ZERINGUE V.,TEXiAS'& 'P.'R. CO.
ZERINGUll: V.' TEXAB&
P. R.Co.
,Wircuit Oourt,
l 1..
D. Lo'!liaiana. March 10,1888.)
1.
SPEOIFIO PERFORMANCE-STIPULATIONS OUTSIDE OF CONTRACT.
o'\V;Derof some land, expropriated for It railroad sold by notarial act the land .tothe. company, after judgment, for the amount specified inthecqudeitmatl<>n, the railroad undertaking asa further consideration to do and hot to do lJElttAlo things for the benefit of the rest of vendor's land. Vendor·filed a bill for specific performance and damages on the ground that'therallrqad had falledtt> carry outthe agreement. .The bill also alleged neglect of Qtl:!er considerations assured vendor and not contained In the decree of COnde1tination or act of sale. Held, that tl:!e contract 'between vendor and the railroad was to be found either In the of s,"e, and that allthe allegll;' tionsnot so embodied should be eliminated from that a motion to'suppress evidence in relation to these allegations should be granted. " .', '
J. ,'
8. BAME-PRACTICE-'-DAMAGES-DISMI8SAL OF BILL. 'Where ft,'billin the federal court for specific performance of Stlpittati'6DS ina contract fails to make out a case for such relief; but onlr a case for damages for breach of such sti,p.ulation, the bill will be retaIDediIl. eq\lityto , .award such damages, .but will be dismissed without prejudice to an"action at IawoD the' same caUse of :action. "
In a deed Qf. Sale and,comprpmise \'i!38the stIpulation that the vendee ;<,lr "shall and. k'eep in repair ,such .bri4¥es as may over the lands herem acqUired," Held, that thiS stipulation waS Indefi· nite to be the subject ofal bill and decree for specific perfMmance, because , nqjsujficientlydefined enforce.. . ,:, i
BAlIlll-REQUISITES OF CONTRACT-DEFINITENESs.
Bill.in; eqplty for specific perform"J;lce aJ;ld damages. On the 19th o! March,.,1870, Camille Zeringue,by natedto the New Orlell,Iill;!,Mobile & Chattanooga Railroad Compa.J;lY the rightQf,way,aJ;ldpassage()YElr andthrOl:igh his plantation lying in Jefferson ,parish, an4saidcQrnpauy thereupon andconstrnctedtbereou the road, etc. On the 3d of May,.l870, the railroad .compa.nyinstituted proceedings to expropriate a certain portion of said plaJ;ltation, aggregating 192,10 acres. A decree was rendered expropriating said, land for the use ·()f the said cOrnpllny, copdemning the said compa.ny to pay therefor t/:le Bum of $45,000, and also 19 lJ'Uild .boundary ,place boundary posts or stones; to drain said l"n<is for the 'Use arid benefit of the remaining L!.nds of Zeringue; to<bJ;lUd and 4eep jn across the drainage caJ;lals; .andto maintain a rOlldwaypveJ;'andthrough the lands expropria,tedof ,a width of 25 feet, ,free to. and use of same being reserved to said .Zeringue, .his heirs and judgment was revllraed by the supreme court and {J8.s.e reml;lndedforanew triaL On the19th of March , 1872, a."second died, in order to avoid further litigation, and to had in the decree was. rendered in said proceedings expropriating said land, con1 Equity wili not spec.i1icallyenforce a contract wanting in mutuality, Bourgetv. Monroe, (MIch.Y25 N. W. Rep. 514; Hall v. Loomis, (MICh.) SO N. W, Rep. ,374,; Moses v. :MbClI!-In, (Ala,.) 2 South, Rep, 741; Recknagle v. (Iowa,) 83 N. W. Rep, 365; v. Cota, (Cal,) 16.Pac. Rep. 5; Fogg 'f. (Mass,) N. E. Rep, 741; APp.eai of II.althouse, (Pa,) 12.Atl.Rep,. 840. ; Magee v. (C.at,) 12 Rep. v. Tripp,&, 83 Fed. Rep. 530; Stembridge't. Stembriugt,l, (Ky,) '11:). W. RlilP, tip; v, 5 S, E.iWp.297; v.Sunpson, (Mao) 8 SOuth. Rep. 71>1l, Du:tr v, Hopkins, 88 Fed. Rep. 599. .
FEDERAL REPORTER.
demning the company to pay therefor the sum of $29,000, and to do and permit certain things. Thereupon the heirs of C. Zeringue, who settle the matter at issue, entered into an agreement with said company evidenced by notarial act passed May 25,1872, by which they ceded, transferred, and assigned to said COPlpany, on the terms and conditions set forth in said judgment, said land so sought to be expropriated for the consideration of $29,000, and the further that the said company would erect boundary posts or stones at least 100 yards apart on the division or boundary lines ofsaid land expropriated; a boundary fence ,the whole of the boundary, from the river-bank to the intersection of the said boundary with the drainage canals on said plantation; and 'thattliesaidh-eitl! and their assigns should have free ingress 'and tohe forever maintained to. and from the said plantation and the Mississippi river, andtbe usufruct of the said lands, so that the t}nsaid lllantation running from said plantation through drainage the conveyed lanosshould'In no ma.nnerbe ever obstruCted; and a road,way of at least 25 feet along the canals and across said lands soconveyed should be forever and thl;lt said company would build lj.nd ,keep ill repair bridges over and aCross .the drainage canals,-all of which is expressly set. forth in said act. ,Further, the said heirs were parti(}\lhirlyillduced by the statemehtspublicly made by 'the saId 'comj>a\1y ;'and specii:tgy made to the, said heirs by the ,said company, that the lands sought to be expropriated were desigJ]ed for and would be used for the terminus of said company, and that the company 'would'HUl'Uediatelyei'eot ,thereoll machine-shops, warehouses; 'storehouses; depots, iwharves, etc., necessary for cond ncting the business of the 'cOmpany at such terminus; which would have the effect ofgreatly enhancing the value of the remainhlg lands of said heirs. %& value of the 'lands 'conveyed at date of conveyance was $60,000. As 829,000 Was the amount paid in cash, it follows that the various consideratitlllsfonvhich the conveyance was made were estimated to be equal to $31,000. ' On the execution of the said deed said companY'entered into possessionof.satd lalid;and through the sltidcompany the Texas & Pacific' Railroad Oompanynow hold, and for many years ha,'e held, the sarne"sllbject to all the obligations originally assumed by and binding on the said New Odl:lans, Mobile & Chattanooga Railroad Corn.. pany. These obligations have never been complied with. They have been entirely disregardediI10 boundary posts or stones have been !erected; an 'insufficient J\:jnce Was constructed, but it was destroyed by !flte:a..ntlmber of years roadway has been laid duti no bridges 'bu!ilt, so as to'eIiable the owners of the plantation to have free ingress 'and egress; no drainso'r ·waterways haveheElD constructed, Bnd, on the the drains and canals which were un said plantation and exthr01ilgh said expropriated to the swamp, have been obstructed; and, asa result"ofthese acts of nonfeasance, and malfeasance, the oWners of the plantation, to the extent ofatlenst $2,000 daniage resultingpi'incipally from want of drainage. ' pi thi/> dl:lmage shownhy l
a
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ZERINGUE
v.
TEXAS & P. R. CO.
Zit
testimony of J. F. Zeringue, Robert Sharp, J. P. Thompson, and M·. J Ferguson. One witness says that the damages caused by the want of drainage is the total ruin of the plantation, and that the damage so caused in a single year amounted to $10,000. Indeed, it is known of all men that a plantation on the lower Mississippi is utterly valueless unless it is properly drained. The defendants introduced as their witness H. W. B. Smith, an engineer ill their employ. He says the openlogin the road "struck hi!ll" as being sufficient to carry off an ordinary rain-fall; that with a drainage machine in the rear of the place powerful enough !to draw the water ·off the swamp side of the place, the water which stood on the river side of the track would flow through the openings under the track, and also go back to the rear. Of course it would, if! there were any openings at all,-:-even a few feet wide and a few inches deep; but all the same the plantation could not be thereby drained sq ,as to be cultivated. 1'he railroad runs through this land expropriated ina general way parallel to the river; the road-bed is raised, there are no culverts at all along,the entire line,-some5,950 feet,-and only one bridge,....-,-Nb..l,185,'""7""the ditch which it cross,es being about 18 feet wide. There is another bridge,-No. 1, 184,-but this is a bridge in the swamp and in the woods; it is not in the cleared plantation at alL The counselfortbe-defendantsaskedwitness about bridgel;183.. The witness replied that 1,183 was a small bridge about 10 feet long; but he does not say that this>(}pening has any effect whatever iu draining the,plantation. Mr. Smith has calculated that these openings are sufficient,with the aid oLa-draining,machine; to drain the water resulting from an ,ordinary rain-fall. His calculations may.or may not be theoretically correct, but the positive fact remains tbatthe plantation is not and has not for many yeaxs. been dl'ained, .and in consequence of defective drainage cannot be culti.vated. The positive fact remains that the drainage power orthe three canals 'which drained this land at the time the railroad .company acquired this land has been diminished at least 50 per cent. These canals are oba.tructed with pilings, etc., necessary in the construction of railroad b:ddges, and choked up with dirt and sand, so as to destroy the drainage; ,of Zeringue, Sharp, and 'l'hompson.) Repeated demands were made on the, railroad company to comply with its obligatipns, without effect. As to.the loss resulting to· the complainants in consequeqcl3of the failure of the defendant to make its terminus .on the land expropriated, and there construct its depots, store-houses, warehouses, machine-shops, etc., it is difficult to fix the amount accurately. If the agreement had ,been carried out, it is clear that the value of the plnintifPs lands would have been greatly enhanced. ,It is shown beyond doubt, by the testimony of Zeringue and Illsley, that this agreement was entered into, and constituted a portion of the consideration for which the said lands were originally conveyed; and it also appears from the petition of the railroad company for the expropriation. The land was worth $60;000 at the date of, the original conveyance, and, only 829,000 being paid in cash, it must have been considered that the enhancement would amount to at least $31 ,000. v.34f.no.4-16
-. - DtkJ'rlfJ.Td, _ MarTea &; -Bruenn, fOll- plaintiff. ; i' Howe &; :PrentiB8, for defendamt.. ' . , PAiRDEEi' J. The foregbihjJ is;1Jhe statement of facts made and olaimed' by:1Jhe counsel forjHaintiff,' and, although incorrect insevetal points,forthepurposes of this present case, andJthiscase only, maybe taken as correct in every particular. It is well settled that all rep. resentations, deoJarations,and .eonsiderations;passingbetween the parties prior to the reduction of a contract to writing are, in the absence of frands,-merged in the written c;lontractor deedof:the parties; and to the written contract alone cali we look in order to find what the parties have ohliggted themselves to do or not to do. The contrjWt, then, in this case is 'to' be found either intheconsentjudgment and decree entered into:and rendered in the Second judicial distri:ct court of: JefferBonparish,or -in the notarial aot ,passed -before GUYAL, Dotary, :in pJurl"luaIlce of said Judgment, or in both.. This eliminates from this· CaSIHl.ll consideration of that part of the bill relating to ,representations and .considerations that the conveyed wei-eta be used-as a terminus of the roa.d, and the. location of shops land warehouses,' and a town or city, all to the enhaneemeDt in value otthe,other lands oNhe,plaintiffs. And the motion to-supptess the evidenoe ,in relation tathis slibjoot shbuld be i ! granted. -)1: ' : An examination of both ofthe'aforesnid contracts shows that the ob· ligations assUlned. by the New :Ol'leans, iMobile& Chattanooga' Railroad follows: t(l}:Wo 'P81' the: pride; (2) to cause boundary posts or,stones to' be placed ata distance of·lOO yards between the erty acquired ana :the remainder. of the Zeringue plantation; (3) to cause to be, erected ,alon* the boundary line, from the river to the illtersection with the draining canal, Ii division-fencej'(4) to ibuild arid keepin:re.. pair suoh bridge-s: as may be ,necessary over the lands thus' acquired'; (5) to pay a,propGl'tion of the taxes, and all of, court. T·)]e: vendors (present'plaintiffs) reserved in ,favor of the reiilaining Zeringueplanta· tion certain rigbts and privileges in the nature-of ser.vitudes on the·iands conveyed, to.wit, free ingress and egress to 'Over ihe batture 'ahd wharves of said cpmpanYj free use and U!!Uffliuct of the lands, so that the draining ,canal rUrlning through theisaid !lands should in nowise be obstructecl;a:nda road at lenstr25 feet :widealong the said draining canal. There is no question' ,tliatthe pri:ce,' taxes, and oosts()f' cou1't were paid as agreed. The contraot provides; as to the boundary atones and division fence.' nothing I\sto .maintaining them, but that, if the vendee failed to erect the stonelvolfence within the delaysti'pulated, then that thevendol'swere authorized to have the !!ame done at the expense of the vendee, who should, be bound to pay the same. The servituderesel'ved in favol' of the Zeringue plantation allowing free ingress and egress to the ri:ver frontoverth.e batture and wharves of the railroad compliny, has' not been denied tu: the plaintiffs ,and there is no complaint on this point. The provision in the.deedand compromisejudgment reserving a servitude in favi)'r of drainage is, in terms, as follows: > ··
243 "That the said planw.tiOll of ,11;le, ;vendlf3;\l,halJ.,ha forever the ;free,t!SQ anr! uSllfruct of the lands tl;lWl; and, ;conveyed, ,tp said compapy· soth,at tbedraining,canalof ,the sai4vendors running through lands shall in nowise this stipulation the vendee did not undertake or agree to construct nor to keep open any drainage canal, to permit the vendors"and'their successors in the ownership of the Zeringue plantation, to keep open and unobstructed the said Neither the bill, nor the evidenceshQws right to and keepuuobstrl,lcted the said drainage canal has ever been hindered or denied by the defendants or by their grantors, and the same may be said as to reservation of a roaci along the canal. It remains, then, that the only stipulation in the said deed and compromise judgvendee or his assigns should perform any act or thingremaining unperformed, is the stipulation that they "sHall build and keep in repair such bridges as may be necessary over the lands herein acquired." This stipulation is too indefinite to be the subject of a bill and decree for specific performance, for there is no sufficiently defined agreement to ,enforce. The bridges to be built and kept in repair, as to constr\lCtion, and place are all to be determined bynecessize, sity. and the necessity of onetime may not be the necessity of another. For the ,text-book law on this subject see Porn. Spec'. Perf. §§ 5, 6. to be uo case here for a specific perforqlance, and it st!ems to be also 'no case for equitable relief. The learned counsel for plaintiffs.however, although no specific 'performance can be decreed 'ontbe case made, yet the case is '<;,ne of equ'itable cognizance, and that the court can and should award, full compensation in damages. Counsel ? Wait; Aet; & Def.;p; 831, § 3, where it is said: "It Is nffivwell settled tbatwhere a court ·of equity,clearly has jurisdiction of thesl,bject of controversy, jurisdiction for compensation or damages will where it is ancillary to the'relief praj"edfor.. Thus, when the cc;>urt jurisdiction of the case. and. it \ij a case properJor specific performance, it maYlas ancillary to speCific' de<;re6 compensi;\tiun or damages. ... ... ... Compensation is to be awarded when it appears from a view of all the circumstances of tbe parmcularcase it will sub8erve the ends of , This. authority does not sus.tain the 'claim for damages in this clluse, because, as I have shown, it is not a case proper for specific performance, and more particulll.rlybecause this conrt, as a court of equity, does not Section 723, Rev. St. U. S. provides' that "suits equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may p(:lp,ad at law." . Under no hea4 of chancery jurisdiction can a court of ,the United States sustain a bill in equity to obtain only a decree for the payment of money by way of damages when the like amount can
in.
tdn, tH)' tJ. t;.
Litchfiddv. °Ballou, 114 U. S. 190, 5 Sup. Ct. Rep. '820; Buzard v. Hous2°49.. whole case · , ·1 . , . ·
under the bill and. looks money decree as "the' only a:deqliate ieli!lf attainable, for it is made up almost entirely 6f injuries suffered, 'and dainages therefrom. A court of law can, as well as, ifnot better 'than, a court of equity, assess any and all damages the plaintiffs are entitled to recover in the premises; and a jtidgment for damages in money furnishes to the plaintiffs a plain,adequate, and complete remedy. A decree will be entered dismissing complainants' bill with costs, but witholltprejudice to the right to proceed at law on the same grounds of action. , '
BEERS
et at.
'l1,
WABASH; ST. L. & P.Ry. Co. (CHICAGO, CO., (Cz";ocuit CQU'ft. No D. lllinoiB.· March 14, 1888.)
& Q. Ry.
CARRIERS - COMMON CARRIERS 01' GoODS'- RECEIVERS ...... DUTIES -,., BOYCOTTS AND, STRIKES. ,".' , " . ', "
.The petition of the Chic\lgo, Burlington & Quincy Railway Company, intervenor in the: Waba8h Ca8e, represented ihat the receiver appointed by the court had tssued, an order in violation of his dpties as a common carrier; an,j of a custpm,prevailing between the two roads, instructing his agents andsubordinates totMeive no more through freight cats of the petitioner, and that, in pursuanc80f such order, freight of that'character offered by the petitioner had been refused, although the proper aJ;ld usual tender of expense bills had been made with the offer. It ,also alleged that the Brotherhood of Locomotive Engineers had commanded a strike on petitioner's road; and, in order to boycott it, had: issued instructions to its members on the Wabash and other connecting systems not to handle any of petitioner's freight., ,The prayer was for a peremptory order on the receiver to compel him to take such freight, foi an injunction on the Brotherhood to prevent it from interfering with,the W engineers, and f9r ,a rule on the officers of the Brotberhovd to show cause why they should, not he punished. f15r contempt. The answer of the receiver admitted the issuance of the order complained of, but set out that it was intended to he temporary only, and was, as a matter of fRct, rescinded two days after the. petition was filed, arid another order made estahllshing intercourse on the old basis, and that this order was meant to he permanent. It was denied that the receiver or any of his engineers had been lnterfered with in any manner by the Brotherbood, or that the first order was promulgated under moral duress of that association. Held, that the objectionable order hav!ngheen permanently interference havlDg b6e'n proven, neither the peremptory order, not the lDJunct!on,' nor the rule, aSked for shouM' issue, b'ut that the petition should· remain on file for fur,ther action should any occasion therefor arise. "
2.
SAME..
The fact that a railroad 'Is in 'the custody of the court does not render the receiver appointed by-the court any theles8 a common carriei'. Rnd ,he cannot', loadeji as such carrier, refuse to receive from and (leliver,to or empty freight cars ofthat company because, by doing so, his own road may become.involved in' a strike vi locomotive engineers, whose assOciates have "gone'out"on: sU'ch (connecting road, and who are attempting to boy:cO.tt it., ( . ' , .'. . . '.
8.
SAME-:EMPI,IOYES OF RECEIVER-RHUlrS ANDLI,A.BILITIES, ·· ,
locomotive engineers of Ii. railroad in the hlj,nds 'of a receiver cancompelled b, the havIng thei-oad in custody t6 remai!1 in the seI:VlCe of the receiver, neltber they, !lor the "Brotherhooq "tqwhlch they ,belong, wil,l be permitted tointerfere with or distu;" th" r"".fjiver or his subor· dinates in the possession and operation of the propertY.