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Wheeler v. Schad.

Hurd v. Curtis, 19 Pick. 462; Morse v. Aldrich, 19 Pick. 454; Plymouth v. Carver, 16 Pick. 185; Parish v. Whitney, 3 Gray, 516.

II. The covenant in this case does not run with the land or bind the assignee. Thompson v. Rose, 8 Cow. 269; Laurette v. Anderson, 6 Cow. 307; 4 Comst. 136; 4 Seld. 467.

III. The action is based solely upon the written contract, and unless it creates a lien no cause of action is found in the complaint. It does not create a lien, and none can be raised by implication. If the parties desired to create a lien, it was their duty to have expressed their intention so to do in the contract itself. . Clarke v. Southwick, 1 Curtis, 298; Taylor v. Baldwin, 10 Barb. 591.

IV. If the action could be supported on equitable principles outside of the covenant, and were so treated, then it is barred by the statute of limitations because it did not accrue within two years.

V. At the time the repairs were made, defendant was mortgagee in possession, and as such he was not liable on the covenants of the mortgagor, though running with the land. Johnson v. Sherman, 15 Cal. 292; Robinson v. Russell, 24 Cal. 473.

By the Court, LEWIS, C. J.:

On the fifth day of June, A. D. 1862, M. S. Hurd, Ferdinand Dunker and Peter Bossell, being the owners and in possession of a certain mill-site and water privilege, regularly conveyed to Charles Doscher, Charles Itgen, Charles D. McWilliams and William C. Duval a portion thereof, together with the water privilege connected therewith. The grantees entered into possession and erected a quartz mill on the premises thus conveyed. The stream was first conducted to the mill of Hurd and associates, and thence to that of their grantees. On the eleventh day of the same month, the respective parties entered into an agreement which, after reciting the necessity of constructing a dam across the river and a flume to conduct the water to their several mills, provided that the dam and flume should be constructed at their joint expense, Hurd and his associates, however, agreeing to pay five hundred dollars more than one-half the cost, and the other parties the balance; the dam

Wheeler a. Schad.

and flume, when completed, to be owned and enjoyed jointly in equal shares. It was also agreed that they should be kept in good order and repair at the joint and equal expense of the respective parties. Some time after the construction of these works, Wheeler succeeded to the interest of Bossell, and he, together with Hurd and Dunker, continued in the ownership and remained in possession of the first mill, known as the Eureka.

Doscher and his associates having mortgaged their mill some time between January and March, 1868, put the assignee of the mortgage (defendant) in possession, who continued to hold the property under the mortgage until he obtained the absolute title by virtue of foreclosure and sale under his mortgage, which occurred in October, A. D. 1868. Early in the year 1868, while the defendant was in possession under the mortgage, the dam and flume were damaged to such an extent that it became necessary to make extensive repairs upon them. Before proceeding with the work, the plaintiffs notified the defendant of their damaged condition, and requested him to unite with them in making the proper repairs. The defendant agreed that the work should proceed, and requested the plaintiff Wheeler to superintend it and “take charge of the workmen.” The repairs were made in due time, at an expense of

. three thousand five hundred dollars, one-half of which is now sought to be recovered. Judgment for defendant; plaintiffs appeal; and it is argued on their behalf: first, that the defendant is liable on the agreement entered into between the defendant's grantors and the plaintiffs ; and secondly, if not, that he is so upon his own agreement with the plaintiffs, authorizing the work to be done.

To maintain the first point, it is contended that the deed of conveyance of the mill-site to the grantors of the defendant, and the agreement referred to, should be held to be one instrument; that the stipulations of the latter should be engrafted upon the deed and held to be covenants running with the land. But nothing is clearer than that the two instruments are utterly disconnected, as completely independent of each other as they possibly could be. The deed was executed on the fifth day of June, at which time it does not appear that there was any thought of an agreement to

Wheeler v. Schad.

construct or keep in repair any dam or flume. There is no evidence that such a project was in contemplation even by any of the parties, much less that any agreement of this character was in view. It was not, in fact, executed until six days afterwards, and there can be no presumption other than that it was not contemplated until such time. Had it entered into the transaction ; had it been understood between the parties at the time of the conveyance that such contract should be executed, there might be some ground for the claim that the agreement and deed constituted but one transaction, and therefore should be construed as one instrument; but unfortunately for the appellants, there is no such showing in the case. If, in fact, the agreement did not enter into the conveyance, or was not contemplated at the time, it is of no consequence how soon afterwards it may have been executed ; a day or an hour would as completely separate the instruments and make them independent of each other, as a year. It is impossible, under the evidence in this case, to merge the deed and agreement into one instrument, and construe them as if executed simultaneously.

Unless they constituted one instrument or transaction, it cannot ✓ be claimed that the covenants of the agreement run with the land

so as to charge the grantee of the covenantor. To make a covenant run with the land, it is necessary, first, that it should relate to and concern the land; and secondly, a covenant imposing a burden on the land can only be created where there is privity of estate between the covenantor and covenantee. Whether a covenant for the benefit of land can be created where there is no privity is still questioned by some authorities; but it was held in Packenham's case, determined as early as the time of Edward III, that a stranger might covenant with the owner in such manner as to attach the benefit of a covenant to the land and have it run in favor of the assignees of the covenantee; and the rule there established has since been frequently recognized as law, although questioned by text writers, and the broad doctrine sought to be maintained that privity of estate is absolutely essential in all cases, to give one man a right of action against another upon a covenant, when there is no privity of contract.

Wheeler v. Scbad.

Whether the rule announced in Packenham's case be law or not, is not necessary to determine here, for all the courts hold that the burden of a covenant can only be imposed upon land so as to run with it when there is privity of estate between the covenanter and covenantee. It was said by Lord Kenyon, in Webb v. Russell, 3 Term, 393, that “it is not sufficient that a covenant is concerning the land, but in order to make it run with the land there must be a privity of estate between the covenanting parties.” That was the law long prior to the time of Kenyon, and has never been doubted, although perhaps cases may be found where an erroneous application of the rule has been made. To render a covenant binding on the assignee of the covenantor, it must therefore not only be meant to bind his estate as well as his person, but the relation between the parties must be such as to render the intention effectual—that is, there must be privity of estate between the covenanting parties. To constitute such relation, they must both have an interest in the land sought to be charged by the covenant. It is said their position must be such as would formerly have given rise to the relation of tenure: A covenant real is, and can only be, an incident to land. It cannot pass independent of it. It adheres to the land, is maintained by it, is in fact a legal parasite, created out of and deriving life from the land to which it adheres. It follows, that the person in whose favor a covenant is made must have an interest in the land charged with it; for he can only get the covenant through, and as an incident to, the land to which it is attached. Says Coke, 385, (a): “A seized of the Mannor of D, whereof a Chappell was parcell, a prior with the assent of his covent covenanteth by deed indented with A and his heires to celebrate divine service in his said Chappell weekely, for the lord of the said Mannor and his servants, &c. In this case the assignees shall have an action of covenant, albeit they are not named, for that the remedie by covenant doth runne with the land, to give damages to the partie grieved, and was in a manner appurtenant to the Mannor. But if the covenant had beene with a stranger to celebrate divine service in the Chappell of A, and his heires, there the assignee shall not have an action of covenant; for the covenant cannot be annexed to the Mannor because the

Wheeler v. Schad.

covenantee was not seized of the Mannor." So it is manifest this interest in the land sought to be charged with the covenant must exist at the time the covenant is made. It needs no argument to show that an interest acquired afterwards would not avail the coveenantee.

Did the plaintiffs in this case have any estate in the land owned by the defendant at the time this agreement was entered into? It is not even claimed they had. Nor did the agreement itself create any

such interest. There is no attempt in it to convey any estate to them, nor a word of grant in the whole instrument. It is a mere contract for the erection of a dam, which does not appear to be on the premises either of the plaintiffs or defendant, and a flume to conduct water to their respective mills, and to maintain them in good order. Suppose the grantors of the defendant had entered into an agreement binding themselves to build the dam and flume for the benefit of the plaintiffs, for a stipulated sum of money; will it be claimed that such an agreement could be held a covenant running with land owned by such grantors, and which was entirely distinct from that upon which the work was to be performed? We apprehend not. Where the distinction, as to its capacity to run with the land, between such a covenant and that entered into here, where instead of compensation in money the defendant’s grantors were to receive a benefit from the improvement itself ?

As the grantors had no estate in the land owned by the defendant when the agreement was entered into, but were mere strangers to it, the case comes directly within the rule announced by Lord Coke, and very uniformly followed both by the English and American courts since his time. Webb v. Russell, 3 Term, and Stokes v. Russell, Id.; Hurd v. Curtis, 19 Pick. 459; Plymouth v. Carver, 16 Pick. 183. See also an elaborate review of the question in 1 Smith's Leading Cases, note to Spencer's Case; 2 Washburn on Real Property, 16 Pick. 183.

The case of Plymouth v. Carver was of this character. A A town granted certain land on condition that the grantees should become bound by bond to maintain a portion of the highway passing by such land, but did not reserve a right of entry in case the

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