
    *The State of Ohio v. The Heirs of M. Baum and others.
    A written proposition to the canal commissioners to convey grounds for hydraulic purposes on the canal, upon certain terms and conditions, not accepted by resolution or otherwise concluded, by specifying the land or reducing the agreement to specific terms, can not be specifically enforced in equity.
    This cause was adjourned here for decision in the county of Hamilton. Upon the bill, answers, exhibits, and depositions, the following case is made:
    The legislature, in section 10 of the act to provide for the internal improvements of the state by navigable canals, 23 Ohio L. 57, authorized the canal commissioners to apply to the citizens and others for grants or donations, in land or money, for the purposes of aiding the construction of said canals, and to take to the state such conveyances as might be competent to vest in the state a good title in the lands to be granted. By another act, 24 Ohio L. 58, the canal commissioners are authorized to procure land, by purchase or otherwise, at any point on the canal, where the water can be profitably used for hydraulic purposes. Provision is made, in this act, that such contracts shall not bind the state until submitted to the governor and approved by him. Other laws authorize the canal commissioners to soli the surplus water.
    The canal commissioners, by resolution of the board, in April, 1826, authorized the acting commissioner to negotiate for the purchase of lands to secure the state the value of the water-power created by the canals, where the amount paid at one point, or upon one contract, should not exceed five hundred dollars; in January, 1828, empowering the acting commissioner to sell or lease the water privileges of the canals for a period not over twenty-five years; in February, 1830, allowing him to sell hydraulic power at prices ranging from twenty-five to two hundred and fifty dollars, for a quantity sufficient to drive a pair of four and a half feet millstones, and the machinery for bolting and cleaning grain, and also to procure land on which to use hydraulic power where there may be surplus water.
    
      M. Baum, in his lifetime, addressed to M. T. Williams, one of the acting canal commissioners, the following letter:
    *“ Cincinnati, December 15, 1829. [384
    “Mr. M. T. Williams — Sir: According to the final location of the canal from Main street unto the Ohio river, in this place, there will be a fall from thirty-three to forty-four feet on my land. About one-half of this is above high-water mark in the Ohio river, and the other half below high water.
    “ I make the following two propositions to the canal commissioners, to wit: 1. I will convey to the state "as much ground as will be necessary to employ one-half the water on each of these falls, which can be used for hydraulic purposes at this point: say, six, seven, or eight lots, fifty by seventy feet each, as marked on the plat herewith sent, and I will lease the balance or the other half of the water, for which I agree to pay at the rate of two hundred and fifty dollars per annum for every one hundred and fifty cubic feet of water on the upper fall of sixteen feet or upward, and one hundred and fifty dollars per annum for the same quantity of water and height of fall on the lower seats or falls.
    “Or, 2. I will lease all the water at these seats, and pay the above rates, without granting any land to the state. One-third part of the rent is to commence at the time the water is delivered at the seats for operation; one-third one year thereafter, and the last third when the canal and the locks are completed between Main street and the river. Tour obedient servant,
    ‘Martin Baum.”
    Williams laid this proposition before the board of canai commissioners in a few days after its date, and was advised by them, without resolution to that effect, to accept the first proposition made; and in March, 1830, verbally notified Baum of his acceptance, and from thence until Baum’s death, he considered it understood by Baum and himself, that the state had a right to a title for said lots, when demanded, and that Baum had a right to a lease of the water privilege, upon the conditions named in the letter; but it was agreed, orally, that the title for the lots should remain in Baum until the arrangement and position of the locks should be definitely established, as it might be deemed best to modify their shape and position, to accommodate the interest and convenience of the parties. It was further orally agreed, that S. Farrer, the engineer then in charge of that part of the canal, 385] should finally modify and lay out the *lots to be conveyed to the state, as he might find most convenient for the application of the surplus water to hydraulic uses; and that no more ground should be conveyed than he should determine to be necessary for such application of one-half of the water; but such quantity, if not greater than the largest quantity proposed in the letter, should be conveyed. The price proposed to be paid for the water rent was as high as was paid for such privileges at any point on the canal. No time was agreed upon for the completion of the canal, or within which the water should be supplied for use.
    Farrer, the engineer, and Baum in Bis lifetime, made a plat of the ground through which the canal runs, marking out the streets, alleys, lots, canal-locks, and mill-race; designating, among other things, the six lots named on the plat given to Williams, and also three other lots of sixty by eighty feet each, adjoining one of the locks. The six lots designated, Farrer adjudged necessary for the purposes contemplated in the letter of Baum, and he considered the plat to the extent of the six lots final; but it was afterward agreed between him and Baum to leave the matter open for further negotiation as to the exchange of some of the lots on one side of the canal for some on the other.
    The canal through these grounds was not completed until after Baum’s death, nor when the suit was commenced; and the water is not yet prepared for use.
    On this state of the case the state has filed her bill, alleging that the administrators of Baum, and the heirs, some of whom are married, decline applying to the court of common pleas for power to convey these lots, and praying a decree for a “a specific performance of the contract,” and a conveyance “ for the land Baum agreed to convey, being the eight lots designated on said plat.”
    T. Worthington, for the state.
    J. Caswell, for the defendants.
    N. Wright, on the same side.
    ,S. P. Chase, on the same side.
   * Judge Wright

delivered the opinion of the court:

The counsel for the state urge a decree for the conveyance, because there was a contract between the parties which has been executed by the state; and insist that the statute of frauds and perjuries has no application to the case, because the proposition of Baum is in writing signed by him, and itself a contract; or, if held otherwise, that the statute of fraud and perjuries does not apply to the government, or regulate contracts made with it; and, in case this shall not be set up as a valid contract, that then the right of the state may be established, on the ground that this land has been dedicated to the use of the state.

We are unable to see what there is in the transaction disclosed, authorizing this court to interfere on the ground of a dedication to the public. The letter, if of any legal efficacy, is a proposition for a contract, and must be regarded only as such.

The assumption that the state, more than individuals, may enforce oral contracts for land, and is exempt from the provisions of the statute of fraud and perjuries, is too novel to be hastily adopted by this court. The claim for the state, that she may enforce descriptions of contracts against individual citizens, the execution of which, as between individuals, tends so strongly to encourage fraud and perjury as to. require the special interference of the general assembly, does not recommend itself to a favorable regard upon the first presentation of it.

It is, however, not necessary to discuss those questions, as the case may be disposed of upon acknowledged principles without. Equity will exercise a sound discretion in decreeing a specific performance of a contract, and will often refuse a decree and leave parties to their legal remedy, even where the circumstances would not warrant the setting aside the contract. 6 Johns. Ch. 111; 1 Cox, 402. So where the case is hard and unconscionable, or destitute of equity, the parties will be left to their remedies at law. 4 Pet. 328. They will be left where the agreement is voluntary without consideration paid, or defective in its terms, unless there is fraud, accident, or some unfairness alleged. 4 Johns. Ch. 499. So, if the terms of the contract be uncertain, though reduced to writing. 2 Sch. & Lef. 7; 1 Ves. Jr. 326; and equity will not supply the ambiguity. Bunb. 65; 1 Ves. & Bea. 524; 5 Pet. 276. An agreement must be certain, fair, and just in all its parts, or a performance will not be decreed.

*Apply these principles to the case before the court. What certainty is there in the alleged contract? Baum made _a proposition for a contract, which required subsequent arrangement to adjust its details and settle its terms. The precise land intended to be granted, its quantity, location, the time, and the water to be used, were all loft open and unsettled when Baum died. The location of the mill-race, streets, and alleys were, it is true, settled in his lifetime; all the other matters remained at the time of his death subject to modification. Nor has the state performed, or made certain, its part of the contract. The canal was not finished at the commencement of the suit. It is only alleged to be in such a state of forwardness that the state will want the land, and be able to supply the water in the course of the coming summer, though she knows not exactly when the water can be used, or what quantity can be furnished to the Baums on lease, in execution of her part of the agreement. There is no certainty in this alleged contract. It is voluntary and hard; and the court is prematurely applied to for relief.

It is also without mutuality. A specific performance will not be decreed when the remedy is not mutual, as if only one party is bound by the agreement. 1 Johns. Ch. 282, 370. This contract would not be enforced by Baum’s heirs against the state, even if, not being sovereign, she could be sued. She incurred no obligation to do anything. As a purchase of land for hydraulic purposes, it is invalid without the sanction of the governor, which has never been given to it.

Upon the whole, then, we think the contract imperfect and ihchoate — hard and voluntary — without mutuality; and on either ground not to be decreed. As a donation, it can not be decreed. As a dedication, the claim is wholly destitute of legal foundation. If loss has accrued to the state, by reason of the imperfect state of papers or contract at the death of Baum, she must bear it. This court will not shift it from her to Baum’s heirs.

The bill is dismissed.  