G. & S. 299; ante, § 142. And see Munroe v. Wivenhoe, &c. Railw., 11 Jur. N. S. 612; s. c. 12 L. T. N. S. 655; Cardiff v. Cardiff Waterworks Co., 4 De G. & J. 596; Imperial Gas Light & Coke Co. v. Broadbent, 7 H. L. Cases, 600. 2 Playfair v. Birmingham, Bristol, & Thames J. Railw., 1 Railw. C. 640. Courts of Equity will not decree specific performance of the contract of directors reversing the deeree of the Vice-Chancellor, that the court cannot upon an alleged equity interfere with an admitted legal right, unless there be a manifest certainty that at the hearing of the cause the plaintiff will be entitled to relief: That the title to relief in this case was not so clear as to justify the court in continuing the injunction, except upon the terms of the plaintiff giving judgment in the action and paying the amount sued for into court. 3. And in a case where the time for taking land under the company's act had expired, they having purchased land of A, and of B, and being about to enter upon the land to which they supposed they had purchased the title of B, A claimed a lifeestate in the same, and brought this bill to restrain the company from proceeding to appropriate it. The affidavits being conflicting, the court refused to interfere by injunction, but left the plaintiff to his remedy at law.3 4. So, too, the court refused to grant an injunction requiring the company to stop their train at a refreshment station, as the plaintiff claimed they had agreed to do, the company undertaking to pay such a sum of money as may be assessed as damages for the violation of the covenant, to be ascertained by the court.4 * 5. But where any doubt arises in regard to the legality of a of a railway company, which is grossly improvident. 29 L. T. 186. Where a contract contains an express negative covenant, and complete justice can be done between the parties, the court will grant an injunction to prevent a breach of the negative covenant; but the court rarely interferes where there is no express negative stipulation, but the negative obligation is only to be inferred from a positive contract. Pete v. Brighton, &c. Railw., 32 L. J. Ch. 677. 3 Webster v. The Southeastern Railw., 6 Railw. C. 698. Rigby v. The G. W. Railw., 1 Cooper's Cases, 6; s. c. 4 Railw. C. 491. In this case at law, 4 Railw. C. 190, it was held to be unnecessary to aver, that the trains passing the station in violation of the covenant contained passengers desirous of having refreshment, and who gave notice thereof. Alderson, B., said: "I think the meaning of the covenant is, that the parties have undertaken to stop the trains in order to the temptation, so to speak, to the passengers to take refreshment." 14 M. & W. 811. The covenant in this case contained an exception of trains "sent by express, or for special purposes," and this was held not to include what are properly called " express trains." Hodges, 64. But in Sevin v. Deslandes, 7 Jur. N. S. 837, an injunction was granted to restrain an owner of a vessel from doing any act inconsistent with a charter-party into which he had entered. See De Mattos v. Gibson, 4 De G. & J. 276. contract, or if it be not of a class where specific performance is usually decreed, the court will not interfere by injunction.5 6. A contract between two railways, that each shall run upon the track of a portion of the other's line, is of a permanent character, and cannot be determined without the consent of both parties, although in terms it do not specify "successors," and if the line of one of the companies is leased to a third company, a court of equity will restrain the other party from interfering with the use of the line granted to the third company or its lessees. A contract for such an easement need not be by deed. 6 7. Courts of equity will decree specific performance of contracts by a railway company with a land-owner in regard to farm-crossings and such like works, upon the lands of the company, in which such party has an interest so material that the non-performance cannot be adequately compensated at law." 8. Courts of equity will not decree specific performance of any contract where there has been a mistake of one or both the parties in regard to the import of the terms used in the contract. Nor will it reform a contract on the ground of mistake unless it clearly appear that both parties were agreed in the 5 Johnson v. Shrewsbury & B. Railw., 19 Eng. L. & Eq. 584. This is the case of a railway leasing their line and furniture to plaintiffs, and the bill prayed an injunction against the railway determining the contract, contrary to what they claimed to be its true construction. The court said, that by the working of the line by other parties than the company, the public loses the benefit of the guaranty thereby afforded for care and attention. Such an agreement would seem to be illegal, as contrary to public policy. But if legal the plaintiffs had ample remedy at law. Foster v. Birmingham & Dudley Railw., Weekly R. 1853, 1854, 378; Hodges, 680. In Port Clinton Railw. v. Cleveland & Toledo Railw., 13 Ohio St. 544, it was held, that if the court could in any case decree specific performance of a contract to operate a railroad, requiring as it would the personal acts and involving the exercise of skill and judgment under varying circumstances and emergencies, it could only be in a case where the demand for the exercise of the power was stringent, and the circumstances such as to authorize the court in making the order to limit the duration as to time, and to define to some reasonable and proper extent the manner in which it should be obeyed. Courts of equity will never decree specific performance where the party has not the power to perform the decree, but will leave the party to his remedy at law. Ellis v. Colman, 25 Beav. 662. • Great Northern Railw. v. Manchester, Sheffield, & L. Railw., 10 Eng. L. & Eq. 11. 7 Storer v. Great Western Railw., 3 Railw. C. 106; ante, § 39. 8 terms, but the contract was so drawn as to express the mind of neither. But a court of equity will sometimes set aside and annul a contract on the ground of the innocent mistake of one party. But it must appear the plaintiff has not been in fault, and that no injustice will be done the other party. Hence the subscriber to the stock of a railway can have no relief in a court of equity, on the ground that, while intending merely to renew an old subscription to the stock, which had fallen through, he by some unaccountable mistake subscribed for double the amount, but, although knowing his mistake at once, he gave the company no notice, and suffered them to act upon the faith of the subscription during several months.8 SECTION X. Injunctions restraining one Company from interfering with exclusive Franchises of another. 1. Equity exercises a preventive jurisdiction | 5. Injunction against different lines, so con in such cases. necting as to create competing line. Many cases take similar view. 7. 2. Will not interfere where the legal right is 6. doubtful. 3. Unless to prevent irreparable injury, multi plicity of suits, or where legal remedy is 8. inadequate. Railway not regarded as an infringement of the rights of a canal. But will be restrained from filling up the canal. 4. Statement of facts and mode of procedure 9. Rights of railway companies if allowed to in such a case. decome proprietors of canals. § 214. 1. The subject of the exclusive franchises of corporations * will be considered elsewhere. But equity exercises a jurisdiction of a preventive character, by way of injunction, in regard to alleged infringements of such franchises, which is of a very important character. The general grounds of such interference are clearly and fully stated by Wigram, Vice-Chancellor, in the case of Cory v. The Yarmouth & Norwich Railway.1 8 Diman v. Providence, Warr. & Br. Railw. 5 R. I. R. 130. A corporation must be described in a bill in equity as one established by law in some state, and doing business at some place. Win. Lake Co. v. Young, 40 N. H. R. 420. 1 3 Railw. C. 524; s. c. 3 Hare, 593. This was a case where the plaintiff, owning a ferry, obtained an act of parliament allowing him to build a bridge, and enacting that any persons who should evade the tolls by conveying passen 2. It is considered that this interference is solely in aid of the legal right, that if the legal right is free from doubt equity may assume to decide it, or to act definitively upon its acknowledged existence. If it is considered conjectural, and altogether problematical, equity ordinarily will not interfere until the legal right is established by the judgment of the appropriate legal tribunal. 3. But in their discretion courts of equity will interfere by injunction, during the pendency of the trial at law, to prevent irreparable injury, to avoid multiplicity of suits, and in some cases where there is given no adequate legal redress.2 But where the injury is small and readily susceptible of estimation, equity will not generally interfere to the prejudice of the trial at law. 4. But in this case, where the only remedy given by the act was by recovering penalties de die in diem, in a summary way before a justice, which would not settle the right, the court directed an issue to be tried at law to settle the rights of the parties suggesting the outlines of the issue, the Master to direct the detail of the trial, and in the mean time directed the defendants to keep an account of all passengers and carriages, and all other things conveyed by them, and in respect of which the plaintiff would be entitled to any payment or toll if the same had passed over his bridge, and to furnish a copy of such account to the plaintiff before the trial, if requested.3 4 *5. In a recent very elaborate case, this subject is discussed gers, &c. over the river otherwise than by the bridge, should subject themselves to a penalty of 40s. for each offence, to be recovered, in a summary way, before a justice of the peace. The defendants purchased of the plaintiff a piece of land for a terminus, within the limits of the ferry, and a clause was inserted in defendants' act, that they would not erect a bridge over the river without the plaintiff's consent, and that nothing therein contained should prejudice or affect the right of the plaintiff to the ferry, or bridge, or to the tolls. The railway company dug a canal to the river, and by means of a steamboat conveyed their passengers from their terminus to a point in Yarmouth upon the opposite shore, much below the plaintiff's bridge. The form for an order, for a trial at law in such cases, will be found in the report of this case. 2 See Hepburn v. Lesdan, 2 H. & M. 345; s. c. on appeal, 11 Jur. N. S. 254. 3 Cory v. Yarmouth & Norwich Railw., supra. ↑ Boston & Lowell Railw. v. Salem & Lowell and other Railways, 2 Gray, 1. See post, § 231, where the substance of the opinion of the court upon the constitutional question is given. |