Mr. Presiding Justice Freeman
delivered the opinion of the court.
It is first contended in behalf of appellant that the provision contained in the deed from Jane S. Martin “is not a covenant.” The reasoning is that a covenant to be operative must be signed and sealed by all the parties to it, and that the deed in question was only signed and sealed by. the grantor Jane S. Martin. Whether or not the provision in question contained in a deed poll be regarded as technically a covenant upon which the action of that same could be maintained is, we think, immaterial. This is a proceeding in equity. The deed was given in settlement of condemnation proceedings, wherein appellant would have been compelled, in order to acquire the land, to pay its ascertained value, together with compensation for damages to adjacent land not taken. All the delay, trouble and expense incident to that proceeding, were avoided and damages for lands not taken were waived in consequence of and as a part of this agreement. By its acceptance the grantee agreed to erect and maintain the levee and to cut and continuously maintain the ditch and outlets for the protection of the remaining land from damage. Equity will enforce such manifest intention of the parties without reference to the precise character of the instrument in which it is expressed. By taking possession of and using the land conveyed, the grantee in the deed became a party in equity to its terms and conditions as effectively as if it had affixed its signature and seal. See Brockmeyer v. Sanitary District of Chicago, 118 Ill. App. 49-54; Fitch v. Johnson, 104 Ill. 111-120; Post v. W. S. R. R. Co., 123 N. Y. 580-587.
The agreement in controversy provides that appellant “shall erect and continuously maintain a levee,” “shall cut and continuously maintain a ditch,” “shall provide and continuously maintain” outlets or drains from said ditch. These are manifestly covenants running with the land. Equity must interpret them as expressing such intention and will enforce and execute them accordingly. Brockmeyer v. Sanitary District, supra, and cases there cited. Landell v. Hamilton, 175 Pa. 327-334; Post v. N. S. R. R. Co., 123 N. Y. 580-587. Susan O’Connell, grantee of Jane S. Martin, succeeds therefore to the rights and privileges secured by the covenants in controversy, including the right to relief.
It is insisted in behalf of appellant that the high grounds in sections 14 and 1 referred to in the covenant in controversy were outside of land owned or controlled either by appellant or by appellee, and that to comply with the terms of the said covenant would require occupation of a public highway and of a portion of the right of way of the Santa Fe Bailroad, which appellant claims to have no authority to take and that hence it would not be in the power of the Sanitary District specifically to perform said covenants. We are at a loss to understand this contention in view of the language of the Sanitary District Act, which authorizes appellant (section 8) to “acquire by purchase, condemnation or otherwise any and all real and personal property, right of way and privilege either within or without its corporate limits;” and expressly authorizes that when “necessary in making any improvements” which it is “authorized by this act to make, to enter upon any public property or property held for public use, such district shall have the power to do so and may acquire the necessary right of way over such property held for public use,” etc. By section 23, appellant is authorized to correct the channel of the Desplaines river, and it appears from the evidence that diversion of the waters of the river from its old bed, at the point where appellee’s lands were situated, was necessary before work could be commenced on the main drainage channel. The chancellor found that a part of appellee’s remaining land is subject to overflow “by reason of the construction, maintenance and operation of the main channel of the said district, its adjuncts and appurtenances, and the construction of the new channel of the Desplaines river.” It was the apparent intention of the covenant in controversy that appellant should do the work therein agreed upon, to protect said land from such .overflows, which are direct consequences of the construction of appellant’s channel. Surely to acquire lands and rights of way upon which to erect an embankment and construct ditches for this purpose would be to acquire ■ them for a legitimate corporate purpose directly incident to the work the district was authorized to perform.
It is urged that the condition contained in the deed is not such as a court of equity ought to compel specific performance of, both because of appellant’s alleged want of power specifically to perform and because the benefit of specific performance to the Martin lands would be disproportionate to the great cost to the district. Assuming for the argument’s sake that there was want of power specifically to perform the covenants in question, appellant should nevertheless, be deemed equitably estopped from interposing it as a defense, after it has obtained by reason of said covenants all it wanted from appellee, including a release of damages to appellee’s lands not taken. Appellant has accepted and occupied the land, it has constructed the new channel for the river, which is a continuing damage to the lands not taken, and it cannot now restore the conditions existing when the contract, was made. No court of equity can allow appellant to retain the benefit of the deed and repudiate the consideration upon which it was given. As said by Judge Tuley when deciding the case in the Circuit Court: “To so hold under the circumstances of this case would be not only inequitable, but a travesty upon the administration of justice.”
There may be cases, however, where specific performance, although a strict matter of right, cannot on the whole be equitably awarded since the greater equity requires that the complainant be given relief in another way. There is evidence tending to show and not disputed, that the cost to appellant of specific performance in the present case would be under conditions now existing, although of appellant’s own creation, in the neighborhood of $60,000, a sum, it is said, considerably in excess of the value of appellee’s land involved. It appears from the evidence, and the chancellor finds, that by settlements made with owners of adjacent lands having similar contracts with appellant, the latter has put it out of its power specifically to perform its covenants with Martin if it so desired. This inability to perform was disclosed at the hearing. It entitles appellee to an award of damages in lieu of the performance which has thus through no fault of hers and without her previous knowledge become impossible. We concur, therefore, with the views of the chancellor- who found that by reason of the great cost to appellant if compelled specifically to perform the contract in question, when compared with appellee’s damages suffered by reason of the failure to perform, it would be inequitable now to decree specific performance, even if such performance were possible. We agree also with the Circuit Court in holding that it would be inequitable under the circumstances to put appellee to her remedy at law' in view of the lapse of time and difficulties attendant upon such remedy, and that having jurisdiction of the subject-matter and the parties it was proper to retain the bill and determine the compensation to which appellee is entitled as damages for non-performance by appellant of the agreements and covenants in controversy.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Presiding Justice Freeman
delivered the opinion of the court.
It is first contended in behalf of appellant that the provision contained in the deed from Jane S. Martin “is not a covenant.” The reasoning is that a covenant to be operative must be signed and sealed by all the parties to it, and that the deed in question was only signed and sealed by. the grantor Jane S. Martin. Whether or not the provision in question contained in a deed poll be regarded as technically a covenant upon which the action of that same could be maintained is, we think, immaterial. This is a proceeding in equity. The deed was given in settlement of condemnation proceedings, wherein appellant would have been compelled, in order to acquire the land, to pay its ascertained value, together with compensation for damages to adjacent land not taken. All the delay, trouble and expense incident to that proceeding, were avoided and damages for lands not taken were waived in consequence of and as a part of this agreement. By its acceptance the grantee agreed to erect and maintain the levee and to cut and continuously maintain the ditch and outlets for the protection of the remaining land from damage. Equity will enforce such manifest intention of the parties without reference to the precise character of the instrument in which it is expressed. By taking possession of and using the land conveyed, the grantee in the deed became a party in equity to its terms and conditions as effectively as if it had affixed its signature and seal. See Brockmeyer v. Sanitary District of Chicago, 118 Ill. App. 49-54; Fitch v. Johnson, 104 Ill. 111-120; Post v. W. S. R. R. Co., 123 N. Y. 580-587.
The agreement in controversy provides that appellant “shall erect and continuously maintain a levee,” “shall cut and continuously maintain a ditch,” “shall provide and continuously maintain” outlets or drains from said ditch. These are manifestly covenants running with the land. Equity must interpret them as expressing such intention and will enforce and execute them accordingly. Brockmeyer v. Sanitary District, supra, and cases there cited. Landell v. Hamilton, 175 Pa. 327-334; Post v. N. S. R. R. Co., 123 N. Y. 580-587. Susan O’Connell, grantee of Jane S. Martin, succeeds therefore to the rights and privileges secured by the covenants in controversy, including the right to relief.
It is insisted in behalf of appellant that the high grounds in sections 14 and 1 referred to in the covenant in controversy were outside of land owned or controlled either by appellant or by appellee, and that to comply with the terms of the said covenant would require occupation of a public highway and of a portion of the right of way of the Santa Fe Bailroad, which appellant claims to have no authority to take and that hence it would not be in the power of the Sanitary District specifically to perform said covenants. We are at a loss to understand this contention in view of the language of the Sanitary District Act, which authorizes appellant (section 8) to “acquire by purchase, condemnation or otherwise any and all real and personal property, right of way and privilege either within or without its corporate limits;” and expressly authorizes that when “necessary in making any improvements” which it is “authorized by this act to make, to enter upon any public property or property held for public use, such district shall have the power to do so and may acquire the necessary right of way over such property held for public use,” etc. By section 23, appellant is authorized to correct the channel of the Desplaines river, and it appears from the evidence that diversion of the waters of the river from its old bed, at the point where appellee’s lands were situated, was necessary before work could be commenced on the main drainage channel. The chancellor found that a part of appellee’s remaining land is subject to overflow “by reason of the construction, maintenance and operation of the main channel of the said district, its adjuncts and appurtenances, and the construction of the new channel of the Desplaines river.” It was the apparent intention of the covenant in controversy that appellant should do the work therein agreed upon, to protect said land from such .overflows, which are direct consequences of the construction of appellant’s channel. Surely to acquire lands and rights of way upon which to erect an embankment and construct ditches for this purpose would be to acquire ■ them for a legitimate corporate purpose directly incident to the work the district was authorized to perform.
It is urged that the condition contained in the deed is not such as a court of equity ought to compel specific performance of, both because of appellant’s alleged want of power specifically to perform and because the benefit of specific performance to the Martin lands would be disproportionate to the great cost to the district. Assuming for the argument’s sake that there was want of power specifically to perform the covenants in question, appellant should nevertheless, be deemed equitably estopped from interposing it as a defense, after it has obtained by reason of said covenants all it wanted from appellee, including a release of damages to appellee’s lands not taken. Appellant has accepted and occupied the land, it has constructed the new channel for the river, which is a continuing damage to the lands not taken, and it cannot now restore the conditions existing when the contract, was made. No court of equity can allow appellant to retain the benefit of the deed and repudiate the consideration upon which it was given. As said by Judge Tuley when deciding the case in the Circuit Court: “To so hold under the circumstances of this case would be not only inequitable, but a travesty upon the administration of justice.”
There may be cases, however, where specific performance, although a strict matter of right, cannot on the whole be equitably awarded since the greater equity requires that the complainant be given relief in another way. There is evidence tending to show and not disputed, that the cost to appellant of specific performance in the present case would be under conditions now existing, although of appellant’s own creation, in the neighborhood of $60,000, a sum, it is said, considerably in excess of the value of appellee’s land involved. It appears from the evidence, and the chancellor finds, that by settlements made with owners of adjacent lands having similar contracts with appellant, the latter has put it out of its power specifically to perform its covenants with Martin if it so desired. This inability to perform was disclosed at the hearing. It entitles appellee to an award of damages in lieu of the performance which has thus through no fault of hers and without her previous knowledge become impossible. We concur, therefore, with the views of the chancellor- who found that by reason of the great cost to appellant if compelled specifically to perform the contract in question, when compared with appellee’s damages suffered by reason of the failure to perform, it would be inequitable now to decree specific performance, even if such performance were possible. We agree also with the Circuit Court in holding that it would be inequitable under the circumstances to put appellee to her remedy at law' in view of the lapse of time and difficulties attendant upon such remedy, and that having jurisdiction of the subject-matter and the parties it was proper to retain the bill and determine the compensation to which appellee is entitled as damages for non-performance by appellant of the agreements and covenants in controversy. The bill for specific performance was properly brought, but it is equitable to grant other relief in view of conditions disclosed by the evidence, and it is clearly equitable to retain the bill for that purpose. Damages are at best an uncertain and in some respects an inadequate remedy for failure to perform covenants of a deed conveying land. When awarded they do not fill the place of specific performance such as that to which appellee was entitled or supposed she was when she filed her bill. The obstacles which prevent such performance, or at least make it inadvisable, have been disclosed at the hearing. Appellee, so far as appears,was ignorant of them when the suit was brought. Under these circumstances, equity will retain the bill and will award damages. Pom. Eq. Jur., p. 1410 and note; Combs v. Scott, 76 Wis. 662-672; Andrews v. Brown, 3 Cush. 130-133 et seq.; Reeder v. Trullinger Co., 151 Pa. St. 287-293; Cushman v. Bonfield, 139 Ill. 219-246.
We discover no reason aside from appellant’s own conduct why specific performance could not have been awarded,., except that it would now be inequitable and substantial justice can be otherwise done. The right is, we think, as stated by appellee’s counsel not unlike the right to the performance of a verbal contract for the sale of land where the consideration for the sale has been paid and the vendee has taken possession and made improvements. Telford v. The Chicago & Memphis Railroad, 172 Ill. 559; Gaines v. Kendall, 176 Ill. 228; C., B. & Q. Railroad Co. v. Boyd, 118 Ill. 73.
Appellant complains that the damages awarded by the decree are excessive. It is unnecessary to review in detail the evidence upon which the finding is based. There is evidence which sustains it, although controverted by witnesses who testified for appellant. We do not find the testimony of some of the experts convincing and are of opinion that the decree is substantially correct. It will, therefore, be affirmed.
Affirmed.