Opinion
September, 1905.
Dickinson Duffey, for the appellant.
James Dougherty, for the respondent.
It seems clear that this plaintiff can claim no greater rights than could Brooks and Hoffman, his grantors. The trial court has found that he took his deed with knowledge of the position of the defendant's pipes as laid through the premises. In his chain of title appeared the deed from the Hubbard estate to Brooks and Hoffman, in which Brooks and Hoffman had covenanted to open Prospect street to the western boundary of the land purchased. This plaintiff, therefore, cannot recover unless Brooks and Hoffman could recover the same judgment if the land had not been conveyed and the action brought by them. ( Tallmadge v. East River Bank, 26 N.Y. 105; Equitable Life Assurance Society v. Brennan, 148 id. 672; Pom. Eq. Juris. § 611.)
In the deed to Brooks and Hoffman was the covenant that they should extend Prospect street to the western boundary of the land and do the work and labor therein. This covenant was for the benefit of the remaining land of the Hubbard estate. Part of that remaining land was thereafter purchased by the defendant, which thereby became entitled to the benefit of that covenant. The defendant could require Brooks and Hoffman, or their grantees, at any time to extend Prospect street to the west, pursuant to the covenant in the deed to them from the Hubbard estate. ( Tallmadge v. East River Bank, supra; Equitable Life Assurance Society v. Brennan, supra.) It is probably true that the defendant could not originally have required the street to be extended in the exact line in which it was attempted to extend it and where the defendant's pipes were laid. Brooks and Hoffman had the right to curve to the north to circumvent the bluff. If the Hubbard estate or defendant had the legal right to require the extension of Prospect street in the place in which it was attempted to be extended, that extension was required to be made at the expense of Brooks and Hoffman, and there would have been no consideration for the agreement of the defendant to cut down and grade the street upon the bluff. Not being required, however, to extend Prospect street directly over the bluff, Brooks and Hoffman had the legal right to make a contract with the defendant whereby it should be so extended on condition that the defendant should do such grading as should be agreed upon. If the defendant has failed to perform its part of the contract and has failed to do the grading required thereby, it may have forfeited its right to claim the extension of Prospect street in that exact location. It has never, however, forfeited its right to claim the extension of Prospect street to the western bounds of that property. There never has been any other extension of Prospect street. There is a dugway, so called, around the north of this bluff by which Prospect street may be reached. That dugway has never been accepted by the city as a street; has never even been dedicated to the village or the city as it now is. It is simply a roadway used by Brooks and Hoffman for their own convenience, subject to change at their will.
This situation is then presented: Brooks and Hoffman and their grantee have failed to extend Prospect street to the western boundary of their purchase as required in a covenant in their deed, to the performance of which the defendant has the right. If this street were extended the defendant would have the right, without paying compensation to any one, to lay its pipes therein, connecting its pump house with its water tower. ( Witcher v. Holland Water Works Co., 66 Hun, 619; Van Brunt v. Town of Flatbush, 128 N.Y. 50; Eels v. A.T. T. Co., 143 id. 142; McDevitt v. Gas Co., 160 Penn. St. 373, 374.) Notwithstanding this failure, they have come into equity and asked the removal of defendant's pipes from the location originally consented to as the extension of Prospect street, upon the ground that defendant has not done as much work as it contracted to do in making a passable road over the bluff. Assuming, for the argument, that the defendant has substantially failed to perform the amount of work required to be done in grading down this bluff, we think that neither Brooks nor Hoffman nor this plaintiff can, with good conscience, appeal to equity to compel the defendant to remove its pipes until they themselves have performed the duty which they owe to the defendant, and provide a street in which the pipes can be laid without compensation to any landower. Plaintiff does not come into court with clean hands. He can ask no equity until his grantors, whose places he has taken, have done equity in providing a street which shall be a proper extension of Prospect street to the west bounds of the purchase of Brooks and Hoffman.
If these views be sound, the judgment must be reversed upon the ground that the plaintiff is not in a position to ask for equity. It is perhaps unnecessary, then, to consider any other ground upon which the judgment has been here challenged by the appellant. A careful examination of the evidence makes clear the fact that the location in which these pipes are placed was the location agreed upon for the extension of this street. Just how much work was to be done by the defendant in the performance of its contract is not so clear. After the passageway through the bluff was once cut down, upon the requirement of Brooks and Hoffman, it was still further lowered. Some work was done thereupon by Brooks and Hoffman themselves. The passage was used as a street to a limited extent for a number of years. There is no claim that the defendant was under contract to keep this street in a passable condition. It thereafter became out of repair and the fair inference is that, partly from this fact and partly from the difficult grade, the street was thereafter abandoned as a street. The defendant's pipes have remained therein from 1884 to 1899, the date of plaintiff's purchase, with the right practically unchallenged. With the obligation on the part of Brooks and Hoffman to extend that street without compensation; with the line of extension agreed upon; with no other extension opened in fulfillment of the covenant of Brooks and Hoffman; with the existence of defendant's line as laid therein for fifteen years; with the right practically unchallenged, it may well be doubted whether equity will at this late day intervene to compel a removal of those pipes. It is a well-settled principle of equitable administration that equity aids the vigilant, not those who slumber on their rights. In Pomeroy's Equity Jurisprudence, in section 418, this principle is cited as a rule controlling the administration of remedies: "The principle embodied in this maxim * * * operates throughout the entire remedial portion of equity jurisprudence, but rather as furnishing a most important rule controlling and restraining the courts in the administration of all kinds of reliefs, than as being the source of any particular and distinctive doctrines of the jurisprudence. Indeed, in some of its applications it may properly be regarded as a special form of the yet more general principle, He who seeks equity must do equity. The principle thus used as a practical rule controlling and restricting the award of reliefs, is designed to promote diligence on the part of suitors, to discourage laches by making it a bar to relief, and to prevent the enforcement of stale demands of all kinds, wholly independent of any statutory periods of limitation. It is invoked for this purpose in suits for injunction, suits to obtain remedy against fraud, and in all classes of cases, except, perhaps, those brought to enforce a trust against an express trustee." In section 419 the words of an English chancellor are quoted: "A court of equity which is never active in relief against conscience or public convenience, has always refused its aid to stale demands where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence." If then, after fifteen years of acquiescence upon the part of the plaintiff and his grantors, the court can, in any event, be moved to give its extraordinary injunctive remedy, it should be slow to act where the sole ground upon which relief is asked is the failure to fully perform a grading contract, which, upon the findings of the court itself, was too indefinite to be specifically enforced. If it be clear as to just what work the defendant was required to do in the grading of that road, it would seem, in view of all the circumstances of the case, that the injunction should be denied upon condition that that grading be now done rather than that the defendant should be commanded to remove its pipes. If it be not clear as to the extent to which the street was to be graded, acquiescence for fifteen years in such performance as was attempted should forfeit to Brooks and Hoffman and their grantees the right to call for the aid of a court of equity to remove defendant's pipes. (See Adams v. Patrick, 30 Vt. 516.)
The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to appellant to abide the event.
All concurred, HOUGHTON, J., in result, except PARKER, P.J., dissenting.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.