number of parties concerned is immaterial. The bill may be maintained by a single defendant at law against a single plaintiff. But the defendant at law must have successfully defended at least one suit before he can maintain such a bill.1 Thus in Eldridge v. Hill,2 A. and B. owned adjoining lots. A. altered the course of the stream somewhat by means of a ditch and used it as altered for several years. B., wishing to ascertain his rights, obstructed the ditch and returned the water to its former channel. A. brought suit in the Supreme Court for the obstruction, and while the cause was at issue and awaiting trial, brought other suits before a justice of the peace for the continuance of the obstruction. B. filed a bill stating these facts. He alleged "that there had been commenced, in all, fifteen or twenty suits, one of which was brought to trial on its merits, and a verdict given against the present plaintiff, who has sued out a certiorari and had the same allowed for removing that judgment into the Supreme Court; that the defendant continues to commence suits weekly, and threatens to do so indefinitely." The bill prayed an injunction to restrain the defendant from further prosecuting the suits pending before the justice, and from bringing any more until the principal suit should be determined. Chancellor Kent, following the English cases, held that the bill could not be allowed until the plaintiff had established his defence at law. The appropriate relief against successive suits by the same plaintiff for damages arising from an injury which is continuous, is by application for the consolidation of actions, or for a stay of proceedings, and not by bill in chancery, unless the right in controversy has once been determined adversely to the plaintiff.4

1 Tenham v. Herbert, 2 Atk. 483 the defendant the right to continue

(case of fishery).

22 Johns. Ch. 281.

3 In an action for the reformation and specific performance of a contract regulating the right to overflow lands, the Supreme Court of New Hampshire granted a temporary injunction against the prosecution of a suit at law for such flowage, until the right of the plaintiff could be ascertained. And, upon granting the decree, they gave

his suit to determine other questions, but enjoined the prosecution of further suits inconsistent with the decree. Winnipiseogee Lake Co. v. Perley, 46 N. H. 83. It will be seen that here the plaintiff could not first establish his right at law, since it was of exclusively equitable cognizance.

Lehigh Valley Railroad Co. v. McFarlan, 31 N. J. Eq. 730, 754.

§ 569. Courts of equity have at times been called upon to decree specific performance of contracts relating to water, upon the ground that the legal remedy for the breach, by compensation in damages, is inadequate. It is therefore necessary for the plaintiff to show that damages will not be an adequate compensation for the injury caused. Repeated and vexatious breaches of a continuing contract, making repeated suits at law necessary, are ground for specific performance, the legal remedy being proved clearly inadequate; but in such case, the plaintiff must have first exhausted his legal remedy by at least one recovery at law. This was ruled on a bill for performance of a contract to furnish facilities for navigation of the defendant's canal for all boats used by the plaintiff. Where the contract is to supply water to a mill, the necessity of receiving such supply must be shown, to support the bill; but if it be shown, specific performance will be decreed.2 Specific performance of a covenant for quiet enjoyment has been refused where the alleged breach consisted merely in slightly increasing the height of water in a brook flowing through the covenantor's land, and past the premises conveyed, but causing no perceptible damage.3

§ 570. It is also necessary that the contract be in clear and definite terms, excluding all uncertainty as to the duties of the parties. Where a contract was alleged for the discharge of water from a canal into the Passaic River above the falls, which contract, it was claimed, entitled the claimants to a constant flow of three square feet of water into the stream, and an injunction was asked to enforce the agreement, Chancellor Halsted refused to grant the relief, saying: "I am not so well satisfied that this agreement calls for a constant flow of any quantity of water as to be willing to grant an injunction on the Society's bill"; "and a doubt as to the correctness of the Society's construction of the agreement in this respect would be sufficient ground for denying the injunction asked by them for the purpose of compelling

1 Pennsylvania Coal Co. v. Delaware Canal Co., 31 N. Y. 91.

3

2 Randall v. Latham, 36 Conn. 48.

Ingram v. Morecraft, 33 Beav. 49.

a constant flow."i The court cannot place upon the contract a meaning not originally intended, for the purpose of doing justice between the parties. Where a contract by coowners of a canal, for its maintenance and repair, authorized any one or more of them to make such repairs as he or they should deem necessary, and bound the others to contribute to the expense of such repairs, and several of the co-owners filed a bill against the principal proprietor, alleging that extensive repairs were necessary, for which they could not advance the necessary means, and praying that the defendant be ordered to perform his part of the work, the court declined to make such a decree. The contract only bound the defendant to contribute, and he did not need to undertake repairs in the first instance unless he chose. The court could not add to the contract a further obligation. But courts of equity may exercise their power to reform a contract in order to make it express the intention of the parties, upon a bill for reformation and specific performance, and may enforce the contract as reformed. A contract containing an option becomes certain as soon as the option is exercised, and will be enforced. So a grant of a right perpetually to lay off new boat-landings on a river-bank, as the bank should cave and give way before the stream, with a stipulation that when the landing should give way, the covenantor should permit the covenantee to fix another landing at any point on the front of the plantation where the public interest might require, was held sufficiently definite to be specifically enforced. This case illustrates another element

1 Morris Canal Co. v. Society, 1 water, it was shown that the parties Halst. Ch. 203. had fixed upon that amount of power

8 Winnipiseogee Lake Co. v. Perley, 46 N. H. 83. For another case of reformation of a conveyance of waterpower, see Bunnell v. Read, 21 Conn. 586.

2 Cobb v. Cromwell, Phil. Eq. (N. under an erroneous impression as to C.) 18. the amount of water needed to constitute a horse-power at the site of the mill, the court held that the lessee was entitled to power equal to sixhorse-power in fact, and declined to enjoin him from the use of water to that amount. McKelway v. Cook, 3 Green Ch. 102, 115 and note.

But where a lease of a mill included water-power equal to six horsepower, and upon a bill by the lessor for specific performance and injunction against the wrongful use of the

4 Carson v. Perry, 57 Miss. 97.

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;3 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.4

§ 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

1 Carson v. Perry, 57 Miss. 97. 2 Ulrich v. Hull, 17 Wis. 424. 8 Chicago & Alton Railroad Co. v. Schoeneman, 90 Ill. 258.

Raphael . Thames Valley Railway Co., L. R. 2 Ch. 147, reversing s. c. L. R. 2 Eq. 37.

note.

formance, 85, 41, 761. The case is discredited in 1 Story, Eq. Jur., § 736, It would seem that the ground upon which cases of this class are to be sustained, if at all, is the uncertainty of the terms of the contracts in not clearly indicating what will be a breach.

6 Fry on Specific Performance,

5 Collins v. Plumb, 16 Ves. 454. The ground of the decision is the inconvenience involved in ascertaining § 286. a breach. Cf. Fry on Specific Per

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. 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 Ill. 258. In this case the impossibility of completing the canal was caused by the company itself.

4 Adams v. Patrick, 30 Vt. 516.