of land, and that their acts and resolutions in regard to the use of such land by others were not to be regarded as either of a legislalative or governmental character; and that although such corporations have no power as a party to make contracts which shall control or embarrass their legislative powers and duties, yet, as these legislative duties, or powers, only extend to regulations of police and internal government, and not to the mere imposition of a sum of money for revenue purposes, consequently an ordinance imposing a license duty upon city cars, for revenue purposes only, is not an ordinance for police and internal government, and the imposition of an annual tax upon a city passenger railway, in derogation of its rights, as defined by a specific agreement between the city and the railway company, for purpose of revenue merely, is unlawful and void.15

15. Proof of a written agreement to sell land to a railway company, at a given price, within a limited time, and for tender of the same within the time, and a refusal to accept the same, will not justify the company in locating their road upon the land, or defeat proceedings under the statute to recover damages for such location.16

15 The terms of this contract appear more fully where the case is reported in Barbour. It prescribed the regulations to which the company should be liable, requiring no further license, and reserving no power to require one thereafter. This was held to preclude the city authority from making the imposition demanded. It would seem, the case might have been decided, in conformity with the dissenting opinion of Mr. Justice Ingraham, in the court below, without any great violence to principle. See also Branson v. Philadelphia, 47 Penn. St. 329; Veazie v. Mayo, 45 Me. 560; People v. New York & Harlem R. Co., 45 Barb. 73; Vilas v. Mil. & Miss. R. Co., 15 Wisc. 233. A grant of land to the use of a highway seems to be regarded as giving the municipal authorities the same rights in regard to its use as where the land is condemned for that purpose. Murphy v. The City of Chicago, 29 Ill. 279.

The grant to a railway company of a right to build a tunnel will not preclude the owner of the land from digging minerals under the tunnel, in conformity with the general railway acts, London & N. W. Railw. Co. v. Ackroyd, 8 Jur. N. S. 911.

16 Whitman v. Boston & Maine Railw., 3 Allen, 133. This written contract might be evidence of the value of the land, or an admission by the owner, and as such might probably be used in the proceedings under the statute for estimating damages.

§ 62. 1. There can be no doubt courts of equity will decree specific performance of contracts for land, made by consent of the owners, as well after the act of parliament as before.1

2. If the agreement contains provisions for farm-crossings, fences, and cattle-guards, either express or implied, the master will be directed to make the proper inquiry, and any decree for specific performance should provide minutely for all such incidents.2 But, upon general principles, if the agreement provide that the price of land is to be fixed by an arbitrator or umpire, it has generally been held that a suit for specific performance is not maintainable.3

3. But if the arbitrator have acted and fixed the price, and by parity of reason, if the umpire is named, and ready to act, there being no power of revocation, a court of equity may decree specific performance. Hence in the case above,1 the Vice-Chancellor held, that, as the contract was to take the land on the terms prescribed in the act of parliament, the court had the means of

1 Ante, § 13, et seq.; Walker v. The Eastern Counties Railw. Co., 5 Railw. C. 469; s. c. 6 Hare, 594.

2 Sanderson v. Cockermouth & Washington Railw. Co., 19 Law Jour. Ch. 503; 11 Beavan, 497.

3 Milnes v. Gerry, 14 Vesey, 400. But in this case the umpire was not agreed upon, and the court held they could not appoint one. But the Master of the Rolls held that an agreement to sell, at a fair valuation, may be executed. See Tillet v. Charing Cross Company, 26 Beav. 419; s. c. 5 Jur. N. S. 994.

* Brown v. Bellows, 4 Pick. 179.

applying those terms, so as to get at the price, and might there*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

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 four years, it was held no such unreasonable delay as to bar the relief

5 Hodges on Railways, 189.

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

7 Parker v. Perkins, 8 Cush. 318.

s 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 named. Lexington & Ohio Railw. v. Ormsby, 7 Dana, 276.

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 passes, are not to be joined in the bill.11 But where the

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, Law Rep. 1 Ch. 268; s. c. 12 Jur. N. S. 347.

11 Brainard v. Conn. River Railw., 7 Cush. 506. In Roxbury v. Boston &

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 *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

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. 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 business, and 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.

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 had 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.

12

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