The opinion of the court was delivered by
Mr. Chief Justice Simpson.
Some time in 1886, the plaintiffs, respondents, and the defendant, appellant, entered into a certain written agreement, a copy of which is hereto appended, in which it was stipulated that a certain mill dam across Allison’s Creek, in the County of York, at a point where the defendant had a mill, should be taken down by the defendant, and the channel of the creek above said dam dug out, ditched, and opened up to the Suggs line, so as to allow all running water to flow freely, the ditch to be of sufficient size to drain the lands of the respondents, ’ which, it was stated, were greatly injured by the pond ; this said work to be completed by the 1st day of July then ensuing, in 1886, unless prevented by rocks requiring blasting, and then in a reasonable time, and when completed to be kept open and unobstructed forever, &c., which the defendant bound himself faithfully to perform in the penal sum of $600, the plaintiffs agreeing to pay the defendant $600 at the execution of the agreement, which payment was acknowledged by the defendant, and also stipulating for some other privileges to the defendant, all of which appears in the agreement appended.
The work not having been done, as it is alleged, although frequently requested by the plaintiffs, the action below was commenced in September, 1887, in which the plaintiffs prayed judgment: u(l) That the defendant be forthwith required to cut the said ditch in manner and form as he had undertaken to do, that is to say, so that it would allow all ordinary water to flow freely through it from off the plaintiffs’ lands above, and to be of sufficient size for that purpose ; and further, that he be required to keep the same open and unobstructed forever, and failing in this, that the plaintiffs be allowed to do the said work at the defend- ■ ant’s expense. (2) For the sum of nine hundred dollars, spe[212]*212cial damages suffered by the plaintiffs from the defendant’s failure of performance up to the present time, as well as for damages to follow hereafter up to the time of performance, and for the costs of this action.” The defendant answered, denying certain allegations of the complaint, but averring that he had performed the work which the agreement required of him according to the stipulation therein; and further averring that the failure of the ditch to drain plaintiffs’ lands was due to other causes than the imperfect construction of the ditch.
Before the case came up for trial, the defendant gave notice, under rule 28 of the Circuit Court, that an order would be applied for, submitting certain issues to a jury, and at the November term, 1888, his honor, Judge Kershaw, upon hearing the motion, made an order appointing a referee to frame jury issues, and continued the case. These issues were framed, and after-wards reported to the court. They will be found in the “Case.” When the case afterwards came up for trial, his honor, T. B. Fraser, presiding, “announced (against the objection of the plaintiffs, who contended that the case was one in equity for specific performance) that he would submit the whole case to a jury, and let them find a general verdict; that he was inclined to the opinion that it was not a case of equity jurisdiction for specific performance; but if he should conclude later that it was such, he would hear the case on calendar 2, when reached on that calendar. The jury found for the defendant, and when the case was reached on calendar 2, the plaintiffs moved for a new trial, in the event that his honor still thought the case was a case at law. His honor then announced that he would hear counsel on the prayer for specific performance, after which he filed a decree giving judgment for specific performance, and granting such orders as were necessary to enforce said judgment.
The defendant has appealed upon several exceptions, all of which will be found in the “Case;” but from the view which we have taken of the appeal, we think that exception 5 is the only one that raises any question proper for our consideration. That exception alleges error to his honor “in reversing his first conclusion at the opening of the trial, that the case presented by the pleadings was not one for specific performance, but an action [213]*213sounding in damages for breach of contract, especially as the trial had been conducted under that ruling.”
The remedy of specific performance is an equitable remedy; and when the Court of Equity had a separate existence in'this State, it attached to that court, or wherever it has a separate existence now this remedy belongs to that court exclusively, “the distinctive object being to enforce specifically an equitable right, and to compel the defendant to specifically perform an equitable obligation resting upon him.” 3 Pom. Eq. Jur., § 1400. This equity may exist in reference to certain contracts, and also to enforce the performance of trusts; but whatever may be the character of the case, some equitable feature is necessary in order to entitle the complainant to invoke the aid of the Court of Equity. Since the adoption of the Code in our State, blending the two Courts of Law and Equity, the same necessity exists. In fact, there has been no change as to equity jurisdiction, the change has been merely as to the mode of procedure. The Court of Common Pleas has an equity side as well as a law side, but neither one of these branches has been extended or authorized to encroach upon the other. What was a law cause of action before is still a law case, and what was an equity cause is still an equity case. So that to determine the question here, whether or not the plaintiff is entitled to his demand for specific performance, we have only to consider whether he would have been thus entitled under the old Court of Equity.
The matter in contest here is a contract or an agreement for the performance of certain -work by the defendant, in order to drain or carry off water from the lands of the plaintiffs. Now, as stated above, the old Court of Equity had jurisdiction to enforce the performance of certain classes of contracts. Does this belong to one of the classes ? is the question here. The marked cases in which there was no doubt as to the jurisdiction of the old court were in reference to contracts for the sale of lands, and also for the sale of certain specific chattels, where the said chattels had some special value to the claimant over and above any pecuniary estimate. 3 Pom. Eq. Jur., § 1402. But still the jurisdiction did not depend entirely upon the nature of the contract, nor upon its subject matter, but upon some equitable fea[214]*214ture or element belonging thereto, and this feature was generally the inadequacy of a legal remedy; and where this existed clearly, there was an equitable foundation for the interposition of the Court of Equity for specific performance. If the breach of the contract, however, could be reasonably satisfied with damages, then the Court of Equity could not interfere. So that in all these cases in reference to contracts, the underlying principle is the practicability or impracticability of a sufficient and adequate legal remedy.
Now, the ordinary legal remedy for the breach of contracts is an action for damages, and where proper damages can be assessed by a jury, it is a law case, and the Court of Equity has not and cannot take jurisdiction. Here the injury complained of is alleged to be the result of a failure on the part of the defendant to perform his part of the agreement mentioned in the complaint.
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The opinion of the court was delivered by
Mr. Chief Justice Simpson.
Some time in 1886, the plaintiffs, respondents, and the defendant, appellant, entered into a certain written agreement, a copy of which is hereto appended, in which it was stipulated that a certain mill dam across Allison’s Creek, in the County of York, at a point where the defendant had a mill, should be taken down by the defendant, and the channel of the creek above said dam dug out, ditched, and opened up to the Suggs line, so as to allow all running water to flow freely, the ditch to be of sufficient size to drain the lands of the respondents, ’ which, it was stated, were greatly injured by the pond ; this said work to be completed by the 1st day of July then ensuing, in 1886, unless prevented by rocks requiring blasting, and then in a reasonable time, and when completed to be kept open and unobstructed forever, &c., which the defendant bound himself faithfully to perform in the penal sum of $600, the plaintiffs agreeing to pay the defendant $600 at the execution of the agreement, which payment was acknowledged by the defendant, and also stipulating for some other privileges to the defendant, all of which appears in the agreement appended.
The work not having been done, as it is alleged, although frequently requested by the plaintiffs, the action below was commenced in September, 1887, in which the plaintiffs prayed judgment: u(l) That the defendant be forthwith required to cut the said ditch in manner and form as he had undertaken to do, that is to say, so that it would allow all ordinary water to flow freely through it from off the plaintiffs’ lands above, and to be of sufficient size for that purpose ; and further, that he be required to keep the same open and unobstructed forever, and failing in this, that the plaintiffs be allowed to do the said work at the defend- ■ ant’s expense. (2) For the sum of nine hundred dollars, spe[212]*212cial damages suffered by the plaintiffs from the defendant’s failure of performance up to the present time, as well as for damages to follow hereafter up to the time of performance, and for the costs of this action.” The defendant answered, denying certain allegations of the complaint, but averring that he had performed the work which the agreement required of him according to the stipulation therein; and further averring that the failure of the ditch to drain plaintiffs’ lands was due to other causes than the imperfect construction of the ditch.
Before the case came up for trial, the defendant gave notice, under rule 28 of the Circuit Court, that an order would be applied for, submitting certain issues to a jury, and at the November term, 1888, his honor, Judge Kershaw, upon hearing the motion, made an order appointing a referee to frame jury issues, and continued the case. These issues were framed, and after-wards reported to the court. They will be found in the “Case.” When the case afterwards came up for trial, his honor, T. B. Fraser, presiding, “announced (against the objection of the plaintiffs, who contended that the case was one in equity for specific performance) that he would submit the whole case to a jury, and let them find a general verdict; that he was inclined to the opinion that it was not a case of equity jurisdiction for specific performance; but if he should conclude later that it was such, he would hear the case on calendar 2, when reached on that calendar. The jury found for the defendant, and when the case was reached on calendar 2, the plaintiffs moved for a new trial, in the event that his honor still thought the case was a case at law. His honor then announced that he would hear counsel on the prayer for specific performance, after which he filed a decree giving judgment for specific performance, and granting such orders as were necessary to enforce said judgment.
The defendant has appealed upon several exceptions, all of which will be found in the “Case;” but from the view which we have taken of the appeal, we think that exception 5 is the only one that raises any question proper for our consideration. That exception alleges error to his honor “in reversing his first conclusion at the opening of the trial, that the case presented by the pleadings was not one for specific performance, but an action [213]*213sounding in damages for breach of contract, especially as the trial had been conducted under that ruling.”
The remedy of specific performance is an equitable remedy; and when the Court of Equity had a separate existence in'this State, it attached to that court, or wherever it has a separate existence now this remedy belongs to that court exclusively, “the distinctive object being to enforce specifically an equitable right, and to compel the defendant to specifically perform an equitable obligation resting upon him.” 3 Pom. Eq. Jur., § 1400. This equity may exist in reference to certain contracts, and also to enforce the performance of trusts; but whatever may be the character of the case, some equitable feature is necessary in order to entitle the complainant to invoke the aid of the Court of Equity. Since the adoption of the Code in our State, blending the two Courts of Law and Equity, the same necessity exists. In fact, there has been no change as to equity jurisdiction, the change has been merely as to the mode of procedure. The Court of Common Pleas has an equity side as well as a law side, but neither one of these branches has been extended or authorized to encroach upon the other. What was a law cause of action before is still a law case, and what was an equity cause is still an equity case. So that to determine the question here, whether or not the plaintiff is entitled to his demand for specific performance, we have only to consider whether he would have been thus entitled under the old Court of Equity.
The matter in contest here is a contract or an agreement for the performance of certain -work by the defendant, in order to drain or carry off water from the lands of the plaintiffs. Now, as stated above, the old Court of Equity had jurisdiction to enforce the performance of certain classes of contracts. Does this belong to one of the classes ? is the question here. The marked cases in which there was no doubt as to the jurisdiction of the old court were in reference to contracts for the sale of lands, and also for the sale of certain specific chattels, where the said chattels had some special value to the claimant over and above any pecuniary estimate. 3 Pom. Eq. Jur., § 1402. But still the jurisdiction did not depend entirely upon the nature of the contract, nor upon its subject matter, but upon some equitable fea[214]*214ture or element belonging thereto, and this feature was generally the inadequacy of a legal remedy; and where this existed clearly, there was an equitable foundation for the interposition of the Court of Equity for specific performance. If the breach of the contract, however, could be reasonably satisfied with damages, then the Court of Equity could not interfere. So that in all these cases in reference to contracts, the underlying principle is the practicability or impracticability of a sufficient and adequate legal remedy.
Now, the ordinary legal remedy for the breach of contracts is an action for damages, and where proper damages can be assessed by a jury, it is a law case, and the Court of Equity has not and cannot take jurisdiction. Here the injury complained of is alleged to be the result of a failure on the part of the defendant to perform his part of the agreement mentioned in the complaint. Admit the failure, where is the difficulty in proving and recovering the consequent damages ? And why is it that the remedy at law is insufficient or inadequate ? We do not see this. The value of the work stipulated in the agreement to the plaintiffs was some $600, the amount paid by them to the defendant, and the allowance of some specified privileges to him, and for the performance of the work the defendant bound himself in the penal sum of $600. Thus it seems the parties themselves in the agreement determined to some extent the value of said work if properly performed, and also what amount would cover damages in the event that defendant failed on his part. And we 'see no reason, growing out of the facts alleged in the complaint or proved on the trial, which could prevent a jury from giving an adequate redress for such damages, if any, as may have been sustained by plaintiffs. The injury complained of was upon the lands. The value of land can certainly be estimated, and, we suppose, it could be determined whether it had been injured in whole or in part only, and there seems to be no special reason in this case why the extent of the injury could not have been ascertained, and why a sufficient pecuniary compensation for whatever injury the plaintiffs have sustained, if any, would not be satisfactory.
But, besides, contracts for building and construction and for personal acts, &c., will not usually be enforced in a Court of [215]*215Equity, but the parties will generally be left to an action at law for their breach, unless under some peculiar circumstances, and unless, too, the work to be done is well defined and specified, and is such as to be within the power of the court to enforce by its decrees. Where, however, the work consists of personal acts, requiring protracted supervision and direction, e. g., such as building contracts for construction of railroads, mining quarries, and the like, the court will not generally interfere. See Pom. Eq. Jur., § 1405, and numerous cases in the notes. Here the work was to be kept up forever.
We have reached our conclusion with some hesitation and doubt, but we think this case was one sounding in damages, and could be redressed, if there has been a breach and an injury sustained, by verdict of a jury, the facts necessary thereto being peculiar to a jury. We are therefore of the opinion that his honor, the trial judge, erred in reversing his first conclusion, and after a verdict had been rendered for the defendant, in opening the case and trying it anew upon the equity side of the court.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the case be remanded, with the right of the defendant to enter judgment upon the verdict, without prejudice, however, to plaintiffs to take such action in reference thereto as they may be advised.