Clarke v. Rochester, Lockport & Niagara Falls Railroad

18 Barb. 350, 1854 N.Y. App. Div. LEXIS 56

• Court: New York Supreme Court
• Decided: September 4, 1854
• Status: Published

Opinion

T. R. Strong, J.

The general act to authorize the formation of railroad corporations and to regulate the same, to the duties imposed by which the defendants are subject, provides that the corporations subject thereto shall erect and maintain fences on the sides of their road, and “ farm crossings for the use of the proprietors of land adjoining such railroad.” (Laws of 1850, p. 211, §§ 50,49, 44.) No distinction is made, in terms, in respect to this duty to make crossings, between cases in which the lands of the corporation, occupied by their road, were obtained by agreement with and conveyance from the owners, and those in which title was acquired by the compulsory proceedings provided for by the act; and I think none was intended by the legislature. Nor is this provision, for making crossings, in terms limited to cases where the adjoining proprietors have farms, or any particular quantity of land to be benefited by the crossings ; and if there is any limitation in cases within the language employed, to be imposed by construction, it is merely that the crossings must be useful.

In the present case I am satisfied that the defendants are under a legal obligation to make such a crossing as is intended by the statute, for the use of the plaintiff; and probably an under crossing only would be suitable. But it does not necessarily follow that because such an obligation upon the defendants to the plaintiff exists, which they have refused to perform, the plaintiff is entitled to a judgment for a specific performance of it. An action for a specific performance is an appeal to the equitable jurisdiction of the court—the relief is matter not of absolute right in the party, but of sound discretion in the court; and to sustain such an action the granting of such relief must appear to be entirely equitable. The court will never compel a performance specifically when, looking at all the circumstances on both sides, it is apparent that injustice would thereby be done. In this case the lands in respect to which a crossing is sought are two parcels of a small village lot, separated by a conveyance from the plaintiff to the defendants, for the use of their road, of a small strip through the lot, which parcels are not occupied by any building, and of the value of which there is no direct evidence ; but from the sum paid for the portion conveyed to the defendant, and for damages, it may fairly be concluded that it is small; no special circumstances, in regard to the manner in which the land has been or may be used, rendering a crossing necessary, are shown; and if an under crossing is to be made and maintained it must be constructed in a permanent manner, through an embankment about fifteen feet in height, the expense of which, it is manifest, would much exceed the value of such a crossing to the plaintiff. The case is therefore one in which there is not only' an absence of proof, that the enforcement of the performance of the alledged duty would be equitable, but it is affirmatively proved that it would be inequitable. The learned justice before whom this action was tried appears to have entertained the view, that the burthen of performing the duty would be greatly disproportioned to the value of the land to be benefited by its performance. This is evident, not only from the opinion delivered by him, but from the provisions of the judgment, giving the defendants an election to pay the damages for not making a crossing, and, in case of their so electing, relieving them from the obligation to' make it, and directing a reference to ascertain the damages. Under the circumstances of the case, I think it clear that the court ought not to adjudge a specific performance, and that the plaintiff should be left to his remedy for damages. If the judgment for a specific performance is erroneous, the error is not cured by the election which is given to the defendants.

[Monroe General Term, September 4, 1854.

Under the practice of the late court of chancery, in cases like the present, if it now prevailed, the complaint in this case would be dismissed; it would not be retained to allow the plaintiff compensation in damages. (Story’s Eq. Jur. §§ 794 to 800. Morss v. Elmendorf, 11 Paige, 277.) But under the code the plaintiff is, I think, entitled to assert his claim for damages in this action.

The judgment is therefore reversed, and a new trial granted, to be had before a jury, with costs to abide the event; except that the plaintiff is in no event to have costs of the appeal.-

Gray, J., concurred.

Johnson, J., dissented.

Hew trial granted.

Johnson, Gray, and T. R. Strong, Justices.]