
    Detroit & Ironton Rd. Co. v. Murry et al.
    
      Contracts — Sale of land to railroad for right of way — Route abandoned before possession surrendered or construction commenced — Specific performance denied, and owner relegated to action for damages.
    
    A landowner who has contracted to sell to a railroad company a strip of land through his farm for. a right of way, which location of the railroad through his ■ land has been abandoned before he has surrendered possession and before the construction of the railroad has commenced, cannot maintain an action for specific performance, but is relegated to an action for damages.
    (Decided October 30, 1925.)
    Error: Court of Appeals for Fulton county.
    
      Mr. George S. May, and Mr. E. J. Mats, for plaintiff in error.
    
      Mr. Leslie 8. Ward, for defendants in error.
   Richards, J.

Clarence Murry and Myrtle Murry, who were plaintiffs in the court of common pleas, are the owners of certain farm land in Fulton county, and on March 7, 1923, entered into a written contract with the railroad company to convey to it a strip of land for a right of way for railroad purposes through their farm. The railroad company having refused to carry out the contract, an action was brought for the purpose of compelling the specific performance of the same. The answer admitted various allegations of the petition and set up certain matters by way of defense. A demurrer to the answer was sustained by the trial court, and the railroad company not desiring to plead further, final judgment was rendered ordering the specific performance of the contract, and this proceeding in error is brought to secure a reversal of that judgment.

The petition avers, in substance, that the defendant is a corporation organized under the laws of Delaware, and that on March 7, 1923, the plaintiffs entered into a contract to sell and convey to the railroad company a strip of land 70.33 feet wide, containing 3.647 acres, through their land, in consideration of the sum of $1,150, $150 of which was paid at the execution of the contract, and the balance of which was to be paid within 30 'days after the delivery to the defendant of an abstract showing a merchantable title in the plaintiffs, free and clear of all incumbrance, and the delivery of a properly executed warranty deed. The plaintiffs averred that they duly delivered the abstract to the defendant on the same day, and on December 4, 1923, tendered to the railroad company a proper warranty deed for the premises, but the company refused to accept the same.

These averments of the petition were admitted by the defendant in its answer. Further answering, the defendant alleged that on December 5, 1923, it filed an application with the Interstate Commerce Commission for the construction of a line of railroad from Durbin, Mich., to Wauseon, Ohio, and that on said day the commission granted to the defendant a certificate of public convenience and necessity for the construction of said line of railroad, and that the route of said line of railroad passed over and across the lands of plaintiffs described in the petition. The railroad company further averred that in fixing the price to be paid plaintiffs for said right of way reference was had to any damage that might be done their lands by reason of the construction of a line of railroad thereon, that the price agreed to be paid included an amount for damages to the balance of said land arising by reason of such construction, and that, aside from the damage to the balance of plaintiffs’ land, resulting from the construction of said line of railroad, the land was not worth to exceed $100 per acre.

The defendant further averred that after the execution of the contract it found that it was necessary to change the route and southern terminus of its said line of railroad, and that it filed with the Interstate Commerce Commission an amended application for the construction of a line of railroad, wherein the northerly terminus was to remain the same, but the southerly terminus was to be located at Malinta, Henry county, Ohio. The defendant then avers that on August 1, 1924, the Interstate Commerce Commission issued a certificate of public convenience and necessity for the construction of a line of railroad along the route and termini designated in said amended application, and thereupon the defendant railroad company abandoned the construction of a line of railroad as designated in the first application and abandoned the construction of a line of railroad over plaintiffs’ land. It avers that by reason of the abandonment of its line of railroad over and across plaintiffs’ land it cannot use and does not require any portion of said land for its right of way, and that the price named in said written contract was grossly in excess of the real value of said land, unless the same be used and taken for railroad purposes, and avers that by reason of the abandonment of said proposed line of railroad over and across plaintiffs ’ said land no damage can accrue to the balance of said land, and that to require this defendant to pay the price agreed upon in the written contract is contrary to equity and good faith.

We have stated the averments of the pleadings thus fully in order that the issues may clearly appear. It cannot, of course, be questioned that landowners, for the breach of a contract of this character, may have an action to recover the damages which they may suffer by such breach, but the question in- this case is solely this: Are they, in view of the averments of the pleadings, entitled to an action for specific performance?

The answer contains the averments that the price named in the contract was fixed in view of the fact that the property contracted for was to be used for right of way for railroad purposes, and included damages which the landowners would suffer by reason of the construction and operation of the railroad. It also contains the averment that the land itself so to be taken for a right of way was not worth to exceed $100 per acre. That rate would make the value for the entire tract taken substantially $365, and would leave nearly $800 as the sum to be paid for damages arising from the use of the tract for right of way for railroad purposes. It also appears by the averments of the answer that the construction of a railroad along the route over the plaintiffs’ land has been definitely abandoned. These allegations are, of course, admitted by the demurrer. If the landowners should be awarded specific performance, they would recover, as a result of the action, nearly $800 for damages which they never would or could suffer. A mere statement of the proposition shows the inequitable character of an action for specific performance under the circumstances disclosed in the answer and admitted by the demurrer. It has always been the law that an action of specific performance is an equitable one, not to be granted as a matter of right, but only in the exercise of a legal discretion and according to the principles of equity jurisprudence. The lándowners in this case are asking a court of equity to render an inequitable decree.

Possession'has not been surrendered by the landowners, nor taken by the railroad company, nor has construction work been commenced. Under the circumstances shown by the pleading, the landowners should be remitted to their action at law for damages. Whitney v. City of New Haven, 23 Conn., 624. In 22 Ruling Case Law, 835, it is stated that if a landowner is injured by a change in the route of a railway, his remedy is by an action at law for damages, and not by a bill in equity for specific performance. To the same effect is 25 Ruling Case Law, 289. Ruling Case Law, in making the statements just cited, relies in part on Hoard v. Chesapeake & Ohio Ry., 123 U. S., 222, 226, 8 S. Ct., 74, 31 L. Ed., 130. In this latter case the Supreme Court of the United States announced in the course of the opinion that if a plaintiff in such a case is injured by a change of the route, his remedy is by an action at law for damages. Pierce on Railroads, 138, states the rule as follows:

“Where the location of a railroad or highway, for which the land was purchased, is abandoned, the vendor who has remained in possession cannot maintain a bill for specific performance. ’ ’

In the case at bar the landowners recovered a judgment for the full amount claimed, notwithstanding the fact the pleadings admit that about two-thirds of this sum is for damages which the landowners have not suffered — a situation well calculated to shock the conscience of a court of equity.

In reaching the conclusion which we do in this case, we are not by any means intending to hold that a grantor is in no case entitled to the remedy of specific performance, but are limiting the decision to the facts shown by the pleadings, which indicate that the remedy of specific performance sought in this case is highly inequitable and should be refused.

The trial court was in error in sustaining the demurrer to the answer and rendering final judgment for the plaintiffs, for which reason the judgment must be reversed and the cause remanded to that court, with directions to overrule the demurrer to the answer, and for further proceedings in accordance with this opinion.

Judgment reversed.

Williams and Young, jj., concur.  