Canterbury Aqueduct Co. v. Ensworth , 22 Conn. 608 ( 1852 )

Hinman, J.

Where the specific execution of a contract is sought to be enforced, the plaintiff must show; that the relief asked for, is strictly equitable, in reference to the parties, and the subject matter of the contract, or the court will not interfere. This principle is so obviously just as to need no authority to support it. A different rule would, to a great extent, destroy the equitable character of the court, and, not unfrequently, convert it into an instrument for the enforcement of unconscientious contracts, rather than a tribunal where such contracts may be set aside. Upon this principle, the court refuses to compel the execution of contracts, founded upon fraud, imposition, or mistake; and, where such execution will operate as a surprise upon the party against whom it is sought to be enforced, courts will generally leave the parties as they find them, liable only to such redress as can be obtained at law: as a court of equity often relieves parties from the execution of contracts, which operate as a surprise upon them, so, to be consistent, it must refuse to execute such contracts, when their specific execution is asked for.

Upon these plain and obvious principles, without going at all into the examination of cases, on this subject, we are satisfied, that this bill must be dismissed. It is true, that the written memorandum of the contract sought to be enforced, in a rather enlarged sense of the words used in it, might entitle the plaintiffs to the right of maintaining their fountain, at the place where it was first located. The writing states, that the plaintiffs proposed to buy of the defendant, the privilege of digging a fountain upon his land, at a suitable place north-west from Judge Judson’s house, in the village of Canterbury : and to dig trenches and lay pipes, and conduct the water therefrom, to said village. The expression, his land, is, no doubt, broad enough to include any land of his, north-west of the village ; and, as he owned, in his own right, an undivided portion of the land where the plaintiffs erected their works, and also had a life estate in the other portion, which belonged to his wife, it might properly enough all be said to be his land; and, had this been the only land of his, which would answer the description, the conclusion must have been, that it was this land which was intended.

But, the report of the committee, as we understand it, shows, that it was not the expectation of either party, that the fountain should be established on the land which he only owned, in the qualified sense alluded to. It appears, in the first place, that he. had a large quantity of other land, adjoining this, (which belonged to him and his wife,) which was owned by him alone, and which, therefore, answers the description in the writing, perfectly. Now, when we consider, that- he was to give to the plaintiffs, a perpetual right of this water right in his land, and that it was the object of the plaintiffs, to procure a perpetual right, the inference is very strong, that, by the expression, his land, the parties must have intended the,land of which he was the absolute owner, and in which alone he had the power to grant such a perpetual right as was intended. The situation of the defendant, in reference to the title to his land, goes very far to sustain the finding of the committee, as we understand the report, that the understanding of the parties was, that the fountain should be established on land to which the defendant had a clear title, in fee. The report says : “ That, during all the time of the negotiation respecting the contract, until after the signing and delivery of it, the parties both supposed that the location of said well and trenches, would be on land so set to said Charles,”—which was the land exclusively owned by the defendant,—and “ that no mention was made of the place where said location was finally made, nor was the adaptation of the latter place to the purposes of the plaintiffs, known to them; and, in the negotiation with the defendant, the land set to Charles, and which was east of an old highway, was always pointed out, by the plaintiffs, as the land where they' supposed the water could be most advantageously obtained for their purposes, and where the expected location would be.” The report further finds, that the person employed by the plaintiffs, .to construct their works, and who was the person to whom they intended to leave the location of them, had visited the land, to which the defendant had a perfect title, previous to the execution of the written contract, and had suggested points, upon that land, as most likely to prove suitable, for the plaintiffs’ purposes ; and neither he, nor any member of the company, had visited, or thought of, the lot where the location was made, which was separated from the other by fences and an old road. It is clear, from this finding, that it was the expectation of these parties, that the fountain was to be located east of this old highway; and, if it be admitted, that the written contract is so drawn up, that, in an enlarged sense of the language used, it may be said to include the land on both sides of the way, it is still apparent, that, to give it that construction, would operate as a surprise upon the defendant. Indeed, to compel the defendant to give the plaintiffs a perpetual lease of a right to erect and maintain their works on the west side of the road, rather seems to us, as the making of a new contract between the parties, than merely compelling the execution of one already made. We think the defendant may well say, that, had he .understood the contract to authorize the company, in going west of the road, he would have refused to make it; especially, when it is considered, that his title to the land there, did not enable him to grant the full right which the plaintiffs expected to receive. If this bill had been brought, before the plaintiffs had expended money in the erection of their works, we think no one would question the correctness of this conclusion ; and, on the other hand, it is doubtless true, that the terms of the written memorandum are so indefinite, that, had the plaintiffs located and erected their works, at the place claimed by them, with full knowledge on the part of the defendant, and without objection on his part, it would now be too late for him to object to the location. But, no such fact appears in the case. On the contrary, the defendant was not consulted in regard to the location, and, as soon as he was informed of it, he denied the plaintiffs’ right to construct their works, at that place, and ordered them to desist and quit that lot. He, at the same time, claimed, that they were confined to the land on the opposite side of the highway; and he has been consistent in this claim, up to the present time, always refusing to take the stipulated compensation, on the ground that the works were erected at a place never contemplated or authorized by him. He has,' therefore^ lost nothing by laches, and the plaintiffs have gained nothing, by going on and expending money in the erection of works, contrary to his express direction. Under these circumstances, however true it may be, that the injury to the defendant, by the continuance of the fountain at the place where it was located, will be less, than will be the plaintiffs’ injury, by its removal, or that one object of the defendant is to compel the plaintiffs to pay an unreasonable compensation, for the privilege of continuing it there ; still» we can not say, that he ever made, understandingly, the contract claimed, and we can not therefore enforce its execution. We advise that the plaintiffs’ bill be dismissed.

In this opinion, the other judges concurred.

Bill to be dismissed.