Raby v. . Reeves , 112 N.C. 688 ( 1893 )

Plaintiff offered in evidence a deed from Elijah Raby and wife to the defendant, dated 25 April, 1885, granting the right of way over lands to be utilized in the construction of a ditch for the transportation of water, and reserving a yearly rental of $20. He also offered in evidence a deed from Elijah Raby and wife to himself, dated 11 June, 1887, conveying the land, over which the right of way had been granted, to the defendant. Witnesses testified that the water was conveyed over the land to a mine owned by defendant, who was in the habit of coming to the mine; knew the water was being brought over the land for the operation of the mine; had paid off employees hired by the operator; had witnessed the digging of the ditch, and sent for tools, and otherwise concerned himself about the construction of the ditch, and had (689) paid rent for the years 1886 and 1889.

The court charged the jury that the contract created a right appurtenant to the land, and the right to recover the rent passed to plaintiff on the execution of the deed conveying the land; and that if the defendant entered into the contract as set up in the instrument from Elijah Raby and wife to R. K. Reeves, then he (Reeves) would be responsible to the plaintiff for the rent accrued to time this action brought, and unpaid for time mine was operated after plaintiff purchased and paid last payment, to wit, 1890 and 1891, and at rate of $20 per annum, the contract rate; that if defendant Reeves accepted, used and took advantage of the right of way, knowing that such a contract had been made in his name, this would be a ratification (690) of the contract, and he would be responsible for rents at the contract rate.

There was a verdict for the plaintiff for $20 for amount of 1890 and 1891, with interest on each amount from maturity.

There was judgment on verdict for plaintiff. Appeal by defendant. It is laid down in 8 Bacon's Abridgment, Letter 8, Title Rent, that, "as a general rule, no rent can issue out of an incorporeal inheritance which lies in grant, because they are such things in their nature as a man can never recur to for a distress." It is also stated by the same author that "if a lease by deed for years of an incorporeal inheritance be made — reserving rent — such reservation is good by way of contract to bind lessee, and for nonperformance lessor may bring debt."

So, it seems, that in the present case, when the easement was granted, reserving $20 per year, it was not rent, but a covenant, for the nonpayment of which the grantor might have brought an action of debt.

Is this covenant a mere personal one, or does it run with the land? We think that the plaintiff grantee took the land subject to the easement, and if he interfered with its use the grantee of the easement would have an action against him. Being thus subject to the burden, he should, under the circumstances of this case, share the benefit and be entitled to collect the compensation.

As to the other point, his Honor very properly held that if the (691) defendant accepted and acted under the deed, he was bound by its covenants. Fort v. Allen, 110 N.C. 183.

We also concur in the ruling that there was evidence tending to show such acceptance, etc.

NO ERROR.

Cited: Lumber Co. v. Hudson, 153 N.C. 100.