Cartwright v. Oregon Electric Ry. Co.

BENSON, J. 1. The substance of the whole case may be briefly stated thus: Plaintiff wants about 100 [600] feet of the longer dike and about all of the shorter dike to extend into the river in such a manner as to form wing dams for deflecting the current toward the opposite bank and also seeks a decree compelling the defendant to perpetually maintain such structures. In addition to this he seeks damages for the injury wrought by the failure to so construct them. Defendant insists that plaintiff has not made a case calling for the interposition of a court of equity and we think that this contention is fully sustained by the record and the authorities. It is to be noted at the outset that while the longer dike crosses the lands of defendant included in the right of way, that portion of it which plaintiff now seeks to have built and all of the shorter dike are by the terms of the agreement to be constructed entirely upon the lands of the plaintiff; and there is nothing to prevent him from going ahead, completing the wing dams and prosecuting an action at law for damages which, so far as can be discovered from the record before us, furnishes a complete remedy. An eminent author says: “The general rule has long been settled, after a period of conflict and uncertainty in the early cases, that contracts for building and construction, and contracts to make repairs, will not be enforced in specie on account of inconvenience in enforcing a decree by the process of attachment for contempt, when numerous questions must usually arise under the decree in such a case as to whether there has been substantial .performance, whether defective performance may be excused, what compensation should be made for the deficiency, and the like. Moreover, if the building is to be done on the plaintiff’s land, the remedy at law is usually adequate, since he may do the work himself and sue at law for the cost”: 6 Pomeroy’s Equity Jurisprudence, § 760. [601] In Oregonian Ry. Co. v. Oregon R. & N. Co., 37 Fed. 733, Deady, J., says: “As a general rule a contract to bnild or repair will not be specifically enforced by a court of equity. It is said that if one won’t build another will; and if there is any loss sustained the remedy is at law, for damages. And this' is especially so as to contracts like the covenant in the present lease, to repair during a period of many years.” In the case of Dove v. Com. Tit. Ins. Co., 6 Pa. Dist. 263, the court says: “It appears to us that if there was any contractual relation between the Commonwealth Title Insurance and Trust Company and Dove, it was only for the completion of the houses, and if the company refused to complete the houses under any contract it made with Dove, there was a complete and adequate remedy at law, and equity cannot be invoked' to compel specific performance of a contract on the part of the company to complete the houses. All that Dove had to do was to do the work claimed to be necessary to complete the houses and sue the company, whose responsibility is not questioned, upon its promise to pay for the work.” In Leonard v. Board of Directors of Plum Bayou Levee Dist., 79 Ark. 42 (94 S. W. 922, 9 Ann. Cas. 159), the court says: “This suit is no more nor less than one to require of appellant the specific performance of his executory contract to construct the levee. The remedy at law is complete and adequate, and a court of equity is without jurisdiction of the subject matter. Equity will not decree specific performance of an executory contract to do work, for the obvious reason that there is no method by which its decree could be enforced.” We might continue citing and quoting from a long line of authorities all to the same effect but do not deem it necessary. Our attention has not been called [602] to any cases which are inconsistent with the doctrine announced in the above quotations. 2. Since equity has no jurisdiction of the suit, the question of damages must be disposed of in like manner: Oregon-Washington R. & N. Co. v. Reed, 87 Or. 398 (169 Pac. 342). The decree of the lower court is affirmed. Affirmed. Rehearing Denied. McBride, C. J., Moore and McCamant, JJ., concur.