essential to the obtaining of this relief. The contract must be free from taint of fraud or unconscionable dealing. But the grant in this case, for a valuable consideration, of the exclusive right perpetually to lay off such landings upon the river front of a large plantation, near a growing town, was held not unfair, and was enforced.1 § 571. Contracts which are against public policy will not be enforced. But it is held that a covenant not to maintain a dam at a particular place is not opposed to the policy of the law as indicated by the Acts favoring mills, and it will be enforced. So if great inconveniences to the public will be caused in performing the contract, this may influence the court against enforcing it; but a defendant cannot urge, nor will the court consider, an inconvenience to the public caused by the defendant himself, such as the interruption of his business as a carrier.1 § 572. Where a covenant is continuing and is so framed. that a breach of it can be ascertained only by a trial at law in each instance, it will not be enforced in equity. This was decided by Lord Eldon upon a covenant by the grantee of land containing a well, not to dispose of water from it to the injury of the proprietors of certain waterworks intended for public supply, but not deriving water from the well.5 § 573. A contract must be mutual, that is, such that at the time it was entered into, it might have been enforced by either party against the other, in order to be enforceable in equity. If a contract lacks such mutuality at the beginning, but the party against whom it could not be enforced performs in full on his part, he may then have it enforced against the other party.1 § 574. If the performance of a contract has become impossible or useless, specific performance will not be granted, because the decree would be a fruitless exercise of power. Where A. contracted to sell a wharf on the banks of the Thames, with a jetty, and the jetty proved to be liable to be removed by the corporation of London at any time, it was held that the jetty was essential to the beneficial occupation of the premises contracted to be sold, and that a specific performance could not be decreed.2 And where a railway company had covenanted to erect a drawbridge in their track, so as to admit vessels from a river through a contemplated canal, and owing to an agreement made by the owners of other lands intervening between the river and the track, the canal could not be completed to the river, and would therefore be useless, a decree against the company for specific performance was refused.3 So where the suit was upon a contract to permit the plaintiff to maintain a ditch across the defendant's land, and the plaintiff sold and assigned his rights pending the suit, and the assignee had acquired by a new contract with the defendant all the rights which the plaintiff was seeking in the cause, specific performance was refused as nugatory. Courts of equity will not enforce covenants in a deed for the non-performance of which the covenantee may declare a forfeiture of the estate conveyed. The grantor has fixed his own remedy, and may forfeit the estate at his pleasThis was determined upon a bill to enforce a proviso ure. 1 Columbia Water Power Co. v. Columbia, 5 Rich. (S. C.) 225. 2 Peers v. Lambert, 7 Beav. 546. But it is well settled that where full performance is impossible, the plaintiff is entitled to performance, so far as possible, with a rebate of price. Mortlock v. Buller (per Lord Eldon), 10 Ves. Jr. 292, 315; Waters v. Travis, 9 Johns. 450, 465; McKay v. Carrington, 1 McLean, 50, 54; Bull v. Bell, 4 Wis. 54. And quaere if this rule should not have been applied in the principal case, and performance enforced. 3 Chicago & Alton Railroad Co. v. Schoneman, 90 III. 258. In this case the impossibility of completing the canal was caused by the company itself. Adams v. Patrick, 30 Vt. 516. or condition in a deed for the maintenance of a raceway and bridge for the grantor's benefit.1 Specific performance will generally not be granted where the decree would affect parties not before the court.2 § 575. Where a contract involves the performance of extensive works, equity will not assume the superintendence of such works, and for this reason, it is said, may refuse to decree specific performance; but it will grant an injunction against allowing such works to remain unperformed.3 Contracts regulating the right to overflow land will be enforced in equity. Where the plaintiff, who owned a tract of land, agreed to permit a neighbor to overflow it in consideration of the neighbor's agreement to purchase the lands, and meanwhile to allow the plaintiff to use certain other lands in exchange, which agreement the neighbor afterwards refused to perform, the court refused to enjoin the flowage, but decreed alternatively that the defendant either perform the agreement or deliver it up to be cancelled, leaving the plaintiff to his remedy at law for future flowage.5 § 576. Covenants running with the land may be specifically enforced against the assignee of the property charged. So a lease of water-power to be taken at a specified place on the land of the lessor conveys an interest in land; its covenants run with the land, and will be enforced against the lessor's assignee or grantee with notice. This rule has been applied to covenants to furnish a certain amount of water, 1 Woodruff v. Water Power Co., ing specifie performance. The evi2 Stock. 489. 2 Glass v. Clark, 53 Ga. 380. In this case the original bill was against co-tenants A. and B. for an original injunction against maintaining a dam. The injunction was refused, but the bill retained. The plaintiffs filed a second bill against B., alleging that A. had sold his interest to B., and that B. had agreed that a decree might be granted in the former suit, and pray dence as to the transfer by A. was conflicting, and the court declined to make a decree affecting his interests while he was not a party. 3 Cooke v. Chilcott, 3 Ch. D. 694. 4 Stevens v. Ryerson, 2 Halst. Ch. 477; Winnipiseogee Lake Co. v Perley, 46 N. H. 83; Salmon Falls Manuf. Co. v Portsmouth Co., 46 N. H. 249. 477. 5 Stevens v. Ryerson, 2 Halst. Ch. and to raise a dam to a given height for that purpose.1 Similarly, where a stream of water passing through the lands 1 Noonan . Orton, 4 Wis. 335; 21 Wis. 283; 27 Wis. 300; 31 Wis. 265. This case deserves further notice as involving several questions of equitable practice. The original bill against the lessor's assignees prayed a decree requiring the defendant to execute and deliver to the plaintiffs a lease of water-power, pursuant to the alleged covenants for renewal, contained in a previous lease; and that the defendant be required to raise his dam, according to certain other covenants in the former lease, and be restrained from interfering with the plaintiffs' enjoyment of the water. Upon demurrer the covenants were held to bind the assignee, and the lessor was held not a necessary party; and this was affirmed on appeal. 4 Wis. 335. By a supplemental bill the plaintiffs charged subsequent interference, by defendant, with their enjoyment of the water-power, and that the defendant had brought suits against persons whom they had employed to remove obstructions to the flow of water to plaintiffs' mill, and prayed an injunction to prevent further obstructions and suits by the defendant; and for an account of damages for breaches of the covenants which the new lease should contain prior to its execution. A demurrer to the supplemental bill was overruled, and the decision affirmed above; but, instead of taking account as incidental to the principal relief, it was held that in a suit for the specific performance of a covenant to furnish a lease with covenants, the court would not usually decree damages for past breaches, but, in decreeing execution, would order the lease to bear date anterior to the alleged breaches, and give the plaintiff a cause of action at law. It was then suggested that the defendant might plead the statute of limi tations; and the court decided that the supplemental bill for an account would be retained unless the defendant would file an undertaking not to avail himself of the statute in such action. 21 Wis. 283, 294. The defendants then answered, and the court decreed execution of a lease with the proper covenants, and binding the defendant personally in general terms. It appeared in evidence that the defendant had made a voluntary conveyance of the property, pendente lite, two years before the decree. The defendant appealed, and the original question of the right of the plaintiffs to a new lease was brought before the Supreme Court for the first time. Dixon, C. J., held that the alleged covenant to renew in the former lease was in reality a demise for a future term, to take effect at the option of the lessees upon notice by them, and that therefore a new lease was not necessary, and could not be granted. Cole, J., held that the covenant called for a new lease, and that the plaintiff was entitled to specific performance, but that the decree should not direct covenants to be inserted in the lease binding the defendant (the assignee) except for breaches during his ownership. The decree was reversed, and the cause remanded without directions. 27 Wis. 300, 326. One of the plaintiffs then disposed of his interest to the defendant, and discontinued the suit as to himself. The court denied a motion to dismiss the whole suit, dismissed the bill so far as it related to the prayer for specific performance, but retained it as to all questions relating to the injunctions. It was held above that the defendant was entitled to a dismissal as to the retiring plaintiff, and that the dismissal, as to the prayer of specific performance, worked no injury to either party. The cause of different persons was divided by them by parol agreement by which each party was to maintain and repair ditches, and to receive and care for his share of the water, and the agreement was performed by both parties for a number of years, it was held that the agreement was taken out of the statute of frauds, and that it would be enforced against an assignee with notice.1 Where a contract is in terms assignable, the assignee is entitled to specific performance. So the assignee of a contract to supply a city with water and water-power, having performed its part, was held entitled to a decree against the city.2 Where the plaintiff and the owner of drowned lands agreed in writing, the plaintiff to fill in and reclaim the lands, and the defendant to convey to him, in payment, one-third of the lands in fee, and the plaintiff performed on his part, and entered into possession, and recorded his contract, it was held that he was entitled to a conveyance, and that a subsequent mortgage by the owner was subject to his rights.3 § 577. Oral contracts affecting land, when partly performed, have generally been considered enforceable in equity. An oral contract by State drainage commissioners for the drainage of lands, and the assessment and payment of damages, under which the commissioners obtained permission to enter on the plaintiff's lands, occupy, and dig canals, was held binding in equity by the New York courts. The commissioners had power to levy and collect taxes on the lands drained, and to sell them for non-payment, and when they proceeded to exercise these powers, disregarding their contract with the plaintiff, they were enjoined from making such sale until the damages for opening the canal were adjusted according to the agreement.5 $578. Parol licenses to interfere with rights in water, or in land, have sometimes been made the subject of actions for was remanded for further proceedings. 31 Wis. 265. This is an outline of the proceedings, so far as they relate to our subject, in a case extending through a prolonged course of litigation. 1 Coffman v. Robbins, 8 Oregon, 278. 2 Columbia Water Power Co. v Columbia, 5 Rich. (S. C.) 225. 8 Laverty v. Moore, 32 Barb. 347; 33 N. Y. 658. * See Coffman v. Robbins, supra. Murray v. Jayne, 8 Barb. 612. 5 |