The opinion of the Court was delivered by
Willard, A. J.The first exception contends that the judgment of the Circuit Court is erroneous in not treating the action as one of an equitable character, based on the equitable doctrines of specific performance. If what is intended by specific performance by the exception is the proceeding in equity to specifically enforce a *255contract incapable of enforcement at law, as, for instance, where the contract conflicts with the statute of frauds, then clearly the rules governing that proceeding have, as a whole, no application to the present case.
In an enlarged sense of the term, the present action is based on specific performance, and was so regarded and treated by the Circuit Court. Usually the terms of contracts relating to personal rights are not specifically enforced, but the party aggrieved by want of performance or by improper performance is left to his action at law to recover damages for the injury sustained by him. There are, however, well established exceptions to this/ general rule, and one of these exceptions embraces the present case. Where a party, by grant, covenant or contract, upon consideration, provides for something to be done on his own land of such a nature that the products of the labor and materials supplied by the other party may be either rendered valueless to him or become, by operation of law, the property of the owner of the land through the exercise of the right of dominion over the land vested in its owner, and such owner attempts to exercise his right of dominion for the purpose of depriving the opposite party of the benefits of his grant, covenant or contract, equity will interfere, where necessary, to restrain the exercise of such dominion, and to establish the grant, covenant, or contract rights, between the parties. To this principle the protection of mining rights and certain servitudes and franchises by the Courts of equity as against the owner of the land in which they are enjoyed may be ascribed.
The view of the case taken by the Circuit Court does not essentially differ from that just presented.
The second exception is based upon a provision of the contract having reference to the period of its expiration. The plaintiffs’ assignors being the owners of the water power by which the hydraulic works were intended to be actuated, a provision was inserted in the contract to the effect that at the expiration of the contract the defendants should be entitled to be supplied with water power at a price to be fixed by arbitrators chosen by the respective parties. It is now contended that the enforcement of this provision, as it regards the appointment of arbitrators and the proceedings for fixing the price to be paid by the defendants for the use of the requisite water power, is, from its nature, incapable of attainment in equity, and, therefore, that the contract lacks mutuality *256and as such is incapable of enforcement under the rules governing specific performance.
It is not pretended that, in order to accomplish the objects of the present complaint, this provision must be executed. We are not called upon at the present time to say whether relief could or could not be afforded in the nature of fixing the terms contemplated by the parties in the event that either party should throw obstacles in the way of its attainment by the means contemplated by the contract.
It is not a practical question between the parties, neither of them, so far as appears, having done any act or made any declaration looking to any dispute as it regards this clause of the contract, and it would be manifestly improper for this Court to anticipate any such controversy at the present time. The whole effect of the decree is to restrain the defendants from unlawful interference with the exercise on the part of the plaintiffs of their contract rights, and to protect a special fund set apart as security for the payment of the amount contracted to be paid by the defendants, and to compel the payment of certain instalments -already due upon the contract. This can all be accomplished without resort to the provisions of the contract under immediate consideration.
The third exception contains nothing material to the issue between the parties. It is quite immaterial at the present time what was the precise relation created by the contract as between W. Sprague and S. A. Pearce. The plaintiffs, if they have any right to enforce the terms of the contract, unite in themselves all the rights of S. A. Pearce individually and as trustee of W. Sprague, with the individual rights of Sprague, and an inquiry into the original status of W. Sprague is of no value at the present time. The complaint asks nothing for or against W. Sprague individually, and therefore his status under the contract need not be considered. To determine that Sprague had more or less interest under the contract need not affect the question of mutuality raised as to the contract itself, for it would still leave in Pearce an interest and duty adequate to support it.
The fourth exception is merely an amplification of the third, and presents nothing important to be noticed beyond what has already been considered.
The fifth exception objects to the validity of the assignment of the contract by Pearce, for himself, and as trustee for Sprague, to *257the present plaintiffs. Sprague does not object to the assignment as affecting his interest, but, on the contrary, became a party to the assignment itself. Why the defendants should attempt to raise a question as between Pearce and Sprague affecting no one but those parties, and which they show no disposition to agitate, is not made clear. This Court cannot treat the case as involving any such controversy, nor the defendants as having any interest whatever in its solution.
The sixth exception is argumentative, and simply summarizes the results which the defendants contend should flow from the preceding exceptions.
The seventh exception argues that the plaintiffs can derive no benefit from the use of the word “ assigns ” in the contract. The right of the plaintiffs to bring an action in the nature of a bill in equity on the contract does not depend on the use of the word “ assigns ” in the contract, but upon provisions of law that will be hereafter considered. Still the word “assigns” is not without importance as indicating that the parties did not consider the contract as one calling for strictly personal performance by the original contracting party. The matter of this exception is, therefore, wholly immaterial.
The eighth exception insists substantially that the assignment of the contract destroyed its mutuality. The question of mutuality, as affecting the right to a specific performance, related to the original character of the obligation assumed. To say that a contract originally mutual is deprived of that character by the mere fact of assignment is to misconceive the legal meaning of the term mutuality, as applied to contracts. If the defendants mean that they have lost any rights or remedies that they possessed prior to the assignment, they misconceive the effect of the assignment on such rights and remedies. This and the next succeeding exception involve, though not distinctly presented, the idea that the contract was not assignable, so as to authorize an action by the plaintiffs to enforce its provisions. The action is equitable in its nature, and, without the aid of Section 134 of the Code of Procedure, it could be brought by an assignee, where the thing assigned is capable, either at law or in equity, of being assigned.
This Court is entirely satisfied with the grounds upon which the Circuit Judge placed his decision sustaining the right of the plaintiffs to maintain their complaint as assignees. We are also satisfied: *258with the conclusions of the Circuit Judge as it regards the question whether want of complete performance within the time prescribed by the contract is ground for refusing the relief prayed for. It does not appear that the defendants have been in any way prejudiced by any delay that may have occurred in the execution of the contract. To allow the defendants to take possession of the fruits of the plaintiff’s labor and expenditures without relief, or to throw them valueless on the plaintiff’s hands, is the very evil that the rules of equity were in part framed to prevent. It was to cover such cases that the rule was laid down that time is not of the essence of the contract, and in administering relief of an equitable nature an exception should not be interposed to that general rule, the. effect of which will be to do manifest injustice to the parties.
The eleventh exception contains a play of grammatical criticism upon the language of the Circuit Court that might well have been omitted. The expression employed by the Circuit Judge is perfectly intelligible in a sense consistent with the established rules of construction.
The propositions advanced by the twelfth exception are entirely inadmissible. This Court has nothing to do with the question of the fairness of the price agreed to be paid by the defendants, under the issues raised in this case. The right and authority to determine that matter rested with the City Council. They have fixed the terms of contract, and, unless upon proper issues, it is found to be void, inoperative, or terminated by competent authority, it must be enforced by the Courts without regard to any opinion which they may form as to the fitness of its provisions. We cannot refuse a specific execution of a contract, where otherwise proper, upon any such ground.
We cannot assent to the construction of the terms of the contract advanced by the thirteenth exception. It is forced and unreasonable. The true construction'called for an extension and adaptation of the then existing works to accomplish the end in view, namely, a supply of water to the required amount. To duplicate the works requisite to supply the city with water would be a senseless and extravagant expenditure that cannot be assumed to have been the intention of the contract. It is obviously so when it is considered that, as appears, the sources of water supply for the use of the city include water of both a superior and inferior quality, the one derived from springs and the other from the river. That to draw *259as much as possible from the best water and a minimum amount from the poorest, is clearly the dictate of prudence. The effect of the construction contended for by the defendants would be to shut out from use a large part of the best of the water available, and to compel resort to impure river water to take its place.
The fourteenth exception simply traces positions previously assumed to their logical consequences, and is already sufficiently disposed of.
The fifteenth exception, in addition to the matters already considered under the last two preceding exceptions, advances a single proposition, that there was a want of compliance with the terms of the contract as it regards providing for the filtration of river water required to be used. On the assumption that the contract .only called for the means of filtering such quantity of river water as was required to supply the daily consumption of the city, we concur with the Circuit Court in the conclusion that no want of due performance on the part of plaintiffs or their assignors has been established. The question as to the extent of the means of filtration' demanded by the contract arises under the next exception in order.
The sixteenth and seventeenth exceptions take the position that, by the terms of the contract, plaintiffs were bound to construct works and furnish power with an immediate capacity equal to the daily supply of one million five hundred thousand gallons, notwithstanding that a much less amount was actually required for actual consumption, and may be sufficient for many years yet to come. On the other hand, the plaintiffs contend that they are only bound to provide the requisite means to supply the city with all the water required for daily consumption, to an extent not to exceed one million five hundred thousand gallons daily.
The argument in behalf of the defendants rests mainly upon the first clause of the contract, which reads as follows: “That the said party of the second part covenants and agrees to and with the said party of the first part to build such part of a new Avater works as are required to force one and a half millions of gallons of water daily into the distributing reservoir now used by the city, namely, &c.;” then follows a specification of the details intended to be embraced in the requirement, which concludes as follows: “ to furnish a sufficient water power to force into the distributing reservoir the number of gallons of Avater required by the said city daily.” The *260city engages to enlarge the present distributing reservoir should it prove insufficient to hold the daily supply requisite for the use of the city. The contract provides also that the contracting parties shall furnish a filtering apparatus for purifying the water from said river, if such water was required.
It is not disputed that the works constructed and the power supplied are adequate for the immediate wants of the city, and admit of a largely increased consumption. There can be no doubt that, should the consumption increase, the contracting parties would be bound to provide means, in accordance with the terms of the contract, for supplying such increased demand to the limits of supply called for by the contract. The construction contended for is, that they were bound to furnish at once, and by the time fixed by the contract, namely, two years from its signature, the full means requisite to supply the maximum amount that, under any circumstances, may be demanded under the contract.
The evidence does not put in doubt the capacity of the works to supply even the maximum amount, except as to the amount of water power provided and the capacity of the filter. It will therefore only be necessary to look into the question raised so far as it relates to the amount of water power supplied and as to the capacity of the filter.
The special provision of the contract in reference to the amount of water power to be supplied, already cited, and which limits it to the amount required for daily consumption, evidently embodies the intent of the parties as affecting this question. It is entirely reconcilable with the general clause requiring the erection of works equal to the full capacity of one million five hundred thousand gallons daily. The general clause embodied the full measure of duty imposed upon the contracting parties under all the contingencies contemplated by the contract, while the special provision furnishes the means of ascertaining the extent of performance due on any particular day or under any given state of circumstances that may arise in the course of executing the contract.
We are of opinion that, unless it is made to appear that there has been a failure on the part of the plaintiffs to supply the amount of water power required to furnish the amount of water required for daily consumption, no want of performance can be maintained.
The clause bearing on the capacity of the filter also has reference to a supply for daily consumption merely. It provides that the *261means of filtration shall be sufficient “for purifying the water from the said river, if such water was required.” This clause would not be conditional if the water supply contemplated was the full amount of one million five hundred thousand gallons, for all the evidence shows that that amount could not be supplied without using river water to a large amount. It' must be concluded that what was meant by “if such water was required,” was that if it was required to supply the daily consumption of the city at any time during the contract. It is clear that the required extent of the means of filtration to be supplied must be determined under the contract by the amount of river water required to make good the amount needed for daily consumption, and not by the maximum amount of one million five hundred thousand gallons.
As we have seen, the special provisions of the contract limit the duty of the plaintiffs, as it regards the supply of water power and the means of filtration, to what is requisite for daily consumption. This view disposes of the whole question without rendering it necessary for us to look into the evidence supporting the conclusion of the Circuit Judge, that, in all respects, the works are sufficient to supply the maximum daily consumption of the one million five hundred thousand gallons.
The view just taken disposes of the eighteenth exception, based upon the sufficiency of the supply of water power to meet thp maximum requirements of the contract.
The nineteenth exception does not present very clearly the ground of obligation to the judgment intended to be taken, but, assuming that its object is to reverse the judgment on the ground that the evidence showed that the work was unskillfully performed, we find no ground for disturbing the judgment.
No issue was made in the pleadings as to the character of the work supplied by the plaintiffs as it regards skill of workmanship, and the evidence does not afford any such clear and decisive proof that would justify the interference of this Court with the conclusions of the Circuit Judge on a question of fact.
The twentieth and twenty-first exceptions are fully disposed of by what has already been said.
The exceptions are all insufficient, and the appeal must be dismissed.
Wright, A. J., concurred. *262Moses, C. J.I entertain doubts as to the assignable character of the contract. I will not, however, allow them to prevent my 'concurrence in the judgment of the Court.