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tion was refused. In Barker v. Railway Co., 18 C. B. 46, it was held that the English statute refers entirely to persons using, or desirous of using, the railway or canal. Jervis, C. J., in speaking for the court, said:
“I am of the opinion that the defendants are entitled to the judgment of the court. The declaration proceeds upon the assumption that the station is the private property of the railway company, subject to the rights of the public using the railway. It is not pretended that the plaintiff was using, or claiming to use, the railway. What right, then, can he have to say to the company, 'I will use your private property for my profit.' There is no pretense for the action; it has neither principle nor any color of authority to sustain it."
It was held in Painter v. Railroad Co., 2 C. B. (N. S.) 701, that only those who use the railroad are entitled to complain. In Hole v. Dig. by, 27 Wkly. Rep. 884, the Midland Railway had granted one Richardson the exclusive right to provide omnibus and other carriage accommodations for passengers to and from the railway station at Kittering. The yard was the private property of the company. Defendant was the servant of another bus owner, and, by his master's orders, entered with his bus, and was sued for trespass. On appeal to the queen's bench, Lush, J., said:
“The station yard of a railway company is as much their property as the yard of a builder is his property, or that of any other person; and they have a right, if they please, to prevent any person who does not come for the purpose of being a passenger, or who, having been a passenger, is going out, from coming in there." -And he held that the defendant was a trespasser.
It is stated in Railroad Co. v. Tripp, 147 Mass. 35, 17 N. E. 89, that
"A railroad corporation may contract with one to furnish the means to carry incoming passengers or their baggage and merchandise from its sta. tions, and may grant to him the exclusive right there to solicit the patronage of suci passengers; and such an agreement is not within Pub. St. c. 112, $ 188, which provides that such a corporation shall give to all persons or companies reasonable and equal terms, facilities, and accommodations for the use of its depot and other buildings and grounds."
In Barney v. Steamboat Co., 67 N. Y. 301, the defendant was a common carrier of passengers and their baggage. Plaintiff was engaged in the express business. He attempted to solicit, on defendant's boat, the privilege of carrying the baggage of passengers from the steamboat landing. The exclusive privilege to do such soliciting had been granted to another. The plaintiff, refusing to desist, was ejected from the boat while he held a ticket which he had purchased on the boat, and he brought the action to recover damages for being thus ejected. The court held that while it is the general duty of a carrier of passengers to carry all persons who offer themselves, if there is room in the conveyance, upon being paid the usual fare, he is at liberty to use his property in any way he may choose to promote his interests, not inconsistent with the duty he owes the passengers; that he may manage and control his own prop
erty for his own profit and advantage, to the exclusion of all other persons. Judge Andrews, in his opinion, says:
"The sale of books, papers, or refreshments are common incidents to the business of a carrier by certain modes of conveyance, and the carrier may avail himself of the opportunity which his business gives him to supply the special wants of travelers in these and other respects, and appropriate to himself the profits of the business, and exclude third persons from entering the car or vessel to carry on the same business in opposition to him. In this no right of the passenger is invaded. A carrier may establish, for the convenience of passengers, and for his own profit, on his car or vessel, an agency for the delivery of baggage of passengers, aud exclude all other persons from entering to solicit or receive orders from passengers in competition with the agency established by him. This is in no just sense à monopoly. It is saving to the carrier a legitimate advantage which his position and business give him."
To the same effect is Fluker v. Banking Co., 81 Ga. 461, 8 S. E 529.
The cases of Cravens v. Rodgers, 101 Mo. 247, 14 S. W. 106, Railway Co. v. Langlois, 9 Mont. 419, 24 Pac. 209, and Bus Co. v. Sootsma, 84 Mich. 194, 47 N. W. 667, are in conflict with some of the doctrines of the authorities heretofore referred to, but we think the weight of authority sustains our construction of the statute.
The contract between the defendant and the Miller & Brundage Company is not against public policy. It conduces very much to the comfort and convenience of passengers visiting the Falls of Niagara, as those who have occasion to visit that place know. While upon the cars, travelers are at liberty to make their arrangements for the use of carriages at the Falls, and when they alight from the train they can enter the carriages within the inclosure, and avoid the unpleasant ordeal of running the gauntlet of a score or more of proprietors of carriages who are in waiting upon the street ad joining the depot, soliciting employment. The charges for the use of the Miller & Brundage carriages, as regulated in the contract, are just and reasonable. No complaint is made in that respect. The plaintiff, we think, failed to make a case entitling him to the order appealed from. It should be reversed, with $10 costs and disbursements of the appeal, and his motion denied, with $10 costs. All concur.
(6 Misc. Rep. 238.)
HART V. BROWN et al.
(Supreme Court, Special Term, Monroe County. December, 1893.) 1. SPECIFIC PERFORMANCE_WHEN DENIED-CHANGE IN CONDITIONS.
A covenant in a deed to open a street through the grantor's land adjoining the lot conveyed will not be specifically enforced where it appears that, at the time the deed was made, the other lots could easily have been sold at good prices, while, at the time the covenant was to be performed, there was no sale at all for them, and that it would cost about
three times as much to open the street as the grantee paid for his lot. 2. SAME-DAMAGES.
Where specific performance is denied because subsequent events have rendered it inequitable, the complaint will not be dismissed, but the question of damages will be directed to be tried by a jury.
Action by Hart against Mrs. Brown and another for the specific performance of a contract by defendant Brown to open a street.
George D. Reed, for plaintiff.
RUMSEY, J. The defendant Brown, in the month of November, 1888, conveyed to the plaintiff a lot of land extending 51 feet on Mt. Hope avenue, and running back a distance of about 119 feet. At the time of the conveyance Mrs. Brown was the owner of a con. siderable tract of land, out of which this lot was carved.
She covenanted in her deed to the plaintiff to open a street along the north side of his lot, and extending beyond it to South avenue, which was several hundred feet east of the rear of his lot. By her contract this street was to be opened within two years from the 1st of April, 1889. Before that time, however, she conveyed the whole tract of land to the Oak Hill Cemetery Association, which is also made a party to this action, but which has not appeared or served any answer. Consequently, that association does not object to the granting of the judgment which is asked for in the plaintiff's complaint. Indeed, it is not in a condition to object, for the deed from Mrs. Brown to the association is made subject to all the covenants contained in her deed to the plaintiff, and consequently the cemetery association takes subject to the plaintiff's deed, and cannot prevent the performance of the contract by Mrs. Brown if she were to be compelled to perform it. Pom. Spec. Perf. Cont. $ 465. It appears by the proofs in the case that, after the action had been commenced, the interest of the Oak Hill Cemetery Association in the property was sold and purchased by one John B. Y. Warner. As a notice of pendency of this action was filed, however, before that sale was made, Mr. Warner took subject to whatever rights the plaintiff should be adjudged to possess.
The plaintiff, for this property, paid the sum of $2,340. He bought for the purpose of setting up a factory for the manufacture of tombstones and monuments, which he might sell to people who buried their dead in the Mt. Hope Cemetery, the entrance to which was directly across the street from the lot that he bought. To fit the premises for that use, he built upon them a building adapted to his business, but which was so placed that, in connection with another building then upon the land, it occupied the whole width of the lot, leaving him no means of access for wagons to the rear of his lot, except over the new street which was to be opened immediately upon the north side of it, in pursuance of Mrs. Brown's agreement. He testifies (and his evidence is amply sustained) that it would be practically impossible for him to carry on his business upon this lot unless he should be able to deliver weighty masses of stone upon the rear part of his lot, where he can do such work as is necessary upon them to fit them for monuments, and that this can only be done if he has access to the rear of his lot for wagons and trucks along this new street. For this reason it will be seen that it is of some considerable importance to him to have this contract per
her to open.
formed, at least so far as to give him a right of way to the rear of his lot. He testifies, also, that the street, if opened, will become a considerable thoroughfare for persons having occasion to visit Mt. Hope Cemetery, and that it would be of considerable advantage to him, and add greatly to the value of his business, if he could display his goods on the north side of his lot in the same way that he does now upon the front of his lot. This advantage, however, is somewhat fanciful, and can, I think, hardly be made to serve, by itself, as a reason for requiring the specific performance of the contract, although I have no doubt it would be a proper matter to consider in the assessment of damages. It appears from the evidence, and is practically undisputed, that in 1888, when this property was sold to the plaintiff, Mrs. Brown was preparing to lay it out into lots, and to open streets upon it, which she intended to put upon the market. One of these streets was delineated upon a map directly north of the plaintiff's premises, and extending from Mt. Hope avenue to South avenue. It was this street which the plaintiff expected to have opened, and which he now desires the court to require
For some reason Mrs. Brown did not open the street by the 1st of April, 1891, as she agreed, and in September of that year her time to do so was extended until July, 1892, and for that extension, and the damages accruing to the plaintiff for her failure to open the street before, she paid the plaintiff $399. At the time when she made the original contract, and for a considerable time afterwards, there was a good market for city lots upon the outskirts of the city of Rochester, where this land lay, and, if her land had then been put upon the market, she would undoubtedly have been able to pay the expense of performing her contract, and have sold the lots at remunerative prices. Before the time, however, within which she was, by the extension, to perform the contract, the sale of lots in all the outskirts of the city of Rochester had fallen off very considerably, and it had become practically impossible to put this property on the market in that way. The expense of opening this street from Mt. Hope avenue to South avenue, and of completing the grading of it, would be about $6,000. Before the lots which were to be laid out on each side of it could be sold, it would be necessary to grade them to the level of the street at considerable expense, or else the expense of doing the necessary grading would have to come out of the purchase price of the lots. In either event a very considerable loss would accrue to the owner of the premises. The defendant claims that this new condition of affairs, which was unforeseen at the time the contract was entered into, has rendered the contract excessively burdensome to her, so that it would be a great hardship to require her to perform it, and for that reason she claims that a judgment for specific performance should not be ordered.
It is a well-settled rule, in actions of this nature, that not only must the agreement, the performance of which is sought, be fair and reasonable, but that its specific execution must not be oppressive; that is, it must not be such that its performance will work a great hardship to the parties. Pom. Spec. Perf. Cont. § 185. While this general rule is well settled, it has always been a sericus question whether the unfairness and hardship which will stand in the way of a judgment for specific performance must exist at the time of the making of the contract, or whether it is sufficient if, by subsequent events and changing circumstances, a contract which was originally fair and unexceptional has become so onerous that specific perform ance will be denied, although, if there had been no change in circumstances, the defendant would have been compelled to perform
Mr. Fry, in his work on Specific Performance, says "that the question of the hardship of a contract is generally to be judged of at the time at which it is entered into. If it be then fair and just, it will be immaterial that it may, by the force of subsequent circumstances or change of events, have become less beneficial to one party, except where these subsequent events have been in some way due to the party who seeks the performance of the contract." Fry, Spec. Perf. 182. However accurate this inay be as a statement of the law interpreted by the English courts, as to which I have not examined, it cannot, I think, be said to be the law in this country, and certainly not in this state. Judge Story says that courts of equity will not proceed to decree a specific performance of a contract where, from a change of circumstances or otherwise, it would be unconscientious to enforce it. Story, Eq. Jur. $.750a. Mr. Pomeroy discusses the question at considerable length, and comes to the conclusion that, although agreements may be fair and just when made, their enforcement may be interfered with and prevented by subsequent unforeseen events, which introduced a sufficient element of inequality, unfairness, or hardship. Pom. Spec. Perf. Cont. $$ 178, 187. The leading case on that subject in this country, outside of the state of New York, is Willard v. Tayloe, 8 Wall. 557, which was decided by the supreme court of the United States in 1869. The opinion in that case was delivered by Mr. Justice Field, and was concurred in by all the judges except the chief justice and Judge Nelson, who, while they agreed to the judgment rendered, did not concur in the reasoning by which it was supported. In that case, Tayloe, in April, 1854, gave to Willard a lease of certain property in Washington city for 10 years, with the option to Willard to purchase it, at any time before the expiration of the lease, for a fixed price. Owing to the breaking out of the Rebellion, and the consequent in. flux of people and increase of business in the city of Washington, the property increased very largely in value. In addition to that, owing to the immense issue of legal tender and other currency and nctes during the war, and the suspension of specie payments, the relative value of paper currency, as compared with gold, very greatly diminished. At the time the contract was made, gold was the only legal tender, but, before the time for the exercise of the option had expired, certain paper currency of the government became legal tender, but this was at a depreciation of nearly two to cne, as compared with gold. The contract when made, in April, 1854, was a perfectly fair and equitable one, and the price then agreed to be paid was a fair price. In the month of April, 1864, and two weeks before the expiration of the time allowed in the option, Willard