appeared that the owner was not harmed by the error. Putnam v. Ross, 46 Mo. 337. In the case at bar the proof does segregate the amounts furnished to Hawley from that which was furnished to McDonald, so that no injury could possibly occur. In the Gordon case this was not done. In view of the facts stated, we think that the court ought not to have rejected the notice of lien."

Claim of Lien Including More Than is Due.-A material man is not defeated in his right to recover by the fact that the claim of lien filed by him includes more than is actually due him if there be no fraud in the error. Harmon v. San Francisco & S. R. Co., Cal. Sup. Ct., Oct., 1889, rehearing May 3, 1890.

Subcontractor's Lien-Lien Only for Quantum Meruit.-In Morris 2. Louisville, N. A. & C. R. Co., Ind. Sup. Ct., May 1, 1890, it was held that the lien given by statute to a subcontractor is only for the reasonable value of the work and material supplied, and not for the price fixed by his contract with the principal contractor, the statute providing that subcontractors shall have a lien "to the extent and value of the work and labor performed or material furnished, or both." The court said: "We think these acts must be so construed as to give persons who furnish materials for, or do work in the construction of a railroad, a lien for the reasonable value of such work and materials. We cannot assent to the assertion of the appellants that the contract between the principal contractor and the subcontractors furnishes the standard for measuring the extent of the lien. We do not believe that a railroad company can be made liable for more than the value of the work and materials, no matter what may be the price fixed by the contract between the principal contractor and the subcontractors. The theory upon which the statute proceeds is that the railroad shall be liable for the value of the materials furnished and work done, and it was not contemplated that subcontractors should hold the railroad property for profits they might realize under their contract. All that the statute contemplates is that they shall not lose the value of their work and materials. It is, indeed, doubtful whether it would be within the power of the legislature to create a lien beyond the value of the work and materials, and thus make secure the profit of the subcontractor; but, however this may be, we think it clear that it was not the intention of the legislature to authorize subcontractors to hold the property of a railroad company bound for the profits which they might realize under their contract with the principal contractor."

Foreclosure of Lien-Staying Execution While Other Claims are Pending. -In Eaton v. Cleveland, St. L. & K. C. R. Co., 41 Fed. Rep. 421, it was held that under Rev. St. Mo. 1879, § 3215, an execution sale under a judgment foreclosing a mechanics' or contractors' lien against a railroad is for the benefit of all lienholders who have obtained judgment at the time of the sale. Accordingly, where judgment had been obtained by two lienholders, and 20 or more suits to enforce other liens against the same property were pending, but judgment had not been reached, held that, to prevent a sacrifice of the judgment debtors' interest, and to avoid the expense of numerous sales, and complications of title resulting from same, the court would temporarily stay execution on the first judgment until other claims were reduced to judgment.

Enforcement of Lien Against Land Appurtenant to Depot-Pleading.-A complaint in an action to foreclose a mechanics' lien for materials furnished in the erection of depot buildings alleged that the land sought to be subjected to the lien was “appurtenant and necessary to the convenient and ordinary use of the depot buildings and appurtenances." The company, in its answer alleged that it had long since had its road in operation; that the land in question became part of its property long before the erection of the

depot buildings; and that it was incident to its franchise, and indispensable to the operation of its road. Held, that the complaint did not admit the allegation contained in defendant's answer, and that the court erred in striking the denial from the replication. Helena Lumber Co v. Montana Cent. R. Co. (Mont.), 24 Pac. Rep. 702.

CONGER

V.

NEW YORK, WEST SHORE & BUFFALO R. Co. (New York Court of Appeals, Second Division March 18, 1890.)

Contract to Build Station-Specific Performance-Judicial Discretion.The doctrine that specific performance of a contract will not be decreed where it will result in great hardship and injustice or in a case where the public interests would be prejudiced thereby, applied to a case where a landowner who had conveyed to a railroad company a right of way, sought to enforce the specific performance of a contract to build a station upon the side of a steep mountain in a sparsely settled district, where the public travel would be greatly delayed by the stoppage of trains.

APPEAL from a judgment rendered in the General Term of the Supreme Court, Second Department, in favor of the defendant in an action by Clarence R. Conger and another against the New York, West Shore & Buffalo Railway Company. Clarence R. Conger, for appellants.

Calvin Frost, for respondent.

Case stated.

HAIGHT, J.-This action was brought to compel a specific performance of a contract. The Jersey City & Albany Railway Company was incorporated for the purpose of constructing and operating a railroad from Fort Montgomery, in the county of Orange, to a point on the Hudson river opposite to the city of New York. As such incorporation it entered into a written agreement with one Catherine A. Hedges, the plaintiffs' grantor, in and by the terms of which she gave to the company a right of way across her premises in Rockland county upon certain conditions, one of which was that the company should locate a station in the gorge commonly known as the "Long Clove," and stop thereat five express trains each way daily. Subsequently the Jersey City & Albany Railway Company was consolidated with the North River Railway Company, under the name of the North River Railroad Company, and that company was consolidated with the defendant, which was incorporated for the purpose of constructing and operating a railroad from the New Jersey state line, through the state of New York, to the city of Buffalo. The defendant has entered upon the lands of

the said Catherine A. Hedges, and constructed its roadbed across the same, but it has not constructed any station thereon in the Long Clove gorge, or stopped any of its express trains thereat. The trial court has found as facts that a suitable station for the accommodation of passengers, and the receipt and delivery of freight, at the Long Clove gorge, could be built by the defendant only at a considerable expense, because of the nature of the ground at that point; that the place where the plaintiffs demand that the station be located is near the mouth of a long tunnel, and at a sharp curve in the defendant's railroad, upon the side of a steep mountain approached by steep grades in both directions; that it is sparsely settled, and if a station were established there it would be of no use to the public; that very little, if any, benefit would result to the plaintiffs, by the erection of a station, or the stoppage of the trains thereat; that the public convenience would not be promoted, but the public travel would be delayed; and, as a conclusion of law, that a specific enforcement of the agreement would work hardship and injustice to the defendant, and such enforcement will not subserve the ends of justice; that specific performance should be denied, and the plaintiffs left to their action for damages for a breach of the contract. evidence sustains the findings of the trial court, which have been affirmed by the general term. The questions for our consideration are therefore narrowed to a determination as to whether the conclusions of law reached are justified under the findings of fact.

Specific performance not decreed.

The

It has been the well settled doctrine of this court that the specific performance of a contract is discretionary with the court, and that performance will not be decreed where it will result in great hardship and injustice to one party, without any consideration, gain, or utility to the other, or in a case where the public interest would be prejudiced thereby. Clarke v. Rochester, L. & N. F. R. Co., 18 Barb. (N. Y.), 350; Trustees of Columbia College . Thacher, 87 N. Y. 311-317; Murfeldtv. New York, W. S. & B. R. Co., 102 N. Y. 703, 25 Am. & Eng. R. Cas..144; Day v. Hunt, 112 N. Y. 191–195.

As we have seen, the Long Clove gorge is located upon the side of a steep mountain, in a sparsely settled district, and is approached by a steep grade, and that a passenger station, with an approach thereat, could be constructed only at a considerable expense. These are reasons worthy of consideration, but, if there were no others, the trial court might not have deemed them sufficient to refuse specific performance. But they are followed by another, which gives additional force and weight, and that is that the public travel will be de

layed by the stoppage of the trains, and that the public convenience will not be promoted. The defendant is a corporation organized under the laws of the state, and is a common carrier of passengers and freight. Its duties are largely of a public nature, and it is bound to so run its trains and operate its road as to promote the public interest and convenience, and, in view of the fact that but little if any benefit would result to the plaintiffs by the erection of a station and the stoppage of trains thereat, as found by the trial court, it appears to us that that court properly refused to decree specific performance and remanded the plaintiffs to their action for damages. The judgment should be affirmed, with costs. concur, except BROWN, J., not sitting,

All

Specific Performance of Contracts with Railway Companies-Contracts to Convey or Purchase Land. The equitable doctrine of specific performance is most frequently invoked in cases of agreements between the railway company and land owners, providing for a conveyance to the company of a right of way for its road. The rule is well settled, that, in the absence of unusual circumstances, an action for specific performance will lie on behalf of a railway company which has performed any conditions imposed upon it to compel a land owner to carry out a contract entered into by him to convey such right of way. Chicago & S. W. R. Co. v. Swinney, 38 Iowa 182.

Thus in Ottumwa, C. F. & St. P. R. Co. v. McWilliams, 71 Iowa 164, 29 Am. & Eng R. Cas 534, specific performance of a contract made after two surveys but before the construction of the road by which a land owner agreed to convey a right of way was decreed although the contract did not fix the exact location. It was held also in this case that specific performance should not be refused because the value of the land taken far exceeded the sum agreed to be paid, the building of the road being named in the contract as part of the consideration. So a railroad corporation may maintain a bill in equity for the specific performance of a contract to purchase of them land which they have purchased for the purpose of having gravel dug therefrom and transported at a certain freight over their road, to be delivered to and used by a third party. Old Colony R. Co. v. Evans, 6 Gray (Mass.), 25. And where a railroad company enters into a contract for the exchange of land and it is afterwards consolidated with another company under an agreement by which its property is transferred to the consolidated company subject "to all liens, charges and equities pertaining thereto," the obligation of the contracting company to specifically perform the contract for the exchange, devolves upon the consolidated company, and can be enforced against it. Union Pac. R. Co. v. McAlpine, 129 U. S. 305.

A bond executed by a land owner to a railroad company in consideration of the location of a depot and station house in a certain locality, conditioned to convey a right of way through a certain tract of land belonging to him, "and also seven acres of land in said section, tract and orchard, adjoining to said right of way on either side thereof," is not so indefinite that specific performance cannot be decreed. Chidester v. Springfield & Ill. S. E. R. Co., 59 Ill. 87, 11 Am. Ry. Rep. 183.

The rule is also applicable where a party agrees under seal to permit a railway corporation to construct a road over his land, and agrees to convey his land to the corporation for a certain sum after the road is definitely located with a condition in the deed that it shall be void when the road

shall cease or be discontinued; specific performance of such agreement may be decreed after the road is constructed over the land although the corporation did not expressly bind itself to take or to pay for the land. But where in such a case the corporation takes the land, constructs a road over it, and is for three or four years in actual possession and use of all the privileges which the performance of the party's agreement would give, and then files a bill against him for specific performance of his agreement, the bill will not be dismissed on the ground of unreasonable delay in filing it. Western R. Co. v. Babcock, 6 Met. (Mass.), 646. A land owner agreed to convey certain lands to a railway company in consideration of its locaing and maintaining a depot on a certain location. In an action for specific performance defendant objected that there was no mutuality because the company could not be compelled to maintain the depot on the stipulated location. Held, that the objection was not valid, as the plaintiff could be so compelled. Minneapolis & St. L. R. Co. v. Cox, 76 Iowa 306.

Wilson v. West Hartlepool R. Co., 2 De G. J. & S. 475, was a case where an agent of a railway company, without any direct authority, agreed to sell to the plaintiff a piece of land of the company at a certain price per acre. Some of the terms were that the company should lay down a branch railway to the land; that the plaintiff who was going to erect iron works on the land, should use the company's railway in preference to others-use it whenever reasonably practicable, and for the longest distance it was reasonably capable of use; and that the traffic to and from the works should be conveyed on the terms of a certain prior agreement between the parties relating to another piece of land bought by the plaintiff from the company, and the other stipulations of that agreement carried out. The company's surveyor measured the land, the company's engineer laid down the branch railway to it, the plaintiff was let into possession, and his machinery was brought in the company's wagons to the land, and there deposited. After this the company refused to complete the sale. On an appeal from a decree of the master of the rolls, directing a specific performance, held, by the Lord Justice TURNER, dissentiente, Lord Justice KNIGHT BRUCE, that the stipulation as to the use of the defendant's railway by the plaintiff did not render a decree for specific performance improper; for that the insertion of a covenant to that effect would effectuate what the parties must be held to have contemplated.

In Ross v. Chicago, etc., R. Co., 77 Ill. 127, it was held that the right of a land owner to rescind a contract for the conveyance of a right of way should be exercised before the railway company had expended money on the faith of it, and that an action for specific performance of the agreement would lie.

A court of equity, however, will not compel specific performance of a contract to convey a right of way where the meaning of the contract is doubtful. Boston & M. R. Co. v. Babcock, 3 Cush. (Mass.), 228. Thus in Shenandoah Valley R. Co. v. Lewis, 76 Va. 833, 12 Am. & Eng. R. Cas. 305, it was held that a contract by a land owner to convey a right of way to a railroad company was not sufficiently certain and definite in its terms and in all the parts and was not clearly enough proved for the court to grant a decree of specific performance. And in Stewart v. London & N. W. R. Co., 1 DeG. M. & G. 721, an agreement between a land owner and a railway company was held not to be sufficiently definite to be enforced specifically on a claim filed by the land owner.

After the execution of a contract to grant to a railway company a right of way across land in consideration of which the company stipulated to perform certain acts, a deed of the right of way was executed containing a different stipulation; held, that the contract was merged in the deed and cannot be specifically enforced. Shenandoah Valley R. Co. v. Dunlap, (Va.), 10 S. E. Rep. 239.