Societe Anonyme des Sucreries de Saint Jean v. Solá

11 P.R. Fed. 219

Opinion

HamiltoN, Judge,

delivered the following opinion:

This court has had occasion recently in the case of Linares v. Bianchi (December 30, 1918, manuscript), to discuss the jurisdiction as to specific pérformance and the nature of the pleadings required. Here we need only examine whether the allegations of the bill at bar are adequate.

It would seem that plaintiff and defendants’ grantor made a contract as to the extensiop of plaintiff’s steam railway across a certain finca now in the possession of the defendants. Defendants do not contest the agreement, but claim that the plaintiff should describe the right of way desired, and not merely assert a general right of way. This also received some consideration by this court in the case of Filbrick v. Bayamón, 9 Porto Rico Fed. Rep. 231, 390; 20 Enc. Pl. & Pr. 449.

The right to specific performance to be effective must in a general way be coextensive with the right of contract. For instance, it may be proper for parties to contract that one may go upon the land of the other and select a route for a railroad, and then afterwards build the railrqad upon the route' selected.' There is nothing contrary to the law of contract, public policy, or good morals in such a stipulation, and no difficulty in its specific performance. Indeed it is difficult to see how a railroad can be built in any other manner than in accordance with some preliminary survey, inasmuch as a railroad must run on the surface and yet avoid as far as possible hills and hollows, unless it is to be a very expensive undertaking. Reading the contract set up in the bill, it might be a question whether it was not exactly of this character, that is to say, contemplating a preliminary entrance for locating the road, and then a subsequent building of the road itself. The first part of the contract gives a “paso libre por la finca/’ that is, a free passage through the property if the company desires to build a road, and later “concediéndole a talcs fines el uso y posesión de una faja/’ “granting it for such purposes the use and possession of a strip of land.” This might well contemplate two distinct operations,- — an entry for examination and a cession of land selected. However this may be, the contract as a whole grants a right of way for a railroad, and this must contemplate a preliminary survey, as otherwise tbe railroad could not be built.

This being so, tbe specific performance must be of these two steps in the one contract. The entry to select a route could not be more definitely described than as an entry to select a route, the route being unknown until the entry. It is quite true that there is a provision for a public deed describing the land granted, but this would relate to the second step in the performance of the contract. The first is the entry, and this does not call for a detailed description of the land whose description up to that time must necessarily be unknown. The contract calls for three things, — first,, entry for selection; second, building of railroad upon route selected; and third, the public deed describing the route selected. The Mortgage Law, art. 9 (1), applies only to the third step.

It follows that the motion to dismiss must be overruled.

It is so ordered. .