City of New Orleans v. New Orleans & Northeastern Railroad , 44 La. Ann. 64 ( 1892 )

The opinion of the court was delivered by

McEnery, J.

This is a suit under the provisions of Ordinance-No. 7488 of the city of New Orleans, which embodies a contract between the city of New Orleans and the defendant, to compel the-latter to a specific performance of certain obligations therein stipulated, relative to the building of an embankment or levee on Florida walk from the intersection of Peoples avenue to Fisherman’s Canal,, according to plans and specifications furnished by the city surveyor. The cost of the work is estimated at $50,000. The importance of the-work can not be denied, and there is also a certainty that there are obligations to the city assumed by the defendant corporation, arising-under said ordinance, relative to the continuation of the embankment along Florida walk to Fisherman’s Canal, which the railroad, has not carried out in good faith.

It has used for a railroad bed an important levee for economical reasons, and, in consideration thereof, it had agreed to continue the-embankment along Florida walk to its intersection with the Fisherman’s Canal. Its failure to perform its duty has resulted in this suit to compel a specific compliance with its agreement.

The injustice of measuring all rights and wrongs, which, as a. remedy, is often inadequate, led to the establishment of the equity power in common law jurisdiction of decreeing a specific performance when the remedy at law has failed.

In the jurisprudence of this State, the law is expressed in Articles-1926, 1927, Oivil Code. It is therefore only when no adequate compensation can be made in damages that courts in this State can decree a specific performance of a contract.

The decree can not be demanded as a matter of right. It rests-largely upon judicial discretion, not arbitrarily exercised, but according to the soundest principles of equity and justice.

Not only the question of the ability of the plaintiff to seek adequate compensation in damages, but the ability of the court to grant the relief must necessarily enter into the discretion which the court is bound to exercisedn considering the remedy invoked.

The contract must be fixed and the liability of the defendant so certain that the duty imposed upon him by the court in ordering the execution of the contract can be readily ascertained and as readily enforced. Each case must depend upon the facts disclosed. Hennesy vs. Woolworth, 128 U. S. 438.

A strict adherence to this jurisprudence is rendered the more necessary, because of the summary remedy by mandamus allowed under Act 183 of 1888 in the enforcement of contracts entered into with the State, parochial and municipal authorities by corporations for building levees, bridges, culverts, etc.

There must be an element of certainty in the contract or the courts would be continually met with applications to enforce by mandamus, specifically, obligations arising merely by implication, and the duty, if these writs were indiscriminately granted, would be imposed upon the judiciary of supervising all such contracts in their execution.

And it would be bewildered with a multitude of accessory proceedings in the way of rules for contempt, and additional or supplemental writs.

The specifications for the construction of the levee are as follows:

Specifications for embankment from the intersection of Peoples avenue and Florida walk, along Florida walk to the “ Fisherman’s Canal.”

Said embankment shall be built on such lines as the city engineer will give when called on for them. The excavation shall be from the river side of the embankment, and shall form a canal 30 feet wide on top, and 16 feet wide at the bottom, and 7 feet deep. That there shall be a beam, not less than 5 feet, between the canal and the embankment. The embankment shall have a net grade of at least 2 feet above the Metairie Ridge, as established by the city engineer, the slopes not steeper than one on two; the width of the crown shall be regulated by the amount of filling furnished by the ■canal.

It shall be surfaced and crowned so as to draw to either side, all substantially as per accompanying diagram.

The base shall be cleared of all trees and brush.

[Signed] ' B. M. Harrod,

City Engineer.

In addition to the building of the levee the defendant corporation is required to make a canal of certain dimensions. The ordinance, in order to facilitate the extension or continuation of the embankment, authorized the defendant to take dirt from the canal. There is under the ordinance no obligation on the part of the defendant to dig a canal of any dimensions. Nor is there any obligation on the defendant to build a levee of any particular dimensions. If the duty of constructing a levee is imposed upon the defendant by the contract, there is some doubt whether a new levee is intended or a continuation of the levee, in size and dimensions, upon which the defendant corporation was allowed to place its tracks.

We are of the opinion that Act 133 of 1888 in no way changes the provisions of Articles 1926-1927 of the Civil Code, and that when there can be adequate compensation in damages, a decree of specific performance will not be granted.

The fact that the city is unable to advance money to build the-levee is not sufficient to bring the demand within the exception provided by Article 1927, Civil Code.

It is evident from the facts in the case that the city can obtain adequate compensation in a suit for damages for the breach of the contract.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the plaintiff’s demand be rejected, without prejudice to sue for damages for breach of contract.