Brusse, his heirs, executors, administrators, or assigns, the one-half part of the original cost or expense of said wall, for material and construction, to be arrived at either by actual statement of the same or by appraisal of competent persons. And until such cost or expense is actually paid to the said party of the second part, his legal representatives, heirs, or assigns, the said party of the first part shall not make any attachment to said wall, or use the same in any manner or for any purpose, as a party wall or otherwise; but, when such payment is duly made by said party of the first part, his legal representatives, heirs, or assigns, then the said wall, and the whole thereof, shall be and become the joint property of the owners of the buildings which it supports and divides. 'Further, the parties hereto, each to the other, hereby agree that the aforesaid agreement and undertaking shall be perpetual, and shall create covenants running with the lands described above, and shall be and remain forever binding upon said parties, and their heirs and assigns, forever." This case depends upon the construction to be given to this contract. The owner of lot 3 has recently used the party wall, and is ready to pay for so doing. Mr. Noble claims he is entitled to the fund, for the reason that he has an assignment of the contract in relation to the wall. Mrs. Kendall claims she is entitled to it, because by mesne conveyances she has become the owner of lot 4. The court below found in favor of Mrs. Kendall. From that decree Mr. Noble appeals. His solicitors say in their brief that there is only one point in the case; that there is no statute of this State, nor reported decision of this court, on this point; that "The rule of law upon which we rely is as follows: An agreement for a party wall to be built by one party, half the cost to be paid to him by the other party whenever he should desire to use it, is personal; and such payment cannot be enforced by a grantee of the party who built the wall, though the agreement also provided that it should be construed as a covenant running with the land." They cite in support of that proposition Sebald v. Mulholland, 155 N. Y. 455; Voight v. Wallace, 179 Pa. St. 520; Weld v. Nichols, 17 Pick. 538; Joy v. Savings Bank, 115 Mass. 60; Gibson v. Holden, 115 Ill. 199 (56 Am. Rep. 146); Behrens v. Hoxie, 26 Ill. App. 417; Bloch v. Isham, 28 Ind. 37 (92 Am. Dec. 287); 1 Jones, Real Prop. § 800; Parsons v. Loan Ass'n, 44 W. Va. 335; and other cases. It is the claim of the solicitors for Mrs. Kendall "1. That the covenant to pay and to receive the money paid is, under the agreement, a covenant running with the land, and passes to the grantees by deed of the covenantors. "2. That, under this contract, the title of the whole wall was vested in Mrs. Kendall until payment by the grantees of Kantenberger, and, when such payment is made to Mrs. Kendall, there is, by force of the covenant, a constructive sale by her of the undivided half of the whole wall, which then becomes the joint property of the owners of the buildings which it supports and divides." To the last-named proposition they cite Gibson v. Holden, 115 Ill. 207 (56 Am. Rep. 146). To the first proposition they cite Mott v. Oppenheimer, 135 N. Y. 312 (17 L. R. A. 409); Weyman's Ex'rs v. Ringold, 1 Bradf. Sur. 40; King v. Wight, 155 Mass. 444; Richardson v. Tobey, 121 Mass. 457 (23 Am. Rep. 283); Maine v. Cumston, 98 Mass. 317; Tomblin v. Fish, 18 Ill. App. 439; Roche v. Ullman, 104 Ill. 11; National Life Ins. Co. v. Lee, (Minn.) 77 N. W. 794; and many other cases. It is insisted by the solicitors for Mrs. Kendall that a distinction is to be made between the cases where the covenant to reimburse is personal to the party who built the wall, and those where the covenant to reimburse is by one party, his heirs, executors, administrators, or assigns, to the other party, his heirs, executors, administrators, or assigns, and that this contract belongs to the last-named class. It is urged that, when this distinction is borne in mind, the conflict between the authorities is more apparent than real. It is difficult to harmonize all the authorities, but we think they may fairly be divided into two classes,-one class holding that the covenant for payment is personal, and does not run with the land, when it is apparent from the contract that the payment should be made to the party building the wall, and there are no words indicating that the right to receive payment shall pass to his assigns; the second class holding that the covenant runs with the land, and passes to the purchaser or assignee, when the contract evinces such intention, and where the language used is between the parties and their assigns, and the contract declares the covenant shall be perpetual, and binding upon the parties and their heirs and assigns. 1 Jones, Real Prop. § 799, reads as follows: "A party-wall agreement in the usual form between adjoining landowners runs with the land. Thus, an agreement under seal between adjoining lot-owners, for themselves, their heirs and assigns, acknowledged and recorded, and providing that either party may build a party wall, one-half on the land of each, and that, whenever the other party uses the wall so built, he or she shall pay one-half the cost of its erection, is a covenant running with each lot. Such an agreement creates an easement of use and support in favor of each lot-owner and his successors in title in the half of the wall which stood on the other lot, and in the land under the same. Each lot of land be comes entitled, therefore, to the benefits, and subject to the burdens, arising from the covenants contained in the agreement, and relating to the erection and maintenance of the wall. They inhere in and belong to it.” In this case Brusse was given the right, at his own cost and expense, to erect one-half the wall on lot 3. When the wall was erected, the right to have the wall remain there could not be withdrawn, and, though it was on Mr. Kantenberger's land, the latter, his heirs, executors, and assigns, could none of them use it until he or they had paid Brusse, his heirs, executors, and assigns, one-half of the original cost of the whole wall. This they had a right to do whenever they desired to make such use of the wall, and that right could be enforced when the money was paid, even though not asserted until long after Brusse was dead. The contract then provided that, when the money was so paid, the said wall, and the whole thereof, should become the joint property of the owners of the buildings which it 120 550 124 682 120 550 879NW 814 129 658 120 550 879NW 814 133 611 120 550 f1481 75 148 76 148 77 f1481 79 1482 92 e148 2 98 f148 99 148 101 j148 124 j148 127 j148 128 j148 130 j148 131 j148 132 ATTORNEY GENERAL, ex rel. BARBOUR, v. PINGREE. - 1. MUNICIPAL CORPORATIONS POWER TO OPERATE STREET RAILWAYS-CONSTITUTIONAL LIMITATIONS-INTERNAL IMPROVEMENTS. Act No. 338, Local Acts 1899, purporting to empower a commis. sion, to be appointed by the common council of the city of Detroit, to acquire for the city, and maintain and operate in its behalf, the system of street railways which lies partly within and partly without the corporate limits, and comprises over 140 miles of track, is void under article 14, § 9, of the Constitution, prohibiting the State from being a party to or interested in any work of internal improvement, the opera tions contemplated by the act being of sufficient magnitude to constitute internal improvements, and the legislature being powerless to authorize the municipality to do what the State could not itself do. 2. SAME-OWNERSHIP OF TRACKS ENTIRELY WITHIN CORPORATE LIMITS. Whether municipal ownership of tracks entirely within the corporate limits might be authorized under the Constitution, -quære. Quo warranto by Horace M. Oren, attorney general, on the relation of George H. Barbour and others, against Hazen S. Pingree, Elliott G. Stevenson, and Carl E. Schmidt, to determine the validity of the act creating the Detroit Street-Railway Commission. Submitted May 5, 1899. Judgment of ouster entered July 5, 1899. Elisha A. Fraser and Jasper C. Gates (Charles A. Kent, Hinton E. Spalding, Otto Kirchner, and Elbridge F. Bacon, of counsel), for relators. John J. Speed (Henry M. Duffield, Fred A. Baker, John C. Donnelly, and Charles D. Joslyn, of counsel), for respondents. MOORE, J. This is a proceeding brought to test the validity of an act approved March 24, 1899, entitled "An act to authorize the city of Detroit to construct, acquire, maintain, and operate street railways, and to construct extensions thereof." Act No. 338, Local Acts 1899. The provisions of the act material to this discussion are as follows: "The people of the State of Michigan enact: "SECTION 1. That the common council of the city of Detroit be, and is hereby, authorized and empowered to appoint by resolution, at any time within the next 20 years, three persons, electors and freeholders of said city, who shall constitute a board of commissioners, to be known as the Detroit Street-Railway Commission. One of said commissioners shall be appointed for the term of two years, one for a term of four years, and one for a term of six years. Their successors shall be persons of like qualifications, and shall be appointed by the common council on the nomination of the mayor of said city, at the expiration of said term, for the term of six years. Vacancies shall be filled by appointment by the mayor, and persons so appointed shall hold office for the unexpired term. All members of said commission shall hold their offices, respectively, until their successors are appointed and qualified. Any person otherwise eligible may be appointed as aforesaid, notwithstanding he may hold other office, excepting that of alderman." "SEC. 5. The said commission may in their discretion, and upon such terms and conditions as they may deem advisable for the interests of said city, acquire, by deed, lease, or other satisfactory conveyance from the company or companies owning the same to said city, any street railway or railways existing at the time of the passage of this act, and lying wholly within or partly within and |