in a deed which vests the fee-simple does not ipso facto determine the estate, but only renders it liable to be defeated at the election of the grantor and his heirs, to be signified by some act equivalent to a re-entry at common law. The forfeiture for a breach may be waived, and, when once waived, the court will not assist it. Thus, a condition that the conveyance shall be void if the railroad is not completed by a certain day, may, where it is completed at a later day, be waived by acts of the grantor, showing his acquiescence and recognition of the corporation as the owner of the land conveyed by him.2 Equity will not lend its aid to enforce a forfeiture for breach of a condition subsequent; but where there is no adequate remedy at law, and the right is clear, it will take jurisdiction to cancel the deed as a cloud on the title of the grantor who has asserted his right to a forfeiture. Bonds to Convey; Specific Performance. The company may obtain the right to land for its location and other purposes, by bonds or written contracts to convey. It may enforce in equity the specific performance of such contracts signed by parties agreeing to convey land to it, or to buy land of it. The contract cannot be enforced by a party who has signed it against one who has not signed it, but may be enforced against the signing party by the other party, who, though not signing, has acted upon the contract. The bond or contract to convey land to the company does not give it a right to enter on the land against the owner's will, but it must resort to its equitable remedy to obtain possession and a legal title. A decree of specific performance will not be granted where it is inequitable, but the party seeking it will be left to his remedy at 4 Boston & M. R. Co. v. Babcock, 3 Cush. 228. 5 Old Colony R. Co. v. Evans, 6 Gray, 1 Memphis & C. R. Co. v. Neighbors, 51 Miss. 412; Vicksburg & M. R. Co. 51 Miss. 412; Nicoll v. New York & E. R. v. Ragsdale, 54 Miss. 200. Co., 12 N. Y. 121; Hall v. Pickering, 40 Me. 548. See Taylor v. Cedar Rapids & St. P. R. Co., 25 Iowa, 371. If the abandonment of the road is the condition, the breach must be judicially declared in order to be taken advantage of. Harrison v. Lexington & O. R. Co., 9 B. Monr. 470. 2 Ludlow v. New York & H. R. Co., 12 Barb. 440; Tinkham v. Erie R. Co., 53 Barb. 393. 25. 6 Jacobs v. Peterborough & S. R. Co., 8 Cush. 223; Boston & M. R. v. Bartlett, 10 Gray, 384. 7 Old Colony R. Co. v. Evans, 6 Gray, 25; Western R. Co. v. Babcock, 6 Met.346. 8 Whitman v. Boston & M. R., 3 Allen, 133; Eggleston v. New York & H. R. Co., & Memphis & C. R. Co. v. Neighbors, 35 Barb. 162. law. Thus, where the location of a railroad or highway, for which the land was purchased, is abandoned, the vendor, who has remained in possession, cannot maintain a bill for specific performance.2 The party seeking a specific performance must not be chargeable with laches, or have waited until there has been a change of circumstances which would make the decree inequitable. Nor will it be granted where the defendant shows that the agreement is void by proof of fraud or duress which would avoid it at law; or that, without any gross laches of his own, he was led into a mistake by an uncertainty or obscurity in the descriptive part of the agreement by which he in fact mistook one line or one monument for another, and the agreement applied to a different subject from what he understood at the time; or that the bargain was hard, unequal, or oppressive, and would operate in a manner different from what was in the contemplation of the parties when it was executed; but the burden of proof is on the defendant to show these facts. It is, however, no defence to a bill praying for specific performance that the consideration was inadequate, unless the inadequacy is so gross, and the proof of it so clear, as to lead to a reasonable conclusion of fraud or mistake. And where a person has stipulated, for a certain consideration, to permit a company to construct a railroad over his land, by any one of two or more routes, and upon the road being definitely located, to convey the land to the company for certain sums varying according to the route chosen by it, he cannot defend against a bill for specific performance of his agreement, by showing that he was induced to believe, either by his own notions or the representations of third persons as to the preference of one route over another, that the company would select a route different from that finally adopted; nor by showing that the company or its agents had made representations as to the probability that one route would be adopted in preference to another, or as to the relative advantages of each route. All such matters must be considered as merged in the agreement; and if the land-owner intended to claim larger compensation 1 Coe v. New Jersey Midland R. Co., 4 Stewart (N. J.), 105. 2 Whitney v. New Haven, 23 Conn. 624. See Webb v. Direct London & P. R. Co., 9 Hare, 129, 1 De Gex, M. & G. 521; Stuart v. London & N. W. R. Co., 15 Beav. 513, 1 De Gex, M. & G. 721; Gooday v. Colchester, &c. R. Co., 17 8 Boston & M. R. v. Bartlett, 10 Gray, 384; Missouri River, Ft. S., & G. R. Co. v. Brickley, 21 Kan. 275; Western R. Co. v. Babcock, 6 Met. 346. in case one route should be adopted rather than another, he should have stipulated for the alternative in the agreement. Nor can he allege a mistake which arose from his not reading or hearing the agreement read, when he had the means offered him of doing so.1 Deeds of land to the company, made in payment of subscriptions for shares in the capital stock, may be set aside in equity when obtained by the fraud of the company.2 Equity will require the company to perform its agreement to make erections for the land-owner's benefit, although he may also have an action for damages.3 Equity will not specifically enforce agreements which are doubtful in meaning or indefinite and defective in important details, or leave material matters to the discretion of the party against whom a decree is sought. The remedy of specific performance is appropriate to the enforcement of obligations where it can take effect at once, and not where it involves a prolonged control of personal acts requiring skill and discretion, as in the case of agreements to run trains, or to stop them at stations, or to work railroads; 5 but the breach of such a contract may be restrained by injunction.6 Where two railroad companies agreed together to build a road between certain points, and to meet each other at a given place, and to have the charges of transportation, the meeting of the cars and of the through freight trains, arranged by both companies in order to make a through business connection, an injunc 1 Western R. Co. v. Babcock, 6 Met. 346. As to mutual mistake in the description, see Old Colony R. Co. v. Evans, 6 Gray, 25. 2 Atlanta & W. P. R. Co. v. Hodnett, 36 Ga. 669; McClellan v. Scott, 24 Wis. 81. 3 Storer v. Great Western R. Co., 2 Younge & C. 48; Wilson v. Furness R. Co., L. R. 9 Eq. Cas. 28; Greene v. West Cheshire R. Co., L. R. 13 Eq. Cas. 44. 4 Boston & M. R. v. Babcock, 3 Cush. 228; Blanchard v. Detroit, L., & L. M. R. Co., 31 Mich. 43; Lexington & O. R. Co. v. Ormsby, 7 Dana, 276; South Wales R. Co. v. Wythes, 5 De Gex, M. & G. 880, 1 Kay & J. 186; Webb v. Direct London & N. W. R. Co., 1 De Gex, M. & G. 521, 9 Hare, 129; Stuart v. London & N. W. R. Co., 1 De Gex, M. & G. 721, 15 Beav. 513; Tillett v. Charing Cross Bridge Co., 26 Beav. 419; Hawkes v. Eastern Counties R. Co., 5 H. L. Cas. 331, 351-353, 355, 369, 377, 379, 1 De Gex, M. & G. 737, 757, 759. 5 Port Clinton R. Co. v. Cleveland & T. R. Co., 13 Ohio St. 544; Blanchard v. Detroit, L., & L. M. R. Co., 31 Mich. 43; Marble Co. v. Ripley, 10 Wall. 339, 358. See English cases, Earl of Lindsey v. Great N. R. Co., 10 Hare, 664; Shrewsbury & B. R. Co. v. Stour Valley R. Co., 2 De Gex, M. & G. 866; Great Northern R. Co. v. Manchester, S., & L. R. Co., 5 De Gex & S. 138; Storer v. Great Western R. Co., 2 Younge & C. 48; Hood v. North Eastern R. Co., L. R. 8 Eq. Cas. 666; Blackett v. Bates, L. R. 2 Ch. App. 117. 6 Western Union Tel. Co. v. Union Pacific R. Co. (U. S. C. C., D. Kan.), 3 Fed. Rep. 423, 3 Fed. Rep. 721; Coe v. Louisville & N. R. Co. (U. S. C. C., M. D. Tenn.), 3 Fed. Rep. 775. tion was granted at the suit of one to restrain the other from changing the gauge of its road so as to break the connection.1 Specific performance of an agreement by the company to maintain cattle-guards will not be granted at the suit of the landowner. It has, however, been considered a proper remedy, to be administered with discretion, to enforce a contract to maintain a turnout and side-track for the accommodation of the business of the owner of an adjacent warehouse.3 Equity will not enforce a specific performance which would interfere with the public safety or convenience.1 Resulting Trusts.- Equity will enforce resulting trusts created by the payment of the purchase-money from the funds of the company, and compel parties taking the legal title to convey the same to it.5 Remedy against the Company for Breach of its Contract of Purchase. -A breach of the contract by which a company has obtained land for its location does not make its possession unlawful. If the stipulation which it has not complied with is not a condition, the vendor's remedy is an action for the breach, and he cannot maintain an action of ejectment or trespass, or a bill in equity to restrain the company from using the land. The vendor has been held in some cases where there was such a breach entitled to an equitable lien on the estate sold, and even to an injunction to prevent an irreparable injury, from which the company had agreed to refrain.8 If the company enters on land under a contract of purchase which is not carried into effect, an action for use and occupation cannot be maintained against it.9 1 Columbus, P., & I. R. Co. v. Indianapolis & B. R. Co., 5 McLean, 450. 2 Columbus & S. R. Co. v. Watson, 26 Ind. 50. But see Aikin v. Albany, V., & C. R. Co., 26 Barb. 289. See Gray v. Burlington R. Co., 37 Iowa, 119. 47 Barb. 533; Coe v. New Jersey Midland R. Co., 4 Stewart (N. J.), 105. Pusey v. Wright, 31 Pa. St. 387; Gallagher v. Fayette County R. Co., 38 Pa. St. 102; Hornback v. Cincinnati & Z. R. Co., 20 Ohio St. 81; Hubbard v. Kan 3 Windham Man. Co. v. Hartford, P., sas City, St. J., & C. B. R. Co., 63 Mo. 68; & F. R. Co., 23 Conn. 373. 4 Raphael v. Thames Valley R. Co., L. R. 2 Eq. Cas. 37. 5 Church v. Sterling, 16 Conn. 388; Buffalo, N. Y., & E. R. Co. v. Lampson, Doe v. Leeds & B. R. Co., 16 Q. B. 796. 7 Dayton, X., & B. R. Co. v. Lewton, 20 Ohio St. 401; McAulay v. Western Vt. R. Co., 33 Vt. 311. 8 Unangst's Appeal, 55 Pa. St. 128. Damages for Breach of Contract to convey. In an action at law for breach of a contract for the sale of land, the measure of damages is the difference between the price fixed by the contract, and the market value at the time of the breach.1 Where a person who has agreed to convey land, for a certain sum, to the company for its road, refuses to perform the agreement, and in a special proceeding obtains an assessment of his damages caused by the laying out of the road over his land, the measure of damages for which he is liable on the breach of his agreement has been held to be the excess of the sum assessed in the proceeding over the price fixed in the agreement.2 1 Old Colony R. Co. v. Evans, 6 Gray, 25; Boston & M. R. v. Bartlett, 10 Gray, 384. 346. 2 Western R. Co. v. Babcock, 6 Met. |