Northern Ohio Traction & Light Co. v. Quaker City Oats Co.

ALLEN, J.

1. Works constructed, on land for the use of water, such as ditches, canals, flumes, mill races, or reservoirs, are land. The title to a mill race constitutes an estate in land.

2. A grant to the grantees and “their respective successors and assigns forever” of “the right and easement to enter upon and occupy the land and estates of the grantors in the Cascade mill race” between certain points in the grant described, and “to construct and maintain poles, wires and other structures thereon proper and necessary for and to conduct and transmit electrical currents therewith, and to construct, maintain and operate a railroad thereon with electricity or other motive power, with all its necessary tracks, structures and appurtenances”, when executed by parties who have title to the mill race by prescription, where the grant is unlimited in the nature and character of the occupancy in question, conveys an interest in land an not merely an easement.

3. Where an estate in a mill race is granted with the express disclaimer of warranty of title, and one of the covenants which is. part of the consideration for the grant is that the grantees will maintain the flow of water upon the mill race, the grantees cannot by abandoning the estate in land thus conveyed without the consent of the grantors escape the obligation of their affirmative covenants.

4. When the grantees of a mill race take possession of and use the same for a number of years, and still retain and enjoy actual possession of part of such mill race and of other substantial benefits derived from the conveyance of parts of the said race, they cannot escape the obligation of the covenants entered into by them as part of the consideration for the conveyance.

5. When a grantor conveys all of his right, title and interest in real property to the grantees “forever”, unless otherwise limited in the conveyance the covenants running with the land which constitute part of the consideration for the conveyance are perpetual and irrevocable.

Judgment affirmed.

Marshall, CJ., Day, Kinkade and Robinson, JJ., concur.