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fore require the party to put them in motion, and then, in its discretion, decree specific performance.

4. And the consideration, that possibly the party might proceed by mandamus, will not deprive him of this remedy in equity, unless the act specially provides the remedy by mandamus.5

5. But if the company take a bond of a land-owner, to convey so much land as they shall require, and subsequently appropriate the land, but decline accepting a deed and paying the price, equity will not decree specific performance of the contract, the bond not being signed by the company. But in such a case specific performance will be decreed against the party signing the bond upon refusal.7

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6. A contract to sell a railway company" the land they take " from a specified lot of land, at twenty cents a foot, "for each and every foot so taken by said company," imports a taking by the company, under their compulsory powers, and will not be specifically enforced until so taken by the company. And if the terms of a contract are doubtful, a court of equity will not decree specific performance.8

7. Where one contracts with a railway company, under seal, to permit them to construct their road over his land, in either one of two routes, and to convey the land after the road shall be definitively located, with a condition that the deed shall be void, when the road shall cease, or be discontinued, if the company take the land and build their road upon it, specific performance will be decreed, although the company did not expressly bind themselves to * take the land, or pay for it. And where the company had been in the use of the land for their road three or Hodges on Railways, 189.

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© Jacobs v. Peterborough & Shirley Railw., 8 Cush. 223.

7 Parker v. Perkins, 8 Cush. 318.

8 Boston & Maine Railw. v. Babcock, 3 Cush. 228; s. c. 1 Am. Railw. C. 561. But under a contract with a railway company, giving them all the land they desired, not exceeding four poles in width, upon which to construct their road, "provided said road shall not run farther north of my southwest corner than ten feet, and not farther south of my northeast corner than 140 feet,” it was held the company had a right to 66 feet through the whole land, and were only restricted in relation to the distance the road went from the corners name Lexington & Ohio Railw. v. Ormsby, 7 Dana, 276.

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four years, it was held no such unreasonable delay as to bar the relief sought. The party cannot excuse himself by showing, that, from his own notions, or the representations of the company, or of third persons, he was induced to believe that a different route would have been adopted by the company, or that there was an inadequacy in the price stipulated, unless it be so gross as to amount to presumptive evidence of fraud or mistake.9

8. But it is a good defence, in such case, that the party was led into a mistake, without any gross laches on his part, by an uncertainty or obscurity in the descriptive part of the agreement, so that it applied to a different subject-matter from that which he understood at the time, or that the bargain was hard, unequal, or oppressive, and would operate in a manner different from that which was in the contemplation of the parties when it was executed. But in such case the burden of proof is upon the defendant, to show mistake or misrepresentation.9

In a recent English case 10 before the Court of Chancery Appeal, after elaborate argument, the Lord Justice Knight Bruce, an equity judge of the most extended learning and experience, thus states the rule upon this point. This court will not enforce specific performance of a contract, where the defendant proves that he understood it in a sense different from the plaintiff, even although the plaintiff's construction may be the plain meaning of the contract.

9. Where the county commissioners made order in regard to the mode of construction of a railway, in crossing a highway, it was held, that the mayor and aldermen of a city, or the selectmen of a town, are the only proper parties to a bill for specific performance, and that the land-owners, over which the railway

9 Western Railw. v. Babcock, 6 Met. 346; s. c. 1 Am. Railw. C. 365. The delivery of a deed to the agent of a corporation, in such case, is sufficient. And where the party, in disregard of his contract, had obtained an assessment of damages for the land, under the statute, his liability upon the contract is, to the* difference between the apprisal and the stipulated price in the contract.

Unreasonable delay is ordinarily a bar to specific performance in a court of equity. Guest v. Homfray, 5 Vesey, 818; Hertford v. Boore, Aston v. Same, 5 Vesey, 719; Watson v. Reid, 1 Russ. & My. 236; 2 Story's Eq. Jur. §§ 771, 777, and cases cited.

10 Wycombe Railw. Co. v. Donnington Hospital, 12 Jur. N. S. 347.

passes, are not to be joined in the bill. But where the order required the highway* to be so raised as to pass over the railway, at a place named, but without defining the height to which

11 Brainard v. Conn. River Railw., 7 Cush. 506. In Roxbury v. Boston & Prov. Railw., 6 Cush. 424, it was also held the commissioners must make such order specific, and not in the alternative, and that laches, in regard to such order, will not defeat the claim for a decree for specific performance, where public security is essentially concerned.

And courts of equity have held a parol license to erect public works, and the works erected in faith of it, irrevocable, and the company entitled to hold the land upon making compensation, and have virtually decreed specific performance. Water Power Co. v. Chamber, 1 Stockton, Ch. 471. See also Hall v. Chaffee, 13 Vt. R. 150; Boston & Maine Railw. v. Bartlett, 3 Cush. 224. But it was held that an action for the price of land, will not lie upon a parol contract of sale, where there had been no conveyance of the land, although the company had taken possession and paid part of the price. Reynolds v. Dunkirk & State Line Railw., 17 Barb. 612. This is undoubtedly according to the generally recognized rule upon the subject, in those states where the Statute of Frauds is in force.

In the recent case of Laird v. Birkenhead Railw., 6 Jur. N. S. 140; s. c. 1 Johns. Eng. Ch. 500, the question of an estoppel in fact becoming so fixed upon a railway company by acquiescence as to be enforced by a court of equity, is largely discussed by Vice Chancellor Wood, and placed upon higher and sounder grounds, as it seems to us, than in most of the earlier cases. The leading facts were, that the plaintiff, by agreement with the company, without writing, had built a tunnel through their land, in order to facilitate access to his own busiand had laid rails upon the work, and had been in the use of the same for two years, paying tolls as agreed between the parties. The company now claimed that the plaintiff was merely a tenant at will, and subject to their absolute dictation as to the right to use and the terms upon which he could use the works, and gave notice in writing of the immediate and absolute termination of the contract, and in pursuance of such notice removed the rails and permanently erected a board across the passage.

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The learned judge overruled the demurrer, and said "it must be inferred, from the nature of the transaction, and after all this expense, that it was not to be determined by three months' notice. The necessary inference is, that it is to be the right of user, as long as the plaintiff is the owner of the yard, and it would be a most unreasonable proposition to say that the company should have the power of determining it at three months' notice. . . . . I consider that a contract has been made out upon the face of the bill," and it was further considered, that, aside from the actual use, a court of equity would have decreed specific performance upon reasonable terms; but after the use for a considerable term on the basis of an unsigned memorandum, the court will regard that as evidence of the ultimate agreement of the parties. S. P. Mold v. Wheatcroft, 27 Beav. 510.

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it should be raised, the grade, the nature of the structure, or the time within which it should be made, it was held too indefinite to justify a decree for specific performance.12

10. The Master of the Rolls, Lord Romilly, in Raphael v. The Thames Valley Railway,13 held, that in deciding whether specific performance should be enforced against a railway company, the court must have regard to the interests of the public, and therefore, when a bridge had not been constructed in conformity with an agreement with a land-owner, but the injury to the landowner was small, and the railway had since been opened for traffic, and the relief, if granted, would have necessitated an interference with the traffic, the court refused to compel specific performance.

11. And it has been very recently declared by the English courts of equity, that where a contract is vague and so uncertain that no compensation could be awarded, a decree for specific performance could not be made.14

12 City of Roxbury v. Boston & Providence Railw., 2 Gray, 460.

13 12 Jur. N. S. 656.

14 Tillett v. Charing Cross Co., 5 Jur. N. S. 994.

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§ 63. 1. THIS title is very little found in the English books, and scarcely in the English dictionaries. But with us, it has been adopted from the writers on national and civil law, upon the continent of Europe,1 and is perhaps better understood than almost any other form of expression, for the same idea. It is defined to be that dominium eminens, or superior right, which of necessity resides in the sovereign power, in all governments, to apply private property to public use, in those great public emergencies which can reasonably be met in no other way.

2. It is a distinct right from that of public domain, which is the land belonging to the sovereign. This is a superior right which the sovereign possesses in all property of the citizen or subject, whether real or personal, and whether the title were originally derived from the sovereign or not. One of the chief occasions for the exercise of this right is, in creating the necessary facilities for intercommunication, which in this country is now very generally known by the name of Internal Improvement. This extends to the construction of highways (of which turnpikes and railways are, in some respects, but different modes of construction and maintenance), canals, ferries, wharves, basins, and some others.2

1 Vattel, B. 1, ch. 20, § 244; Code Napoleon, B. 2, tit. 2, 545; 1 Black. Comm. 139; Gardner v. Newburgh, 2 Johns. Ch. 162; 2 Dallas, 310.

2 3 Kent, Comm. 339 et seq. and notes; Beekman v. Saratoga & Sch. Railw.,

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