to be done and the services to be rendered by complainant, according to the allegations in the bill, were personal services to continue over an indefinite period of time, specific performance of which cannot be enforced against him, and therefore said contract is incapable of enforcement by decree in his favor for specific performance, the remedy not being mutual.

In considering the bill on demurrer, all facts clearly and distinctly stated are to be taken as true; such is not the case with conclusions nor with contradictory statements.

66*

The bill in its general aspects states clearly that over half a century ago, in 1866, complainant rented a large farm lying near the city of Grand Rapids from defendant Smith and took possession thereof "according to the terms" of a written lease; the only terms of the lease given are that it was for seven years at an annual rental of $100 per year. After the expiration of the written lease complainant continued in possession, as a tenant, of all or part of said "large farm" to the time of filing this bill, under oral agreements with Smith. The first oral agreement was that he "could continue upon said place," and that the terms could be made by your orator himself." The terms he made are not stated, except by inference; but "under that agreement your orator continued in possession," until 1885 when his wife died, and his children, having previously grown up, had moved away. This oral lease on his own terms, whatever it was, had been supplemented in 1875 or 1876 by an oral agreement for a new house on the place; the material being furnished by Smith and the labor by complainant, who "was to occupy the house as long as he lived." No information is given as to the size or cost of the house. Apparently considering his tenancy as optional, complainant was about to throw it up and leave after the death of his wife, when Smith called his attention to the agreement made when the house

was built, said he would not sell the property the house stood on, and expressed the hope that some of complainant's boys would live there after complainant was dead. Complainant then agreed to remain and look after the premises and the interests of Smith as long as complainant lived. After that time he paid no money rent and ceased to cultivate the land as a truck farmer, but "under the agreement with Smith your orator gave his attention to locating factories on the land of said Smith and making a long lease or sale of same for him." He also collected rent, "as much as he could," and remitted the same to said Smith "in lieu of cash rent."

At the time his wife died he had occupied this large farm, put in good condition three years after he went there, for 18 years, paying $100 a year for seven years, and on terms "made by your orator himself" for 11 years, living one-half of the time in the house now in controversy. Except for the year and five months he was in Missouri engaged in starting two of his sons in business, complainant has, so far as disclosed by the bill, occupied the house 37 or 38 years and expended on it $1,000. From the story told in the bill we fail to discover any compelling equitable considerations to necessarily turn the balance in favor of specific performance, and now consider the more strictly legal aspect of the case.

Up to 1885, according to the statements in his bill, complainant regarded the oral contracts which had been made as in their nature unilateral or optional with him, and he had concluded, after his wife died and his children were gone elsewhere, that he would go also and "get a smaller place on which to spend the rest of his days." Smith "discouraged the idea," but made no new promises touching a life lease, except to call attention to the agreement made when the house was built and inform complainant he would never sell it, whereupon it is stated complainant him

self agreed with Smith he would remain and look after the premises and Smith's interest in the balance of the property as long as he lived. This is the final agreement treated by the bill as binding on both parties. By it his obligations were for personal service, "in lieu of cash rent.'

The bill states complainant faithfully performed those services at all times, and also states that he went to Missouri in March, 1908, and returned in August, 1909, during which time Smith visited Grand Rapids twice, finding complainant absent and his son Bert M. Heth in possession of the property; on the second visit Smith rented the house to another, demanding possession, not of complainant, who had been absent over a year, but of the son whom Smith found in possession. The summary proceedings instituted before the commissioner a year later to obtain possession of the premises were not against complainant, but the son. At that time complainant had returned from his "only temporary" absence and "again taken possession of the premises described herein as his home." The bill fairly states that for nearly a year and one-half he was absent in another State, not in possession of the property nor rendering the personal services he had contracted to perform in lieu of cash rent. To the contrary of this the bill also avers that he has fulfilled all the terms of his agreement whereby he obtained a life estate in the premises, and "now offers for the term of his natural life to continue to fulfill and perform all of the terms and conditions of said contract and agreement," recognizing that there yet remains on his side personal services and continuous duties, running on contemporaneous with the lease.

Specific performance of these services at the instance of defendants could not be decreed. Contracts for affirmative personal service consisting of a suc

175 MICH.-22.

cession of acts, the performance of which cannot be consummated in one transaction, but must continue for a time, definite or to become definite, and which involve special knowledge, skill, judgment, integrity, or other like personal qualities, the performance of which rests in the individual will and ability, and involving continuous duties which a court of equity could not well regulate, are not, as a rule, enforceable by decree for specific performance. Waterman on Spec. Perf. §§ 33-49; Pomeroy on Spec. Perf. §§ 307310.

To entitle a party to specific performance there must, in the first instance, be a valid agreement, and also at the time of the suit a mutuality of remedies as well as of obligations. Waterman on Specific Performance of Contracts, § 196; 2 Pomeroy's Equity Jurisprudence, § 769. The rule is fully recognized by this court. Buck v. Smith, 29 Mich. 166 (18 Am. Rep. 84); Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142); Green v. Railroad Co., 158 Mich. 436 (123 N. W. 4).

While the doctrine of mutuality is firmly established in the courts of equity, it is to be recognized, as contended by counsel for complainant, that there are numerous exceptions and abundance of authority where, under the particular circumstances shown, an exception is declared, but the principles under which exceptions are recognized are not applicable to the facts made clear by complainant's bill.

In this case complainant's nonenforceable promises are not fully performed and cannot be until the close of his life; if he is granted specific performance against defendants, and then fails to perform on his part, they are remediless in a court of equity; giving relief to complainant would leave the defendants to the law court for relief, if anywhere. This is one of the tests which disposes of the so-called exceptions to the rule of mutuality, and under the conditions shown

here the rule of mutuality applies. Upon that objection alone the demurrer should have been sustained. In this view of the case it becomes unimportant to consider the other grounds of demurrer.

The remedy by specific performance is inappropriate, and the order overruling defendants' demurrer is reversed, with costs. A decree may be entered in this court sustaining the demurrer and dismissing the bill, without prejudice, of course, to any proceedings at law complainant may desire to take.

MOORE, MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

BROCKWAY v. HYDRAULIC POWER & LIGHT CO.

RIPARIAN RIGHTS FLOODING

1. WATERS AND WATERCOURSES LANDS. It was not necessary to aver, in a bill of complaint to enjoin flooding complainants' lands, that defendant was the owner of the dam in controversy and land on which it was located, where the bill charged that defendant was in possession of the dam, and referred to it as defendant's, and the defendant in answering likewise mentioned the dam as "its dam," and charged that defendant had expended large amounts of money upon it.

2. SAME EQUITY-INJUNCTION.

Although the damage to the owner of the dam may be greater than the loss to riparian owners whose land defendant's acts flood, it is held, under the evidence, that the owners of several hundred acres injuriously affected by the raising of a lake may maintain suit to restrain the overflow beyond a height at which defendant by pre