Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-03

AIRY power of equity is exercised t
refuse its aid. This rule is frequent
ly applied in contracts by which {
railway has bound itself to do som,
act, as to build a private grade cross
ing, or stop its trains at complain
ants place. If the public service
would be endangered or inconven.
fenced, with no corresponding bene
fit to complainant, he cannot have
performance But not every slight
inconvenience to the public will be a
reason for refusing performance.
Specific performance not being an
absolute right. the fact that enforce
ment would be Of little or no benefit
to the complainant, and a burden
upon the defendant, is sufficient to
constitute performance oppressive
and it will not be given. The dis
proportion between the burden upon
the defendant and the gain to the
plaintiff makes performance inequit-
able. Instances are found in the
cases Of restrictive covenants on
land, where, the character Of the
neighborhood having changed, as,
from a residence to a business neigh
bOrhood, the whole purpose of the
covenant is gone, and enforcement
would be Of no benefit to complain
ant"
The matter of establishing and
maintaining the station in contro-
yersy is a quasi public question,
that is, the general public as well as
the parties to this suit is interested
therein.
No depot building is required to be
constructed at this point, and we
think the question of stopping the
trains thereat is, in part at least, one
of public service by the railroad cor
poration, the regulation of which is
a duty imposed, in the first instance.
upon the railroad commission of the
state, under the provisions of Chap.
SO, Laws of 1907, page 67, known as
the Railroad Commission Act L. o.
L., Sec. 6S75, ct sequi L. o. L., Sec.
6SS7, provides: Every such railroad
Is hereby required to furnish reason
ably adequate service, equipment and
facilities -" L. o. L. Sec.
69O6, provides that upon complaint of
any person, firm, corporation or as
sociation, that the service in connec-
ton with any railroad is inadequate,
the commission may notify the rail-
road company thereof and proceed to
investigate the same, and shall have
power to make such orders, respect
ing such regulations, practice or SER
vice found to be inadequate, as it
shall have determined to be reason
able, which shall be followed in the
'uture, and since the passage of this
'ct the railroad commission has been
engaged in the performance of its du-
les hereunder; has considered and
lcted upon questions relating to the
service, the location of stations and
he stopping of trains, etc. (See An
lual Report of Railroad Commission
800, pages 80, 80, 54, and S9.) It's
'ower to adjust these matters was
Iecided in the case of the Portland
ty. Light & Power Co. V. Railroad
commissioners of Oregon, 1O5 Pac.,
O9, 56 Dr..
While the law provides for a re-
lew of acts of the commission, there
not now the necessity for the in
exposition of court of equity in the
rst Instance in matters of this ma
ure that formerly existed, rendering |
ass applicable as precedents the
ases decided prior to the enactment
I law. Under the present regime, if
court of equity should take cogni-
ance in the first instance, regardless
I the general plan and supervision
I the railroad commission. 1t would
tend to a confusion of re-
ults, to the detriment of the public's
interest, and with but little, If any.
enetit to the private parties CON
erned' Under he law the orders of
ne commission may be resclnded or
mended from time to time, accord
lg to change of conditions or re-
uirements Of necessity e.. o. L.,
&c. 69OS), while the decree appealed
'om is in form perpetual.
There is practically no necessity
'r the station as prayed for on the
ne of defendants railroad, and un-
er all the facts and circumstances
the case, we think the contract
lould not be enforced in a suit in
luity Louisville N. A. & c. r. R. v
umner supra; Texas & st. r. r. V. /,
obards, 60 Tex, 545 Cincinnati &
Co. V. Washburn. % Ind, 25g.