But the court will also refuse to interfere in any case where, if it were to do so, one of the parties might nullify its action through the exercise of a discretion which the contract or the law invests him with. The refusal in such a case does not depend of necessity upon any illegality, inequality, or unfairness, but it is sufficiently based upon the impropriety of imposing on the judge the labor, and on the public the expense of an investigation of disputes when the circumstances are such as to preclude any judgment that may be rendered from being final. No court can with reason be called upon to do a vain thing. A familiar instance is that of a contract for the formation of a partnership, which, though it is within the power of the court to enforce it, and it may be done under special circumstances when by its terms the partnership is to continue for a definite period, yet in the absence of a provision to that effect performance will invariably be refused, though the terms be in all respects equal, fair and legal. The reason is that the partnership which the court might establish by its decree, the parties or either of them might immediately dissolve; and Lord Eldon says "no one ever heard" of the court executing an agreement under such circumstances. Hercy v. Birch 9 Ves. 357. See also Scott v. Rayment L. R. 7 Eq. Cas. 112; Meason v. Kaine 63 Penn. St. 335; Coll. on Part. 19, 385; Story on Part. § 189; Pars. on Part. 298; Fry on Spec. Perf. 64, 504; Story Eq. Jur. § 666.

All contracts where the party has reserved to himself, or where the law gives him the authority to render nugatory any decree that ought to be rendered in their enforcement, rest upon the same principle. This was recognized in Marble Co. v. Ripley 10 Wall 339, 359; and more distinctly asserted and decided in Express Co. v. Railroad Co. 99 U. S. 191. In this last case the very strong assertion is made that "a court of equity never interferes where the power of revocation exists."

It is also assigned as a reason why specific performance should not be decreed in this case, that the terms of the contract as respects the manner of working, the extent to which

operations should be carried on, and the consequent royalty, are such that they cannot be enforced so as to do justice to the defendants after lease given, without the constant supervision of the court so long as the lease shall continue, to compel the lessees to proceed with their operations and to prosecute mining to such an extent as shall be reasonable and just. There are undoubtedly some difficulties in the case, of much the same nature with those encountered in Blanchard v. Detroit etc. R. R. Co. 31 Mich. 43; but as we refuse relief on other grounds, their consideration is not important here.

It is urged on the part of complainants that the recognition and enforcement of these contracts of option is absolutely essential to the development of the mineral resources of the State; and it may be and probably is the fact that they perform a convenient and useful function. But it does not follow from that fact that the party must have this specific remedy. He is supposed to rely upon his right to an action for the recovery of damages in all cases where it is not consistent with the principles of equity that he should have other redress. Denying specific performance does not deny the legality or obligation of the contract: it denies merely that the case is one of equitable cognizance. The decree must be reversed and the bill dismissed with costs of both courts.

The other Justices concurred.

47 456 74 469

47 455 TOLEDO, ANN ARBOR & GRAND TRUNK RAILWAY COMPANY V. JAMES M. DUNLAP, MARY ANN DUNLAP

83 417

47 456

92 38

AND ERVIN D. BROOKS.

Judicial powers-Condemnation of land for railway purposes-Refusal of
tender-Deposit of damages-General railroad law-Titles of
statutes-Consolidation of companies-Damages
-Findings of jury-Costs of
proceedings.

Strictly judicial powers can, in Michigan, be vested only in certain courts
named in the Constitution. The circuit courts, as courts, have such

powers; but the judges, out of court and merely as judges, cannot exercise them. Proceedings to condemn lands for railroad purposes, though subject to

judicial review and supervision, are not judicial proceedings and do not involve a contest on litigious rights; they are special proceedings by a temporary tribunal selected for the occasion.

In Michigan the inquiry in proceedings to condemn lands for railroads, is as to an appraisal or estimate of values and a determination of the necessity of the proposed taking for public purposes.

If, in proceedings to condemn land, a jury has been summoned under proper circumstances, has conducted its inquiries legally and with due regard to private rights, and has reached a legitimate conclusion as to the necessity for the condemnation and the compensation, the appropriation of the land on payment of such compensation, will be lawful and will not be affected by collateral action by the judge or

court.

A judge cannot, by ex parte action, interfere, in a proceeding which is not a suit in court, with regular legal proceedings pending in the ordinary course of justice, where the parties interested have no notice beforehand, nor any regular means of relief.

The owner of lands sought for the use of a railway company cannot be compelled to determine at his peril whether a jury will regard the land as necessary for public use; he cannot, therefore, be in fault for refusing a tender for it when he can have no assurance that the proposed improvement will be sanctioned.

The statute for condemning lands for railway purposes is fatally defective in not providing a means or tribunal for determining the question of tender, which cannot be done by the judge or a jury.

The owner of lands sought by a railroad company in condemnation proceedings is not deprived of any rights by the mere deposit, pending appeal, of the sum awarded by the jury, as there is no statute requir ing him to take the risk of such a deposit, or depriving him of any rights until he is paid.

An act entitled "An act to revise the laws providing for the incorporation of railroad companies, and to regulate the running and management and to fix the duties and liabilities of all railroad and other corporations owning or operating any railroad in this State" is not unconstitutional on the ground that the title provides for more than one object, its object being to bring together the legislation concerning the creation and management of railroads.

The power of a railroad company to begin proceedings for the condemnation of lands within the State is not lost by its consolidation with another railroad company into a new organization so as to con

f157 13656 157 13657

stitute a corporation subject to the laws of the same State as the original company.

Where a railway company seeking to condemn lands does not obtain authority from the owner in fee, it can obtain no rights of control over the land by any license or grant from the holder of a contingent dower interest or a tenant at will.

A railway track or other improvement wrongfully placed upon land by a railway company, and not abandoned to the owner of the premises, cannot be treated as a part of the realty for the purpose of increasing its value in estimating the damages due to the owner in subsequent proceedings to condemn the land for the use of the company.

A judge or circuit court commissioner "attending" a jury in proceedings to condemn lands, forms no part of the special tribunal, and his functions are at most advisory. Under the Constitution of Michigan as well as at the common law, such a jury are judges of both law and fact, and where their proceedings are not based on false principles, an appellate court will not consider questions raised on merely technical objections to the admission or rejection of testimony by them though in accordance with the magistrate's rulings.

The jury, in proceedings to condemn lands, are not bound by the testimony submitted to them, but are also expected to use their own judgment and knowledge from a view of the premises and from their own experience as freeholders.

The findings of a jury in proceedings for the condemnation of land will not be set aside unless upon objections raised in the record and unless the record shows that the proceedings were erroneous.

Where proceedings to condemn lands were affirmed so far as the findings of the jury were concerned, but beyond that were reversed, costs of the Supreme Court and of the proceedings below were allowed to the appellants.

APPEAL to the Supreme Court from the appraisal and report of a jury in proceedings to condemn lands, and from the order confirming them. Respondents appeal. Affirmed, so far as relates to the findings of the jury; reversed, as to remaining orders and proceedings.

James M. Ashley, Jr., and Aug. C. Baldwin for petitioners, cited, in support of the constitutionality of the Railroad Law, in respect to its title: People v. Mahaney 13 Mich. 481; Underwood v. McDuffee 15 Mich. 367; Inkster v. Carver 16 Mich. 484; People v. State Ins. Co. 19 Mich. 398; Harrington v. Wands 23 Mich. 385; Swartwout v.

Mich. Air Line R. R. 24 Mich. 389; Conn. Mut. Life Ins. Co. v. State Treasurer 31 Mich. 17; Kurtz v. People 33 Mich. 279; People v. Bradley 36 Mich. 447; Cooley Const. Lim. 146; contra, Ryerson v. Utley 16 Mich. 269; Stewart v. Father Matthew Society 41 Mich. 67; People v. Denahy 20 Mich. 349.

E. J. Bissell, E. H. Sellers and F. A. Baker for appellants. A petition for the condemnation of land must allege the petitioner's inability to acquire title: Chic. & Mich. L. S. R. R. v. Sanford 23 Mich. 418; the wife of the owner in fee must be made a party: State v. Easton &c. R. R. 36 N. J. L. 184; contra, Moore v. Mayor 8 N. Y. 110; Gwynne v. Cincinnati 3 Ohio 24; a tenant from year to year is a party in interest: Parks v. Boston 15 Pick. 198; Lawrence v. Boston 119 Mass. 126; North Pennsylvania R. R. v. Davis 26 Penn. St. 238; Turnpike v. Brosi 22 Penn. St. 29; Gilligan v. Providence 11 R. I. 258; the petition must allege an attempt to agree with each respondent: In re Bost. Hoosac Tunnel & West. R. R. 79 N. Y. 71; the separate proceedings against each are inadmissible. in Michigan; Grand Rapids & Lake S. R. R. v. Alley 34 Mich. 18; Mich. Air Line Ry. v. Barnes 40 Mich. 383; the petitioner cannot rely on negotiations conducted by a former company with which it had been consolidated : Harshman v. Bates County 92 U. S. 569; County of Bates v. Winters 97 U. S. 83; an express finding that it is necessary to take the land for the public use is required; Mansf Coldw. & L. Mich. R. R. v. Clark 23 Mich. 519; Grand Rapids & Lake S. R. R. v. Van Driele 24 Mich. 409; improvements made on another's land without his consent become his property, at common law, though the rule is modified where they were made in good faith: Parsons v. Moses 16 Ia. 444; and equity required payment for them: Putnam v. Ritchie 6 Paige 390; Bright v. Boyd 1 Story 478: 2 id. 605; Story's Eq. Jur. 779a 7996; Green v. Biddle 8 Wh. 77; Willard's Eq. 312; Sudg. Vend. ch. 22 $$ 54, 55, 57; the value may be set off in an action for