the plaintiff in the performance of his duties under a contract by which the bishop's predecessor employed the plaintiff for life as a receiver of the issues and profits of the See,-upon the ground, among others, that the plaintiff could not be compelled specifically to perform his agreement, and that the relief sought, being analogous to specific performance, could not be granted.

And Stocker v. Brockelbank (1851) 3 Macn. & G. 250, 20 L. J. Ch. N. S. 401, 15 Jur. 591, denied an injunction to restrain an employer from terminating the services of managers who agreed to manage the business for a share of the profits, the employer stipulating that the contract should be irrevocable except for breach of covenant by the managers. The court said that the injunction could be granted only by way of specific performance, and that a contract for personal services could not be specifically enforced.

The American cases take the same position, and possibly the Maryland courts go even further in declaring that all principles which apply to a bill for specific performance apply with equal force to a bill for perpetual injunction, where that injunction will accomplish all the objects which could be effected by a decree for specific performance. This principle was laid down in Gurley v. Hiteshue (1847) 5 Gill, 223, involving a bill to restrain the defendant from enforcing a judgment, where the defendant had agreed to receive a conveyance of real property in discharge of the judgment. The doctrine was also applied in Whalen v. Baltimore & O. R. Co. (1908) 108 Md. 11, 17 L.R.A. (N.S.) 130, 129 Am. St. Rep. 423, 69 Atl. 390, refusing to enjoin a railroad company from breaking its contract to run freight and passenger trains to and from the property of the covenantee after it had, for the public welfare, changed its route, where the burden would be wholly out of proportion to the benefit which would accrue to the covenantee; and also in Maryland Teleph. & Teleg. Co. v. Chas. Simons Sons Co. (1906) 103 Md. 141, 115 Am. St. Rep. 346, 63 Atl. 314, refusing an injunction to restrain a telephone company from increasing contractual rates and from refusing to continue service at existing rates.

But the other American decisions, like those of England, confine themselves to the principle, as applied in Sewerage & Water Board v. Howard (1909) 99 C. C. A. 177, 175 Fed. 555, that where the injunction is sought, not against the performance of a specific act in violation of the contract, but against breach of the contract in terms, it is regarded as a bill for specific performance. It was held in that case that the injunction should be denied where the contract is continuing and uncertain as to termination, thus requiring the retention of the bill and the supervision of performance indefinitely.

So, upon the ground that an injunction not against a specific act, but against "violating the contract," is negative specific performance and is governed by the same principles, such an injunction was de

nied in Shubert v. Woodward (1909) 92 C. C. A. 509, 167 Fed. 47, involving a contract between owners of rival theaters, whereby the president of the plaintiff (a corporation) was made manager of defendant's theater for a term of years. The court said that specific performance could not have been decreed because the contract lacked mutuality, and also because to grant such relief would entail years of supervision by the court as to matters requiring the exercise of judgment and special knowledge and experience.

It was held in Arthur v. Oakes (1894) 25 L.R.A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 310, 9 Am. Crim. Rep. 169, distinguishing Lumley v. Wagner (1852) 1 De G. M. & G. 604, 21 L. J. Ch. N. S. 898, 16 Jur. 871, 6 Eng. Rul. Cas. 652, that equity will not enjoin the employees of a receiver of a railroad from quitting his service, although the effect of such action will be to prevent or hinder the operation of the road. Here the injunction was sought not against a certain affirmative act, but to compel performance of all continuous acts required by the contract of services.

Bour v. Illinois C. R. Co. (1912) 176 Ill. App. 185, refused to enjoin a railroad company which had agreed to give complainant the exclusive right of placing advertising in its passenger cars for a certain period, from allowing advertising other than that of the complainant to be placed in the car, the court apparently being of the opinion that this was but negative specific performance, which could not be affirmatively decreed, and stating that the granting of such an injunction would not benefit the plaintiff if the defendant saw fit to have no advertising whatever placed in its cars, and that "it seems to us illogical and unreasonable to allege the difficulty of assessing damages at law as a reason of resorting to equity, if equity can only give a remedy which furnishes compulsorily no damages or compensation at all, and no enforcement of the broken contract, but only a morally coercive pressure which may lead to juster dealing."

In Fowler Utilities Co. v. Gray (1907) 168 Ind. 1, 7 L.R.A. (N.S.) 726, 120 Am. St. Rep. 344, 79 N. E. 897, citing Iron Age Pub. Co. v. Western U. Teleg. Co. (1887) 83 Ala. 498, 3 Am. St. Rep. 758, 3 So. 449, supra, refused on the ground of want of mutuality to enjoin violation of a contract of a heating company, after installing a heating system in the plaintiff's building, to furnish heat at a certain sum per year, where the use of heat from the defendant rested in the plaintiff's discretion.

Peterson v. McDonald (1910) 13 Cal. App. 644, 110 Pac. 465, refused a mandatory injunction to compel a landowner to restore the flow of water from his windmill to the plaintiff's premises, and a further injunction against obstructing a plaintiff's use of the water in accordance with a contract by which the defendant agreed to supply the plaintiff from his well at a certain monthly rate. The court

said that the defendant could not be compelled to maintain the existing windmill and tank, or to restore it if destroyed, and that therefore the relief sought, being in effect a decree for specific performance, could not be granted.

In each of the following cases the Illinois courts said that the injunction sought was negative specific performance, and could be granted only where specific performance would be decreed: Chicago Municipal Gaslight & Fuel Co. v. Lake (1889) 130 Ill. 42, 22 N. E. 616, refusing to restrain a municipality from interfering with the laying of mains by a gas company, under a grant of right by the municipality, the plaintiff not having shown performance or ability to perform his part of the contract; Welty v. Jacobs (1898) 171 Ill. 624, 40 L.R.A. 98, 49 N. E. 723, refusing an injunction against the proprietor of a theater, to prevent his breach of a contract to furnish the theater, and its equipment, to the manager of a theatrical company for a certain time, and to prevent him from furnishing the theater to a rival company during the period (lack of mutuality); Cleveland v. Martin (1905) 218 Ill. 73, 3 L.R.A. (N.S.) 629, 75 N. E. 772, refusing the author of a medical text-book an injunction to restrain the publisher from distributing copies alleged to be inferior to those called for by the contract, which required them to be published in first-class form (apparently the principal reason, however, for denying the injunction was the indefinite nature of the contract); Suburban Constr. Co. v. Naugle (1897) 70 Ill. App. 384, refusing to grant an injunction in favor of a contractor who had contracted to construct a railway, operate it two years, and receive payment in stocks and bonds of the railroad company,-to enjoin the company and other parties to the contract from interfering with the plaintiff's performance, or preventing the issuance of the stock and bonds to the plaintiff; Streator Teleph. & Teleg. Co. v. Interstate Independent Teleph. & Teleg. Co. (1908) 142 Ill. App. 183, refusing to restrain a telephone company from interfering with a contract by which the plaintiff was alleged to have granted the use of its right of way to the defendant, who, claiming to be a successor in interest of a telephone company, claimed to own the line and to terminate the plaintiff's use thereof; Minnetonka Oil Co. v. Boyd (1908) 143 Ill. App. 479, refusing to enjoin drilling on oil lands in violation of an oil and gas lease to the plaintiff, the court saying that specific performance could not be decreed for lack of mutuality; Jackson v. Marshall (1913) 178 Ill. App. 27, refusing to enjoin a corporation from passing resolutions depriving complainant of his office as treasurer, or interfering with him with respect to such office, which he held by virtue of a contract consolidating two constituent companies and naming him as treasurer.

In Richmond v. Dubuque & S. C. R. Co. (1871) 33 Iowa; 422, the court refused, at the suit of a lessee from a railway company, who

had agreed to build and operate an elevator for a term of years, to restrain the railroad company from delivering or transferring grain otherwise than through such elevators in violation of a covenant to deliver to the elevator all grain handled by the load. The court without discussion regarded the suit as one for specific performance by injunction, and in denying relief called attention to the want of mutuality, it being impossible to compel performance by the plaintiff, whose contract required it to perform continuous acts demanding skill and experience.

The principle that injunction to restrain breach of contract is negative specific performance, and will not be granted unless specific performance can be decreed, was applied in Fox v. Fitzpatrick (1907) 190 N. Y. 259, 82 N. E. 1103, refusing an injunction against breach of contract for the purchase of standing timber, the court stating that specific performance could not be decreed, as the remedy at law under the facts was adequate.

St. Regis Paper Co. v. Santa Clara Lumber Co. (1900) 55 App. Div. 225, 67 N. Y. Supp. 149, indorsed the rule that where an agreement is such that it is practically impossible for a court of equity to enforce it, and a bill for injunction is in effect a bill for specific performance, equity will not interfere (prayer that the defendant, who agreed to deliver plaintiff a certain amount of pulp wood per year, be enjoined from violating a covenant not to sell or dispose of a certain tract, or the pulp wood thereon, so as to jeopardize or prevent the complete performance of the contract).

On the other hand, Niagara Falls International Bridge Co. v. Great Western R. Co. (1863) 39 Barb. 212, granted an injunction to a bridge company which had contracted for its use by a railroad company, to restrain the latter from violating provisions in the contract whereby the railroad company agreed to give the directors of the bridge company passes on its trains, and to collect bridge tolls from persons on its trains who were not regular passengers coming or going from or to a minimum distance from the bridge, and to make reasonable regulations to effectuate such purpose. L. A. W.

5 B. R. C.

16

[ENGLISH DIVISIONAL COURT.]

THE SALT UNION, LIMITED v. BRUNNER, MOND, & COMPANY.

[1906] 2 K. B. 822.

Also Reported in 22 Times L. R. 835, 76 L. J. K. B. N. S. 55, 95 Times L. R. 647.

Mines - Salt mine — Underground brine, rights of adjoining landowners in respect of — Percolating underground water.

The plaintiffs were the owners of a group of rock-salt mines which had for many years been flooded with brine by reason of the fact that the working of the mines had caused the ground above them to subside, with the result that surface water found its way down to the beds of rock salt below, where it became saturated with the salt. These mines had for many years been connected with one another by means of old underground channels and passages, which it was no longer possible to close, and they formed one large reservoir of brine. Into this reservoir there also found its way a certain quantity of other brine which came through fissures in the soil from land outside the plaintiffs' property, but a substantial portion of the brine therein was formed by the dissolution of the plaintiffs' salt rock in the manner above mentioned. The defendants, in the exercise of a license to pump brine granted to them by the previous owner of one of the plaintiffs' mines, pumped large quantities of brine from the said mine and from the reservoir and appropriated it for their own profit:

Held, that the defendants were not guilty of any actionable wrong in so doing, notwithstanding that they thereby abstracted salt which had formed part of the plaintiffs' rock, and that the continuance of the pumping would cause fresh surface water to dissolve further portions of the plaintiffs' rock into brine, which in its turn would be abstracted by the defendants' pumps.

(August 10, 1906.)

TRIAL before Lord Alverstone, Ch.J., without a jury. The action was brought for an injunction to restrain the defendants from continuing to pump salt brine from a shaft known as Penny's Lane, near Northwich, in Cheshire; secondly, to recover damages for the abstraction, since 1893, of salt brine, or salt rock, alleged to belong to the plaintiffs; and, thirdly, [823] damages for injuries caused to houses and other property belonging to the plaintiffs by the subsidence of the surface in