Haisten v. Savannah

• Decision Date: 31 January 1874
• Citation: 51 Ga. 199
• Parties: Isaac A. Haisten, plaintiff in error. v. Savannah, Griffin and North Alabama Railroad Company, defendant in error.
• Court: Georgia Supreme Court

51 Ga. 199

Isaac A. Haisten, plaintiff in error. v. Savannah, Griffin and North Alabama Railroad Company, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

*Specific performance. Statute of frauds. Before Judge Buchanan. Fayette Superior Court. October Term, 1873.

Haisten made by his bill, in brief, this case: In the year 1859, he owned lands in the county of Fayette, which were of great value for cultivation. The Savannah, Griffin and North Alabama Railroad Company was desirous of securing the right of way for its road through said property. On account of the amount of land which would be thus appropriated, and of the long lines of fencing which he would be compelled to build, he refused to convey to the defendant the right of way for any money consideration. Miles G. Dobbins, the president of said company, in his official capacity, then proposed that if the complainant would comply with his request that the defendant would build a depot on said land for his use and that of the neighborhood. Complainant, thus induced, consented to allow the defendant the right of way, in consideration that it would build the aforesaid depot and the necessary stock-gaps. Under this agreement the defendant constructed its road, appropriating land, cutting down timber and rendering the construction of fences necessary, to the damage of complainant $2,500 00. All of this he would have been willing to have lost, had he derived the benefits of a depot. Had the contract of the defendant been complied with, the value of his lands would have been greatly enhanced, and he would have been saved an immense amount of inconvenience. The damages thus sustained and still being incurred are inestimable and irreparable at law. His only remedy is by compelling a specific performance of the contract on the part of the defendant. Prays that the defendant may be compelled to perform its contract by the erection of the depot, etc. The bill alleges no written agreement upon the subject of said right of way and erection of a depot. On demurrer the bill was dismissed, and complainant excepted.

D. N. Martin; R. T. Dorsey, for plaintiff in error.

SpeER & Stewart, by R. H. Clark, for defendant.

*McCay, Judge.

If the contract set up by the complainant were in writing we are not prepared to say that equity would not decree a specific performance of it. The damages are so difficult to estimate with any approach to certainty that true equity would require a specific performance. The case in 32 Georgia, 550, stood on peculiar facts, since the defendant would only be called on to act when the plaintiff had freight ready, and there might be difficulty in enforcing the decree for that reason. But every decree for specific performance of an undertaking to do a continuous act, is subject to the objection, that the matter is never final. Nevertheless the judgment is final, and attachment for contempt in failing or refusing to obey it is always in the power of the court. But this contract is not in writing; it concerns an interest in land. The right of way on one side and an easement on that right of way on the other, and by the statute of frauds it can only be proven...