Year: 1878

was practicable and cor Id be construct so
IA TO create and make available the
water power in said instrument provided for,
ano 1nat It was upon such belief and only be-
ca1se tnereof that the terms of compromise
ana settlement aforesaid were agreed upon.
and the said instruments were executed, and
.nat had the actual fact with respect to such
formation and condition of things and the
practlblhty OF constructing such tunnel been
Aho"n, sucn terms would not have been agreed
upon, nor would said instruments have been
executed" /" That from the nature of said forma-
tlon and condition of things, it was not prac-
tlcable for the said parties or either of them.
nor could they, or either of them, discover their
said mistake at or before the time of making
the said compromise, by the use of reasonable
care and diligence. The complaint proceeds to
show that since the making of said contracts
the defendant has constructed and erected,
and now maintains a dam in the said river
abuttlng against the east shore of said river, at
Il point about one thousand feet lower down
said river than the lower end, of said Nicollet
island, extending out into said river to Henne-
PIN island, thence up said river by said Henne-
PIN island to its upper end, thence
out into and up said river
to point about four hundred feet west of the
west side OF said Nicollet island, and about six
hundred feet higher up said river than the
lower end of said island.' That the said dam
SO erected, constructed and maintained cause
the water of said river to flow the shores and
banks of said Nic,,ilet island to such an extent
as to entirely destroy the water power On said
island.''


"Whereupon the plaintiffs demand the iudg
ment of this court resembling and annulling
the said compromise and settlement,
and the said contracts and the record
| thereof, and adjudginy the abatement
and removal of SO much Of the said dam as
and on the shores Of said Nicollet Island, high
er than it used to flow when the said river was
in its natural state'


| 1t is not pretended that there was any fraud
concealment or Misrepresentation by the de-
! fendant. but relief is demanded on the sole
| ground OF mutual mistake of fact. Th re are
two decisive reasons why the relief asked can
| not be granted:


| Flrst-The contract has been fully performed
by the defendant and the situation of the par
ties SO changed by reason thereof as to render
1T impossible, so far as appears, to restore
them to their situation at the time the contract
was made. A court of equity will not inter
pose to resclnd a contract on the sole ground of
mutual mistake of fact, unless the parties can
be restored substantially to their situation at
the time the contract was made, for to SO inter-
pose would not cure the mischief, but merely
shift it.


Second-The alleged mistake is not one
which entities party to relief. 1t was in re-
spect to the fitness of the rock at the


place agreed upon, for the purposes
of a tunnel to be used as a water course.


Whether it was fit or not for such purpose was
equally unknown to both parties, and the fact


was doubtful IN its own nature.


when the fact is equally unknown to both


parties, or when each has equal and adequate


means of information. or when the fact is
doubtful from its own nature, in every such


case, if the parties have acted with entire good


faith, court of equity will not interpose fol


in such cases the equity is deemed equal be


tween the parties l Story Eq. Jur. sec. $50
The order sustaining the demurrer is
affirmed LORD. judge.