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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.8 Contracts regulating the right to overflow land will be enforced in equity.4 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 perforin, the court refused to enjoin the flowage, but decreed alternatively that the defendant cither perform the agreement or deliver it up to be cancelled, leaving the plaintiff to his remedy at law for future flowage.5
§ 57(5. 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., 2 Stock. 489.
2 Glass t>. Clark, 53 Ga. 380. In this ease the original bill was against co-tenants A. and P>. 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 U., and that 15. had agreed that a decree might be granted in the former suit, and pray
ing specific performance. The evidence 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.
8 Cooke r. Chilcott, 3 Ch. I). 604.
4 Stevens r. Ryerson, 2 Halst. Ch. 477; Winnipiseogee Lake Co. p Perley, 40 N. H. 83; Salmon Falls Mamif. Co. v Portsmouth Co., 40 N. II. 249.
5 Stevens t>. Ryerson, 2 Halst. Ch. 477.
and to raise a dam to a given height for that purpose.i Similarly, where a stream of water passing through the lands 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 j)laiutiff 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
i Noonan v. Orton, 4 Wis. 335; 21 Wis. 283; 27 Wis. 300; 31 Wis. 265. This case deserves further notice iis involving several questions of equitable practiee. 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 watev. 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 hill 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 decreemg 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 ,
§ 577. Oral contracts affecting land, when partly performed, have generally been considered enforceable in equity.4 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. 2 Columbia Water Power Co. »
31 Wis. 205. This is an outline of the Columbia, 5 Rich. (S. C.) 225. proceedings, so far as they relate to our 3 Laverty r. Moore, 32 Barb. 347;
subject, in a case extending through 33 X. Y. 058.
a prolonged course of litigation. * See Coffman r. liobbins, supra.
1 Coffman v. Uobbins, 8 Oregon, 278. 6 Murray v. Jayne, 8 Barb. 012.
specific performance. In Pennsylvania it has been held that a parol license, given without consideration, to divert and use the water of a stream for a mill, in consequence of which the licensee erects a mill at great expense, is irrevocable, and that equity will specifically enforce the right of the grantee by an injunction, and will give damages for interference. In Ohio it is said that a written license to put water-pipes in land, and to enter and repair them, cannot be specifically enforced, and that a violation of it is only ground for an action for damages.2
1 Rerick v. Kern, 14 S. & R. 267.
» Wilkins v. Irvine, 38 Ohio, 188, 146.
STATUTORY REMEDIES AND EFFECT THEREOF.
579, 580. In general, statutory remedies take away common-law and equitable
581. Whether they protect from indictment. 582. Their effect as to damages and modes of recovery. 583-585. As to unauthorized and excessive injuries. 586. Breach of statutory conditions. 587. Injuries unforeseen and unprovided fov. 588. Case lies for incidental injuries from public works. 589. Also for injuries caused by negligence or abuse of the powers conferred.
590. Effect of statutory remedies upon contracts and submissions to arbitration.
591. Effect of repeal of statute on remedies.
592. Mill Acts.— Different systems of remedies thereundev.
593. Extra-territorial injuries.
594. The Massachusetts system.
595, 596. Ibid. — The Complaint. — Who may be complainants. 597. Ibid. — Respondents.
598. Ibid. — Description of the land injured.
599. Ibid. — Mode of trial.
000. Ibid. — New complaint.
001. Ibid. — Substantially followed in Wisconsin and Maine.
602. Ibid. — Prescriptive rights to flow under this system.
003. Ibid. — Damages under this system.
004. Other States adopting this system. — Rhode Island.
605. Ibid. — New Hampshire.
606. Ibid. — Connecticut.
607. Ibid. —Vermont.
608. Ibid. — Pennsylvania. 609-611. The Virginia system.
012. Ibid. — Kentucky.