The opinion of the court was delivered by
Redfield, Ch. J.The making of such a contract as the plaintiff asks to have specifically carried into effect by Fleming, the general business agent of the company, is admitted. One important question in the case is, whether he was authorized to *270make such contract, and if not, whether it is capable of being ratified by the company, by acquiescence, so as to become binding upon them; and if so, whether the proof in this case amounts to such ratification.
The statute of 1831, sec. 3, gives the company power to convey land, and to lease it by deed of an agent appointed for that purpose by vote of the corporation under their common seal. This mode, or else the mode pointed out in the general statutes of the state in regard to the conveying of real estate by corporations, should undoubtedly be pursued in the actual conveyance or leasing of the real estate of the corporation.
But it has been held in this state that a contract to convey land by a corporation is not required to be executed or ratified with the same formality as the actual conveyance; Isham v. Bennington Iron Company, 19 Vt. 230. If the company are cognizant, or its principal agents and officers are cognizant of some third party being upon 'their land, making permanent erections under a claim of title, and make no objections, it has been held a ratification of a sale or contract to convey made by their agent; Pope v. Henry, 24 Vt. 560, 566.
In the present case there was this and the payment of rent to the company. So that it would seem there was, at all events, a sufficient ratification to bind the company.
Fleming states that he was general agent of the company in all their business except making out conveyances, when special agents were appointed. And he had been sometimes appointed special agent for that purpose. The only right to use water which the company have sold is to the grist mill, but they have been in the habit of leasing for ten years.
In September, 1837, a contract was made with the plaintiff to have him use one square foot of water under the saw mill to carry a wheel in his cabinet shop, by means of a band.
He says according to his best knowledge and belief it was well understood between him and Mr. Conant that, the grist mill had the first right in low water, and when requested he must shut down his gate. But no such exception seems to have been contained in this contract, and none in the present one. And if there had been any express exception in the making of the contract in *271the first instance in favor of the prior right of the grist mill Mr. Fleming would not have expressed himself in the manner he did.
On the first day of August, 1850, the present contract was made, upon which the plaintiff erected a three story building with three wheels, for which he was to draw from the bottom of the canal not exceeding one hundred and forty-four inches for each wheel. This contract was made upon the same conditions as the one of 1837, and rents have been paid the company up to February, 1854.
After the plaintiff refused to acknowledge the prior right of the grist mill as a condition of his contract, the company declined to ratify it or to execute a lease except with that condition.
And the question to be determined is whether the plaintiff has the right to insist upon a lease in the form in which his contract • specifies, without condition or qualification.
As we have said that a contract for a lease need not be in the same form as the lease itself, or supported by a formal vote, the principal inquiry is whether the evidence is ' sufficient to bind the company to the contract as made. The contract itself being made in writing and by the general agent of the company, and that and a precisely similar one having been acquiesced in since 1837 till 1853 or 1854, a period sufficient to quiet the title of real estate, and very extensive and valuable erections having been made in the faith of the contract, we should certainly regard the company as conclusively bound by so long acquiescence, unless there is something of a very conclusive character to encounter the presumption.
The company rely upon the instances in which the plaintiff has raised his gate, at the request of the proprietors of the grist mill. So far as this happened under the former contract it could not be of much force, as the transaction is only incidentally connected with the present, and was of very much less importance than the present one, being but a single wheel, and no erections made in faith of it, which would make it essential that the plaintiff should insist upon his rights in limine.
But under either contract it might be attributable to courtesy as well as submission to superior right. “ I will give twice so much *272to any well-deserving friend, but in tbe way of bargain I will cavil upon the ninth part of a hair.”
It is also worthy of notice that this was not a concession to any counter claim of the defendants,- but at most to the superior right of the grist mill proprietors. Their rights he must know, as they are upon the registry, and he must respect them, as they are superior to his own.
And at first it seemed to'us that this must be a bar to the plaintiff’s claim for a specific performance of this contract. For a court of equity will not decree a specific performance of a contract which it is not in the power of the party to perform. And as the defendants have first conveyed a right to the grist mill, they have no power to convey one to the plaintiff otherwise than subject to their former conveyance. And if the water in this canal were limited by physical laws, as it is where all the water in a stream is put to the use of machinery and there is still a liability to a deficiency, we think it would present an invincible obstacle to the redress asked.
But upon careful examination and reflection it is obvious that the principle alluded to has no just application to the present case. Here the supply of water is by means of an artificial canal, which, so far as appears, is capable of being deepened to any extent, and is connected with such a supply of water that there is in fact no difficulty in affording an ample supply of water for the grist mill and the plaintiff also.
If, then, the defendants really contracted to do it, we see no reason why they should not be required to do so. And it seems to us that upon the principles of law already adverted to, and the proof in this case, we can come to no other conclusion but that the company are bound by the contract as made, and a specific performance must be decreed.
Decree of chancellor reversed and case remanded, to pass a decree for the orator according to the prayer of the bill.