Miller v. . Clary , 210 N.Y. 127 ( 1913 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] There can be no question but that the words "Together with sufficient power (subject to the elements) from a wheel in the old Stone Mills or Jewett building to turn a shaft and propel machinery" on the grantee's premises, contained in the deeds from the Phœnix Mills to Zalinski and others, constituted the grant of an easement, nor any doubt but that the privilege granted was for the benefit of the land conveyed, and an easement that ran with the land. (Nye v. Hoyle, 120 N.Y. 195.)

The question arises on the subsequent covenant to transmit the power, contained in the following provision: "Said party of the first part shall keep said wheel in said mill in good condition and operate the same economically and construct and maintain said shaft of proper dimensions to the west line of said lot, affording said party of the second part a good connection therewith at his west line."

There is now a wheel operated in the defendants' power plant which answers to the language of the deeds, and, therefore, we are not concerned here with the covenant of the grantor to keep the wheel in good condition and operate the same.

But there is no shaft or other contrivance to carry power from the wheel to the lands conveyed. By the judgment appealed from it is decreed that the covenants in the deed of the Phœnix Mills to the plaintiff's predecessors in title, whereby the grantor undertook to "construct and maintain a shaft of proper dimensions to the west line of" the plaintiff's land, is a covenant binding on the defendants, and the judgment orders them to comply with and fulfill such covenant.

The covenant to construct and maintain the shaft is known in the law as an affirmative or positive covenant. It compels the covenantor to submit not merely to some restriction in the use of his property, but compels him to do an act thereon for the benefit of the owner of the dominant estate.

It is the established rule in England that such a covenant does not run with the land and cannot be enforced against a subsequent owner of the servient estate, either at law or in equity. (Haywood v. Brunswick Bldg. Society, L.R. [8 Q.B. Div.] 403;London S.W. Ry. Co. v. Gomm, L.R. [20 Ch. Div.] 562;Austerberry v. Corp. of Oldham, L.R. [29 Ch. Div.] 750; Halsbury, Laws of England, vol. 11, pp. 237, 248.) There are, however, certain exceptions to this rule, as covenants to repair fences on boundary lines; to repair private ways, and covenants in leases. (Ib.)

Some of the courts of this country have taken a different view, notably the Massachusetts Supreme Court. In Whittenton Mfg. Co. v. Staples (164 Mass. 319) it is held that a stipulation in the deed of a mill site that the grantee and his assigns shall pay one-fifth of the damages caused by flowage from a dam, is a covenant running with the land and binds the grantee, his heirs and assigns. Pomeroy in his work on Equity Jurisprudence takes the same view, namely, that affirmative covenants may be enforced in equity, and criticises the English decisions. (3 Pomeroy Eq. Jurisprudence [3rd ed.], § 1295.)

The question as to the force of such positive covenants was raised in this court by counsel in the case of Nye v. Hoyle (supra), but was not decided. In that case a subsequent grantee rebuilt a dam, pursuant to a covenant of his grantor, contained in a contract for the use in common by the parties to the contract of the water in a pond, and he sought to recover a part of the expense of rebuilding from the other users of the water. The court held that the covenant in the contract required the plaintiff's grantor to rebuild the dam at his own expense, and hence the plaintiff failed to recover. The court then said it was not necessary to consider whether there was an equitable obligation on the part of the plaintiff to rebuild the dam.

In Hurley v. Brown (44 App. Div. 480) there was a covenant in a deed requiring the grantee to erect on the land conveyed a substantial two-story dwelling house. The court (Judge CULLEN writing the opinion) doubted whether this covenant to erect a building ran with the land so as to be enforceable against a subsequent grantee, but the case went off on another point.

In Kidder v. Port Henry Iron Ore Co. (201 N.Y. 445;207 N.Y. 768) it was held by this court that a clause in the deed to a railroad company of its right of way, whereby the grantee agreed to draw a freight car loaded with grain, free of charge, between certain points on its railroad, for the benefit of the grantor, could not be enforced by the purchaser from the grantor against a railroad company succeeding to the interests of the grantee.

In Reid v. McCrum (91 N.Y. 412) it was held that a covenant by a mortgagor to insure the buildings on the mortgaged premises does not run with the land.

On the other hand, it has been held in this state that certain positive covenants, which are mainly in line with the covenants excepted by the English courts from the rule adopted there, do run with the land. As, covenants to build fences along boundary lines (Satterly v. Erie R.R. Co., 113 App. Div. 462); covenants relating to party walls (Crawford v.Kroellpfeiffer, 195 N.Y. 185); covenants to provide railway crossings (Day v. N.Y.C.R.R. Co., 31 Barb. 548; Post v.West Shore R.R. Co., 123 N.Y. 580); covenants in leases to pay rent or repair buildings on the demised premises (Allen v.Culver, 3 Den. 284).

The cases cited from the reports of this state indicate that the trend of opinion is with the English decisions.

But there is another case on which the plaintiff relies, to wit, Denman v. Prince (40 Barb. 213). In Denman v. Prince the owner of lands on which was situated a gristmill and a sawmill conveyed the gristmill to the plaintiff Denman, and at the same time executed a separate agreement under seal, granting to Denman the use of water to run the gristmill, and covenanting that he would at all times be at an equal expense in keeping up and repairing the dams in the stream from which the water was obtained. Later on he conveyed the sawmill to the defendants, subject to the rights and privileges previously conveyed to Denman. Thereafter the plaintiff repaired the dams, and the suit was to recover from the defendants their proportionate part of the expense. The court held that the covenant to share in the costs of repair ran with the land and was binding on the defendants, and, further, that the parties to the action were tenants in common of the mill privilege, and were jointly using the same; therefore, the defendants were bound to contribute to the expense of the necessary repairs made to the dams.

The decision in Denman v. Prince is entirely in harmony with the early English cases. In Cooke v. Chilcott (L.R. [3 Ch. Div.] 694) the court held that a covenant by a grantee to erect a pump and reservoir and supply water to all the houses built on the vendor's land was enforceable by an injunction restraining the defendants, who had purchased the land on which the pump and reservoir were located, with notice of the covenant to refrain from allowing the work of pumping to be unperformed.

The evil and lasting effect of the decision, which would compel all persons who might thereafter become the owners of the reservoir to forever pump and supply water, led the court to practically overrule Cooke v. Chilcott, and announce the rule before referred to that affirmative covenants do not run with the land and cannot be enforced against subsequent purchasers either at law or in equity. (Haywood v. Brunswick Bldg. Society;London S.W. Ry. Co. v. Gomm; Austerberry v. Corp. ofOldham, supra.)

Except in Gould v. Partridge (52 App. Div. 40), which involved the same deeds involved in this action, Denman v.Prince has not been cited, so far as I can find, as an authority on the proposition that a positive covenant runs with the land. Covenants which impose charges on land bind the assigns of the covenantor as equitable obligations. (Trustees ofColumbia College v. Lynch, 70 N.Y. 440.) If, under the circumstances presented by the Denman case, the defendants had abandoned their sawmill and devoted their lands to other purposes, it would not have been equitable to compel them thereafter to bear the burden of maintaining the dams in order to provide water for the plaintiff's gristmill. However, in Denman v. Prince the court found that the parties to the action were tenants in common of the mill privilege, and were jointly enjoying the benefit thereof. That may serve to distinguish the case from the case at bar.

I think the rule that affirmative covenants accompanying conveyances of land are not enforceable against subsequent owners is a wise one. It has its limitations as has been seen, and may require further limitation; but the present case is one in which the rule should be applied.

The plaintiff here has the right under the grant of the Phœnix Mills to take power from a wheel in the defendants' power plant when the wheel is in operation. That is an easement, and is a privilege necessary and convenient to the complete enjoyment of the plaintiff's property, having in mind the purpose for which it was conveyed. But it is not necessary, or even convenient, to the complete enjoyment of the plaintiff's property that the defendants should construct and maintain the shaft by which the power is transmitted. That work the plaintiff can do as well as the defendants, and for the purpose of performing it may enter upon the defendants' property. The only question is: Who shall bear the expense? In that view, the covenant to construct and maintain the shaft was the personal undertaking of the original grantor and does not run with the land or create an equitable liability on the part of the defendants.

I recommend that the judgment appealed from be modified by striking out the provision that the covenants in the deeds from the Phœnix Mills to Zalinski and others to construct and maintain a shaft from the wheels in the defendants' mill to the plaintiff's building inured to the plaintiff's benefit, and also by striking out the provision that the defendants comply with such covenant, and by inserting a direction that defendants permit the plaintiff to take at and from a wheel in their mill, when the wheel is in operation, the amount of power in the judgment mentioned, and that the judgment as thus modified be affirmed, without costs in this court to either party.

CULLEN, Ch. J., WERNER, HISCOCK, CHASE, COLLIN and HOGAN, JJ., concur.

Judgment accordingly.