Gove v. City of Biddeford , 85 Me. 393 ( 1893 )

Walton, J.

This is a suit in equity. Annexed to the plaintiff’s bill is a paper signed by the plaintiff, and four other persons, the latter professing to act as a committee of the city of Biddeford, in which, among other things, it is agreed that the city shall extend a sewer through the plaintiff’s land; and the plaintiff avers that a í’easonable time has elapsed, and that the city has neglected and refused to extend the drain through his land, as it agreed to do; and he prays that the court will decree a specific performance of the agreement.

The city denies that the persons who undertook to act as its committee had authority so to do, and denies that their action is binding upon the city; and it says further that the plaintiff has a plaifi, adequate, and complete remedy by an action at law, and that he has in fact commenced such an action, and that it is now pending in court; and the city demurs to the bill.

We think the demurrer must be sustain ed. It has been denied that a municipal corporation can bind itself by such a contract. In a recent case in Wisconsin, the city of Hartford had agreed * to erect a city hall on a lot of land which the plaintiffs had conveyed to the city for that purpose, and the plaintiffs asked for a decree to compel a specific pei’formance of the agreement: but the court refused to grant it on the ground that the judgment and discretionary authority of the city council could not be bound by sucb an agreement; that if such an agreement had been made, still, if upon further consideration, it was deemed best to build upon another lot, the city had a right so to do ; and that it would be highly improper for a court of equity to interfere with the quasi judicial or legislative power of municipal corporations in matters which concern the welfare and convenience of all their citizens; that in such matters, municipal corporations must be left at all times free to exercise their powers untrammelled by the private interests of individuals. Kendall v. Frey, 74 Wis. 26 (17 Am. St. Rep. 118).

In a case in Tennessee, it was held that a court of equity had no power to compel a city to build a sewer; that the building of a public sewer by a municipal corporation is the exercise of a legislative discretion which the courts cannot rightfully coerce or control. Horton v. City Council, 4 Lea, 39, S. C. 40 Am. Rep. 1. And to the same effect is Mills v. City of Brooklyn, 32 N. Y. 495.

If municipal officer's, or duly authorized committees, make contracts in relation to sewers, or other similar structures, which are binding upon their towns or cities, and the latter refuse or neglect to perform them, we think redress must, as a general rule, be sought in actions at law ; and, if an exceptional case arises, in which the aid of a court of equity may properly be sought (and we do not mean to say that such a case is impossible), the bill praying for a specific performance, must contain a full and clear statement of the circumstances which create the exception and render the assistance of the court necessary, or the relief prayed for will not be granted. In fact, this court has recently held that in all cases in which decrees compelling the specific performance of contracts are asked for, the bills must contain allegations sufficient to show that actions at law will not be plain, adequate, and complete means of redress.

The bill now before us contains no such allegations. It avers that by reason of the non-performance of the agreement of the city to extend the sewer, the plaintiff’s property is greatly damaged, and that he is prevented from using his land for building lots, as he otherwise would do. But these are only such general allegations as could be made in every case. They show no specific circumstances, such as would be necessary to justify a decree for specific performance. Porter v. Land Co. 84 Maine, 195. And see Atwood v. Cobb, 16 Pick. 227 ; 26 Am. Dec. 661; and note.

Bill dismissed with costs.

Peters, C. J., Libbet, Foster and Haskell, JJ., concurred.