The Chancellor.
The motion to suppress the deposition of the witness is denied, as the charge of misbehaviour is done away ; but if it should be deemed material, hereafter, in the discussion of the merits, to have a more full and perfect answer from the witness, the court will direct a further examination of him, on those interrogatories, either before the examiner, or in open court. The cases cited show, that either course may be adopted, in the discretion of the court, the better to inform its conscience; and if a further deposition be taken, it need not be published, nor a further argument had, unless the justice of the case should seem to require it.
The counsel for the defendants then raised au objection to the answer of Moses Phillips, jun., one of the plaintiff’s witnesses, to the 4th direct interrogatory, because he detailed the declarations of Moses Phillips, one of the commissioners under the act, but not a defendant.
The declarations of a person who not a party in interest, not a party to the suit, and who is a witness in the cause, are clearly not competent evidence ; and that part of the deposition must be suppressed.
The counsel for the plaintiff then moved, that the answer of the plaintiff' to the cross bill, filed on the part of the defendants, be read, on the ground that the cross suit was to be considered as brought on to a hearing concurrently with this, which, they said, was the usual and proper course; and for this they cited Wyatt's Prac. Reg. 218. Coop. Tr. Ch. Pl. 87. And they also insisted, that the counsel for the defendants having, yesterday, raised the question, as to the competency of the deposition of Peter Townsend, in the cross suit, as evidence in this suit, and taken the opinion of the Chancellor, who decided that the deposition was inadmissible ; the motion to the court, for its opinion on that question, implied that both suits were on hearing together.
July 8th.
July 9th.
a plaintiff can-answer to a bin “¡denceUÍtúniea9 chooses^ tadato produce«.
But the defendants’ counsel denied that they had moved to bring on the cross suit to a hearing; and insisted that, without their motion, it could not be considered as before the court.
It is not material to the decision of the present question, whether the cross suit is to be deemed as regularly brought on to a hearing, or not; for the plaintiff cannot read his own answer to the bill of discovery, in the cross suit, unless the defendants choose first to produce it in evidence. The plaintiff cannot testify for himself, unless at the instance, and on the call of the defendants ; and it is for the defendants to determine, whether the answer is to be admitted as evidence, in this cause or not. The motion is, therefore, denied.
In arguing on the merits, the counsel for the plaintiff enteredinto a minute examination of the evidence, and contended, that the contract, as stated in the hill, was fully proved; that it had not been rescinded, and had been carried into execution on both sides ; that it was no objection that the defendants had no funds in their hands, as they might be directed to collect the money according to the provisions of the act.
That this case could not be brought within the statute of frauds; there was no grant, assignment, or surrender, or sale of any interest in lands. It was a mere easement A grant of a right of way is not within the statute ; and if this agreement was within the statute, it was taken out of its operation by the part performance. The entry of the defendants on the ground, and digging the canal, was a part performance.
They cited, 1 Schoale & Lefroy's Rep. 22. 40, 41, 42. 1 Vesey, 221. Sugden‘s Law of Vendors, 72—85, 3 Atk. 503. Prec. in Ch. 560.
For the defendants, it was insisted, that, if there was a valid contract, the plaintiff had a clear remedy at law, under the statute; that no contract, as stated by the plaintiff, had .been shown; the contract, in the alternative, as alleged by [142]*142him, and on which he grounds his application for relief, was peremptorily denied in the answer.
There was a great and irreconcilable contradiction m ^ eyjjence- The witnesses of the defendants were disinterested. Three of the defendants, in their answers, deny the contract set up by the plaintiff. If a defendant denies a fact charged in the bill, it requires two witnesses to countervail his answer. So, according to the sense and spirit of the rule, if there are two defendants, each denyingthe same fact, it requires four witnesses to countervail their answers. (Mortimer v. Orchard, 2 Ves. jun. 243.) The confession of one defendant, binds him only. (Wyatt, 23. 188. But see 1 Dickens, 24. 12 Vesey, 355.) The evidence of Mason and his minutes, are conclusive as to the contract.
But, whatever the contract was, it was abandoned in June, 1807 ; and being in fieri, and not completed, or reduced to writing, the defendants had a right to abandon it. (6 East, 602.)
Again, the commissioners were bound to pursue the directions of the act, strictly. They had no authority to enter into such a contract. The act never intended, nor contemplated a personal suit or demand. There can be no personal decree in this case. A decree under an illegal contract will not bind the land, which was ultimately to pay, and this court cannot force an assessment on the land.
Again, the case is within the statute of frauds. (Rob. on Frauds, 126. advertis, p. 17. 6 East, 602.)
The answer peremptorily denies the agreement; and it is not competent to prove the agreement aliunde. (6 Vesey, 12. 2 Bro. Ch. Cas. 559. Dickens, 664.) No part performance will be sufficient, unless that part performance was in pursuance to the contract, and was such, that the nonfulment of the contract would be a fraud. ‘ (1 Bro. Ch. Cas. 480. Mitford, Arg. Loft, 808, 809. 7 Vesey, 341. 1 Vesey, 221. 2 Bro. Ch. Cas. 563. 3 Atk. 4. [143]*143Ambl. 586. 2 Bro. Ch. Cas. 561. 566. Arguendo. Sugden’s Law of Vend. 83, 84. (3d ed.) 1 Schoale & Lefroy, 41.) _
August 29th.
Part of the contract was clearly within the statute, even the agreement as to lowering the dam was not. If a contract is void in part, by the statute, it is void in tofo. (Anst. 420. 525. 7 Term Rep. 281. Sugden’s Law of Vendors, 64.)
The cause stood over for decision, on the merits, to this day.
The óbject of this suit is to obtain a discovery of the funds under the control of the, defendants, as commissioners, and to compel them to perform, on their part, the parol contract set forth in the bill. The contract is denied in the answers, and the statute of frauds is also insisted on, and much testimony has been taken on each side, in respect to the contract, and to its part performance.
1. The first question that naturally arises upon the case is, whether the contract, as charged, was a “contract or sale of lands, tenements, or hereditaments, or any interest in, or concerning them,” within the 4th section of the English, or the 11th section of our statute of frauds, (sess. 10. ch. 44.)
The commissioners, under the act stated in the case, (sess. 30. c. 25.,) were authorized “ to remove any obstructions, dam, or erection, mill or improvement, in or across the Wallkill, at the outlet of the drowned lands, and to use and occupy a sufficient proportion of lands adjoining each bank of the river, on which they might find it necessary to lay the rocks, stone, earth, gravel, or other substance, which they might have any occasion to take out of the same; and to take, use, occupy, and enjoy the same, for the purposes aforesaid, and to contract with the owner for the damages,” &c. Under this authority the contract is alleged to have been made, and possession of the lands of the [144]*144plaintiff taken; and I think it must be considered as a contract concerning an interest in lands, within the purview of the statute of frauds.
I lay it down preliminarily, as a clear principle, that the commissioners had no legal right to use and enjoy the lands of the plaintiff or to remove or destroy his property, without a contract with him, and his assent for that purpose, or until compensation had been made or tendered, as the act provided. The latter was not done, and therefore, a valid contract was necessary to give them the right.
The statute, under which the commissioners acted, mentions that they were “ to contract,” or to treat and agree, “ with the owner, for the damages or compensation, and to pay the amount.” The nature and form of the contract is not defined in the act, and it must be understood to mean a contract valid by the existing laws of the land. The statute, most certainly, did not intend any unnecessary interference with established principles. The owner must be a person of competent age and ability to contract, and the contract, to be binding, must have the requisite form and substance, it must be subject to the same rules and construction as all other contracts of the same nature. Thus it has been decided, (Simonds v. Catlin, 2 Caines, 61.,) that when a statute authorizes a sale of lands, it means a sale with the customary solemnities, and by deed or note, in writing, according to the direction of the statute of frauds.
It was said that the right granted to the commissioners, by the contract charged, was an easement only, and not within the act. I have looked into the books; and with respect to a right of entry on land for a temporary and special prupose, and which is sometimes treated as an easement, there arc very subtle distinctions, and much apparent contradiction in the cases. Thus, a sale of timber growing, or of potatoes in the ground, and which had. done growing, has been held to be a sale not within the statute of frauds. (Anon. 1 Lord Raym. 182. Parker v. Stanilard, 11 East, 362.) But a [145]*145sale of grass growing, or of turnips growing, was the sale of an interest within the act. (Crosby v. Wadsworth, 6 East, 609. Emmerson v. Heelis, 2 Taunton, 38.) In one case • . an the K. B., rather imperfectly reported, (Wood v. Lake, Sayer, 3.,) it was held, that a parol agreement for liberty to stack coals on land for seven years, was but an easement, and not an interest, and so not within the statute. I mean not to meddle with the above cases, except so far as to observe, upon the last, which has some bearing upon this, that it is justly liable to all the observations against its authority, made by Mr. Sugden, (Law of Vendors, 3d Lond. ed. 56.,) and that the agreement, thereby stated, seems to have been equally within the words, and within the mischief of the act. The contract, in this case, related to an interest to be acquired in the land itself, and to such a possession, for the limited purpose, as would entitle the commissioners to an action of trespass or ejectment, for any injury or interruption to the possession. They were to have the use and enjoyment of the land. Unless the contract reached to aninterest in the soil, the objects of the act could not be answered, and would be exposed, at all times, to be defeated. The privilege of erecting a mill dam on the bank of a creek, was held, in the case of Jackson v. Buel, (9 Johns. Rep. 298.,) to he an interest for which an ejectment would lie, because an interest was given in the soil, not only for erecting the dam, hut for possessing it. So, a contract for the sale, and delivery of possession, has been held to carry with it an interest in the land, and to come within the statute. (Howard v. Easton, 7 Johns. Rep. 205.) With respect to the word tenement, it has been held to reach not only to corporeal inheritances, but to rights annexed to, and to be enjoyed as part of the inheritance; such as rents, tolls, estovers, commons, piscary, &c.; for these all savour of the realty. (Co. Litt. 200.) If we resort to either branch of the clause of the statute of frauds, the contract seems to be within it. The use of the outlet of the Wallkill, and its [146]*146banks, for the purposes declared, and the enjoyment of that use, by the commissioners and their successors, was to be as permanent as the improvements intended. The provision . was for a public and lasting object, and if the outlet was not kept clear and unobstructed, the lands tobe improved might again be overflowed.
2. But the plaintiff alleges a part performance of the contract, to take the case out of the statute. The answers deny the agreement, and any part performance in pursuance of it. This has led the parties into much parol proof; and unless the plaintiff has clearly established the contract, as charged, and, also, a part performance of the same contract, he has not entitled himself to the relief sought.
The proof of the existence of this contract, as charged in the bill, consists of the depositions of Moses Phillips, father of the plaintiff, and one of the original commissioners, of Moses Phillips, jun., Lemuel Judson, Henry W. Phillips, and John Kinney, who all prove various confessions of the different commissioners, with whom the plaintiff contracted, of the making of the contract as charged. On the other hand, there are the answers of the defendants, denying any such contract, and the depositions of John Townsend, James Moore, and Joseph Jefferson, proving a different contract, and one conformable to that alleged in the answers, and which was to be reduced to writing. There are, also, on the part of the defendants, the depositions of William Townsend and David Mason, proving the application of Moses Phillips, in behalf of the- plaintiff, to David Mason, to take minutes of the contract with the plaintiff, and to redu.ce it to writing, to be executed, by the parties respectively, at the meeting of the commissioners in June, 1807. The minutes so taken by Mason are an exhibit in the cause, and they relate to a contract as set forth in the answer, and do not apply to the contract charged in the bill.' The testimony, as it respects the quantity of the proof on each side3 [147]*147may be considered as nearly balanced ; but there are intrinsic circumstances arising out of the nature of the testimony, which inclines the balance in favour of the defendants. The „ , , „ , . i . . . , _ answers of the defendants, who were the original parties, and who were selected by the legislature, for their judgment and character, to execute this public trust as commissioners, who have no personal interest in the question, and who m.ust be presumed to have full knowledge of the contract intended to be made by them, are entitled to, and cannot but receive, very great consideration, in estimating the relative weight and credit of testimony. The original minutes of Mason, the attorney, taken down at the time, from the mouth of Moses Phillips, the father and agent of the plaintiff, for the express purpose of reducing the contract to writing, and preparing it for execution, ought to have a more preponderating influence than the fallacious memory of witnesses speaking several years afterwards. Written proof, of that kind, always outweighs parol proof, in judgment of law, as well as by its power to produce conviction.
The plaintiff has, accordingly, failed in making out, by clear and satisfactory proof, the existence of the contract as laid.
The evidence on the part of the plaintiff, in support of the allegation of part performance of his contract, as charged in his bill, consists, principally, of the testimony of John Kinney, Gabriel N. Phillips, John Rasuin, and Thomas Waters, proving that the commissioners entered on the land, and commenced the canal, in the autumn of 1807, and continued working at it in the year ensuing. The defendants admit this fact, and, also, that the plaintiff lowered his dam four feet in April, 1808 ; but they say that the entry and occupation of the land was made with the express or implied assent of the plaintiff, and under a mutual understanding that a compensation was to be made, but not the specific compensation now claimed. There is, likewise, proof, that at the meeting, In. June, the commissioners refused to execute the contract [148]*148set forth in the answers, and, consequently, that no contract was signed; there are, also, other facts in proof, from which we are necessarily led to infer, that this refusal must have been known at the time to the plaintiff. As the contract, whatever it was, rested in parol, and had notheen consummated, nor any act done under it, the commissioners clearly had a right to avail themselves of the locus peniientim, and reject it. It does not follow, then, as a necessary consequence, that the subsequent entry of the commissioners, in the autumn of that year, was in pursuance of the contract charged, nor is it to be reasonably presumed, after that refusal, provided any other good reason can be assigned for that entry. The real motive is obvious, independent of the contract; it was in pursuance of their public trust, and to carry their powers into effect. The 11th section of the act seems evidently to contemplate an entry and exercise of power, being previous to the settlement of compensation; and the 4th section is far from being very clear and explicit on that point. Though I consider it to be a fundamental principle of law, and of good government, that private property cannot be taken away for public purposes, without just compensation, and that, until that is made, the party aggrieved would he entitled to his legal remedy; yet it was very natural that the commissioners should consider the provisions of the act as sufficient for their entry, in the first instance, and that it was safe, or expedient, to leave the question of compensation as a subject of future arrangment with the plaintiff, either by agreement, or by assessment under the act. The grounds upon which the entry was made, as stated by the commissioners in their answer, appear to me to he extremely probable. The entry was, at least, no very decisive and unequivocal evidence of a part performance of the identical contract set up by the plaintiff. It was certainly not such an act done, to use Lord Hardwicke,s words, “ as could be done with no ■other view or design than to perform the agreement.” It would he extravagant to maintain this, when we consider the [149]*149authority and objects of the trust under which the commissioners acted.
j It is not sufficient that the entry and use of the land is evidence of some agreement. It must be satisfactory evidence of the particular agreement charged, or it will not take the case out of the statute.
f It is well settled, that if a party sets up part performance, to take a parol agreement out of the statute, he must show acts unequivocally referring to, and resulting from, that agreement; such as the party would nojrhave done, unlesson account of that very agreement, and with a direct view to its performance; and the agreement set up must appear to be the same with the one partly performed. There must be no equivocation or uncertainty in the case. The ground of the interference of the court is not simply that there is proof of the existence of a parol agreement, but that there is fraud in resisting the completion of an agreement partly performed. These principles have been recognised in a series of decisions. (Lacon v. Mertins, 3 Atk. 4. Gunter v. Halsey, Amb. 536. Niven v. Belknap, 2 Johns. Rep. 587. Frame v. Dawson, 14 Ves. 386. Clinan v. Cooke, 1 Schoale & Lefroy, 41. Lindsay v. Lynch, 2 Schoale & Lefroy, 1.) These adjudications will fully justify me, by their strong and pointed application to this case, in denying to the plaintiff the execution of the agreement contained in his bill. He has failed in satisfactory proof of his agreement; he fails, also, in showing such acts of performance as are necessarily to be imputed to that agreement, and cannot reasonably be imputed to any other cause.
This case, like many others, shows the utility of the statute of frauds, and the danger of relaxing the sanction of its provisions. I agree with those wise and learned judges, who have declared that the courts ought to make a stand against any further encroachment upon the statute, and not to go one step beyond the rules and precedents already established.
3. But here arises another and serious question, whether [150]*150the bill ought to be dismissed. It is certain that the plaintiff has sustained injury by the act of the commissioners, and is entitled to compensation ; and the defendants admit, that they entered upon his land and dug the canal, under his express or implied assent, and with a mutual understanding that compensation should be made. How is the plaintiff, then, to obtain compensation ? He cannot, perhaps, for the lowering of his dam, in the mode provided by the 11th section, for it was his own voluntary act, not that of the commissioners ; and he might meet with insuperable difficulties in an action of trespass at law, for entering to cut the canal, as the entry appears to have been with his assent, and seven years have elapsed since it was made. This case, then, presents peculiar and strong claims for the interference of this court, in securing to the plaintiff a due and adequate compensation, "in Clifford v. Brooke, (13 Ves. 131.,) the bill could not be sustained on the ground of fraud or mistake, and the relief prayed for was in the nature of damages. The Chancellor observed, that if, in dismissing the bill, he were to exclude the plaintiff from all remedy, he should pause upon the decision ; but he concluded that the plaintiff might bring an action at law for his damages. I have no doubt of the jurisdiction of this court over this case, and that it can cause the damages to be assessed, either by a reference to a master to inquire into, and report them, or by an issue of quantum d&mnificatus. The case of Denton v. Stewart, before Lord Kenyon, when Master of the Rolls, was to this effect. (1 Fonb. 38. n. y., and 165. n. b., and 1 Ves. jun. 329.) That case was, afterwards, approved and followed by Sir William Grant, in Greenaway v. Adams, (12 Ves. 395.) In both those cases, which were bills for specific performance, the defendant had put it out of his power to perform the contract, and the court retained the bills, and referred it to a master to assess the plaintiff’s damages. This appears to me to be a case under similar .circumstances, and as proper as any that can arise for the [151]*151application of the principle of those decisions. Justice demands that the plaintiff should have relief, and I am apprehensive he would be remediless without the aid of this court. The cases are numerous in which the court of chancery caused damages to be assessed, either by an issue or by a master, at its discretion. (2 Fonb. 441. Hedges v. Everard, l Eq, Cas. Abr. 18. pl. 7. Cudd v. Rutter, 1 P. Wms. 570. Errington v. Aynesly, 2 Bro. 341.) I believe the more usual course, where the-damages are not a matter of mere computation, is by awarding an issue, and, under the circumstances of this case, I deem it the more advisable method.
I shall, accordingly, retain the bill, and award an issue oí quantum damnijicatus, to assess the damages which the plaintiff has sustained by the entry and acts of the commissioners, and by his own act in lowering his dam, which was a consequence of their directions; that the issue be tried at the Orange circuit, and that all further questions be reserved until the return of the postea on such issue.
After the damages are assessed, I apprehend no difficulty in finding means to enforce payment. It is made the duty of the commissioners to assess and pay the damages to be sustained. It is part of their trust, and the sum becomes a lien on the lands that are to contribute.
The following decree was, thereupon, entered:
“ That the plaintiff ought to receive, from the defendants in this suit, or their successors in office, the damages sustained by, and compensation due to, him, by reason of lowering his mill dam across the Wallkill, in the bill mentioned, at the time the same was done; and, also, by reason of the defendants, their predecessors, or successors in office, entering upon, using, and occupying the lands of the plaintiff, for digging a canal, and otherwise, as the same may have been used for the purpose of draining, or to facilitate and assist in draining, the drowned lands, in the pleadings mentioned. But, inasmuch as it does not satisfactorily appear to the [152]*152court, that any agreement has been, made by and between the parties, as to the amount of such damages and compensation, to the end, that the same may be satisfactorily ascerit is further ordered, adjudged, and decreed, that an issue be made up between the parties, to ascertain, by the verdict of a jury of the county of Orange, the amount of such damages and compensation; that the said issue be tried at the next, or any subsequent circuit in the said county ; that, for the purpose of forming a proper issue for the assessment of the damages and compensation, to which the plaintiff is declared to be entitled as aforesaid, the plaintiff shall declare, in assumpsit, that the defendants promised to pay him as much as he reasonably deserved to have for his said damages and compensation, or to that effect; and to which declaration, the plea shall be non assumpsit ; on the trial, the plaintiff shall not set up any agreement between him and the defendants, or their predecessors in office, as to the amount of damages and compensation ; and the defendants shall admit their assumption to pay the plaintiff so much as he reasonably deserved to have as damages and compensation, for lowering his mill dam, by the defendants’ request, and for their accommodation, as commissioners for draining the drowned lands, and for the defendants, or their predecessors, or successors in office, entering upon, using, and occupying the lands of the plaintiff, as aforesaid; and the jury are to allow, in their assessment of damages, interest upon the amount of the damages they may find, for such damages and compensation, from the times when the several acts were done, for which the plaintiff is declared to be entitled to damages and compensation as aforesaid, to the time of rendering the verdict; and that all further directions be reserved until the said issue shall be tried, and the postea returned to this court.”