Dorsett v. Black Hills Traction Co.

McCOY, P. J. Plaintiff,’ by his last-amended complaint, in substance alleged that on and prior to May 29, 1905, the defendant had surveyed and definitely located a line or route along the Redwater river in Butte county for the purpose of constructing a canal for carrying water for the purpose of generating electric power and light, and of utilizing the electricity in the operation of a trolley or electric railway; that for more than a half mile the said line or route for canal crossed the farm and lands of .plain [436] tiff; that at said time the defendant, by its officers and agents agreed with plaintiff that defendant would build, complete, and operate a trolley or electric line of railway along said route from Spearfish to Belle Fourche, and extend the same into Lawrence county, and that, if said trolley line had been so constructed according to said agreement, it would have been of great use and benefit to plaintiff, and enhanced the value of plaintiff’s lands; that on the 29th day of May, 1905, plaintiff and defendants, by its duly authorized officers and agents, entered into an oral contract whereby plaintiff deeded to defendant a strip of land 100 feet in width across his land in consideration- that defendant would construct said canal and build and operate said trolley line of railroad within three years, and that, in case defendant failed to so construct and build said canal and trolley line within said time, defendant would reconvey said strip of land to plaintiff, or that, in case of the completion of said canal by defendant and the failure to build or operate said railway within the time aforesaid, the defendant would then furnish -and give permanently to plaintiff from said canal, at a suitable place on said strip of land, 125 miner’s inches of the water thereof free of cost to plaintiff for use on said farm; that, in pursuance of said agreement, plaintiff did on said date, in writing, deed to defendant said strip of land, which deed also contained the provision that, in case said defendant constructed said canal, 'but failed to construct and operate said railwa}'-,. then defendant would give and furnish to plaintiff 125 miner’s inches of water from said canal-free of cost to plaintiff; that defendant has constructed said canal and utilizes the same for generating electricity for light and power, but has failed' to construct or operate any part of said railway, and that more than three years have elapsed since the making if said agreement, and plaintiff has demanded said water, and defendant has at'all times refused to give or furnish 125 miner’s inches of water, or any part thereof, to plaintiff; that defendant took possession of said deed and recorded the same, and took possession of said strip of land so deeded to it by plaintiff, and ever since his been and now is in the exclusive possession, use, and enjoyment thereof, and is now conveying more than 5,000 miner’s inches if water through the canal thereon. Plaintiff, among other things, prayed judgment that- defendant specifically perform said contract and agree [437] ment on its part, and that defendant be required to give and furnish permanently to plaintiff from said ditch said 125 miner’s inches of water, and that plaintiff’s title to said 125 miner’s1 inches of water, and the right to use the same permanently, be quieted, and plaintiff be decreed the owner thereof. Defendant demurred to said complaint on the ground that the same did not contain facts sufficient to' constitute a cause of action, which demurrer plaintiff demurred on the ground that the same did not contain a sufficient statement of fact to constitute a defense, which demurrers were sustained. Trial was had on the issues presented by the remaining portions of the answer, and findings and judgment rendered in favor of plaintiff requiring defendant to give and furnish to plaintiff said 125 miner’s inches of water. Defendant appeals, alleging various errors. [1,2] The first assignment of error relates to the overruling of defendant’s demurred to plaintiff’s last amended complaint. It is contended by appellant, first, that the contract set out in -the complaint is too indefinite and uncertain to be specifically enforced; second, that the contract requires the continuous exercise of duties, continuous exercise of personal service, skill, and judgment, and that the constant supervision thereof by a court of equity to enforce its decree; and, third, that the said contract involves a forfeiture. We are of the opinion the demurrer was properly overruled. The plaintiff’s right to said 125 miner’s inches of water from said canal is in the nature of a perpetual easement and is sufficiently described according to the allegations of the complaint. The right to this amount of water from said canal is the purchase consideration or price for the title to said strip of land according to the terms of the contract. [3] Under the allegations of the complaint, whether the contract was in writing or oral, specific performance would have been proper, because there had been such part performance as would justify specific performance of an oral contract. Plaintiff on his part has performed by the execution and delivery of the deed and surrendering of possession of the strip of land. Defendant had performed on its part by accepting the deed and taking possession of the land, constructing the canal thereon, and conveying the water therein. The principle involved in this case is very similar to that of Lothrop v. Marble, 12 S. D. 511, 81 N. W. 855, 76 [438] Am. St. Rep. 626; section 1311 Civil Code. It will be observed that this assignment of error, seeking to review the sufficiency of said contract as to uncertainty and indefiniteness, is based 'upon the allegations of the second amended complaint. The evidence and findings of fact are not questioned by this assignment of error, which is based solely upon the allegations of the complaint. [4] Appellant further contends that said contract to furnish water to respondent for irrigation purposes was an act ultra vires of the corporation, and therefore a nullity and void. We are of the opinion this contention is not tenable. “The great mass of judicial authority seems to be to the effect that when a private corporation has entered into a contract in excess of its granted powers, and has received the fruit or benefits of the contract, and an action is brought against it to enforce the obligation on its part, it is estopped from setting up -the defense that it had no power to make it. The principle is that the rule requiring good faith and fair dealing is just as applicable to corporations as to individuals, and that neither can involve others in- onerous engagements, and, with the consideration of the contract in their possession, disavow their acts to the damage and discomfiture of others, unless it clearly appears that there has been an absolute want of capacity to make the contract. The simplest illustration of this doctrine will be found in cases where the corporation has acquired money or property by means of a contract in excess of its powers, and then, when the other -party tó ttye contract seeks to enforce against the corporation the obligation which it has assumed therein, pleads that it had no power to enter into the contract, and at the same time keeps the money or the property.” 10 Cyc. 1157-1158. The foregoing language of the learned author meets with our approval as being directly applicable to' this case. Thompson, Com. on Corporations, §§ 8318-8321; Sweeney v. United Underwriters Co., 137 N. W. 379. Finding no error in the record, after a consideration of each and every assignment of error, the judgment appealed from is affirmed.