Newcomb v. Norfolk Western Street Railway Co.

Holmes, C. J. The requirement in § 23 of the grant of the location to the respondent that it shall water the street over a portion of the way between certain dates was a lawful restriction within Pub. Sts. c. 113, § 7, which allowed selectmen to grant a location “ under such restrictions as they deem the interests of the public may require.” The well-known effect of running cars is to raise a dust, and the requirement, although affirmative in form, in substance restricts the respondent to running cars in such a way as not to raise a dust. The case is not affected by St. 1898, c. 578. See § 11. This being so, the restriction is a regulation which this court is given power to enforce by Pub. Sts. c. 113, § 63. It is true that in St. 1866, c. 294, § 1, from -which § 63 is taken, the power was given “ according to the usual course of chancery proceedings,” and that it might be argued that this restriction should not be enforced because it is not the usual course of chancery proceedings to compel the specific performance of continuous acts or duties for an indefinite time. Powell Duffryn Steam Coal Co. v. Taff Vale Railway, L. R. 9 Ch. 331. Fry, Sp. Perf. (3d ed.) 41, 45. Texas & Pacific Railway v. Marshall, 136 U. S. 393, 407. But the court is of opinion that, in view of the obvious purpose of the statute that such regulations should be enforced specifically, it ought to go further than ordinary practice might lead it to go in the absence of legislation, and to do all that it can to see that the requirement is performed. Some confirmation of this view is derived from § 27, as that section shows -that regulations concerning the removal of snow and ice were before the mind of the Legislature when it enacted § 63. Practically there will be no difficulty in the specific enforcement of the street-watering. The issue raised is not on the man [451] ner of performance but on the question whether the respondent is bound to water at all. When it is decided that the respondent is bound, probably there will be no further trouble, especially as the location provides a domestic tribunal by requiring the work to be done to the satisfaction of the superintendent of streets. Demurrer overruled; injunction to issue.