Wooliscroft v. Norton , 15 Wis. 198 ( 1862 )

By the Court,

Cole, J.

It appears to ns that this suit was properly brought in tbe name of tbe plaintiff. He was employed to do tbe work and make tbe repairs on behalf of tbe proprietors of tbe water power; and although there was no formal assignment of tbe account against tbe defendants for repairs, still it was in fact given to bim with directions to collect and apply tbe money to tbe payment of bis claim, so that really be is tbe party in interest. So that tbe case may be considered as resting substantially on tbe same grounds and controlled by tbe same principles of law, as though the proprietors bad done the work, and made tbe assessment for repairs, and brought their suit for a ratable compensation. If tbe action could be sustained in tbe latter case, we cannot see why it cannot now. Could then tbe proprietors of tbe water power recover contribution for tbe repairs, by virtue of tbe covenants in tbe deed, and if so, upon what principle should tbe assessment be made ? Tbe solution of this question involves a construction of tbe meaning and effect of tbe covenant in respect to repairs, which is common to tbe various deeds mentioned in tbe case, and which is in substance as follows: “ And tbe said party of tbe second part hereby covenants and agrees, in consideration of tbe premises and of one dollar to bim in band paid, that be will pay bis ratable share of tbe expenses of keeping in repair tbe aforesaid dam and raceway, in proportion to tbe number of square inches of water by bim owned or-used; and that tbe parties of tbe first part, and their representatives and assigns, shall at all times, on a failure of tbe parties of tbe second part to make such payment, have tbe right to enter upon said lot, or any other lot upon which said water may be used, and into any building erected thereon, to shut off from tbe premises where such water may be used, all of tbe water aforesaid, until such payments as aforesaid shall be made, and for that purpose, but for no other, all water-gates constructed or to be constructed, through which such water may pass, are hereby declared to be the property of the said parties of the first part, their heirs, executors and assigns.” The subject of this grant was a mill site, and a certain quantity of water to be used thereon, taken from a dam and raceway called the Janesville water power. The manifest object of the covenant was, to provide adequate means for the due preservation and security of the dam and raceway, which was the common source of power, by compelling the covenantors to pay the proprietors a pro rata share of the expense of repairs in the proportion which the water they used bears to the whole amount used from the power by the proprietors and their several grantees and lessees. This appears to be the plain intent and object of the covenant. The defendants were let into a participation of the common rights and privileges in the power, and were made subject to common duties in respect to its preservation. The grantees and assigns were to contribute towards the expenses of the dam and raceway which were for the common use, in proportion to the water power which they derive therefrom, compared with the other owners thereof. Now the question arises, Was this covenant one running with the land, or was it a personal covenant only binding upon the parties who made it ? The circuit court held that it was one running with the land conveyed and water granted, and therefore imposed a charge or burden upon the property, binding upon the defendants as assignees of the original grantees. And in this conclusion we think the circuit court was most clearly right. It certainly is not necessary, and would be very unprofitable at this time, to enter upon a discussion of the general question as to what .covenants run with the land, and impose a burden upon it in the hands of all those to whom it may subsequently come by descent or purchase, and what are only personal and impose no such charge. This whole field of discussion has been so thoroughly and completely explored and gone over by writers and courts, which have have had occasion to treat and discuss this branch, of law, that no measure of ability or degree of diligence would now suffice to enable one to throw any more light upon the subject. I could not hope to say anything which would be of the least practical benefit, and I shall not even refer to the authorities which I have examined. But I desire to acknowledge the very great assistance I have received from the valuable notes to Spencer's Case in 1 Smith’s Leading Gases. I know of no place where a more just, discriminating and comprehensive view of the cases and authorities upon this branch of law is to be found than these. See also the very able opinion of Justice Cowen, in Norman vs. Wells, 17 Wend., 136.

An examination of these authorities will clearly show that where a privity of estate exists between the parties, and the covenant is one about or affecting the land devised or granted, and tends directly and necessarily to enhance its value or render it more beneficial to those by whom it is owned or occupied, the covenant is said to be incident to the land and binding upon those in whom it subsequently vests.

Some of the authorities state the proposition much more broadly, but I have found no case which holds that a covenant which comes within all these conditions was not one real and necessarily running with the land. And within this rule there can be no doubt that the covenant in this case runs with the land. A privity of estate exists between the parties ; the covenant concerns or relates to the property granted; it tends to enhance its value ; the benefit of the repairs must directly enure to all interested in the preservation and secu^ rity of the water power which the defendants own in common with others. For it is very apparent that to enable the defendants to enjoy their property, the mill dam and raceway must be kept in good condition. If the water power is destroyed — and it is evident it would be unless the dam and raceway are preserved — the value of the defendants’ mill is depreciated, if not destroyed, too. Nor can it, with any justness, be said, that the covenant relates to matters foreign to the property granted. It is directly connected with it. The subject of the grant is a mill site, and an interest in a water power; and a covenant to contribute to the expense of preserving the water power most unquestionably relates to the thing granted. We therefore must hold that the is one connected with or annexed to the property granted, and binding upon the defendants. This, we think, is clear upon all the authorities.

The circuit court further decided, that by the covenant, the defendants were bound to pay a pro rata share of the expenses of repairs only in the proportion which their share of the water granted bears to the whole volume of available power in Rock River. But we do not thus understand the covenant. In our opinion the proper ratio of contribution is as found by the referee, that the defendants pay in the proportion which the water they own or use bears to the whole amount of water used from the power by the proprietors and their several grantees and lessees.

It appears that this was the contemporaneous construction of the covenant, and we think it the most rational and correct. The defendants are bound to pay their ratable share of the expenses of keeping the dam and raceway in repair. And what was to be the rule of contribution ? Is it probable that the parties contracting had in view the entire water power in Rock River as the measure of contribution? Or must they be presumed to have had in view only the water power which was available and in use, for adjusting the rule or standard of contribution ?

It seem to us that the parties contemplated the latter rule, and we think it more rational and reasonable to give the covenant this construction. This furnishes a definite, certain rule for ascertaining the proportion the parties should contribute towards the expenses of making the repairs, and we are disposed to adopt it.

It follows from these views that so much of the order oi the circuit court as was herein appealed from, must be reversed, and the cause remanded for further proceedings in accordance with this opinion.