Opinion by
Rice, P. J.,Prior to the date of the deed to which we shall refer hereafter, the defendants’ railroad crossed the plaintiffs’ private road and Speer’s run at right angles by a wooden bridge elevated about eight feet above the bed of the road. In June, 1898, the company, or its lessee, the P. &. L. E. R. R. Co., replaced this with a temporary structure preparatory to the erection of an *206iron bridge or viaduct, which, by reason of the vertical thickness of the girder, would reduce the headroom or clearance above the bed of the plaintiffs’ road about fifteen inches. To make up for this, the company proposed to lower the bed of the plaintiffs’ road, and had begun the work of excavation when the plaintiffs filed a bill against the P. & L. E. R. R. Co., and obtained an injunction. Thereupon the defendant company, in the exercise of its right of eminent domain, presented to the court of common pleas its bond conditioned to indemnify the plaintiffs for any damages they might sustain by reason of the company’s interfering with their roadway in the manner proposed and prayed for its approval. The bond was approved, and the plaintiffs then filed a bill against the present defendant, and moved for an injunction. After hearing, the motion was denied in part, and from this order the plaintiffs took the present appeal.
It is to be noticed, that the railroad company began its work in June and the first bill in equity was not filed until October. In the mean time the original structure had been removed and a temporary structure put in its place, expensive mason work to support the new iron bridge had been built, and the materials for its construction had been prepared, and were upon the ground, or were ready for shipment. It was also stated on the argument, that since the approval of the bond the iron spans have been put in place.
The jurisdiction of a court of equity to enforce a negative covenant — that is a covenant that a thing shall not be done — is as undoubted as its jurisdiction to enforce specific performance of an affirmative agreement. The court will look at the substance rather than at the form of the agreement: Clark v. Martin, 49 Pa.289; Landell v. Hamilton, 175 Pa. 327. Butwb.eth.er the court will exercise that jurisdiction depends on the circumstances of each case. If the covenant be unconscionable a court of equity will not enforce specific performance. The same is true if it is against public policy. So also, if its breach will work no appreciable harm to the covenantee, and its enforcement would work great injury to the covenantor, or if there has been acquiescence or laches on the párt of the covenantee inducing belief on the part of the covenantor that it would not be insisted on, and acting on that belief he has made considerable expenditures, and the plaintiff could be readily compen*207sated, in money damages, the court will not interfere by injunction. If it became necessary, it would be worthy of inquiry, whether, in view of the delay and the changed conditions, any decree ought to be made before final hearing which would compel the removal of the structure. See Mackintyre v Jones, 9 Pa. Superior Ct. 543, and the cases there cited, 2 High on Inj. 1159, and Orne v. Fridenburg, 143 Pa. 487. We, however, do not put our decision on the ground that th¿ plaintiffs were guilty of laches, nor upon the ground of the great disproportion between the injury to the defendant and the public and the benefit to the plaintiffs that would ensue if the injunction were granted, but upon the broader and more stable ground that the plaintiffs’ legal right is not clear. ■
The Act of March 17, 1869, P. L. 12, provides that it shall be lawful for any railroad company now or hereafter incorporated “ to straighten, widen, deepen, enlarge and otherwise improve .... the bridges, crossings, .... aqueducts, piers and structures thereof, .... for better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic thereon, and for such purposes .... to enter upon .... take and appropriate land and material, .... on making compensation or tendering security.” So far as the erection of the structure itself is concerned, and the consequent diminution of the headroom or clearance above the plaintiffs’ road, the company is proceeding strictly within its charter powers and no such abuse of them is alleged as would justify the interference of a court of equity and the substitution of its discretion for that of the company. The plaintiffs’ contention is that any change in the structure which will materially diminish the headroom or clearance above their road is a violation of an express agreement.
By their deed poll dated January 26, 1892, the plaintiffs granted to the defendant, for the consideration of $700, the easement and right of way for the construction, maintenance and use of a railroad of two or more tracks, with appurtenances, forty feet in width, at the grade of the roadbed of the railroad, with all such additional widths as should be necessary for the slopes of the cuts, fills, ditches and appurtenances. The deed contained this clause in the granting part: “and it is also agreed that the said second party shall not by its fill or embank*208ment obstruct the flow of water in Speer’s run, nor in any way interfere with the roadway leading to said sawmill tract now in use adjoining Speer’s run.” The success of the plaintiffs’ claim to have equitable relief depends upon the adoption of their construction of the foregoing clause, and the validity of the contract as thus construed. They claim, in effect, that it is a covenant binding the railroad company never to exercise its right of eminent domain in such a way as to interfere with their private road. The defendants’ counsel argue, that the clause was intended simply to define the railroad company’s rights under that deed. This, it seems to us, is the more natural and obvious construction of the clause. The height of the overhead structure above the roadbed was fixed by the grant. It was to be at the grade of the railroad bed. There was no necessity for further defining of that; hence an interference with the use of the road by lowering the structure was not mentioned. But certain undefined rights as to fills and embankments were granted, and it was especially to restrict the company in the exercise of these that it was stipulated that the road should not be interfered with. The right of a railroad company to make the necessary improvements contemplated by the act of 1869 was intended in large measure to be exercised for the public good and it will not be presumed in the absence of clear words that the company intended to barter away that right and thus disable itself wholly or in part to perform those public functions it has undertaken. There is certainly no such clear intention manifest in the instrument under consideration.
The decree is affirmed and the appeal dismissed at the cost of the appellants.
William W. Pobteb, J., dissents.