THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Harold E. Ives .^-^ //-// y^ <:_ .,^-< y --*^< /// C^ y^ 7:::^ -"rf,^ cXh^ -r 3> . SjC^/c^^a (^CL,.^^ '^Ct' J^ Jc^..-Lt 4-<^-^ 'Ul {>->' f ^ ^'C ^rA^ ^^.^^ /. .^ jL^O~^\k. /VC^. iT 7^ . >7/ c^. ^iJC-->-^Oe-' ^ /7 , 0^ v^..^^/i; >..-, f D THE AMERICAN CASEBOOK SERIES The first of the American Casebook Series, Mikell's Cases on Crim- inal Law, issued in December, 1908, contained in its preface an able argument by Mr. James Brown Scott, the General Editor of the Se- ries, in favor of the case method of law teaching. Until 1915 this preface appeared in each of the volumes published in the series. But the teachers of law have moved onward, and the argument that was necessary in 1908 has now become needless. That such is the case becomes strikingly manifest to one examining three im- portant documents that fittingly mark the progress of legal education in America. In 1893 the United States Bureau of Education pub- lished a report on Legal Education prepared by the American Bar As- sociation's Committee on Legal Education, and manifestly the work of that Committee's accomplished chairman, William G. Hammond, in which the three methods of teaching law then in vogue — that is, by lectures, by text-book, and by selected cases — were described and com- mented upon, but without indication of preference. The next report of the Bureau of Education dealing with legal education, published in 1914, contains these unequivocal statements: "To-day the case method forms the principal, if not the exclusive, method of teaching in nearly all of the stronger law schools of the country. Lectures on special subjects are of course still delivered in all law schools, and this doubtless always will be the case. But for staple instruction in the important branches of common law the case has proved itself as the best available material for use practically ev- erywhere. * * * The case method is to-day the principal method of instruction in the great majority of the schools of this country." But the most striking evidence of the present stage of development of legal instruction in American Law Schools is to be found in the special report, made by Professor Redlich to the Carnegie Foundation for the Advancement of Teaching, on "The Case Method in American Law Schools." Professor Redlich. of the Faculty of Law in the Uni- versity of Vienna, was brought to this country to make a special study of methods of legal instruction in the United States from the stand- point of one free from those prejudices necessarily engendered in American teachers through their relation to the struggle for supremacy so long, and at one time so vehemently, waged among the rival sys- tems. From this masterly report, so replete with brilliant, analysis and discriminating comment, the following brief extracts are taken. Speaking of the text-book method Professor Redlich says : "The principles are laid down in the text-book and in the profes- sor's lectures, ready made and neatly rounded, the predigested essence (V) Vi PREFACE of many judicial decisions. The pupil has simply to accept them and to inscribe them so far as possible in his memory. In this way the scientific element of instruction is apparently excluded from the very first. Even though the representatives of this instruction certainly do regard law as a science — that is to say, as a system of thought, a group- ing of concepts to be satisfactorily explained by historical research and logical deduction — they are not willing to teach this science, but only its results. The inevitable danger which appears to accompany this method of teaching is that of developing a mechanical, superficial in- struction in abstract maxims, instead of a genuine intellectual probing of the subject-matter of the law, fulfilling the requirements of a science." Turning to the case method Professor Redlich comments as follows : "It emphasizes the scientific character of legal thought; it goes now a step further, however, and demands that law, just because it is a science, must also be taught scientifically. From this point of view it very properly rejects the elementary school type of existing legal edu- cation as inadequate to develop the specific legal mode of thinking, as inadequate to make the basis, the logical foundation, of the separate legal principles really intelligible to the students. Consequently, as the method was developed, it laid the main emphasis upon precisely that aspect of the training which the older text-book school entirely neg- lected — the training of the student in intellectual independence, in in- dividual thinking, in digging out the principles through penetrating analysis of the material found within separate cases ; material which contains, all mixed in with one another, both the facts, as life creates them, which generate the law, and at the same time rules of the law itself, component parts of the general system. In the fact that, as has been said before, it has actually accomplished" this purpose, lies the great success of the case method. For it really teaches the pupil to think in the way that any practical lawyer — whether dealing with writ- ten or with unwritten law — ought to and has to think. It prepares the student in precisely the way which, in a country of case law, leads to full powers of legal understanding and legal acumen ; that is to say, by making the law pupil familiar with the law through incessant prac- tice in the analysis of law cases, where the concepts, principles, and rules of Anglo-American law are recorded, not as dry abstractions, but as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating, social and economic life of man. Thus in the modern American law school professional practice is preceded by a genuine course of study, the methods of which are perfectly adapted to the nature of the com- mon law." The general purpose and scope of this series were clearly stated in the original announcement: "The General Editor takes pleasure in announcing a series of schol- arly casebooks, prepared with special reference to the needs and limi- PREFACE Vll tations of the classroom, on the fundamental subjects of legal educa- tion, which, through a judicious rearrangement of emphasis, shall pro- vide adequate training combined with a thorough knowledge of the general principles of the subject. The collection will develop the law historically and scientifically; English cases will give the origin and development of the law in England; American cases will trace its ex- pansion and modification in America ; notes and annotations will sug- gest phases omitted in the printed case. Cumulative references will be avoided, for the footnote may not hope to rival the digest. The law will thus be presented as an organic growth, and the necessary con- nection between the past and the present will be obvious. ''The importance and difficulty of the subject as well as the time that can properly be devoted to it will be carefully considered so that each book may be completed within the time allotted to the particular sub- ject. * * * If it be granted that all, or nearly all, the studies re- quired for admission to the bar should be studied in course by every student — and the soundness oi this contention can hardly be seriously doubted — it follows necessarily that the preparation and publication of collections of cases exactly adapted to the purpose woul,d be a genuine and by no means unimportant service to the cause of legal education. And this result can best be obtained by the preparation of a systematic series of casebooks constructed upon a uniform plan under the super- vision of an editor in chief. * * * "The preparation of the casebooks has been intrusted to experienced and well-known teachers of the various subjects included, so that the experience of the classroom and the needs of the students will furnish a sound basis of selection." Since this announcement of the Series was first made there have been published books on the following subjects: Administrative Lazv. By Ernst Freund, Professor of Law in the University of Chicago. Agency. By Edwin C. Goddard, Professor of Law in the University of Michigan. Bills and Notes. Second Edition. By Howard L. Smiih, Professor of Law in the University of Wisconsin, and Underbill Moore, Pro- fessor of Law in Columbia University. Carriers. By Frederick Green, Professor of Law in the University of Illinois. Conflict of Lazvs. By Ernest G. Lorenzen, Professor of Law in Yale University. Constitutional Law. By James Parker Hall, Dean of the Faculty of Law in the University of Chicago. Contracts. By Arthur L- Corbin, Professor of Law in Yale University. VIU PREFACE Corporations. By Harry S. Richards, Dean of the Faculty of Law in the University of Wisconsin. Criminal Law. By William E. Mikell, Dean of the Faculty of Law in the University of Pennsylvania. Criminal Procedure. By William E. Mikell, Dean of the Faculty of Law in the University of Pennsylvania. Damages. By Floyd R. Mechem, Professor of Law in the University of Chicago, and Barry Gilbert, of the Chicago Bar. Equity. By George H. Boke, formerly Professor of Law in the Uni- versity of California. Equity. By Walter Wheeler Cook, Professor of Law in Yale Uni- versity. Volume L Volumes 2 and 3 in preparation. Evidence. By Edward W. Hinton, Professor of Law in the Universi- ty of Chicago. Insurance. By William R. Vance, Professor of Law in Yale Uni- versity. International Law. By James Brown Scott, Lecturer on International Law and the Foreign Relations of the United States in the School of Foreign Service, Georgetown University. Legal Ethics, Cases and Other Authorities on. By George P. Costigan, Jr., Professor of Law in the University of California. Partnership. By Eugene A. Gilmore, Professor of Law in the Uni- versity of Wisconsin. Persons (including Marriage and Divorce). By Albert M. Kales, late of the Chicago Bar, and Chester G. Vernier, Professor of Law in Stanford University. Pleading (Common Law). By Clarke B. Whittier, Professor of Law in Stanford University, and Edmund M. Morgan, Professor, of Law in Yale University. Property (Future Interests). By Albert M. Kales, late of the Chicago Bar. Property (Personal). By Harry A. Bigelow, Professor of Law in the University of Chicago. Property (Rights in Land). By Harry A. Bigelow, Professor of Law in the University of Chicago. Property (Titles to Real Property). By Ralph W. Aigler, Professor of Law in the University of Michigan, Property (Wills, Descent, and Administration) . By George P. Costi- gan, Jr., Professor of Law in the University of California. Quasi Contracts. By Edward S. Thurston, Professor of Law in Yale University. Sales. By Frederic C. Woodward, Professor of Law in the University of Chicago. PREFACB IX Suretyship. By Crawford D. Hening, formerly Professor of Law in the University of Pennsylvania. Torts. By Charles M. Hepburn, Dean of the Faculty of Law in the University of Indiana. Trade Regulation. By Herman OHphant, Professor of Law in Colum- bia University. Trjtsts. By Thaddeus D, Kenneson, Professor of Law in the Univer- sity of New York. It is earnestly hoped and believed that the books thus far published in this series, with the sincere purpose of furthering scientific training in the law, have not been without their influence in bringing about a fuller understanding and a wider use of the case method. William R. Vance, General Editor. t T> •i^J JiS^ INTRODUCTION TO THE LAW OF REAL PROPERTY BY HARRY A. BIGELOW PROFESSOR OF LAW IN THE UNIVERSITY OF CHICAGO AMERICAN CASEBOOK SERIES WILLIAM R.VANCE GENERAL EDITOR ST. PAUL WEST PUBLISHING COMPANY 1919 COPTBIGHT, 1919 BT WEST PUBLISHING COMPANY (Big. Int.) TO THE SILENT PARTNER (ili) AUTHOR'S PREFATORY NOTE This treatise has been written with the thought constantly in mind that it is to serve as the medium by which students, either wholly ig- norant of law or at best with a slight knowledge of it, are to begin the study of one of its most difficult branches. Such students re- quire above all else simplicity of statement and an easily understand- able outline, that will furnish a background against which the instruc- tor can fill in details and refinements as tlie capacity of the class per- mits. Consequently the doctrines of the older law have been stated simply, and as far as possible in nontechnical language. The extent to which they are to be expanded is a matter that the instructor will settle for himself. The treatise is only an introduction to the law of real property in another sense, viz., it stops substantially with the 18th century law. No attempt has been made to do more than hint at the modern develop- ments of the law of property. To go further would be to encroach upon the function of the various volumes that make up the series to which this is a preface. Harry A. Bigki,ow. The Univebsity of Chicago Law School, July 17, 1919. (iv) TABLE OF CONTENTS CHAPTER I The FteuDAL System Section Page 1. Introduction 1 2. Military Tenure. ^ * 4 3. Socage Tenure Qla,'\\v;^^^',<^). 8 4. Frankalmoyn Tenure.' . . . . KiJ<.^* . ; part of our law. When the charters were granted by the British crown for the various settlements in the United States, most of them contained pro- visions 'that the land should be held in socage tenure. Upon the Revo- lution, it would seem that the various state governments succeeded to the r ights of the sovereign, and that consequently there would be a tenure relation between the owner of the land and the sovereign, in the character of the state. In a considerable number of the states, the matter has been settled, either by a constitutional provision or by leg- islative enactment. Closely allied with this question is the question as to whether or not Quia Emptores is in force in the United States. Professor Gray ^° states the matter thus: "In this condition [i. e, with tenure no longer obtaining] are at xo The Rule against Perpetuities (3d Kd.) p. 23. Big. Int. — 2 18 THE TEDDAL SYSTEM (Ch. 1 least Connecticut, New York, Maryland, Virginia, Ohio, Wisconsin, West Virginia, Kentucky, Minnesota, and Arkansas. * * * j^ all of the United States, with the exception of South Carolina and perhaps Pennsylvania, land, if held, at all, can be held of none but the state ; for in all the States, with the two exceptions, either there is no tenure, or, if there is tenure, the statute of Quia Emptores is in force." ^^ 11 On tenure in the United States see Gray, op. cit. §§ 22-28; 3 Kent, Com- mentaries, pp. 509-514. Sec. 2) ESTATES Ift CHAPTER II ESTATES SECTION 1.— INTRODUCTION Up to the present time we have be^n considering the English law so far as it related to the framework or skeleton upon which the gen- eral system of landholding was constructed. We now take-up the ques- tion as to the extent of the interest that might be had by any particu- lar individual in a given piece of land, or, as it is technically called, the extent of_his estate in the land. , The English law divides estates in land into freehold, and nonfree- hold^ This distinction is historical rather than logical, and the reason for it will be pointed out later. The freehold estates are the fee simple, the^eejajl^ other qualified, fees, and the life estate. The nonfreehold _estates are the estate for years, from year to year, at will, and at suf- ferance. SECTION 2.— FEES SIMPLE Without an attempt at an exact definition, it may be said that a per- son who holds land in fee simple possesses the totality of rights that a man may have with respect to a piece of land. Among these rights he has the privileges of doing as he sees fit with his land and the right to be protected in the exercise of these various privileges ; the limit of these rights and privileges being the point where the exercise of them is regarded as being socially unjustifiable*. Just where the law draws the line as to the privileges that a man may exercise with respect to the soil is a question of policy and expediency that need not at present be considered. The owner in fee simple further has the fullest powers of disposition over his land that the law recognizes, and complete im- munity from any control by a third person, subject to the legislative and constitutional powers of the state. While the exact nature of the right that the tenant had in his land immediately after the Norman Conquest is not entirely clear, it is probab le that the land was given to him by his overlord only for his life. The personal relation and confidence that existed between the lord~and the tenant would make this likely and this conclusion is corrob- 20 ESTATES (Ch. 2 orated by the existence of some of the feudal incidents. If, however, the heir of the tenant was a person in whom the lord could repose con- fidence, it would be natural that upon the death of the original tenant the land should be continued by the lord in the possession of the heir. Where the tenure was agricultural, and lacking the personal element that existed in military tenure, such -would be even more hkely to be the case. As the practice became confirmed, and partly as tending to confirm it, the custom gradually grew up of indicating in the gift of the land to the first tenant that it should go on his death to his heirs. It is at this point that we see the beginnings of an interesting and technical. .doctrine of our laws. If the lord by such a conveyance gave the land expressly to B. and his heirs, and if B. during his life aliened the land to C, the natural construction to be put upon the terms of the gift would be that B. had an interest in the land only for liis pwn life. This interest he might conceivably enough transfer to C, but C.'s interest could be no larger than B.'s, and consequently, after the death of B., B.'s heirs would be able to regain the land from C. Such was appar- ently the earlier law. Later, however (that is, by the 13th century), we find the rule of law to be pretty definitely established otherwise. This result is expressed in a doctrine and formula of a highly technical na- ture, but of so much importance in the law of real property as to re- quire some consideration. As has already been said, it would seem that the natural construc- tion of the phrase "to B. and his heirs" would be that the subject-mat- ter of the conveyance was given to B. for his life and after his death to his heir; in other words, that the heir would take the land after B.'s death, not as taking something coming to him from B., but be- cause he was the person intended by the original lord to be the next one to have the land. To state this idea in technical language, it is neces- sary to call attention to the precise meaning of two legal terms, "de- scent" and "purchase." A person is said to take land by descent when ^Jitle to the land passes to him by operation of law ; he is said to take by purchase when the title passes to him by act of the partfes. • TSTow, to state technically the natural construction to be put upon the phrase under consideration, it would seem that the heir after the death of B. would take the property by purchase ; that is, because he is indicated by A. as the person to take it. As has already been said, however, by the 13th century, the doctrine seems to have been definitely established that, if B. conveyed the estate during his life, the heir would get no interest in it after B.'s death ; that is, the function of the phrase "to his heirs" was construed as being, not to indicate the person who would take the land after B.'s death, but to mark out or delimit the size of the estate that B. had, as the largest possible estate that could be given. In other words, to put it technically, the phrase "to his heirs" was treated as a phrase of limitation, and not of purchase. Once this construction of the phrase in question had been definitely Sec. 2) FEKS SIMPLE 21 established as a part of the law of fees simple, it led to consequences far-reaching and important. Suppose the terms of the gift, instead of being to B. and his heirs, are to B. for life and on B.'s death to B.'s heirs. This limitation, though longer, in fact says nothing more than would the shorter phrase already considered, if the shorter phrase were to receive its natural construction. Since the two phrases were in nat- ural construction identical, and since it had been definitely established with respect to the shorter phrase that the phrase "to his heirs" was a jphrase^ of limitation, and not of purchase,, the same reasoning was ap- plied to the longer phrase ; that is, it was construed to vest a fee simple in B. Of course, if B. died without having aliened the land, it would go to B.'s heirs ; but it would go to them by descent, and not by pur- chase. The doctrine just outlined was first established by a decision in 1324,^ and illustrates the simplest form of the Ru le in Shelley's Case, so called after a decision in Lord Coke's time in which the doc- trine was reasserted.^ The rule may be formulated thus : Where an estate is given to the ancestor for life, and by the same instrument an immediate estate is given to his heir in fee, the result is to give the ancestor a fee simple. The artificial character of this reasoning is clear,- and of course the application of it will frequently operate to defeat the intention of the person making the conveyance. At the same time the idea that is worked out in it seems to represent a fundamental princ iple, of the policy of the English law with respect to ownership of la nd, namely, that the owner of it should be able freely to alienate rt The struggle in English law between the two conflicting princi- ples of freedom of alienation and restriction of alienation still con- tinues. One other consequence that should be noticed in respect to the doc- trine which we have been considering is this : Since a conveyance to B. and his heirs gives B. a fee simple, the converse is also true. With a few rare exceptions, the only method under English law whereby an estate in fee simple could be created was by a conveyance in terms to B. and "his heirs." No other phrase would take the place of this magic formula." 1 Y. B. 18 Edw. II, 577. See 7 Man. & G. 941, note. It has been .suggested (see Tiedeman, Real Prop. [2d Ed.] § 433) that the origin of the doctrine is to be accounted for thus: In the 14th century it would not have been pos- sible to regard the phrase "to the heirs" as creating any legal interest in them, for the reason that since the heirs of the grantee could not be known until his death, this would be a contingent remainder, (see post, p. 39). and in the 14th century such a remainder was not recognized as a legally pos- sible interest. Consequently, to give any effect at all to these words of the grantor, it was necessary to put upon them the construction that was adopted. - Shelley's Case, 1 Co. 93a (1581). 3 On the fee simple see Litt. §§ 1, 2; 2 Bl. op. eit. 104-109; 2 Poll. & Mait. op. cit. pp. 13-16; Williams, op. cit. ch. II; Leake, Digest of the Law of Property in Land (2d Ed.) pp. 22-24. ^.^ 22 ESTATES (Ch. 2 SECTION 3.— FEES CONDITIONAL AND FEES TAIL Another very old form of limiting the size of the estate which was given to the tenant was this : "To B. and the heirs of his body." After the courts had held that the tenant in fee simple, had complete powers of alienation and had adopted the construction of the phrase "to B. and his heirs" as stated in the preceding section, it might still be possibl-e to limit the freedom of alienation of B. and to keep the estate in a definite line of descent by using the narrower form of limitation above given. The same liberalizing tendencies, however, on the part of the courts, were at work also in regard to this narrower limitation. By the middle of the 13th century the construction that was put upon the phrase was that the conveyance was to B. upon condition that he should have heirs to his body. Once the condition was satisfied by the birth of an heir, B. then had the power to create a fee simple in a third person by con- veying the estate to him. This construction, of course, defeated the aim of the overlord to keep the estate in a particular line of descent. It was to check this tendency, and force the retention of an estate given to a man and the heirs of his body in the line of descent marked out by the terms of the gift, that there was passed in the year 1285 the statute De Donis Conditionalibus. The statute is as follows : St. 13 Edw. I— St. of Westm. II (1285) c. 1, De Donis Condition- alibus : "First, concerning lands that many times are given upon condition, that is, to wit, where any giveth his land to any man and his wife, and to the heirs begotten of the bodies of the same man and his wife, with such condition expressed that if the same man and his wife die without heir of their bodies between them begotten, the land so given shall revert to the giver or his heir ; in case also where one giveth lands in free marriage, which gift hath a condition annexed, though it be not expressed in the deed of gift, which is this, that if the husband and wife die without heirs of their bodies begotten, the land so given shall revert to the giver or his heir; in case also where one giveth land to another and the heirs of his body issuing, it seemed very hard and yet seemeth to the givers and their heirs, that their will being expressed in the gift was not heretofore nor yet observed. In all the cases aforesaid after issue begotten and born between them, to whom the lands were given under such condition, heretofore such feoffees had power to aliene the land so given, and to disinherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift: and further, when the issue of such feoffee is failing, the land so given ought to return to the giver or his heir by form of gift expressed in the deed, though the issue, if any were, had Sec. 3) FEES CONDITIONAL AND FEES TAIL 23 died; yet by the deed and feoffment of them to whom land was so given upon condition, the donors have heretofore been barred of their reversion of the same tenements which was directly repugTiant to the form of the gift : wherefore our lord the king, perceiving how neces- sary and expedient it should be to provide remedy in the 'aforesaid cas- es, hath ordained, that the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that t"Eey to whom the land was given under such condition shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail either by reason that there is no issue at all, or if any issue be, it fail by death, the heir of such issue failing. Neidier shall the second husband of any such woman from henceforth have anything in the land so given upon condition after the death of his wife, by the land of England, nor the issue of the second husband and wife shall succeed in the inheritance, but immediately after the death of the husband and wife, to whom the land was so given, it shall come to their issue or return unto the giver or his heir as before is said. * * * /^^d it is to wit that this statute shall hold place touching alienation of land contrary to the form of gift here- after to be made, and shall not extend to gifts made before. And if a fine be levied hereafter upon such lands it shall be void in the law, nei- ther shall the heirs or such as the reversion belongeth unto, though they be of full age, within England, and out of prison, need to make their claim." The language of the statute requires no extended comment. The re- sult of it was that the old common-law conditional fee could no longer be created and in the place of it there came into being, as a result of the statute, the fees_tail, from the old French, "talliare," meaning to ^T^ cut or limit. Estates tail are classified as general or special tail. An estate tail general is to^A. and the heirs of his body. An estate tail _s2ecial may be to A. and the heirs male of his body, or to A. and the heirs fe male of his body, or to A. and the heirs of his body by a par- ticujar wife. With regard to any of the estates tail the property will continue in the line of the descent indicated by the terms of the gift so long as that line continues. If the line runs out, the property will then pass to the next person legally entitled to it according to the terms of the original grant, such person being known as a remainderman, or if there is no legal estate in remainder the property will then return to the original creator of the estate, or to his heirs. Estates in remainder and cognate matters will be considered in detail subsequently. The policy of thus restraining alienation in estates of this character, as established by De Donis, continued to be effective for about 200 years. There were, however, numerous objections to it, and these ob- jections constantly grew in force. It was unsafe for a person to buy land, or to take a long-term lease of it, since there was always the pos- ^^ 24 ESTATES (Ch. 2 sibility that the land was entailed, and, if such was the case, the pur- chaser, regardless of his good faith, would be ousted at the end of the life of the tenant from whom he purchased. The king also objected to this sort of estate, for the reason that the treason of a tenant in tail would result merely in forfeiting his life interest in the premises. The result of these various objections against the estate tail was that in 1472 (12 Edw. IV) the judges sanctioned a method of evading the effect of the statute, by means of fictitious litigation. The fictional character of the whole proceeding is so obvious that it is clear that there must have been strong feeling of policy to have induced the judges to permit it. The case in which this possibility was first recog- nized is Taltarum's Case.* The common recovery was a very old form of action, used, as its name would indicate, to recover the possession of land. The steps by which it was allowed to bar the entail were these : The principle had already become established that a tenant in tail could convey a fee simple and so bar his heirs, providing he left assets equal in value to the land. This was then enlarged into the proposition that he could so convey if he left for his heirs a judgment for the value of the land so conveyed. These principles were combined in the common recovery in this fashion. If B., the tenant in tail, wished to convey the land to C. in fee, C. would bring by agreement a common recovery against B. B. would allege that he had derived title in the land from X., and would ask that X. be called in to defend the case. X., upon being called in, would, in accordance with the agreement between him- self and B., admit that he had conveyed the land to B., but that he had no defense to C.'s action. Judgment would thereupon be given that C. should recover the land in accordance with the terms of his allegation that he was entitled to it in fee simple. B. and B.'s heirs would be given what in legal theory was an adequate recompense in the shape of a judgment against X. for other lands of equal value in respect of which A.'s interest as reversioner would also theoretically attach. Since, however, X. was always chosen for the part that he played, for the very reason that he was entirely irresponsible financially, the judgment against him, although adequate on the face of it, was, as was intended from the beginning, in fact worthless, and the net result of the trans- action was that C. obtained the land in fee simple and that the entailed line and the rights of the origmal donor of the land were barred. It will be noted that in De Donis it is provided that the rights of the heirs in tail or of the donor shall not be prejudiced by the levying of a fine. The fine was another form of lawsuit frequently used in order to transfer title to land. After the doctrine had been estab- lished that an estate tail could be transformed into a fee simple by a common recovery, a somewhat similar effect was given by statute to the levying of a fine. The difference was that a common recovery bar- red both the entail and the donor, whereas a fine barred only the entail. * Y. B. 12 Edw. IV, 19 (1472). Sec. 4) DETERMINABLE FEES 25 Estates tail may now be barred in England by a deed in ordinary form, and a fee simple thereby vested in the grantee. In the United States fees, tail are possible, although rare. Roughly speaking, it may be said that three different methods have been adopted in dealing with them : In some of the states a conveyance to A. and the heirs of his body gives A. a life estate, followed by an estate in fee to the first heir who at common law would take under the entail. In some states such a limitation operates merely to create a fee simple in A. In other states the result is to create a true estate tail, but any tenant in tail may destroy it by an ordinary deed conveying the prem- ises in fee simple."* SECTION 4.— DETERMINABLE FEES A question which is too difficult to do more than touch on in the present treatise should be briefly mentioned. That is whether it is pos- sible to create a fee (that is, an estate which may last forever) with a limitation other than as a fee tail. It seems clear that at least one fee of this character can be created. In referring to the possibilities of con- veying an estate in fee simple by the levying of a fine by the tenant in tail, attention was called to the fact that the fee so created would last only as long as the entailed line lasted. This fee is what is technically known as a "base fee." The following situation raises a more doubtful question : A. conveys land to B. and his heirs for so long as they continue to occupy it in per- son. If at any time they cease so to do, may A. then re-enter into the land ? If this conveyance is covered by Quia Emptores, it is clear that A. cannot do so. His right can exist only if there is a relation of tenure between him and B., and the eflfect of the statute would be to cut off any such relation between himself and B., and B. would seem conse- quently to have a fee simple absolute in the land. If, on the other hand, the statute applies only to the case of a fee simple absolute, then A. would still retam such an interest in the land as would authorize h'im to enter upon the violation of the terms on which it was held. Some de- cisions seem to indicate that the statute does not apply to this case, and that consequently that it is still possible to create this fee which is tech- nically called a determinable fee. The matter, however, cannot be deemed free from doubt.' B On fees conditional and tail see 2 Bl. op. cit. pp. 100-120; 2 Poll. & Mait. op. cit. pp. 16-20; Co. JAtt. §§'13-19, 21-24; Williams, op. cit. cb. Ill; Leake, op. cit. pp. 24-28; Challis, Keal Property (3d Ed.) eb. XVIII. 6 On determinable fees see Cballis, op. cit chs. XVII, XIX, App. IV ; Gray, op. cit. §§ 31-^1, App. E. 26 ESTATES (Ch. 2 SECTION 5.— ESTATES FOR LIFE With the estate for Hfe we take up the most limited of the freehold estates. The owner of a fee simple or a fee tail, convertible either by a common recovery or otherwise into a fee simple, has the utmost priv- ileges that can be exercised by any person in respect to land. He may cut down the timber, destroy the houses, or in any other manner deal with the property as he pleases. This is not true of the tenant for life. His privileges of user and his powers of disposal of the property are limited. Estates for life are ordinarily divided into two sorts, yiz. : Estates created by act of the party, and estates created by operation of law. We shall deal with each in turn. Estates for life created by act of the parties may be either an estate for the life of the tenant, or an estate for the life of some third person or persons. The simplest case is where A., owning in fee, grants to B. for B.'s life. When B. dies, his estate naturally comes to an end. If the estate is granted to B. for any indeterminate period, so that the earliest possible moment at which the estate must terminate is B.'s death, this is also a Hfe estate; as, for example, where the estate is given to B. so long as he remains unmarried. If A. grants to B. to hold during the hfe of C, this is what is tech- nically known as an estate d'autre vie. If C. dies while B. is still alive, B.'s estate, of course, comes to an end, and A. is entitled to re-enter the land, A more difficult problem arises if B. dies first. Suppose that, after the death of B., X,, a stranger, takes possession of the land. A. cannot evict him because, by the terms of his grant to B.,.A. would have no right to enter until the death of C. A.'s overlord cannot claim it on the ground of escheat, because there is no escheat, except in the case of a fee simple. C. cannot claim it, because his life is used merely as a means of measuring the duration of the estate, and not to confer any beneficial interest. B.'s heir cannot enter, because B.'s estate was not an estate of inheritance. The result is that X. is enabled to hold the land as long as C. -Uves, merely because there is no one legally able to put him out. C. is technically known as a general occupant. This common-law doctrine has now been changed by statutes. B. may leave the land by will, and, if he does not do so, it goes under some statutes as his real property, and under other statutes as his personal property. If the land is conveyed by A. to B. and his heirs for the life of C., the heir would take in that case after B.'s death as special occu- pant, taking by purchase and not by descent.'' The life estates created by operation of law are of three sorts: T See Co. Litt. 41b-42b ; Leake, op. cit, 144-149 ; Williams, op. cit. 110-116. Sec. 5) ESTATES FOR LIFE 27 Curtesy, dower, and tenant in special tail with possibility of issue extinct. The estates of dower and curtesy and their various incidents are well described by Blackstone.^ "Tenant by the curtesy of England, is where a man marries a woman seised of an estate of inheritance, that is, of lands and tene- ments in fee simple or fee tail; and has by her issue, born alive, which was capable of inheriting her estate. In this case he shall, on the death of his wife hold the lands for his life, as tenant by the curtesy of England. * * * "There are four requisites necessary to make a tenancy by the curtesy: Marriage, seisin of the wife, issue, and death of the wife. 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin, or possession of the lands ; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And therefore a man shall not be tenant by the curtesy of a remainder or reversion. * * * jf t^g ^{fe be an idiot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she her- self has any title; and since she could never be rightfully seised of the lands, and the husband's title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy. 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of its being born alive ; but it is not the only evidence. The issue also must be born during the life of the mother: for if the mother dies in labour, and the Caesarean operation is performed, the husband in this case shall not be tenant by the curtesy; because at the instant of the mother's death he was not clearly entitled, as having had no issue born, but the land descended to the child while he was yet in his mother's womb; and the estate being once so vested, shall not after- wards be taken from him. In gavelkind lands, a husband may be tenant by the curtesy, without having any issue. But in general there must be issue bom: and such issue as is also capable of inheriting the mother's estate. Therefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can nc.^er inherit the estate in tail male. And this seems to be the principal reason why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised ; because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife: but no one, by the standing rule of law, can be heir to the ancestor of any land whereof the ancestor was not actually seised; and therefore, as the husband hath never begotten any issue that can be heir to those lands, he shall not be tenant of them by the curtesy. And hence we may observe, with how must nice'y and consideration 8 2 Com. 126 et seq. See, also, Co. Lit. 29a-30a, 31u-33b= 28 ESTATES ' (Ch. 2 the old rules of law were framed ; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, pro- vided it were born during the coverture: for, whether it were born before or after the wife's seisin of the lands, whether it be living or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy. The husband by the birth of the child becomes (as was before observed) tenant by curtesy initiate and may do many acts to charge the lands ; but hij estate is not consummate till the death of the wife; which is the fourth and last requisite to make a complete tenant by the curtesy. "Tenant in dower is where the husband of a woman is seised of an estate of inheritance, and dies; in this case, the wife shall have the third part of all the lands and tenements whereof he was seised at any time during the coverture, to hold to herself for the term of her natural life. ♦ * * "In treating of this estate, let us, first, consider who may be en- dowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and fourthly, how the dower may be barred or prevented. "1. Who may be endowed? She must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matri- monii, she shall not be endowed; for ubi nullum matrimonium ibi nulla dos. But a divorce a mensa et thoro only, does not destroy the dower; no, not even for adultery itself by the common law.' Yet now by the statute Westm. 2, if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her. It was formerly held, that the wife of an idiot might be en- dowed, though the husband of an idiot could not be tenant by the curtesy; but as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place. * * * "2. We are next to inquire, of what may a wife be endowed? And she is now by law entitled to be endowed of all lands and tene- ments, of which her husband was seised in fee simple or fee tail, at any time during the coverture; and of which issue, which she might have had, might by possibility have been heir. Therefore, if a man seised in fee simple, hath a son by his first wife, and after mar- ries a second wife, she shall be endowed of his lands ; for her issue might by possibility have been heir, on the death of the son by the former wife. But if there be a donee in special tail who holds lands to him and the heirs of his body begotten on Jane his wife; though Jane may be endowed of these lands, yet if Tane dies, and he marries a second wife, that second wife shall never oe endowed of the lands entailed ; for no issue that she could have, could by any possibility inherit them. A seisin in law of the husband will be as effectual as a Sec. 5) ESTATES FOB LIFE 29 seisin in deed, in order to render the wife dowable ; for it is not in the wife's power lo bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands: which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was ac- tually seised in deed. The seisin of the husband, for a transitory instant only, when the same act which gives him the estate conveys it also out of him again (as where, by a fine, land is granted to a man, and he immediately renders it back by the same fine), such a seisin will not entitle the wife to dower ; for the land was merely in transitu, and never rested in the husband, the grant and render being one con- tinued act. But if the land abides in him for the interval of but a single moment, it seems that the wife shall be endowed thereof. * * * "3. Next, as to the manner in which a woman is to be endowed. ♦ * * "By the old law, grounded on the feudal exactions, a woman could not be endowed without a fine paid to the lord; neither could she marry again without his license: lest she should contract herself, and so convey part of the feud, to the lord's enemy. This license the lords took care to be well paid for ; and, as it seems, would sometimes force the dowager to a second marriage, in order to gain the fine. But, to remedy these oppressions, jt was provided, first by the charter of Henry I, and afterwards by Magna Carta, that the widow shall pay nothing for her marriage, nor shall be distrained to marry afresh, if she chooses to live without a husband ; but shall not however marry against the consent of the lord ; and farther, that nothing shall be taken for assignment of the widow's dower, but that she shall remain in her husband's ^capital mansion house for forty days after his death, during which time her dower shall be assigned. These forty days are called the widow's quarantine, a term made use of in law to signify the number of forty days, whether applied to this occasion, or any other. The particular lands, to be held in dower, must be assigned by the heir of the husband, or his guardian ; not only for the sake of notoriety, but also to entitle the lord of the fee to demand his services of the heir, in respect of the lands so holden. For the heir by this entry becomes tenant thereof to the lord, and the widow is immediate tenant to the heir, by a kind of subinfeudation, or under- tenancy .completed by this investiture or assignment; which tenure may still be created, notwithstanding the statute of Quia Emptores, because the heir parts not with the fee simple, but only with an es- tate for life. If the heir or his guardian do not assign her dower within the term of quarantine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it. Or if the heir (being under age) or his guardian assign more than she ought to have, it may be afterwards remedied by writ of admeasurement of do?ver. If the thing of which she is endowed be divisible, her dower 30 ESTATES (Ch. 2 must be set out by metes and bounds; but if it be indivisible, she must be endowed specially; as the third presentation to a church, the third toll dish of a mill, the third part of the profits of an office, the third sheaf of tithe, and the like. * * * "4. How dower may be barred or prevented. A widow may be barred of her dower * * * by elopement, divorce, being an alien, the treason of her husband. * * * ^ woman may also be barred of her dower by levying a fine, or suffering a recovery of the lands, during her coverture. But the most usual method of barring dowers is by jointures. * * * "But then these four requisites must be punctually observed: 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur autre vie, or for any term of years, or other smaller estate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be, in satisfaction of her whole dow- er, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after husband's death, as in dower ad ostium ecclesise, and may either accept it, or refuse it and betake herself to her dower at common law ; for she was not capable of consenting to it during coverture. And if, by any fraud or acci- dent, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law." The tenancy in special tail with possibility of issue extinct is of rare occurrence. This estate may arise in this fashion. A. grants land to B. and the heirs of his body by his wife C. C. dies, not hav- ing had issue. It is obvious that this estate, since, the special limita- tion, can no longer be satisfied, must necessarily terminate with the Hfe of B.» SECTION 6.— ESTATES LESS THAN FREEHOLD Before entering into a consideration of nonfreehold estates, at- tention should be called to the various meanings of the term freehold. The term has at least three distinct meanings : It may be used to de- scribe the quantity of the estate, the sense in which it is being used in this present discussion; the term may be used to indicate the character of the tenure upon which land is held, thus contrasting a freehold tenure with a servile tenure ; the term may be used to indi- cate possession of the land, as distinguished from an interest that is not possession, as where one speaks of the freeholders, meaning » 2 Bl. op. cit. 124-126 ; Co. Lit. 27b-28b. Sec. 6) ESTATES LESS THAN FREEHOLD 31 thereby, the ones in actual possession of the soil, with or without a freehold estate, and irrespective of the nature of the tenure. The distinction between the estates that are classified as freehold in the sense in which we are at present using the term and the non- freehold estates is one that is historical in its nature rather than logical. If we go back to the centuries immediately following the Norman Conquest, we find that at that time the normal method of holding land was either by estates for life^ or by larger estates of the sort already described ; the putting out of land on leases for years, al- though not unknown, was rare. It is possible, although not certain, that at a very early date a lease for more than forty years was void. In any event, the person having a lease for years was regarded as having a right that was in the nature of a contract right against the lessor rather than in the nature of a property right in the land. If he was ejected from the land by the lessor, his remedy against the lessor was more analogous to an action of contract than to an action to assert a property right in the land. If the eviction was by a third person, the only recourse of the lessee so evicted was through his lessor, by virtue of the obligation of his lessor to see that he should quietly enjoy the leased lands, or, if that could not be done, to pro- vide him with other lands. As a corollary of the conception of the j:igllt_Qijthe^_lessee for years as being essentially contractual, it was treated as persona lty^ and not as realty, and it therefore had the inci- dents of personal_property ; that is, it could be left by will, which was not true of real property until a much later date, and in the event of intestacy the transmission of the title would be governed by the laws relating to personal property. During the 13th century the precarious position of the lessee for years, so far as the nature of his interest in the land was concerned, was amehorated. In the year 1235 the action of quare ejecit was created, by which the lessee was allowed to assert his possessory right in the land as against the lessor or a purchaser from the lessor who wrongfully ejected him, by a judgment which restored him to pos- session'. By the end of the 13th century the action of trespass quare clausum fregit was definitely established, so that the lessee for years could recover damages against anyone interfering with his possession. Later a specialized form of trespass, de ejectione firmae, was devel- oped, by which the termor was enabled to regain possession of the land from any person wrongfully evicting him. This latter action gradually became the accepted form of action for determining the right to the possession of the land, not only in case of tenancies for years, but generally. Despite these developments in the protection of the property as- pect of the interest of the lessee for years, with the result that for the last 500 years he has been just as completely protected in the pos- session and enjoyment of the land for the duration of his term as is 32 ESTATES (Ch. 2 the tenant in fee, the interest is still treated as personal property,, anjd__ js technically kriown as a chattel real. In some jurisdictions the in- congruity of treating leases for long terms of years as chattels has been recognized and done away with by. statutes, which provide that leases for more than a specified period shall be treated as realty. Another species of nonfreehold estate is the tenancy at will, as where the land is leased by A. to B., to hold at the will of A. As the name implies, the lease may be terminated by A. at any time. In the event of such termination, B. has a reasonable time to remove his property and is entitled to the annual crops then growing on the land. A correlative of the right of termination by the lessor is that the lease is also terminable at the will of the lessee. It should be no- ticed, however, -that a lease which is to terminate solely at the will_oX B. is a tenancy, not at will, but for life. For a long time the undesirability of the strict tenancy at will, its unfairness to both lessee and lessor, has been recognized, and from the strict tenancy at will has developed the tenancy from year tq^ year. This is a tenancy which can be terminated by either party only upon the giving of a half year's notice of the desire to terminate. The tenancy at sufferance, so called, is, properly speaking, not a tenancy at all. The situation to which the term is applied is where the lessee, whose estate has terminated, nevertheless continues to re- main in the possession of the land. He cannot properly be classified as a trespasser, because his entry was lawful, and to that slight ex- tent he has the characteristic of a tenant. His retention of possession, however, since it is not with the consent of the landlord, either ex- press or implied, is unlawful, and makes the application of the term "tenant" to him a misnomer. The landlord may at any time turn him into a tenant by treating him as such.^** , SECTION 7 —SEISIN AND POSSESSION The distinction that the law makes between freehold and nonfree- hold estates, which has already been referred to, is of importance in another regard, namely, in the distinction between seisin and posses- sion. The word "seisin" is a very old one in the EngUsh law. In the first one or two centuries after the Conquest, it was used merely to indicate possession, either of land or of chattels. Thus the old writers speak indifferently of a man being seised of land or of a horse. Gradually, however, the term "seisin" began to take on a 10 On estates less than freehold see 2 Bl. op. cit. cli. IX; Lit. § 58; 2 Poll. & Malt. op. cit. 106-117; Digby, op. cit. 176, 177. Sec. 7) SEISIN AND POSSESSION 33 more technical meaning, and to be distinguished from the word "pos- session."^^ In discussing the origin of the nonfreehold estates it has been pointed out that the estate for years was in the beginning regarded as giving the lessee for years only a contract right . against his lessor, that his occupation of the land was merely in tlie nature of a servant or bailee to the lessor, and that for the purposes of determining feudal relations and obligations the freehold lessor of the tenant for years was the only one looked to by the overlord. Gradually the term "seisin" was applied only to denote the possession of a tenant holding a freehold estate, and the interest of a tenant holding a nonfreehold estate was designated as possession, and this difference in the terms is now definitely established. Consequently, if A., owning in fee, leas- es to B. for years, B. has the possession, but A, still retains the seisin, even though, of course, the de facto occupant of the land is B. The next step in the development of the doctrine of seisin may he illustrated by the following case: Suppose A., the owner in fee, grants to B. for life. B., now having a frieehold estate, has the seisin. B., however, owes A. the feudal obligations of homage, fealty, and the like. Consequently the feudal lawyers said that A. also was seised in respect of these rights. They distinguished between the two by saying that B. was jeised in his demesne and that A. was seisedjn jiis^sfiXYices, This idea of a seisin that was not in fact ac- companied by an actual possession was applied in another type of case. Thus, if A. had a right to rent from B.'s land, and A.'s estate in the rent was a freehold (i. e., in fee or for life), A. was said to be seised of the rent to which he is thus entitled ; and if A. was deprived of the rent by the tortious act of B. or of a third person, A. was said to be disseised of the rent, and he could bring an action to recover the rent that was almost identical with the action that he would bring to recover the seisin of land from which he had been tortiously ousted. It is not necessary to follow further these interesting questions of the somewhat refined doctrines of seisin. Our concern at present is only with the seis in of the demesne ; that is, with the actual possession of the_land under a freehold title. In connection with the idea of seisin in this most elementary sense one other aspect of the doctrine, of ex- treme importance in the law of conveyances of interests in land and of the creation of future estates in land which are next to be consid- . ered, requires to be specifically stated. The purpose of the feudal organization of society and the whole theory upon which it was con- structed were that all land should always be in the possession of some tenant having a freehold interest therein — that is, a seisin — who should be responsible for the performance of the feudal obligations. From this principle follows 'the doctrine that the seisin of land can never 11 See 1 Maitlaud, Coll. Pap. 329-384. BiQ.lNT.— 3 34 ESTATES (Ch. 2 be in abeyance, or, to state the same thing in a different form, that some one must always be seised of any given piece of land. There" were a few minor exceptions to this rule, but they are of so slight im- portance as not to require further mention.^* SECTION 8.— TRANSFER OF SEISIN AND POSSESSION The most natural and obvious way of transferring rights in any tangible object is by delivering that object to the person to whom it is desired to transfer the rights in it. Indeed, if the rights are con- ceived of as inhering in the object, this would seem to be almost the only way by which the rights could be transferred. One of the oldest and the most commonly used methods of conveying estates in land was based upon this conception. To be sure, the land could not be physically picked up like a book and handed to the grantee. But the nearest approximation to that would be equally satisfactory, namely, to put the grantee physically into the possession of the land, under such circumstances as would make it manifest that the intent was thereby to transfer to him a freehold interest in the land. This was in fact, as has already been said, the most common way of trans- ferring seisin of land under the early English law. It was technical- ly called livery of seisin, or feoffment. It was done by A., the feoffor, taking B~the feoffee, to the land in question and there handing him a branch or a piece of turf as a symbolical delivery of the land. No deed was required ; the physical act of delivery was the operative act to transfer the title. As a matter of security this always took place in the presence of witnesses, and,, if the transaction was of any importance, a formal document was ordinarily drawn up, stating the fact of the livery, and what land was given, and for what estates. This document was called the char ter of feoffment From the na- ture of livery of seisin it follows that it was a present act — that is, the seisin could be passed out of the feoffor only by an act of present delivery ; an attempt to make a livery of seisin to take effect at some future date was a nullity. This doctrine appears to have been qual- ified somewhat by the so-called livery in law. Under this latter doc- trine the feoffor could take the feoffee to the neighborhood of the land, point it out to him, and declare to him that he thereby gave him livery. This was effectual if the feoffee entered into the land during the life of the feoffor. The method adopted for the transfer or creation of nonfreehold interests was analogous to livery of seisin. Of course, since the ten- ant for years had only a possession, and not seisin, the transaction 12 On seisin and possession see 2 Toll. & Mait. op. pit. 29-40. Sec. 8) TRANSFER OF SEISIN AND POSSESSION 35 was not technically a livery of seisin. But the same fundamental idea of a physical installation on the land prevailed. It was a less ceremonious affair, partly, doubtless, for the reason that the estate created was of not so long a duration. There was one important dif- ference between the creation of a freehold estate and a nonfreehold estate. Since the nonf reehold estatewas in its origin a co ntract rather than a property right, the doctrine that the estate could not be cre- ated to begin in futuro had no application. Consequently, A. could make a lease to B. of Blackacre to begin at a specified future date. On that date it was merely necessary for B. to entfer into possession. He was not regarded as having a leasehold interest in the interval, but he was regarded as having a right to the lease, and this right was technically called an mteresse termini. If A., the owner in fee, wished to convey his land to B. in fee, subject to a contemporaneous tliree-year lease in favor of C, this re- quired a combination of livery of seisin and possession ; the seisin clearly could not be delivered directly to B., for that would mean putting him into the land to the exclusion of C.'s leasehold interest. On the other hand, C. could not take a livery of seisin to himself, since he had a nonfreehold interest. The creation of these estates was accomplished by putting C. into the possession of the land and delivering seisin to him for B., who was thus considered as having been vested with the seisin subject to C.'s three-year possessory in- terest. These methods of creating freehold and nonfreehold estates con- tinued in England unchanged by statute until the latter part of the 17th centuiy. In the Statute of Frauds it was provided, among other things that "all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments made or created by' livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto law- fully authorized by writing, shall have the effect of leases or estates at will only, and shall not, either in law or equity be deemed or taken to have any other or greater force or effect ; * ♦ ♦ except never- theless all leases not exceeding the term of three years from the mak- ing thereof." * * *^' The law as thus outlined continued substantially unchanged until the 19th century, at which time, after various pieces of legislation, it was finally provided in 1845 (8 & 9 Vict. c. 106, § 2) that after Oc- tober 1, 1845, all corporeal tenements and hereditaments should, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in Uvery. 13 29 Car. II (1676) c. 3, §§ 1, 2. On livery of seisiu and possession see Co. Lit. 4Sa, 4Sl); 2 Bl. op. cit RlO-316. 36 NONPOSSESSOET INTERESTS IN LAND (Cll. 3 CHAPTER III NONPOSSESSORY INTERESTS IN LAND SECTION 1.— INTRODUCTION Up to the present time, in discussing the nature of the interests or estates that might be created in land, the discussion has been confined to a consideration of the larger or smaller group of rights that might be had by the person in the occupation of the land, whether this occupation be technically described as seisin of a freehold estate or possession of a nonfreehold estate, and whether the group of rights was the complete group embraced in the term fee simple or the com- ^ paratively limited group of rights embraced in the idea of a tenancy for years. Regardless of these variations, the rights have always b een ' " "' ■ those relating to the physical occupation of the land. Rights of this nature are technically classified under the English law as corporeal U English law, however, has always recognized that there may be 5^-^ rights in land held by those who are not entitled to the actual occu- pation thereof. These have to a certain extent already appeared by inference in the matters that have been considered. Thus, where A. grants to B. for life or for years, the seisin or possession of the land is in B., but it is clear that A. nevertheless retains rights in the land which may be of as great or even greater importance than those of B. So, again, B. may own land in fee simple, but A. may have a right to rent from tlie land, or a right of going over the land. In tliese cases, also, it is clear that A. has some legal interests in the land, although they are not of a possessory nature. Interests of this second sort are termed jncorporeal rights^ It is worth while to pause for a moment to point out that this ter- minology, "corporeal" and" "incorporeal" rights, is not a scientifically sound one. The law is never concerned with a physical object as such. The sole subject-matter of law is rights, and rights are in all cases re- lations between individuals. The relation may be purely between in- dividuals, or it may be between individuals with respect to physical objects, such as chattels or land. But rights as such in every case are merely intellectual concepts. It would seem that the distinction be- tween corporeal and incorporeal rights would be more accurately ex- ' pressed as a distinction between possessory and nonpossessory rights. The difficulty has been explained by Digby as follows : ^ 1 Op. cit. p. 306, note 2. Compare Challis, op. cit. p. 49 et seq. Sec. 1) INTRODUCTION 37 "The division of hereditaments into corporeal and incorporeal, though deeply rooted in our legal phraseology, is most unfortunate and misleading. The confusion is inherited from the Roman lawyers (see Justinian, Inst, ii, tit. 2), but has been made worse confounded by our own authorities. The Romans, misled by the double sense of res, un- happily distinguished res corporales and res incorporales ; the former being things 'quae tangi possunt, veluti aurum, vestis,' the latter mere rights, 'quae in jure, consistunt.' It is obvious that this is mere con- fusion ; the two ideas not being in pari materia, or capable of being brought under one class, or of forming opposite members of a division. Following the Romans, our lawyers distinguished between heredita- ments as meaning the actual corporeal land itself, and another kind of hereditaments as not being the land itself, but 'the rights annexed to or issuing out of the land.' A moment's reflection is sufficient to show that the distinction is untenable. The lawyer has notliing whatever to do with the material corporeal land, except so far as it is tlie subject of rights. It is the distinction between diflferent classes of rights, and not between land on the one side and rights on the other, that he is con- cerned with. In such phrases as 'the land descends to the heir,' what is meant is, not that something happens to the land itself, but that a particular class of the ancestor's rights in relation to tlie land descends to the heir. The names 'corporeal' and 'incorporeal' are most unfor- tunate, because, if by 'corporeal' is meant 'related to land,' then a large class of incorporeal hereditaments are also entitled to the name ; if by 'incorporeal' is meant that they are mere rights, then all hereditaments are incorporeal, because the lawyer is only concerned with different classes of rights. * * * " While the justice of this criticism seems clear, the phrases in ques- tion are firmly established as a part of the English legal vocabulary, and so long as their meaning is understood their inexactness is no se- rious bar to their usefulness. Incorporeal rights may be divided into two different classes. There are, first, those that may ultimately develop into corporeal or complete possessory interests. Such is the nature of A.'s interest where he has leased to B. for a term of years. During the continuance of B.'s lease, A.'s interest is incorporeal or nonpossessory. At tlae end of the term his interest will once more become possessory The second group of nonpossessory rights is those which do not have this characteristic. The right of way or the right to rent mentioned above are sufficient illustrations of this species of incorporeal rights. Rights of this second sort are grouped by Blackstone under the head of incorporeal heredita- ments, and will be discussed in detail later on. For the present we shall confine ourselves to the first group of incorporeal rights. 38 NONPOSSESSORY INTERESTS IN LAND (Ch. 3 SECTION 2.— REVERSIONS AND REMAINDERS If A., owning land in fee simple, conveys to B. in fee simple, A. thereby disposes of his entire interest in the land. Under Quia Emp- tores B. now holds the land, not under A., but under A.'s overlord. If B. dies, not having disposed of the land and leaving no heirs, the land will escheat to the overlord by virtue of the fact that the estate has terminated and that there is a tenure relation between the overlord and B. If, on the other hand. A., being seised in fee, conveys to B. for life, B. has not acquired all of A.'s interest in the property. The re- lation between A. and B. in this case is not affected by Quia Emptores. A. still owns the fee of the land, subject to the life estate which he has created in B., and after B.'s death or the other earlier termination of the life estate, the land will revert to A., and he will be entitled to resume possession thereof. The same thing is true if A. conveys land to B. in tail, and the entailed line runs out, or the estate is otherwise terminated; A.'s right, of course, being subject to the possibility of be- ing barred by B.'s suffering a common recovery. This undisposed-of interest that remains in A. after the creation in B. of what is technical- ly called the particular estate, is the reversion. It is to be noted that it is not created by any act of A., but is merely the undisposed of resi- due of his estate. If B.'s estate is for years, instead of for life or in fail, the same general relation is created; but, since B.'s interest is now a nonfreehold interest, A.'s interest is not technically a reversion, although the term is frequently used somewhat loosely to cover this case. The same general situation may exist, even though A. does not have a fee sintple. Thus, a person who has a life estate may carve out of it a smaller estate in another person for years, and the interest thus left in the tenant for life may again loosely be described as a reversion. Suppose A., owning in fee, conveys the land to B. for life, and after B.'s death to go to C. for life. Several questions may arise in connection with a conveyance of this sort. First, as to how this con- veyance would be made. A. would make a livery of seisin to B. for his life, which would operate to put the seisin in B., at the same time declaring by his charter of feoffment or otherwise the extent of the interests that B. and C. respectively were to have in the land. Then, after B.'s death, the seisin would pass to C. for life, and after C.'s death would revert to A. The passage of the seisin from B. to C. is not a violation of the doctrine that there can he no livery of seisin to begin in futuro, because of the fact that the seisin is put out of A. once for all for the entire set of limitations at the time of the original livery to B. Notice the dift'erence between C.'s interest in this case, and A.'s rever- sionary interest. C.'s interest, like B.'s is created by the act of A., and Sec. 2) . REVERSIOxNS AND REMAINDERS 39 js^otjrnerely an undisposed-of residue of the estate of the original creator. C.'s interest is what is technically called a remaind er. The principle illustrated by the case just given is capable of many applications. For example. A., owning in fee, may enfeoff B. for life, remainder to C. for life, remainder to D. in tail. In this case, as in the one just cited, C. and D. have remainders, and back of them is a reversion in fee in A. It is to be noticed that the particular tenant and the remaindermen have no relation of tenure between themselves. They all derive their title from A., and all stand in a relation of tenure to him. If now, A. by a later conveyance transfers his reversion to X., X. is not a remainderman, but an assignee of the reversion, and now oc- cupies the same tenure relation toward B., C, and D. that was formerly occupied by A. A. may also execute this series of limitations : To B. for life, remainder to C. for life, remainder to D. in fee. This will dispose of all of A.'s interest in the land, since he can give no greater estate than a fee. This is expressed in the doctrine that there can be no rem ainder after a remainder in fee. Another consequence of creat- ing the remainder in fee in D. is that, since A. has now disposed of all his interest in the land, there can be no tenure between him and B., C, and D. It is equally clear, however, that B., C, and D. have no tenure relation between themselves. Quia Emptores applies in this case, with the result that all three of them hold under A.'s overlord. In all the cases hitherto discussed the estate of the remainderman was of such a sort that, whenever the preceding estate terminated, the estate in remainder was ready to take up the seisin. It is true, of course, that in the Hmitation last given C, the tenant for life, may die before B. dies. ■ If that happens, it merely means that on the death of B. the seisin will pass to D. The fact that D. himself may have died before B. is immaterial, since his estate is one of inheritance, and his right to the seisin will pass to his heir. We now, however, have to consider a different species of remainder. Suppose that A., being seised in fee, enfeoffs B. for life, remainder to C. for life if C. shall pay A. £100. The feudal rule requiring that the seisin should always be vested in some definite person is satisfied, at least for the time being, since B. has a freehold estate. This case, however, differs from those hitherto considered, in that in the present case it is impossible, at the time of the creation of these limitations, to say where the seisin will go upon B.'s death. It may or may not go to C, depending upon whether he has or has not paid the ilOO. The remainder to C. in this case is what is technically called a contingent remainder, as contrasted with the vested remainders in the limitations hitherto given. Under the older law contingent remainders were not recognized. By the 15th century, however, the possibility of creating them, subject to certain limitations now to be discussed, was definitely established. If, there- fore, in the example given, C. shall pay the ilOO. at or before the ter- mination of B.'s life estate, the seisin will, upon the termination of such 40 NONPOSSESSOEY INTERESTS IN LAND (Ch. 3 life estate, pass to C. If C. has not paid, the seisin will revert to A. or to A.'s heirs. The general principle is that a contingent remainder is good, if it becomes vested at or before tlie termination of the precJcF" "ing estate. If, in the illustration given, the contingent remainder in TThad been followed by a remainder to D., and C. had not satisfied the contingency at or before the termination of B.'s estate, the seisin would then have passed to the next vested estate in remainder, that is, D.'s, and C.'s contingent remainder would have been destroyed. The same result follows if, through the nonperformance of the contingency, the seisin reverts to A. , There are various kinds of contingent remainders. Mr. Fearne, in his work on Contingent Remainders,^ divides them as follows : "1. Where the remainder depends entirely on a contingent determi- nation of the preceding estate itself — "As if A. makes a feoffment to the use of B. till C. returns from Rome, and after such return of C. then to remain over in fee ; here the particular estate is limited to determine on the return of C, and only on that determination of it is the remainder to take effect; but that is an event which possibly may never happen, and therefore the remain- der, which depends entirely upon the ^determination of the preceding estate by it, is dubious and contingent. So where a fine was levied to the use of A. and the heirs male of his body, until he, the said A., should do such a thing, and after such a thing done by the said A. to the use of B. in tail: A. died without issue, and without performing the condition; and it was adjudged the remainder was contingent, and never took place. "2. Where some uncertain event, unconnected with and collateral to the determination of the preceding estate, is, by the nature of the limitation, to precede the remainder-rr "As if a lease be made to A. for life, remainder to B. for life, and if B. die before A. to C. for life ; here the event of B.'s dying before A. does not in the least affect the determination of the particular estate, nevertheless it must precede and give effect to C.'s remainder ; but such event is dubious, it may or may not happen, and the remainder depend- ing on it is therefore contingent. So if lands be given to A. in tail, and, if B. come to Westminster Hall such a day, to B. in fee ; here B.'s com- ing to Westminster Hall has no connection with the determination of A.'s estate; but as it is an uncertain event, and the remainder to B. is not to take place unless it should happen, such remainder is there- fore a contingent remainder. "3. Where a remainder is limited to take effect upon an event, which, though it certainly must happen some time or other yet may not happen till after the determination of the particular estate — "As if a lease be made to J. S. for life, and after the death of J. D. the lands to remain to another in fee ; now it is certain that J. D. must 2 10th Ed., pp. 8 to 9. Sec. 2) REVERSIONS AND REMAINDERS 41 die some time or other, but his death may not happen till after the de- termination of the particular estate by the death of J. S., and therefore such remainder is contingent. So in case of a lease for life to A., and after the death of A. and M., the remainder to B. in fee, this is a contingent remainder; for the particular estate being only for the life of A., and the remainder not to commence till after the death of A. and M., if A. die before M., the particular estate will end before the remainder can commence; which is very possible, and therefore such remainder is contingent. So if a feoffment be to the use of A. for 21 years if he shall so long live, and after his death to the use of B. in fee ; here A. may survive the 21 years ; if he should, the particular estate would determine before the remainder could commence, and therefore such remainder is contingent, and, being so, is void, for want of a preceding freehold to support it, as will appear hereafter. "4. Where a remainder is limited to a person not ascertained, or not in being at the time when such limitation is made — "As if a lease be made to one for life, remainder to the right heirs of J. S. ; now there can be no such person as the right heir of J. S., un- til the death of J. S. (for nemo est hseres viventis), which may not bap- pen till after the determination of the particular estate by the death of tenant for life, therefore such remainder is contingent. So where a remainder is limited to the first son of B., who has no son then born ; here B, may never have a son, or, if he should, the particular estate may determine before the birth of such son, therefore this estate is contingent. So if an estate be limited to two for life, remainder to the survivor of them in fee, the remainder is contingent, for it is uncer- tain who will be the survivor." These illustrations are given merely as indicating the various pos- sibilities in the creation of these estates. A., being seised in fee, conveys to B., for ten years, remainder to C. in fee if C. pays A. ilOO. This remainder is intrinsically bad. The seisin cannot be in B., for the reason that he has a nonfreehold estate. It cannot be in C, because he is not yet entitled to it. To say that when C. pays the ilOO. the seisin then passes to him is to violate the com- mon-law doctrine that there cannot be a livery of seisin operating in futuro. The principle exemplified in this case is embodied in the doc- mne that a contingent remainder is bad unless supported by a preced- ing vested estate of freehold. A., being seised in fee, enfeoffs B. for life and one year after B.'s death to C. in fee. This limitation to C. is also intrinsically bad. Up- on the death of B., the seisin cannot go to C, for such is not the lim- itation. It must therefore revert to A., and, once being back in A., it cannot thereafter be taken out of him, except by a new conveyance, for the reason already stated. It has already been mentioned that it was necessary that a contin- gent remainder should vest at or before the termination of the pre- 42 NONPOSSESSORY INTERESTS IN LAND (Ch. 3 ceding estate, and that if it did not do so by that time it was irretriev- ably lost. Thus, if A. was a tenant for life, with a contingent remain- der to B. for life, it would be sufficient if B. satisfied the contingency at or before A.'s death. At common law it was possible that A.'s estate might terminate before the death of A., if A. engaged in a course of action that forfeited his estate, as for example, enfeoffing X. of the land in fee. Since this was in violation of A.'s feudal obligations with re- spect to the land, it resulted in destroying whatever estate he had, with the consequence that the next estate must then take the seisin and be ready to assume the burdens of feudal tenure. If B.'s estate had not at that time become vested by the performance of the contingency, it would drop out, the seisin would pass to the next vested estate of freehold, and B.'s estate be destroyed. Contingent remainders might also be lost in ways other than by the destruction of the particular estate. These other methods will be considered in a later connection. This easy destructibility of contingent remainders led to a device to preserve them for the benefit of the contingent remainderman, by pro- viding that after the termination of the tenancy for life for any reason the seisin should go to certain specified persons, their heirs and assigns, as trustees for the life of the tenant for life and for his benefit. These persons, being specified and their estate being therefore ready to come into possession on any termination of the particular estate, l2ad_a vest- ed remainder. Consequently, if the tenant for life forfeited or other- wise terminated his estate, the vested remainder in the trustees for the life of the tenant for life would then come in. By thus interpos- ing another vested estate until the termination of the natural life of the tenant for life, a further chance was given for the contingent re- mainderman either to come into being or to satisfy the contingency upon which his estate depended, if he was already in being. Of course it would have been possible for the trustees, acting in collusion with the next vested remainderman, to destroy the contingent remainder; but they were prevented from doing this by the orders of the Chan- cellor. By later legislation contingent remainders were made indestruct- ible, and consequently tlie need for trustees to preserve contingent remainders was done away with.' 3 On reversions and remainders see 2 Bl. op. cit. 163-176 ; Challis, op. cit. 72-85, 119-151 ; Digbv, op. cit. 262-275 ; Leake, op. cit. 226-246 ; Williams, op. cit. 323-365. Sec. 3) CONDITIONAL LIMITATIONS AND RIGHTS OF ENTBT 43 SECTION 3.— CONDITIONAL LIMITATIONS AND RIGHTS OF ENTRY The next type of nonpossessory interest in land that requires con- sideration may be illustrated by the two following limitations : A., be- ing seised in fee, enfeoffs B. to hold for B.'s life or until C. pays A. ilOO., and thereupon to C. in fee; A., being seised in fee, enfeoffs B. for life, subject to the condition that, if C. pays A. ilOO., then C. may enter and terminate the estate of B. The limitation to C. contained in the first illustration is good. B. has a life estate ; that is, an estate of uncertain duration, that may terminate in one of two ways, either by his death, or by the payment of the £100. The proviso for the termina- tion of his estate in favor of C. by the payment of the ilOO. is a con- di tional limitation, and C.'s estate is an ordinary remainder. The lim- itation given to C. in the second illustration is bad. It is not couched as a conditional limitation upon B.'s estate; that is, B.'s estate does not automatically come to an end upon the payment of the ilOO. What is attempted is to give C. the power to terminate B.'s estate after C. has paid the £100 to A. This power on C.'s part is what is technically known as a_ri^ht of entry. A right of entry was not regarded under the common law as being in the nature of an estate in the land. It was regarded as a personal right or power, and in the type of right of entry that is now being considered it could exist only in the person creating the estate with respect to which the power was created, or in his heirs. It could not be assigned, even as a part of the reversion back of the particular estate which was made subject to the right of entry. In general, the question as to whether a given phrase is to be regarded as a conditional limitation or as a condition with power of entry is one of the intent of the parties rather than of the exact language used ; the general tendency is to treat it, if possible, as a conditional limitation. The doctrine of the common law with respect to conditions was changed as regards .certain classes of leases in the tim€ of Henry VIII (32 Hen. VIII, c. 34), and it has been changed by statute in similar cases in all of the states in this country as well.* * On conditional limitations and rights of entry see Co. Lit. 214a-21.5b ; Challis, op. cit. 219, 253; Lealfe, op. cit. 161-175. 44 NO>:rossESSOEY interests in land (Ch. 3 SECTION 4.— INCORPOREAL HEREDITAMENTS We pass, now, to the other group of incorporeal interests. Black- stone enumerates ten so-called incorporeal hereditaments, namely, ad- vowsons, tithes, commons, ways, offices, dignities, franchises, corodies, annuities, and rents. Of tjiese'the only ones that possess importance for our present purposes are commons, ways, and rents. All three of these found their origin in the feudal system, and the first two probably go back to the ante-Conquest days, when the manor was in its formative stage. Common was the right of pasturage that the ten- ants of the manor had upon the waste lands of the manor, and is one species of the broader group of rights known as profits. A profit may^ be defined as the right which one person has to take some substance from the soil of another without being entitled to the possession of the soil from which the substance is taken. A_way is one species of the broader group of rights known as easements, which may be defined as the right to make a limited specified use of the land of another without taking any of the substance therefrom or having [>ossession thereof. Rent was the return reserved by the grantor of land from the grantee thereof.® SECTION 5.— CONVEYANCE OF INCORPOREAL INTEREST If A. has the reversion of a piece of land in fee, subject to an es- tate in B. for years or for hfe or in tail, and A. wishes to convey his reversionary interest to C, how is this to be done ? Clearly under these circumstances A. cannot give C. livery of seisin. To attempt to do so would result in an illegal disturbance of B/s interest in the land. Whether B.'s interest be for life or in tail, which would give him a seisin, or whether his interest be for years, which would give him technically only a possession, any attempt by A. to take C. to the land and go through the formality of livery would be an ouster of B. and a disturbance of his legal rights. So, also, if B. is tenant for life and C. has a remainder for life, which he wishes to convey to D., it is equally impossible for C. to give livery of seisin. The same difficulty arises if A., the owner of land, wishes to create in B. an easement or a profit or a right to a rent. Thes? all, being incorporeal — that is to say, nonpossessory — interests, cannot be created by a method the essence of which is a dealing witli the physical possession of the land. 6 On incorporeal hereditaments see 2 Bl. op. ciL ch. Ill ; Digby, op. cit 181-210. Sec. 5) CONVKYANCE OF INCORPOREAL INTEREST 45 It is in this type of case that we encounter the second main method of conveyancing known to the common law ; that is to say, hy deed, a formal instrument sealed and delivered by the grantor to the gran- tee, describing the interest to be conveyed to the grantee. Conveyance by deed was used in all cases at common law where conveyance by liv- ery was impossible, owing to the nature of the right to be conveyed. Hence the common-law adage that corporeal interests lie in livery and incorporeal interests lie in grant. In the case where the incorporeal interest to be conveyed was a reversion or remainder, another essential step to complete the con- veyance was the assent of the particular tenant to the transfer of the reversionary or remainder interest to the grantee. This was known as the attornment by the tenant. It consisted of a formal acknowledg- ment by him of the transfer, and a recognition that the right so trans- ferred was vested in the grantee. The reason for requiring the attorn- ment of the tenant that is ordinarily given is that in the feudal sys- tem the relation of lord and tenant was so personal that it was regarded as unfair to the tenant that his lord should be changed, save by his con- sent. That this cannot be the sole reason for the requirement is mani- fest from the fact that attornment was also necessary in the case of the transfer of a remainder, although in that situation there is, of course, no relation of tenure between the particular tenant and the remainderman. It has been suggested that another explanation for the doctrine of attornment is that the incorporeal interest transferred was regarded as having one end localized in the soil, and that consequently this transfer could not be made except, as the tenant permitted it by his formal consent.^ This doctrine of attornment on the part of the tenant vvas done away with by statute in the time of Anne. The statute provides as follows : St. 4 Anne (1705) c. 16, § 9: "And be it further enacted by the au- thority aforesaid, That from and after the said first day of Trinity term (1706), all grants or conveyances thereafter to be made, by fine or otherwise, of any manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and efl^ectual, to all intents and purposes, without any attornment of the tenants of any such manors, or of the land out of which such rent shall be issuing, or of the particular tenants upon whose particular estates any such reversions or remainders shall and may be expectant or depending, as if their at- tornment had been had and made." This same statute has in substance been re-enacted in many states in this country. In those states where it has not been formally re-en- acted, the courts would doubtless hold that the idea of attornment was so foreign to present policy as to have no p lacq ii^ p y law/ e See 1 Maitland, Coll. Pap. 374-379. T On grant and attornment see 2 Bl. op. cit. 317; Co. Lit. 309a-310a, 315l>- 316b ; Digby, op. clt. 260-262 ; Leake, op. cit. 37-38. 46 NONPOSSESSOEY INTERESTS IN LAND (Ch. 3 SECTION 6.— OTHER SPECIES OF CONVEYANCES The more important methods of conveyancing, viz., the feoffment for freehold, and the lease for nonfreehold, possessory interests, and the deed for nonpossessory interests, have already been discussed. In addition to these conveyances, there are certain others that require mention. The release is a special form of conveyance by deed. It could be given only by a person out of possession of land to a person in posses- sion. There were four kinds of releases : 1. Per mitter le droit. This was the form of release that was ex- ecuted by the disseisee of lands to the one who had disseised him, the result being to pass to the disseisor in possession the rights that the disseisee still retained. 2. Per mitter Testate. This was the form of release that was execut- ed by one joint tenant or coparcener to another. 3. Per enlarger Testate. This release was the form used by a re- versioner or remainderman in conveying his interest to the tenant of a particular estate. 4. Per extinguishment. This was the form of release used by the holder of an incorporeal hereditament, such as a rent' or easement, to release to the owner of the land the right to the rent or the ease- ment. A release per enlarger, in connection with a lease of the land in question, was sometimes used as a method of conveying in fee simple, instead of a feoffment. Thus, A. would execute a lease of the premises to B. fpr one year, and B. would go into possession, whereupon A. would execute to him a release, which would operate, of course, to vest a fee simple in B.^ Surrender is just the reverse of release; the surrender being a giving up by the holder of the estate in possession to the next vested estate in reversion or remainder. No livery of seisin or deed was necessary. The mere expression of the giving up by the particular tenant to the re- mainderman or the reversioner and the acceptance by the latter was sufficient to operate as a surrender of the particular estate. There could not be a technical surrender, except where the legally smaller es- tate was surrendered to the larger estate. Thus a tenant for life in possession could not technically surrender to a remainderman having an estate for years, irrespective of the length of the term. On the other hand, a tenant for 100 years in possession could surrender to a remainderman for Hfe, and A., a tenant for life in possession, could 8 On release see 2 Bl. op. cit. 324; Littleton, §§ 444-447, 449^51, 459-4(31, 46;>-471, 479-480. Sec. 6) OTHER SPECIES OF CONVEYANCES 47 surrender to B., a remainderman for life,. for the reason that A.'s estate was from B.'s point of view an estate d'autre vie, and an estate d'autre vie was an estate legally smaller than an estate for one's own life. Closely associated with the doctrine of surrender is the doctrine of jnerger. In the event of a surrender by the particular tenant to the re- mainderman or reversioner, the surrenderee did not thereupon have two estates. The smaller, or surrendered, estate was held to be lost or merged in the larger estate of the surrenderee. This result was due to the common-law rule that it was legally impossible for a man, except in a few cases, to have at the same time in himself two separate and imme- diate estates. If between the estate of the tenant for life in possession and the estate of the remainderman or reversioner there was an out- standing vested estate in another remainderman, then there could tech- nically be no surrender. The conveyance would have to be by livery or other corresponding methods, and for the same reason there would be no merger of estates in the one to whom the conveyance was made. If the outstanding interest was merely a contingent remainder, this would not be regarded as sufficient to prevent the doctrine of merger from applying, and the necessary result would be that the contingent remainder would be destroyed. This destruction of a contingent re- mainder followed in any case where the particular estate was convey- ed to the person who had the next vested estate in remainder, whether by surrender or release or otherwise. This rule of t*he common law has now been largely changed by statute, and the contingent remainder preserved from destruction by this method.® Mention has already been made of the fictitious lawsuits known as the fine and the common recovery in discussing the barring of estates tail. These two fictitious lawsuits were also used as regular methods of conveying interests in land during the older period of English law. They had the advantage of publicity, and of establishing a permanent record as to the state of the title. Another common-law method of conveyance of limited use was the method of exchange. This could be utilized only where the estates to be exchanged were equal. Neither delivery nor deed was required. It was enough if the possession of the exchanged pieces was taken during the life of the two persons making the exchange. By the statute of frauds, if the estates so exchanged were of more than three years' dura- tion, the exchange must be in writing. The principles of the feudal law did not admit the power of the hold- er of land to transmit it by will. As has already been pointed out, the first tendency was to cause the land to go to the heir of the original donee under the terms of the original gift from the overlord. When it became established that the first grantee took a fee simple, the land would nevertheless go to the heir, unless disposed of by the ancestor in » On surrender and merger see 2 Bl. op. cit. 326 ; Co. Lit. 337b ; Challls, op. cit. 136; Fearne, Couting. Reins. 340-343; Leakp. op. cit. 238. 239. 48 NONPOSSESSORY INTERESTS IN LAND (Ch. 3 his lifetime. The right to leave by will existed in the case of gavel- kind land and in some of the English boroughs. This common-law rule was changed by statute in the reign of Henry VIII. By 32 Hen. VIII, chs. 1 and 35, and 35 Hen. VIII, ch. 5, the power was given to devise all lands held in socage tenure and two- thirds of the land held in knight service. When by the 12 Car. II, ch. 24, all land was declared to be held in socage, it thereby automatically became devisable. -^2^/t^r InX- -..y^ /virt.-'V'l-^ , r •^' -'■^M^'OL''^ ..,,J A Ch, 4) JOINT OWNERSHIP 49 CHAPTER IV JOINT OWNERSHIP Up to the present, as a matter of convenience, questions of the es- tates in land have been considered as though the estates were owned by a single individual. Such, however, was not necessarily the case under English law. All rights, whether corporeal or incorporeal, might be owned either by a single person or by two or more persons. There were several species of ownership of this nature. They are described by Blackstone as follows : ^ "An estate in joint tenan cy is where lands or tenements are granted to two or more persons to hold in fee simple, fee tail, for life^ for years, or at will. In consequence of such grants an estate is called an estate in joint tenancy, and sometimes an estate in jointure, which word as well as the other signifies an union or co njunction of inter- est; though in common speech the term jointure is now usually con- fined to that joint estate, which by virtue of Statute 27 Hen. VIII, c. 10, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower. "In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire how these estates may be created; next, their properties and respective incidents ; and lastly, how they may be severed or destroyed. "1. The creation of an estate in joint tenancy depends on the word- ing of the deed or devise, by which the tenants claim title; for this estate can only arise by purchase or grant, that is, by act of the par- ties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A. and B. and their heirs, this makes them immediately joint tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take efifect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For, "2. The properties of a joint estate are derived from its unity, which is fourfold : The tmity of interest, the unity of title, the unity of time, and the unity of possession ; or in other words, joint tenants have one and the same interest, accruing by one and the same convey- ance, commencing at one and the same time, and held by one and the same undivided possession. 12 Com. 180 et seq. Big. Int. — 4 / / 50 JOINT OWNERSHIP (Ch. 4 "First, they must have one and the same interest. One joint ten- ant cannot be entitled to one period of duration or quantity or in- terest in lands, and the other to a different; one cannot be tenant for life, and the other for years ; one cannot be tenant in fee, and the other in tail. But if land be limited to A. and B. for their lives, this makes them joint tenants of the freehold; if to A. and B. and their heirs, it makes them joint tenants of the inheritance. If the land be granted to A. and B. for their lives, and to the heirs of A., here A. and B. are joint tenants of the freehold during their re- spective lives, and A. has the remainder of the fee in severalty: or if land be given to A. and B., and the heirs of the body of A., here both have a joint estate for life, and A. hath a several remainder in tail. "Secondly, joint tenants must also have an unity of title; their es- tate must be created by one and the same act, whether legal or illegal ; as by one and the same grant, or by one and the same disseisin. Joint tenancy cannot arise by descent or act of law ; but merely by purchase or acquisition by the act of the party : and unless that act be one and the same, the two tenants would have different titles ; and if they had different titles, one might prove good and the other bad, which would absolutely destroy the jointure. "Thirdly, there must also be an unijty of tlrne; their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A. and B., or a re- mainder in fee to A. and B. after a particular estate; in either case A. and B. are joint tenants of this present estate, or this vested re- mainder. But if, after a lease for life, the remainder be limited to the heirs of A. and B., and during the continuance of the particular estate A. dies, which vests the remainder of one moiety in his heir; and then B. dies, whereby the other moiety becomes vested in the heir of B. : now A.'s heir and B.'s heir are not joint tenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at another. ♦ * * "Lastly, in joint tenancy there must be unity of possession. Joint tenants are said to be seised per my et per tout, by the half or moiety, and by all; that is, they each of them have the entire possession, as well of every parcel as of the whole. They have not, one of them a seisin of one-half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety. * * * "Upon these principles, of a thorough and intimate union of in- terest and possession, depend many other consequences and incidents of the joint tenant's estate. If two joint tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion. If their lessee surrenders his lease to one of them, it shall also enure to both, because of the Ch. 4) JOINT OWNERSHIP 51 privity or relation of their estate. On the same reason, livery of seisin, made to one joint tenant, shall enure to both of them: and the entry, or re-entry, of one joint tenant is as effectual in law as if it were the act of both. In all actions also relating to their joint estate, one joint tenant cannot sue or be sued without joining the other. * * * Upon the same ground it is held, that one joint ten- ant cannot have an action against another for trespass, in respect of his land; for each has an equal right to enter on any part of it. But one joint tenant is not capable by himself to do any act which may tend to defeat or injure the estate of the other; as to let leases, or to grant copyholds: and if any waste be done, which tends to the destruction of the inheritance, one joint tenant may have an action of waste a gainst the other, by construction of the Statute Westm. II, c. 2T. So, too, though at common law no action of account lay for one joint tenant against another, unless he had constituted him his bailiff or receiver, yet now by the Statute 4 Anne, c. 16, joint tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint tenancy. "From the same principle also arises the remaining grand incident of joint estates ; viz. : The doctrine of survivorship, by v/hich when two or more persons are seised of a joint estate, or inheritance, for their own lives, or pur auter vie, or are jointly possessed of any chattel interest, the entire tenancy, upon the decease of any of them remains to the survivors, and at length to the last survivor ; and he shall be entitled to the whole estate, whatever it be, whether an in- heritance or a common freehold only, or even a less estate. This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint tenants is not only equal or similar, but also is one and the same. One has not originally a dis- tinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint tenancy instantly ceases. But, while it continues, each_ol tw^jpint tenants has a concurrent interest in the whole ; and therefore, oh the death of his companion, the_sole interest in the whole remains to the survivor. For the interest which the survivor originally had is clearly not divested by the death of his companion ; and no other person can now claim to have a joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time with his own ; neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all, and every part. As therefore the survivor's original interest must now be entire and several, and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant. ■'This right of survivorship is called by our ancient authors the jus accrescendi, because the right upon the death of one joint tenant ac- 52 JOINT OWNERSHIP (Ch, 4 cumulates and Increases to the survivors; or, as they themselves ex- press it; 'Pars ilia communis accrescit superstitibus, de persona in personam, usque ad ultimam superstitem.' And this jus accrescendi ought to be mutual ; which I apprehend to be one reason why neither the king, nor any corporation, can be a joint tenant with a private person. For here is no mutuality ; the private person has not even the remotest chance of being seised of the entirety, by benefit of sur- vivorship; for the king and the corporation can never die. "3. We are, lastly, to inquire how an estate in joint tenancy may be severed and destroyed. And this may be done by destroying any _ of its constituent unities: 1. That of time, which respects only the original commencement of the joint estate, cannot indeed (being now past) be affected by any subsequent transactions. But, 2. The joint tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint tenants being seised per my et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout every part, is a severance or destruction of the jointure. And therefore, if two joint tenants agree to part their lands, and hold them in severalty, they are no longer joint ten- ants : for they have now no joint interest in tlie whole, but only a sev- eral interest respectively in the several parts. And for that reason, also, the right of survivorship is by such separation destroyed: By common law all the joint tenants might agree to make partition of the lands, but one of them could not compel the other so to do; for this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to de- stroy the united possession without a similar universal consent. But now by the Statutes 31 Hen. VIII, c. 1, and 32 Hen. VIII, c. 32, joint tenants, either of inheritances or other less estates, are com- pellable, by writ of partition to divide their lands. 3. The jointure may be destroyed by destroying the unity of title. As if one joint tenant ahenes and conveys his estate to a third person: here the joint tenancy is severed, and turned into tenancy in common; for the gran- tee and the remaining joint tenant hold by different titles (one de- rived from the original, the other from the subsequent grantor), though, till partition made, the unity of possession continues. But a devise of one's share by will is no severance of the jointure: for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other) is already vested. 4. It may also be destroyed by destroying the unity of interest. And therefore, if there be two joint tenants for life, and the inheritance is' purchased by or descends upon either, it is a severance of the jointure; though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold 1 shall remain in jointure, without merging in the inheritance; be- cause, being created by one and the same conveyance, they are not Ch. 4) JOINT OWNERSHIP 53 separate estates (which is requisite in order to a merger), but branches of one entire estate. In like manner, if a joint tenant in fee makes a lease for life of his share, this defeats the jointure: for it destroys the unity both of title and of interest. And, whenever or by what- ever means the jointure ceases or is severed, the right of survivorship or~jus accrescendi, the same instant ceases with it^ Yet, if one of tlTrce joint tenants alienes his share, the two remaining tenants still hold their parts by joint tenancy and survivorship: and if one of three joint tenants release his share to one of his companions, though the joint tenancy is destroyed with regard to that part, yet the two re- maining parts are still held in jointure; for they still preserve their original constituent unities. But when, by any act or evenj, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensable properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant ; the jointure is instantly dissolved. * * * "An estate held in coparcenary is where lands of inheritance de- ^-^z scend from the ancestor to two or more persons. It arises either by common law or particular custom. By common law : As where a person seised in fee simple or in fee tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives ; in this case they shall all inherit, as will be more fully shown when we treat of descents hereafter; and these co-heirs are then called coparceners ; or^ for brevity, parceners only. Parcen- ers by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, yncles, &c. And in either of these cases, all the parceners put together make but one heir, and have but one estate among them. "The properties of parceners are in some respects like those of j^oint tenants; they having the same unities of interest, title and possession. They may sue and be sued jointly for matters relating to their own lands ; and the entry of one of them shall in some cases • enure as the entry of them all. They cannot have an action of tres- pass against each other; but herein they differ from joint tenants, that they are also excluded from maintaining an action of waste; for coparceners could at all times put a stop to any waste by writ of partition, but till the statute of Henry the Eighth, joint tenants had no such power. Parceners also differ materially from joint tenants in four other points: 1. They always claim by descent, whereas joint tenants always claim by purchase. Therefore, if two sisters pur- chase lands, to hold to them and their heirs, they are not parceners, but joint tenants; and hence it likewise follows thatjio lands can be held in coparcenary, but estates of inheritance, which are of a de- scendible~nature ; whereas not only estates in fee and in tail, but for life or years, may be held in joint tenancy. 2. There is not unity of t^ A 54 JOINT OWNERSHIP (Ch. 4 time necessary to an estate of coparcenary. For if a man hath two daughters, to whom his estate descends in coparcenary, and one dies before the other; the surviving daughter and the heir of the other, or when both are dead, their two heirs are still parceners; the es- tates vesting in each of them at different times, though it be the same quantity of interest and held by the same title. 3. Parceners, though they have a unity, have not an entirety of interest. They are prop- erly entitled each to the whole of a distinct moiety; and of course here is no jus accrescendi, or survivorship between them; for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent,' and united in possession, so long are the tenants therein, whether male or female, called parceners. But if the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienes her share, though no parti- tion be made, then are the lands no longer held in coparcenary, but in common. "Parceners are so called, saith Littleton, because they may be con- strained to make partition. * * * "The estate in coparcenary may be dissolved, either by partition, which disunites the possession ; by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty. "Tenants in common are such as hold by several and distinct titles, but by unity of possession ; because none loioweth his own severalty, and therefore they all occupy promiscuously. This tenancy, there- fore, happens where there is a unity of possession merelVj but per- haps an entire disunion of interest, of title and of time. For if there be two tenants in common of lands, one may hold his part in fee simple, the other in tail, or for life; so that there is no necessary -unity of interest; one may hold by descent, the other by purchase-; or the one by purchase from A., the other by purchase frQm B. ; so that there is no unity of title ; one's estate may have been vested fifty years, the other's but yesterday; so that there is no unity of time. The only unity there is, is that of possession: and for this Littleton gives the true reason, because no man can certainly tell which part is his own ; otherwise even this would be soon destroyed. "Tenancy in common may be created, either by the destruction of the two other estates in joint tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest: As, if one of two joint tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint tenant are tenants in common ; for they have not several titles, the other joint tenant by the original grant, the alienee by the new aHenation ; and they also have several interests, the former joint Ch. 4) JOINT OWNERSHIP 55 tenant in fee simple, the alienee for his own life only. So, If one joint tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances. I'f one of two parceners alienes, the alienee and the remaining parcener are tenants in common; because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, as might have been the case had the limita- tion been to a man and woman, and the heirs of their bodies begotten : and in this, and the like cases, their issue shall be tenants in common ; because they must claim by different titles, one as heir of A., and the other as heir of B. ; and those two not titles by purchase, but de- scent. In short, whenever an estate in joint tenancy or coparcenary is dissolved, so that there be no partition made, but the unity of pos- session continues, it is turned into a tenancy in common. "A tenancy in common may also be created by express limitation in a deed ; but here care must be taken not to insert words which im- ply a joint estate; and then if lands be given to two or more, and it be not joint tenancy, it must be a tenancy in common. But the law is apt in its constructions to favor joint tenancy rather than tenancy in common; because the divisible services issuing from the land (as rent, &c) are not divided, nor the entire services (as fealty) multiplied by joint tenancy, as they must necessarily be upon a tenancy in comr mon. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common; and, if one grants to another half of his land, the grantor and grantee are also tenants in common : because, as has been before observed, joint ten- ants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed, that it is impossible they should take a joint interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is said to be a joint tenancy; because that is necessarily implied in the word 'jointly,' the word 'severally' perhaps only implying the power of partition; and an estate given to A. and B., equally to be divided between them, though in deeds it hath been said to be a joint tenancy for it implies no more than the law has annexed to that estate, viz., divisibility, yet in wills it is certainly a tenancy in com- mon, because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imper- fectly expressed. And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to add express words of exclusion as well as description, and limit the estate to A. and B., to hold as tenants in common, and not as joint tenants. "As to the incidents attending a tenancy in common: Tenants in common (like joint tenants) are compellable by the statutes of Henry VIiI and William III, before mentioned, to make partition of their 56 JOINT OWNERSHIP (Ch. 4 lands; which they were not at common law. They properly take , by distinct moieties, and have no entirety of interest ; and therefore there is no survivorship between tenants in conimpn. Their otlier in- cidents are such as merely arise from the unity of possession ; and are therefore the same as appertain to joint tenants merely upon that account; such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. II, c. 22, and 4 Anne, c. 16. * * * "Estates in common can only be dissolved in two ways: 1. By uniting all the titles and interests in one tenant, by purchase or other- wise; which brings the whole to one severalty. 2. By making par- tition between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of pos- session, * ♦ * " Tenancy by entirety, is only incidentally mentioned by Blackstone, and then not under that name. It is a species of joint tenancy peculiar to the relation of husband and wife. It can be created only by a con- veyance and to persons who are at the time of the conveyance hus- band and wife. Any conveyance to husband and wife operates to vest in them a tenancy by the entirety, unless specified to be otherwise. The doctrine of survivorship obtains in tenancy by the entirety as in joint tenancy. It differs, in that it cannot be defeated by a convey- ance of either one of the tenants. A conveyance to the husband and wife and a third person operates to give the husband and wife one half the land as tenants by the entirety and to vest the other half in the third person as a joint tenant or tenant in common, according to the language of the conveyance. The rights which the husband had at common law to the control and disposition of his wife's real property during their joint lives should not be confused with the rights under tenancy by entirety. Thus if H. and W., husband and wife, are seised in fee as tenants by entirety, and H. conveys to X. in fee, X. may or may not get a fee simple. He has the privilege of enjoying the land during the joint life of H. and W. because of H.'s power of disposition over W.'s undivided interest during coverture. If H. survives W., the Avhole title will pass to him by the doctrine of survivorship, and he will be estopped to assert his title as against X., who will thus obtain an in- defeasible fee simple. On the other hand, should W. survive H., then, H.'s power of control being terminated, the doctrine of survivor- ship will put the whole fee in W. The right of marital control by a husband over his wife's real es- tate has been very largely abolished by rhodem statutes; and in m any states the doctrine of tenancy by entirety has_also been done away with. ~' " ^ Another form of joint ownership entirely unknown to the common law is that of community property. Under this species of ownership all property acquired by husband and wife by their own efforts dur- Ch. 4) JOINT OWNERSHIP 57 ing marriage, as distinguished from gifts to either one of them, be- longs to them jointly. Ordinarily the husband is given the manage- ment of such property during marriage. On the death of either spouse, one half of the property goes to the heirs or devisees of the deceased spouse, and the other half to the surviving spouse.* 2 On joint ownership see Digby, op. dt. 275-281 ; Lltt. §§ 241-248, 250, 2.'54. 265, 277, 2S0, 281. 283, 285, 287, 288. 290-292, 294, 295, 298, 299, 302-304, 309, 319, 321, 322; WUUams, op. cit. 134-141. 58 DISSEISIN AND THE REMEDIES THEREFOR (Ch. 5 CHAPTER V DISSEISIN AND THE REMEDIES THEREFOR The importance of the seisin of the land, the freehold possession of it, in the earlier law, has already been referred to. This doctrine of seisin remains to be considered from still another point of view, viz., as to the effect produced upon the rights of persons having an interest in land by a wrongful ouster or disseisin^ therefrom. Suppose that A. is seised of land in fee simple, and that B. wrong- fully enters upon him and puts him out. The effect of this act by B., technically called a disseisin, is to divest A. of the seisin of the land and to vest a tortious seisin in B. Or, again, suppose that A. has a reversion in fee, subject to a life estate in B., and B. wrong- fully enfeoft's X. in fee. This also operates as a disseisin of A. The same result follows if the tenant for hfe should enfeoff X. in tail. This would give X. a tortious seisin in tail, with a tortious reversion in fee in B., the tenant for life. The effect of a disseisin, if com- mitted against a tenant in fee, was necessarily to deprive him of all 1 Beside disseisin in tlie narrow sense there are other ousters or dispos- sessions of land. Blaclvstone mentions the following: Abatement, intru- sion, discontinuance, deforcement. "An abatement is where a per.?on dies seised of an Inheritance, axid be- fore the heir or devisee enters, a stranger who has no right makes entry, and gets possession of the freehold ; this entry of him is called an abate- ment, and he himself is denominated an abator. • * • "Intrusion is the entry of a stranger, after a particular estate of free- hold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth seised of certain lands and tenements, and a stranger entereth thereon, after such death of the tenant, and before any entry of him in remainder or reversion. This entry and interposition of the stranger differ from an abatement in this; that an abatement is al- ways to the prejudice of the heir, or immediate devisee; an intrusion is al- ways to the prejudice of him in remainder or reversion. * * • "Discontinuance happens when he who hath an estate tail maketh a larger estate of land than by law he is entitled to do, in which case the estate is good, so far as his power extends who made it, but no farther. As if a tenant in tail makes a feoffment in fee simple or for the life of the feoffee, or in tail ; all which are beyond his power to make, for that by the common law extends no farther than to make a lease for his own life ; in such case the entry of the feoffee is lawful during the life of the feoffor, but if he retains the possession after the death of the feoffor, it is an in- jury, which is termed a discontinuance: the ancient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspend- ed, and for a while discontinued. • * * "Deforcement, in its most extensive sense, is nomen generalissimum ; a much larger and more comprehensive expression than any of the former: it then signifying the holding of any lands or tenements to which another person hath a right." 3 Bl. Com. 167 et seq. See further, on the old law of disseisin. Challis, op. cit. 89, 91. 405; Leake, op. cit. 4()-i:;; 1 Maitland, op. cit. 407-^57; 2 Poll. & Mait. op. cit. 40-80. Ch. 5) DISSEISIN AND THE REMEDIES THEREFOB 59 his interest in the land and to vest a tortious seisin in the disseisor, which might be divided into smaller tortious estates in the manner above indicated. A.'s interest was no longer an estate; after the disseisin, all he possessed was a right of entry or a right of action. These rights were peculiarly personal to himself. They could descend to his heir, but they could not be alienated. A.'s remedies after a disseisin of the sort above indicated were three : He had, first, the right of self-help. If within a short time after his disseisin (under the older law, apparently five days) he made a re- entry upon the disseisor, he might thereby successfully re-establish himself in the seisin of the land. At a later date this period was prob- ably somewhat lengthened, but it was always brief, and by the Stat- ute 3 Rich. II, ch. 8, it was provided that no entry should be made, even by disseisee,' if it involved a breach of the peace. If the cir- cumstances were such that A. could not safely make this re-entry up- on the land, he could keep alive his right of entry by making once a year as near the land as possible a definite assertion of his right there- to and a demand for the repossession thereof. This was known as keeping alive tlie right of entry by continual claim. Even under these circumstances, however, the right of entry was lost if the disseisor died in the wrongful seisin of the land, so that the wrongful seisin thereof descended to his heirs. In this case the right of entry was said to be tolled by descent cast. If the disseisee, for one reason or another, lost his right of entry, he was then driven to bring his action. Actions for the assertion of rights in land were of two sorts : Droitural and possessory. The purpose of the droitural action, as the name indicates, was to de- termine, as between the plaintiff and the defendant, who had the right to the land. The droitural actions, however, were very slow, very expensive, and gave a great advantage to the defendant, because of the mere fact that he was in the possession of the land with respect to which the action was being brought. Consequently in the reign of Henry II (1154-1189) the so-called possessory actions first made their appearance. The purpose of these actions was to determine, not the question of the ultimate right to the land, but who was entitled to the immediate possession thereof. That is to say, in the hypothetical case under discussion, if A. had lost his right of entry, his next step would be to bring a possessory action based upon the fact that he had been in possession of the land. In this action neither A. nor B. would be allowed to raise the question of the ultimate ownership of the land ; the only question that would be decided would be whether A. had been in the seisin of the land and B. had put him out with- out any judgment justifying B. in so doing. If so, A. would have judgment for a restoration to possession and for damages. After A. had been thus revested wnth the seisin of the land, B. might, as plain- tiff, litigate the question of who was really entitled to the land. The 60 DISSEISIN AND THE REMEDIES THEREFOR (Ch. 5 purpose and limited scope of this possessory action made it nec(»«'.sary that it should be brought within a short time after the disseisin com- plained of. The form of possessory action first devised was the novel disseisin; later other forms were invented to meet varying situations. If the plaintiff, A., delayed too long in the bringing of his posses- sory action, so that this method of procedure was no longer open to him, or if he was defeated in his possessory action through some technical reason, he would still be able to bring his droitural action. He would no longer be able to rely upon his right to immediate pos- session, but despite the fact that the defendant would have the benefit of the actual seisin of the land, the plaintiff would still have it open to him to show that he nevertheless had the better right to the land than the defendant, and if he ultimately succeeded in obtaining a judgment in the droitural action, he would then be restored to the land from which he had been disseised. By the beginning of the 17th century both the writs of entry and writs of right had become practically obsolete, and the action of ejectment, of which mention has been made in the discussion of lease- hold estates, had become the almost universal method of settling the right to both possession and title of land. The use of fictions by which this action was enlarged from its original narrow purpose is char- acteristic of the method by which the common-law judges accomplish- ed desirable results by the adoption of means that were originally intended for no such purpose. The development of the old action of quare ejecit into the modern action of ejectment is thus described:^ "As the plaintiff did not possess a freehold interest, his title to tlie lands was only so far acknowledged in this action [quare ejecit] as to give him damages for the injury he had sustained, but not to restore to him the possession of his term. * * * "Whilst the feudal system continued in its vigour, and estates for years retained their original character, but little inconvenience re- sulted to tenants from this imperfect remedy. But when the feudal policy declined, and agriculture became an object of legislative re- gard, the value and importance of estates of this nature considerably increased, and it was necessary to afford lessees for years a more effectual protection. It then became the practice for leaseholders, when disturbed in their possessions, to apply to courts of equity for redress, and to prosecute suits against the lessor himself, to obtain a specific performance of the grant, or against strangers for perpetual injunctions to quiet the possession; and these courts would then com- pel a restitution of the land itself to the party immediately injured. "The courts of common law soon afterwards adopted this method of rendering substantial justice; not indeed by the invention of a new writ, which perhaps would have been the best and most prudent sAclams, Ejectment (Sd Ed.) p. 8 et seq. Ch. 5) DISSEISIN AND THE REMEDIES THEREFOR 61 method, but by adapting the one already in existence to the circum- stances of the times ; and introducing, in the prosecution of a writ of ejectment, a species of remedy neither warranted by the original writ, nor demanded by the declaration, namely, a judgment to recover the term, and a writ of possession thereupon. "It is singular that neither the causes which led to this important change, nor the principles upon which it was founded, are recorded in any of the legal authorities of those times. It is difficult, if not impossible, to ascertain with accuracy the precise period when the alteration itself took place ; although it certainly must have been made between the years 1455 and 1499, since in the former year it is said by one of the judges that damages only can be recovered in ejectment; and an entry of judgment is still extant, given in the latter of those years, that the plaintiff in ejectment shall recover both his damages and his term. It is said, indeed, in argument as early as the year 1458, that the term may be recovered in ejectment, but no reason is assigned for the assertion, nor is any decision upon the point on rec- ord until the time of the entry already mentioned. "But, whatever might be the causes which occasioned this alteration, the effects they produced were highly important. A new efficacy was given to the action of ejectment, the old real actions fell into disuse, and in the subsequent periods of our history the action of ejectment became the regular mode of proceeding for the trial of possessory titles. "That an action of ejectment, by means of this alteration in its judg- ment, might restore termors to possession who had been actually ejected from their lands, is sufficiently obvious; but it is not perhaps so evident how the same proceeding could be applicable to a disputed title of freehold, or why, as soon after happened, the freeholder should have adopted this novel remedy. No report of the case, in which this bold experiment was first made, is extant; but from the innumerable difficulties which attend real actions, it is not surprising that the free- holder should take advantage of a fiction which enabled him to avoid them ; and as the Court of Common Pleas possessed an exclusive right of judicature in matters of real property, it is probable that the ex- periment originated in the Court of King's Bench, as an indirect method of giving to that court a concurrent jurisdiction with the Common Pleas. But, however this may be, the experiment succeeded, and the uses of the action, as well as its nature, were changed. "When first the remedy was applied to the trial of disputed titles, the proceedings were simple and regular, differing but little from those previously in use, when an ejectment was brought to recover the damages of an actual trespass. The right to the freehold could only be determined in an indirect manner. It was a term which was to be recovered by the judgment in the action, and it was therefore neces- sary that a term should be created; and as the injury complained of 62 DISSEISIN AND THE REMEDIES THEREFOE (Ch. 5 in the writ was the loss of possession, it was also necessary that the person to whom the term was given, should be ejected from the lands. "In order to obtain the first of these requisites, namely, a term, the party claiming title entered upon the disputed premises, accompanied by another person, to whom, whilst on the lands, he sealed and de- livered a lease for years. This actual entry was absolutely nec- essary; for, according to the old law of maintenance, it was a penal offence to convey a title to another, when the grantor himself was not in possession. And, indeed, it was at first doubted, whether this nominal possession, taken ■ only for the purpose of trying the title, was sufficient to excuse him from the penalties of that offence. "It is from the necessity of this entry, also, that the remedy by ejectment is confined to cases in which the claimant has a right to the possession. When only a right of property or a right of action re- mained to him, the entry would be illegal, and consequently not suf- ficient to enable the party making it to convey a title to his lessee; and as the principles of the action still remain the same, although its proceedings are changed, the right to make an entry continues to be requisite, though the entry itself is no longer necessary. "The lessee of the claimant, having acquired all right to the pos- session, by means of the lease already mentioned, remained upon the land, and then the person who came next upon the freehold, animo possidendi, or, according to the old authorities, even by chance, was accounted an ejector of the lessee, and a trespasser on his possession. A writ of trespass and ejectment was then served upon the ejector by the lessee. The cause regularly proceeded to trial as in the com- mon action of trespass ; and as the lessee's claim could only be found- ed upon the title of his lessor, it was necessary to prove the lessor's interest in the land, to enable the plaintiff (the lessee) to obtain a verdict. The claimant's title was thus indirectly determined; and although the writ of possession must of course have been issued in the plaintiff's name, and not in his own, yet as the plaintiff had pros- ecuted the suit only as the lessor's friend, he would immediately give up to him the possession of the lands. "In the infancy of the experiment, this mode of proceeding could be attended with no ill consequences. As the party previously in posses- sion, must in contemplation of law be upon the lands, and certainly, animo possidendi, the friend of the claimant was allowed to consider him as an ejector, and make him the defendant in the action. When, however, the remedy became more generally used, this simple method was found to be productive of considerable evil. It was easy for the claimant to conceal the proceedings from the person in possession, and to procure a second friend to enter upon the lands, and eject his lessee immediately after the execution and delivery of the lease. The lessee would then commence his suit against this ejector, and the par- ty in possession might consequently be ousted of his lands, without any Ch. 5) DISSEISIN AND THE REMEDIES THEREFOR 63 opportunity of defending his title. To check this evil, a rule of the court was made, forbidding a plaintiff in ejectment to proceed against such third person without giving a previous notice of the proceedings to the party in possession; and it was the practice for such party, on the receipt of this notice, if he had any title to the lands, to apply to the court for permission to defend the action; which application was uniformly granted, upon his undertaking to indemnify the de- fendant (the third person) from the expenses of the suit. The action however proceeded in the name of such defendant, though the person in possession was permitted at the trial to give evidence of his own title. "A considerable alteration in the manner of proceeding in the ac- tion was occasioned by this rule, although it was only intended to rem- edy a particular evil. It became the general practice to have the lessee ejected by some third person, since called the casual ejector, and to give the regular notice to the person, instead of making him, as before, the trespasser and defendant. A reasonable time was allowed by the courts, for tlie person in possession, after the receipt of the notice, to make his application for leave to defend the action, and if he neglected to do so, the suit proceeded against the casual ejector, as if no notice had been necessary. "The time when this rule was made is unknown, but as the evil it was intended to remove must soon have been discovered, it prob- ably was adopted shortly after the remedy grew into general use. It seems also to have been the first instance, in which the courts inter- fered in the practice of the action, and is therefore remarkable as the foundation of the fictitious system, by which it is now conducted. "In this state, with the exception of a few practical regulations, not necessary to be here noticed, the action of ejectment continued until the time of the Commonwealth. Much trouble and inconveni- ence, however, attended the observance of the different formalities. If several persons were in possession of the disputed lands, it was necessary to execute separate leases upon the premises of the different tenants, and to commence separate actions upon the several leases. Difficulties also attended the making of entries, and the action of ejectment had by this time grown into such general use, as to make these inconveniences generally felt. A remedy, however, was discov- ered for them by Lord Chief Justice Rolle, who presided in the Court of Upper Bench during the Protectorate; and a method of proceed- ing in ejectment was invented by him, which at once superseded the ancient practice, and has by degrees become fully adapted to the modern uses of the action. "By the new system, all the forms which we have been describing are dispensed with. No lease is sealed, no entry or ouster really made, the plaintiff and defendant in the suit are merely fictitious names, and in fact all those preliminaries are now only feigned, which the ancient practice required to be actually complied with. ♦ * * 64 DISSEISIN AND THE REMEDIES THEREFOR (Ch. 5 "A. the person claiming title, delivers to B. the person in pos- session, a declaration in ejectment, in which C. and D., two fictitious persons, aire made respectively plaintiff and defendant; and in which C. states a fictitious demise of the lands in question from A. to him- self for a term of years, and complains of an ouster from them by D, during its continuance. To this declaration is annexed a notice, supposed to be written and signed by D., informing B, of the pro- ceedings, and advising him to apply to the court for permission to be made defendant in his place, as he, having no title, shall leave the suit undefended. Upon receipt of this declaration, if B. do not apply within a limited time to be made defendant, he is supposed to have no title to the premises ; and upon an affidavit that a declaration has been regularly served upon him, the court will order judgment to be entered against D. the casual ejector, and possession of the lands will be given to A. the party claiming title. When, however, B. applies, pursuant to the notice, to defend the action, the courts annex certain conditions to the privilege. Four things are necessary to enable a person to support an ejectment, namely, title, lease, entry, and ouster; and as the three latter are only feigned in the modern ■practice, C. (the plaintiff) would be nonsuited at the trial if he were obliged to prove them. The courts therefore compel B. if made de- fendant, to enter into a rule, generally known as the consent^ruk^ by which he undertakes, that at the trial he will confess the lease, entry, and ouster to have been regularly made, and rely solely upon the merits of his title; and, lest at the" trial he should break his en- gagement, another condition is also added, that in such case, he shall pay the costs of the suit, and shall allow judgment to be entered against D. the casual ejector. These conditions being complied with, the declaration is altered, by making B. the defendant instead of D., and the cause proceeds to trial in the same manner as in other ac- tions." Ch. 6) USES AND TRUSTS 65 CHAPTER VI USES AND TRUSTS The system of rights, powers, privileges, and immunities as outlined in the preceding chapters constituted the measure of interests in land as developed and recognized by the courts of common law. Then, however, as now, men for economic or social or religious reasons fre- quently desired to engage in courses of action or to achieve results which either were actually forbidden by the law or which at least the law would not recognize or protect. It was for reasons of this sort that the doctrine of uses made its appearance in England. In its essence the idea of a use was extremely simple. A. puts the title to land in B., with the understanding that C. is to have the enjoyment or use of the la nd. B. in such a case is the only one who has any legal title ; C. is entirely dependent upon B.'s honesty and good faith for the protection of the interest in the land which A. intended that C. should have. It is evident therefore, that the desire of A. to achieve the result and his trust in B.'s good faith must be strong to induce him to engage in such a course of action. The historical origin of uses is obscure. There is some reason for believing that traces of them can be found as far back as the 12th century. One of the eariiest and most potent influences in the creation of uses was the desire to evade the mortmain statutes. Within a century after the Norman Conquest the large accumulation of land in the hands of the religious corporations began to be a source of con- siderable trouble in English law and policy. The conveyance of land in mortmain was forbidden by Magna Carta, section 43 (1217), which provided as follows: "It shall not be lawful from henceforth to any to give his lands to any religious house, and to take the same land again, to hold of the same house. Nor shall it be lawful to any house of religion to take the lands of and to lease the same to him of whom they were received to be holden. If any from henceforth so give his lands to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee." After the adoption of Magna Carta the broad construction that was put upon this section rendered it impossible for a monastery to receive the legal title to land. This being the situation, if a person wished to convey land to a monastery, some indirect method became inevitable. The following device was the one that was resorted to : The grantor A., would make a Hvery of seisin of the land in question to B. in fee, with a direction to B. to allow the monastery to have the occupation Big. Int. — 5 66 USES AND TRUSTS (Ch. 6 and use of the land ; B.'s legal title being purely nominal, for the pur- pose of evading the statutory provision. In a court of law B. was the only person having an interest in the land. But B., in accordance with the terms of his understanding, would permit the monastery to take possession of the land. Its only standing at law was that of a tenant at will, and if B. violated his pledge and turned the monastery out it was helpless legally. In such a case some other means must be found to coerce B. into performing his obligation. This means was found at an early date in the spiritual authorities. If B. refused to abide by his agreement, the parish priest or possibly the abbot of the monastery or some other religious authority would threatenthe sjgirit- ual punishment of interdict, or excommunication, and, in a time when the religious influences were as powerful and widespread as they were in England in the 12th century, such a threat was potent, and in many cases quite sufficient to compel B. to perform his obligation and to pro- tect the beneficiary in the enjoyment of the property. This device of evading the mortmain statute by means of uses was abolished in 1391 by 15 Rich. II, ch. 5, which provides as follows: "It is agreed and assented, that all they that be possessed by feoff- ment or by other manner to the use of religious people, or other spirit- ual persons, of "lands and tenements, fees, advowsons, or any man- ner of other possessions whatsoever, to amortise them, and whereof the said religious and spiritual persons take the profits, that betwixt this and the feast of St. Michael next coming they shall cause them to be amortised by the licence of the king and of the lords, or else that they shall sell and aliene them to some other use, between this and the said feast, upon pain to be forfeited to the king and to the lords, ac- cording to the form of the said Statute of Religious, as lands purchased by religious people; and that from henceforth no such purchase be made, so that such religious or other spiritual persons take thereof the profits, as afore is said, upon pain aforesaid ; and that the same stat- ute extend and be observed of all lands, tenements, fees, advowsons, and other possessions purchased or to be purchased to the use of guilds or fraternities." By this time, however, the desirability of uses for purposes other than those of evading the mortmain statute had become so manifest that the practice grew in spite of the forbidding of uses for religious purposes. One of the most important of the other sources of uses was the facility it afforded in evading the onerous feudal obligations. This may best be illustrated by a concrete case. Suppose that A., a tenant in fee simple, is likely to die within a year or so leaving a minor son as his heir. If A. dies seised of the lands, the overlord (the king, if A, is a tenant in capite) will be entitled to wardship and marriage in the land, with the prejudicial results to the interest of A,'s heir that have already been pointed out. If now, A., during his life, enfeoffs B., a young man, of the land in fee simple for the benefit of A,'s minor son in fee simple. r Ch. 6) USES AND TRUSTS 67 A. will have to pay the customary fine for alienation, which is slight ; but the legal title of the land will then be in B., and A.'s later death will have no effect upon B.'s legal title. At the same time the heir, for whose use the legal title has been put in B., will be protected in the enjoyment of the land, and the profit of it will be accumulated for him and not go into the pocket of the overlord, and he will also be free from the feudal burden of the lord's right of marriage. There are certain drawbacks. Against these advantages must be put the fact that, since the legal title is in B., the land will be subject to dower in favor of B.'s wife, if he has one, and if B. should die seised of the lands his overlord would be entitled to whatever feudal incidents might accrue as a result of that death. These possibilities can be reduced to a minimum if A., instead of enfeoffing B. alone, enfeoffs B., C, and D. as joint tenants of the land in fee. In this case the doctrine of sur- vivorship will cut out dower rights and any rights on the part of the overlord, so long as any of the joint tenants survive. When the title becomes vested in a single joint tenant, the process can be repeated by a conveyance by him to other joint tenants upon the same uses. The technical name that is given to the one who holds the legal title in (t^jc«*- the manner above described is feoffe e to uses ; the beneficiary is tech- nically known as the cestui que use. Another advantage that the doctrine of uses offered was in the facility with which equitable titles could be conveyed. The common- Taw methods of conveying legal title have already been discussed. These common-law doctrines had no application to the interests of the beneficiary, and a mere parol transfer or creation of a beneficial in- terest was sufficient. Again, as has been pointed out, the legal title to land held in knight service could not be left by will. This was evaded by the device of A. enfeoffing B. of land in fee simple, to hold to the use of such persons as A. should designate by his will. Other causes that contributed to the development of the doctrine of uses was the desire of debtors to defeat creditors in their rights in the debtor's land and to render more difficult the forfeiture of the land for treason. The first of these two purposes was prevented by statute at a rather early date. Whether the doctrine of uses would have grown to the extent that it did, if the protection of the cestui que use had been merely the re- ligious one that has already been referred to, may perhaps be doubted. But in time another coercive power was developed for the protec- tion of the beneficiary in the jurisdiction of the King's chancellor. I The chancellor, in the 11th and 12th centuries, was known as the "keeper of the King's conscience." At a time when the distinction between the legislative and executive and judicial powers of the gov- ernment was not sharply defined, and the king was regarded as the source of all power, it was the common custom for persons who were aggrieved and found themselves in a situation where either the courts 68 USES AND TRUSTS (Ch. C of law were powerless to protect them or where there was no right that the common law recognized, to petition the king for redress from the hardship of their particular case. These petitions were customarily referred by the king to the chancellor for his action, and by the mid- dle of the 14fh century the jurisdiction of the chancellor to deal with such cases as a matter of course was definitely established. The posi- tion of the cestui que use would make a particularly strong appeal, since the unfairness of allowing the feoffee to uses to take advantage of the fact that he had the legal title and to exercise it in violation of the terms of his trust was so obvious that the chancellor would not hesi- tate to give relief in such a case. By the end of the 14th century peti- tions to enforce uses of lands begin to appear in the records, and from that time on they grow steadily in number. The method by which the chancellor operated is worth noticing. The legal title to the land was in the feoffee to uses and that legal title could not be directly affected by the chancellor. Indeed, he made no attempt to deal with or change the legal title as such. His method of procedure was based upon a recognition of the fact that the legal title to the land was in the feoffee to uses, and it took the form of commanding the feoffee to uses so to deal with the land which he thus owned that the cestui que use should be allowed to enjoy it in accord- ance with the will of the creator of the use. If the feoffee refused to do this, the chancellor would fine him, or, more. commonly, imprison him, until he was ready to comply with the order. The writ by which the chancellor summoned the feoffee to uses began with the Latin words "Sub poena," and consequently the process in chancery to en- force a use was frequently referred to as the subpoena. Once the general principle had been definitely established of pro- tection by the chancellor of the rights of the cestui que use, the law of uses began to take definite shape and various questions in connection therewith began to arise. Naturally one of the first questions would be as to who would be bound by the terms of the use. Clearly the original feoffee to uses, B. would be bound to abide by his agreement. If B. died, leaving an heir, D., to whom the legal title of the land would pass, the chancellor at first refused to enforce the use against him. The reason for this was that the right of the cestui was regarded as being not so much a property right, a right in the land, as a personal right against the feoffee to uses as an individual. Since the confidence had been reposed only in B., the original feoffee, it seemed that tliere was no good reason for charging the conscience of B.'s heir with respect to the land to which he had the legal title, where he had personally made no promises with respect thereto. By the mid- dle of the 15th century, however, it was established that B.'s heir would take the land subject to the use. Since he had paid nothing for the land, the justice of this result seems clear. On the same principh, if B. during his life enfeoft'ed X. of the land as a gift, the chancellor had Ch. 6) USE SAND TEUSTS 69 no hesitation in enforcing the terms of the use against X. Again, if X. paid a consideration for the land, but at the time that he took it knew of the fact that it was held subject to a use in favor of C, there would seem to be no good reason why X., the purchaser, should com- plain if the use was also enforced against him. On the other hand, if the purchaser had paid value for the land and took the legal title in ignorance of the fact that any third person was supposed to have a beneficial interest in the land, it seemed unfair to permit the beneficiary to subject X. to his claim. In this situation both the beneficiary and the purchaser were equally innocent, and the purchaser had the added advantage over the beneficiary that he had the legal title to the land, and as such would naturally be entitled to enjoy it as he saw fit, unless the beneficiary could successfully sustain the burden of affirmatively establishing that he should be allowed to have the beneficial enjoyment despite the fact of X.'s legal title. The principle involved in this latter type of case is embodied in the proposition that a purchaser in good faith and for a valuable consideration of the legal title to land cuts off equitable rights therein. It will be noticed that in the various situations so far dealt with the person who succeeded to the title of the land with respect to which the cestui claimed, did so either as heir o~r donee or purchaser of the title of the original feoffee to uses ; that is to say, he took through the feoffee, and he was subject to the equities that were good against the feoffee, except in the case already mentioned of his being a purchaser in good faith for a valuable consideration. If the feoffee to uses forfeited his estate, so that it went to his overlord by escheat, or if he was disseised of the land, or if he died leaving a wife, who was allotted dower in the land, the cestui que use lost his right as against the person so tak- ing title. The reason for this difference was that in the cases last men- tioned the persons taking title took it after the feoffee to uses, but not through the feoffee to uses ; their title being considered as being sep- arate from and independent of, that of the feoffee. This doctrine is technically expressed in the statement that the interest of the cestui que use may be enforced against a person taking title in the per, but not against a person taking in the post. Another problem that has to be considered is as to when a use was raised. If A. enfeoffed B. in fee, and declared that the use of the land was to be in C, there could be no question. It was not necessary to employ any particular terms in order to declare the use ; any language that made it clear that a specified person was to have the beneficial in- terest in the land was sufficient. Where the use was not expressly declared, there was more doubt in the matter; the problem then being to ascertain the intent of the feoffor from other circumstances. If the feoffee paid a consideration for the land, the inference would seem clear that he was not taking the title merely to benefit some one else, and the beneficial interest would be regarded as being in him, together 70 USES AND TRUSTS (Ch. 6 with the legal title. This doctrine prevailed in the lack of any other evidence showing the one entitled to the beneficial interest to be other than the feoffee to uses, even where the consideration was a merely nominal one. If A. conveyed the land to B. for life or for years, and nothing was said as to who should have the use of the land, it was con- sidered that the feudal obligations that would be due from B. to A. by virtue of the tenure existing between them would be a sufficient con- sideration to keep the use of the land in B. In either of these two last mentioned cases if the use was expressly declared to be in a third per- son, such express declaration would prevail. Another situation was this. A. might enfeoff B. of the land in fee simple, and there be neither a consideration nor any statement as to who was to have the beneficial use of the land. To understand the construction that the chancellor put upon this state of affairs, it must be remembered that it has been said that by the 15th century in England "the use [custom] of the country to deliver land to be safely kept has made a mere delivery of possession no evidence of right with- out valuable consideration." ^ This being the practice, the chancellor would come to the conclusion that the purpose of the conveyance was merely to put the legal title in B., but that A. intended to keep the beneficial interest in the land in himself. In these circumstances the use was technically said to result to A. A similar doctrine would be applied in the case of a feoffment to B. in fee, where the use was de- clared only for a smaller estate than a fee, as, for example, to C. for life. In this case the use after the termination of C.'s life estate would result to A. in fee, and this result would follow even though a consid- eration was paid; the presumption being that the consideration was paid for the use declared. So far, as a matter of convenience, we have considered uses raised on a feoffment. It should be noticed, however, that a use might be raised upon any other form of common-law conveyance, such as a fine, or a recovery, or a lease and release. Up to here we have been considering cases in which the use was raised in connection with a conveyance of the legal title by the creator of the use to some third person for the benefit of the cestui que use ; that is, the use has always been raised in connection with a change of the possession of the land from the original creator of the use to the gran- tee of the legal title. It was entirely possible, however, to raise a use without such transmutation of possession. Thus A., the owner of land in fee simple, might merely sell to B. for a valuable consideration, the use of the land either for years or for life or in fee. In such case A. would still retain the legal title, but B.'s equity and his right to the protection of the chancellor would be just as clear, and the protection would be just as freely given, as in the cases which have hitherto been considered. The chancellor would by his orders compel A. to permit » Gilbert, Uses and Trusts, 125. Ch. 6) USES AND TRUSTS 71 B. to have the use of the land in accordance with the terms of their bargain, so that A. would have only the bare legal title, and B. the bene- '^^^^ ficial interest. This transaction was technically known as a bargain . '^^--' _and_sale. Since it was not a dealing with the legal interest in the land, it did not have to satisfy any of the common-law formalities as to con- veyances. A mere informal agreement between the parties was suffi- cient, if the chancellor was satisfied as to what the terms of the bargain were. On the other hand, the chancellor would not assist B., unless B. had paid a valuable consideration for the use of the land. While in the common-law courts a promise under seal was just as binding on A. as though it was supported by a valuable consideration, and, while the deed was one of the established methods of conveying common-law interests in land, these mere formalities were not regarded by the chancellor as being sufficient to entitle B. to enforce against A. a prom- ise which was not supported by a valuable consideration. This doc- trine was modified in the 16th century in one type of case which will be subsequently considered. With the growth of uses the possibility of creating in the cestui es- tates of various sizes, similar to the legal estates, but with much more flexibility in their creation, became recognized. Use estates might be created for years, for life, in tail or in fee, in reversion or in remainder, and otherwise. This will be considered at greater length subsequently. The custom of raising uses in land grew constantly in England, and by the end of the 15th century a large part of English lands were held subject to uses, so that the legal title to the land was in one person, and the beneficial title to the land in another. While this custom had the advantages that have been mentioned above, it also had certain disadvantages. Titles, for example, were necessarily in an uncertain condition. The strongest objection to the prevalence of uses came from the crown, because of the serious encroachments that were made on the feudal rights of the crown as a result of the creation of equitable titles which were entirely free from the common-law feudal obliga- tion. Several attempts were made to meet this situation. One of them, passed in 1483, was as follows : St. 1 Rich. Ill (1483) c. 1 : "Forasmuch as by privy and unknown feoffments, great unsurety, trouble, costs, and grievous vexations daily grow among the King's subjects, insomuch that no man that buyeth any lands, tenements, rents, service, or other hereditaments, nor wo- men that have jointures or dowers in any lands, tenements, or other hereditaments, nor men's last wills to be performed, nor leases for term of life, or of years, no annuities granted to any person or persons for their services for term of their lives or otherwise be in perfect surety, nor without great trouble and doubt of the same, because of the said privy and unknown feoffments: (2) For remedy whereof, be it or- dained, established, and enacted, by the advice of the Lords Spiritual and Temporal, and by the Commons in this present Parliament assem- 72 USES AND TEUSTS (Ch. 6 bled, and by authority of the same, that every estate feoffment, gift, release, grant, leases and confirmations of lands, tenements, rents, serv- ices, or hereditaments, made or had, or hereafter to be made or had by any person or persons being of full age, of whole mind, at large, and not in duress, to any person or persons ; and all recoveries and ex- ecutions had or made, shall be good and effectual to him to whom it is so made, had or given, and to all other to his use, (3) against the seller, feoffor, donor, or grantor thereof, (4) and against the sellers, feoffors, donors, or grantors, and every of them, his or their heirs, claiming the same only as heir or heirs to the sellers, feoffors, donors, or grantors and every of them, (5) and against all other having or claiming any title or interest in the same, only to the use of the same seller, feoffor, donor or grantor, sellers, feoffors, donors or grantors, or his or their said heirs at the time of the bargain, sale, covenant, gift, or grant made, (6) saving to every person or persons such right, title, action or interest, by reason of gift in tail thereof made, as they ought to have had, if this Act had not been made." The effect of this statute was to give to the cestui que use power to pass to his grantee both his own estate and the legal estate of the feoffee to uses. But this was merely a privilege, the exercise of which lay in the discretion of the cestui. The statute did very little toward doing away with what was, from the point of view of the crown, the fun- damental evil, viz., the existence of the separate equitable title. Some fifty years later, upon the insistence of Henry VIII, the so-called Stat- ute of Uses was passed for the purpose of definitely doing away with the system of double ownership, legal and equitable.^ St. 27 Hen. VIII (1536) c. 10:- "Where by the common laws of this realm, lands, tenements and hereditament's be not devisable by testa- ment, (2) nor ought to be transferred from one to another, but by sol- emn livery and seisin, matter of record, writing sufficient made bona fide, without covin or fraud; (3) yet nevertheless divers and sundry iniaginations, subtle inventions and practices have been used, whereby the hereditaments of this realm have been conveyed from one to an- other by fraudulent feoffments, fines, recoveries, and other assur- ances craftily made to secret uses, intents and trusts ; (4) and also by wills and testaments, some time made by nude parolx and words, sometimes by signs and tokens, and sometimes by writing, and for the most part made by such persons as be visited with sickness, in their extreme agonies and pains, or at such time as they have scantly had any good memory or remembrance ; (5) at which times they being pro- voked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and inher- itances; (6) by reason whereof, and by occasion of which fraudulent 2 On uses prior to the statute of uses see 2 Bl. op. cit. 327-332 ; Challis, op. pit. 385, 3S6; Digby, op. cit. cli. VI; Leake, op. cit. 78-S2; Williams, op. cit. 1G5-170. Ch. 6) USES AND TRUSTS 73 feoffments, fines, recoveries, and other like assurances to uses, con- fidences and trusts, divers and many heirs have been unjustly at sun- dry times disinherited, the lords have lost their wards, marriages, re- liefs, harriots, escheats, aids pur fair fils chivaHer & pur file marier, (7) and scantly any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or executions for their rights, titles and duties ; (8) also men married have lost their tenancies by the curtesy, (9) women their dow- ers, (10) manifest perjuries by trial of such secret wills and uses have been committed; (11) the King's Highness hath lost the profits and advantages of the lands of the persons attainted, (12) and of the lands craftily put in feoffments to the uses of aliens born, (13) and also the profits of waste for a year and a day of lands of felons attainted, (14) and the lords their escheats thereof; (15) and many other in- conveniences have happened and daily do increase among the king's subjects, to their great trouble and inquietness, and to the utter sub- version of the ancient common laws of this realm ; (16) for the extirp- ing and extinguishment of all such subtle practiced feoffments, fines, recoveries, abuses and errors heretofore used and accustomed in this realm, to the subversion of the good and ancient laws of the same, and to the intent that the King's Highness, or any other his subjects of this realm, shall not in any wise hereafter by any means or inventions be deceived, damaged or hurt, by reason of such trusts, uses or con- fidences : (17) it may please the King's most royal majesty, That it may be enacted by his Highness, by the assent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assem- bled, and by the authority of the same, in manner and form following ; that is to say. That where any person or persons stand or be seised, or at any time hereafter shall happen to be seised, of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remain- ders or other hereditaments, to the use, confidence or trust of any other person or persons, or of any body politick, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will or otherwise, by any manner or means whatsoever it be ; that in every such case, all and every such person and persons, and bodies politick that have or hereafter shall have any such use, confidence or trust in fee simple, fee tail, for term of life or for years or otherwise, or any use, confidence or trust in remainder or reverter, shall from henceforth stand and be seised, deemed and adjudged in lawful seisin, estate and possession of and in the same honours, castles, manors, lands, tene- ments, rents, services, reversions, remainders, and hereditaments, with their appurtenances, to all intents, constructions and purposes in the law, of and in such like estates as they had or shall have in use, trust or confidence of or in the same; (19) and that the estate, title, right and possession that was in such person or persons that were, or hereafter shall be seised of any lands, tenements or hereditaments, to the use, 74 USES AND TRUSTS (Ch. 6 confidence, or trust of any such person or persons or of any body pol- itick, be from henceforth clearly deemed and adjudged to be in him or them that have, or hereafter shall have such use, confidence or trust, after such quality, manner, form, and conditions as they had before, in or to the use, confidence or trust that was in them. "II. And be it further enacted by the authority aforesaid, That where divers and many persons be, or hereafter shall happen to be, jointly seised of and in any lands, tenements, rents, reversions, re- mainders or other hereditaments, to the use, confidence, or trust of any of them that be so jointly seised, that in every such case those person or persons which have or hereafter shall have any such use, confidence or trust in any such lands, tenements, rents, reversions, remainders or hereditaments, shall from henceforth have, and be deemed and adjudg- ed to have only to him or them that have, or hereafter shall have any such use,' confidence or trust, such estate, possession and seisin, of and in the same lands, tenements, rents, reversions, remainders and other hereditaments, in like nature, manner, form, condition and course, as he or they had before in the use, confidence or trust of the same lands, tenements, or hereditaments ; (2) saving and reserving to all and singu- lar persons and bodies politick, their heirs and successors, other than those person or persons which be seised, or hereafter shall be seised, of and lands, tenements or hereditaments, to any use, confidence or trust, all siich right, title, entry, interest, possession, rents and action, as they or any of them had, or might have had before the making of this Act. "III. And also saving to all and singular those persons, and to their heirs, which be, or hereafter shall be seised to any use, all such for- mer right, title entry, interest, possession, rents, customs, services and action as they or any of them might have had to his or their own proper use, in or to any manors, lands, tenements, rents or heredita- ments, whereof they be, or hereafter shall be seised to any other use, as if this present Act had never been had nor made ; any thing con- tained in this Act to the contrary notwithstanding. "IV. And where also divers persons stand and be seised of and in any lands, tenements, or hereditaments, in fee simple or otherwise, to the use and intent that some other person or persons shall have and perceive yearly to them, and to his or their heirs, one annual rent of X. li. or more or less, out of the same lands and tenements, and some other person one other annual rent, to him and his assigns for term of life or years, or for some other special time, according to such intent and use as hath been heretofore declared, limited and made thereof : "V. Be it therefore enacted by the authority aforesaid, That in every such case the same persons, their heirs and assigns, that have such use and interest, to have and perceive any such annual rents out of any lands, tenements, or hereditaments, that they and every of them, their heirs and assigns, be adjudged and deemed to be in possession and sei- sin of the same rent, of and in such like estate as they had in the title, Ch. 6) USES AND TRUSTS 75 interest or use of the said rent or profit, and as if a sufficient grant, or other lawful conveyance had been made and executed to them, by such as were or shall be seised to the use or intent of any such rent to be had, made or paid, according to the very trust and intent thereof, (2) and that all and every such person and persons as have, or here- after shall have, any title, use and interest in or to any such rent or profit, shall lawfully distrain for non-payment of the said rent, and in their own names make avowries, or by their bailiffs or servants make conisances and justifications, (3) and have all other suits, entries and remedies for such rents, as if the same rents had been actually and really granted to them with sufficient clauses of distress, re-entry, or otherwise, according to such conditions, pains, or other things limited and appointed, upon the trust and intent for payment or surety of such rent." Stated in general terms, the effect of the Statute of Uses was that in any case where a person was seised of a freehold estate in land to the use of another person, the use estate of the second person was transformed into a legal estate of the same size as his prior use estate, the legal title of that amount being carried from the holder of the legal title to the holder of the equitable title, by operation of the statute. The more detailed effects of the statute may be considered from three points of view. 1. As to its effect on methods of conveying title to land. 2. As to its effect on the law relating to the creation of estates in land. 3. As to its effect on the modern law of trusts. It will be recalled that under the common law a possessory title in land could be passed either by livery of seisin, by lease and release, by fine , or by recovery. In the first two of tliese methods, the trans- action necessarily involved, in the case of the livery, a formal entry upon the land and a formal transfer of the freehold interest; in the case of a lease and release, the formalities were nol so great, but an actual taking of possession by the lessee was necessary before the re- lease could be executed. In the case of the fine and recovery, the trans- fer of the title was a matter of judicial record. After^ the £assjige of tlie_Slatute.QlU.ses, if A. should enfeoff B. in fee, to the use of C. in fee, the legal title would pass to B. by virtue of the feoffment. Since he stood seised to the use of C. in fee, the statute would operate to carry to C. the legal estate in fee, leaving B. no interest in the land ; B. being what is technically known as a conduit to uses. No formal- ities were necessary, it is to be noticed, in the declaring of the use, and consequently the effect of the statute was to create a legal title in C, entirely unaccompanied by any formality ; that is, the legal title in C. might rest purely upon a parol declaration of the use. This was true, not only where the use was raised upon a feoffment; it applied to a use raised upon any of the common-law conveyances. This situation continued until the last half of the 17th century, when the seventh sec- tion of the Statute of Frauds destroyed the possibility of creating by 76 USES AND TRUSTS (Ch. 6 parol a legal title by raising a use upon a common-law conveyance. It provided as follows : St. 29 Car. II (1676) c. 3 : "§ 7. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June [1677] all declarations of creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect. "§ 8. Provided always, That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or miay arise or result by the implication or construction of law, or be trans- ferred or extinguished by an act or operation of law, then and in every such case such trust or confidence shall be of the Hke force and effect as the same would have been if this statute had not been made; any- thing hereinbefore contained to the contrary notwithstanding." In these cases at least one step in the passage of the title, to wit, the common-law conveyance, either involved a change in the actual pos- session of the land, or was a matter of judicial record. Neither of these facts was true in the case where the owner of the land, A., bar- gained and sold the use of it to C. In such a case there would be no conveyance at all, and the mere informal bargain and sale of the use would be sufficient, under the operation of the statute of uses, to vest the legal title in C. The possibility of unlimited and secret transfers of the legal title by this method became clear shortly after tlie passage ^—^/j ^ of the Statute of Uses. To remedy this weakness, the same session of Parliament that passed the Statute of Uses passed also the Statute of Enrollments. This was as follows : ^ St. 27'Hen. VIII, c. 16— St. of Enrollments (1536): "Be it enacted by the authority of this present Parliament, That from the last day of July, which shall be in the year of our Lord God 1536, no manors, lands, tenements, or other hereditaments, shall pass, alter or change from one to another, whereby any estate of inheritance or freehold shall be made or take effect in any person or persons, or any use thereof to be made, by reason only of any bargain and sale thereof, except the same bargain and sale be made by writing indented, sealed, and in- rolled in one of the King's courts of record at Westminster, (2) or else within the same county or counties where the same manors, lands, or tenements, so bargained and sold, lie or be, before the Custos Rotu- lorum and two justices of the peace, and the clerk of the peace of the same county or counties, or two of them, at the least, whereof the clerk of the peace to be one; (3) and the same enrollment to be had and made within six months next after the date of the same writ- ings indented; * * * (6) and that the clerk of the peace for the time being, within every such county, shall sufficiently enroll and ingross in parchment the same deeds or writings indented as is afore- (jC^.juJci Ch. 6) USES AND TRUSTS 77 said; (7) and the rolls thereof at the end of every year shall deliver unto the said Gustos Rotulorum of th^ same county for the time be- ing, amongst other records of every of the same counties where any such enrollment shall be so made, to the intent that every party that hath to do therewith, may resort and see the effect and tenor of every such writing so enrolled. "II. Provided always. That this Act, nor any thing therein contained, extend to any manor, lands, tenements, or hereditaments, lying or being within any city, borough or town corporate within this realm, wherein the mayors, recorders, chamberlains, bailiffs or other officer or officers have authority, or have lawfully used to enroll any evi- dences, deeds, or other writings within their precinct or limits; any thing in this act contained to the contrary notwithstanding." The requirements of this statute gave a certain degree of publicity to the creation of titles by means of a bargain and sale, and thus rendered the entirely secret creation of them in this manner impossi- ble. It was still possible to create a use on a common-law convey- ance by means of a parol declaration which the statute would then transform into a legal estate. One other method of creating a legal title also received recognition as a direct result of the statute of uses. In discussing the creation of uses prior to the statute, it was stated that the chancellor would not enforce a gratuitous use, and the mere fact that the promise was under seal would not alter the situation. Shortly after the passage of the statute of uses, this doctrine was modified in the case of Shar- ington V. Strotton,^ decided in the Queen's Bench. In that case the owner of land in fee executed a deed in which he stated that, in order to preserve his family stock and that of his brothers, he covenanted for these reasons and for ^he affection that he bore his brothers that he would stand seised of the land in question to his own use for his own life, then to the use of his brother and his wife for their lives, with other similar limitations. The court held that this consideration of blood and brotherly love was sufficient. to make the covenant valid, and that consequently the uses were executed under the statute into corresponding legal estates. This is the so-called covenant to stand, seised, and it is limited in its scope to cases of family settlement in favor of near relatives. About thirty years later, in Callard v. Callard,* the court of Queen's Bench held that these limitations for family purposes could be raised only by deed, thus for reasons of public policy giving at least a cer- tain degree of definiteness in the creation of legal titles. It will be noticed that the covenant to stand seised is not embraced within the Statute of Enrollments. The covenant to stand seised and the bargain and sale may be com- bined in one instrument, as where A., in consideration that B. is his sPlowd. 298 (1565). « Moore, 687 (1593). 78 USES AND TRUSTS (Ch. 6 son and that C. has paid him ilOO., covenants that B. shall have the use of his land during his life, and after his death that C. shall have it in fee. In the 17th century a still further method of conveying title to land was worked out, and, once it had been sanctioned by the courts, be- came the most popular method of transferring title. It had the ad- vantages of requiring neither the formality or publicity of the com- mon-law conveyances, nor was it recordable under the Statute of En- rollments. This was the method of conveying known as the lease and release. The lease and release has already been mentioned as one method of conveying used at common law. When so used, how- ever, it was necessary that the lessee should enter the land before he could take a release. The new method under the statute of uses was for A. to execute to B. a bargain and sale for one year of the land in question which it was desired to convey. Since the statute of en- rollment applied only to bargains and sales of freehold interests, the bargain and sale for a year did not require recording. It had been held in Lutwitch v. Mitton ^ that a bargain and sale of this kind gave the bargainee by virtue of the statute a legal title without his making any entry on the land. Thus having a legal title, by operation of . law, he could immediately take a common law release in fee of the yf grantor's reversionary interest. This became ultimately the commonly *'*^'J^ ^/ used method of conveying title; the bargain and sale for a year and ./-c-yV jfeC^ the release ordinarily being written on the same piece of paper, the ^ release being dated one day later than the bargain and sale. These two methods of conveying — that is, the common-law meth- od, with a declaration of the use to the person taking the legal title under the conveyance, and conveyances operating either in whole or in part under the Statute of Uses — continued to exist side by side till the 19th century. For the first few years after the Statute of Uses, the courts were extremely narrow in their attitude, and if a conveyance was intended to operate as a conveyance at common law and was for some reason ineffective as such, they would refuse to give it any efficacy under the Statute of Uses even though all the ele- ments of a good conveyance under the statute existed.* Later on, their attitude changed, and the rule was definitely established that, if a conveyance could be made to operate either at common law or un- der the Statute of Uses, it would be held effective.'' The most far-reaching effect of the Statute of Uses is to be found in the changes that were produced in the law relating to estates. It is to be borne in mind that the statute operated to transform into legal estates those estates which prior thereto the chancellor would have protected as equitable estates. In deciding what interests he would 6 Cro. Jac. 604 (1620). « Sep Callard v. Callard, Moore, 687 (1593). 7 See Roe v. Tranmer, 2 Wils. 75 (1757). Compare Taylor v. Vale, Cro. Eliz. 166 (15S9). Ch. G) USES AND TRUSTS 79 SO protect, the chancellor did not feel himself bound by the strict common-law rules which have been discussed in considering the meth- od of creating estates at common law and the kinds of estates that could be created. To a certain extent when, after the Statute of Uses, these former equitable estates now became legal estates, and so were brought within the cognizance of the common-law courts, these courts did apply the stricter common-law principles. Thus the phrase "to his heirs" was necessary to create a fee simple. A mere declaration of the use to B. would result in giving him only a life estate, and a limitation of the use to B. and the heirs of his body, after the Stat- ute of Uses, would give him a legal estate in tail.' In general, how- ever, the law courts recognized as valid legal estates those limitations which, prior to the statute, had been equitable estates. Certain par- ticular cases, however, should be noticed. If A. enfeoffed B. in fee to the use of A. for life, after the statute A. would clearly have a legal estate for life. If the undisposed of residuum of the use was allowed to result to A. in fee, this would give him a reversion in fee which would swallow up and destroy his life estate by tlie doctrine of merger. Consequently, in order to preserve the life estate, in ac- cordance with the express terms of the creation of the use, the court held that the reversion did not result to A, in fee, but that, after A.'s death, B. had a legal remainder in fee. On the other hand, if A. enfeoffed B. in fee to the use of A. in tail, which after the statute would give him a legal estate in tail, the use was also held to result to him in fee; De Donis in this case keeping the two estates apart, so that the common-law doctrine of merger had no application. Doubt was also raised in the case of Shortridge v. Lamplugh ^ whether or not the use would result on a lease and release in fee. It seemed, however, finally to be settled that there was no essential difference between this method of conveying and any other, and that a use would result in this case where it would result in the case of a con- veyance by livery. It is in the law relating to the creation of future estates that the greatest changes in the law were produced by the Statute of Uses. The common-law rules with respect to the creation of common-law remainders have already been stated. Under the Statute of Uses the possibilities in the creation of future estates were greatly enlarged. These changes can best be illustrated by examples : If A. enfeoffs B. in fee from the 1st of January next, this convey- ance would be bad at common law, for the reason that a freehold estate of possession cannot be created to begin in futuro. However, A. could bargain and sell the use of his land to B. in fee or in tail or for life, to begin two years from date, or on A.'s death, or when B, 8 See Abraham v. Twigg, Cro. Eliz. 478 (159G) ; Egerton's Case, Cro. Juc. 525 (1619) ; Broughton v. Langley, 2 Salk. 679 (1703). »2 Salk. 678 (1702). 80 USES AND TRUSTS (Ch. G paid A. ilOO. The chancellor would have enforced any one of these uses before the statute, and after the statute they were all good legal estates. Both the use and the complete legal title would remain in A. until the contingency happened upon which they were to go to B. ; that is, A.'s estate would not be a particular estate, but would be the complete fee of the land, subject to the estate over in favor of B. This estate in B. is what is technically known as a springing use; the use comes into being without there having been created any preceding use estate. The same general principle applied to the cre- ation of uses raised on transmutation of possession, as where A. enfeoffs X. in fee to the use of B. two years from date, etc. Another estate which could be created under the Statute of Uses, which was impossible at common law, was a limitation after a fee to a third person. Thus A. could bargain and sell to B. in fee, and if B. died without issue living at his death, or if C. paid B. ilOO., then to C. in fee. This case, where the second use estate operates to cut off the first use estate, is technically known as a shifting use. Here, also, the same set of estates may be created by a use raised on a common-law conveyance, as where A. enfeoffs X. in fee to the use of B. in fee, with the hmitation over to C. in fee, as well as on a bargain and sale. In connection with this limitation, mention should be made of the highly technical doctrine of scintilla juris. In the case last put, since the limitation of the use was to B. in fee, when that was executed by the statute that would seem to carry from X., the feoft'ee to uses, all his legal estate. If later the contingency was satisfied by C, so that the use was shifted to him, the question arose as to what seisin that use was based on. The theory was then evolved that, despite > the fact that X.'s entire seisin had been carried to B. to serve the first use, there still remained in X. a possibility of a right sufficient to carry the second use to C. This possibility of right received the name "scintilla juris." The only practical aspect of the question lay in the possibility of B.'s being able to deal with the scintilla juris in such a way as to prejudice C.'s rights. The whole doctrine was abro- gated by statute, and C.'s rights definitely put beyond possibility of prejudice.^" At common law, as has already been pointed out, it was impossible to create a contingent remainder unsupported by a preceding vested estate of freehold. Under the statute, however, A. might bargain and sell to B. for ten years, and then to the son of B. in fee, even though B. had no son at the date of the bargain and sale. Although one or two old cases intimated that the estate in A.'s son would be bad, it is probably good.^* 10 23 & 24 Vict. c. 38, § 7. 11 See Gray, Rule against Perpetuities (3a Ed.) §§ 58-60. Ch. 6) USES AND TRUSTS 81 Another possibility in the creation of future estates, that takes its origin in the Statute of Uses, is the doctrine of powers. Since the legal title is carried to the use estate, when the use estate comes into being, it is possible to create tlie following limitation: A. may bar- gain and sell to C. for life, and then to such person as X. may ap- point, and, when X. does appoint, his appointee will, by virtue of the statute, have his use estate executed into a corresponding legal estate. Here, as before, the same result may be achieved by the raising of 'the use upon a common-law conveyance. At common law it is impossible for a man to convey to himself. Under the Statute of Uses A. may enfeoff B. in fee to the use of A. for life, which will result in giving A. a life estate under the con- veyance, as a purchaser. These are but illustrations of the possibilities of creating future estates under the statute. In every case where the use is undisposed of, either by declaration or consideration or tenure, it results to the creator of the use, and always in fee, although, of course, it may later be cut off by some expressly declared use. A case that is not ex- pressly covered by the statute is the following: A., a tenant for Hfe, bargains and sells to B in fee. In this, case it will be noticed that the legal estate, A.'s, out of which the use estate in B. is created, is smaller than is the estate in B. The utmost that the statute can do is to carry A.'s life estate to B. Consequently B. can get a fee only for the life of A. Mention has been made in another connection of the destructibil- ity of contingent remainders, except where preserved by trustees or protected by statutory enactment. In this regard there was a marked, difference between contingent remainders and springing or shifting uses and executory devises. Regardless of what might be done with the particular estate, when the contingency happened upon which the declared use was to come into being, the legal estate was thereby automatically created by action of the statute. This nondestructibil- ity of estates created under the Statute of Uses led to the growth of a new doctrine in the law of property, the so-called rule against per- petuities. The situation that it was designed to reach can best be shown by a concrete illustration: Suppose A. enfeoffs B. in fee to the use of C. in fee, but if C.'s direct descendants ever become ex- tinct then to the then oldest living descendant of D. in fee. It is evident that in this case the estate after C.'s may not vest until the lapse of an indefinitely long time. Consequently, since a shifting use is indestructible, it is evident that in no way can a clear title be ob- tained to this land. Such a situation, and there are many others, variations of the same principle, is open to most serious objections upon the grounds of public policy. Beginning with the 17th century, the doctrine was evolved, and now is definitely recognized which may be stated as follows: "No interest is good unless it must vest, if at Big.Int. — 6 82 USES AND TRUSTS (Ch. 6 all, not later than twenty-one years after some life in being at tlie creation of the interest." ^* We now come to a consideration of cases not covered by the statute. The statute in terms purported to apply only to a case where one person was seised to the use of another. Consequently, if A., a ten- ' ant for years, bargains and sells to C, or if A., the owner in fee, leases to B. for years to the use of C, in neither case is C.'s interest af- '' fected by the statute. His rights, after the statute, as before, are purely equitable. ' A. enfeoffs B. in fee to the use of B. in fee. B.'s estate in this case is not created by the statute, but by virtue of the common-law conveyance, and the declaration of the use in B. merely prevents the use resulting to A.^^ If, on the other hand, A. enfeoffs B. in fee to the use of B. and C. in fee, B. as well as C. in this case gets his es- tate by operation of the statute.^* In Cooper v. Franklin ^^ it was held that it was impossible to raise a use on an estate tail; the reason for this being that De Bonis definitely fixed the beneficial interest in the tenant in tail, and it was impossible to raise a use in contravention to the purpose of that statute. Another use not executed by the statute is the active use. Thus A. enfeoffs B. in fee, to sell the land in question and pay the proceeds to C, or to collect the rents and profits and pay them to C. Since in these cases the feoffee to uses had active duties to perform, and was not merely to serve as a passive conduit to uses to C, the case was not regarded as coming within the operation of the statute. Conse- quently C.'s rights still remained equitable.^® The final case of the use unexecuted by the statute is the use on the use, as where A. enfeoffs B. in fee, to the use of C. in fee, to the use of D. in fee, or A. bargains and sells to C. in fee, to the use of D. in fee. Before the passage of the Statute of Uses the chancellor would have enforced only the first use in C. ; the use over to D. being re- garded as repugnant to the already declared use in C, and therefore void. The same situation obtained after the statute; since C.'s use was the only one that the chancellor would have recognized, C. was regarded as having the legal estate after the statute, and the use to D. was disregarded.^^ Care should be taken to distinguish between a use on a use and a shifting use. In the former case the attempt is to make the first cestui que use hold contemporaneously for the ben- efit of the second cestui que use. In the second case the attempt is 12 Gray, op. cit. § 201. 13 See Doe d. Lloyd v. Passingham, 6 Barn. & O. 305 (1827). 1* See Samme's Case, 13 Co. 54 (1609). 15 Cro. Jac. 400 (1616). 18 Nevil V. Saunders, 1 Vern. 415 (1686). iiTyriel's Case, Dyer, 155a (1557). Ch. 6) USES AND TRUSTS 83 to make the interest of the second cestui que use come in on a certain contingency and cut off the interest of the first cestui que use. The interest of the second cestui que use in the case of the use on the use was apparently entirely ignored both by the law courts and by the chancellor for about 100 years after the passage of the Stat- ute of Uses. By the middle of the 17th century, however, the doc- trine that a use on a use could not be enforced was regarded as a mere legal technicality, and the chancellor began to protect in equity the interest of the second cestui. With this recognition by the chancellor of the possibility of an equitable estate, distinct from and imposed upon the legal estate in tlie land, and protected by equitable processes, the situation was brought back in many respects to substantially what it was before the passage of the Statute of Uses. The statement of the interest of the old cestui que use, the only one, as has been al- ready said, that the chancellor would have recognized, having become by statute and the passage of time merely a step in the creation of a legal estate, this legal estate, in turn, becomes the foundation for a new equity. It is in this connection that the statement has been made that the total effect of the Statute of Uses was to add three words to a common-law conveyance. This is the beginning of the modem law of trusts. The only dif- ference is that the feoffee to uses, or holder of the legal estate, is now called a trustee, and the old cestui que use, or holder of the equitable estate, is now called the cestui que trust. The doctrines of tlie modern law of trusts, while bearing a general resemblance to those of the old law of uses, differ widely therefrom in other regards, and form a large and independent branch of modern law.^* 18 On uses subsequent to the statute of uses see 2 Bl. op. cit. 333-340; Challis, op. cit. 386-392; Digby, op. cit. ch. VII. Leake, op. ciL 82-96; Wil- liams, op. cit. 170-179, 366-371. See, in general, on uses, Ames, 21 Harv. Law Rev. 261, INDEX [the figures refeb to pages] ABATEMENT, 58 n. ALIEXATION, By subinfeudation, 11, 17, IS. By substitution, 11. Restricted by De Donis, 22. 23. By Quia Emptores, 12, 13. Under the statute of uses, 77-79. ALLODIAL OWNERSHIP, 17. ATTORNMENT, Abolition of, 45. Requirement of, 7, 45. BURGAGE TENURE, 9. CONDITIONAL LIMITATIONS, 43. CONVEYANCE, See Alienation. COPYHOLD TENURE, 10. See Servile Tenants. CORPOREAL AND INCORPOREAL RIGHTS, 36, 31. CURTESY, See Life Estates. DEFORCEMENT, 58 n. DESCENT AND PURCHASE, 20. DISCONTINUANCE, 58 n. DISSEISIN, REMEDIES FOR, 59, 60. What is, 58. DOWER, See Life Estatea EJECTMENT, Action of, 60-64. ENTRY, Right of, 43. EXCHANGE, Conveyance by, 47. FEE CONDITIONAL, 22. FEB DETERMINABLE, 23. FEE SIMPLE, How created, 20, 21. Origin of, 19, 20. Subinfeudation of, 11, 13, 17, 18. BiG.lNT. (85) 86 INDEX [The figures refer to pages] FEE TAIL, Methods of barring, 24, 25. Orisin of, 23. Uuited States, in, 25. FEOFFMENT, Charter of, 34. Conveyance by, 34, 35. See Seisin. FINE. Conveyance by, 47. Entail barred by, 24. Feudal incident of, 7. FRANKALMOYN TENURE, 10. FREEHOLD, Meanings of, 30. GAVELKIND TENURE, 9. INCORPOREAL HEREDITAMENTS. 44. • See Corporeal and fncorporeal Rlghta INTRUSION, 58 n. JOINT OWNERSHIP, Communitj' property, 56. Coparceny, 53, 54. Joint tenancy, 49-53. Tenancy by entirety, 56. Tenancy in common, 55, 58. JOINT TENANCY. How created. 49. Properties of, 50-62. Termination of, 52, 53. LEASE. How created, 34, 35. See Tenant. LEASE AND RELEASE, 78. LIFE ESTATES, Curtesy, 27. D'autre vie, 26. Dower, 28-30. General occupant In, 26w Special occupant In, 26. Varieties of, 26. LIMITATION, Words of, 20. ■ LORD AND TENANT, 3. MANOR, Divisions of, 8. Jurisdiction of, 9. MERGER, 47. INDEX 8T [Tbe figures refer to pagea] MILITARY TENURE, Abolition of, 14-17. Incidents of, Aids, 4. Esclieat, 7. Fines. 6. Marriage, 6. Primer seisin, 5. Relief, 5. Wardship, 5. In United States, 17. NORMAN CONQUEST, Effect of, 1, 2. PERPETUITIES, Rule against, 81, 82. POSSESSION. Distinguished from seisin, 32, 331 Transfer of, 34, 35. REAL PROPERTY LAW, Origin of, 1. RECOVERY, Common, Bars entail, 24. Form of conveyance by, 47. RELEASES, 46. REMAINDERS, Contingent, 39-41. Destructability of, 41, 42, 47. Transfer of, 44, 45. Trustees to preserve, 42. Vested, 38, 39. REVERSIONS, 38, 39. SEISIN, Distinguished from possession, 32, 3SL Meaning of, 32, 33. Transfer of, 34, 35, 38, 39, 41, 42. SERJEANTY, 7, 10. SERVILE TENANTS, 9, 10. See Copyhold. SOCAGE TENURE, 8, 9. STATUTE OF USES, 72-75. Conveyances under, 75, 77-79. Estates created under, 79-81. Relation of, to law of trusts, 83. Scintilla juris, under, SO. Uses not executed by, 82, S3. See Uses. SURRENDER, 46. 47. TENANT", At sufferance, 32. At will, 32. For years, 31. From year to year, 32. S8 INDEX [The figures refer to pages] TENURES, Abolition of, 14-17. Burgage, 9. Copyhold, 10. Frnnkaluioyn, 10. rTavelkind, 9. Military, 4-7. Socage, 8, 9. United States, in, 17, 18. Varieties of, 3. TRUSTS, Relation of, to uses, 83. USES, Bargain and sale of, 70. Cbancellor's protection of, 67, 68.- Consideration, when necessary. 69, 70. Donee of feoffee, bound by, G9. Feoffee to, bound by, 67, 68. Feudal obligations, evaded by, 66, 67. Heir of feoffee, bound by, 67. Mortmain statutes, evaded by, 65, 66. Not executed by the statute, 82. On a use, 82, 83. Purchaser from feoffee, when bound by, 69. Raised by parol. 71, 75, 76. ' Resulting, 69, 70. Raised without transmutation of possession, 70, 77. 78. Statutes affecting, 65, Magna Carta. § 34 : 66. 15 Rich. II, c. 5 : 71. 1 Rich. Ill, c. 1 ; 72, 27 Hen. VIII, c. 10; 76, 29 Car. II, c. 3, § 7; 76, 27 Hen. VIII, c. 16. See Statute of Uses. WILL OF REAL ESTATE. Not allowed at common law, 47. Power to make, given by statute, 48. WBBT PUBLISHING CO., PRINTERS, ST. PAUL, HIHM. CASES ON RIGHTS IN LAND BY HARRY A. BIGELOW PEOFESSOE OF LAW IN THE UNIVERSITY OF CHICAGO AMERICAN CASEBOOK SERIES WILLIAM R. VANCE GENERAL EDITOR ST. PAUL WEST PUBLISHING COMPANY 1919 COPYBIGHT, 1919 BY . WEST PUBLISHING COMPANY (BiG.RlGHTS) TO MY COLLEAGUES OF THE LAW FACULTY (iU)* AUTHOR'S PREFATORY NOTE The title of this volume is at best an approximation. The powers and immunities that form so important a part of rights relating to land are touched on only to a slight extent; for the most part those aspects of property rights are taken up elsewhere. To attempt to catalogue in detail the privileges that the owner of land has, whether his ownership be absolute or qualified, would be to attempt a list of human activities which tal evidence tending to show that complainant made little or no complaint with regard to this vibration until about the time the bill was filed, when the invasion of his property rights by hanging the stay wire over his land, by driving the filthy steam from the sewer into his kitchen, and iiAcc. Broadbent v. Imperial Gas Co., 7 De G.. M. & G. 4oG (185C). Ch. 2) AIR 29 the sprinkling of spray over his back yard, seemed to combine to exas- perate him. This apparent acquiescence can only be, used as evidence that the complainant did not consider the vibration as serious, but I think that is not sufficient in that regard to overcome the weight of the evidence that his house is injured. I will advise a decree that the defendant be restrained from so using his machines as to cause the complainant's house to vibrate, and also from allowing the water and spray from the exhaust of his engines to come onto the complainant's lands. ^^ MADISON et al. .v. DUCKTOWN SULPHUR, COPPER & IRON CO. et al. McGHEE et al. v. TENNESSEE COPPER CO. et al. EARNER v. TENNESSEE COPPER CO. (Supreme Court of Tennessee, 1904. 113 Tenn. 331, 83 S. W. 658.) Bill for an injunction. [The defendants were large copper smelting companies. The complainants were small farmers.] Neil, J.^^ * * * All of the complainants have owned their several tracts since a time anterior to the resumption of the copper in- dustry at Ducktown in 1891, and have resided on them during this period, with the exception of Avery McGhee, who worked for one of the defendant companies a considerable time, and Margaret Madison, who removed to Snoddy, in Rhea county, two or three years ago. The general effect produced by the smoke upon the possessions and families of the complainants is as follows, viz.: Their timber and crop interests have been badly injured, and they 12 For other cases, where the damage to property was held to constitute a nuisance, see Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 39 Atl. 270, 63 Am. St. Rep. 533 (1898) (action at law) ; Campbell v. Seaman, 63 N. T. 568, 20 Am. Kep. 567 (1876) (granting an injunction). Compare: Downing v. Elliot, 182 Mass. 28, 64 N. E. 201 (1902). "The fair interpretation of the plaintia'^ bill is that the floor above its rooms naturally and properly has holes in it, and that the defendants know- ingly carry on their business in such a way as to send fumes of acid and large quantities of sand through these holes upon the plaintiffs premises, and thereby to corrode and spoil its machinery and goods. "As between adjoining proprietors, one of thorn has no right as against the others to do what is complained of here, and it would be no answer to, an action to say that the plaintiff might have shut his windows. There would be no need to allege in terms that the business was unsuitable to be carried on in that place, or that there was negligence in the mode of carry- ing it pn. As the damage was a manifest consequence of the defendants' business, the fact that they could not help it if they carried on that business would be immaterial. See the form of declaration in Tipping v. St. Helen's Smelting Co., 4 B. & S. 608, and St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642." Holmes, J., in Boston Ferrule Co. v. Hills, 159 Mass. 147, 149, 34 N. E. 85, 20 L. R. A. 844 (1893). 13 Part of the opinion is omitted. 30 RIGHTS INCIDENTAL TO POSSESSION (Part 1 have been annoyed and discommoded by the smoke so that the com- plainants are prevented from using and enjoying their farms and homes as they did prior to the inauguration of these enterprises. The smoke makes it impossible for the owners of farms within the area of the smoke zone to subsist their families thereon with the degree of comfort they enjoyed before. They cannot raise and harvest their cus- tomary crops, and their timber is largely destroyed. * * * ■ The Court of Chancery Appeals finds that the defendants are con- ducting and have been conducting their business in a lawful way, with- out any purp>ose or desire to injure any of the complainants ; that they have been and are pursuing the only known method by which these plants can be operated and their business successfully carried on ; that the open-air roast heap is the only method known. to the business or to science by means of which copper ore of the character mined by the defendants can be reduced; that the defendants have made every effort to get rid of the smoke and noxious vapors, one of the defend- ants having spent $200,000 in experiments to this end, but without result. It is to be inferred from the description of the locality that there is no place more remote to which the operations referred to could be transferred. * * * There can be no doubt that the facts stated make out a case of nui- sance, for which the complainants in actions at law would be entitled to recover damages. * * * The following general propositions seem to be established by the au- thorities: If the case made out by the pleadings and evidence show with sufficient clearness and certainty grounds for equitable relief it will not be denied because the persons proceeded against are engaged in a lawful business (" Tipping V, St. Helens Smelting Co., 11 H. L. Cas. 642 ; Atty. Gen. v. Colny Hatch Lunatic Asylum, 4 L. R. Ch. App. 478; Crossly v. Lightowler, 3 L. R. Eq. 279, 2 L. R. Ch. App. 478; * * * Robinson v. Baugh, 31 Mich. 291; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 282, 20 Atl. 900, 9 L. R. A. 7Z7 , 25 Am. St. Rep. 595), or because the works complained of are located in a convenient place, if that place be one wherein an actionable injury is done to another (Susquehanna Fertilizer Co. v. Malone, Th Md. 268, 277, 278, 20 Atl: 900, 9 L. R. A. 7Z7, 25 Am. St. Rep. 595, and cases cited; Tipping v. St. Helens Smelting Co., supra); nor will the exist- ence of another nuisance of a similar character at the same place fur- nish a ground for denying relief if it appear that the defendant has sensibly contributed to the injury complained of (Crossly v. Lightowler, supra * * *). But there is one other principle which is of controlling influence in this department of the law, and in the light of which the foregoing principle must be weighed and applied. This is that the granting of an injunction is not a matter of absolute right, but rests m the sound discretion of the court, to be determined on a consideration of all of ^h. 2) AIR 31 the special circumstances of each case, and the situation ^nd surround- ings of the parties, with a view to effect the ends of justice. A judgment for damages in this class of cases is a matter of absolute right, where injury is shown. A decree for an injunction is a matter of sound legal discretion, to be granted or withheld as that, discretion shall dictate, after a full and careful consideration of every element ap- pertaining to the injury. * * * The question noAv to be considered is, what is the proper exercise of discretion, under the facts appearing in the present case? Shall the complainants be granted, in the way of damages, the full measure of re- lief to which their injuries entitle them, or shall we go further, and grant their request to blot out two great mining and manufacturing enterprises, destroy half of the taxable values of a county, and drive more than 10,000 people from their homes ? We think there can be no doubt as to what the true answer to this question should be. In order to protect by injunction several small tracts of land, aggre- gating in value less than $1,000, we are asked to destroy other property worth nearly $2,000,000, and wreck two great mining and manufac- turing enterprises, that are engaged in work of very great importance, not only to their owners, but to the state, and to the whole country as well, to depopulate a large town, and deprive thousands of working people of their homes and livelihood, and scatter them broadcast. The j:esult_would^e^j)ractically a confiscation of the property of the de- fendants ^or the benefit of the complainants — an appropriation without compen sation. The defendants cannot reduce their ores in a manner different from that they are now employing, and there is no more re- mote place to which they can remove. The decree asked for would de- prive them of all of their rights. We appreciate the argument based on the fact that the homes of the complainants who live on the small tracts of land referred to are not so comfortable and useful to their owners as they were before they were affected by the smoke complain- ed of, and we are deeply sensible of the truth of the propcfsition that no man is entitled to any more rights than another on the ground that he has or owns more property than that other. But in a case of con- flicting rights, where neither party can enjoy his own without in some measure restricting the liberty of the other in the use of property, the law must make the best arrangement it can between. the contending parties, with a view to preserving to each one the largest measure of liberty possible under the circumstances. We see no escape from the conclusion in the present case that the only proper decree is to al- low the complainants a reference for the ascertainment of damages, and that the injunction must be denied to them.** * * * 14 Ace: Richard's Appeal, 57 Pa. 105, 9S Am. Dec. 202 (1S68) ; Bliss v. Anaconda Copper Co. (C. C.) 167 Fed. 342 (1909). Compare Daniels v. Keo- liuk Waterworks, 61 Iowa, 549, 16 N. W. 705 (1S83) ; Shelter v. London Electric Lighting Co., [1S95] 1 Ch. D. 2S7. 32 RIGHTS INCIDENTAL TO POSSESSION i^^^ ^ STURGES V. BRIDGMAN. (Chancery Division, 1879. L. R. 11 Ch. Div. 852.) Thi;sige;r, L. J.,^"^ delivered the judgment of the Court (JameSs, Baggallay, and Thesiger, L. JJ.) as follows : The defendant in this case is the occupier, for the purpose of his business as a confectioner, of a house in Wigmore street. In the rear of the house is a kitchen, and in that kitchen there are now, and have been for over twenty years, two large mortars in which the meat and other materials of the confectionery are pounded. The plaintiff, who is a physician, is the occupier of a house in Wimpole street, which until recently had a garden at the rear, the wall of which garden was a party wall between the plaintiff's and the defendant's premises, and formed the back wall of the defendant's kitchen. The plaintiff has, however, recently built upon the site of the garden a consulting room, one of the side walls of which is the wall just described. It has been proved that in the case of the mortars, before and at the time of action brought, a noise was caused which seriously inconvenienced the plain- tiff in the use of his consulting room, and which, unless the defendant had acquired a right to impose the inconvenience, would constitute an actionable nuisance. The defendant contends that he had acquire d the right, either at common law or under the Prescription Act, by uninter- rupted user for more than twenty years. In deciding this question one more fact is necessary to be stated. Prior to the erection of the consulting room no material annoyance or inconvenience was caused to the pfaintiff or to any previous occupier of the plaintiff's house by what the defendant did. It is true that the defendant in the seventh paragraph of his affidavit speaks of an invalid lady who occupied the house upon one occasion, about thirty years be- fore, requesting him if possible to discontinue the use of the mortars be- fore eight o'clock in the morning ; and it is true also that there is some evidence of the garden wall having been subjected to vibration, but this vibration, even if it existed at all, was so slight, and the complaint, if it could be called a complaint, of the invalid lady, and can be looked upon as evidence, was of so trifling a character, that, upon the maxim "De minimis non curat lex," we arrive at the conclusion that the de- fendant's acts would not have given rise to any proceedings either at law or in equity. Here then arises the objection to the acquisition by the defendant of any easement. That which was done by him was in its nature such that it could not be physically interrupted ; it could not at the same time be put a stop to by action. Can user which is neither preventible nor actionable found an easement? We think not. The question, so far as regards this particular easement claimed, is the same question whether the defendant endeavours to assert his right by 15 The .statement of facts is omitted. Ch. 2) AiB 33 common law or under the Prescription Act. That act fixes periods for the acquisition of easements, but, except in regard to the particular easement of light, or in regard to certain matters which are immaterial to the present inquiry, it does not alter the character of easements, or of the user or enjoyment by which they are acquired. This being so, the laws governing the acquisition of easements by user stands thus : Consent or acquiescence of the owner of the servient tenement hes at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, "Nee vi nee clam nee precario;" for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoy- ment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licens- es. It is a mere extension of the same notion, or rather it is a prin- ciple into which by strict analysis it may be resolved, to hold, that an enjoyment which a jnan cannot prevent raises no presumption of con- sent or acquiescence. Upon this principle it was decided in Webb v. Bird, 13 C. B. (N. S.) 841, that currents of air blowing from a particular quarter of the com- pass, and in Chasemore v. Richards, 7 H. L. C. 349, that subterranean water percolating through the strata in no known channels, could not be acquired as an easement by user ; and in Angus v. Dalton, 4 O. B. D. 162, a case of lateral support of buildings by adjacent soil, which came on appeal to this court, the principle was in no way impugned, although it was held by the majority of the court not to be applicable so as to prevent the acquisition of that particular easement. It is a principle which must be equally appropriate to the case of affirmative as of negative easements ; in other words, it is equally unreasonable to imply your consent to your neighbour enjoying something which pass- es from your tenement to his, as to his subjecting your tenement to something which comes from his, when in both cases you have no pow- er of prevention. But the affirmative easement differs from the nega- tive easement in this, that the latter can under no circumstances be in- terrupted except by acts done upon the servient tenement, but the for- mer, constituting, as it does, a direct interference with the enjoyment by the servient owner of his tenement, may be the subject of legal proceedings as well as of physical interruption. To put concrete cases — the passag-e of light and air to your neighbour's windows may be physically interrupted by you, but gives you no legal grounds of com- plaint against him. The passage of water from his land on to yours may be physically interrupted, or may be treated as a trespass and made the ground of action for damages, or for an injunction, or both. Noise is similar to currents of air and the flow of subterranean and uncertain streams in its practical incapability of physical interruption, but it differs from them in its capability of grounding an action. Webb Big. Rights — 3 ^«^ tz^ 34 RIGHTS INCIDENTAL TO POSSESSION (Part 1 V. Bird and Chasemore v. Richards are not, therefore, direct authori- ties governing the present case. They are, however, illustrations of the principle which ought to govern it ; for until the noise, to take this case, became an actionable nuisance, which it did not at any time be- fore the consulting room was built, the basis of the presumption of the consent, viz., the power of prevention physically or by action, was never present. It is said that if this principle is applied in cases like the present, and were carried out to its logical consequences, it would result in the most serious practical inconveniences, for a man might go — say into the midst of the tanneries of Bemiondsey, or into any other locality devoted to a particular trade or manufacture of a noisy or unsavoury character, and, by building a private residence upon a vacant piece of land, put a stop to such trade or manufacture altogether.^® The case also is put of a blacksmith's forge built away from all habitations, but to which, in course of time, habitations approach. We do not think that either of these hypothetical cases presents any real difficulty. As regards the first, it may be answered that whether anything is a nui- sance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances ; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey ; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a par- ticular and established manner not constituting a public nuisance, judg- es and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong. As regards the blacksmith's forge, that is really an idem per idem case with the present. It would be on the one hand in a very high degree unreasonable and undesirable that there should be a right of action for acts which are not in the present condi- tion of the adjoining land, and possibly never will- be any annoyance or inconvenience to either its owner or occupier ; and it would be on the other hand in an equal degree unjust, and, from a public point of view, inexpedient that the use and value of the adjoining land should, for all time and under all circumstances, be restricted and di- minished by reason of the continuance of acts incapable of physical 18 "In this case the declaration alleges that the defendant injuriously car- ried on, in messuages contiguous to the messuage of the plaintiff, the trade and business of a candlemaker, by which noxious vapors and smells pro- ceeded from the messuage of the defendant and diffused themselves over the messuage of the plaintiff ; and all that the defendant says in answer is, that he carried on the business for three years before the plaintiff became pos- sessed of the messuage he inhabits. That is no answer to the complaint in the declaration; for the plaintiff came tQ the house he occaipies with all the rights which the common law affords, and one of them Is a right to whole- some air. Unless the defendant shows a prescriptive right to carry on his business in the particular place the plaintiff is entitled to judgment." Tin- dal, C. J., in Bliss v. Hall, 4 Bing. N. C. 1S3, 1^6 (1S38). Ace: Hayden v. Tucker, 37 Mo. 214 (18GG), ante, p. 23. Ch.2) ^iR 35 interruption, and which the law gives no power to prevent. The smith in the case supposed might protect himself by taking a sufficient curti- lage to ensure what he does from being at any time an annoyance to his neighbour, but the neighbour himself would be powerless in tlie matter. Individual cases of hardship may occur in the strict carrying out of the principle upon which we found our judgment, but the negation of the principle would lead even more to individual hardship, and would at the" same time produce a prejudicial effect upon the develop- ment of land for residential purposes. The Master of the Rolls in the court below took substantially the same view of the matter as ourselves and granted the relief which the plaintiff prayed for, and we are of opinion that his order 'is right and should be affirmed, and that this appeal should be dismissed^ with costs.^'' IT A. owned a slaughterhouse that for over 20 years had been emitting stenches. B. and C. owned adjacent land ; B.'s being unoccupied, and U.'s occupied. They sought an injunction against A. A. claimed a prescriptive right. Held, the act was of a character to amount to a nuisance. The court then said: "Another objection to the defendant's title by prescription is, that until lately the plaintiffs suffered no damage from the alleged nuisance, and there- fore^quld^ot interpose to prevent its continuance. But It is very clear that, where a party's riglTt of property is invaded, he may maintain an action for the invasion of his right, without proof of actual damage." Dana v. Valen- tine. 5 Mete. (Mass.) 8 (1S42). Compare Churchill v. Burlington Water Co., 94 Iowa, 89, 62 N. W. 641^ (1895) ; Matthews v. Stillwater Gas & Electric Co., 63 Minn. 49.3, 65 N. W. 947 (1896) ; Mills v. Hall, 9 Wend. (N. Y.) 315, 24 Am. Dec. 160 (1832). 36 RIGHTS INCIDENTAL TO POSSESSION (Part 1 CHAPTER III LAND 2 ROLLE'S ABRIDGMENT, 564: If A. be seised in fee of copy- hold land next adjoining the land of B., and A. erect a new house upon his copyhold land and part of the house is built upon the confines of his land next adjoining B.'s land, if B. afterwards excavates his land near to the foundation of A.'s house but no part of the land of A., by which the foundation of the house and the house itself fall into the pit, still no action Hes by A. against B. ; for it was the fault of A. him- self that he built his house so close to the land of B., for he cannot by his own act prevent B. from making the best use of his own land that he can. P. 15 Car. B. R. [1639] between Wilde and Minsterley, by the court after a judgment for the plaintiff. But, semble, a man who has land next adjoining my land cannot ex- cavate his land so close to mine that thereby my land falls in his pit. And so if the action had been brought for this, it would lie. BONOMI v. BACKHOUSE. (Exchequer Chamber, 1859. El., Bl. & El. 646.) WiLLES, J, This is a proceeding in error upon a judgment of the Court of Queen's Bench, and was brought to question the decision in that case and a judgment of the Court of Exchequer in Nicklin v. Wil- liams. In the Court of Queen's Bench Mr. Justice Wightman differed from the majority of the Court ; some of whom expressed their opinion with very great doubt. The question argued before us may be stated in a very few^ words. The plaintiff was owner of the reversion of an ancient house.. The defendant, more than six years before the commencement of the action, worked some coal-mines 280 yards distant from it. No actual damage occurred until within the six years. Question : Is the Statute of Limitations an answer to the action ? Or, in other words, did the cause of action accrue within the six years ? The majority of the Court of Queen's Bench thought it did not. The right to support of land and the right to support of buildings stand upon different footings as to the mode of acquiring them, the former being prima facie a right of property analogous to the flow of a natural river, or of air; Rowbotham v. Wilson, 8 E. & B. 123 (E. C. L. R. vol. 92) ; though there may be cases in which it would be sus- tained as matter of grant (see The Caledonian Railway Company v. Sprot, 2 Macq. Sc. App. 449) ; whilst the latter must be founded upon Ch. 3) LAND 37 prescription or grant, expi-ess or implied : but the character of the rights, when acquired, is in each case the same. The quest ion in this case depends upon what is the character of the right ; viz., whether the support must be afforded by the neighbouring soil itself, or such a por- tion of it as would be beyond all question sufficient for present and future support, or whether it is competent for the owner to abstract the minerals without liability to an action unless and until actual dam- age is thereby caused to his-neighbour. The most ordinary case of with- drawal of support is in town property, where persons buy small pieces of land, frequently by the yard or foot, and occupy the whole of it with buildings. They generally excavate for cellars, and in all cases make foundations ; and, in lieu of support given to their neighbor's land by the natural soil, substitute a wall. We are not aware that it has ever been considered that the mere excavation of the land for this purpose gives a right of action to the adjoining owner and is itself an unlawful act, although it is certain that if damage ensued a right of action would accrue. So also we are not aware that, until the case of Nicklin v. Wil- liams, 10 Exch. 259, it had ever been supposed that the getting coal or minerals, to whatever extent, in a man's own land was an unlawful act, although, if he thereby caused damage to his neighbour, he was un- doubtedly responsible for it. The right of action was supposed to arise from the damage, not from the act of the adjoining owner in his own land. The law favours the exercise of dominion by every one upon his own land, and his using it for the most beneficial purpose to himself. As we have already said, the defendant's proposition is that the ad- joining owner is entitled to have the adjacent land remain in its nat- ural condition ; he does not and cannot contend that an artificial sub- stitute would prevent a cause of action. For, if he did, if he admitted that a man might excavate the natural soil to an extent dangerous to the adjoining owner, provided he applied a remedy in time to prevent damage, as by putting props or a wall, this consequence would follow : that he must have time within which to do it ; and that time would be any time until damage resulted ; which, in effect, would be to say that there was no cause of action till actual damage. If the defendant is right, these consequences follow : whenever a mine or quarry is work- ed, the worker may be subjected to actions by all surrounding owners ; nay, they would in self-defence be compelled to bring them, if there was any reasonable ground to suppose that the working would in time produce damage to their property. It would be in vain that the worker should say: "You will not be injured; the workings are not injuri- ous; if they turn out Hkely to be so, I will take means to prevent it; at all events wait till you are injured." Vexatious and oppressive ac- tions might be brought, on the one hand; and, on the other, an unjust immunity obtained for secret workings of the most mischievous char- acter, but the result of which did not appear within six years. The in- quiry in such cases would be little better than speculative. The charac- ter of the soil, the inclination of the strata, the depth and extent of the 38 RIGHTS INCIDENTAL TO POSSESSION (Part 1 works, the distance and nature of the land -supposed to be in danger, and other considerations, would make the inquiry of such a character that the only prudent verdict would be "Not proven." In many cases, damages would be given where none could be sustained ; while they would, in other cases, be given where they ought to be withheld. JThere is no doubt that for an injury to a right an action lies: but the question is. What is the plaintiff's right? Is it that his land should remain in its natural state, unaffected by any act done in the neighbour- ing land, or is it that nothing should be done in the neighbouring land from which a jury would find that damage might possibly accrue? There is no doubt that in certain cases an action may be maintained, although there is no actual damage. The rule laid down by Serjeant Williams, in note (2) to Mellor v. Spateman, 1 Wms. Saund. 346 b, is that, whenever an act injures another's right, and would be evidence in future in favour of the wrongdoer, an action may be maintained for an invasion of the right, without proof of any specific damage. This is a reasonable and sensible rule ; but it has no application to the present case ; for the act of the defendant in getting the coal would be no evi- dence in his favour as to any future act: getting the coal was an act done by him in his own soil by virtue of his dominion over it. If the question were unaffected by decision, we cannot but think that the contention on the part of the plaintiffs in error is correct. That on behalf of the defendant is, that the action must be brought within six years after the excavation is made, and that it is immaterial whether any actual damage has occurred or not. The jury, according to this view, would have therefore to decide upon the speculative quesBon, Whether any damage was likely to arise ; and ft might well be that in many cases they would, upon the evidence of mineral surveyors and engineers, find that no damage was likely to occur, when the most seri- ous injury afterwards might in fact occur, and in others find and give large sums of money for apprehended damage, which in point of fact never might arise. This is certainly not a state of the law to be desired. On the other hand, the plaintiffs in error rely upon the ordi- nary rule that dam-num and injuria must concur to confer a right of action, and that, although only one action could be maintained for damage in respect of such a claim, nevertheless it would be essential that some damage should have happened before a defendant was made liable for an act done in his own land. Actions upon contract and actions of trespass for direct injuries to the land of another are clearly distinguishable. No authority is cited in Nicklin v. Williams, 10 Exch. 259, for the judgment there given: and, although the judgment in that case is distinct upon the point, it nevertheless was extrajudicial ; for before the former action was commenced it is obvious that actual damage had been sustained; in which case another principle applies, viz., that no second or fresh action can under such circumstances be brought for subsequently accruing damage: all the damage consequent upon the Ch. 3) LAND 39 unlawful act is in contemplation of law satisfied by the one judgment or accord. We are not insensible to the consideration that the holding damage to be essential to the cause of action may extend the time dur- ing which persons working minerals and making excavations may be made responsible ; but we think that the right which a man has is to enjoy his own land in the state and condition in which nature has placed it, and also to use it in such manner as he thinks fit, subject always to this : that, if his mode of using it does damage to his neigh- bour, he must make compensation. Appl ying these t^v^ 2jinciplgs_to,_ the present case, we t hink that no cause of action accrued for the jmere excavation by the defendant in his own land, so long as it caused. JIG damage to the plaintiff; and that the cause of action did accrue^ wh en the actual damage first occurred. We should be unwilling to rest our judgment upon mere grounds of policy; but we cannot but observe that a rule of law, or rather the construction of a Statute of Limitation, which would deprive a man of redress after the expiration of six years, when the act causing the damage jvas unknown to him, and when in very many instances he would be in inevitable ignorance of it, woul d be harsh, and contrary to ordinary principles of law. The judgment must therefore be reversed, and judgment given for th6 plaintiffs. Judgment reversed.^ 3 The judgment of the Court of the Exchequer Cliamber was affirmed in the House of Lords. 9 H. of L. 503 (1S61). Ace: Smith v. Seattle, IS Wash. 484, 51 Pac. 1057, 63 Am. St. Kep. 910 (1898). See Darley Main Colliery Co. v. Mitcliell, L. R. 11 A. C. 127-(188(j) ; West Leigh Colliery Co. v. Tunnicliffe & Hampson, [1908] A. C. 27 (1907). A. was the owner of the surface of a certain piece of land, and B. of the underlying adjacent coal strata. B. so mined that later the surface of A.'s land subsided. The subsidence took place more than six years after the mining. The court held that A. could not recover from B., saying, inter alia: "The adjacent owner in this case at some time failed in duty to the owner of the surface of this lot. The mere fact that it caved in because the coal had been mined underneath demonstrates this failure. When the coal was removed without leaving sufficient pillars, or without supplying sufficient artificial props, was the time when the subjacent owner failed in an abso- lute duty he owed to his neighbor above. And from that dates the cause of action. Unless, when the coal was mined, the miner left no pillars, or too few, or oTtOo small dimensions for such a mine, or did not replace the coal with ample artificial durable props, there was no cause of action." "The date of the cave-in and partial destruction of the house is not the date of the cause of action ; that was only the consequence of a previous cause, whether one month or twenty years before. It is argued that in some cases the surface owner could not know by the most careful observation whether the mine owner had neglected his duty within six years. We an- swer, that is only one of the incidents attending the purchase of land over coal mines. It is not improbable that this risk enters largely into the com- mercial value of all like surface land in that region. But, however this may be, we hold that the miner is not forever answerable for even his own de- fault. Further, in no case. is he answerable for the default of his predeces- sor before his possession." Noonan v. Pardee, 200 Pa. 474, 483, 484, 50 Atl. 255, 55 L. R. A. 410, 86 Am. St. Rep. 722 (1901). A. and B. were adjacent landowners. B. excavated the coal under his ^^ c 40 RIGHTS INCIDENTAL TO POSSESSION (Part 1 SMITH V. THACKERAH. (Court of Common Pleas, 1866. L. R. 1 C. P. 564.) Declaration that the plaintiff was possessed of certain land, and the land received lateral support from certain land adjoining thereto, and the defendants dug and made on this adjoining land an excavation or well near to the land of the plaintiff, and the defendants thereby, and for want of ke.eping and continuing the sides of the well shored up, or otherwise preventing the consequences hereinafter mentioned, wrong- fully deprived the land of the plaintiff of its support, whereby the land of the plaintiff sank and gave way, and divers walls, buildings, and premises of the plaintiff" on the land sank and were damaged, whereby the plaintiff was put to great expense, &c. Pleas : Not guilty, and not possessed. At the trial before Erie, C. J., at the last Surrey spring assizes, it was proved that the plaintiff was possessed of a piece of land on which a building had been recently erected, and that the defendants, who were neighbouring landowners, dug a well on their own land near to that of the plaintiff, and afterwards filled up the well with such loose earth that the ground round it sank, and the plaintiff's building was injured, causing damage to the amount of £15. The jury found, in answer to questions by the Chief Justice, that the land of the plaintiff would have sunk if there had been no building on it, and that some particles of sand from it would have fallen on to the defendants' property, but that the plaintiff would have suffered no appreciable damage. A verdict was entered for the defendants, with leave to the plaintiff to move to enter the verdict for such sum under £15. as the Court should direct, on the ground that the facts proved at the trial entitled the plaintiff to a verdict without proof of any pecuniary damage. Robinson, Serj., obtained a rule nisi pursuant to the leave reserved. ErlE, C. J. I am of opinion that this rule should be discharged. There is no doubt that a right of action accrues whenever a person interferes with his neighbour's rights, as, for example, by stepping on his land, or, as in the case of Ashby v. White, 1 Sm. L. C. (5tli Ed.) 216, interfering with his right to vote, and this though no actual dam- age may result. But for a man to dig a hole in his own land is in itself _a perfectly lawful act of ownership, andjt only becomes a wrong if it injures his neighbour; and since it is the injury itself which gives rise to the right of action, there can be no right of action unless the dam- age is of an appreciable amount. A person may build a chimney in front of your drawing room, and the smoke from it may annoy you, or land. Later B. died, devising the land to C. C. did not work the mines. Thereafter A.'s land subsided ; this subsidence being caused by the workings done by B. Held, A. has no cause of action against C. Hall v. Norfolk, [1900J 2 Ch. 493. See, also, Greeuwell v. Coal Co., L1897] 2 Q. B. 165. Ch. 3) LAND 41 he may carry on a trade next door to your house the noise of which may be inconvenient ; but unless the smoke or noise be such as to do you appreciable damage, you have no right of action against him for what is in itself a lawful act. In the case of St. Helen's Smelting Com- pah^vTTipping, 11 H. L. C. 642, 35 L. J. (Q. B.) 66, in which the de- fendant had set up some chemical works, the House of Lords held that, if the noxious vapours did not cause material damage to the plaintiff, he had no cause of action. In the present case the digging the well and filling it up again were in themselves perfectly lawful acts, and the jury have found that they did no sensible damage to the plaintiff, and he has therefore no right of action. BylSS, J. I am of the same opinion. In actions for a trespass the trespass itself is a sufficient cause of action. But in actions for indirect injuries like the present, the judgment of the House of Lords in Bon- omi V. Backhouse, 9 H. L. C. 503, 34 L. J. (Q. B.) 181, shews that there is no cause of action if there be no damage, and I cannot distinguish between no appreciable damage to the land in its natural state and no damage at all. Montague Smith, J. I am of the same opinion. The mere sub- sidence of the surface of the soil is not necessarily an injury, and we are bound by the verdict of the jury, who found that in fact no appre- ciable damage would have occurred if these new buildings had not been on the land. Rule discharged.* 2 A coal company so mined as to cause a public highway and adjacent land gradually to sink to a depth of 10 feet. No actual damage was done to the highway nor was it rendered thereby less convenient. In an action against the coal company, Collins, J., said: "I have no doubt whatever that such an action, would lie without proof of pecuniary loss. I think the prin- ciple at the root of the matter is, that the owner is entitled to have his land ^■^ "remain in its natural state, unaffected by any act done in the neighbouring land": see per Willes, J., delivering the judgment of the Exchequer Cham^ ber in Bonomi v. Backhouse, E., B. & E. 622. at page 657, and that as soon as the condition of the plaintiffs' land has been in fact changed to a sub- stantial extent by the withdrawal of lateral support, the plaintiff has sus- tained an injuria for which he may maintain an action without proof of pecuniary loss. In the same case, Willes, J., compares the right to that in the flow of a natural river — a right which is unquestionably invaded where a sensible alteration has been produced in the character of the water where it passes the plaintiff's land, although there is no money damage. Another source of some confusion is that damage not measurable in money has been v_ treated as equivalent to a physical alteration so small as to amount to noth- ing in contemplation of law — an observation which may perhaps explain .Smith V. Thackerah, Law Rep. 1 C. P. 564, which is the only case, so far as I know, which might seem to throw doubt on the principle which I have stated." Attorney General v. Conduit Co., [1895] 1 Q. B. 301, 311, 313 (1894). ^ '^ ^ ^^c^-t'^ C^-^iy€^u^,K^ZZ^a-yC(^ j./> < IL^ ^S. 50 RIGHTS INCIDENTAL TO POSSESSION (Part 1 plaintiff's building, then plaintiff is entitled to recover in this action such an amount of damages as he may prove he has sustained by the fall of his building. (3) In excavating by the side of another's build- ing, it is the duty of the person having the excavating done to use such care and caution, to prevent injury to such building, as a sensible and prudent man, experienced in such work, would exercise, if he were the owner of the building; and the omission of such care and caution is culpable negligence, and renders the person having the excavating done .liable for all the damages resulting therefrom, (6) The measure of damages in this case is the amount of money required to rebuild plaintiff's house as it was before the fall, and the value of the house thrown down to plaintiff during the time necessarily taken to rebuild it, with the interest on those amounts from the time when the house was completed, after its fall, to the present time." * * * s Leonard, Judge. The right to support from the adjoining soil may be claimed either for the land in its natural state, or for it subjected to an artificial pressure by means of building or otherwise. The right in the former case would seem to be a natural servitude or ease- ment belonging to contiguous lots, and accordingly it was recognized and protected in the Roman law by specified regulations, and similar provisions have been introduced into the civil code of France. (Code Civil, art. 614.) We are not aware of any express common law deci- sion upon this subject; but we find it said of old, in Rolle's Abr. 564, tit. Trespass : "It seems that a man who has land closely adjoining my land, cannot dig his land so near mine that mine would fall into his pit, and an action brought for such an act would lie ;" and in Wyatt v. Harman, (3 Bam. & Adol. 874), Lord Tenterden remarked* in deliv- ering the judgment of the court of king's bench : "It may be true that, if my land adjoins that of another, and I have riot, by building, in- creased the weight upon my soil, and my neighbor digs in his land, so as to occasion mine to fall in, he may be liable to an action." When, however, the lateral pressure has been increased by the erection of buildings, it seems to be well settled at common law by authorities, that no man has a right to an increased support unless_he has acquired such a servitude by gr ant or prescription. It is so laid down in the early case of Wilder v. Minsterly (2 Rolle's Abr. 564). * * * And Lord Tenterden, in delivering the judgment of the court in the case before cited, said : "The question reduces itself to this: if a person builds to the utmost extremity of his own land, and the owner of the adjoining land digs the ground there, so as to remove some part of the soil which formed the support of the building so erected, whether an action lies for the injury thereby occasioned. Whatever the law might be, if the damage complained of were in respect of an ancient messuage, possessed by the plaintiff, at the extremity of his own land, which circumstance of contiguity might im- 8 Parts of the statement of facts and part of the opinion are omitted. Ch. ?>) . Land 51 ply the consent of the adjoining proprietor at a former time to the erection of the building in that situation, it is enough to say in this case that the building is not alleged to be ancient, but may, as far as appears from the declaration, have been recently erected, and if so, then, according to the authorities, the plaintiff is not entitled to re- cover." In the more recent case of Partridge v. Scott, (3 Mees. & Wels. 220,) which involved the same question, it is said: "If a man builds his house at the extremity of his land, he does not thereby ac- quire any right of easement, for support or otherwise, over the land of his neighbor. He has no right to load his own soil so as to make it require the support of that of his neighbor, unless he has some grant to that effect ;" and the American cases are, it is believed, to the same effect. (Thurston v. Hancock, 12 Mass. 221, 7 Am. Dec. 57.) Although not altogether in good taste, I repeat, as applicable to the present case, what I had occasion to say in a former case. It is a logical consequence from legal principles, that to the extent to which a person has a right to act, others are bound to suffer; and that any damage that may accrue to them, while a person thus exercises his own rights, affords no valid ground of complaint. The loss occasioned in such cases is "damnum absque injuria." Every person, however, who is performing an act is bound to take some care in what he is doing. He can not exercise his own indisputable rights without observing proper precaution not to cause others more damage than can be deemed fairly incident to such exercise. In Wallars v. Pfeil, (Mood. & Alalk. 364,) the plaintiff had neglected to take any precaution by shoring up their own houses within, or in any other way against the effect of pulling down the defendant's adjoining house ; and it appeared that this might have been so done that the accident would not have hap- pened to the same extent. There was also evidence to show that the accident was owing to the bad foundation of the plaintiff's house; but there was conflicting evidence as to whether, by due care on the part of the defendant's workmen, the mischief might have been entirely avoided.^ In summing up, the chief justice of the queen's bench stated it to be now settled that the owner of premises adjoining those pulled down, must shore up his own in the inside, and do every thing proper to be done upon them for their preservation ; but, although that had not been done, still the omission did not necesscirily defeat the action, and that if the_ pulling down \yere irregularly and inigroperly done, and an injury were produced thereby, the person so acting would be liable, notwithstanding the omission of the plaintiff ; and the jury were accordingly charged, that, if the defendant's house was pulled down in a wasteful, negligent and improvident manner, so as to occa- sion greater risk to the plaintiff than in the ordinary course of doing the work he would have incurred, therithe defendant was^ liable to make compensation for the consequences of his want of caution; but » See Bass v. West, 110 Ga.-69S, 36 S. E. 244 (li)OU). 52 RIGHTS INCIDENTAL TO POSSESSION (Part 1 that if they thought fair and proper caution had been exercised, then the defendant would be entitled to a verdict. The result of the cases, we think, is, (and such would seem to be the reasonable doctrine,) that, if a man in the exercise of his own rights of property do damage to his neighbor, he is liable, if it might have been- avoided by the use of rea- sonable care ; and it seems to be usual in England for a party intending to make alterations that may affect his neighbor's premises, to give notice of his intention ; but whether any such duty be imposed by law (Town v. Chadwick, 8 Scott, 1) need not be inquired into here, as the present plaintiff knew of the digging and took measures to pro- tect himself against the consequences of it.^*' These principles require us, we think, to reverse the judgment, and Send the case back for a second trial. We do not think there is any erf\.r in the refusal of the defendant's first and fourth instructions. A pi;rty may subject himself to responsibility by the want of reasona- ble care, although his digging be confined to his own ground and do not exceed a reasonable depth; nor is he protected by the fact that he used such care as his builder, who was a skillful and careful person, deemed necet>i,ary. The question is, as to the fact of negligence, wheth- er the work were done in a careless and improvident manner, so as to occasion greater risk to the plaintiff than in the reasonable course of doing the work he would have incurred, and not whether, in the opin- ion of the superiniendent, no matter how skillful he may have been, every thing was done that he deemed necessary. His opinion may be proper evidence to be considered by the jury, but it does not conclude the matter, constituting of itself a bar to the plaintiff's recovery. But the error is in plaintiff's third instruction, where an attempt is made to define, with precision, the degree of care that must be used in a case like the present, in order to exempt a party from liability; and the standard there adopted is substantially that care that a prudent man, experienced in such work, would have exercised, if he had been him- self, the owner of the injured building. Now it is quite evident, we chink, that this is going beyond the care that the law exacts upon such occasions. It is to be observed that the defendant was upon his own ground, and in digging upon it, exercised an undoubted right of prop- erty, which the plaintiff had no right, either by express grant or pre- scription — by statute or local ordinance — in any way to interfere with or prevent; and although, in exercising his rights, it was certainly 10 "It is the duty of one who makes an excavation on his own land, deeper than the foundation of a building on an adjoining lot, and so near to such building as to endanger it, to notify the adjoining owner of the proposed ex- cavation, and afford him a reasonable opportunity to protect his property, and a failure to discharge such duty is negligence, for which an action may be maintained for the injury resulting therefrom, unless the adjoining own- er had actual knowledge c2 such proposed excavation." Gerst v. St, Louis, 185 Mo. 191, 209, 84 S. W. 34, 105 Am. St. Rep. 580 (1904). Ace: Schultz V. Byers, 53 N. J. Law, 442, 22 Atl. 514, 13 L. R. A. 5G9, 26 Am. St. Rep. 435 (1891) ; Davis v. Summerfield, 131 N. C. 352, 42 S. E. 818, 03 L. K, A. 492, 92 Am. St. Rep. 781 (1902). ■ Ch. 3) LAND 53 liis duty to his neighbor to use ordinary care in order to avoid doing him harm, he was not bound to observe the same care that he would have taken, as a wise and sensible man, if he had been the owner of both buildings — the one erected and the one about to be erected. He would, of course, in that event, have shored up and would have sub- mitted to many inconveniences, and, indeed, would have incurred con- siderable additional expense in doing the new work, rather than ex- pose the buildings already erected to any risk. Every prudent person, in such a situation, would take precautions — subject himself to incon- veniences, and forego the exercise of every right that would endanger his present building, if he found it for his interest to do so. In the present case, if the laying of the new foundation, in very short sec- tions, would have been attended with increased expense and with danger to the sufficiency of the new wall, and the defendant had been the owner of the plaintifif's building, he might have found it for his interest to have submitted, and most probably would have submitted, to this inconvenience and risk, and even increased expense, to avoid all hazard to his own property ; yet the law does not exact of him the same forbearance and care and expense for the security of his neigh- bor's property that he would have found it for his interest to have taken for his own. We do not know that the instruction was intended, or indeed understood by the jury in the sense we impute to it. It may, however, have been so understood, and if so, could not but have misled them; and we shall therefore reverse the judgment, that the case may be retried upon a fuller understanding of the facts and of the law applicable to them. The judgment is reversed, and the cause remanded. ^^ 1 1 "It is required of the owner of tlie soil, having the right to excavate, notwithstanding there are buildings upon adjacent soil, that he shall exer- cise his right with reasonable skill and care in view of the character of the buildings and the nature of the soil, so as to avoid doing unnecessary in- jury to the buildings." City of Quincy v. Jones, 76 111. 2dl, 241, 20 Am. Kep. 243' (1875). "If he [the excavating owner] fails to take such reasonable precautious to protect his neighbor's soil and to preserve it in its natural state, he is liable for the injury to both the land and the superstructure, if the pressure of the superstructure did not cause the land to fall and it fell in consequence of the failure to take such reasonable precautions." Gildersleeve v. Hammond, 109 Mich. 431, 439, 67 N. W. 519, 33 L. R. A. 46 (1896). See, also, Covington v. Geyler, 93 Ky. 275, 19 S. W. 741 (1892); Shafer v. Wilson, 44 Md. 268 (1876) ; White v. Nassau Trust Co., 168 N, Y. 149, 61 ^•. E. 169, 64 L. R. A. 275 (1901) ; Spohn v. Dives, 174 Pa. 474, 34 Atl. 192 (1896). For liability under statutes, see Aston v. Nolan, 63 Cal. 269 (1883) ; AlcMillen V. Watt, 27 Ohio St. 306 (1875). A. excavated on his lot, leaving a strip adjoining B.'s land. B.'s house did not fall until, by the action of rain and wind upon the retaining strip, brought about by A.'s not finishing his cellar, it was gradually eroded and finally became insufficient to retain B.'s land and house. Held, B. has a cause of action against A. for the damage caused to the house. Hannicker V. Lepper, 20 S. D. 371, 107 N. W. 202, 6 L. R. A. (N. S.) 243, 129 Am. St. Rep. 938 (1906). See Austin v. Hudson River R. Co., 25 N. Y. 334 (1862). Com- 54 BIGHTS INCIDENTAL TO POSSESSION (Part 1 CHAPTER IV STREAMS EMBREY V. OWEN. (Court of Exchequer, 1851. 6 Exch. 353.) The plaintiffs were occupiers of a water grist-mill situate on the banks of the river "Rhiew," a mountain stream, in the parish of Ber- riew, in that county. The defendant Mrs. Owen was the owner of land on both sides of that river above the mill ; and this action was brought against her for diverting part of the water of the river, for the purpose of irrigating certain meadows on the northern bank, which were in the occupation of her tenant John Jones. The water was diverted by means of an iron trough or aqueduct placed near a waste weir, from whence the surplus or waste water was carried into the trough or aqueduct, and by it over the river into the main and float- ing gutters of the meadows, when required for irrigation ; at other times such surplus water was discharged from the trough or aqueduct direct into the bed of the river by means of an iron flap or sluice in the middle side of the trough, so constructed as to be opened for the latter purpose at pleasure. A portion of the water was lost by ab- ."rorption and evaporation in the process of irrigation; the working of the plaintiffs' mill, however, was not in the least impeded ; and tlie pare Gilmove v. Driscoll, ante, p. 49 ; Witherow v. Tannehill. 194 Pa. 21, 44 All. loss (1899) ; compare U. S. v. Peachy (D. C.) 36 Fed. 160 (1S8S). A. and B. were adjacent lando.wners. A. started to build ; the land was ■xX_-OwM swampy ; and, in excavating a large amount of water worked from B.'s land "^^-^-""'^^^^^ ^Q .^ 'g excavation. As a consequence of the withdrawal of this water sup- port B.'s house and land sunk and were daniacred. B.'s land would have J^L^ lish rights by prescription. * * * It is not claimed that any ques- tion of prescription is involved, and the case is co nsequent ly to b e^ regarded as only presenting for adjudication the relative rights of the^ parties at the commion law to make use of the flowing waters of th£ stream, unaffected by any exceptional circumstances. And in considering the case it may be remarked at the outset that it differs essentially from a case in which a stream has been diverted from its natural course and turned away from a proprietor below. No person has a right to cause such a diversion, and it is wholly a v/rongful act, for which an action will lie without proof of special damage. It dift'ers, also, from the case of an interference by a stranger, who, by any means, or for any cause, diminishes the flow of the water; for this also is wholly wrongful, and no question of the reasonableness of his action in causing the diminution can possibly arise. And had the instructions which are excepted to been given with reference to a case of diversion, or of obstruction by a stranger, the broad terms in which the responsibility of the defendant was laid down to the jury might have found abundant justification in the authorities. But as betw^ee n Jwo propri etors, neither of whom has acquired superior rights to the other, it cannot be said that one "has no right to use the water to the prejudice of the proprietor below him," or that he cannot lawfully "diminish the quantity which would descend to the proprietor below," or that "he must so use the water as not materially to affect the application of the water below, or materially to diminish its quantity." Such a rule would be in effect this : That the lower pro- prietor must be allowed the enjoyment of his full common-law riglits as such, not diminished, restrained, or in any manner limited or quali- fied by the rights of the upper proprietor, and must receive the water in its natural state as if no proprietorship above him existed. Such a rule could not be the law so long as equality of right between the several proprietors was recognized, for it is manifest it would give to the lower proprietor superior advantages over the upper, and in many cases give him in effect a monopoly of the stream. Cases may unquestionably be found in which the rule of law is laid down as broadly as it was given by the circuit judge in this case, but an examination of them will show either that the facts were essen- tially different, or that the general language was qualified by the con- text. Thus the language employed in the first instruction as above given seems to have been quoted from Lord Tenterden in Mason v. Hill, 3 B. & Adol. 312. But there it had reference to a case of diver- Ch. 4) STREAMS 63 sion of water, and was strictly accurate and appropriate. The same language substantially is made use of in Twiss v. Baldwin, 9 Conn. 291 ; Wadsworth v. Tillotson, 15 Conn. Z7Z, 39 Am. Dec. 391 ; Arnold V. Foot, 12 Wend. (N. Y) 331 ; and probably in many other cases, and is adopted by Chancellor Kent in his Commentaries (volume 3, p. 439). See, also, Bealey v. Shaw, 6 East, 208; Agawam Canal Co. v. Ed- wards, 36 Conn. 497; Williams v. Alorland, 2 B. & C. 913; Mason V. Hill, 5 B. & Adol. 1 ; Tillotson v. Smith, 32 N. H. 95, 64 Am. Dec. 355. But as between different proprietors on the same stream the right of each qualifies that of the other, and the question always is, not merely whether the lower proprietor suffers damage by the use of the water above him, nor whether the quantity flowing on is diminished by the use, but whether under all the circumstances of the case the use of the water by one is reasonable and consistent with a correspond- ent enjoyment of right by the other. * * * It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not unrea- sonable. In other words, the injury that is incidental t o a re asonable enjoyment of the common right can demand no r.edre;ss. We think the court erred also in declining to instruct the jury on defendant's request that in determining the question of reasonable use by the defendant they might consider, among other things, the general usage of the country in similar cases. As was said in Gould v. Boston Duck Co., 13 Gray (Mass.) 452: "Usage is some proof of what is considered a reasonable and proper use of that which is a common right, because it affords evidence of the tacit consent of all parties interested to the .general convenience of such use." And see Thurber v. Martin, 2 Gray (Mass.) 394, 61 Am. Dec. 468 ; Snow v. Parsons, 28 Vt. 459, 67 Am. Dec. 723. Indeed in most cases this proof is the most satisfactory and conclusive that could be adduced, being established by the parties concerned, who understand better than any others what is reasonable and convenient, and who would not be likely to acquiesce in any thing which was not so. These errors render it necessary to order a new trial. Some of the rulings on the admission of evidence seem to have been very liberal, but we are not satisfied that they exceeded the bounds of judicial dis- cretion. The judgment will be reversed, with costs, and a new trial ordered. The other Justices concurred.^ 6 A. was an upper, B., a lower, riparian. B. bad a water wheel mill. A. kept back the river by a daiu to accumulate suHlcient water to carry his logs down by flood, releasing the water at intervals. This detention of the wa- ter made it impossible for B. to use his mill. Hold, B. has a right of ac- tion against A. Woodin v. Weutworth. 57 Mich. 278, 2.3 X. W. Si;{ (ISSu). A., an upper riparian, raised his dam, and to get his poud tilled shut off 64 EIGHTS INCIDENTAL TO POSSESSION (Part 1 MENG V. COFFEY. (Supreme Court of Nebraska, 1903. 67 Neb. 500, 93 N. W. 713, 60 L. R. A. 910, 108 Am. St. Rep. 697.) Pound, C' This suit was brought in 1893 to enjoin the defendants, upper riparian owners upon Hat creek and its several tributaries, from diverting the waters of said streams for irrigation purposes to such extent as to deprive the plaintiff, a lower owner, of the use of the stream. Upon trial a decision was announced orally adverse to the plaintiff. On appeal to this court it appeared that no final decree had been entered in accordance with such announcement, and the appeal failed. Thereafter a decree dismissing the cause and following the findings originally announced was duly entered, from which the pres- ent appeal is prosecuted. The defendants justify their diversions of the waters of said streams upon these grounds: (1) Prior appropriation; (2) that irrigation of meadow land to produce forage for their stock is a "domestic" use of the water, for which, if necessary, they may consume the whole. * * * The first two positions are clearly untenable if this court is to adhere to its repeated pronouncements that the rules of the common law as to the rights and duties of riparian owners are in force in this state. * * * A great deal of what has been urged upon us as demonstrating the inapplicability of the rules of the common law upon this head to con- ditions in Nebraska proceeds upon an erroneous impression of the na- ture and purpose of such rules. Thus, in a brief in which the subject is most elaborately and exhaustively discussed, counsel say: "No ri- parian proprietor in Nebraska to-day is entitled to the full flow of the stream through his premises just for the pleasure it may give him to see the stream filling its banks. * * * The use of the water belongs to the people." And throughout that brief, and in all the arguments we have examined, it is assumed that at common law any taking of wa- ter from a stream is an injury to the riparian proprietor, and that the latter may insist that no water whatever shall go out. The common law does not hold to so unreasonable a rule. On the contrary, it con- siders running water publici juris, and, while it will not permit any one man to monopolize all the water of a running stream when there are other riparian owners who need and may use it also, neither does it grant to any riparian owner an absolute right to insist that every drop of the water flow past his land exactly as it would in a state of na- ture. * * * the water entirely for two days In June and for four days in July. Diiring these days B., a lower riparian, was unable to operate his mill. Held. R. has no cause of action against A. Pitts v. Lancaster Mills, 13 Mete. (Mass.; 150 (1847). 7 Part of the opinion of the Commissioner is omitted. Cll. 4) ^ STREAMS 65 When, therefore, counsel tell us that their clients have a natural right to irrigate, and that reasonable use of the water is necessary in exercise of that right, they urge nothing against the rules of the com- mon law, since the latter merely insist that others along the streams in question have the same natural right, and permit every reasonable use by each consistent with like use by all. The apparent modifications of the common-law rules in the semiarid or arid states in that courts of such states are more liberal in their construction of what is a reasona- ble use, are no departure from the principles on which the rules are founded. On the contrary, they carry them to their logical conclusion in view of the special conditions of such regions. * * * For the reasons indicated, we are of opinion that the former holdings of the court must be adhered to, and that, except as altered by statutes, the common-law rules are in force in every part of the state. The de- tails of such rules with respect to irrigation, however, and their ap- plication to irrigation in the semiarid portions of the state, have not, a', yet, received careful consideration by this court. It is generally rec- ognized that at common law a riparian owner may take water from a stream for purposes of irrigation. Embrey v. Owen, 6 Exch. 353; Elliot V. Fitchburg R. Co., 10 Cush. (Mass.) 191, 57 Am. Dec. 8.5; Gillett V. Johnson, 30 Conn. 180; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 South. 78, 4 L. R. A. 572. 11 Am. St. Rep. 72; Gould on Waters, § 617. At an early day there was a tendency to class irriga- tion among those uses of a stream which might be carried even to en- tire consumption of its waters. But another view has long prevailed, and is now well established, not only in the eastern portion of the coun- try, but even in the arid and semiarid states (so far as such states rec- ognize the common-law doctrine as to riparian rights), to tlie effect that irrigation is one of those uses which must be exercised reasonably with due regard to the rights of others. Low v. Schaffer, 24 Or. 239, 33 Pac. 678; Gillett v. Johnson, 30 Conn. 180; Black's Pomeroy, Wa- ter Rights, § 151; Gould on Waters, §§ 205, 217. This subject has_ been confused needlessly by the unfortunate use of the words "natur- ar'^nd "ordinary" in this connection to distinguish those uses which the common law does not attempt to limit, and "artificial" or "extra- ordinary" to designate those which are required to be exercised within reasonabTe^boun^s. It is no doubt true that irrigation is a very natural and a very"6rdinary want, and that use of a stream for such purpose is natural and ordinaiy in semiarid regions. But such is not the question. The law does not regard the needs and desires of the person taking the water solely to the exclusion of all other riparian proprietors, but looks rather to the natural effect of his use of the water upon the stream and the equaF rights of others therein. The true distinction appears to lie between those modes of use which ordinarily involve the taking of small quantities, and but little interference with the stream, such as drinking and other household purposes, and those which necessarily in- BiG. Rights — 5 66 RIGHTS INCIDENTAL TO POSSESSION (Part 1 volve the taking or diversion of large quantities and a considerable interference with its ordinary course and flow, such as manufacturing purposes. * * * It would doubtless be impolitic to give an arbitrary or hard and fast meaning to the word "reasonable" in this connection. The use of wa- ter for irrigation always involves some loss, and we do not think it would be wise to declare every perceptible diminution of the waters of a stream to be unreasonable. The necessity of a liberal view of what constitutes a reasonable use of water for irrigation has been ju- dicially recognized (Harris v. Harrison, 93 Cal. 676, 29 Pac. 325 ; Bath- gate V. Irvine, 126 Cal. 135, 58 Pac. 442, 17 Am. St. Rep. 158), and we think caution in that respect entirely proper. If the rights of the up- per owner in the water are no more than those of the lower owner, they ^e at the same time no less. His right to reasonable use of the water for irrigation ought not to be rendered nugatory by requiring it to be exercised in an impossible manner. * * * ^ The uses which an upper riparian owner may make of a stream for ) purposes of irrigation must be judged, in determining whether they / are reasonable, with reference to the size, situation, and character of ( the stream, the uses to which its waters may be put by other riparian / owners, the season of the year, and the nature of the region. These circumstances differ in different cases, and what use is reasonable must be largely a question of fact in each case. Lux v. Haggin, 69 Cal> 255, 4 Pac. 919, 10 Pac. 674; Baker v. Brown, 55 Tex. Z77 ; Harris v. Har- rison, 93 Cal. 676, 29 Pac. 325 ; Minnesota Loan & Trust Co. v. St. Anthony Falls Water Power Co., 82 Minn. 505, 85 N. W. 520; Em- brey v. Owen, 6 Exch. 353 ; Pitts v. Lancaster Mills, 13 Mete. (Mass.) 156. Some things, however, are clearly unreasonable, and it may be laid down absolutely that the upper owner, in using the Avater for irrigation, must not waste, needlessly diminish, or wholly consume it, to the injury of other owners, nor so as to prevent reasonable use of it by them also. Union Mill Co. v. Dangberg, 2 Sawy. 450, Fed. Cas. No. 14,370; Lux V. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674; Harris v. Harrison, 93 Cal. 676, 29 Pac. 325; Gould v. Eaton, 117 Cal. 539, 49 Pac. 577, 38 L. R. A. 181 ; Coftman v. Robbins, 8 Or. 279 ; Gillett v. Johnson, 30 Conn. ISO. Judged in this way, we think the use made of the streams in ques- tion by three of the defendants may not be said to be reasonable. Hat creek is a small stream, about 10 feet wide where it passes the plain- tiflF's lands, formed by the junction of a number of similar streams a few miles above. Of these, Warbonnet creek, after gathering several small tributaries, flows into IMunroe creek, which is received by Sow- belly creek, and the latter soon joins Hat creek, into which, some dis- tance above, a number of smaller streams have been united. * * * The defendant Brewster maintains a dam on Warbonnet creek, and a ditch, by means of which he irrigates some 300 acres. The capacity of this ditch is sufficient to contain the entire stream. It takes the wa- Ch. 4) STREAMS 67 ter away from the creek to a point about a mile off, where the dip is but very slightly toward the creek, and there discharges it, so that prac- tically all that is not used in irrigation will, in hot weather, evaporate, and not return to the creek. On one occasion, when the season was very dry in that vicinity, and a number of Mr. Brewster's neighbors below him were complaining because they could get no water, it ap- pears that he was turning the water upon a meadow of 80 to 100 acres, so that it stood there from one to one and one-half inches deep; and, as we have seen, what was not used was substantially wasted. This is obviously unreasonable. The defendant Wilcox maintains a ditch on Munroe creek, with which he irrigates 150 acres. This ditch also is sufficient to carry the whole stream, and the water is so discharged that none gets back into the creek, since the ground slopes in another di- rection at the point of discharge. With respect to the defendant Cof- i£^C, who maintains a ditch on Hat creek, with which he irrigates 160 acres, the case is not so clear. But at the time the writs were served in this case, while there was an abundance of water in his ditch, the- sher- iff found the creek dry a mile and a half below, and the bed of the creek opposite the plaintiff was so dry that dust blew in it. * * * With respect to the defendant Steele, however, who is on Middle Hat creek, above Coffey, the evidence is that all of the water taken out by him, except what is consumed by evaporation, goes back to the, cree k, and there is no evidence of unreasonable use or of injury to the plaintiff. [The Commissioner found that until 1893 there was no undue user by any of the defendants.] Per Curiam. For the reasons set forth in the foregoing opinion, the decree of the district court is affirmed as to the defendant Steele, but_reyersed as to the defendants Coffey, Brewster, and Wilcox, with directions to make new and further findings of fact in conformity with said opinion, and to enter a decree enjoining the defendant Wilcox from wasting or unreasonably diminishing the waters of Munroe creek, and enjoining the defendants Brewster and Coffey from consuming all the waters of Warbonnet and Hat creeks, respectively, in the irri- gation of their lands, or permanently diverting in any year a greater proportion of the water in such streams for the time being than they were accustomed to take out prior to 1893, having regard to the nature of the season and the condition of the stream at the time; that pro- portion and other questions of fact necessary to the rendition of such decree to be ascertained from the evidence already taken, or by taking further evidence at the discretion of the district court* 8 See Mud Creek Irrigation Agr. & Mfg. Co. v. Vivian, 74 Tex. 170, 11 S. W. 1078 (18S9). 68 RIGHTS INCIDENTAL TO POSSESSION (Part 1 GARWOOD V. NEW YORK CENT. & H. R. R. CO. (Court of Appeals of New York, ISSl. 83 N. Y. 400, 3S Am. Rep. 452.) [The defendant at a point where its roadbed crossed a stream in- stalled pipes and drew away water for use in its locomotives. This diversion perceptibly reduced the water in the stream and materially diminished the grinding power of the plaintiff's mill lower down on the stream. He asked for damages and an injunction. He obtained both in the court below, and the defendant appealed.] Danforth, j.8 * * * gach [riparian proprietor] has a right to the ordinary use of water flowing past his land, that is, ad lavandum et ad potandum, for domestic purposes and his cattle, although some portion may be thereby exhausted ; and this is so, without regard to the effect which such use may have upon the lower owner. The water may also be used for irrigation or for manufacturing purposes. The cases cited by the appellant are abundant to show tliis, but in every one the irrigation is of the land to which the right to use the water is an incident, or with which the manufacturing purpose is connected, but even this privilege cannot be exercised if thereby the lawful use of the water by a lower proprietor is interfered with to his injury. Miner v. Gilmour, 12 Moore, 156; Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14,312. Now in the case before us the defendant has done something more ; it has not been content with exercising this privilege ; it has diverted a considerable portion of the stream not for any use upon the land past which it flows, but for the transaction of its business in other places and for purposes in no respect pertaining to the land itself. The pipes and reser^^oirs of the defendant are not laid or constructed for the mere purpose of detaining the water a short time, or applying it to machinery or other object upon the land itself, and afterward restoring it, but for facility in filling the defend- ant's locomotives, in order that they, with power generated from it, may pass as the interest of the defendant may require, to the east or wQst, returning no portion of it, even in the form of vapor, to the stream from which it was taken. So far as the plaintiff is concerned, it has cajried away from his premises the water as effectually as jf it had been turned into another channel and discharged at Albany or Buffalo; and from this, as the jury has found, he has sustained dam- age. Not only this, but it has been done under a claim of right by the defendant, which, if acquiesced in by the plaintiff, would in course of time ripen into a realty and destroy the incident of his property — the right of the plaintiff as riparian owner to have the water flow as it had theretofore been accustomed to flow. For in that case, al- though the defendant could not claim the right as riparian proprietor, it might claim it by prescription; and to prevent this result also, the » The statement of facts is rewritten and part of tlie opinion is omitted. Ch. 4) STREAMS 69 plaintiff had a clear right to an injunction. The terms of the one grant- ed are sufficiently well guarded. The defendant is "restrained" only "from diverting the water to the injury of the plaintiff." But the learned counsel for the appellant contends that inasmuch as both plaintiff and defendant require the water for artificial as dis- tinguished from natural uses — the one as a power for mill purposes, the other as material or the means of producing power for railroad purposes, it may be abstracted by the defendant, even to the other's injury, although he concedes the rule would be different if the plaintiff required the water for natural purposes. It is difficult to see how such a distinction can be maintained. The plaintiff requires the current because its momentum supplies power. The defendant, as riparian owner, has no right to remove the water and so diminish it. If the defendant's use was for natural purposes there might be some reason for giving it priority; but this is not pretended. To justify a use be- yond that a grant or license would be necessary. The defendant ex- hibits neither, but in its answer asserts that its use has been adverse to the plaintiff for more than twenty years. The evidence does not sustain the claim. As to it therefore the case presents no exception to the rule, that a riparian proprietor has no right to divert any part /<3^^(^ o^the water of the stream into a course different from that in which it h as been accustomed to flow, for any purpose, to the prejudice of any other riparian owner. This is the doctrine both of the common ^andTcivil law (3 Kent Com. 58-5), and it stands upon the familiar maxim, sic utere tuo ut non laedas alieno. In substance the defendant's claim is that it has a right to use all the water it pleases; but it does not show the origin or foundation of the right. As the case stands then the defendant has diverted the water without right and to the plain- tiff's injury; its use therefore could not be reasonable, and the in- quiry desired by the defendant, as to whether it was or not, would not be applicable. * * * Judgment appealed from affirmed, with costs.^* GILLIS V. CHASE et al. (Supreme Court of New Hampshire, 1S91. 67 N. H. 161, 31 Atl. 18, 6S Am. St. Rep. 645.) Case, for diverting water and diminishing the flow upon the plain- tiff's land. Facts found by the court. The plaintiff and one J. S. Winn are riparian owners, Winn's land being above the plaintiff's. About fifteen years ago Winn built a dam to hold back the water, thus forming a reservoir from which by loAcc: Even though the diversion might not have substantially damaged the plaintiff's mill. McCartney v. Londonderry, etc., Ry. Co.. [1904] A. C. 301, overruling Earl of Sandwich v. Gt. Northern Ry. Co., U R 10 Ch. Div. 707 (1S78). 70 RIGHTS INCIDENTAL TO POSSESSION (Part 1 an aqueduct he supplied water to his far/n buildings. He also permit- ted the defendants, who are not riparian owners, to connect aqueducts with the reservoir and thereby supply their buildings with water, con- veying to them by deed a right to such use. The defendants all claim the right to take the water from the reservoir under J. S. Winn, the owner of the land where the reservoir is located, and the owner of a part of the meadow from which the water is collected. The use of the water made by the several defendants is reasonable as to the quantity used, and the sale of the water by Winn to them is a rea- sonable use of it. The water used does not return to the stream, but the amount is so small as to make no difference that would probably be perceptible in the stream flowing through the plaintiff's land. Blodgett, J. The case finds that "the defendants all claim the right to take the water from the reservoir under J. S. Winn, the owner of the land where the reservoir is located, and the owner of a part of the meadow from which the water is collected." In virtue of this ownership, Winn's right to divert the water for use to a reasonable extent was incident to the land ; and, as the plain- tiff has failed to show any actual damage, it is only for an unreasonable and unauthorized diversion that the law will imply damage to him, be- cause each riparian proprietor having the right to a just and reasona- ble use of tlie water as it passes through and along his land, it is only when he transcends his right by an unreasonable and unauthorized use of it that an action will lie against hirn by another proprietor whose common and equal right to the flow and enjoyment of the water is thereby injuriously affected. And as the reasonableness of the use is, to a considerable extent, a question of degree, and largely dependent on the circumstances of each case, it is to be judged of by the jury, and must be determined at the trial term as a mixed question of law and fact. Jones v. Aqueduct, 62 N. H. 488, 490; Rindge v. Sargent, 64 N. H. 294, 295, 9 Atl. 723. This question having been found ad- versely to the plaintiff by the trial court, the finding is conclusive against hjm (Jones v. Aqueduct, supra), and consequently the only question now open to him is as to the right of Winn, in his character as a ri- parian proprietor, to sell the non-riparian defendants any of the wa- ter belonging to him as incident to his land. The English rule, is understood to be, that "A riparian owner can- not, except as against himself, confer on one who is not a riparian own- er any right to use the water of the stream, and any user by a non- riparian proprietor, even under a grant from a riparian owner, is wrongful." Ormerod v. Mill Co., L. R. 11 Q. B. 155 ; Swindon Water Works Co. V. Wilts & Berks Canal Nav. Co., L. R. 7 H. L. 697 ; Nut- tal V. Bracewell, L. R. 2 Ex. 1. But the rule is otherwise in this juris- diction, for it is held here to be a question of fact, whether the use "oTthe water made by a riparian owner for his own purposes, or for sale to others, is, under all the circumstances, a reasonable use. Jones v. Aqueduct and Rindge v. Sargent, supra. And in view of the finding '^ Ch. 4) STREAMS 71 t hat t he sale of the water to the defendants by Whin is a reasonable use of his right as a riparian owner, the plaintiff has no standing on this~Branch of the case. Judgment for the defendants. Clark, J., did not sit; the others concurred.** JONES et al. v. CONN. (Supreme Court of Oregon, 1901. 39 Or. 30, 64 Pae. 855, 65 Pac. 1068, 54 L. R. A. 630, 87 Am. St. Rep. 634.) Bean, C. J.*' This is a controversy between riparian proprietors upon a natural water course. There is virtually but one q uestion in- volved in_thejcase^ and that is whether the lands which the defendant seeks to irrigate are riparian in character. It is practically conceded 'tHaFup to "the commencement of the suit the plain tiffs had not been sub- jtantially injured or damaged on account of the use of the water by the_defendant, and, as a consequence, are not entitled to an injunction i^ the lands are riparian ; but the contention is that they are nonripa- rian7 and therefore the plaintiffs are entitled to an injunction restrain- ing the use of the water thereon without proof of damage. * * *- The plaintiffs admit the rule that, after the natural wants of all the riparian proprietors have been supplied, each is entitled to a reasonable use of the water for irrigating purposes, but insist that the exercise of the right must be limited to the tract of land through -vt'hich the stream flows as first segregated and sold by the government of the United States, and that, even in such a case, where there are natural barriers within the tract which would prevent a portion of the land from de- riving any benefit from the flow of the stream, the portion lying be- yond the barrier should be excluded. But, as we understand the law, lands bordering on a stream are riparian, without regard to their ex- tent. After a considerable search, we are unable to find any rule de- termining when part of an entire tract owned by one person ceases to be riparian. * * * It wou ld seem, that any person owning land which abuts upon or_ through which a natural stream of water flows is a riparian proprietor, 11 Contra: Ormerod v. Todmorden Mill Co., L. R. 11 Q. B. D. 155 (1S83). See Elliot v, Fitcliburg R. R. Co., 10 Cush. (G4 Mass.) 191, 57 Am. Dec. 85 (1852). In many of the semi-arid states of the West the common-law doctrines relating to rischts in Streams have been done away with in favor of the so- called appropriation doctrine, viz., that the use of the stream belongs to the persoiP^ho first appropriates it to his own use, to the extent that he so appropriates. See ^Yie\. Water llights in the Western States (3d Ed.) parts I, II, III: part IV, c. 40. 12 The statement of facts and part of the opinion are omitted. 72 ' RIGHTS INCIDEXTAL TO POSSESSION (Part 1 entitled to the rights of such, without regard to the extent of his land, or from whom or when he acquired his title. The fact that he may have procured the particular tract washed by the stream at one time, and subsequently purchased land adjoining it, will not make him any the less a riparian proprietor, nor should it alone be a vahd objection to his using the water on the land last acquired. The only thing neces- sary to entitle him to the right of a riparian proprietor is to show that the body of land owned by him borders upon a stream. * * * The case of Boehmer v. Irrigation Dist., 117 Cal. 19, 48 Pac. 908, would seem to make the extent of riparian rights depend upon the source of title, rather than the fact of title ; but in Water Co. v. Han- cock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217, it was expressly held that all land bordering upon a stream which is held by the same title — in that instance consisting of 1,280 acres— is riparian, and no dis- tinction was made on account of the source of title. Again, in Wig- gins V. Water Co., supra [113 Cal. 182, 45 Pac. 160, 32 L. R. A. 667], and Bathgate v. Irvine, 126 Cal. 135, 58 Pac. 442, 77 Am. St. Rep. 158, the right of a riparian proprietor to use the waters of a stream for irrigation was limited to the water shed. But, as we understand these cases, the court in each instance was determining the rights of the parties then before it, and not attempting to lay down an inflexible rule as a guide in all cases. Nothing more was held or decided than that under the claim alone of riparian rights the owner of land cannot, to the injury of another riparian proprietor, take the water beyond the water shed, or onto lands held by a title different from the title of those through which the stream flows ; and this all will concede. The right to make a reasonable use of the water of a stream is a rigliFol property, depending on the ownership of the land abutting on or through which the stream flows ; and whether a given use is reasona- ble or not is a question of^fact, to be determined under the circum- stances of eachjparticular..case. The right to use the water belongs to the owner of the land, and the extent of its exercise is not to be de- termined by the area or contour of his land, but by its eft'ect upon other riparian proprietors. * * * It is suggested that the court ought to ascertain and determine the rights of the respective parties, and fix them in the decree, so that here- after there may be no controversy concerning the matter. In the very nature of things, however, it is impossible in a case of this character to make such a decree. The^rjghts of the several riparian propiietQrs_ are equal, each being^^ntitled to but a reasonable use oJ_.the w ater for ^igating purposes, and what constitutes such use must necessarily de- pend upon the season^ the volume of water in the stream, the area and character of the land which each riparian proprietor proposes to irri- gate, and many other circumstances ; so that it seems to us there is no basis upon which the court could frame any other decree than one enjoining and restraining the defendant from diverting the water from Ch. 4) STREAMS 73 the stream to the Sjjbstantial injury of the present or future rights of the plaintiffs, and, as the decree of the court below is to that effect, it will be affirmed.^' Appeal of MESSINGER. (Supreme Court of Pennsylvania, 1S85. 109 Pa. 285, 4 Atl. 162.) [Bill for an injunction to restrain defendants from using the water of a stream. Bill was dismissed, and plaintiff appeals.] Mercur, C. J.^* This is an attempt to enjoin the appellees against the use of the water of a small stream which flows through their land. It unites with another stream of about the same size in forming the larger one, on which the appellants own lands and mills, some six miles below the junction of the two smaller streams. The complaint is that the appellees so use the water of the stream on their lands as to greatly lessen the flow thereof during a portion of the year to the mills of the appellants, to their injury. That such is now the effect of the appellees' use of the water in a dry season, when the streams are low, is undoubt- edly correct. * * * What, then, are the controlling facts found by the master ? They are that about 40 years before this bill was filed the predecessors in title of the appellees built a low dam across the stream, and cut a sluice or ditch therefrom by which the water was led into their meadows adjoin- ing. A gate was put at the entrance of the ditch by which the quan- tity allowed to flow could be checked or shut off when desired. This use of the water, under a claim of right, had continued for about 40 years, whenever the owners of the meadows thought they needed wa- tering. It did not flow constantly over the meadows, as there were times when for several months they did not need the water ; yet, .dur- ing that portion of each and every year when the growth of the grass would be promoted by irrigation, the water was so used. Such use of the water was continuous and uninterrupted except when they did not want it and closed the gates. He further found that the dam is no higher, the ditches no larger, nor the quantity of water diverted any greater, than when the dam was originally constructed. On the con- trary, that three acres less of meadow land are now irrigated than while it was in possession of the former owners ; that a number of ditches through which the water formerly flowed for irrigating purposes are now abandoned and closed ; that the water now taken from the creek is less than was formerly taken, but it has not decreased proportionate- ly with the diminution of water in the creek. At the time the water was first diverted from the stream, and for many years thereafter, it does not appear to have" caused any injury to 13 In addition to cases cited in text, see Crawford Co. v. Hathaway, 07 Neb. 325, 353, 93 N. W. 7S1, 60 L. R. A. 889, 108 Am. St. Rep. 647 (1903). 1* The statement of facts and part of the opinion are omitted. :^A 74 , RIGHTS INCIDENTAL TO POSSESSION (Part 1 the property now owned by the complainants. The injury results from the gradual diminution of the volume of water flowing in the stream, which has been the case for several years.^° While the dam which di- verts the water remains no higher, and the ditches which led the wa- ter from the stream and returned it thereto are unchanged, and the ap- pellees use less water than formerly, yet the appellants claim, in conse- quence of the diminished flow of water in the stream, the effect of the diversion, at first harmless, has now become injurious, and therefore the use of the water should Be enjoined against. In support of this view, the general rule, as declared in Washb. Easem. § 49, is invoked, that the time 'from which the period is to be reckoned in co mputing the duration of a continuous enjoyment is when the injury or inva^ sion of right begins, and not the time when the party causing it began that which finally creates the injury. The correctness of this rule may be conceded, yet it is not_applicable, to the facts of the present case. If the injury here was caused by a change of the dam or of the ditches ; or by suffering the latter to be- come filled up or clogged, (Polly v. IMcCall, 37 Ala. 20;) or by apply- ing the water to a different use; or if injury was caused by any late act, either of omission or of commission, on the part of the appellees, — it might be said they had previously only begun the work which caus- ed the injury ; but such is not this case. Here the whole action and work of the appellees is a continuance only of that which was done on the ground 40 years ago, and the water continues to be used for the same purpose now as then. * * * The work on the ground was not only under a claim of right', but it was open, visible, and notorious. The parties who owned the property below could foresee and anticipate the ultimate effect of the diversion of the water, as well as the parties who caused it. The fact that they may not have foreseen the probable diminution of the quantity of wa- ter which would flow in the stream cannot deprive the appellees of any of their rights arising from their possession and enjoyment of the water for nearly twice the number of years necessary to give a right thereto by prescription. Judgment affirmed.^* 15 The stream had shrunk to one-half its former size and it was alleged that in dry seasons the defendants took practically all the water. 10 "The plaintiff settled upon his laud in 1886, five years after Coffey be- gan his ditch, and from that time until 1S93 there is abundant evidence that lie had water in the creek at all times except for a day or two in 1890. No right to divert and dissipate the whole stream was acquired by making such use thereof as would still leave water for the plaintiff'. So long as the water was suHicicnt for all, there was no adverse user. * • * one of the ele- ments to be considered in determining what is a reasonable use of the water of a stream is the season of the year, and its eft'ect upon the stream. Ripar- ian owners are not to be debarred from use of water because the season is dry and the stream low. But at such time they must take care 'to do no material injury to the common right, having regard to the then stage of the river.' * * * The testimony is that the season of 1893 was unusually dry. Hence what might have been a reasonable use of the water, or at least such Ch. 4> STREAMS 75 NEW YORK RUBBER CO. v. ROTHERY et al. (Court of Appeals of New York, 1892. 132 N. Y. 293, 30 N. E. 841, 28 Am. St. Rep. 575.) [The appellant was a lower, the respondents, upper, riparian pro- prietors. The respondents had a valuable mill upon their land and erected a dam to get water power for the mill, by which means the normal flow of the river was diverted, and not returned to the chan- nel unti l it rea ched a point below the, apjpellant's land. The appellant's land was not used for manufacturing purposes. The appellant brought an action at law for the diversion of the water. Judgment below for the defendants.] IvANDON, J.^'' * * * The court charged the jury that if the defendants used and diverted the water to a degree that materially and appreciably lessened its flow along the lots of the plaintiff the plain-' tiff was entitled to recover nominal damages. But the court also charg- ed : "These defendants have the right to use this water to run their wheel, provided they do not interfere with the stream to an extent which you can say is both appreciable and material. That question will, of course, be determined with reference to the land as it was, and not with reference to the future, for an instant. Be sure as to that. Do not change the question from just what it is: Have the Rotherys, by this water course, diverted the water so as to leave the stream, to a material and appreciable extent, insufficient for the purposes of plain- tiffs_business ? Now, gentlemen, that is all there is of the case." The plaintiff excepted to this portion of the charge, and requested the court to charge "that the plaintiff's right to maintain this action, and to re- cover a verdict for nominal damages, does not depend at all upon the plaintiff's showing any actual or any perceptible damage, but solely upon the question whether the defendants have, by the use of their use as gave tlie plaintiff no ground of complaint, in other years, became high- -^ ■ '^ ly unreasonable when it had the effeict of giving Coffey and Brewster all the '^^2^1^ water, and leaving none for other owners. Only a continuous and adverse. '^ user of the whole_stream could give a right to tal:e oiat a greater proportioii of such Tvafer as was in the stream at the time than they had habitually tak^In fornipi' years." Meng v. CofTey, 67 Neb. 500, 520, 93 N. W. 713, 720." SUT::Tr. a. OlO, lOS Am. St. Rep. 697 (1903). For the facts of tliis case see ante, p. 64. X., an upper riparian, built a dam and excavated for a reservoir. .In so doing he opened two or three springs on his own land and tapped a large- spring ou adjoining land, the waters of which he piped to his reservoir., in an action by a lower riparian for interference with the flowage of the stream, A. contended that as a consequence of these new sources and the further facts of the leakage and overflow from the dam and the occasion:! t raising by him of the sluice gate, as much water ran down to the plaintitT's land as formerly. Held, if the defendant had interfered with the natural water flow , these faefs constituted no defense- Ware v. Allen, 140 Mass. 5lS, 5 jS/. E. 6f9"TlSSB)'. Compare ""Ell lot v. Fitchburg R. R. Co., 10 Cusn: (64 Mass.) 191, 57 Am. Dec. 85 (18.52). 17 The statement of facts Is rewritten and part of the opinion is omitted." 76 RIGHTS INCIDENTAL TO POSSESSION (Part 1 race, at any season of the year, diverted water from Matteawan cfreek, and thereby have reduced, perceptibly and materially, the volume or current of water which otlierwise would have flowed by the plaintiff's premises." This was refused. Both the charge and refusal were erroneous. The plaintiff's right to recover nominal damages was substantial, though the quantity of dam- ages was not. The defendants probably did leave water enough in the stream for the purposes of the plaintiff's business, as that business had been conducted. But the plaintiff's title to its water rights, and its 7^-V ^ right to redress for their invasion, were not conditional upon tlie bene- ^ ficial user of them. * * * fj^g plaintiff may, however, lose itstP tie by the defendants' prolonged adverse user of the water of the stream, and this is the more probable if such adverse user is protected by the verdict of the jury. It is not improbable that this action was brought to prevent the defendants from acquiring a prescriptive right to divert the water. The charge, which makes "the purposes of the plaintiff's business" material to its right to recover, and cautions the jury to regard plaintiff's land "as it was, and not with reference to ^^,^X^ the future," tended to lead the jury to disregard the inviolable charac- ^ ter of the plaintiff's property rights, or at least expose them to sacrifice, ^ . r ^x^d.'d't-^i if plaintiff's actual and immediate pecuniary damages were inapprecia- / ^ ble. The plaintiff might thus lose its right to the beneficial use of the water as it was accustomed to flow before defendants began to divert it simply because it had not as yet found it convenient to use it. In such a case, nominal damages given confirm the plaintiff's right, but withheld, impeach and may destroy it. * * * The judgment should be reversed, new trial granted, costs to abide event. All concur, except FollETT, C. J., not voting.^^ 18 The plaintiff was a riparian proprietor owning a water mill upon a small stream. The defendants acquired land on the lake whence the stream flowed, and installed a dam for the purpose of obtaining a water supply for certain villages, thereby changing the natural flow of the stream. The dam was so arranged, however, that the amount of water for the plaintiff's mill was ontirely sufficient and flowed with a more regular volume than it had before the installation of the dam. Held, the plaintiff was entitled to an injunc- tion jpreventing the defendant from changing the natural flow of Uie. strearcu Robefts'v. Gwyrfai District Comicil, [18D9] 1 Ch. 583. A. was an upper, B. a lower, riparian proprietor. A. put in a dam that diverted the bulk of the river from B.'s side of the stream to the other. B. alleged that the effect of this change was to destroy a water power of his land and asked an injunction to compel the restoration of the natural flow of the river. The court found that in fact B.'s land had no water power pos- .sibilities. Held, B. is not entitled to an injunction. Minnesota Loan & Trust Co. V. St. Anthony Falls Water-Power Co., 82 Minn. 505, 85 N. W. 520 (1901). See Modoc Land & Live Stock Co. v. Booth, 102 Cal. 151, 36 Pac. 431 (1894). A. erected a dam across a stream through his land, and used it to detain the water in the pond which formed the source of the stream, during the autumn and spring when his factory, which was situated on other laud that he owned lower down the stream and situated below that of B., was ade- quately supplied with water from another source. When that failed, the deficiency was made up from the reservoir thus created. B. opened tl\e Ch. 4) STREAMS 77 FILBERT V. DECHERT. (Superior Court of Pennsylvania, 1903. 22 Pa. Super. Ct. 362.) Porter, J.^® The plaintiff is the_owner in^ee of a tract of land through which flows Furnace creek, an unnavigable stream, upon which is erected a gristmiU^ and sawmill operated b;j^the water power. The corporation defendant is an agent of the state to which has been commit- ted the possession and management of the property used as an asylum for the chronic jnsaiie^L the title to the property being in the common- wealth. Act of June 22, 1891, P. L. 379. The land of which the defend- ant, as the representative of the commonwealth, is in lawful possession consists of a tract containing 540 acres, through which for a distance of about a mile flows Asylum creek, a stream which falls into Furnace creek, at a point above the land of the plaintiff. The state has erected upon its land extensive buildings, suitable as a place of residence for the insane, and has for a number of years there maintained the unfor- tunate of this class to the number of 800, the nurses and officers nec- essarily employed about the buildings increasing the total population living upon the land to about 900. Asylum creek enters the property of the defendant at a point nearly 100 feet higher than the asylum buildings, and the water used about the buildings has been conveyed from the creek through a six inch pipe. The plaintiff brought this ac- tion alleging a deprivation of her right to the use of the water of said stream] The^only injury to the property of the plaintiff suggested by theevidence was the diminution of the water power. The riparian rights of the commonwealth are the same which would have been incidental to ownership by a private individual : Union Mill, etc., Co. V. Ferris, 2 Sawy. 176, Fed. Cas. No. 14,371. * * * The learned judge of the court below charged the jury that the use of the water made by the defendant was not a proper ui£ of the stream by a riparian owner; and that "if the amount of water taken from the channel of this stream sensibly or materially diminished the flow, then the defendant has subjected itself to an action for an excessive use or diversion of the water." "No matter what the necessities of the asylum may have been, no matter how useful the institution may be, how praiseworthy it may be, it had no right to convey the water out of its course to the prejudice of the plaintiff's right." This language has the merit of being free from ambiguity. The learned judge of the court below determined as matter of law that the defendant had no right to furnish to the inmates of the buildings upon the riparian land water for drinking, culinary and cleansing or any other purpose usually con- sidered necessary to the preservation of life and health. gates and let off the accumulated water. Held, A. could not get an Injunc- tion against B., although there was no showing that the retention of the water damaged B. Clinton v. Myers, 46 N. Y. 511, 7 Am. Rep. 373 (1871). 19 The statement of facts and part of the opinion are omitted. 78 RIGHTS INCIDENTAL TO POSSESSION (Part 1 This conclusion seems to have been reached because of the frequent recurrence of the term "ordinary domestic purposes" in the authori- ties deahng with the rights of riparian owners. The learned judge, in his opinion refusing a new trial, says : "The principal question is whether the use of the water by the defendant is domestic in its na- ture." He then refers to the definitions of the word "domestic" found in several dictionaries, and thus states the result: "The central idea of both these definitions seems to be a family, home interest, something for the benefit of the family and home." Having thus reasoned out that there must be a home and a family upon the land before riparian rights become incidental to it, the learned judge proceeds to investigate the character of the residence of the insane patients upon the property of the state. Having satisfied himself that this pubHc institution "is an asylum, not a home ; a house of detention ; a place of treatment for the chronic insane, a hospital," the process of excluding these dwellers upon the margin of the stream from all riparian rights is complete. Even if the spirit of a legal principle and the relations out of which it arises are to be disregarded, the meaning of the word "domestic" can- not be arbitrarily assumed to be always thus narrow. One of the de- clared purposes of ordaining the constitution of the United States was to "insure domestic tranquility." As here used the term can hardly be said to imply an intention to preserve the peace of private families : it refers rather to the regulation of internal public affairs, not foreign interests. The term ordinarily means pertaining- to one's place of resi- dence, or to the affairs which concern it, or used in the conduct of such affairs. The authorities do not leave us without a definition of the term. In Philadelphia v. Gilmartin, supra [71 Pa. 140], Mr. Justice Agnew said, in referring to the use of water for manufacturing pur- poses : "These uses are not domestic, that is, such as are for the pres- ervation of the life and health of the population and their creatures." Chief Justice Paxson said, in Haupt's Appeal, supra [125 Pa. 211, 17 Atl. 436, 3 L. R. A. 536] : "If there was a tenant thereon he could use it for watering his stock and for household purposes, for any use- ful, necessary and proper purpose incident to the land itself and es- sential to its enjoyment." * * * The word as used in the authorities cited by the learned judge of the court below refers to the purposes for which the inhabitants may use the water, and not to the social status of the individuals occupying the buildings which may be upon the land. The right is a natural one, recognized as growing out of the natural wants of man ; it is inherent in the ownership of the land, and is to be enjoyed by all who lawfully dwell upon the premises to the ownership of which it is an incident, without regard to the duration or purpose of such residence. All those who lawfully occupy the- riparian lands have a right to the ordi- nary use of the water for the purpose of supplying their natural wants, including drinking, washing, cooking, and about their habitations for such things as are necessary to the preservation of life and health. Ch. 4) STREAMS 79 This natural right is not dependent upon whether the dwellers by the stream occupy homes or hospitals, are sheltered by tents or live in the open. The state might lawfully ordain that the National Guard should encamp upon this tract of land and take water for their use while there, from this stream. The ordinary use of the water, for the pur- pose of supplying the natural wants of those who inhabit the riparian lands, may involve an exhaustion of the stream without incurring lia- bility to lower riparian proprietors : Attorney General v. Gt. Eastern Ry. Co., 23 L. T. N. S. 344. When the use is extraordinary, for the supply of artificial wants, such as manufactures, those whose supply of water is thereby sensibly diminished, have a right of action : Gould on Waters (3d Ed^ § 205 ; Black's Pomeroy on Water Rights, §§ 138, 140, and cases there cited. This agent of the state, the defendant, had an unquestionable right to take from the stream so much water as was reasonably necessary to supply the natural wants of those living upon this tract of land. The evidence does not indicate any necessity for the use of the water to operate a fountain. The defendant was not warranted in taking water for the manufacture of ice to be sold away from the premises. The first and second specifications of error are sustained. * * * The judginent is reversed and a venire facias de novo awarded.-" CITY OF CANTONv. SCHOCK. (Supreme Court of Ohio. 1902. 66 Ohio St. 19. 63 N. E. 600, 58 L. R. A. 637, 90 Am. St. Rep. 557.) The city of Canton is a municipal corporation, and is situated be- tween the east and west forks of Nimishiller creek ; the forks meet- ing at or near the south line of the city, and thus forming that creek. The entire natural drainage of the city is toward and -into these two forks of the creek, which is a natural water course. The city has es- tablished its system of waterworks on the west branch of the creek, on a lot of land adjoining said branch ; and it takes its water supply from said creek, and from certain wells near the same, and from INIyers' Lake, near by. The city uses so m.uch of the water supply thus pass- ing through its waterworks as it needs for its use as a city, and supplies its inhabitants with water for domestic, commercial, and manufactur- ing purposes, at a price fixed by the city, so as to produce an income about sufficient to pay the expenses of said waterworks. The defend- ants in error own a water-power gristmill, located on the creek, a short distance downstream, south of the city, and have used the water of the creek for many years — over 50 — as power to run their mill, and until about the year 1887 there was sufficient water to supply both tlie city 2 See Wadsworth v. Tillotson, 15 Conn. 366, 39 Am. Dec. 391 (1843) ; Evans v. Merriweather, 3 Scam. (4 111.) 492, 38 Am. Dec. 106 (1842^. 80 RIGHTS INCIDENTAL TO POSSESSION (Part 1 and the mill ; but as the city grew, and extended its waterworks, it used larger quantities of water, and thereby the supply to the mill be- eame reduced to such an extent that in dry seasons of the year there was not sufficient water to run the mill all the time, and it became nec- essary to shut down at nights. Thereupon, in the year 1898, the de- fendants in error (plaintiffs below) commenced an action against the city in the court of common pleas, seeking to recover damages from the city for thus using the water, and thereby diminishing the supply to the mill. The city saved exceptions to part of the charge, and to the charge as a whole. A verdict was returned in favor of plaintiffs below, mo- tion for new trial overruled, judgment entered on the verdict against the city, and a bill of exceptions allowed, signed, and made part of the record. The circuit court affirmed the judgment, and thereupon the city filed its petition in error here, seeking to reverse the judgments below. BuRKET, J.^^ As this is an action against the city for damages, no question as to eminent domain, or appropriation of private property for public uses, is involved in the issue; the controlling issue being as to whether the city, as a municipal corporation, is a riparian proprietor having the right to use the waters of the creek for its own purposes, and to supply them to its inhabitants for the ordinary purposes of life, and as to whether the right to use water from a stream by one riparian proprietor for manufacturing purposes, such as running a gristmill, is inferior or equal to the right to use the water from the same stream by an upper proprietor for domestic purposes. It is urged by counsel for defendants in error that a municipality situated on a natural water course is not, in its corporate capacity, a riparian proprietor, and that only those inhabitants whose lots or lands border on the stream are such proprietors ; and some cases are cited which seem to. take that view of the law. * * * It was held by this court at this term in City of Mansfield v. Balliett, 65 Ohio St. 451, 63 N. E. 86, 58 L. R. A. 628, that a city situate on a stream is' liable in its corporate capacity to a lower proprietor for pol- luting the water of such stream by running the sewage of such city and its inhabitants into such stream. This case holds the city, in its corpo- rate capacity, and as an upper proprietor, liable to a lower proprietor for polluting the water of the stream; and if the city is liable not only for its own acts, but also for the acts of its inhabitants, in flowing sew- age into the stream, it must be upon the principle that, as upper ripariafi * proprietor, it has violated its duty toward a lower riparian proprietor on the same stream, and that therefore the city, in its corporate ca- pacity, is a riparian proprietor on the stream, and must bear the bur- dens of such position. While the inhabitants own their lots individual- ly, tlie city owns the streets, the fire department, and all other public 21 Tart of the opinion is omitted. Ch. 4) STREAMS 81 property and public works, and, in its corporate capacity, provides for the convenience and welfare of its inhabitants as to streets, fire pro- tection, lighting, and supplying water ; and in such and other like mat- ters the city overshadows the individuals, and stands in its corporate capacity as a single proprietor extending throughout its entire limits, and entitled, as such, to all the rights, and subject to all the liabilities, of a riparian proprietor on the stream upon which it is situated. Sound reason, the weight of authority, and the present advanced state of mu- nicipal government, rights, and liabilities, require that a municipality should be held and regarded, in its entirety, as an individual entity, hav- ing in its corporate capacity the rights, and subject to the liabilities, of a riparian proprietor; and we so hold in this case. The bringing of the action against the city for damages is of itself ^. ,. an implied admission that the city, in its corporate capacity, is an up- -'*^^-^ ' per proprietor, liable for the wrongful diversion or use of the water . •y;.^ of the stream upon which it is situated. Being charged with the liabil- \Ja ity of such upper proprietor, as conceded by bringing the action, and -f^-^^-^y"^^"^ as was rightly held in the City of Mansfield Case, it must a lso be ac- corded the rights and benefits of such proprietor. As such proprietor, the city uses the water of the stream, through its waterworks, in extinguishing fires, sprinkling streets, and other public purposes, and supplies water to its inhabitants for dome stic use and manufacturing purposes. * * * As the right of the city to supply water to manufactories within its ' bounds for power purposes is only equal to the right of a lower pro- prietor to use water for the same purpose, the question arises in this case as to the rights of the parties to use the water of the stream for such purposes. * * * Where there is not sufficient water in a stream to supply fully the needs of all the proprietors on the stream for power purposes, no one has the right to use all the water, and thereby deprive those below him from the use of any ; nor can those below rightly in- sist that those above shall use no water for power, and thereby save it all for those below. . Each ^ should use the water reasonably, and so as to do as little injury to the others as circumstances will permit. As a loss must fall upon one or the other of such proprietors, neither should be compelled to bear the whole loss, but the water should be so divided and used that each one may bear his reaso nable propor tion o f the loss. * * * ' ■ This being so, the city of Canton, in supplying water to its inhabit- ants for power purposes, had the right to use the water of the stream ^ a re asonable extent only, and so as to do as little injury as might be, under all the circumstances, to the lower proprietor ; each party bear- ing an equitable share of the loss caused by the shortage of water. Dry seasons are not caused by either party, but are the act of God, and each party must bear the losses resulting to him therefrom. * * * All water powers on a stream are established subject to the superior BiG.RionTs — 6 1t' 82 RIGHTS INCIDENTAL TO POSSESSION (Part 1 right of all upper proprietors to use water out of the stream for domes- ti^purposes, and, if the upper proprietors have grown so large or be^ come so numerous as to consume most or all of the water, the lower proprietors have no cause of complaint, because it is only what they should have reasonably expected in the growth and development of the country, and subject to which contingency they established their water powers. In addition to taking water from the stream for its own uses, and supplying the same to its inhabitants for domestic and manufacturing purposes, the amended petition avers that the city supplied water to' its inhabitants for commercial purposes. If this means only that the city received pay for the water so supplied, and thereby made the water an article of commerce, the averment is of no force. The city having the right to supply water to its inhabitants for domestic and manufacturing purposes, it can make no difference in that right that the supply is for pay, rather than for nothing. The injury, if any, to the lower proprie- tor, arises from the taking of the water, and not from the pay received therefor. It is also averred in the amended petition that the city supplies wa- ter to people outside of the city for domestic, commercial, and man- ufacturing purposes. If such supply to outsiders, or to be transported away from the city for commercial purposes, is sufficient in quantity to materially injure defendants in error, taking into consideration the size of the stream and water supply, the city, to that extent, is exceed- ing its right as a riparian proprietor. * * * The city having no right to materially diminish the flow of the water in the stream to the injury of defendants in error by supplying water to outsiders, or for commercial purposes to be transported to other parts, or to supply to its inhabitants for power purposes an unreasona- ble quantity, as above pointed out, it follows that if the city has ma- terially diminished the flow of the water in the stream by so supplying water to outsiders or for transportation, or unreasonably for purposes of power, it is liable to respond in damages to the party injured there- by; but for the water consumed by the city for its own purposes, or so supplied to its inhabitants for domestic use, even though it received pay therefor, it is not liable. The water taken by the city from the stream for its own use, and so supplied to its inhabitants, is_taken by virtue of its rights as a ripari- an proprietor^ and not by virtue of the right of eminent domain, and therefore no compensation need be made therefor. * * * The circuit court erred in affirming the judgment of the common pleas. Both judgments will be reversed, and the cause remanded for further proceedings. Judgments reversed.^^ 2 2 Compare Barre Water Co. v. Carnes, 65 Vt. G26, 27 Atl. 609, 21 U K. A. 769, 36 Am. St. Kep. 891 (1893). -y An incorporated city purcliased a piece of land on a river and sunk a Ch. 4) STREAMS 83 HAYES V. WALDRON. (Supreme Court of New Hampshire, 1863. 44 N, H. 580, 84 Am. Dec. 105.) Case by Simon F. Hayes against Jeremiah W. Waldron, for dis- charging saw-dust and shavings from the defendant's mill into the Cochecho dver, which ran through the plaintiff's meadows below the mill, and was accustomed to overflow them in times of high water, whereby the saw-dust and shavings, in times of high water, were car- ried and deposited on these meadows. The defendant's saw-mill, situ- ate on his land on the river, was a belt mill, driven by water, and prior to 1847 the saw-dust had been carried by a belt and box into the wheel pit, whence it passed off through the tail race into the river. About 1857 the belt and box were changed so as to carry the saw-dust directly into the river opposite and back of the mill, which is some twenty feet from the river. At tlie river bank there is a bank wall some six feet high from the water, and the belt and box are some twelve or fifteen feet above the water, and extend just beyond the wall, so as to drop the saw-dust into the bed of the river. About 1852 the defendant put in a planing machine, and the shavings from it were carried away and bufnt till July 4, 1858, when the defendant put in a belt and box simi- lar to the other, and discharged the shavings into the river some twelve or fifteen feet below where the saw-dust was discharged. If there had been no belts and boxes to carry off tlie saw-dust and shavings, they would have fallen into a room under the mill, and not into the water. In the winter the saw-dust and shavings accumulated where they fell into the river, and were from time to time shoveled into the river di- rectly, or through holes cut in the ice, 'if frozen. The testimony was somewhat conflicting as to the extent of the accumulations and the frequency of the removals. As bearing on the question whether such discharge of saw-dust and shavings into the river was a reasonable use of the stream by the defendant, he oft'ered to show a uniform, long continued, uninterrupted and undisputed usage for water saw-mills, planing machines and shingle and clapboard machines to discharge their large well within 100 feet of the stream in sandy soil. It does not clearly appear whether this land was within the city limits. This well drew its water from the river in such quantities as to interfere seriously with the mill of a lower riparian. The water was used by the city for municipal purposes and for supplying its inhabitants for domestic and manufacturing purposes. Held, the lower riparian may enjoin the withdrawal of the wa- ter. The court. Brewer, J., said: "A city cannot^ be considered a riparian proprietor within the scope of the exf'opfion"ha'mod las 'fo' user'for domestic purposesj." '"* * * The city, as a corporation, may own land on the banks, and TSus~in one sense, be a riparian owner. But this does not nialie each citizen a riparian owner. And the corporation is not taking the water for its own domestic purposes; it is not an individual ; it has no natural wants; it is not taking for its o\^ti use but to supply a multitude of individuals; it takes to sell." Citv of Emporia v. Soden, 25 Kan. 588, 606, 67 Am. Kep. '-'65 (1881). See Swinden W. W. Co. v. Wilts, etc.. Canal Co., L. R. 7 English & Irish Appeals, GOT (1S73) ; Stein v. Burden, 24 Ala. i:jO, CO Am. iJec. 453 (1S54). 84 RIGHTS INCIDENTAL TO POSSESSION (Part 1 saw-dust, chips and shavings into the stream; to which the plaintiff objected, but the court overruled the objection. Then a considerable number of witnesses, acquainted with saw-mills, some with many, others with few, in that vicinity, and also in other parts of the State, testified that in all the water saw-mills they ever knew the saw-dust was discharged into the streams. * * * [The jury returned a verdict for the defendant. The plaintiff mov- ed to set it aside.] Bellows, J.-^ The charge was in substance that the defendant, Jbeing a riparian proprietor, was entitled to a reasonable use of the stream for manufacturing purposes; and whether it was a reasonable use to throw into the stream the saw-dust resulting from the process of manufactul"e, was a question of fact for the jury; and in determin-" ing that question tlie jury were required to keep in view that the plain- tiff had a similar right to the reasonable use of the stream, which the defendant could not lawfully infringe; and they were further instruct- ed that, in deciding whether the use by the defendant was reasonable, they were to take into consideration all the circumstances of the case, including the size and character of the stream, the nature and im- portance of the use claimed and exercised by the defendant, together with the inconvenience or injury to the plaintiff. To these instructions we think there can be no objection; on the contrary, they are sustained by the general current of authority upon that subject. But the plaintiff urges that, in accordance with his request, the court should have charged the jury that the defendant had^no right to con- duct his saw-dust and shavings into the river, if they did any injury to the plaintiff's lands below, and also, that he had no right to dis- charge them into the river, unless such discharge was necessary to the running of his mill ; and it appears that the court declined to charge the jury in these terms, but did instruct them that each proprietor might use and apply the water, as it runs over his land, to domestic, agri- cultural, or manufacturing purposes, provided he uses it in a reasona- ble manner, and so as to work no actual or material injury to the oth- ers; and by actual or material injury is meant infringement of the right of others; and again, that the test is, not whether it produces some inconvenience or detriment to him, but whether it impairs the full_ and reasonable enjoyment of the stream that he is entitled to equally with the proprietor above. Of these instructions we think the plaintiff has no cause to complain ; nor do we perceive any error in declining to give the instructions pray- ed for, in the terms suggested. * * * As it is in respect to the abstraction, detention, and diversion of the water, so it is and must be in respect to the deposit of waste, or other 28 Part of the opiuiou is omitted. Ch. 4) STREAMS 85 substances in the stream, as incidental to its use in the various modes be- fore described. In many or most of these modes of use such deposits are to some extent necessarily made. In the construction and repair of mills and dams, in the excavations required for their foundations, and in the frequent removal of the gravel used for tightening such dams, . the water must for a time, and necessarily, be rendered so impure as to cause inconvenience occasionally to persons engaged in a kind of manufacture requiring pure water. But if such building and repairs are reasonably conducted, the inconvenience must be borne just the same, and for the same reasons, as the inconvenience caused by the temporary and reasonable detention of tlie water while filling the dam. So in the use of a stream for purposes of agriculture, such as wash- ing sheep, crossing it with teams, allowing cattle and swine to traverse it, — the same principles will apply. So in the use of many kinds of mills, such as saw-mills, fulling-mills, cotton and woolen factories, — there must be thrown into the stream more or less of the waste, such as saw-dust, soap-lees, and other impurities, and no ordinary care or prudence could prevent it. In the other cases such disposition of the whole waste, although not absolutely indispensable, would add greatly to the productive value of the mill power. Whether, in either case, it may be rightfully done must depend upon the question whether, under all the circumstances of the case, it is or is not a reasonable use of the stream ; and in determining that ques- tion the extent of the benefit to the mill owner, and of inconvenience or injury to others, may, as stated in the charge, very properly be con- sidered. So in respect to the size and character of the stream, it be- ing obvious that an amount of diminution or pollution which would be insignificant in a large stream, might, in a small one, be wholly de- structive of the common right. So also, in determining the reasona- bleness of suffering the manufacturer's waste to pass off in the current, much must depend upon the use to which the stream below can be or is apphed ; whether as a mere highway alone, or for purposes of man- ufacture, requiring pure water, or for tlie supply of an aqueduct to a ■ large city, as in the case of the Croton river; and in respect to the lands below adjacent to the river, the character of the banks, whether they are usually overflowed or not in high water, should be consid- ered. * * * But it is urged that the court should have charged the jury, as re- quested by the plaintiff, that the defendant "had no right to discharge his saw-dust and shavings into the river, unless such discharge was necessary to the running of his mills." The question, however, was not whether the acts complained of were necessary to the enjoyment of the defendant's right, in the sense that without them it could not be en- joyed at all, but whether such acts were done in the reasonable use of the stream; and of course in deciding that question tlie jury should consider the necessity or importance of the right claimed so to discharge 86 RIGHTS INCIDENTAL TO POSSESSION (Part 1 • the waste, as well as the extent of the injury likely to be caused to the plaintiff. 2* The plaintiff's counsel regards this discharge of the waste as an act by itself, distinct from the use of the mill, and likens it to the case of depositing the waste directly upon the plaintiff's land by means of teams or machinery provided for that purpose. To this view we are unable to assent, because the discharge of the waste into the stream", so far as it is reasonable, must be regarded as an incident of the right to use the stream for the manufacture which produces such waste, oth- erwise the act, if calculated to injure the proprietors below, could not be justified. In this respect it stands upon the same ground as the retardation or acceleration of the current in the proper and reasonable use of the mills. Upon this point the court charged the jury to consider how far the use, if important, could be of practical value without the right claim- ed, and also the extent of the detriment, inconvenience, or injury to the owner below ; and this we think goes as far as the plaintiff could right- fully ask. The remaining question touches the admission of evidence of usage, as bearing upon the reasonableness of discharging the saw-dust and shavings into the stream. There are cases where the customs and usages of trade may be proved to aid in the construction of contracts, and in defining the obligations arising out of such trade. 1 Greenl. Ev., sec. 292 ; 2 Stark. Ev. 453, 456, and notes ; Dunham v. Day, 13 Johns. (N. Y.) 40; Cutter v. Powell, 6 T. R. 320; Noble v. Kenoway, Doug. 510; Dolby v. Hiest, 1 B. & B. 224; Renner v. Bank of Columbia, 9 Wheat. 581, 6 L. Ed. 166. 2 4 "Defendant shows that his mill is so constructed that the sawdust and refuse cannot be otherwise disposed of, except by permitting it to fall into the stream, without practically destroying its value as a water-power mill ; that owing to the construction of buildings adjacent to said mill, and the formation of the land thereabout, there is no other available method of disposing of this refuse without rendering the mill, as it now stands and is constructed, useless as such. Now, if he had gone one step further and shown that this was a proper way in which to locate and construct a saw- mill, and that there was no other feasible and practical method of doing it, we would probably not have felt warranted in disturbing the decision of the trial court : at least, if it appeared that this stream was adapted to and use- ful for such saw-mill purposes. But we look in vain either in the evidence or special findings of the court for anything tending to show that this mill was properly located or constructed, or that there was any necessity for locating or constructing it as it now is. In the location and construc- tion of his mill defendant was bound to anticipate and have regard for any reasonable use to which others might or could put the stream. For anything that appears in the evidence this mill could have been so constructed as to render the casting of this refuse into the water wholly unnecessary. The necessity for doing so now may be Avholly the result of defendant's own wrong or negligence in constructing this mill in the manner or place he did. If so, it will not avail him to show that he cannot use the mill as now located and constructed in any other way." Red River Roller Mills v. Wright, 30 Minn. 249, 254, 15 N. W. 1(J7, lliO, 44 Am. Rep. l'J4 (1883). Ch. 4) STREAMS ~ 87 But whether such customs and usnges may or may not be proved to bear upon the question of reasonableness in a case not growing out of any contract, upon which we give no opinion, we are satisfied that the court erred in admitting the proof of usage in the case before us ; upon the ground that the jury may be presumed to be already suffi- ciently informed as to what is a reasonable use of a water-course, as they are supposed to be as to what shall constitute a reasonable state of repair of a highway; Hubbard v. Concord, 35 N. H. 60, 69 Am. Dec. 520; Patterson v. Colebrook, 29 N. H. 94; or what shall be con- sidered a reasonable use of it by the traveller. Our opinion therefore is that this does not belong to that class of cases concerning navigation, trade, or manufactures, about which the jury may be supposed to require the aid arising from the proof of cus- toms or usages ; but we think the admission of -such evidence would be to open an extensive field of enquiry in this and similar cases, upon the same principle, that would tend greatly to increase the expenses of litigation, without affording in general any substantial aid to the jury- The direction to the jury upon this point appears to have been based upon the highly respectable authority of Snow v. Parsons, 28 Vt. 459, 67 Am. Dec. 723, but upon a careful examination of the authorities we are unable to reconcile it with the course of our own courts upon that subject. There must, therefore, be a new trial.^^ 2 5 B. was a riparian engaged in the manufacture of white paper, In which process he used the waters of the stream. A., -m upper riparian, discharged into the stream discolored \vater from his mine, which prevented B. from using the water for manufacturing purposes. Held, B. may enjoin A, Beach V. Sterling Iron & Zinc Co., 54 N. J. Eq. 05, 33 Ati. 286 (1S95). Ace: Young V. Bankier Distillery, [1893] A. C. GOl. Ace, where the discharge from tlie mine renders the water unusable for domestic or agricultural purposes: Drake v. Lady Ensley Coal. Iron & Ry. Co.. 102 Ala. 501, 14 South. 749, 24 L. R. A. 64. 48 Am. St. Rop. 77 (1893). Contra : Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 Atl. 453, 57 Am. Rep. 445 (1886). Compare Barnard v. Sherley, 135 Ind. 547, 34 N. E. 600, 35 N. E. 117, 24 L. R. A. 568, 41 Am. St. Rep. 454 (1893) ; Id., 151 Ind. 160, 47 X. E. 671, 41 L. R. A. 737 (1898) ; Merrifield v. City of Worcester, 110 Ma.ss. 216, 14 Am. Rep. 592 (1872) ; Stouts Mountain Coal & Coke Co. v. Ballard, 195 Ala. 283, 70 South. 172 (1915). "But the defendants contend that the plaintiffs have no right to complain of any pollution of the Hebhle occasioned by them, because there are many other manufacturers who pour polluting matter into the stream above the plaintiffs' works, so that they could never have the water in a fit state for use, even if the defendants altogether ceased to foul it. The (tase of St. Helens' Smelting Company v. Tipping, 11 H. L. C. 642; 11 Jur. (N. S.) 785, is, however, an answer to this defence. Where there are many existing nuis-. ances, either to the air, or to water, it may be very ditttiult to trace to its source the injury occasioned by any one of them ; but if tlie defendants add to the former foul state of the water, and yet are not to be lesponsible on account of its previous condition, this cons(Hiuonce would follow, that if the plaintiffs were to make terms with the other polluters of the stream so as to have water free from impurities produced by their works, the defendants might say: 'We began to foul the stream at a time when, as against you, T ;??.,./ >- ? 88 RIGHTS INCIDENTAL TO POSSESSION (Part 1 STOCKPORT WATERWORKS CO. v. POTTER. (Court of Exchequer, 1864. 3 Hurl. & C. 300.) [Action for fouling the water of the river Mersey. For about fourteen years prior to 1853 the owners of the Woodbank estate, a riparian tract, had been in the habit of drawing water from what was called the Nab Pool weir, this being part of the riparian tract. The water ^o drawn was carried by tunnels and conduits to, and used to supply the town of, Stockport. In 1853 the owners of the Woodbank estate executed to the plaintiffs a deed under which the Stockport waterworks and the use of the conduits and tunnels were ceded to the plaintiff". The latter continued to draw the water in the same way up to the time of the bringing of this action, so that the user had been continuous for over 20 years. It was asserted by the plain- tiffs and denied by the defendant that the right to take the water from the stream was also granted to the plaintiffs by the above mentioned deed. That the defendant had unduly fouled the stream was to be taken for granted for the purposes of this decision.] BramwELIv, B.^'' * * * Qa^ ^ grantee from a riparian proprie:i tor of land, part of the former riparian estate, but separated from the stream by land of the grantor not included in the grant, with a grant from the grantor of a right to lay pipes from the stream to the granted land and take water by means of them from the stream to such grant- ed land, maintain an action against a person who fouls the stream? It is strange that this question should arise for the first time. There can be no doubt that the grant as between the riparian grantor and the grantee is good. And there is this to be said in favour of supporting the present claim, that we must suppose that the grantor and gran- tee have found the arrangement to be to their mutual advantage, that the stream can be more beneficially used this way than otherwise. Consequently that such an arrangement is for the public good. Why, then, should it not be effectual against a person, who as against the ri- parian proprietor is a wrongdoer? It imposes no additional burden on the riparians or others abdve. If they are wrongdoers by fouling now, so were they before. They could be restrained by injunction be- fore if they can now. No doubt they might be made liable to larger damages than they would have been before, but their rights are not altered. It was said that innumerable actions might be brought if the • it was lawful for us to do so, inasmuch as it was unflt for your use, and you cannot now, by getting rid of the existing pollutions from other sources, prevent our continuing to do what, at the time when we began, you had no right to object to.' " Chelmsford, L. C, in Crossley & Sons, Limited, v. Lightowler, L. R. 2 Ch. App. 478, 481 (1867). Compare Ferguson v. Firmenich Mfg. Co., 77 Iowa, 576, 42 N. W. 448, 14 Am. St. Rep. 319 (1889). 2« The statement of facts is rewritten and parts of the opinions are omitted. Ch. 4) STREAMS 89 law were as the plaintiffs contend. But there are two answers to this, one practical, viz., that they would not be brought, the other that the same might happen now if the smallest portion of the bank was grant- ed with the right. • A similar answer may be given to the supposed difficulty of the riparian proprietors above desiring to buy up rights be- low. The power to make such a grant then is for the benefit of the grantor and grantee, and the public ; and the only prejudice by it to the riparian or wrongdoer above is the liability to greater damages and to an action and injlinction at the suit of persons additional to the ri- parians below. But this consideration could not preclude a covenant by the grantor that the grantee might apply in his name for an injunc- tion or sue in his name, nor would it preclude a grant of the part of the bank where the water was taken, in which case it is clear the grantee might maintain an action or obtain an injunction. And this suggests to me the remark that what may be done indirectly may be directly. Further, it does seem strange that if a man has an estate on the bank of a stream extending a mile from it, he may build houses on the land, conduct water from the stream to them, and maintain an action and recover substantial damages for the injury to each house: that his tenants of each, if he let them, might do the same even though he de- mised them for 1000 years at a peppercorn rent, but that if he grants away the house in fee with the right of water, such grantee can main- tain no action. What is to happen if he does so and repurchases? What would be the case if a riparian proprietor added to his estate an- other, to which water had been so conducted ? Suppose a riparian pro- prietor on both sides for a great length wholly alters the course of the stream, could he not effectually complain of a fouling of the water in the new course? Suppose besides the new course he allowed the old one to continue, the stream running in both, could he not then maintain actions for the damage done to either? If he could, could not his gran- tee of lands on the new stream, and if such grantee could, why cannot the plaintiffs? If the defendants' argument is well founded, it will follow that where the owner of land on a stream has built a mill alongside the stream with a cut or lead to it, and sells the mill, but not the natural watercourse, the owner of the mill can maintain no action against a riparian owner above who abstracts the water. I cannot tliink this is so. Further, suppose the person fouling the water was not a riparian proprietor but a mere wrongdoer, why should not an action lie against him? I can see no reason, nor can I see that his being such proprie- tor makes any difference. Upon these various considerations it seems to me this action is maintainable. I think it may fairly be asked to what extent I would carry the principle upon which I decide this? My answer is, to the extent to which die analogous case extends of a grantee of a right of way. Where a grantee of a right of way could maintain an action for disturbance of his way, so do I think the gran- tee of a right of water might. This case of the right of way, and 90 RIGHTS INCIDENTAL TO POSSESSION (Part 1 cases of right of common, seem to me analogous to this case and au- thorities for my opinion. I am of course aware of the case of Keppeli V. Bailey, 2 Myl. & K. 516, and agree that new rights of property can- jiot_be_creatjed, but I think that rule does not interfere with the presence case. There, an owner of land was resisting a burden put on it by a former owner, and it was held that burden could not be attached to the land in the hands of the assignee. Here, no doubt, it can be, that is to say, on the lands of the riparian proprietors, the Marsdens. The question is not with them, but with one who would be a wrongdoer if he had no riparian estate or occupation, and is not the less so because he has. Nor is Hill v. Tupper, 2 H. & C. 121, any authority against the maintenance of this action. That case decided that in respect of what was no estate, and which gave no possession, but merely a right of ac- tion, against a covenantor, that right could not be enforced against a third party. On the other hand, Whaley v. Laing, 3 H. & N. 675, 901, seems a strong authority in favour of the plaintiff ; for all the Judges seem to have considered that had the water been taken as of right the ' ' action would have been maintainable. I have only to add that, to my mind, this is not a question of easement or of dominant and servient tenement. The plaintiffs rely on the possession and enjoyment as of right, and charge the defendant as a wrongdoer, not the less because he is a riparian owner. I think the plaintiffs are entitled to^udgment. PoivLOCK, C. B. I am about to deliver the judgment of my Brother Channels and myself. My Brother WildE, being no longer a mem- ber of the Court, takes no part in the judgment ; but it may be satis- factory to the profession to know that he had prepared a judgment founded on the principles which I am about to state. * * * (^/^"^ There is no doubt that if the plaintiffs have such rights in reference to the stream as to be entitled to insist upon its purity for practical purposes, the acts of the defendants constitute a cause of action. But the defendants contend that, whatever others may have, the plaintiffs have no such rights. And they raise a variety of very for- midable objections. In the first place, the defendants argue that, although the right to pure water is the right of a riparian proprietor, the plaintiffs are not riparian proprietors at all. Nor are the plaintiffs the assignees of a riparian proprietor. For, first, the law knows of no such right as the subject of assign- ment separate from the land in respect of which it arises, and, secondly, no such assignment has in fact been made. And the defendants say there is no authority for the proposition that these rights in respect of water, which, in Embrey v. Owen, 6 Exch. 353, and other modern cases have been for the first time defined and attributed to the ownership of land by the side of a river, can be dealt with in gross and assigned in any way except in conjunction with such land. Ch. 4) STREAMS 91 And further, that if such rights could be the subject of transfer they have not been in fact transferred. * + * . The defendants also say that the rights even of a riparian proprietor himself would not extend to the abstraction from the stream of water for the use of a populous town situated on land in no way connected with such stream, and the conveyance of it away from the riverside to a considerable distance for that purpose without returning it into the stream. But then the plaintiff's case, thus driven from a more exact basis, is placed upon the fact that he and those under whom he claims have done the same thing for twenty years. To this the defendants answer that the mere doing of a particular thing for twenty years will not necessarily give a right of action against anybody who interferes with its being done ^s beneficially as it hitherto has been. The plaintiffs, thus pressed, contended before us that the right they claimed .of having pure water come down the stream for them to ab- stract and use was an "easement" acquired by more than twenty years user, in which the Stockport Waterworks were the dominant tenement and the defendant's land the servient tenement. * * * But a conclusive answer as it seems to us, was given to such an ease- ment. The defendant's land is far higher up on the stream than the con- duit or tunnel at Nab Pool Weir by which the plaintiff's abstract the water. No amount of water abstracted by the plaintiffs or those under whom they claim could possibly be felt by the defendants. If the water was abstracted unlawfully or in excessive quantities, or not returned into the river the proprietors below might have cause to complain, but tlie defendants could not, because they could not be affected by it. They had neither the will nOr the power to interfere with the plaintiffs' use nor to take legal proceedings against them. Nogrant could therefore be presumed by the defendants because no user ever existed adverse to their full enjoyment of the water.^ And Sanipson v. Hoddinott, 1 C. B. N. S. 590, 611, was cited as an express authority for this proposition. We have thus recapitulated these argtmnents of the defendants be- -cause they appear to us to contain a perfect answer to the plaintiffs' claim in whatever light it can be put. It is difficult to perceive any possible legal foundation for a right to Jiavejthe river kept pure, in a person situated as this Company is. There"seems to be no authority for contending that a riparian pro- prietor can keep the land abutting on the river the possession of which gives him his water rights, and at the same time transfer those rights or any of them, and thus create a right in gross by assigning a portion of his rights appurtenant. 92 RIGHTS INCIDENTAL TO POSSESSION (Part 1 It seems to us clear that the rights which a riparian proprietor has with respect to the water are entirely derived from his PQssessiQiL_Qf land abutting on the river. > If he grants away any portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights. But if he grants away a portion of his estate not abut- ting on the river, then clearly the grantee of the land would have no water rights by virtue merely of his occupation. Can he have them by express grant? It seems to us that the true answer to this is that he can have them against the grantor but not so as to sue other per- sons in his own name for an infringement of them. The case of Hill v. Tupper, 2 H. & C. 121, recently decided in this Court, is an authority for the proposition that a person cannot create by grant new rights of property so as to give the grantee a right of suing in his own name Jor an interruption of the right by a third party. The case where a riparian proprietor makes two streams instead of one and grants land on the new stream, seems to us analogous to a grant of a portion of the river bank, but not analogous to a grant of a portion of the riparian estate not abutting on the river. In the case of a grant of land on a new stream, the grantee obtains a right of access to the river, and it is by virtue of that right of access that he obtains his water rights. We think then that in this case the right claimed cannot be the sub- ject of a grant so as to enable the plaintiffs to sue in their own name for an infringement. Nor is the supposed easement founded on user much more defensible. The dominant and servient tenements have no apparent connexion with one another. The abstraction of the water from the stream took place at a spot situated on other land than that now called the dominant tenement, and in no sort of way affected the enjoyment of the water at what is now called the servient tenement. * * * Judgment for the defendants.^^ 27 X. was the lessee of a mill situated on riparian land, but not iramediare- ly on the stream. C, X.'s lessor, had an unsealed agreement with B., the riparian next above C., whereby in consideration of an annual payment, C. had dug and maintained a sluiceway through B.'s land to the mill on C.'s land, the water being subsequently returned to the stream. The mill while in X.'s possession continued to derive its water power from this source. A., a riparian above B., diverted stream. Held, X. may maintain an action in his own name against A. Nuttal v. Bracewell, L. R. 2 Exch. 1 (1866). X., a non-riparian, drew water from the stream through a sluiceway to his mill, whence it was discharged into the stream by another sluice. C, a riparian, erected a dam that backed the water into the lower sluice and stopped the mill wheel. X. brought action against C. The court said: "The principle settled by these and other decisions is, that one having the possession of property may maintain an action against a wrongdoer tor an injury thereto, which cannot be defeated by showing the title to be in some one else than the plaintiff. "We see no good reason why the principle should not be applicable to such a case as the present. The plaintiff's action ought not to be barred, as we think, on the ground that he had not acquired the right from, the Ch. 5) SURFACE WATERS 93 CHAPTER V • SURFACE WATERS EULRICH V. RICHTER. tSupreme Court of Wisconsin, 1875. 37 "Wis. 226.) Appeal from the Circuit Court for Winnebago County. Action for dama°:es for the alleged erection of a dam across a brook or water course, whereby it was alleged, that the defendant had caused the wate r to s et back and, overflow the plaintiff's land. Answer, a general denial. The testimony taken on the trial, for the most part, tended to show that the alleged brook was a ravine, through which surface water, which had gathered on the higher lands, ran during the melting of snows, and- after heavy rains, and sometimes during a large portion of the summer, but in no regular or defined channel, nor generally so as to hinder the growing of crops in the ravine on plain- tiff's land ; that the plaintiff had dug or plowed two ditches, one up and down tHe ravine, and one from his cellar, and run them under the line fence upon the defendant's land ; that, thereupon, the plaintiff [defendant] had erected a dam to prevent the discharge of the waters from such ravine and ditches upon her land. The court instructed the jury in substance that, there being no substantial conflict in the testimony, as to tlie character of the stream, as a proposition of law, upon the testimony, the locus in quo is a water course ; and the de- Tendant owning land upon it, had no right to dam it up, and set the water back upon the upper proprietors, and was liable for the resulting damages. Cole, J. We think the learned circuit court erred in charging as a proposition of law, that the locus in quo was a natural water course. The jury were told that there was no substantial conflict in the testi- mony with reference to the character of the stream, and that as a rnat- ter of law it was a water course, which the defendant had obstructed. The de finition of a water course, as given by Mr. Angell, and which has been~substantially adopted by this court, is, a stream of water con- sisting;_ of a bed, banks and water ; thoiigh the .water need not flow continually,. , and there are many water courses wHTcR are sometime/ riparian owners mentioned, to divert the water from its natural channel He may be called upon by such owners to respond in damages for doing so But, whether he shall be or not, it is a matter that does not in the leasi concern the defendants." Bristol Hydraulic Co. v. Boyer, 67 lud. 236, 240 (1879). Compare Williams v. Wadsworth, 51 Conn. 277 (1883) ; Wyman v. Oliver. 75 Me. 421 (1883) ; St. Anthony Falls Water-Power Co. v. Minneapolis, 41 Minn. 270. 43 N. W. 56 (1889). 94 RIGHTS INCIDENTAL TO I'OSSESSION (Part 1 / Ary. There is, hov/ever, a distinction in law between a regular flow- ing stream of water, which at certain seasons is dried up, iand those occasional bursts of water, which, in times of freshet, or melting dt snow and ice, descend from the hills and inundate the country. To maintain the character of a water course, it must appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. It need not be shown that the water flows con- tinually; the stream may at times be dry; but it must have a well- defined and substantial existence. Angell on Watercourses, § 4; Hoyt V. City of Hudson, 27 Wis. 656, 9 Am. Rep. 473 ; Fryer v. Warne, 29 'wis. 511. According to our understanding of the testimony, there is considera- ble doubt whether it proves a water course, within this definition; or whether it did not appear that the water was mere surface water, descending from higher to lower ground, in no defined channel, in times of rain or the melting of snows and ice in the spring. If it was mere surface water, caused by rain or snow, which naturally flowed down the hollow or ravine, but in no defined natural channel having a bed and banks, then it was not a water course, and the defendant had the right to use such means as she might deem necessary to keep it off her land. For this court has adopted the common la\v rule, that the owner of the superior or higher ground has no natural easement or servitude to discharge mere surface water, such as falls or ac^ cumulates by rain or the melting of snow on his land, upon and over the land of his neighbor which may happen to be on a lower plane^ (Pettigrew v. Village of Evansville, 25 Wis. 223, 3 Am. Rep. 50 ; Hoyt V. City of Hudson, supra) ; but that such neighbor has the right to obstruct or change the flow of such water by preventing it from com- ing within his boundaries. There was testimony which tended to show that the flow of water down the hollow or ravine from the plaintiff's to the defendant's land was not in any regular channel ; that it was only occasional, and did not prevent the cultivation of the ravine, or the growing of grass there. The plaintiff's land was rolling, and considerably higher than the de- fendant's, and of course all surface water caused by rains or the melt- ing of snow was discharged from the higher through the lower ground. But there was testimony from which the jury might have found that this flow of water did not constitute a water course within the sense of the law ; that it had no well-defined channel with a bed and banks, which extended from the land of the plaintiff upon and across the land of the defendant. And this question, whether there was a water course there or not, should, we think, have been submitted to the jury upon the evidence, instead of being decided' as a proposition of law. Had there been no dispute as to the facts, nor any testimony which tended to show that the locus in quo was not a water course, and that the rights and duties of proprietors on such a stream had no applica- tion, the charge of the court might have been proper. But, upon the Ch. n) SURFACE WATERS 95 testimony, _tlie_auestion should have gone to the jury to determine whether there w as a water course within the legal definition. We shall go into no examination of the evidence at the present time, nor express any opinion as to what inference should be drawn from it. The facts of the case are not so clear and undisputed as to warrant the court in withdrawing from the jury the question, whether the locus in quo was a natural water course. We therefore think there must be a new trial. By the .Court. The judgment of the circuit court is__reyersed, and a new trial awarded.^ MACOMBER v. GODFREY. (Supreme Court of Massachusetts, 1871. 108 Mass. 219.)2 Tort for t he diversion of a water course by the defendant, whereby the water was prevented from flowing through the plaintiffs' land and irrigating their crops. Trial in the superior court, before Scudder, J., who made the following report thereof : "The plaintiffs' counsel, in his opening to the jur}^ stated that the evidence would show that from time immemorial a natural stream of water had flowed from a southerly direction across the road and upon the defendant's land, taking a northwesterly course across the de- fendant's land ; that for a part of the way across the same it ran in a well-defined channel, but when it reached a point within about five rods of the plaintiffs' adjoining land the water spread out over the surface of the ground, covering a space a few rods in width, and so ran upon and across the plaintiffs' land, which was a level meadow, cov- ering the same for several rods in width, and irrigating it in a valua- ble manner through its whole length-, about seven rods, and thence on to other land of other owners beyond ; that from the point where it so spread out over the surface on the defendant's land there was no defin- ed channel either on the defendant's land or through the whole length of the plaintiffs' land, and not until a short distance beyond the plain- tiffs' land, where it again formed. a small brook, and ran off in a west- erly direction to the river; that the plaintiffs' and defendant's lands 1 A creek furnishing the outlet to a lake was blocked by sand. Thereafter the waters of the lake,' starting at the lowest part of the bank of the lake in a general northerly direction, worked over the flat marshy lands cut by low ridges, and overgrown by bushes to another creek. Tliere was no de- fined waterway, but for most of the year the water had a sufficient move- ment so that, if not interrupted, it would reach the second creek. The de- fendant erecte d a dike, as a consequence of wbich the water was kept off from his' lancfaiur" worked over onto land of the plaintiff, where it would not have gone but for the dike. Held, the plaintiff is entitled to an injunc- tion asainst, the maintenance of the dike. West v. Taylor, 16 Or. 165, 13 Pac. eBrTTtSBS). See. also, Gillett v. Johnson, 30 Conn. ISO (1861) ; Earl v. De Hart, 12 N. J. Eq. 2S0, 72 Am. Dec. 395 (1S5C) ; Boyntou v. Gilman, 53 Vt. 17 (ISSO). 2 The statement and opinion on new trial are omitted. 90 RIGHTS INCIDENTAL TO POSSESSION (Part 'l formerly belonged to the same ancestor, and the division was made after his death by quitclaim deeds; and that the defendant di\erted this stream on his own land near to the road, where it was a water course running in a defined channel, turning it in a northerly direc- tion so that it ceased to flow upon the plaintiffs' land, thus injuring their land and crops. "Upon this opening statement, the judge ruled that the plaintiffs' action could not be maintained, and with the consent of parties re- ports the case before verdict for consideration by the supreijie judicial court. If the above ruling is correct, judgment is to be entered for the defendant ; if it is incorrect, the case to be sent back for trial." Chapman, C, J. The defendant admits the well-established princi- ple, that, where there is a natural water course, each successive ripari- an proprietor has a right of property in it, and may maintain an ac- tion against one who diverts it from coming down to his land. But he contends that the facts stated in the report are not sufficient to es- tablish the existence of such a water course. This is the only point now presented to us. We cannot doubt that water which has flowed from time immemorial in a well-defined channel till it comes upon the defendant's land, and again after it has passed a short distance beyond the plaintiffs' land forms a brook, and thus runs across the land of several proprietors to a river, into which it empties, is a natural water course w hen it t hus flo ws. But the defendant contends that because, at a point on his land about five rods above the plaintiffs' land, the water spreads out over the surface, covering a space of a few rods in width, and thus runs upon and across the plaintiffs' land, which is a level meadow, and covers the same for several rods in width, irrigating it in a valua- ble manner through its whole length, being about seven rods, and during this whole length of twelve rods has no defined channel, it ceases to be a water course, and is to be regarded as mere surface water, to the flow of which the plaintiffs have no right. If the whole of the stream had sunk into the defendant's soil, and no water remained to pass to the plaintiffs' land except under the surface, it would have ceased to be a water course, and the plaintiffs would have had no right to it. Broadbent v. Ramsbotham, 11 Exch. 602. Buffum v. Harris, 5 R. I. 243. Or if the water had only flowed in temporary outbursts, caused by melting snow or by rain, it would have been surface water, as in Ashley v, Wolcott, 11 Cush. 192; the defendant might have diverted it, and the plaintiffs might have raised barriers on their land to prevent its flowing upon their lot below. Gannon v. Hargadon, 10 Allen, 106, S7 Am. Dec. 02d ; Jrranklin v. Fisk, 13 Allen, 211, 90 Am. Dec. 194. But where, owing to the level char- acter of the land, it spreads out over a wide space without any ap- parent banks, yet usually flows in a continuous current, and passes over the surface to the lands below, it still continues to be a water course. Gillett v. Johnson,' 30 Conn. 180. If the plaintiffs had erected Ch. 5) SURFACE WATERS 97 a barrier to keep it from their land, it would evidently have accumu- lated, by its natural and regular flow, upon the defendant's land, not merely when there were melting snows or rains, but at all ordinary seasons. We cannot doubt that not only the defendant, but all the lower proprietors, could have maintained an action against the plain- tiffs for any damage caused by such obstruction. For^jtjhas a regular and jiatural flow from a permanent source ; and its usual course is in a channel, with a well-defined bed and banks, and neither upon the land^of the plaintiffs or of the defendant does it entirely lose this ^character. Case to stand for trial.' SCHAEFER v. MARTHALER. (Supreme Court of Minnesota, 1886. 34 Minn. 487, 26 N. W. 726, 57 Am. Rep. 73.) GiLFiLLAN, C. J. Action to enjoin defendant from draining a small Jake_QrLpo.nd. The parties own and occupy adjoining lands. There is situated partly on the 'plaintiff's land and partly on defendant's land a body of water, four and one- fourth acres in extent, in a natural depression, forming a basin, fed solely by surface waters produced by rains and melting snows falling upon higher adjacent lands, and running naturally into such basin. The greater depth of the water in the basin, at the deepest place, is, at an ordinary stage, five feet, and at the same stage its greatest depth on the line between the lands of the parties is two and nine-tenths feet. The character of the soil under the basin is such that it retains the water, so that the only waste is from evaporation, except during high water, for six or eight weeks in the year, when it overflows through a natural channel situate on defendant's land. There is another natural channel on defendant's land, through which, during heavy rains, and when there is an ac- cumulation of water on the high lands from melting snow, the water flows into the basin. The parties have owned and occupied their re- spective lands for 30 years, and the body of water has never, so far as known, been dry except at a time of extreme drought in the year 1864. In winter the water freezes to the bottom, but, by cutting through the ice, and digging into the mud at the bottom, water for stock can be obtained, in which manner plaintiff has often procured water for his stock. There must be in this state a great number of bodies of water simi- lar to this — some larger, some smaller — situate upon lands of different owners ; so that the question involved is one of considerable im- 3 Ace.: Mitchell v. Bain, 142 Ind. 604, 42 N. E. 230 (1895). Otherwise where the water spreads out, but does not again form itself into a stream. Hawley v. Sheldon, 64 Vt. 491, 24 Atl. 717, 33 Am. St. Rep. 941 (1892). BiG.RlGHTS — 7 98 RIGHTS INCIDENTAL TO POSSESSION (Part 1 portance. The question has never been before this court. In Bennett V. Murtaugh, 20 Minn. 151, (Gil. 135), an injunction against draining a small lake was sustained, but the point here raised was not presented. The defendant claims the right to drain the lake or pond, on the proposition that it is surface water, (because coming into the basin, over the surface of adjacent lands, from rains and melting snows,) and that the rule applicable to surface waters applies. It is somewhat strange that, so far as we are able to ascertain, there is no case re- ported which decides the rights, with respect to such a body of water, of the different owners of the land on which it lies. The cases most nearly analogous are those relating to water courses. Under the common law there is a marked difference in the rules governing in cases of surface waters and those applicable to water courses ; for one owner is under no obligation to receive upon his own land surface waters from the land of another, nor to permit them to flow from his land to that of another, nor to retain them on his land for the benefit of other lands. Such waters belong to or are a part of the land on which they happen to be at the time, and the owner may ordinarily do what he will with them while, on his land, doing no unnecessary harm to others. But a natural water course is the common property of the lands through which it flows, to this extent : that no owner may arrest its passage, either to prevent its coming upon his own land or going to the land of another. It is regarded as an advantage or ele- ment of value to each piece of land through which it flows, which nature has bestowed upon it, and which belongs as much to one piece of land through which it runs as to another. When surface waters reach and become part of a natural water course, they lose their char- acter of surface waters, and come under the rules governing water courses. Broadbent v. Ramsbotham, 11 Exch. 602; Earl v. De Hart, 12 N. J. Eq. 280, 72 Am. Dec. 395 ; Jones v. Hannovan, 55 Mo. 462 ; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276; Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241 ; Palmer v. Waddell, 22 Kan. 352. But before they reach the water course, while they are still surface wafers, — that is, while they are oozing through the soil, or diffusing or squan- dering themselves over the surface, following no defined course, — the owner of the soil on which they happen to be may appropriate or divert them in the ordinary and reasonable use of his land. He is under no obligation to keep his land as a watershed, to feed the stream ; nor to keep it as a receptacle to receive and retain the overflow from the stream. The waters pass beyond his right of appropriation as soon as they reach, even on his own land, the_ natural water course. liis right in respect to the waters is then qualified, and must be exercised 'A'uh due regard to the rights of others in the stream. xA.nd such waters, when they have ceased to spread and diffuse over the surface or per- colate through the soil; when they have lost their casual and vagrant character, and have reached and come to rest in a permanent mass or ■body, in a natural receptacle or reservoir, not spreading over or soak- Ch. 5) SURFACE WATERS 91) ing into the soil, forming mere bog or marsh, — cannot be regarded as surface waters any more than they can be after they have entered into a stream. The mass or body of water constituting a lake or pond is an advantage or element of value to the land upon which nature has placed it, of the same kind as is the water course to the lands through which nature has caused it to flow. There is no reason which can be suggested why the stream should be the property of each on his own land, of all the lands through which it flows, and why one owner should not prevent its flow, as nature caused it to flow, upon the land of another, that is not equally applicable to a body of water like this ; and none can be suggested why the rights of the owners of the lands upon which nature has placed it should not be equal to the rights in respect to a stream. Applying the same rules that apply in respect to a water course, it would follow that no one is bound to keep his land as a watershed, to feed such a body of water; nor as a receptacle to retain the over- flow from it ; but that, in the reasonable and ordinary use or improve- ment of his land, he may interfere with or arrest the surface waters before they reach such body, or may drain off any bog or marsh on Jiis land formed by the overflow, although the doing of either may incidentally affect the amount of water in the lake or pond. We there- fore hold that defendant h^f^ not the right to drain off the lake. Judgment affirmed.* THOMPSON V. NEW HAVEN WATER CO. (Supreme Court of Connecticut, 1913. 86 Conn. 597, 86 Atl. 585.) [The defendant was an upper riparian proprietor; the plaintiff owned meadow land below the defendant, situate about 600 feet Lack from the river. In^the spring freshets, the flood water of the river would frequently run down from the defendant's land to the plaintiff's meadow, fertilizing it by the,_sedimentary deposits. These freshets oc- curred only in winter and spring, and in some years there were none at all. Their frequency, when they did occur, varied from year to year. The defendant built a low dike and constructed a conduit upon its own land, which intercepted the freshet water and diverted it to the de- fendant's reservoir, xthereby depriving the plaintiff's land of the benefit of these freshets. He sued to recover the damages so caused, and to enjoin the defendant from maintaining the embankment.. Judgment for the plaintiff; defendant appeals.] 4 The dissenting opinion of Berry, J., is omitted. Ace: Alcorn v. Sadler, 66 Miss. 221, 5 Soutli. 694 (1889). See Hebron Gravel Road Co. v. Harvey, 90 Ind. 192, 46 Am. Rep. 199 (1883). In Applegate v. Franklin, 109 Mo. App. 293, 84 S. W. 347 (1904), a body of water covering 2,500 acTes and varying in depth from 3 to 6 feet was held surface waterT which an abutting owner might drain, even though so doing damaged another abutting owner. 100 niGHTS iNciDEXTAL TO POSSESSION (Part 1 PrEnticE', C. J.6 * * * These definitions [of a water course] necessarily imply, what is more directly stated in others, that it is a distinguishing mark of a water course that there be "a supply which is permanent in the sense that similar conditions will always produce a flow of water, and that the conditions recur with some degree of regularity, so that they establish and maintain, for considerable peri- ods of time, a running stream." Farnham on Waters and Water Courses, § 457. "Surface water" is a term which has been defined or vised variously. A few of the definitions embody statements which would imply that it is a term appropriate to be applied to all fresh water upon the surface of the eartli, not ponded, which is not that of a water course. Other authorities while giving a definition which afifords no logical foundation for such a broad use of the term, act upon the assumption that all nonponded fresh water is either surface or stream water. The better and more generally stated definitions and those which permit a consistent application productive of just results confine surface water within more definite limits. For instance, Amer. & Eng. Ency. of Law (volume 30, p. 323) says : "Surface water may be defined as waters on the surface of the ground which are of a casual or vagrant character, following no definite course, and having no substantial or permanent existence, and which are lost by being diffused over the surface of the ground, through percolation into the soil or. evaporation." Farnham treats it as water appearing upon the surface of the ground in a diffused state, with no permanent source of supply or regular course, and then disappearing by percola- tion or evaporation. Section 878. Water is surface water while it is oozing through the soil or diffusing and squandering itself over the surface, following no defined course. Schaefer v. Marthaler, 34 Minn. 487,, 26 N. W. 726, 57 Am. Rep. 73. These definitions are doubtless open to criticism, as where the means of disappearance are limited to percolation and evaporation, and natural drainage into water courses is ignored. But they serve to indicate that water moving in volume, whose source is a stream, is excluded, and that conditions presenting the general appearance upon the surface of the earth of those created by rain or snowfall are those intended to be embraced. There are cases which appear to limit the term to water which had its immediate source in rains or melting snow. Crawford v. Bambo, 44 Ohio St. 287, 7 N. E. 429. Others have properly included, as possible sources of surface water, springs upon or underneath the ground. Grand Junction Canal Co. v. Shugar, 6 L. R. Ch. App. 483, 486; Gray v. McWilliams, 98 Cal. 157, 32 Pac. 976, 21 L. R. A. 593, 35 Am. St. Rep. 163. A considerable number of our cases have dealt with surface water. * * * A study of these cases is convincing that the accepted con- is Part of the opinion is omitted. Ch. 5) SURFACE WATERS 101 ception of surface water in this jurisdiction is one which is not suffi- ciently comprehensive to embrace flood water escaped from channels in large volume and flowing in masses to its destination in some larger and more permanent body. Looking at the various phases which the freshet overflow of streams may assume, it is apparent that it may present the unmistakable in- dicia of either a water course or of surface water. The water which has overleaped the banks, confining the normal flow of the stream, may still go on its way in a well-defined channel. Its line of movement may present all of the recognized indications of a water course. The bed, banks, and flow may be there, so that the water clearly deserves to be regarded as either a part of the stream from whose main course Pt was turned aside, or, at least, an independent stream. On the other hand, the escaped water may have become so scattered and diffused over the adjoining territory and there taken on such a character as to present all the recognized characteristics of surface water. It is equal- ly evident that this overflow may appear under such conditions that the requisites of a water course, according to our definition, are not pres- ent, and at the same time the characteristics of surface water, accord- ing to our accepted notions, are not discoverable. We are thus presented with the important practical question as to whether we shall change our definitions so that the limits of the fields of the two classes shall be brought together, and the two be made com- prehensive enough to Include all nonponded fresh water, or shall recognize a third class between the two, to be dealt with independently, and with a sole regard for the conditions it may present. In sub- stantially all, if not all, jurisdictions where there has been occasion to deal with conditions arising from flood water, the courts have felt under the necessity of finding a place for it, in one or the other of the two classes referred to, by some sort of expedient and at whatever cost of inconsistency. The result has been a most perplexing medley of decisions which refuse to yield a satisfactory working rule. In some cases flood water has been made to masquerade as surface water ; in more as a water course. The great struggle has been to so classify it that justice to the rights of parties under the given conditions might be done. When the classification has once been thus established, the difficulty has arisen that It fails, under another set of conditions, to lead to results consonant with justice, if accepted principles applicable to the class where the new conditions find themselves placed are ob- served. Then has come the necessity for legal gymnastics, if palpably right results were to be attained. A good illustration Is furnished by certain English cases. They have held that there was no good basis for distinction between the ordinary water of a stream and flood water. Menzies v. Breadalbone, 3 Bllgh N. S. 414; Rex v. Trafiford, 1 Barn. & Adol. 874; And yet in the latter case, on appeal, the court did not hesitate to say that a landowner might raise the banks of a stream so 102 RIGHTS INCIDENTAL TO POSSESSION (Part 1 that its waters might not escape' as it had been accustomed to do. Traf- ford V. The King, 8 Bing. 204. * * * The questions which have arisen, where flood water conditions were involved, have usually grown out of the raising of the bank of the stream to prevent overflow, or the obstruction or diversion of the flood flow whereby it was cast back or thrown over upon the land of another proprietor in accumulated or accelerated volume to his dam- age. The rights of parties in such cases are not hard to find, and would not be difficult of definition, as applied to flood water alone. We have here, however, a very different question. It involves the right of a lower proprietor to have the natural flood flow continued to his land for the benefit which will be derived from it. This gen- eral subject is one which might be presented in various aspects. We have no occasion to attempt to anticipate all of them and formulate a rule applicable thereto. The case presents a comparatively simple situation, and we may well confine our ^attention to that. The evidence discloses that the defendant, the upper proprietor;^ has not attempted to appropriate the flood water reaching its land in the improvement or enjoyment of such land, or to interfere with or affect the flow of the water for any purpose connected with that land. The embankment, in so far as appears or can be imagined, neither serves, nor was intended to serve, any useful purpose. The conduit, as it was when the damage for which recovery was permitted, was equally useless for any present purpose, except as it may have carried surface or flood water into the defendant's reservoir some distance away, and there made it available for sale. Whatever prospective purpose it had was, in connection with the defendant's business, carried on else- where, and the embankment was created as an incident of the conduit's construction. We thus have a situation in which the plaintiff was damaged in his property by an act of the defendant in interfering with the natural flaw _pf^Jhe^flood water, which had no justification in the improvement, use, enjoyment, or protection of its land. Damage done under such circumstance cannot, with due regard for property rights, be regarded as absque injuria. * * * There is no error. In this opinion the other Judges concurred.* ' 6 A., who had lawful access to a river, erected a diverting conduit, through which he proposed to conduct water to non-riparian land. The conduit was so constructed that it would not divert the ordinary How of the stream or or- dinary freshets, but only extraordinary floods in the rainy season. Held, B., a lower riparian, has no right of action in the lack of a showing that this diversion will damage him. Gallatin v. Corning Irrig. Co., 163 Cal. 405, 12(j Pac. 864, Ann. Cas. 1914A, 74 (1912). B. owned land bordering on the Ohio river below that of A. B. had plant- ed a thieli row of trees along the boundary between the two tracts. Prior to the growth of these trees the annual flood water of the Ohio river would sweep over the land of A., unobstructedly. As the trees increased in size, they formed a barrier 1>y means of which floating timber and other trash carried down by these floods were arrested and kept back on the land of A. As a consequence of the barrier so formed, the flood waters stayed longer on the land, and trash and sand were deposited there, so that much of the Ch. 5) SURFACE MAIERS 103 BARKLEY v. WILCOX. (Court of Appeals of New York, 1S81. 86 N. Y. 140, 40 Am. Rep. 519.) Appeal from a judgment entered below in favor of defendant. This action was brought to recover damages for injuries alleged to have been sustained by the obstruction of the natural flow of sui-- face water from plaintiff's lot over and across that of defendant. Andrews, J.'' This is not the case of a natural water course. A natural water course is a natural stream flowing -in a defined bed or channel, with banks and sides, having permanent sources of supply. It is not essential to constitute a water course that the flow should be uni- form or uninterrupted. The other elements existing a stream does not lose the character of a natural water course, because in times of drought the flow may be diminished or temporarily suspended. It is sufficient if it is usually a stream of running water. Ang. Water Courses, § 4 ; Luther v, Winnisimmet Co., 9 Cush. (Mass.) 171. The parties in this case own adjacent lots on a street near a village, but not within the corporate limits. The findings are that the natural formation of the land was such that surface water from rains and melt- ing snows would descend from dift'erent directions and accumulate in the street in front of the plaintiff's lot, in varying quantities, accord- ing to tlie nature of the seasons, sometimes extending quite back upon the plaintiff's lot; that in times of unusual amount of rain, or thaw- ing snow, such accumulations, before the_^ra(ding of the defendant's lot, were accustomed to run off over a natural depression in the surface of the land across the defendant's lot, and thence over the lands of oth- ers, to the Neversink river; that when the amount of water was small it would soak away in the ground; that in 1871 the defendant built. a house-on his lot, and used the earth excavated in digging the cellar to land was ruined. Held, these flood waters are surface waters and A. has no cause of action. Taylor v. Ficlvas, 64 lud. 167, 31 Am. Rep. 114 (1878). Ace: Cass v. Dicks, 14 Wash. 75, 44 Pac. 118, .53 Am. St. Rep. 859 (1896). Contra: Pinkstaff v. Steffy, 216 111. 406, 75 N. E. 163 (1905). A railroad built a bridge across a river passing through low country. Cul- verts in the embankment built by it for its roadbed were not of sufficient size to permit ordinary flood waters to get back to the river, and as- a re- sult the flood waters were backed up against upper riparians to their dam- age. Held, the railroad is liable to the upper riparians for the damage so caused. Sullens v. Chicago, R. I. & P. Ry. Co., 74 Iowa, 659, 38 N. W. 545, 7 Am. St. Rep. 501 (1888) ; Abbott v. Kansas City, St. J. & C. B. Ry. Co., 83 Mo. 271. 53 Am. Rep. 581 (1884) (overruling and discussing earlier Mis- souri cases) ; Fordham v. Northern Pac. Ry. Co., 30 Mont. 421, 76 Pac. 1040, 66 L. R. A. 556, 104 Am. St. Rep. 729 (1904) ; Uhl v. Ohio River R. Co., 56 W. Va. 494, 49 S. E. 378, 68 L. R. A. 138, 107 Am. St. Rep. 968, 3 Ann. Cas. 201 (1904). See Missouri Pacific Rv. Co. v. Keys^ 55 Kan. 205, 40 Fac, 275, 49 Am. St. Rep. 249 (1895). As to the liability of a railroad in case of extraordinary flood waters, see O'Connell v. East Tennessee, V. & G. Ry. Co., 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246 (1891). 1 Part of the opinion is omitted. * 104 RIGHTS INCIDENTAL TO POSSESSION (Part I improve and better the condition of his lot, by grading and filHng up the lot and sidewalk in front of it, about twelve indies, and on a sub- sequent occasion he filled in several inches more ; that in the spring of 1875 there was an unusually large accumulation of water from melting snow ariid rains in front of and about the plaintiff's premises, so that the water ran into the cellar of his house and occasioned serious dam- age ; that the filling in of the defendant's lot had the effect to increase the accumulation of water on the plaintiff's lot, and contributed to the injury to his property. There was no natural water course over the defendant's lot. The surface water, by reason of the natural features of the ground, and the force of gravity, when it accumulated beyond a certain amount in front of the plaintiff's lot, passed upon and over the lot of the defendant. The discharge was not constant or usual, but occasional only. There was no channel or stream in the usual sense of those terms. In an un- dulating country there must always be valleys and depressions, to which water, from rains or snow, will find its way from the hill-sides and be finally discharged into some natural outlet. But this does not consti- tute such valleys or depressions water courses. Whether, when the premises of adjoining owners are so situated that surface water falling upon one tenement naturally descends to and passes over the other, the incidents of a water course apply to and govern the rights of the respective parties so that the owner of the lower tenement may not, even in good faith and for the purpose of improving or building upon his own land, obstruct the flow of such water to the injury of the own- er above, is the question to be determined in this case. This question does not seem to have been authoritatively decided in this state. It was referred to by Denio, Ch. J., in Goodale v. Tuttle, 29 N. Y. 467, where he said : "And in respect to the running off of surface water caused by rain or snow I know of no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil, for its amelioration and his own advantage, because his neighbor's land is so situated as to be incommoded by it. Such a doc- trine would militate against the well-settled rule that the owner of land has full dominion over the whole space above and below the surface." The case in which these observations were made did not call for the decision of the question, but they show the opinion of a great judge upon the point now in judgment. Similar views have been expressed in subsequent cases in this court, although in none of them it seems was the question before the court for decision. Vanderwiele v. Taylor, 65 N. Y. 341 ; Lynch v. Mayor, 76 N. Y. 60, 32 Am. Rep. 271. The question has been considered by courts in other states, and has been decided in different ways. In some, the doctrine of the civil law, has been adopted as the rule of decision. By that law, the right of drainage of surface waters, as between owners of adjacent lands, of different elevations, is governed by the law of nature. The lower pro- pfietor is bound to receive the waters which naturally flow from the Ch. 5) SURFACE WATERS 105 estate above, provided the industry of man has not created or increased the servitude. Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5 ; Domat (Cush. Ed.), 616; Code Napoleon, art. 640; Code Louisiana, art. 656. The courts of Pennsylvania, Illinois, California and Louisiana have adopted this rule, and it has been referred to with approval by the courts of Ohio and Missouri. Martin v. Riddle, 26 .Pa. 415, note; Kauffnian v. Griesemer, id. 407, 67 Am. Dec. 437 ; Gillham v. Madison Co. R. Co.,- 49 111. 484, 95 Am. Dec. 627; Gormley v. Sanford, 52 111. 158; Ogburn V. Connor, 46 Cal. 346, 13 Am. Rep. 213; Delahoussaye v. Judice, 13 La. Ann. 587, 71 Am. Dec. 521 ; Hays v. Hays, 19 La. 351 ; Butler v. Peck, 16 Ohio St. 335, 88 Am. Dec. 452 ; Laumier v. Francis, 23 Mo. 181. On the other hand, the courts of Massachusetts, New Jersey, New Hampshire and Wisconsin have rejected the doctrine of the civil law, and hold that the relation of dominant and servient tenements does not by the common law apply between adjoining lands of different own- ers, so as to give the upper proprietor the legal right, as an incident of his estate, to have the surface water falling on his land, discharged over the land of the lower proprietor, although it naturally finds its way there; and that the lower proprietor may lawfully, for the im- provement of his estate and in the course of good husbandry, or to make* erections thereon, fill up the low places on his land, although by so doing he obstructs or prevents the surface water from passing there- on from the premises above, to the injury of the upper proprietor. Luther V. Winnisimmet Co., 9 Cush. (Mass.) 171 ; Parks v. Newbury- port, 10 Gray (Mass.) 28; Dickinson v. Worcester, 7 Allen (Mass.) 19 ; Gannon v. Hargadon, 10 Allen (Mass.) 106, 87 Am. Dec. 625 ; Bowlsby V. Speer, 31 N. J. Law, 351, 86 Am. Dec. 216; Pettigrew v. Evansville, 25 Wis. 223, 3 Am. Rep. 50; Hoyt v. Hudson, ^7 Wis. 656, 9 Am. Rep. 473; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276. It may be observed that in Pennsylvania, house lots in towns and cities seem to be regarded as not subject to the rule declared in the other cas- es in that state, in respect to surface drainage. Bentz v. Armstrong, 8 Watts & S. 40, 42 Am. Dec. 265. * * * Upon this state of the authorities, we are at liberty to adopt such rule on the subject as we may deem jnost consonant with the demands of justice,^ having in view on the one hand individual rights, and on the other the interests of society at large. Upon consideration of the ques- tion, we are of opinion that the rule stated by Denio, C. J., in Goodale v. Tuttle, is the one best adapted to our condition, and accords with pubhc policy, while at the same time it does not deprive the owner of the upper tenement, of any legal right of property. The maxim, aqua currit et debet currere ut currere solebat, expresses the general law which governs the rights of owners of property on water courses. The owners of land on a water course are not owners of the water which flows in it. But each owner is entitled by virtue of his ownership of the soil to the reasonable use of the water as it passes his premises, for do- mestic and other uses, not inconsistent with a like reasonable use of the 106 RIGHTS INCIDENTAL TO POSSESSION (Part 1 Stream, by owners above and below him. Such use is incideni to his right of property in the soil. But he cannot divert or unreasonably obstruct the passage of the water, to the injury of other proprietors. These familiar principles are founded upon the most obvious dictates of natural justice and public policy. The existence of streams is a permanent provision of nature, open to observation, by every purchaser of land through which they pass. The multiplied uses to which in civ- ilized society the water of rivers and streams is applied, and the wide injury which may result from an unreasonable interference with the order of nature, forbid an exclusive appropriation, by any individual, of the water in a natural water course, or any unreasonable interrup- tion in the flow. It is said that the same principle of following the order of nature should be applied between coterminous proprietors, in determining the right of mere surface drainage. But it is to be observed that the law has always recognized a wide distinction between the right of an owner to deal with surface water falling or collecting on his land, and his right in the water of a natural water course. In such water, before it leaves his land and becomes part of a definite water course, the own- er of the land is deemed to have an absolute property, and he may ap- propriate it to his exclusive use, or get rid of it in any way h'e can, provided only that he does not cast it by drains or ditches, upon the land of his neighbor ; and he may do this, although by so doing he pre- vents the water reaching a natural water course, as it formerly did, thereby occasioning injury to mill-owners, or other proprietors on the stream. So also he may by digging on his own land, intercept the per- colating waters which supply his neighbor's spring. Such consequen- tial injury gives no right of action. Action v. Blundell, 12 M. & W. 324; Rawstron v. Tavlor, 11 Exch. 369; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93. ' Now in these cases there is an interference with natural la ws. B ut those laws are to be construed in connection with social laws and the laws of property. The interference in these cases with natural^laws is justified, because the general law of society is, that the owner of land has full dominion over what is above, upon or below the surface, and the owner in doing the acts supposed is exercising merely a legal right. The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels, and discharge it upon the land of his neighbor to his injury. This is alike the rule of the civil and common law. Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5 ; Noonan v. Albany, 79 N. Y. 475, 35 Am. Rep. 540; Miller v. Lau- bach, 47 Pa. 154, 86 Am. Dec. 521. But it does not follow, we think, that the owner of land, which is so situated that the surface waters from the lands above naturally descend upon and pass over it, may not in good faith, and for the purpose of building upon or improving his land, fill or grade it, although thereby the water is prevented from reaching it, and is retained upon the lands above. Ch. 5) SURFACE WATERS 107 There is a manifest distinction between casting water upon another's land, and preventing the flow of surface water upon your own. So- ciety has an interest in the cultivation and improvement of lands, and in the reclamation of waste lands. It is also for the public interest that improvements shall be made, and that towns and cities shall be built. To adopt the principle that the law of nature must be observed in re- spect to surface drainage would, we think, place undue restriction upon industry and enterprise, and the control by an owner of his property. Of course in some cases the opposite principle may cause injury to the. upper proprietor. But the question should, we think, be determined largely upon considerations of public policy and general utility. Which rule will on the w^hole best subserve the public interests, and is most -reasonable in practice? For the reasons stated, we think the rule of the civil law should not be adopted in this state. The case before us is an illustration of the impolicy of following it. Several house lots (substantially village lots) are crossed by the depression. They must remain unimproved if the right claimed by the plaintiff exists. It is bet- ter we think to establish a rule which will pennit the reclamation and improvement of low and waste lands, to one which will impose upon them a perpetual servitude, for the purpose of drainage for the benefit of upper proprietors. We do not intend to say that there may not be cases which, owing to special conditions and circumstances, should be exceptions to the general rule declared. But this case is within it, and we think -the judgment below should be affirmed. All concur. Judgment affirmed.* GORMLEY v. SANFORD. (Supreme Court of Illiuois, 1S69. 52 111. 158.) Lawre;nce;, J.* This was an action on the case, brought by San- ford against Gormley, for^ wrongfully obstructing a channel by which,^ as claimed by plaintiff, his land was drained. Sanford owned certain lots in block 3, in the city of Morris, Grundy county, numbered 11, 12 and 13, and Gormley owned lots 5, 6 and 7, in the same block, situat- ed south of Sanford's lots, and separated from them by an alley. In May, 1867, Gormley deposited upon the rear part of his lots, near the sAcc: Gibbs v. Williams. 25 Kan. 214, 37 Am. Rep. 241 (1S81) ; Bates v. Smith, 100 Mass. 181 (18GS). Ace, as to railroad embankments: Walker v. New Mexico & S. P. R. R., 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837 (1897) ; Morrison v. Bucksport & B. R. R., 67 Me. .353 (1877). Se6, also, cases cited in note to Thompson. V. New Haven Water Co.. ante, p. 102. A. drained his land, thereby cutting off surface water, which formerly- flowed over and irrigated B.'s land. Held, B. has no cause of action, even though his land is damaged by the cutting off of the water. Rawstrom v. Taylor, 11 t^xch. .369 (18.55) ; Broadbent v. Ramsbotham, 11 Exch. 002 (1856>. » The statement of facts and part of the opinion are omitted. 108 RIGHTS INCIDENTAL TO TOSSESSION (Part 1 alley a quantity of earth, which he had taken from an adjoining coal shaft. At that time Sanford had upon his lots a large number of grape vines which had been planted two years before, about two hun- dred of which, together with a few young fruit trees, died in the spring of 1867, and he insists, their death was caused by the water thrown back on the rear of his lots by the deposit of earth on Gormley's lots, across which he claims a right of drainage, as being what the civil law terms the lower or servient heritage. The jury found a verdict for the plaintiff, allowing Him $1,500 damages, and the defendant appealed. It is admitted that the water which flowed from Sanford's to Gorm- ley's land, the obstruction of which is the basis of the action, is wholly surface water, consisting of rain which fell upon the land itself, or of snow falling and melting there, and much of the argument has been- addressed to the question, whether the same law in regard to drain- age, which applies to well-defined water courses, is applicable to cases of this character. This question has already been decided by this court in Gillham v. Madison County R. R. Co.,^49 111. 484, 95 Am. Dec. 627, not reported, and probably not within the knowledge of counsel, when this case was argued. In the opinion filed in that case, we said, although there was a conflict of authorities among the courts of this country, yet the rule forbidding the owner of the servient heritage to obstruct the natural flow of surface waters, was not only the clear and well-settled rule of the civil law, but had been generally adopted in the common-law courts, both of this country and of England. Various cases bearing upon each side of the question are cited in that opinion, and it is not necessary to cite them again. This rule was thought by this court, in that cause, to rest upon a sound basis of reason and authority, and was adopted. We find nothing in the argument, or authorities presented in the pres- ent case, to shake our confidence in the conclusion at which we then arrived. In our judgment, the reasoning which leads to the rule for- bidding the owner of a field to overflow an adjoining field by obstruct- ing a natural water course, fed by remote springs, applies, with equal force, to the obstruction of a natural channel through which the sur- face waters, derived from the rain or snow falling on such field, arc wont to flow. What difference does it make, in principle, whether the water comes directly upon the field from the clouds above, or has fallen upon remote hills, and comes thence in a running stream upon the sur- face, or rise,s in a spring upon tlie upper field and flows upon the low- er? The cases asserting a dift'erent rule for surface waters and run- ning streams, furnish no satisfactory reason for the distinction. It is suggested in the argument, if the owner of the superior heritage has a right to have his surface waters drain upon the inferior, it would follow that he must allow them so to drain, and would have no right to use and exhaust them for his own benefit, or to drain them in a dif- ferent direction. We do not perceive why this result should follow. The right of the owner of the superior heritage to drainage is based Ch. 5) SURFACE WATERS 109 simply on the principle that nature has ordained such drainage, and it is but plain and natural justice that the individual ownership arising from social laws should be held in accordance with pre-existing laws and arrangements of nature. As water must flow, and some rule in regard to it must be established where land is held under the artificial titles created by human law, there can clearly be no other rule at once- so equitable and so easy of application as that which enforces natural laws. There is no surprise or hardship in this, for each successive own- er takes with whatever advantages or inconveniences nature has stamp- ed upon his land. We find no error in the instructions of the court upon this branch of the case. It is urged, however, that this rule, even if justly applicable to agri- cultural lands, should not be applied to city lots. Where a city has es- tablished an artificial grade, and provided an artificial sewerage, of which property owners can reasonably avail themselves, we should probably hold it their duty to do so, and so the court substantially in- structed in the present case. But this was not the state of facts in reference to this property, so far as disclosed by this record. The lots lie in a very thinly populated addition tcf the city of Morris, and those belonging to plaintiff were used for the purpose of fruit growing, while defendant mined coal upon his.^" * * * [The judgment was set aside upon other grounds.] YEREX V. EINEDER. (Supreme Court of INIichigan, 1891. 86 Mich. 24, 48 N. W. 875, 24 Am. St. Rep. 113.) Morse, J." The plaintifip owns the E. 1/2 of the S. W. 14 of sec-, tion 22, township 8 N., of range 12 E., in Lapeer county. The defend- ant owns the W. i/o of the same quarter, same section, township, and range. It was claimed by plaintifit that the water from the lowlands of defendant — a marsh or swamp — was diverted from its natural flow, and carried upon the lands of plaintifif, to his damage, by means of a ditch dug upon defendant's premises. The action was commenced in justice court, where plaintiff had judgment. Upon appeal to the cir- cuit court, verdict and judgment passed for the defendant. The plain- tiff brings error. The testimony showed that the swamp on defendant's land was a part or neck of a large swamp, which contained over 300 acres. The 10 Ace: Farkas v. Towns, 103 Ga. 150, 29 S. E. 700, 68 Am. St. Rep. 88 (1897) ; Boyd v. Conklin, 54 Mich. 583, 20 N. W. 595, 52 Am. Rep. 831 (1884) ; Garland v. Aurin, 103 Tenn. 555, 53 S. W. 940, 48 L. R. A. 862, 76 Am. St. Rep. 699 (1899). Compare Little Rock & Ft. S. Ry. Co. v. Chapman, 39 Ark. 463, 43 Am. Rep. 280 (1882), and Morrissey v. Chicago, B. & Q. R. Co., 38 Neb. 406, 56 N. W. 946, 57 N. W. 522 (1893). 11 Part of the opinion is omitted. 110* RIGHTS INCIDENTAL, TO POSSESSION (Part 1 natural outlet of this swamp was into L-ittle brook, and from thence into Mill creek, away from plaintiff's land. The testimony on the part of the plaintiff was to the effect that, although the neck of the swamp upon defendant's land came within about 20 rods of his premises, there was a ridge between such premises and the swamp, which, in the ab- sence of the ditch, prevented any water from the swamp overflowing, even in times of high water, upon plaintiff's land. After passing this ridge, the land of defendant sloped towards plaintift''s land, which, adjoining defendant's premises, was lower than the land of defendant. It was conclusively shown that there was never any natural water course, with defined banks, running from the swamp to plaintiff's land. * * * The defendant introduced testimony tending to show that, m a state of nature, the water from the neck of this swamp flowed upon plain- tiff's land, especially in seasons of high water ; that the defendant built a dam at the lowest place in the swamp, where this water ran towards plaintiff's land, which confined the waters more closely to the swamp ; that the ditch did not quite come up to this dam, and that the water which ran into the ditch flowed around the dam, and thus reached the ditch ; and that no more water went upon plaintiff's premises from the swamp, with the dam and ditch in existence, than flowed there before without them ; and some of the witnesses testified that the quantity of water reaching plaintiff's land was less than it would have been" had not the dam and ditch been constructed. But there was no testimony disput- ing the fact that this ditch collected the water, and precipitated it upon plaintiff" in such a manner that it prevented a large amount of it from soaking into or spreading out over defendant's land, when without the ditch the water could not reach plaintift"'s premises, except as it did so by spreading out and overflowing defendant's land, and" until by such spreading and overflow it reached the land of plaintiff. In other words, it is practically undisputed in the record that the digging of this ditch carried the water from tliis swamp in a different and unusual manner from which it possibly could have reached it naturally, and that the water thus thrown upon it damaged his land, while it reclaimed some of defendant's. The defendant testified that he made the ditch in the first place so that he would be enabled to work the rest of the place to cultivate it. "Until I made the ditch, I could not work it. The ditch kept the water together, so that I could get a chance to work the rest of the land." "I couldn't work it till I cut the ditch, because it would overflow the whole place. * * * Question. After that ditch was dug, wouldn't it take the water from the overflow of the swamp at once onto Yerex's land, and prevent it from overflowing on your land, and soaking him? Answer. Yes, sir. Q. And that was the object of digging the ditch, wasn't it, on your part ? A. Yes ; that was the ob- ject on my part." Such being the record, it was error to permit the defendant to show that the digging of this ditch was an act of good husbandry. The de- Ch. 5) SURFACE WATERS 111 fendant, as said in Gregory v. Bush, 64 Mich. 42, 31 N. W. 90,' 8 Am. St. Rep. 797, could not, "by artificial drains or ditches, collect the wa- ters of stagnant pools, sagholes, basins, or ponds upon his premises, and cast them in a body upon the proprietor below him, to his injury." And he could not reclaim his land by transferring the overflow from his land to that of plaintiff's. "He could not collect and concentrate such waters, and pour them in an artificial ditch, in unusual quanti- ties, upon his adjacent proprietor." Id., 64 Mich. 44, 31 N. W. 94, 8 Am. St. Rep. 797. What the defendant did, by his own showing, was to transfer his wet and untillable land to his neighbor by the digging of an artificial ditch, and carrying the water at once upon plaintiff's land, so that it would not overflow or percolate his own soil. This he had no right to do under any circumstances, and whether or not it was good husbandry upon his part to do so was entirely immaterial. We are at a loss to understand how the jury, under the evidence and charge of the court, which was mainly correct, could have found for the defend- ant, unless they were prejudiced by the admission of this testimony, which had no business in the case. The court, we also think, should have given the plaintiff's second request, as follows : "(2) From the undisputed evidence in this case, the fact has been established that, by means of the dead furrow and ditch constructed by defendant, the water has been prevented from percolating through and settling in the lowlands of defendant next to the swamp, and has been caused to flow through the dead furrow and ditch onto plaintiff's lands in quantities at times greater than it would have flowed on plaintift''s lands if there were no ditch oi* dead furrow, and that said plaintiff' was damaged thereby, and your verdict, there- fore, will be for the plaintiff." The judgment is reversed, and a new trial granted, with costs of this court to plaintiff. The other justices concurred." jpr. '■-. \a^. MANTEUFEL v. WETZEL. (Supreme Court of Wisconsin, 1907. 133 Wis. 619, 114 N. W. 91, 19 L. R. A. [N. S.] 167.) Timlin, J.^^ Only one question is necessary to be considered. It is established by the findings that the parties own adjoining lands. There is on the defendant's land and about 700 feet west of the plain- tiff's land a sink hole, or depression, which in wet seasons and before the construction of the ancient ditch contained about three acres of i2Acc.: Livingston v. McDonald, 21 Iowa, 160, 89 Am. Dec. 563 (1866); Miller v. Laubach, 47 Pa. 154, 86 Am. Dec. 521 (1864). A fortiori is such ttirowins of£ of surface water actionable when there is no natural drainage to the plaintiff's land. Schuster v. Albrecht, 9S Wis. 241, 73 N. W. 990, 67 Am. St. Rep. 804 (1898). 13 Part of the opinion is omitted. / ^f (i^e 7^17 11125 . RIGHTS INCIDENTAL TO POSSESSION (Part 1 water of the average depth of li/^ feet, and between this sink hole or depression and the land of the plaintiff there is upon the land of the de- fendant at a point distant from the common boundary an elevation of about three feet. More than 20 years prior to the commencement of this action the predecessor in title of the defendant cut through this elevation by a ditch, so that the surface water which formerly collected in such depression passed through said ditch and to a point upon de- fendant's land about 150 feet west of the common boundary, where it spread over defendant's land and escaped by the natural course of surface water on to the land of the plaintiff. The said sink hole or depression is a natural basin or reservoir without natural outlet which is capable of holding, and which, in fact, did collect, receive, and hold, large quantities of surface water which fell and gathered upon lands of the defendant and adjacent land in the vicinity of said depression, and the surface water so collected remained standing in said depression until the same disappeared by evaporation, absorption by the earth, or was removed therefrom by means of said ancient ditch or artificial out- let to the point aforesaid upon the defendant's land. In May, 1904, the defendant, following the natural course of the surface water. excavated on his own land a shallow ditch from the termination of said ancient ditch to the common boundary between plaintiff and defendant, and, as a direct result thereof, the surface water from said depression has passed through the ancient ditch and through the extension there- of just mentioned to the plaintift''s land, and has been deposited on the plaintiff's land in greater quantities and with much greater rapidity and force tharr before, and has thereby rendered about four or five acres of the plaintiff's land too wet for ordinary use as agricultural land, and of less value than formerly, and in the year 1904 caused a washout upon the lands of the plaintiff of about 45 feet in length by 7 feet in width, and 3 feet in depth. Upon these facts, the court below held that the ancient ditch extending from the sink hole or depression on defendant's land to a point on defendant's land about 150 feet from the common boundary should be allowed to be and remain as it was, apparently upon the ground that this outlet had been maintained more than 20 years prior to the commencement of the action. That ruling is not excepted to, and is not before us for review. But the court de- creed on these facts that the plaintiff recover $100, and that the de- fendant be ordered to close and ffll up the extension of ditch above de- scribed made by him in May, 1904, and thereafter to keep, the same closed. We have considered the cases, * * * and do here determine that where the upper proprietor does no more than collect in a ditch, which ditch follows the course of the usual flow of surface water, the sur- face water which formerly took the same course toward the land of the lower adjacent proprietor, and causes to pass through this ditch the surface water which formerly took the same course but spread out over the surface, he has committed no actionable legal wrong of which the Ch. O) SURFACE WATERS 113 lower proprietor can complain, or upon which such lower proprietor can maintain an action. In other words, causing surface water to flow in its natural direction through a ditch on one's own land instead of over the surface or by percolation as formerly, where no new water- shed is tapped by said ditch and no addition to the former volume of surface water is caused thereby, except the mere carrying in a ditch what formerly reached the same point on defendant's land over a wider surface by percolation through the soil or by 'flowing over such wider surface, is not, when not negligently done, a wrongful or unlawful act. It follows that, upon the findings of fact of the court below, the con- clusion of law should have been that the defendant was entitled to judg- ment dismissing, the complaint and judgment accordingly. The judgment of the circuit court is reversed, and the cause re- manded, with directions to enter judgment for the defendant dismiss- ing the plaintiff's complaint.^* i^Acc: Hushes v. Anderson, 68 Ala. 280, 44 Am. Kep. 147 (1880). See Jessup V. Bamford, 66 N. J. Law, 641. 51 Atl. 147, 58 L. R. A. 329, 88 Am. St. Rep. 502 (1901). Peck and Herrington owned adjacent farms. There was a natural depres- sion leading through Peck's farm across Herrington's farm to a river. Sur- face water and the spring overflow from three small surface water ponds on Peck's farm worked off down this depression. Peck put in a loose tile drain from these ponds all the way down the depression to the boundary of Herrington's farm. As a result, the ponds were drained and the amount of water flowing through the depression on Herrington's farm was greatly increased. The court held that Herrington had no cause of action against Peck, saying: "It may be true that the owner of a tract of land would have no right to drain a lake or large body of water upon the land of an adjoin- ing owner, and thus destroy it; but such is not this case. These small ponds rendered much of the land of Peck unfit for cultivation, and good husbandry required that they should be drained, and so long as the water was discharged in the regular channel leading from the land of Peck to that of Herrington, he has no legal ground of complaint. The natural flow of the surface water was not changed by the drainage. It may have been in- creased, but such increase of water was a burden which the location of the two tracts of land demanded should be borne by the owner of the lower tract of land. As was said in Kauffman v. Griesemer, supra: 'Because water is descendible by nature, the owner of a dominant or superior herit- age has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in, or flow or fall upon, the superior.' " Peck V. Herrington, 109 111. 611, 620. 50 Am. Rep. 627 (1S84). Ace: Todd V. York County, 72 Neb. 207. 100 N. W. 299. 66 L. R. A. 561 (1904). Com- pare: Jacobson v. Van Boening. 48 Neb. 80. 66 N. W. 993, 32 L. R. A. 229. 58 Am. St. Rep. 684 (1896) ; Waffle v. New York Cent. R. R., 53 N. Y. 11, 13 Am. Rep. 467 (1873) ; Butler v. Peck, 16 Ohio St. 334, 88 Am. Dec. 452 (1865). A., B., and C. owned three adjoining pieces of land; the general slope anc' the run of the surface water was from A. to C. C. constructed a ditch on his land to carry off the surface water. As a result, the course of the water over A.'s land was so accelerated that it damaged his land by washing away the soil. Held, admitting the rule to be that the lower owner is un- der an obligation to receive the natural flow from the upper, A. has no cause of action against C. Pohlman v. Chicago. M. & St. P. R. R., 131' Iowa, 89, 107 N; W. 1025, 6 L. R. A. (N. S.) 146 (1900). A surface water pond of 25 to 40 acres with a maximum depth of 3 feet stood partly on the land of A. and partly on that of B. The pond had BiG.RiariTS — S 114 RIGHTS INCIDENTAL TO POSSESSION (Part I BOWLSBY V. SPEER. (Supreme Court of New Jersey, 1S65. 31 N. J. Law, 351, 86 Am. Dec. 21t).) This action was brought for diverting a water course from its bed into the lands of the plaintiff. The circumstances as they appeared on the trial were these, viz.,: There was a pond on the side of a hill, and below this pond was the stable lot of the defendant, and still lower down was the lot and dwelling house of the plaintiff. The pond was not fed by a spring nor from any subterranean source, but was formed altogether from rains and melting snows, and occasionally it was en- tirely dry — never ran over except in times of heavy showers, and then with the other surface water falling on the contiguous land, it passed down in a slight hollow or depression over the premises of the defend- ant, and so on to other lands below them. This water, in its natural condition, did not go upon tlie lot of the plaintiff'. The defendant, a short time before the commencement of this suit, built a stable on his lot, and located it over this hollow, through which the water before mentioned was discharged, and this obstacle turned the course of the water, so that it ran on to the lot and into the cellar of the. dwelling house of tlie plaintiff. For the damage thus occasioned this suit is brought. The questions involved came before this court on a motion for a new trial. BeaslEy, C. J.^^ It is not one of the legal rights appertaining to land that the water falling upon it from the clouds shall be discharg- ed over land contiguous to it; and this is the law, no matter what the conformation of the face of the, country may be, and altogether with- out reference to the fact, that in the natural condition of things, the sur- face water would escape in any given direction." The consequence is, therefore, that there is no such thing known to the law as a right to any particular flow of surface water, jure naturae. The owner of land may, at his pleasure, withhold the water falling on his property from passing in its natural course on to that of his neighbor, and in the same manner may prevent the water falling on the land of the latter from coming on to his own. In a word, neither the right to discharge nor to receive the surface water, can have any legal existence except from a grant, express or implied. The wisdom of this doctrine will be ap- ' no natural outlet. A few rods from the pond and on A.'s land beg;an a natu- ral depression, which continued over C.'s land to a creek. A. dug a ditch from the pond to the depression, thereby discharging all the water over C.'s land and rendering the depression untillable. The lowest point in the bank of the pond was on a side other than that where the ditch was cut. Held, C. has no riijht of action against A. Aldritt v. Fleischauer, 74 Neb. 66. 103 N. W. 1084, 70 L. R. A. 301 (1905). Ace: Sheehan v. Flynn, 59 Minn. 436, 61 N. W. 462, 26 L. R. A. 632 (1894). 15 Part of the opinion is omitted. Ch. 5) SURFACE WATERS 115 parent to all minds upon very little reflection. If the right to run in its natural channels was annexed to surface water as a legal incident, the difficulties would be infinite indeed ; unless the land should be left idle it would be impossible to enforce the right in its rigor; for it is obvious every house that is built and every furrow that is made .in a field, is a disturbance of such right. If such a doctrine prevailed, every acclivity would be and remain a water shed, and most low ground be- come reservoirs. It is certain that any other doctrine but that which the law has adopted, would be altogether impracticable. This subject, until a comparatively recent date, does not appear to have received the attention of the courts. No ancient authority can, therefore, perhaps be produced, but the topic has of late been discussed both by the Barons of the Exchequer and by the courts of Massachu- setts, and the doctrine placed upon a footing which, as it seems to me, should receive the assent of all persons. Upon an examination of these cases, it will be found that the conclusion is reached that no right of any kind can be claimed in the mere flow of surface water, and that neither its retention, diversion, repulsion, or altered transmission is an actionable injury, even though damage ensues. How far it may be necessary to modify this general proposition in cases in which, in a hilly region, from the natural formation of the surface of the ground, large quantities of water, in times of excessive rains or from the melt- ing of heavy snows, are forced to seek a channel through gorges or narrow valleys, will probably require consideration when the facts of the case shall present the question. It would seem that such anomalous cases might reasonably be regarded as forming exceptions to the gen- eral rule. * * * Applying, then, the doctrine above indicated to the facts of the pres- ent case, the conclusion must be that upon the proof made at the trial, the plaintiff was not entitled to recover. The water diverted by the building of the defendant was altogether surface water, and he, there- fore, had a legal right to obstruct and to turn aside its course. If the plaintiff' has suffered from such act it is damnum absque injuria. Nor is her case helped by the circumstance that a portion of the water in question came from the pond which was proved to exist, because no more waste water was discharged by reason of this reversion than there would have been if it had not been there. It was merely the rain wa- ter flowing from surface of the pond, as it would have done if the superficies had been land instead of water. Nor does it seem to me that there is any significance in the fact, that there was an appreciable channel for this surface water over the land of the defendant and into which it naturally ran. " On every hill side numbers of such small con- duits can be found, but it would be highly unreasonable to attach to them all the legal qualities of water courses. I am not willing to adopt a doctrine which would be accompanied with so much mischief. In my opinion the existence of a water course was not proved in the 116 RIGHTS INCIDENTAL TO POSSESSION \Tart 1 present case, and as this is the ground work of the plaintiffs action, I think a new trial should be granted. Rule made absolute?^* HURDMAN V. NORTH EASTERN RY. CO. (Court of Appeal, 187S. L. R. 3 C. P. D. 16S.) Appeal from the judgment of Manisty, J., in favour of the plaintiff on demurrer to a statement of claim. Claim : At the time of the damage hereafter mentioned the plaintiff was, and is still, possessed of a house, No. 16, Lodge Terrace, Sunder- land. 2. The defendants then were, and still are, possessed of a certain close of land adjoining the house of the plaintiff. 3. The defendants placed and deposited in and upon the close of the defendants, and upon and against a wall of the defendants which ad- joins and abuts against the house of the plaintiff, large quantities of soil, clay, limestone, and -other refuse, close to and adjoining the house of the plaintiff", and thereby raised the surface of the defendants' land above the level of the land upon which the plaintiff's house was built. 4. The rain which fell upon the soil, clay, limestone, and other refuse so placed as aforesaid oozed and percolated through the wall of the de- fendants into the house of the plaintiff', and the plaintift''s house there- by became wet, damp, unwholesome and unhealthy, and less commodi- ous -for habitation. 5. By reason of the acts of the defendants the walls of the house of the plaintiff became and were very much injured, and the paper upon the walls has been destroyed. 6. In the alternative the plaintiff alleges that the defendants negli- gently and improperly placed and deposited the soil, clay, limestone, and refuse upon the defendants' land, and that the rain water falling thereon oozed and percolated through and into the plaintiff's house, whereby the plaintiff's house was damaged as before mentioned. 7. In the alternative the plaintiff' alleges that the defendants were guilty of negligence in this, that the wall of the defendants against which the defendants so placed the soil, clay, limestone, and refuse was not sufficiently and properly constructed and built so as to prevent the isAcc: Gannon v. Hargadon, 10 Allen (Mass.) 106, 87 Am. Dec. 625 (1865); Contra: (Semble) Adams v. Walker, 34 Conn. 466, 91 Am. Dec. 742 (1867) ; Rhoads v. Davidlieiser, 133 Pa. 226, 19 Atl. 400, 19 Am. St. Rep. 630 (1890). See Mayor v. Sikes, 94 Ga. 30, 20 S. E. 257, 26 L. R. A. 653, 47 Am. St. Rep. 132 (1894). Compare: Cedar Falls v. Hansen, 104 Iowa, 1S9, 73 N. W. 585, 65 Am. St. Rep. 439 (1897), and Waverly v. Page, 105 Iowa, 225, 74 N. W. 938. 40 L. R. A. 405 (1898). Ch. 5) SURFACE WATERS 117 water from falling upon the soil, clay, limestone, and refuse from oozing and percolating through the wall and into the plaintiff's house, and that the defendants were guilty of negligence in placing the soil, clay, limestone, and refuse against the wall being so insufficient to pre- vent the water falling upon the soil, clay, limestone, and refuse from oozitig and percolating through and into the plaintiff's house, whereby the plaintiff's house was damaged. Demurrer to the claim, on the ground that the acts, matters, and things alleged to have been done by the defendants do not give rise to any right of action on the part of the plaintiff. The judgment of the Court (BramwiJll, Bri^tt, and Cotton, L. JJ.) was delivered by Cotton, L. J. In this case the plaintiff has brought an action for injury alleged to have been caused to his house, which abuts on a wall of the defendants, by certain acts done by the defendants on their own land. The question is raised on demurrer to the statement of claim, and the question therefore is whether that alleges a good cause of ac- tion. [The Lord Justice read the statement of claim, except paragraph 7.] It is unnecessary to read the seventh paragraph, because it is bas- ed on a supposed obligation of the railway company to make their wall water-tight, but in our opinion there is no such obligation, and if the statements contained in the preceding paragraphs do not shew a cause of action, the statements of the seventh paragraph do not enable the plaintiff to sustain this action. For the purposes of our decision, we must assume that the plaintiff' has sustained substantial damage, and we must construe the statement as alleginglhaFthe surface of The defendants' land has been raised by earth and rubbish placed thereon, and that the consequence of this is that rain-water falling on the defendants' land has made its way through defendants' wall into the house of the plaintiff', and has caus- ed the injury complained of. The question is, are the defendants, ad- mitting this statement to be true, liable to the plaintiff'? and we are of opinion that they are. The heap or mound on the defendants' land must, in ouFopimori, be considered as an artifi cial work. Every oc- cupier of land is entitled to the reasonable enjoyment thereof. This is a natu'ral right of property, and it is well established that an occupier of land may protect himself by action against any one who allows any filth or any other noxious thing produced by him on his own land to interferje with this enjoyment. We are further of opinion that, sub- ject to a qualification to be hereafter mentioned, if any one by arti- ficial erection on his own land causes water, even though arising from natural rainfall only, to "pass into his neighbor's land, and thus sub- stantially to interfere with his enjoyment, he will be liable to an action at tlie suit of him who is so injured, and this view agrees with the opinr ion expressed by the Master of the Rolls in the case of Broder v. Sail- lard, 2 Ch. D. at page 700. I have limited this statement of liability to 118 RIGHTS INCIDENTAL TO POSSESSION (Part 1 liability for allowing things in themselves offensive to pass into a neigh- bour's property, and for causing by artificial means things in them- selves inoffensive to pass into a neighbour's property to the prejudice of his enjoyment thereof, because there are many things which whexi done on a man's own land (as building so as to interfere with the pros- pect, or so as to obstrvict lights not ancient) are not actionable, even though they interfere with a neighbour's enjoyment of his property. But it is urged that this is at variance with the decision that if, in consequence of a mine-owner on the rise working out his minerals, wa- ter comes by natural gravitation into the mines of the owner on the deep, the latter mine-owner cannot maintain any action for the loss which he thereby sustained. But excavating and raising the minerals is considered the natural use of mineral land, and these decisions are referable to this principle, that the owner of land holds his right to the enjoyment thereof, subject to such annoyance as is the consequence of what is called the natural user by his neighbour of his land, and that when an interference with this enjoyment by something in the nature of nuisance (as distinguished from an interruption or disturbance of an easement or right of property in ancient lights, or the support for the surface to which every owner of property is entitled), is the cause of complaint, no action can be maintained if this is the result of the natural user by a neighbour of his land. That this is the principle of these cases appears from the case of Wilson v. Waddell, 2 App. Cas. 95, and from what is said by the Lord Chancellor in Fletcher v. Ry- lands. Law Rep. 3 H. L. C. 330. Moreover, the cases referred to have laid down that a mine-owner is exempt from liability, for water which in consequence of his works flows by gravitation into an adjoining mine, only if his works are carried on with skill and in the usual man- ner; and in the present case it is stated that the defendants have con- ducted this operation negligently and improperly. The decisions, there- fore, as regards the rights of adjoining mine-owners, do not enable the defendants to discharge themselves from liability. It was also argued that a land-owner, who by operations on his own land drains the water percolating underground in the property of his neighbour, is not liable to an action by the man whose land is thus de- prived of its natural moisture, and this it was argued was inconsistent with a judgment for the plaintiff on a statement alleging as a cause of action an alteration in the percolation of water. It is sufficient to say that no one can maintain an action unless there is some injury to some- thing to which the law recognizes his title, and the law does not rec- ognize any title in a land-owner to water percolating through his prop- erty underground and in no definite channel. • We are of opinion that the maxim "Sic utere tuo ut alienum non laedas" applies to and governs the present case, and that as the plain- tiff by his statement of claim alleges that the defendants have by ar- tificial erections on their land caused water to flow into the plaintift''s Ch. 5) SURFACE WATERS 119 land, in a manner in whicii it would not but for such erection have done, the defendants are answerable for the injury caused thereby to the plaintiff. Judgment affirmed. ^^ FITZPATRICK v. WELCH. (Supreme Judicial Court of Massachusetts, 1S99. 174 Mass. 486, 55 N. E. 178, 48 L. R. A. 278.) HoLME^s, J. The plaintiff's case was that water flowing from the roof of the defendant's stable into a gutter along: the side of the stable was discharged upon the plaintiff's land in large quantities through an apertur e in t he gutter, and thus did the damage for which suit is brought. If these were the facts, a ruling that the defendant was bound to use only ordinary care properly was refused. One who arranges a roof and gutter in such a way that the first will collect water, and the second manifestly will discharge it upon a neigh- bor's land unless prevented, has notice that lie threatens harm to his' neighbor of a kind which the law, in its adjustment of their conflicting interests, d^s_not permit him knowingly to inflict. Bates v. Inhabit- ants of Westborough, 151 Mass. 174, 181, 23 N. E. 1070, 7 L. R. A. 156. The danger is so manifest, so constant, and so great that al- though, no doubt, a possibility of harm does not always require more than the exercise of ordinary care to prevent it (Quinn v. Crimmings, 171 Mass. 255, 50 N. E. 624, 42 L. R. A. 101, 68 Am. St. Rep. 420), and although in some states only ordinary care is required in cases like this (Underwood v. Waldron, 33 Mich. 232, 238, 239, Garland v. Towne, 55 N. H. 55, 20 Am. Rep. 164), the requirement here and else- where is higher, and sometimes is stated as absolute, to prevent at one's peril the harm from coming to pass (Shipley v. Fifty Associates, 106 Mass. 194, 199, 8 Am. Rep. 318; Jutte v. Hughes, 67 N. Y. 267, 272). If the defendant is liable, she is liable for damage to artificial struc- tures _upon the j)laintiff's land (Copper v. Dolvin, 68 Iowa, 757, 28 N. W. 59, 56 Am^ Rep. 872 ; Martin v. Simpson, 6 Allen, 102, 105 ; and cases below) ; and, if the discharge of water caused the wall to fall, she is liable for it, whet her the wall was well constructed or not. The re- quest which was refused would have exonerated the defendant if the wall was ill constructed, even though the bad construction did not con- tribute to the damage. It is not necessary to consider this question more nicely, as it appears that full instructions were given, and the 17 Ace: Rainwater tlirown on adjacent premises from houses. Conner v. Woodfill, 126 Ind. 85, 25 N. E. 876, 22 Am. St. Rep. 568 (1890); Beach v. Gaylord. 43 Minn. 476, 45 N. W. 1095 (1890); Bellows v. Sackett, 15 Barb. (N. Y.) 96 (1853). V t^^rt^ v , ^^ 120 RIGHTS INCIDENTAL TO POSSESSION (Part 1 only exception is to the refusal of the defendant's request. Under- wood V. Waldron, 33 Mich. 232, 236, 237; Gould v. McKenna, 86 Pa. 297, 27 Am. Rep. 705. Exceptions overruled.^* 18 See Davis v. Niagara Falls Tower Co., 171 N. T. 336, 64 N. E. 4, 57 L. R. A. 54.5, S9 Am. St. Rep. 817 (1902). The wall of A.'s house was built on loose soil and in a careless fashion. B. negligently allowed the water from his roof to fall on A.'s land, to the damage of A.'s wall. Held, A.'s negligence in building, assuming it to be one of the causes of the destruction of the wall, will not bar an action against B. Underwood v. Waldron, 33 Mich. 232 (1876). Compare Copper v. Dolvin. 68 Iowa, 757, 28 N. W. 59, 56 Am. Rep. 872 (1886) ; Gould v. McKen- na, 86 Pa. 297, 27 Am. Rep. 705 (1878). . See, also, on the question of how far the defendant's liability is affected by his negligence, Little Rock & Ft. S. Ry. Co. v. Chapman, 39 Ark. 463, 4;> Am. Rep. 280 (1882); Missouri Pac. Ry. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249 (189.5), ante, p. 103; Morrissey v. Chicago, B. & Q. R. R., 38 Neb. 406, 56 N. W. 946, 57 N. W. 522 (1893) ; Abbott v. Kansas City, St. J. & C. B. Ry. Co., 83 Mo. 271, 53 Am. Rep. 581 (1884) ante, p. 103 ; Craw- ford V. Rambo, 44 Ohio St. 279, 7 K E. 429 (1886). y/ Ch. 6) UNDERGROUND WATERS 121 CHAPTER VI UNDERGROUND WATERS ACTON V. BLUNDELL. (Court of Exchequer Chamber, 1843. 12 Mees. & W. 324.) TiNDAL, C. J.^ The question raised before us on this bill of ex- ceptions is one of equal novelty and importance. The plaintiff below, who is also the plaintiff in error, in his action on the case, declared in the first count for the disturbance of his right to the water of certain und ergroun d sp rings, streams, and water courses, which, as he alleg- ed, ought of right to run, flow, and percolate into the closes of the plain- tiff, for supplying certain mills with water; and in the second count for the draining off the water of a certain spring or well of water in a certain close of the plaintiff*, by reason of the possession of which close, as he alleged, he ought of right to have the use, benefit, and en- joyment of the water of the said spring or well for the convenient use of his close. The defendants by their pleas traversed the rights in the manner alleged in those counts respectively. At the trial the plaintiff proved, that, within twenty, years before the commencement of the suit, viz. in the latter end of 1821, a former owner and occupier of certain land and a cotton mill, now belonging to the plaintiff, had su nk_and madejn. juchjand a well for raising^ water for the working of the mill; and that the defendants, in the year 1837. had sunk a coal pit in the land of one of the defendants at about three- quarters of a mile from the plaintiff's well, and about three years after sunk a second at a somewhat less distance; the consequence of which sinking was, that, by the first, the supply of water was considerably di- minished, and by the second was rendered altogether insufficient for the purpose's of the mill. The learned Judge before whom the cause was tried directed the jury, that, if the defendants had proceeded and acted in the usual and proper manner on the land, for the purpose of working and winning a coal mine therein, th£y_iiiight_lawfuliy do so, and that the plaintiff's evidence was not sufficient to support the alle- gations in his declaration as traversed by the second and third pleas. Against this direction of the Judge the counsel for the plaintiff tender- ed the bill of exceptions which has been argued before us. And after hearing such argument, and consideration of the case, we are of opin- ion that the direction of the learned Judge was correct in point of law. The question argued before us has been in substance this: Whether 1 Part of the opinion is omitted. /V/ c^ut iii^ 122 RIGHTS INCIDENTAL TO POSSESSION (Part 1 the right to the enjoyment of an underground spring, or of a well sup- plied by such underground spring, is governed by the same rule of law as that which applies to, and regulates, a watercourse flowing on the surface. * * * The ground and origin of the law which governs streams running in their natural course would seem to be this, that the right enjoyed by the several proprietors of the lands over which they flow is, and always has been, public and notorious; that fhe enjoyment has been long con- tinued — in ordinary cases, indeed, time out of mind — and uninterrupt- ed; each man knowing what he receives and what has always been received from the higher lands, and what he transmits and what has al- ways been transmitted to the lower. The rule, therefore, either as- sumes for its foundation the impHed assent and agreement of the prg- prietors of the difl:"erent lands from all ages, or perhaps it may be con- sidered as a rule of positive law, (which would seem to be the opinion of Fleta and of Blackstone,) the origin of which is lost by the progress of time ; or it may not be unfitly treated, as laid down by Mr. Justice Story, in his judgment in the case of Tyler v. Wilkinson, in the courts of the United States, 4 Mason's (American) Reports, 401, Fed. Cas. No. 14,312, as "an incident to the land; and that whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law." But in the case of a well sunk by a proprietor in his own land, the water which feeds it from a neighbouring soil does not flow openly in the sight of the neighbour- ing proprietor, but through the hidden veins of the earth beneath its surface: no man can tell what changes these underground sources have undergone in the progress of time : it may well be, that it is only yesterday's date, that they first took the course and direction which en- abled them to supply the well: again, no proprietor knows what por- tion of water is taken from beneath his own' soil : how much he gives originally, or how much he transmits only, or how much he receives ; on the contrary, until the well is sunk, and the water collected by drain- ing into it, there cannot properly be said, with reference to the well, to be any flow of water at all. In the case, therefore, of the well, there can be no ground for implying any mutual consent or agree ment , for ages past, between the owners of the several lands beneath which the underground springs may exist, which is one of the foundations on which the law as to running streams is supposed to be built ; nor, for the same reason, can any trace of a positive law be inferred from long- continued acquiescence and submission, whilst the very existence of the underground springs or of the well may be unknown to the proprietors of the soil. But the difference between the two cases with respect to the conse- quences, if the same law is to be applied to both, is still more appar- ent. In the case of the running stream, the owner of the soil merely transmits the water over its surface: he receives as much from his higher neighbour as he sends down to his neighbour below : he is nei- Ch. 6) UNDERGROUND WATERS 123 ther better nor worse: the level of the water remains the same. But if the man who sinks the well in his own land can acquire by that act an absolute and indefeasible right to the water that collects in it, he has ijie p ower of preventing his neighbour from making any use of the s pring in his own soil which shall interfere with the enjoyment of the well . He has the power, still further, of debarring the owner of the land in which the spring is first found, or through which it is trans- mitted, from draining his land for the proper cultivation of the soil: and thus, by an act which is voluntary on his part, and which may be entirely unsuspected by his neighbour, he may impose on such neigh- bour the necessity of bearing a heavy expense, if the latter has erected machinery for the purposes of mining, and discovers, when too late, that the appropriation of the water has already been made. Further, the advantage on one side, and the detriment to the other, may bear no proportion. The well may be sunk to supply a cottage, or a drinking place for cattle ; whilst the owner of the adjoining land may be pre- vented from winning metals and minerals of inestimable value. And, lastly, there is no limit of space within which the claim of right to an underground spring can be confined : in the present case, the nearest coal pit is at the distance of half a mile from the well: it is obvious the law must equally apply if there is an interval of many miles. Considering, therefore, the state of circumstances upon which the law is grounded in the one case to be entirely dissimilar from those whic h exist in the other; and that the application of the same rule to botE wouTd^lead, in many cases, to consequences at once unreasonable and unjust; we feel ourselves warranted in holding, upon principle, that the case now under discussion does not fall wjthin the rule which obtains as to surface strea.ms, nor is it to be governed by analogy there- with. No case has been cited on either side bearing directly on the subject in dispute. * * * The Roman law forms no rule, binding in itself, upon the subjects of these realms ; but, in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe. The authority of one at least of the learned Roman lawyers appears decisive upon the point in favour of the defendants ; of some others the opinion is expressed with more obscurity. In the Digest, lib. 39, tit. 3, De sequa et aquae pluvise arcandae, s. 12, "Denique Marcellus scribit. Cum eo, qui in suo fodiens, vicini fontem avertit, nihil posse agi : nee de dolo actionem, et sane non debet habere ; si non animo vicini nocendi, sed suum agrum meliorem faciendi, id fecit." It is scarcely necessary to say, that we intimate no opinion whatever as to what might be the rule of law, if there had been an uninterrupt- 124 RIGHTS INCIDENTAL TO POSSESSION (Part 1 ed user of the right for more than the last twenty years f but, confin- ing ourselves strictly to the facts stated in the bill of exceptions, we think the present case, for the reasons above given, is not to be govern- ed by the law which applies to rivers and flowing streams, but that it rather falls within that principle, which gives to the owner ofthe soil all t hat lies beneath his surface; that the land immediately below Is his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water ; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure ; and that if, in the exercise of such right, he intej^-cepts or drains off the water collected from underground springs in his neighbour's well, this inconvenience to his neighbour falls within the description of damnum absque injuria, which cannot become the ground of an action. We think, therefore, the direction given by the learned judge at the* trial was correct, and that the judgment already given for the def end- ants in the Court below must be affirmed. Judgment affirmed.' 2 "Tlie lots of the plaintiff and defendant adjoin each other. And the case finds, that the plaintiff's cellar was dug fourteen years ago, and water was then found, and in about two years afterwards an excavation was made in the earth, in the place where the well now stands, about three feet deep, and a barrel was inserted, and the water rose to the surface. Afterwards the defendant dug to obtain water in his own soil, and in a place where It was convenient for him, near to the well of the plaintiff, and after the de- fendant's well was dug, the water_ceased to flow into the plaintiff's well, so copiously as it did before. It is for this alleged injury that the action is brought. Then it is to be considered, whether the plaintiff has proved any such easement, as she claims to have in the soil of the defendant. She does not pretend, that there has been any written grant from the defendant. She relies upon the use, as evidence from which a jury should presume a ^rant^ and there is no other circumstance to be relied upon. But by our law, the right of the plaintiff to control the operations of the defendant on his own soil must, in the absence of a written agreement, be made out by an ad- verse possession continued peaceably under a claim of right for twenty years' at the least. In the present case such proof is wanting. There is not evi- dence of any adverse use or possession at all. For the defendant had no means of knowing that the plaintiff's well was supplied by springs in "lERe defendant's soil, until the defendant dug for water there for his own use." Greenleaf v. Francis, 18 Pick. (Mass.) 117, 122 (1836). See, also, Wheatley V. Baugh, 25 Pa. 528, G4 Am. Dec. 721 (1855). 3 Ace. : Wheatley v. Baugh, ante, p. 124. A. had a well on his own land, whence he drew water for domestic and other purposes ; B. dug a well on his land near to A.'s well to get water for his domestic purposes. Thereafter, and in consequence of B.'s digging, the water in A.'s well was insufficient for his pui-poses. Held, A. has no cause of action against B. Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352 (1850). See, also, Bloodgood v. Ayers, 108 N. Y. 400, 15 N. E. 433, 2 Am. St. Rep. 443 (1887) ; Frazier v. Brown, 12 Ohio St. 294 (1801). A. and B. were adjacent landowners. A well on A.'s land was supplied by percolating water from B.'s land. B. dug a ditch on his own land, s<» as to prevent the percolation to A.'s well. An instruction was given thai if the jury found that the acts of B. prevented the usual and natural fLow of the water underground to A.'s soil, and that these acts were done by B. solely with the purpose of injuring A. and depriving him of water, and not with any purpose of usefulness to himself, B. would be liable to A. for Ch. 6) UNDERGROUND WATERS 125 MEEKER V. CITY OF EAST ORANGE. (Court of Eirors and Appeals of ^\'ew Jersey, 1909. 77 N. J. Law. 6L'o, 74 Atl. 379, 25 L. R. A. [N. S.] 465, 134 Am. St. Rep. 798.) PiTNKY, Ch.* Plaintiff brought two actions in one of the district courts of the city of Newark to recover damages for the diversion by the defendant of percolating underground water. In each case the 'district court rendered judgment in favor of the defendant, and upon appeal to the Supreme Court the judgments were affirmed. By writs of error the records are brought here for review. The cases were submitted to the trial court upon agreed statements of fact. In one case it is stipulated that plaintiff owns and occupies a farm of about 100 acres, situate in the valley of Canoe brook, in the townships of Millburn and Livingston, in the county of Essex. He is a milkman, and has for a number of years used his farm for the pasture and support of his cows and horses. Canoe brook and two small streams tributary thereto flow through his fann. Upon the farm there is also a spring, inclosed by a springhouse, the water of which has for years been used by the plaintiff for drinking pur- poses and for the storing and keeping of his milk. His cattle in pas- ture have for years resorted to the brook and its tributaries for drink- ing water. The defendant, the city of East Orange, under the au- thority of "An act to enable cities to supply the inhabitants thereof with pure and wholesome water," approved April 21, 1876, and the acts supplemental thereto and amendatory thereof (P. L. 1876, p. 366; Gen. St. 1895, pp. 646-650, §§ 902-917), acquired a tract of land con- taining about 680 acres situate in the valley of Canoe brook and in the township of Millburn, and installed thereon a water plant consisting of about_20 artesian wells, situate further down the stream than plain- tiff's farm and distant upwards of a mile therefrom. In the construc- tion of these wells, and of the works, mains, and reservoirs connected therewith, the city has expended more than $1,000,000. A few years prior to the commencement of the action, the city began to take water from the wells, and has thus taken percolating underground water, which, but for its interception, would have reached the plaintiff's spring or stream. No water other than percolating water has been taken, and no water has been taken out of any surface stream or from the spring of the plaintiff after it (the water) has appeared upon the surface or in any surface or stream. In this action the plaintiff seeks damages f(*^ any damage sustained by A. Held, the instruction was incorrect. Chat- field V. Wilson, 28 Vt. 49 (1855). Contra: Barclay v. Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. Rep. 365 (1903) ; Stillwatrr Water Co. v. Farmer, 89 Minn. 58, 93 N. W, 907, 60 L. R. A. 875, 99 Am. Si. Rep. 541 (1903). Compare Phelps v. Nowlen,,72 N. Y. 39, 28 Am. Kep. 93 (1878). i Part of the opinion is omitted / (c U 12G RIGHTS INCIDENTAL TO POSSESSION (Part 1 the diversion of the underground water that otherwise would have reached his spring and streams. In the other action the agreed statement of facts differs only in that it shows the existence upon plaintiff's farm of a well which for years had provided water for the various purposes of the plaintiff, and that as a result of the defendant's operations it had taken percolating underground water which otherwise would have reached this well, and had also taken percolating underground water from beneath the surface or soil of the plaintiff's land to such an extent that his crops will not now grow as they did formerly, and the taking of such percolating water has damaged the plaintiff's hay and crops, and also has reduced the level of the water in his well. For this diversion damages are sought. : :?;!.'!•■. The judgments under review are based upon the theory that the city has an absolute right to appropriate all percolating water found beneath the land owned by it, and to use the water for purposes en- tirely unconnected with the beneficial use and enjoyment of that land, to the extent, indeed, of making merchandise of the water and con- veying it to a distance for the ^pply of the inhabitants of East Or- ange, and that although by such diversion the plaintiff's spring, well, and stream are dried up, and his land rendered so arid as to be un- tillable, it^ is damnum absque injuria. The judgments are attacked upon the ground that the law recognizes correlative rights in percolat- ing subterranean waters, that each landowner is entitled to use such waters only in a reasonable manner and to a reasonable extent bene- ficial to his own land, and without undue interference with the rights of other landowners to the dike use and enjoyment of waters per- colating beneath their lands, or of water courses fed therefrom. The law respecting the rights of property owners in percolating sub- terranean waters is of comparatively recent development; the first English decision bearing directly upon the question having been ren- dered in 1843. Acton v. Blundell, 12 M. & W. 324, 13 L. J. Exch. 289. This was followed by Chasemore v. Richards (1859) 7 H. L. Cas. 349, 29 L. J. Exch. 81, 5 Jur. N. S. 873, 1 Eng. Rul. Cas. 729. These cases may be taken as establishing for that jurisdiction the rule upon which the judgments under review are based. They were followed by a considerable line of decisions in this country, in which the Eng- lish rule was adhered to, and which will be found discussed in Wash- burn on Easements, 363-390; Angell on Water Courses, §§ 109-1 14p; 30 Am. & Eng. Encyc. Law (2d Ed.) 310-313. The soundness of the English doctrine was, however, challenged by the Supreme Court of New Hampshire in a well-considered case decided in 1862 (Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179), where it was elaborately reasoned that the doctrine of ab- solute ownership is not well founded in legal principles, and is not so commended by its practical application as to require its adoption, that the true rule is that, the rights of each owner being similar, and Ch. 6) UNDERGROUND WATERS 127 their enjoyment dependent upon the action of other landowners, their rights must be correlative and subject to the operation of the maxim sic utere, etc., so that each landowner is restricted to a reasonable exercise of his own rights and a reasonable use of his own property, in view of the similar rights of others. This decision was followed by Swett V. Cutts (1870) 50 N. H. 439, 9 Am. Rep. 276, where the court again laid down that the landowner has not an absolute and un- qualified property in all such water as may be found in his soil, to do what he pleases with it, as with the sand and rock that form part of the soil, but that his right is to make reasonable use of it for do- ^ y mestic, agricultural, and manufacturing purposes, not trenching upon the similar rights of others. The doctrine, thus enunciated, has come to be known in the discussion of the topic as the rule of "reasonable use." * * * — A review of the reasoning upon which the English doctrine respect- ing percolating underground waters rests will demonstrate, as we think, that this reasoning is unsatisfactory in itself and inconsistent with legal principles otherwise well established. Thus, in Acton v. Blundell, 12 AI. & W. Exch. 349, Tindal, C. J., in undertaking to show the in- applicability to percolating waters of the law that governs running streams, declared that the ground and origin of the law respecting the latter would seem to be that the right enjoyed by the several pro- prietors of the lands over which they flow is, and always has been, _public and notorious, that the enjoyment has been long-continued and uninterrupted, and therefore based upon the implied assent and agree- ment of the proprietors of the different lands from all ages, while undergr ound waters, being concealed from view, there can be no im- plied mutual consent or agreement between the owners of the several lands respecting them ; but, as has been since repeatedly pointed out, the right of the riparian owner to the flow of a natural stream arises ex jure naturae, and not at all from prescription or presumed grant or acquiescence arising from long-continued user. See remarks of Parke, B., in Broadbent v. Ramsbotham, as reported in 25 L. J. Exch., at page 121 ; and remarks of Lord Wensleydale in Chasemore v. Richards, 7 H. L. Cas., at pages 382, 383, 29 L. J. Exch. 87, 1 Eng. Rul. Cas. 752, 753, and cases cited. Again, in Acton v. Blundell, 12 M. & W. 351, the Chief Justice said: "If a man who sinks a well in his own land can acquire by that act an absolute and indefeasible right to the water that collects in it, he has the power of preventing his neighbor from making any use of the spring in his own soil which shall interfere with the enjoyment of the soil." Obviously he failed to note that there is a^ middle ground between the existence of an absolute and indefeasible right and the absence of any right that the law will recognize and protect. There is room for the existence of qualified and correlative rights in both landowners. The English rule seems to be rested at bottom upon the maxim, "Cujus est solum, ejus est usque ad coelum et ad inferos." 128 RIGHTS INCIDENTAL TO POSSESSION (Part 1 Thus, in Acton v. Blundell, 12 M. & W. 354, Tindal, C. J., said that the case fell within "that principle which gives to the owner of the soil all that lies beneath his surface ; that the land immediately below ;s his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water ; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure." Here the impracticability of applying the rule of absolute ownership to the fluid, water, which by reason of its nature is incapable of being subjected to such ownership, is ap- parently overlooked. If the owner of Whiteacre is the absolute pro- prietor of all the percolating water found beneath the soil, the owner of the neighboring Blackacre must, by the same rule, have the like proprietorship in his own percolating water. How, then, can it be con- sistent with the declared principle to allow the owner of Whiteacre to withdraw, by pumping or otherwise, not only all the percolating water that is normally subjacent to his own soil, but also, and at the same time, the whole or a part of that which is normally subjacent to Blackacre ? Where percolating water exists in a state of nature gener- ally throughout a tract of land, whose parcels are held in several own- ership by different proprietors, it is, in the nature of things, iinpossible_ to accord to each of these proprietors the absolute right to withdraw ad libilum all percolating water which may be reached by a well or pump upon any one of the several lots, for such withdrawal by one owner necessarily interferes to some extent with the enjoyment of the like privilege and opportunity by the other owners. Again, the denial of the applicability to underground waters of the general principles of law that obtain with respect to Avaters upon the surface of the earth is in part placed upon the mere difficulty of prov- ing the facts respecting water that is concealed from view ; but ex- perience has demonstrated in a multitude of cases that this difficulty is often readily solved. When it is solved in a given case, by the production of satisfactory proof, this reason for the rule at once van- ishes. It is sometimes said that, unless the English rule be adopted, landowners will be hampered in the development of their property because of the uncertainty that would thus be thrown about their rights. It seems to us that this reasoning is wholly faulty. If the English rule is to obtain, a man may discover upon his own land springs of great value for medicinal purposes or for use in special forms of manufacture, and may invest large sums of money upon their develop- ment; yet he is subject at any time to have the normal supply of such springs wholly cut off by a neighboring landowner, who may with impunity sink deeper wells and employ more powerful machinery, and thus wholly drain the subsurface water from the land of the first dis- coverer. In the case before us, the city of East Orange might have its un- derground water supply cut off or materially impaired by the estab- Ch. G) UNDERGROUND WATERS 129 lishment of deeper wells and more powerful pumps upon some neigh- boring tract — even upon the tract owned by the plaintiff. * * * Upon the whole, we are convinced, not only that the authority of the English cases is greatly weakened by the trend of modern decisions in this country, but that the reasoning upon which the doctrine of "rea sonable user" rests is better supported upon general principles of law and more in consonance with natural justice and equity. We therefore adop t the latter doctrine. This does not prevent the proper user by any landowner of the percolating waters subjacent to his soil in agriculture, manufacturing, irrigation, or otherwise ; nor does it prevent any reasonable development of his land by mining or the like, although the underground water of neighboring proprietors may thus be interfered with or diverted ; but it does prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, if it thereby result that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs, or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agriculture, pasturage, or other legitimate uses. It follows that the judgments of the district court and of the Su- preme Court must be reversed."^ * * * 5 Ace: Katz v. Walkinshaw, 141 Cal. 116^ 70 Pac. 663, 74 Pac. 766. 64 L. R. A. 236,'9gTS. St Rep: 35 (1903) ; Forbell v. New York, 164 N. Y. 522, 58 N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666 (1900). Contra:' Chasemore V. Richards, 7 H. L. Gas. 349 (1859). Compare Houston & T. C. R. Co. v. East, 98 Tex. 146, 81 S. W. 279, 66 L. R. A. 738, 107 Am. St. Rep. 620, 4 Ann. Cas. 827 (1904). See Erickson v. Crookston Waterworks, Power & Light Co., 105 Minn. 182, 117 N. W. 435, 17 L. R. A. (N. S.) 650 (1908). As to the form of relief to which plaintiff is entitled, compare Westphal V. New York, 177 N. Y. 140, 69 N. E. 369 (1904). As to protecting a possible future user of water for local purposes against non-local user, see Burr v. Maclay Water Co., 154 Cal. 428, 98 Pac. 260 (1908)^ A. had a valuable mineral spring on his land; B., in the process of de- veloping on his own land a supply of the same water, temporarily pumped and wasted so much of the water as to lower A.'s spring, to his damage. Held, A. has no cause of action. Pence v. Carney, 58 W. Va. 296, 52 S. E. 702, 6 L. R. A. (N. S.) 266, 112 Am. St. Rep 963 (1905). B. installed a pump on his land, and pumped and wasted valuable min- eral water, thereby draining A.'s springs, at which A. had erected an ex- pensive hotel and built up a large business. B. did this for the purpose of compelling A. to buy him out. Held, A. may enjoin B. from so wasting;^ the waters. Gagnon v. French Lick Springs Hotel Co., 163 Ind. 6817^''^ E. 849, 68 L. R. A. 175 (1904). Contra: Bradford v. Pickles [1895] A. C. 587. Defendant bought from the plaintiff a narrow strip of land along a stream and then built a dam on his land below. He made an embankment on the strip to protect the plaintiff's land from being flooded, but the water per- colated through the natural banks of the creek and made the plaintiff's land wet. The defendant was held liable, though he had built the embankment with due care and skill. The court said: "It is not that the defendants have unreasonably, negligently, unintentionally, unnecessarily, or unexpect- edly flowed the plaintiff's land, to his injury, for their beuetit, that they are BlG.RlOHTS-^9 130 RIGHTS INCIDENTAL TO POSSESSION (Part 1 MERRICK WATER CO. v. CITY OF BROOKLYN. (Supreme Court of New York, Appellate Division, Second Department, 1898. 32 App. Div. 454, 53 N. Y. Supp. 10, Affirmed [1S99] 160 N. Y. 657, 55 N. E. 1097.) Hatch, J.® The plaintiff is a corporation engaged in the business of collecting water, and selling the same to its various customers throughout the neighborhood where it has its principal place of busi- ness. The complaint avers that the land occupied by the plaintiff, and from which it obtains its water supply, is located on a subterranean stream supplied from a water shed . which is particularly described ; that such underground stream rises to the surface on the plaintiff's land, and flows into ponds owned by it. The complaint further avers that the defendant has acquired a considerable strip of land lying north of the plaintiff's pumping station and its wells, upon which land it intends to sink about 80 wells, and draw therefrom a water supply for the city of Brooklyn, and that, if it carries out such purpose, it will draw the water from the plaintiff's wells and the underground stream, and also from the surface stream and said ponds, whereby the plaintiff will be deprived of its water, its business will be destroyed, and the locality in which it seeks to carry on its business will be checked in its growth. The complaint demands judgment that the defendant be restrained from sinking its wells or establishing a pump- ing station, or doing any other act upon its land which will diminish the flow of water upon the plaintiff's lands. At the time of the trial the defendant had sunk its wells, established its pumping stations, was engaged in operating the same, and was carrying the water thus ob- tained to the city of Brooklyn. The proof tended to estabhsh, and the referee found, that the effect of the defendant's pumping had been to permanently lower the water in plaintiff's well from seven to eight feet ; that such lowering was caused by the defendant's pumps in drawing the water from under the plaintiff's well and the land on which it is situated. The evidence failed in support of the averment that there existed a subterranean stream of water which supplied the liable. It is simply because they have done it in factj they have done it by their works, and it cannot be charged to extraordinary floods. In the language of the old books, 'the defendants' exaltavunt stagnum by which the plaintiffs meadow was flooded,' and they are liable therefor. Godbolt, 58. The necessity, motive, knowledge, or care of defendants forms no element of this action. Not the peculiar mode or manner of the injury, but the fact of the injury caused bv the dam, in any mode or manner, is the ground of "the action." Pixley v. Clark, 35 N. Y. 520, 531, 91 Am. Dec. 72 (1866). See, also, Wilson v. City of New Bedford, 108 Mass. 261, 11 Am. Rep. 352 (1871). When the effect of the reservoir was to prevent the underground waters on B.'s land passing along by percolation, A. was held to have no liability. Harwood v. Benton, 32 Vt. 724 (1860). But see Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179 (1862). In general, as to the extent of liability for damage caused by accumulated water, see Rylands v. Fletcher, L. R. 3 H. L. 330 (1868), and other cases in Hepburn's Cases on Torts, 776 et seq. 6 Part of the opinion is omitted. Ch. 6) UNDERGROUND WATERS 131 plaintiff's well. Upon this subject the proof was that the interrup- tion, by the act of the defendant, was of percolating water, and as a consequence the water in the well was diminished in quantity, as was the flow of the small surface stream running to the ponds, which was practically, if not entirely, dried up, and the quantity of water in the ponds diminished. * * * In the present case both corporations seek to obtain water in a similar manner, for a precisely similar purpose ; i. e. for transportation and sale. Neither party intends to make use of its land for any other purpose than will facilitate the gathering and distribution of water. In_this_respect their rights are equal, one as great as the other; and we see no reason why the rule should not be applicable as would apply in case either owner desired to improve its land for purposes of use. Then, as we have seen, neither party would be liable for the diversion of percolating water, because each is engaged in the exercise of a legal right, and the rights of each are equal in the use and enjoy- ment of the land. When both seek to use their land for exactly the same purpose, and neither seeks to improve it for the purpose of bene- ficial enjoyment, but to make a profit from the business carried on, the right to such use must also be equal. Under such circumstances, if one gets more than the other we think there can be no more ground of com- plaint than would exist if both sought to improve their own land, and one secured more than the other, or one was damaged and the other not. As applied to such obligations, the doctrine of reasonable use and relative rights has never been adopted by any of the courts in this state, nor in any other state, so far as our research has discovered, except in New Hampshire. We are not able to see, therefore, that the act of the defendant has infringed upon any legal right which the plaintiff possessed. So far as the diversion of the small brook is con- cerned, we do not think that the facts warrant its separation from the rule applicable to percolating water. There ' was little proof to show that its source, character, or use was such as to make the rule of the Smith Case applicable. It is not every rivulet or small stream to which such rule can be applied, as it is evident, if such were the rule, then an adjoining owner might be unable to improve his property, or might improve, and find himself liable for exercising his legal right. The destruction must be unreasonable when the rights of both parties are considered, and, as applied here, we think it was not sufficient to create a subject-matter of legal damage. These views call for a reversal of the judgment.'^ 7 Ace: When neither party used a pump. Ocean Grove v. Asbury Park, 40 N. J. Eq. 447, 3 Atl. 108 (1SS5). A. had a natural mineral spring, the waters of which he bottled and sold. B. installed a pump and pumped the waters, extracted the carbonic acid ga.s, which he sold, and let the waters go to waste. This pumping diminished the waters in A.'s spring, to his damage. Held, A. may enjoin B. Hathom v. Natural Carbonic Gas Co.. 194 N. Y. 326, 87 N. E. 504, 23 L. R. A. (JN. S.) 436, 128 Am. St. Rep. 555, 16 Ann. Cas. 989 (1909). 132 RIGHTS INCIDENTAL TO POSSESSION (Part 1 KINNAIRD V. STANDARD OIL CO. (Court of Appeals of Kentucky, 1S90. 89 Ky. 468, 12 S. W. 937, 7 L. R. A. 451, 25 Am. St. Rep. 545.) Pryor, J.® The appellant, Kinnaird, is the owner of a small tract of land containing about four acres, lying adjacent to or within the boundary of the town of Lancaster, in the county of Garrard. On this land is a valuable and never-failing spring, that appears upon the sur- face of the ground at the foot of a hill, and had been used as such for a long period of time. In November of the year 1886 the appellee, the Standard Oil Company, leased from the Kentucky Central Railroad Company a site upon which to build a warehouse for the storage of its coal oil. They erected the warehouse, and placed in it their coal oil, that leaked from the casks, and saturated the gr.ound^ both on the in- side and outside of the building. The floor of the house consisted of a bed of cinders about 12 inches in depth, that supplied the place of plank, that, as the proof shows, would become very inflammable when saturated with the oil. The bed of cinders, therefore, rendered the property much more secure than if a floor had been laid in the build- ing. The spring of the appellant is located about 200 yards from the oil-house of the appellee, with a hill or rise in the ground between the two, and the proof conduces to show that water on the surface of the ground at the oil-house would naturally flow in an opposite direction from the spring, because it is lower than the ground where the spring emerges from the hill. After the oil had been deposited in the build- ing erected for that purpose, it is manifest that it leaked from the casks^ and, being of such a penetrating character, it passed into the grou nd^ and polluted the water or stream from which the spring of appellant was supplied. While it is argued that the proof on this subject is by no means sat- isfactory, we think it apparent from the testimony that the oil mingled with underground currents of water that fed the spring of the appel- lant, and caused the injury. The court below, on hearing the testi- mony, gave a peremptory instruction to the jury, on the ground that no action could be maintained for contaminating the subterranean water that flowed into the spring of the appellant, as the appellee had the right, in the exercise of its legitimate business, to build the house, and store the oil within it, on its own land, although the property of its neighbor was injured by it, * * * It seems to us, after a careful review of the authorities referred to by counsel for the corporation, all of which are entitled to great weight, that there is a manifest distinction between the right of the owner of land to use the under-ground water upon it, that originates from per- colation or is found in hidden veins, and the right to contaminate it 8 Part of the opinion is omitted. Ch. G) UNDERGROUND WATERS 133 SO as to injure or destroy the water when passing to the adjoining land of his neighbor. It is a famihar doctrine that one must so use his property as not to injure his neighbor, and because the owner has the right to make an appropriation of all the under-ground water, and thus prevent its use by another, he has no right to poison it, however innocently, or to con- taminate it, so that when it reaches his neighbor's land it is in such con- dition as to be unfit for use either by man or beast. One may be en- titled by contract with his neighbor to all the water that flows in a stream on the surface that passes through the land of both, and, while he can thus appropriate it, he has no right to pollute the water in such a manner as, when it passes to his neighbor, its use becomes dangerous or unhealthy to his family, or to the beast on his farm. As soon as the water leaves the land of the one who claims the right to use it, and runs on the land of another, the latter has the same right to appropriate it, and, if property, it then becomes as much the property of the last as the first proprietor. The owner of land has the same right to the ^^ ,^^., use a nd enjoyment of the^aii* that is around and over his premises as jt!^ t he has to use and enjoy the water under his ground. He is entitled to the use of what is above the ground as well as tliat below it, and still it will scarcely be insisted that he can poison the atmosphere with nox- ious odors that reach the dwelling of his neighbor, to the injury of the health of himself or family. If not, we see no reason why he should be permitted to so contaminate the water that flows from his land to his neighbor's, producing the same results, and still escape lia- bility for the damages sustained, and whether the water escapes the one way or the other is immaterial. The simple question is, can the owner, with a knowledge of the pene- trating character of its oil, and the effects following its leakage, store large quantities of it near the spring of the plaintiff, when the oil is seen in puddles outside of the building, the result of leakage of the casks on the inside, and resist the claim of the plaintiff' on the ground that it did not know the water was affected by it? The injury has been done, and can it be said that it presents a case of damnum absque in- juria? We t hink not. * * '^ The entire dominion of the defendant over its property in the pres- ent case is undenied, but it had no right, while enjoying its use, al- though in a legitimate way, to violate, by the manner of its use, the jights of"6thers. It seems to us unreasonable to adjudge that the erec- tion an3"operatron of gasworks, or buildings for the storage of oil, with the noxious and injurious substances, by reason of the deposit on the surface permeating the ground, and injuring or destroying the taste or use of water belonging to and on the property of others, is such a legitimate use of one's property, and his dominion over it, as to pre- clude any recovery for an injury to the property of his neighbor, how- ever great, and to require a notice that the injury has, been inflicted be- fore the action can be maintained would be to destroy the theory or 134 RIGHTS INCIDENTAL TO POSSESSION (Part 1 the principle upon which a recovery in the case is permitted. It is ar- gued that the appellee was ignorant of the existence of the nuisance or injury to appellant's spring, and had no right to suppose that its oil was affecting the water in the spring of the plaintiff. This may be so, and still the defendant is responsible for the injury, although it was not aware that its neglect in permitting the oil to leak from the casks, and stand in pools outside the building, had or would work an injur}' to the plaintiff. If a nuis ance, whether neglect or not, the appellee is liable. We have assumed, in the consideration of the questions presented, that the injury complained of resulted from the manner in which the oil was kept in the store-house of the defendant, but we are not to be understood as taking that question from the jury on the return of the case. * * * Judgment reversed and remanded, with directions to award a new trial, and for proceedings consistent with this opinion.® 9Acc.: Tenuant v. Goldwin, 1 Salk. 360 (1704); Ballard v. Tomlinson, L. R. 29 Ch, Div. 115 (1SS5) ; Ball v. Nye, 99 Mass. 5S2, 97 Am. Dec. 56 (1S6S). See Patrick v. Smith, 75 Wash. 407, 134 Pac. 10T6, 4S L. R. A. (N. S.) 740 (1913). The defendant drove a gas well on its own land about 50 feet from the plaintiff's spring. As a result the spring was affected and rendered worth- less by pollution from a stratum of salt water encountered in sinking the gas well. The plaintiff was allowed to recover for the damage so caused. The court said: "The defendant is liable, not because it has necessarily in- .iured the' plaintiffs in the exercise of its own legal right, but becaiise It has injured them unnecessarily by the neglect of such reasonable precautions as might and should have been taken to protect them. According to the testi- mony, this gas well was drilled with the knowledge of the fact that salt water was to be encountered ; that it could be confined to its own bed ; that, if it was not, the 'whole neighborhood would be spoiled ;' and that there were many wells near by in the borough of Glenfield to be affected by their want of care of it in this particular. Yet no effort whatever was made to shut off the salt water, or to avoid the destruction of the wells which it was practicable to save. The ground of the defendant's liability is i3e5ligenc'e-::r the want of reasonable care, under the circumstances, for the rights of oth- ers." Collins v. Chartiers Val. Gas Co., 139 Pa. Ill, 21 Atl. 147 (1S91). A. built a gas retort on his own land, and there deposited the refuse mat- ter resulting from the manufacture ; part of it was carried by _surface_ water or shallow subsurface percolation into B.'s well; part of it worked" in to "ffie' ground and polluted the deeper underground waters by which B.'s well was supplied. B. brought action for the pollution. Held, A. is liable for the pollution resulting from the surface and shallow subsurface direct percola- tion, but for the indirect pollution of the well only if his conduct is mali^ cious, and knowledge that these consequences are" being produced is not sufficient. Brown v. Illius, 27 Conn. 84, 71 Am. Dec. 49 (1858). See, also, Dillon v. Acme Oil Co., 49 Hun, 565, 2 N. Y. Supp. 2S9 (1888); Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925, 43 Am. St. Rep. 711 (1894). M- Ch. 6) UNDERGRODND WATER8 135 HALE V. McLEA. (Supreme Court of California, 1879. 53 Cal. 578.) [The plaintiff and the defendant owned adjacent tracts of land. On the plaintiff's tract near the boundary was a small, never-failing spring of water which the plaintiff used for domestic purposes. On defend- ant's land a line of bushes, usually found nowhere except on a water course, extended up to the boundary line at the point near which the spring appeared. The defendant, on his own land and just inside the boundary, began at some distance from the line of bushes and at right angles to it a trench, which deepened to a depth of nine feet where it intercepted the line of bushes. At this point a stream of water made its way into the trench and was piped away by the defendant to his house, where part of it was used and the rest allowed to go to waste. Immediately after this was done the plaintiff's spring ceased to flow and has since remained dry. The defendant was not actuated by mal- jce. The plaintiff brought action for the diversion of the water. He had judgment below and defendant appealed.]^" CrockKTT, J. An examination of the English and American deci- sions on the questions of law involved in this appeal leads us to the con- clusion that, on the facts admitted by the pleadings or found by the court, the right of the defendant as against the plaintiff to use the wa- ter of the subterranean stream, which is the subject of the action, is at most no greater than if it was a surface stream, on which the de- fendant was the upper and the plaintiff a lower riparian owner. Test- ed by this rule, the utmost that can be claimed for the defendant on the facts is, that he is entitled to take from the stream as much water as he need s Jor watering his cattle and for domestic uses, such as cook- ing, washing, and the like, leaving the surplus to flow to the spring of the.4ilaintiff_in its natural channel. But. the findings show that the de- fendant has diverted the whole body of the stream through pipes, in such a manner that no portion of the water can reach the spring ; and the surplus at the commencement of the action was running to waste, as appears from the admissions in the pleadings. If it were, a surface^ stream, the plaintiff would be entitled to have it flow to and across his lands, in its natural channel, subject only to the right of the defend- ant to use so much of the water as is necessary to supply his natural or primary wants as above indicated; nor, on the facts found, can the cletendant exercise any greater right in respect to a subterranean stream. Assuming, therefore, that the rights of the defendant are precisely the same as though it was a surface stream, he has exceeded them by diverting the whole body of the water from its natural chan- nel, instead of allowing the surplus to flow to the spring in its accus- tomed bed. 10 The statement of facts is rewritten and the concurring opinion ot Rhodes, J., is omitted. 136 RIGHTS INCIDENTAL TO POSSESSION (Part 1 But the exigency of the case does not require us to decide that the defendant has the same right in respect to a subterranean stream as though it was a surface stream flowing across his land; and our deci- sion is only to the effect that, if it be assumed his rights are the same, he has, nevertheless, exceeded them by diverting the whole bod)^ of the stream, instead of allowing the surplus to flow to the spring in its nat- ural channel. There is no question in this case involving the right of a riparian owner to the use of water for purposes of irrigation ; nor is the point before us whether or not a land-owner may be restrained from divert- ing or obstructing the flow of an underground current, running in a defined channel across his land, and which supplies a spring or well on the adjoining lands, if it become necessary to divert or obstruct the stream in the prosecution of the business of mining, or any other legit- imate enterprise on his own land ; nor to what extent, if at all, it would affect the question if the underground current was not known to exist until the fact was discovered in the prosecution of the work. These are grave questions, which the exigency of the present case does not re- quire us to decide. Judgment affirmed. ^^ HAGUE V. WHEELER. (Supreme Court of Pennsylvania, 1893. 157 Pa. S24, 27 Atl. 714, 22 L. R. A. 141, 37 Am. St. Eep. 736.) Williams, J.^^ * * * Jj^ ^j^g treatment of this case it is a mat- ter of first importance to get a clear apprehension of the facts on which the questions are raised. There are two plaintiffs who join in the bill, whose interests, while like in kind, are nevertheless several and dis- tinct. There are several defendants, but their interests appear to be joint. The two plaintiffs hold separate leases on parts of tracts in \Varren and Foster counties, Nos. 5,202, 5,203, 5,207, and 5,209, ag- gregating about 2,200 acres. The gas company began drilling on its leases in 1887. Hag-ue began in 1888. Each has a gas well or wells furnishing gas in sufficient volume to enable the owner to utilize it by transportation to and sale in towns in the vicinity. The defendants are 11 Ace: Keeney v. Carillo, 2 N. M. 480 (1883). See, also, Willis v. City of Perry, 92 Iowa, 297, 60 N. W. 727, 26 L. R. A. 124 (1894) ; Strait v. Brown, 16 Nev. 317, 40 Am. Rep. 497 (1881) ; Whetstone v. Bowser, 29 Pa. 59 (1857). Compare City of Los Angeles v. Hunter, 156 Cal. 603, 105 Pac. 755 (1909). A., in mining on his own land, unexpectedly intercepted an underground stream that supplied a spring on B.'s land, used by B. for domestic pur- poses. By the pumping necessary to render his mine workable, A. destroyed this stream, with the result that the spring went dry. Held, B. has no right of action against A. Haldeman v. Bruckhart, 45 Pa. St. 514. 84 Am. Dec. 511 (1863). Ace: Chase v, Silverstone, G2 Me. 175, 16 Am. Rep. 419 (1873). 12 The statement of facts and part of the opinion are omitted. Ch. 6) UNDERGROUND WATERS 137 owners and lessees of part of tract No. 5,207, which adjohis the lands of the gas company, and is not far from the lands of Hague. In 1890 they drilled a well on their tract, and obtained gas in considerable vol- ume, but not sufficient to enable them to utilize it by transportation and sale. They have therefore allowed it to escape into the open air. The plaintiffs allege that the "geolo'gical formation in that locahty" is such that the gas-bearing sand rock underlying all these tracts and forming the common reservoir or deposit from which the gas is obtained "is subject to drainage by the drilling of wells on any part thereof." For this reason they assert that "the flow of gas from the said well of de- fendants is so great that it will, if allowed to go to waste, seriously and irreparably injure the wells of the plaintiffs by drainage from the lands adjoining and near to said defendants' wells. To prevent this they state that they entered on the defendants' land, and at a cost of about $200 shut in the gas and closed the well. The defendants then threat- ened to remove the cap or plug and permit the gas to escape again into the air. Upon these facts the plaintiffs asked the court below to en- join the defendants from removing the cap or plug from the casing or tubing in the well, and from "permitting the gas therefrom to flow into the air, or otherwise go to waste." The injunction was granted, and from that decree this appeal was taken. The affidavits show that the defendants drilled their well in 1890, ar the suggestion and request of the gas company, and that negotiations for its purchase by the gas company have been conducted at some length, but without resulting in a bargain. This fact — that the well in controversy had been drilled at considerable cost by the defendants, at the request of the gas company — the learned judge rightly regarded as a significant one. In the opinion filed by him, which is an able one. he says that this fact "might defeat this application so far as the gas company is concerned ;" but he regarded it as of no consequence so far as the other plaintiff' was concerned, for he immediately added : "But, as it cannot affect the plaintiff" Hague, it is not necessary to con- sider it at this time." He then proceeds to state and consider the ques- tion on which his decree was based, upon a state of facts such as might arise where an adjoining owner was guilty of malice or negligence in the conduct of operations on his land resulting naturally in injury to his neighbor. But is this conclusion of the learned judge that Hague stood on higher ground than the gas company a correct one ? The acts complained of were the drilling of the well in 1890, when the wells of both the plaintiff's were in full operation, and the subsequent failure to utilize or shut in the gas. The drilling of the well was accounted for, and the suggestion of malice or negligence therein pegatived by proof that it was done at the instance of the gas company. This company had a considerable gas plant, and was engaged in the supply of gas to its customers for fuel. It was interested in the development of the region, and evidently expected to buy the defendants' well if it was of sufficient size to be capable of utilization. The defendants and the gas 138 RIGHTS INCIDBNTATv TO POSSESSION (Part 1 company could not agree upon the price of the well after it was drilled, but the fact that it was drilled at the request of the company, and not of the mere motion of the defendants, was an answer to any allegation of malice or negligence on the part of Hague as well as on the part of the company, since it accounted for the act of drilling by assigning a motive therefor, both lawful and neighborly. It will not do to say that an act thus accounted for as to one plaintiff may be assumed to be the result of malice or negligence as to the other, in the absence of proof to sustain the assertion. These plaintiffs stand on common ground. Neither of them can complain of the defendants for the act of drilling the well on their land on any other ground than the existence of malice or negligence. When the act is accounted for in such a manner as to show that it was not done with malice, or in negligence, but in good faith, as an act of ownership, and at the solicitation of the gas com- pany, the character of the act is established, and as a basis of relief it falls out of the case. What have we then? Three landowners owning considerable hold- ings in the same basin, or overlying the same gas-bearing sand rock, each having an open gas well or wells on his land, drilled without mal- ice or negligence, in a lawful manner, and for a lawful purpose. Two of these owners have been able to utilize the gas from their respective lands and find a market for it. One of them has not been so fortunate. He has gas from his well, but up to the time of the filing of this bill he has not been able to utilize or dispose of it, and his gas has gone to waste for that reason. His more fortunate neighbors come into a court of equity, and ask that he shall not be pennitted to let his gas run, be- cause, while this gas is his own, underlying his tract, and finding its way to the surface through his well, it has a tendency to drain the sand rock, and so to reduce ultimately the flow of gas from their wells. This would be equally true if the defendants were able to utilize their gas ; yet it is conceded that in that case their right to the gas from their well would be as incontestable as the right of the plaintiffs to use the gas from theirs, How is that right lost? By their inability to find a pur- chaser? If they can find a purchaser, or turn the gas to any useful pur- pose, their right to the gas that flows from their well is conceded. If they cannot, their right is denied. Their well must be shut in, while their successful neighbors drain the entire basin through their open wells, and receive pay for the gas. This is a proposition to limit the power of the owner over his own by the use he is able to make of it. If he can sell his gas or his oil, or turn it to some practical purpose, his power over it as owner is unabridged. If he cannot find a purchas- er, or a practical purpose to which to apply his yield of gas or oil, then his power as owner is gone. This would be an adaptation to actual business of the spiritual truth that "to him that hath shall be given; but from him that hath not shall be taken away, even that which he seemeth to have." * *• * Ch. 6) UNPERGROUND WATERS 139 An owner of land may have a deposit of coal under some portion of it so small in extent, or with such an inclination, as to make it impossi- ble for him to mine through his own tract without a greater cost to him than the value of the mined coal when brought to the surface. His neighbor may have an open mine that reaches it, and through which it could be brought at a fair profit. These circumstances do not affect the title of the owner of the coal, or confer any right on the adjoining mine owner ; but it is said that the oil and gas are unlike the solid minerals, since they may move through the interstitial spaces or crevices in the sand rocks in search of an opening through vvhich they may es- cape from the pressure to which they are subject. This is prob- ably true. It is one of the contingencies to which this species of property is subject. But the owner of the surface is an owner downward to the center, until the underlying strata have been sever- ed from the surface by sale. What is found within the boundaries of his tract belongs to him according to its nature. The air and the wa- ter he may use. The coal and iron or other solid mineral he may mine and carry away. The oil and gas he may bring to the surface and sell in like manner, to be carried away and consumed. His dominion is, upon general principles, as absolute over the fluid as the solid miner- als. It is exercised in the same manner, and with the same results. He cannot estimate the quantity in place of gas or oil, as he might of the solid minerals. He cannot prevent its movement away from him, towards an outlet on some other person's land, which may be more or less rapid, depending on the dip of the rock or the coarseness of the sand composing it ; but so long as he can reach it and bring it to the surface ij is his absolutely, to sell, to use, to give away, or to squander, as in the case of his other property. In the disposition he may make oTit he is subject to two limitations : he must not disregard his obliga- tions to the public, he must not disregard his neighbor's rights. If he uses his product in such a manner as to violate any rule of public pol- icy or any positive provision of the written law, he brings himself with- in the reach of the courts. If the use he makes of his own, or its waste, is injurious to the property or the health of others, such use or waste may be restrained, or damages recovered therefor ; but, subject to these limitations, his power as an owner is absolute, until the legislature shall, in the interest of the public as consumers, restrict and regulate it by statute. The decree of the court below is reversed, and the injunction is dis- solved.^^ 13 "The acts of 1891 and 1893 are an express recognition by the legislature of tbe qualified owuersliip of the conunon owners in the gas in the common reservoir, and any act therein forbidden may be, according to the circum- stances, the subject of a suit at law or a proceeding in equity by the person injured, as well as the foundation of a public prosecution. Independently, however, of any statute, for the reason already stated, the common owners of the gas in the common reservoir, separately or together, have the right to enjoin any and all acts of another owner which will materially injure, or. liO EIGHTS INCIDENTAL TO POSSESSION (Part 1 CHAPTER VII RIGHTS OF REVERSIONERS BAXTER V. TAYLOR. (Court of King's Bench, 1832. 4 Barn. & Adol. 72.) * * * At the trial before Parke, J., at the last assizes for the county of York, it appeared that the plaintiff was seised in fee of the closes mentioned in the declaration, which he had demised to tenants ; that the defendant had with his horses and cart entered upon the close called Stoney Butts Lane ; and that after notice had been given him by the plaintiff to discontinue so doing, he claimed to do so in exercise of a right of way. The learned Judge was of opinion, that although that might be good ground for an action of trespass by the occupier of the plaintiff's farm, it was not evidence of any injury to the reversionary estate, and therefore that the action was not maintainable; and he non- suited the plaintiff, but reserved liberty to him to move to enter a ver- dict. * * * Taunton, J.^ I think there should be no rule in this case. Young v. Spencer, 10 B. & C. 145, is not in point. That was an action on the case in the nature of waste by a lessor against his own lessee. Here the action is by a reversioner against a mere stranger, and_aLvery dif- ferent rule is applicable to an action on the case in the nature^f waste brought by a landlord against his tenant, and to an action brought for an injury to the reversion against a stranger. Jackson v. Pesked, 1 M. & S. 234, shews, that if a plaintiff declare as reversioner, for an injury done to his reversion, the declaration must allege it to have been done to the damage of his reversion, or must state an injury of such per- manent nature as to be necessarily prejudicial thereto, and the want of such an allegation is cause for arresting the judgment. If such an al- legation must be inserted in a count, it is material, and must be proved. Here the evidence was, that the defendant went with carts over the close in question, and a temporary impression was made on the soil by the whicti will involve the destruction of, the property in the common fund, or supply of gas." Manufacturers' Gas & Oil Co. v. Indiana Natural Gas & Oil Co., 155 Ind. 474, 57 N. E. 912, 50 L. R. A. 768 (1900). A. and B., owners of oil lands, each had a pump ; B.'s being more power- ful. A. filed a bill for an injunction against B., alleging that by the use of B.'s pump the oil was being drawn away from the strata of A.'s land, to his great damage. Held, injunction denied. Ilo Oil Co. v. Indiana Natu- ral Gas & Oil Co., 174 Ind. 635, 92 N. E. 1, 30 L. R. A. (N. S.) 1057 (1910). See Kelley v. Ohio Oil Co., 57 Ohio St. 317, 49 N. E. 399, 39 L. R. A. 705, 03 Am. St. Rep. 721 (1897). 1 The statement of facts is abridged and the opinions of Patterson and Parke, JJ., are omitted. Ch. T) RIGHTS OF REVERSIONERS 141 horses and wheels ; that damage was not of a permanent but of a tran- sient nature ; it was not therefore necessarily an injury to the plaintiff's reversionary interest. Then it is said that the act being accompanied with a claim of right, will be evidence of a right as against the plain- tiff, in case of dispute hereafter. But acts of that sort could not oper- ate as evidence of right against the plaintiff, so long as the land was demised to tenants, because, during that time he had no present rem- edy by which he could obtain redress for such an act. He could not maintain an action of trespass in his own name, beca use he was, not in ^possession o f the l and, nor an action on the case for jn jury to the re- version, because in point of fact there was no such permanent injury as would Be necessarily prejudicial to it; as therefore, he had no rem- edy by law for the wrongful acts done by the defendant, the acts done by him or any other stranger would be no other evidence of right as against the plaintiff, so long as the land was in possession of a lessee. In Wood V. Veal, 5 B. & A. 454, it was held, that there could not be a dedication of a way to the public by a tenant for ninety-nine years, without consent of the owner of the fee, and that permission by such tenant would not bind the landlord after the term expired. I think therefore that the plaintiff cannot maintctin the present action; and there is not doubt sufficient to induce me to think that there ought to be a rule nisi for a new trial. SIMPSON V. SAVAGE. (Court of Common Pleas, 1856. 1 C. B. [N. S.] 347.) The plaintiff' was the owner of a plot of ground in King's Lynn, in the county of Norfolk, upon which he built several houses in 1850, which were let to tenants at rents varying from £40 to i44 per annum. The defendant is an agricultural implement maker occupying premises consisting of workshops with a forge and chimney and yard closely ad- joining the back yards of the plaintiff's houses. The workshops, forge, and chimney were erected (not by the defendant) in 1851, and were a few feet only from the back windows of the plaintiff's houses. The nuisance complained of consisted in the emission of smoke from the forge chimney, to such an extent that gre^t quantities of soot entered the windows in the rear of the plaintiff's houses, dirtying and spoiling the furniture in the rooms, and of noises from the hammering, and offensive smells from the burning of old wood in the yard. It was proved, on the part of the plaintiff, that, in consequence of the nui- sance, which was of a serious character, some of the plaintiff's tenants had given him notice to quit (though it did not appear that any of them had actually quitted) ; and that, in consequence of the nuisance, the plaintiff's houses would not realize as much rent as they would otherwise have done. 142 RIGHTS INCIDENTAL TO POSSESSION (Part 1 CrEsswell, J.^ This was an action for an injury to the plaintiff's reversion by erecting a manufactory on land adjoining the plaintiff's houses, and causing smoke to issue from a chimney, and making loud noises. The plaintiff also complained of a nuisance arising from the lighting of wood fires in the yard adjoining the factory. The cause was tried before Lord Campbell, at the last assizes for Norfolk, when his lordship ruled that the nuisances merely of a tem- porary nature, such as the wood fires and the noises, would not sup- port the action : but, with reference to the smoke issuing from the foun- dry chimney, he thought the case distinguishable from Mumford v. The Oxford, Worcester, and Wolverhampton Railway Company, 1 Hurlst. & Norm. 34, and that there was evidence to go to the jury to prove injury to the reversion : but he reserved leave to the defendant to move to enter a nonsuit, if the court should be of opinion that there was no injury to the reversion. A rule nisi having been obtained accordingly, cause was shown in the course of the last term, before my Brothers Williams and Crowder and myself. The only point reserved for our consideration, was, whether there was evidence for the jury of any injury to the reversion in the prem- ises of which the plaintiff was owner, but not the occupier, they being let to tenants. * * * On the argument, it was insisted that the injury done by the defend- ant need not be of a permanent nature, and that it was sufficient if prov- ed to be of such a description as would cause the reversion in the prem- ises to sell for a smaller sum if brought into the market. After considering the authorities, we are of opinion, that, since, in order to give a reversioner an action of this kind, there must be some injury done to the inheritance, the necessity is involved of the injury being of a permanent character. The earliest instances of such an action are, cutting trees, subverting the soil, and erecting a dam across a stream so as to cause it to flow over the plaintiff's land. In the two former cases, the thing done was not removable or remediable during the term : in the third, it was ; but, being of a permanent character, it was to be assumed that it would re- main, and therefore was treated as an injury to the inheritance. The decision in Jessel v. Gifford, 4 Burr. 2141, falls within the same principle. A window was obstructed; the obstruction was of a per- manent character, and would remain, unless something was done to remedy the evil. Tucker v. Newman, 11 Ad. & E. 40 (E. C. L. R. vol. 39), 3 P. & D. 14, belongs to the same class. Now, the building erected in this case did not injure the plaintiff's mheritance : but it is said that the use made of it did. The real sub- ject-matter of complaint, therefore, is, not the erection of the building, but causing smoke to issue from it. If the fires had not been made by '* Part of the opinion is omitted. Ch. 7) EIGHTS OF REVERSIONERS 143 the defendant, he could not have been sued for an injury either to the possession or the inheritance : Rich v. Basterfield, 4 C. B. 783 (E. C. L. R. vol. 56). Now, making tlie fires and causing smoke to issue, was not an act of a permanent nature. It is very like the case of Bax- ter V. Taylor, 4 B. & Ad. 12 (E. C. L. R. vol. 24), where a person trespassed, asserting a right of way; and not distinguishable from Mum ford v. The Oxford, Worcester, and Wolverhampton Railway Company, where the action was brought against the defendants as oc- cupiers of certain sheds, for making noises therein, which caused the plaintiff's tenants to give notice to quit. The real complaint by the reversioner is, that he fears the defendant, or some other occupier of the adjoining premises, will continue to make fires and cause smoke to issue from the chimney : and, if the reversion would sell for less, that is not on account of anything that has been done, but of the apprehension that something will be done at a future time. According to the authorities, we feel bound to say that this is not such an injury as will enable the reversioner to maintain an action. The rule for entering a nonsuit must, therefore, be made absolute. Rule absolute.3 ^ ;^^ B.^f 6^- GREEN V. SUN CO. (Superior Court of Pennsylvania, 1907. 32 Pa. Super. Ct. 521.) Trespass to recover damages for injuries to real estate resulting from fumes from an oil refinery. Henderson, J.* One of the plaintiff's complaints was that the defendant wrongfully and injuriously constructed its works and neg- ligently maintained and carried on its business, as a result of which the plaintiff's buildings were damaged. No evidence of negligence was in- troduced, however, the plaintiff relying on testimony tending to estab- lish the existence of a nuisance in the business which the defendant conducted. There is also an averment that the atmosphere was made unwholesome and injurious to the plaintiff's tenants. The latter charge, however, was eliminated from the case by the court, together with all the evidence relating thereto, the issue being confined to the inquiry whether the defendant maintained a nuisance and whether that nui- sance was injurious to the buildings occupied by the plaintiff's ten- ants. * * * The plaintiff does not seek to recover damage for the injury to the tenants. His allegation was that there was a physical injury to the property. The damage was to the freehold and not to the tenants' oc- cupancy. For such an injury the landlord may maintain an action not- withstanding the occcupancy by a tenant. Devlin v. Snellenburg, 132 3 Ace: Mumford v. Oxford, etc., Ry. Co., 1 H. & N. 34 (1856); Mott v. Shoolbred, L. R. 20 Eq. Cas. 22 (1875). * The stateuaent of facts and part of ttie opinion are omitted. 144 RIGHTS lAXIDEXTAL TO POSSESSION (Part 1 Pa. 186, 18 Atl, 1119. There is no evidence that the tenants were hound to repair, and certainly no obhgation rested on them to make reparation of the injury alleged to have been caused by the defendant. Earle v. Arbogast, 180'Pa. 409, 36 Atl. 923. The plaintiff is none the less entitled to recover even if he has not actually made the repairs. The value of his property is reduced to the extent of the injury wheth- er he should determine to apply the amount of his damages to the im- provement of his property or keep the money in his pocket. If his property had been wholly destroyed by the unlawful and injurious act of the defendant he would be entitled to compensation whether he re- built or not. The declaration charged negligence, but it was not necessary that the plaintiff offer evidence in support of this averment. A nuisance is sufficiently charged and the question of negligence is not necessarily involved. Hauck v. Tidewater Pipe Line Co., 153 Pa. 366, 26 AH. 644, 20 L. R. A. 642, 34 Am. St. Rep. 710; Stokes v. Penna. R. R. Co., 214 Pa. 415, 63 Atl. 1028. * * * The assignments are all overruled and the judgment affirmed.^ 5 Ace: Shelf er v. City of London Electric Co., [1895] 1 Ch. 287. Plaintiff complained "that the defendant by means of certain erections and obstructions caused the water of a certain stream to run out of its natural course, into and upon land of plaintiff, and to overflow same, and thereby rotted, spoiled, damaged, washed away, and destroyed the grass and herbage of the plaintiff and also made the land boggy, miry and rotten, and greatly deteriorated in value: by means of which plaintiff has been injured in his reversionary estate of said lands." The court held this declaration to be good on demurrer and said: "If the plaintiff had only averred that the defendant had turned the wa- ter upon and overflowed his land, and thereby rotted, destroyed, and washed away the grass there being and growing, he might have proved on the trial such an extent of injury to his land and meadow grounds, as seriously af- fected his reversionary estate. It is no argument to say that the tenant, if the action had been brought by him, might have declared in the very lan- guage used in this declaration. This is certainly true. There are many injuries that may be done to lands, which altect, as well the landlord as the tenant, and for which the former may have an action on the case, and the latter an action of trespass ; and in which the wrongful acts may be, and sometimes must be, described in the same way. For instance, digging up the soil, cutting down fruit, or timber or ornamental trees ; or breaking or destroying the dwelling house ; and in short, whatever amounts to waste, is an injury to both, and may be described by both in the same way. There are other injuries that, from their very nature, can only be prejudicial to the possession ; -such as cutting or trampling down the grass or grain grow- ing ; or gathering and carrying away fruit from the orchard ; and there- fore, if the landlord were to declare for such injury, it would be had on demurrer, even though he should aver that it was done to the prejudice of his reversion, since such averment would be inconsistent with, and in fact contradictory to his own statement of the trespass." Potts v. Clarke, 20 iN, J. Law, 536, 543 (1845). Injuries to the reversion were found in Tucker v. Newman, 11 Adol. & El. 40 (1839) ; Kankakee & S. R. Co. v. Horan, 131 111. 288, 23 N. E. 621 (1890) ; Arneson v. Spawn, 2 S. D. 269, 49 N. W. 1066, 39 Am. St. Rep. 783 (1S91). The reversioner was denied relief in Cooper v. Grabtree, 20 Ch. Div. 589 (1882). A. was the owner of a mill and mill privilege on a certain river. B. had constructed a dam above A.'s mill for the purpose of raising a pond as a Ch. 7) EIGHTS OF REVERSIONERS 145 PARK V. WHITE. (Chancery Division of the High Court of Ontario, 1S93. 23 Ont. 611.) This was an appeal by the defendants from the judgment at the trial, in an action brought by William Park against Thomas L. White and Sarah White, his wife, to restrain a nuisance occasioned by smells arising from priv y pits located near the walls of the plaintiff's house. •It appeared that about seven years ago, when the locality was not so thickly settled, the defendants built a row of cottages on the rear of their lot, and common closets were constructed for the use of the oc- cupants. Subsequently the plaintiff became the owner of the lot im- mediately adjoining, and constructed a row of cottages with the rear wall 18 inches from the privy pits. The plaintiff complained that the pits were a nuisance to the occupants of the cottages belonging to him; and that some of his tenants had left, and some were threatening to leave on account of the bad smells arising therefrom. * * * Boyd, C.** The plaintiff's pleadings are grounded on his ownership of jand_jwhich_js injuriously affected by disagreeable and noxious _odQiu::a arising from privy pits on the land of the defendant. He does not sue as reversioner, but alleges that his tenants have from time to time vacated his houses, and that by the frequent remarks of tenants, his houses are getting an ill repute, and that he fears he will be unable to rent them, all on account of. the filthy condition and foul smells of and from the said privy pits, and he further alleges that the tenants now in occupation threaten to leave if the said nuisance is not abated. The chief ground of contention was on the issue, nuisance or no nui- sance, and the plaintiff has succeeded. Questions were submitted and answered, and on the answers merely and only, the defendant now moves against the judgment directed to be entered for the plain- tiff * * * It is urged again that the plaintiff had no right of action. Some cases were cited tojhe effect that a reversioner pure and simple would have no right of action in respect of a mere temporary nuisance. The most Inotable case on this head is Jones v. Chappel, L. R. 20 Eq. 539. But storage reservoir for its waterworlvs. The water was talien from tliis dam by the conduits of B. vinder a claim of right and to such an extent as to damage the mill privilege. In an action of tort by A. against B. for so di- verting the water, held, although A.'s mill is in possession of a tenant, A. can recover for such constant withdrawals of water as an injury to his re- version. Lund v. City of New Bedford, 121 Mass. 286 (1876): Ace: Heil- ' bron v. Last Chance Water Ditch Co., 75 Cal. 117, 17 Pac. 65 (1888). Where there is a damage to the reversion, as by cutting down- trees, where the land is in the possession of a tenant at will, the reversioner may maintain trespass quare clausum f regit. Starr v. Jackson, 11 Mass. Sl'J (1814). 6 The statement of facts is abridged and part of the opinion of Boyd, C, and the opinion of Meredith, J., are omitted. BiG.RlGHTS — 10 146 RIGHTS INCIDENTAL TO POSSESSION (Part 1 the neat point in that was, the plaintiffs in an action to restrain a nui- sance of a temporary nature must be the occupiers, and not merely the reversioners of the property affected by the nuisance. Had a tenant been added as coplaintiff, the action would have succeeded. This course was taken during the course of the trial in Broder v. Saillard, 2 Ch. D. at page 698, and the trial judge in this case held in suspense a simi- lar application, which he did not deem necessary to act upon. But as a matter of precaution the permission to amend should now be given as the whole matter in controversy was as to the existence of a nui- sance. I should deem the nuisance here to be not of a temporary character, but of such a recurring nature as to be practically continuous and per- manent. Draper v. Sperring, 4 L. T. N. S. 365. If so, the reversion is prejudicially affected because the injury was likely to last in the ordinary course of things down to the time when the reversion would come into possession. In fact, it was said that some of the short ten- ancies had determined ; and as to the damages given, it was in respect of a vacant house. The frame of action without amendment seems justified by such cas- es as Wilson v. Townsend, 1 Dr. & Sm. 324; Tucker v. Newman, 11 A. & E. 40; Swain v. The Great Northern R. W. Co., 4 DeG. J. & S. at p. 215; Smith v. Humbert, 2 Kerr (New Brunswick) 602; and Cleeve v. Mahany, 9 W. R. 882. This last case is similar to the pres- ent, and Kindersley, V. C., said "the plaintiff had not suffered per- sonally, except that he said he could not let his house ; and if that loss ensued by reason of the continuance of the operation (of brickburning) then he might be entitled to the injunction." Page 883. The motion should be dismissed with costs. '^ 7 "It appeared in evidence, as far as I could gather, that at the time when the bill was filed, but certainly shortly before, the two houses were let to weekly tenants, and they are both still so let and fully occupied. Now, as I understand the doctrine in Simpson v. Savage, 1 C. B. (N. S.) 347 (1856), the landlord in such a case cannot bring an action. The injury is a tem- porary nuisance, because the saws might be stopped and the steam engine might cease working at any moment. It is only an injury to the occupier, and the landlord cannot bring an action, because before his estate comes into possession the nuisance may have ceased, or the person committing it may choose to make it cease the moment the estate comes into possession. "Another ground of action on the part, of the landlord might be that the existence of a nuisance of a temporary character would render it more diffi- cult for him to let to a future tenant or to sell. But that is said not to be a good ground of action, because the theoretical diminution of the value of the property cannot be taken into account, inasmuch as the purchaser or the new occupier would have a right to stop the nuisance, so that he ought not to give less on that account than he otherwise would. It appears to me I am not able to overrule Simpson v. Savage, and that the principles up- on which it was decided apply as much to weekly tenancies as to any other tenancies. "But then it is said that, if that is so, no relief at all can be obtained, and Mr. Jason Smith said that there was some doctrine of this court by which a weekly tenant could not have an injunction. So far as I am aware, that aas never been decided, but I should not find the slightest difficulty myself, Ch. 7) RIGHTS OF REVERSIONERS 147 MILLER V. EDISON ELECTRIC ILLUMINATING CO. (Court of Appeals of New York, 1906. 184 N. Y. 17, 76 N, E. 734.) The plaintiffs, by the institution of this action, have sought to re- strain the defendant from' continuing a nuisance, created through the maintenance and operation of a plant for the supply of electric light and power, whereby their property in neighboring dwelling houses has been injuriously affected. They, further, demanded judgment for damages already sustained. The property was in the occupancy of a tenant, holding under a lease by the plaintiffs. The trial court for- mulated its decision in findings of facts and conclusions of law, and the judgment recovered by the plaintiffs thereupon was afifirmed by the Appellate Division. The facts found, so far as they need to be mentioned, show that the plaintiffs became the owners of the premises in question some years prior to 1888; in which year the defendant constructed, upon premises adjacent to those of the plaintiffs, a power house, equipped with machinery and appliances necessary for the pur- pose of generating electricity to be supplied to the public for lighting, or for power. In 1890, the plaintiffs leased their property for a term of five years; receiving a rental of $15,000 a year and certain privi- leges. Shortly prior to the expiration of the term of this lease, the premises were again leased to the same tenant for another term of five years from May 1, 1895, at the rental of $12,000 a year, with the reservation of the same privileges as in the previous lease. In 1900, the premises were, again, leased at a less rental, with the reservation of some additional privileges, and with a right to the lessors to share in the profits of the hotel business conducted by the lessee. After the construction of its power house, the defendant's operations caused "soot, cinders, ashes, steam, or water condensing from steam," to be discharged upon plaintiffs' premises. Noises, jars, and vibrations resulted from the operation of the machinery, which impaired the peaceful enjoyment of the premises and affected their rental value. The court, further, found that, as the machinery was used at the time of the trial, no injury was being worked to the plaintiffs' property and "that it was improbable that it would be so used as to work injury in the future," but that, as the plaintiffs wert entitled to the equitable relief prayed for when the action was commenced, the court would re- tain the case and award to them their damages. Judgment was di- rected for the plaintiffs for such damages, in the amount of $4,500. The court decided that the plaintiffs failed to establish that they suffer- ed any damage after the year 1900 and, though the rental for the premises, reserved to them in the new lease of that year, was less than if an occupier, being a weekly tenant, and his landlord were to join in a suit to restraii;i a nuisance, in granting them an injunction." Jessel, M. R., in Jones v. Chappel, I.. R. 20 Eq. Cas. 539, 543 (1875). See Bell V. Midland Ry. Co., 10 C. B. N. S. 287 (18G1). 148 RIGHTS INCIDENTAL TO POSSESSION (Part 1 that for the prior term, the difference could be accounted for otherwise than by charging it to the defendant's acts. This was explained in the changed character of the locality, and in the fact that the lease provided, not only that the plaintiffs should have a share of the profits, but that they should enjoy greater privileges than formerly. These findings of the trial court have sufficient support in the evidence. CuLLEN, C. J", (after stating the facts). I adopt Judge Gray's statement of facts, and I agree with him in the position that this action was properly brought in equity, that it was triable by the court, and that the defendant was not entitled to a jury trial as of right. I am unable, however, to concur in the view that the plaintiffs were properly award- ed damages for diminution in the rental value of the property. The plaintiffs were in possession of the premises during no part of the period for which damages have been recovered, but the same were in the occupation of their tenants under a lease for a term of years. One of these leases expired during the existence of the nuisance, and, as the trial court has found, by reason of the nuisance the plaintiffs were compelled -to rent the premises for a new term at a reduced rent. It is for this loss of rent that damages have been awarded. The ques- tion as to which party, the landlord or his tenant, is entitled to recover for depreciation of the rental value by the existence of a nuisance has involved the courts in much perplexity. In the elevated railroad cases it has been settled that, in the case of a lease made after the erection and operation of the railroad, the landlord, not the tenant, is entitled to recover for such depreciation. Kernochan v. N. Y. Elevated R. R. Co., 128 N. Y. 559, 29 N. E. 65. In the Kernochan Case there is an elaborate discussion of the ques- tion by Chief Judge Andrews. A careful analysis of the opinion of the learned judge will show that the decision proceeded on the ground that the elevated road was a permanent structure and intended to be so maintained ; that it was constructed in the street under legislative authority ; and that as ample authority was granted to condemn any property rights on which it might trespass, the lessor had "no absolute remedy to compel the removal of the structure, since the right of con- demnation can at any time be exercised by the defendants." The learn- ed judge said : "It is also a necessary deduction from the circum- stances attending the making of ordinary leases of improved property, executed after the construction of the elevated railroad, that the right to recover damages is vested exclusively in the lessor." To the doctrine of that case the court has steadily adhered. When, however, the doctrine was invoked to defeat the right of a tenant to recover dam- ages against the present defendant for the very same acts which con- stitute a nuisance in the case now before us, it was held that the rule in the elevated railroad cases did not apply. In Bly v. Edison Electric 111. Co., a tenant, hiring after the nuisance was created, recovered the depreciation in the rental value of the premises. The Appellate Division, citing the authority of the Kernochan Case, Ch. 7) RIGHTS OF REVERSIONERS 149 reduced the award to a nominal sum, holding that the tenant was not entitled to recover diminution in rental value. 54 App. Div. 427, 66 N. Y. Supp. 72)7 . On appeal to this court the judgment of the Appellate Division was reversed, though a new trial was ordered because the trial court had awarded damages for a period anterior to 6 years before the commencement of the action. 172 N. Y, 1, 64 N. E. 745, 58 L. R. A. 500. This court said, per Werner, J. : "We think the Kernochan Case has no application to a case like the one at bar, and this without reference to the fact that it appears affirmatively that the rental paid by the plaintiff was the same during the existence of the nuisance as it was before. The elevated railroad cases, to which class the Kernochan Case belongs, are sui generis" They are governed by principles which apply to no other class of cases." The elaborate discussion of the question by Judge Werner leaves nothing to be now added. It is sufficient to say that that case expressly held that a ten- ant under a lease made during the existence of the nuisance was en- titled to recover the depreciation of the value of the occupation of the premises. It is said to be the settled rule of law "that where the wrongful act affects different interests in the same property, the owner of each interest may have his separate action against the wrongdoer. Landlord and tenant have separate assets, and each, if injured therein, may have redress, the one for the injury to the reversion, the other for the injury inflicted in diminishing his enjoyment "^of the premises." This statement is doubtless correct, but under this rule "to entitle a reversioner to maintain an action, the injury must be necessarily of a permanent character, and that a presumed intention to continue the nuisance is not sufficient, even where there is evidence that the prem- ises would sell for less if the nuisance were continued." Mott v. Shool- bred, opinion of Sir George Jessel, M. R., 20 Eq. Cases, 22. See, also, cases cited in Judge Werner's opinioti. Here the only injury found by the trial court is to the enjoyment and occupation of the premises. That does not affect the reversioner. Had the trial court found that the operation of defendant's light plant cracked the walls or injured the structure, such damage would be of a permanent character and the reversioner entitled to recover. In the present case, however, not only is there no permanent injury to the plaintiffs' buildings, but the defendant's plant did not constitute the nuisance, but its operation, and such operation was not necessarily or inherently injurious because the trial court found that at the time of the trial its operation did not damage the plaintiffs. Judge Andrews said in the Kernochan Case: "We should be very reluctant to make a decision which would expose the defendants to a double action in cases like this," and I imagine that the reluctance still continues. Nevertheless if the judgment be- fore us is affirmed the defendant will be subjected to a double re- covery against it, for under the Bly Case the tenant is also entitled to recover, if in fact he has not already recovered, the diminution in the 150 RIGHTS INCIDENTAL TO POSSESSION (Part 1 rental value during the same period for which the plaintiffs are award- ed damages for such diminution. It is not a case like that suggested where the same act has caused injury to different persons and each recovers for the injury to himself; but here two parties will recover for exactly the same injury. I may suggest this further distinction between the elevated railroad cases and that of a casual temporary nuisance. In the Kernochan Case the defendant upon satisfactorily compensating the landlord could continue the operation of its road despite the complaint of his tenant. Here, no release from, or settlement with, the landlord could have prevented the tenant from restraining the operation of the defendant's plant. Moreover, the lease by the plaintiffs was for a term of years. The rights of the tenant and landlord then became fixed, and the dam- age to the plaintiffs accrued at once. It was the diminished rent during the demised term. Had the defendant ceased the operation of its plant the day after the lease, the plaintiffs' injury would have been as great as if it had maintained the operation during the whole demised term. Yet I apprehend no one will contend that the defendant would have been liable for the whole period. But if we should assume that such a contention would be well founded the result would be that the day after the lease the operation of the plant might be stopped at the suit of the tenant, and yet the defendant remain liable to the landlord for the loss of rent for the whole term of the lease. In other words, the defendant's liability would depend not on the injury done by its trespass or nuisance, but on the manner in which the owner might deal with his property. The decision in the Bly Case did not pass this court without discussion. On the contrary, there was a vigorous dissent by Judge Haight (concurred in by two other members of the court), who contended that the loss in rental value went to the landlord, not to the tenant. The force of this position was appreciated by the ma- jority of the court which, when it decided that the tenant could re- cover for that loss, substantially decided that the landlord could not. I think the judgment should be reversed, and a new trial granted, costs to abide event. Gray, J. (dissenting),^ In my opinion, the right of the plaintiffs to bring and maintain this action is clear, and the defendant's appeal should not be sustained. The plaintiffs were shown to have been in- jured by the defendant's acts in the depreciation of the value of the property, as shown by the diminished amount of the rent for the premises reserved by the lease of 1895. For the prior term of five years from 1890, they had been receiving $15,000 a year as rent; while, for the succeeding term of five years from 1895, they were to receive only $12,000 a year. That represented a total loss to the owner of $15,000 for the new term and furnished a basis of injury, upon which this action was commenced in 1898. 8 Part of the disseutiug opinion of Gray, J., is omitted. Ch. 7) RIGHTS OF REVERSIONERS 151 I consider it to be a settled rule of law that, where the wrongful act affects different interests in the same property, the owner of each interest may have his separate action against the wrongdoer. Lessor and tenant have separate estates and each, if injured therein, may have redress; the one for the injury to the reversion, the other for the mjury inflicted in diminishing his enjoyment of the premises. This rule and its reason have been, heretofore, discussed with such care, that I deem it necessary, only, to refer to the recent cases of Kernochan V. N. Y. Elevated R. R. Co., 128 N. Y. 559, 29 N. E. 65 ; Hine v. Same, 128 N. Y. 571, 29 N. E. 69; Kernochan v. Manhattan Ry. Co., 161 N. Y. 345, 59 N. E. 906; and Ely v. Edison Electric 111. Co., 172 N. Y. 1, 64 N. E. 745, 58 L. R. A. 500. If it be a nuisance, which is the subject of complaint as injuring adjacent property interests, the question is, when the owner not in possession sues, whether it has di- minished the rental value of his property ; the difference in that re- spect being the measure of his right to damages. When the tenant sues, his right to recover rests upon the ground that his occupancy is dis- turbed and the full enjoyment of his possession of the premises is prevented by the common nuisance. Francis v. Schoellkopf, 53 N. Y. 152; Hine v. N. Y. Elev. R. R. Co., supra; Ely v. Edison Electric 111. Co., supra. In the Ely Case the question discussed was that of the tenant's right to maintain an action to abate a nuisance and for dam- ages, when in under a lease made during the existence of the nuisance. It was held, upon a careful review of the authorities, in effect that as there was no justification for the maintenance of that which was a nuisance and, hence, an unreasonable and a wrongful use by the de- fendant of its property, the tenant of the property injuriously affected was not deprived of the right to bring an action by reason of having acquired the lease thereof, during the existence of the nuisance, at a diminished rental. The right to have compensation for injuries actually sustained and to have the nuisance abated could not thereby be affected. It was upon that proposition that the judges of this court divided in opinion. As to the right of the owner of property, though not in possession, to maintain an action to restrain the continu- ance of a nuisance, w^hich threatens injury to his reversionary rights, and to recover for any damage which he may be able to show that he has already sustained in that respect, I think there should be no doubt. It is argued that, as the nuisance arises from the method of defend- ant's operation of the power house, presumptively, it is but casual and temporary. That is to say, though the defendant's building and me- chanical plant were permanent structures, the operation of the ma- chinery in a way intolerable and injurious to others, as complained of, would not be presumed to continue. Assuming the correctness of the proposition, how does it affect the principle upon which the legal right of the plaintiffs was founded? They, certainly, had the right to pro- tect their reversionary interest against injury. A casual, or temporary, trespass, or nuisance, if the latter is of a casual nature, it is true, usual- 152 RIGHTS INCIDENTAL TO POSSESSION (Part 1 ly affects the possession of the property, and therefore gives a right of action to the lessee. But for a wrongful act, which diminishes the rental value of the property, and which, from the circumstances, may, fairly, be regarded as likely to continue, whether it be in the nature of a trespass, or of a nuisance, an action will lie by a reversioner to redress the wrong ; although the lessee may, equally, have his action to redress the wrong inflicted upon his right to peaceable and com- fortable possession. See Kernochan Case, 128 N. Y. 559, 566, 29 N. E. 65, and the English cases cited in the opinion, as well as the Bly Case, supra. In this case the rental value of the plaintiffs' property, when the second lease was made in 1895, was diminished to the extent of $3,000 a year, under conditions of lease similar to those of the preceding, and, according to the findings of the trial court, the damage to the plain- tiffs from defendant's operations, only, ceased to be inflicted in 1900. Thus, the defendant's use of its power house, in a way injurious to others, had continued for many years after its construction. It had so seriously affected the rental value of the plaintiff's property as to compel them to accept a reduced rental in 1895 for a further term and when this action was commenced, in 1898, the threat in the situation was the same. However, technically, the nuisance may be termed casu- al, as caused by the methods of the defendant in operating its power house, it was a very real menace to the plaintiffs' interests as property owners. The case, in my judgment, came within the established rule which allows an action to a lessor, whose reversion is injuriously af- fected, to abate the nuisance, by restraining its continuance. To say that the nuisance was a casual or a temporary one is an answer no more satisfactory than it is complete, legally, to the statement of the owners that they had suffered injury in the past by its maintenance and would suft'er in the future unless it was restrained. * * * For these reasons, I advise the affirmance of the judgment. Judgment reversed, etc.* 9 See, in addition to the cases cited in opinions, Rust v. Victoria Dock Co., 36 Ch. D. 113 (1886) ; Central R. Co. v. English, 73 Ga. 366 (1884) ; Baker v. Sanderson, 3 Pick. (Mass.) 348 (1825) ; Sumner v. Tiletson, 7 Pick. (Mass.) 198 (1828) ; Eno v. Del Vecchio, 13 N. Y. Super. Ct. 17 (1856). The city of New York in 1885 placed a pumping station on land owned by it. In 1898 the plaintiff took a lease of a tract of land near by for a term of five years. He now sues the city for damages to his land caused by the action of the pumps in drawing water from the surface and subsurface of his premises. Held he has no cause of action. Sposato v. City of New York, 75 App. Div. 304, 78 N. Y. Supp. 168 (1902), affirmed 178 N, Y. 583, 70 N. E. 1109 (1904). Compare Halsey v. Lehigh Val. R. Co., 45 N, J. Law, 26 (1883). PART II RIGHTS IN THE LAND OF ANOTHER CHAPTER I • PROFITS MOUNTJOY'S CASE. (Common Pleas, 15S3. Co. Lit. 164b.) » The Lo rd Mountjoy, s eised of the mannor of Canford in fee, did by deed indented and inrolled bargaine and sell the same to Browne in fee , in which indenture this clause was contained. Provided alwayes, and the said Browne did covenant and grant to and with the said Lord Mountjoy, his heires and assignes, that the Lord Mountjoy, his heires and assignes, iBisl}t_4iS^9?'_9ISLini the lands (which were greate wasts) parcell of the said mannor, and to dig turfe also for the making of allome. And in this case tliree poynts were resolved by all the judges. First that this did amount to a grant of an interest and inheritance to the Lord Mountjoy, to digge, &c. Secondly, that notwithstanding this grant, Browne his heires and assignes might dig also, and like to the case of common sauns nomber.^ Thirdly, that tlie Lord Mountjoy might assigne his whole interest to one, two, or more; but then, if there be two or more, they could make no division of it, but work to- gether with one stock; neither could the Lord Mountjoy, &c. assigne his interest in any part of the wast to one or more, for that might worke a prejudice and a surcharge to the tenant of the land; and therefore if such an incertaine inheritance descendeth to two copar- ceners, it cannot be divided betweene them.^ ] S. c. 1 And. 307 ; Godbolt, 17. 2 Ace: Chatham v. Williaiiison, 4 East, 469 (1S04). 3 Ace: Leyman v. Abeel, 16 Johns. (N. Y.) 30 (1819). a53) 154 RIGHTS IN THE LAND OF ANOTHER (Part 2 DOWGLASS V. KENDAL. (Court of King's Bench, 1609. Cro. Jac. 256.) Trespass, for taking and" carrying away thirty loads of thorns of the plaintiff's, by him cut down, and lying upon his land at Chipping- warden, in a place called the Common Waste. The defendant justifies, because the place where, &c. is an acre, and that he is seised in fee of a messuage and three acres of land in Chip- pingwarden aforesaid; and that he and all whose estate it was, &c. have used from time to time to cut down and takes omnes spinas cres- centes upon the said place, to expend in the said house, or about the said lands, as pertaining to the said house and lands; and so justi- fies, &c. The plaintiff shews, that Sir Richard Saltington was seised in fee of the manor of Chippingwarden, whereof the place where, &c. is parcel, and granted license to him to take the thorns ; whereupon he cut them down, and the defendant afterwards took them. Upon this plea it was demurred ; and, after argument at the Bar, adjudged for the defendant: for, as this case is, the lord may not cut down any thorns, nor license any other to cut them down ; for the de- fendant prescribeth to have all the thorns growing upon that place, and this prescription excludes the lord to take any thorns there : but if he had claimed common of estovers only, then if the lord has first cut down the thorns, the commoner might not take them ; and if he had cut down all the thorns, the commoner might have had an assise ; but here he prescribes to have all, which is admitted by the replication, and is well enough ; and so hath been resolved in one Kentick's Case, Cro. Jac. 208; that one may prescribe to have the sole pasturage in such a place, from such a time to such a time, against th€ owner of the soil, who shall not meddle therewith during that time. It was also held, al- though he doth not prescribe that it was an ancient house to which, &c. yet it is good enough; and so is the usual prescription for common, and shall be so intended. Wherefore it was adjudged for the defendant.* 4 "It has been long since settled, that a man may prescribe to have the sole and several pasture, vesture, or herbage for a limited time in every year, in exclusion of the owner of the soil. Fitz. Prescription, 51 Co. Litt. 122. a. 2 Roll. Abr. 267 (L), pi. 6. Winch's Rep. 6. Sir George Spanke's case. S. C. Hutt. 45. Pitt v. Chick. But it was for some time a question whether a prescription for a sole and several pasture, &c. in exclusion of the owner of the soil for the whole year was good. In Vaugh. 251. North v. Coe. S. C. 1 Lev. 253. the court of Common Pleas was equally divided upon it; but in the principal case, the court of K. B. inclined to think the pre- scription might be supported; and in Hopkins v. Robins, 2 Saund. 324. S. C. 2 Lev. 2. Pollexf. 13. 1 Mod. 74. it was adjudged that the prescription wns good ; fo^r it does not exclude the lord from all the profits of the land^ as he is entitled to the mines, trees, and tjuarries: and tlie law has been so con- sidered ever since." Potter v. North, 1 Wm. Sauiid. 353, note 2 (1669). The latter part of the note by Serjeant Williams contains a discussion of the right of self-redress by the commoner. See, also, Hope v. Osborn, L1913J 2 Ch. 349. Ch. 1) PROFITS 155 TOTTEL V. HOWELIv. (Court of Common Pleas, 1595. Noy, 54.) It was held by the Court, that herbagium for years, cannot be grant- ed without deed. Note 17 K. 4, 6.^ GRUBB V. BAYARD. (Circuit Court of the United States. E. D. Pennsylvania, 1851. 2 Wall. Jr. 81, Fed. Cas. No. 5849.) David Foree, by deed of indenture made in 1769, reciting his title to 302 acres of land, grants, bargains and sells 20 acres of it which are described, to William Bennet ; leaving 282 acres still his own proper- ty, in regard to which the indenture contained the the following cove- nant: "And the aforesaid David, for himself, his heirs, executors and administrators, doth covenant, promise, grant and agree to and with the aforesaid William, his heirs and assigns, that he, the said William, his heirs and assigns, shall and may, from time to time, and all time hereafter, dig, take and carry away all iron ore to be found within the bounds of the said David's tract of land containing 282 acres, provided he, the said William, his heirs and assigns, pay unto the said David, his heirs or assigns, the sum of six pence, Pennsylvania currency, per ton, for every ton taken from the premises of 282 acres aforesaid." The deed was a technically and well drawn instrument containing all the formal or orderly parts of a deed enumerated by Lord Coke (Co. Litt. 6a) ; and the covenant above quoted followed after the habendum and tenendum. Berinet being dead, the plaintiff purchased the inter- ests of ninety-four of ninety-nine of his representatives, and the de- fendant having become owner of the 282 acres reserved, and having taken away many thousand tons of iron ore, this action on the case was brought by the plaintiff against him. It was admitted that the ore taken by the defendant was found, min- ed and dug by himself or his servants : and it appeared that neither Bennet nor his heirs, nor the plaintiff had ever had actual possession, use, occupation or enjoyment of the right granted by the deed of 1769, nor been in any way hindered in the enjoyment of it otherwise than by the defendant's tal■' The Case of Lord Mountjoy is conclusive on this point also. New trial refused.'' 6 Kane, District Judge, delivered a concurring opinion. Part of tlie opin- ion of May 13, 1S51, and all of the opinion of September 8, 1851, of Grier, Circuit Justice, are omitted. A. grants to B. "'his partners, fellow adventurers, executors, administrators, and assigns, free liberty, license, power, and authority to dig, work, mine, and search for .tin, tin ore, etc., and all other metals and minerals whatsoever throughout all that part of the land of the said A. commonly called Crinnis, * * * and the tin, tin ore, etc., and other metals and minerals there found to raise and bring to grass. * * * And dispose of to their own use at their pleasure. * * * ipo have, hold, use, exercise, and enjoy the said sev- eral liberties, licenses, etc., for the term of twenty-one years." B. covenanted to pay one-eighth share of all ore to A. and effectually to work the premises. Subsequently, within 21 years, C, under license from A., opened mines on other parts of the specified land, but not interfering with the mines opened by B. Held, B. cannot maintain ejectment against C. Doe v. Wood, 2 B. & Aid. 724 (1819). Ace: Harlow v. Lake Superior Iron Co., 36 Mich. 1U5 (1877). 158 RIGHTS IN THE LAND OF ANOTHER (Part 2 CALDWELL v. FULTON. (Supreme Court of Peunsylvania, 1S58. 31 Pa. 475, 72 Am. Dec. 760.) This was an action of trespass, for taking coals from the land of the plaintiff. He claimed the locus in quo, by devise from his father, James Caldwell. The defendants justified under George Greer, to whom James Caldwell made a deed, in his lifetime, for the coals.taken, and as the judgment to be entered in this case must depend on the con- struction of that deed, it is important to obtain, at the threshold, a clear and comprehensive view of its terms. The deed was dated on the 27th May, 1831 ; acknowledges a con- sideration of one thousand eight hundred dollars, is to George Greer, his heirs and assigns, for all the therein "described property, situate on the east side of the Youghiogheny river," and then describes by metes and bounds, two parcels of land, one of which contains six acres and forty-seven perches, the other ten acres and fifty perches. The grant of coal then follows, in these terms : "Also, the full right, titje,^ and privilege of digging and taking away stone coal, to^any extenj the said George Greer may think proper to do, or cause to be done, under any of the land now owned and occupied by the said James Caldwell ; pro- vided, nevertheless, the entrance thereto, and the discharge therefrom, be on the foregoing described premises." In the habendum the property conveyed is called two lots or parcels of land, and the "aforesaid right to the stone coal," and is so designated again in the covenant of war- ranty. Such was the original grant. On the 23d March, 1842, Greer and wife conveyed an undivided half of the premises to Butler Case, and the other half to John B. McCune. January 20th, 1844, Butler Case conveyed to William McCune. De- cember 5th, 1844. John B. McCune conveyed his moiety to Thompson Bell. By deeds, bearing date the 7th June and the 30th August, 1848, Bell and William McCune made partition between themselves of the sixteen acres, according to agreed lines, and of the coal 'lying back of said lots, under the Caldwell farm, in a manner corresponding with the partition of the lots. M-*^^'--- In August, 1852, William McCune leased to Fulton and the other /T defendants his several part, both of the lots and the coal ; and it was the entry upon the coal, under this lease, for which the suit was i«< brought. It does not appear, from the record, whether any opening had been made into the coal, on the part of the premises set off to McCune, but it is stated that the opening on Bell's portion of the ten acre piece has not been worked since Fulton commenced working the coal on McCune's part.'' * * * Strong, J. [after stating the substance of the deed]. The consid- eration mentioned is single for the entire subject conveyed by the deed. 7 This statement of fact is taken from the first opinion of tlie court in this case by Woodward, J. Part of the opinion of Strong, J., is omitted. '7fu Ch. 1) PROFITS 159 It is to be observed in the description of the thing granted, that. there are no limits fixed upon the extent to which coal might be taken from the land then owned and occupied by the grantor. The grantee's right was coextensive with his will ; not necessarily to be exercised by him- self, but one which might be enjoyed by others whom he should au- thorize. No form of words other than those employed could have given him larger dominion. Coal and minerals in place are land. It is no longer to be doubted that they are subject to conveyance as such. Nothing is more common in Pennsylvania than that the surface right should be in one man, and the mineral right in another. It is not denied, in such a case, that both are landowners, both holders of a corporeal hereditament. * * * If then the ownership of the coal or other minerals in a tract of land may be vested in one person, while the right to the surface belongs to another, the next inquiry is, by what words it may be granted. There are two modes in which the subject-matter of a deed may be describ- ed, both equally potential. The one is by a description of the thing itself, as of land by metes and bounds, or by a known name, and the other is by a designation of its usufruct, or of the dominion over it. Thus a grant of the rents, issues, and profits of a tract of land is uni- formly held to be a grant of the land itself. Co. Litt. 4 b. Judgments abound to this eftect in regard to devises, and though in wills and deeds the rules of construction difier relative to words limiting the estate granted, yet they are the same of words describing the subject-matter of the grant. There are also cases of the same character to be found in regard to deeds. Thus it has been held that by the grant of a boilery of salt the land passes, for that is the whole profit, Co. Litt. 4 b.; or a mine of lead, Id. 6 a. So by the grant of all growing trees, Cro. Eliz. 522. See, also, Clap v. Draper, 4 Mass. 266 ; Fish v. Sawyer, 1 1 Conn. 545. Thej-eason is that the grant of a thing can be no more than the grant of the full and unlimited use of it. So too the general power of disposal without liability to account is equivalent to owner- ship itself, it being the highest attribute of ownership, and a gift of the one necessarily carries with it the other. This is the doctrine of Morris v. Phaler, 1 Watts, 389. Applying these principles to the case in hand, why was not the deed of Caldwell to Greer a conveyance of the coal in the land owned and occupied by the grantor ? Because, says the plaintiff in error, it is not a grant of the thing itself, but of a right to take it, and until it is seized or taken the property in the thing remains in the grantor. But if the conveyance of the whole use of a thing, and of the absolute dominion over it, is a grant of the thing itself, only differing in the mode of de- scribing the subject, it is not easy to see what more Caldwell could have sold than he did. If in another form of words he had described the coal as the subject of the grant, Greer would have possessed no greater beneficial rights than we.re given to him by the form adopted. The ownership of the coal in the ground is but a "full right, title, and priv- 160 RIGHTS IN THE LAND OF ANOTHER (Part 2 ilege",to dig and carry it away, nothing more, nothing less. The words employed in the deed express absolute dominion, and complete enjoy- ment. These constitute property, and all that is understood in pro- prietorship. Again, says the plaintiff in error, this is but a grant of a right to take and carry away part of the profits, and that while a grant of a right to take all the rents, issues, and profits of a tract of land is equivalent to a conveyance of the land itself, because it embraces their whole usufruct, a grant of a right to take part, such as "iron ore, coals," or "minerals," is not. It is said that in such a case the grantee can only take in common with the grantor. The argument is based upon a misconception. The subject alleged to have been granted here is not the tract of land, but the coal in it, which, as we have, seen, is capable of a separate conveyance, and which may be vested in one person, while the ownership of the tract of land, as such, may be another's. The alleged subject of the grant then be- ing the coal in the land, the substratum, the argument is inapplicable. The whole usufruct of that, as well as the entire dominion over it, was granted. The deed is not a conveyance of part of the usufruct, nor of the usufruct of part of the coal, but of the entire enjoyment. As already said, there was no limit to the grantee's right but his own will. He could take out coal to any extent. He could cause it to be taken out to any extent, and at all times under any of the land. He was ac- countable to no one. His entrance to it and his exit from it were in- deed required to be on his own land ; but the right to take the coal itself was absolutely unlimited. It would seem, therefore, that, accord- ing to well-established rules of construction, the deed of Caldwell to Greer was a conveyance of the coal itself, and not of a mere easement, or incorporeal hereditament. It is contended, however, that such a construction is in conflict with the authorities, and we are referred to Lord Mount joy's case as the leading and principal one. * * * Unlike the case we have under consideration,- it was not a grant of unlimited dominion over the ores and turf. It was not a grant of a right to dig, take, and carry away without stint, but only sufficient for a single specified purpose, viz. : the manufacture of alum and copperas. It was very aptly likened to a grant of common sans nombre, but was not an exclusive right. Surely there is very little resemblance between that case and the present. It is not at all in conflict with the constru(>^ tion we place upon Caldwell's deed to Greer. * * * We are next referred to Doe v. Wood, 2 Barn. & Aid. 719, where the grant was called a license, and where the privilege was to dig, work, mine, and search for tin, &c., and dispose of what might be found dur- ing a term of twenty-one years. The court held it to be a license on the ground, among others, that it was a right to dig, search for, &c., "the minerals that should within that term there be found," and not a grant of the entire subject. The indenture also contained covenants of Ch. 1) PROFITS 161 the grantee to render a share of the ore he might find, and to allow the grantor himself to drive adits. The case is no authority in support of the argument of the plaintiff in error. The only other case to which we are referred is Grubb v. Bayard, 2 Wallace, Jr. 81, Fed. Cas. No. 5,849. There the grant was to dig, take, and carry away all iron ore to be found within the bounds of a tract of land of the grantor, provided the grantee should pay unto the grantor, his heirs and assigns, the sum of sixpence for every ton taken from the premises. This was held to be an incorpgr_eal hereditament. It will be observed, that there was no present consideration passed, nor was there a covenant of the grantee to search for or take any ore. He might never have taken any. In that event, if the deed had been held a conveyance of the iron ore, there would have been a sale without j._ consideration. Nor was it a grant of the whole, but, said Mr. Justice Grier, of the iron ore that should be found within the term, and on that account was but a license. He also remarked that "if it had been a grant of an absolute property in all the iron ore in the tract, the deed would have been insufficient to convey title without livery of seisin." , This observation goes beyond the English cases, and is not necessary to the judgment rendered. In Grubb v. Bayard, Judge Kane delivered a concurring opinion. In it, he refers to the absence of a covenant by the grantee to work the mines, and thus ma"ke the rent reserved of value, as a circumstance of much importance in determining the inten- tions of the parties. That it is so, is obvious, for without it the con- tract might have proved entirely fruitless to the vendor, while in the present case, Caldwell has received all that he ever can receive. The' r ight, whatever it is, is one for which all the consideration has been paid. These are all the cases adduced to sustain the doctrine that a con- veyance of a right to dig, take, and carry away the coal or minerals in a tract of land, though the grant be unlimited in quantity, time, or pur- pose for which the minerals may be taken, conveys no interest in the coal or minerals until they are taken, passes only an incorporeal here- ditament. None of them were decided upon the ground of any suppos- ed distinction between a right to take all the coal and carry it away, and a right to the coal itself. They are all cases in which there was no unrestricted power of taking and disposition conferred upon the gran- tee. The coal or minerals was to be taken either for a limited purpose, or in restricted quantities, and generally was not to be paid for until taken. And in. most of them it is easy to see that the supposed neces- sity of livery of seisin, in order to pass a corporeal interest in land, Avas a controlling consideration in the rninds of the judges. Even in Grubb V. Bayard, it seems not to have been without influence. The impossi- bility of making livery is, however, in Pennsylvania, no reason for re- fusing to give a construction to a deed accordant with the intention of the parties. When the intent is to give the entire usufruct and pow- BiG. Rights — 11 1G2 RIGHTS IN THE LAND OB^ ANOTHER (Part 2 er of disposal, the legal title must be held to pass. Even in England, livery of seisin is no longer indispensable to the grant of a corporeal hereditament. Unopened mines may be conveyed, and the grantee takes more than a right issuing out of land, or exercisable therein. He takes the mines themselves. In ^toughton v. Leigh, 4 Taunt. 402, a widovi^ was held entitled to dower of mines, not only in lands in which her husband had been seised in his Hfetime and during coverture, but also in those which were in the lands of other persons, the minerals or substratum of which had been conveyed to him. It was also ruled, that in assigning her dower, the sheriff should set off to her not one- third of the profits, but one-third of the mines themselves, and that tlie partition might be made either by metes and bounds, or by directing separate alternate periods of enjoyment. * * * Thus, after a careful review of the question, we are constrained to hold that, by the deed from Caldwell to Greer, the title to the coal m the lands then owned and occupied by the grantor was convej^^ and^ not a mere license, or incorporeal right. Such was the opinion of this court in 1855, when the same deed was here for construction, and' the very able argument of the counsel for the plaintiff' in error, has failed to convince us that the court was then mistaken. * * * The judgment is affirmed.* 8A., in consideration of $2,000 executed a deed to one Moses by which he granted, sold, and conveyed unto the said Moses, "his heirs, executors and as- signs, the right and privilege of entering, by himself and his agents, in and upon all or any part of the said tract of land, for the purpose of searching for minerals 'and fossil substances and conducting mining operations, to any extent the said Moses might deem advisable, and for working, removing, selling, using and appropriating, as the property of the said Moses, for the term of ten years, all organic or unorganic minerals, rocks, fossils, marls or so-called phosphates that might be found on, by any person or persons, or contained in, any part of the said plantation," which said privilege was, however, subject to the proviso, "that the said O. A. Moses should not, at any one time, during the aforesaid term of ten years, engage in working over one-third part of the said tract. The third to be so worked to be se- lected by the said O. A. Moses, and such selection to be made as often as the said O. A. Moses might desire." Within the ten years A. licensed others to mine phosphates within the said land. Held, Moses is entitled to an ac» counting and to an injunction against further mining. Massot v. Moses, 3 S. C. IGS, 16 Am. Rep. 697 (1871). A. executed the following instrument: "received of B. $175 in payment of sand bar on Fall creek * * * for the year 1S90. This Is for the ex- clusive right to all gravel and sand for the year above named and excluding all other parties from the said premises. [Signed] A." Within the year A. conveyed the premises to C, who bought with no knowledge of this in- strument. Held, C. cannot enjoin B. from taking away gravel; the instru- ment is a lease. Heywood v. Fulmer, 158 Ind. 658, 32 N. E. 574, 18 L. R. A. 491 (1892). A. executed to B, a deed which contained, among others, the following clause: "The said A. further agrees to give to the said B. the privilege ot raising iron ore in his fields at twenty-five cents per ton * * * and to give the privilege to none else." B. conveyed all his interests to X. A. con- veyed the land owned by him to Y., subject to any rights that B. or his as- signs might have by virtue of the above grant. Held, X. cannot enjoin 1, Ch. 1) PROFITS 163 ROTHERHAM v. GREEN. (Court of Common Pleas, 1597. Cro. Eliz. 593.) » Trespass. The defendant pleads, that William Green, his father, was seised in fee of a tenement in L. and that he and all his ancestors, and all those, &c. in the said tenement, from time whereof, &c. have used to have common in the place where, &c. for all their beasts levant et couchant upon the said tenement ; and that it descended unto him, &c. Issue was taken upon the prescription, and a special verdict found, viz. that Edward Green, grandfather to the defendant, was seised of the tenement; and that he and all his ancestors, and all whose, &c. from time whereof, &c. had used common, &c. (according to the pre- scription) ; and he being so seised, released to Sir Thomas Rotherham, the plaintiff's ancestor, all his right, and his common in part of the land, where he had the common, and died ; and the tenement descend- ed to William Green, and from him to the defendant. Et si, &c. — Drew prayed judgment for the plaintiff. For by release of the common in part of the land, the whole common is gone, and extinct ; for other- wise the tenant of the residue of the land should be charged with all the common, which is not reasonable. And thereupon it is, that if a lord releaseth his signiory in one acre, all is gon6: as 21 Edw. 3. "Scire Facias," 112. is. — Spurling e contra; because the commfen is ap- purtenant, and it is for the manurance of the land, and stands with common right. — Anderson. This is not a common of common right ; for it is for swine and sheep, and it is not like to Dyer, 339. where the lord improved part of the common, leaving sufficient to the com- moner, and infeoft'ed a commoner of that part improved: for there the common is not extinct ; because the land improved was discharged of common before the feoffment. But this is like to Rampton's case, which was adjudged in this Court ; where one having common in a great field, wherein many men had land, he purchased an acre from one of them, it was adjudged that all this common was extinct, &c. from mining coal in the land in question. Johnstown Iron Co. v. Cambria Iron Co.. 32 Pa. 241, 72 Am. Dec. 783 (185S). See, also. Funk v. Haldeman, 53 Pa. 229 (1S6G). A, by deed granted to B.,' his heirs and assigns, the "sole and exclusive right and privilege" of shooting and taking wild fowl on A.'s land. Held, B. cannot indiscriminately license other persons to shoot wild fowl on A.'s land. Bingham v. Salene, 15 Or. 208, 14 Pac. 523, 8 Am. St. Rep. 152 (18S7). An exclusive profit in gross may be acquired by prescription. Welcome V. Upton, 6 M. & W. 536 (1840) ; Melvin v. Whiting, 10 Pick. (Mass.) 295, 20 Am. Dec. 524 (1830). As to the form of action maintainable by the owner of an exclusive profit, see Anon., Dver, 285b, pi. 40 (15C9) ; Wilson v. Mackret, 3 Burr. 1824 (1766) ; Cox V. Glue, 5 C. B. 533 (1848) ; Clap v. Draper, 4 Mass. 266, 3 Am. Dec. 215 (1808) ; Hartford Iron Mining Co. v. Cambria Mining Co.. 93 Mich. 90, 53 N. W. 4, 32 Am. St. Rep. 488 (1892) ; Kelly v. Keys, 213 Pa. 295, 62 Atl. 911, 110 Am. St. Rep. 547 (1906). » S. c. 2 And. 89 ; Noy, 67. 164 RIGHTS IN THE LAND OP ANOTHER (Part 2 So here the common also is intire through the whole land: wherefore a release \n part shall discharge the whole. The prescription also is general, to have common in all the place, where, &c. and the jury have found a release in part of the land, and therefore the prescription is found against the defendant. — Beaumond and Owen agreed with him in both points : but Walmsley held, that the common was not gone for the residue ; because this release went in benefit of the ter-tenant, and it was an improvement by him: but, as touching the prescription, he agreed, that it was found against the defendant, for the reason above- said. — Wherefore they all agreed against the defendant. And it was adjudged accordingly.^'* DRURY v. KENT. (Court of King's Bench, 1603. Cro. Jac. 14.) Replevin. Upon a special verdict, the case was, a man prescribes to have common appurtenant to the manor of B. for all his beasts levant ^ couchant: he grants this common to A. Whether this grant were good or no? was the question. — And adjudged, that he could not grant it over, for he hath it quasi sub modo, viz., for the beasts levant & couchant ; no more than estovers to be burnt in a house certain : but common appurtenant for beasts certain may be granted over. Where- fore it was adjudged ut supra.^'- COLE V. FOXMAN. (Court of Common Pleas, 1618. Noy, 30.) In an action upon the case by a commoner against I. S. for charging of the common, see 9 Rep. 112. The point was, A. seized of 5 acres, and of a common appurtenant to them, aliens one acre, if the common be extinct, for part or in the whole. And by the Court it is not extinct, for any part, but it shall be apportioned, and no prejudice to the terre- tenant. And Hubbard, Chief Justice, who gave the rule said, the sole reason is, that otherwise a grand inconvenience and mischief 10 A. had 50 acres of land, with common appurtenant for cattle levant and couchant thereon in two other tracts, one owned by B. and one by C. B. bought the piece owned by A. Held, B. has no right of pasturage in C.'s land, the court stating that if the common had been appendant instead of appur- tenant it would have been apportioned. Tyrringham's Case, 4 Co. 36b (1584). So the common is extinct in the piece owned by O. if A- buys the piece owned by B. Kimpton v. Wood, 1 And. 159 (1586). 11 Ace: Daniel v. Hanslip, 2 Lev. 67 (1672). A., the owner of a tract of copyhold land, had by prescription the sole and several pasturage of a certain piece of land for the whole year at his will, as belonging to his said tenement. He licensed X., a stranger, to pasture his cattle on the servient piece. Held, the owner of the servient piece cannot justify the taking of X.'s cattle as daraage-feasant. Hoskins v. Kobins, 2 Saund. 324 (1671). Compare Jones v. Richard, 6 A. & E. 530 (1837). Ch. 1) PROFITS 165 would ensue. For by that all commons in England shall be extinct, and salus populi est summa lex, & apices juris non sunt jura. And the great dispute in that case was, for the certainty what shall be said to be cat- tle levant and couchant. And Serjeant Attee said, that Cook, Chief Justice in his circuit in Norff. said, that so many of the cattle that the land, to which the common is appurtenant, may maintain in the winter, so rnany shall be said levant and couchant. To which Warberton and Hutton agreed. ^^ PHILLIPS V. RHODES. (Supreme Judicial Court of Massachusetts, 1843. 7 Mete. 322.) The parties submitted this case to the court on agreed facts, all of which appear in the opinion of the court. Hubbard, J.^^ This is an action of trespass for breaking and en- tering the plaintiff's close, and taking and carrying away sea weed. The defendant pleaded the general issue, with notice that he was the lessee or servant of Mary Ann Balch and her husband ; said Mary Ann being a part owner of the locus in quo, or an owner of a privilege in the same. The taking of the sea weed mentioned in the declaration is admitted. The plaintiff claims title to the locus in quo under the will of her late husband, Benjamin H. Phillips, deceased, whose title was derived by deed from Jonathan Phillips and others, children and heirs at law of Gideon Phillips and Rebecca his wife, dated December 12th, 1797, and a deed from said Rebecca, dated December 11th, 1797. This deed of Jonathan Phillips and others conveys to Benjamin H. Phillips, among other parcels of land, the following : "All that part of the home field, so called, excepting thirteen poles laid out to said Jonathan Phil- lips, that lieth southerly and westerly of a line running southerly eighteen rods from said Jonathan Phillips's land down the field- to a stake; thence easterly ten and four tenth rods to a stake; thence south- erly to the beach ; and contains four acres and forty poles, with the mansion house that was our said father's and mother's on the prem- ises." The title under which the defendant justifies is by a deed of the same date, from Jonathan Phillips and others to Rebecca Collins, wife of Jacob Collins, Jr. ; and the description of one of the parcels of land is the following: "Also two acres and nine poles of land in Nahant, so called ; also a privilege of getting what is called sea dung on the 12 Ace: Wild's Case, 8 Co. 7Sb. (1609). See Day v. Spooner, Cro. Car. 432 (1636). As to the meaning of levant and couchant, compare Scholes v Hargreav^es. 5 T. R. 46 (3792) ; Whitelock v. Hutchinson, 2 Moo. & R. 205 (1S39) ; Robinson V. Hartopp, L. R. 43 Ch. Div. 484 (1SS9). 13 Part of the opinion is omitted. 16G RIGHTS IN THE LAND OF ANOTHER (Part 2 beach below the home field, that our mother Rebecca Phillips hath granted unto us; with all other privileges and appurtenances there- unto belonging." The above deeds were made by the heirs, in the division of the es- tate of Gideon and Rebecca Phillips. The other lands of said Gideon were assigned to his other children, by deeds of division, and a privi- lege in the beach was granted to all of them except those who had part of the home field. The said Rebecca Collins survived her husband, and died leaving Ijer estate by will, after certain legacies, to her son Phillips Collins, .and to her daughter Mary Ann Collins, and if either should die leaving no issue, the survivor was to inherit tlie whole. The said Mary Ann Collins married John C. Balch, and she claims a privi- lege to take sea manure from the beach, and has leased or sold her right to the defendant. The land, to which the defendant carried the manure from the locus in quo, was no part of the estate formerly belonging to said Gideon or Rebecca Phillips. There are about eighty direct descendants from the six children of Gideon and Rebecca Phillips, who claim each a right to take manure from said beach by virtue of the grants to their an- cestors of privileges in the division deeds. The right granted to the ancestor of Mary Ann Balch was a privilege of getting sea manure on the beach below the home field, which field belonged to the plaintiff. The sea weed which is thrown up belongs to the owner of the beach; Emans v. Turnbull, 2 Johns. (N. Y.) 322, 3 Am. Dec. 427; and so is the subject of grant. The question present- ed for consideration is, whether the grant tlfus made to Rebecca Col- lins (similar grants having been made to other children of Gideon and Rebecca Phillips) is a right in gross, to be enjoyed by all the grantees and their heirs, or whether it is a right appurtenant to the particular parcel of estate conveyed in the deed to which it is annexed. ~^ As a right or common in gross passes by deed, it is necessary to con- sider- the terms of the grant, to ascertain the nature of the estate in- tended to be conveyed. And we think it is obvious, from the language of the deed, that the object of the grant was to benefit the owner of the particular estate, by furnishing her with a valuable dressing for her land, and not to give a personal right to her and all her heirs and their assigns, as many as there might be. The privilege, thus subdivided, would be of no personal use or advantage ; but as appurtenant to the •particular estate, so that it might be used thereon, it would always en- hance its value. We are therefore of opinion, that the grant created by this deed is an incorporeal hereditament, appurtenant to the estate to which it is annexed, and passes with it; -and consequently, it is a right which cannot be severed and sold separate from the estate, and thus subdivided ad infinitum. Such a sale of the right to a stranger would either be a void grant, or would extinguish the right. But we do not consider, though the privilege is appurtenant to the estate, that the owner is confined, by the terms of the grant to use the Ch. 1) PROFITS 167 dressing on the particular estate. Having taken the manure from the beach, by virtue of the privilege, she may use it on other lands of her own, or dispose of it to others ; or she can lease her share of the privi- lege while she remains an owner in common of the particular estate. If it is said that the privilege may in this manner be subdivided, and the same evils follow as would or might flow from a sale of the privi- lege independent of the land to which it is appurteriant ; yet it must be remem bered that its subdivision can only be such as the piece of land to which it is attached is subject. One person having a right or privi- lege may afso obtain more than his just share of the dressing cast up during the season. But such inequality in the division is almost in- evitable from the nature of the property itself, thrown up as it is on the beach, in greater or less quantities, by the constant heaving of the sea. But it is also true, that if one proprietor should be obstructed by another proprietor in the enjoyment of his privilege, he would not be without a remedy for the obstruction of his right. * * * We notice, in the report of the case, that the said Mary Ann Balch either leased or sold her right to the defendant Rhodes. In the opinion we have expressed, it becomes important to settle the fact whether the defendant is the lessee of said Balch's interest, or has made an abso- lute purchase of the same. If the former, the defendant may justify, as acting under the owner, by virtue of her lease to him. But if he justifies the entry and taking under a sale of the right to himself, he takes nothing by the purchase, and is liable in this action to the plain- tiff. And if the fact cannot be agreed, the cause must be sent to a jury to ascertain it. HALL V. LAWRENCE. (Supreme Court of Rhode Island. 1S52. 2 R. I. 218, 57 Am. Dec. 715.) [Submission for determination of the rights of the parties under their respective conveyances. On November 7, 1776, Nicholas Taylor and Joseph Wanton Tay- lor were owners in common, of a farm abutting on the ocean. On that day they executed a deed of partition by which the south part adjoin- ing the ocean was conveyed to Nicholas, and the north part to Joseph. Other facts appear in the court's opinion.] Brayton, J.^* The p^laintifiE claims in this case a right to enter upon the land of the defendant, being the farm set off to Nicholas Taylor in the deed of partition of 1776, and to take and carry away from the shore thereof, mentioned in the deed of partition, sea-weed, gravel and stone in any quantity without limit at his will and pleasure and to make merchandise thereof for his profit, and a right of way to pass and re- pass to and from said shore over the defendant's land for that purpose. 14 The statement of facts is abridged and part of the opinion is omitted. r^ 168 RIGHTS IN THE LAND OF ANOTHER (Part 2 This right he claims as a right^jn. gross, though, by the deed of par- tition, he claims that it was originally made ^jnirtenant to the North farm set off in said deed to Joseph W. Taylor, under whom he claims. The argument both for plaintiff and defendant, proceed upon the assumption that the right of taking sea-weed, gravel and stone, what- ever it was, was originally appurtenant to the estate of Joseph W. Tay- lor, and, indeed, if it were not appurtenant, it is evident the . plaintiff has no title, for his deed from Armstrong describes no such right, and unless it jwas appurtenant at the time, he takes nothing by his deed. In order to ascertain what the rigTits of the plaintifr^how are, it is necessary to inquire, first, what were the rights originally granted in said deed to Joseph W. Taylor. By the terms of the deed, after setting off to Nicholas the south part of the original farm upon which portion was all the beach, and setting off to Joseph the north part, which was less in quantity, and we may presume without a beach privilege less in value, the deed then pro- ceeds and says: "And the said Nicholas Taylor, doth grant free lib- erty of carrying away gravel and sea-weed off the beach, belonging to his part of said farm, and also, stones below high-water mark on said beach, to the said Joseph W. Taylor, his heirs and assigns, and, also, liberty to tip the sea-weed on the bank on his part of said land." This grant is made doubtless to equalize the partition, to render the north part, which had no shore where sand and sea-weed might be obtained for improving and fertilizing the land, and, it may be, less facilities for obtaining stone for building and fencing, equal in value with the south part. \t will be seen also, that the grant is not limited in terms as to quan- tity, nor is it defined in terms to what uses it shall be applied or for what purposes tal of common for sea-weed, gravel and stone, in favor of the north farm ^ set off to Joseph, and as appurtenant thereto, to be exercised on the ) shore of the estate set off to Nicholas, giving a right to take so much I as the owner of the north shore might think proper or profitable to use / on the estate. There passed also, as incident to this grant, a right of passing and repassing to and from the shore oyer the land of Nicholas, in some convenient place for the purpose of taking the profit. This was neces- sary to the enjoyment of tlie right of common granted, and would therefore pass by an implied grant, and accompany and follow the principal grant so long as it existed, and only became extinguished with the extinction of the common itself. * * * . Did these rights pass to the plaintiff ? George Armstrong, by his deed of July 4th, 1835, conveyed to the plaintiff all the land originally set off to Joseph W. Taylor, in the deed of partition of 1776, with the appurtenances, and whatever rights of common were then appurtenant to the lands conveyed or to any portion of them passed to the plaintiff. Our inquiry then must be directed to the title which Armstrong had to the common. Armstrong's title to the land is derived to him by two separate con- veyances. By the deed from Joseph W. Taylor, of August 12, 181v3, he acquired title to nineteen and three-quarters acres, a porti on of the land originally set off to Joseph, "and all the privileges and appurte- ^^ nances which I, the grantor, now have of taking and carrying away gravel and sea-weed and all stones below high water mark on said beach, and also to tip the sea-weed on the beach of the said Nicholas Taylor's land." Such are the words of the grant. But whether any right of common then remained appurtenant to the nineteen and three-quarters acres, must depend upon the effect which is to be given to the conveyance of Joseph W. Taylor to his brother Nicholas of March 12, 1803. By that deed Joseph conveyed to Nich- olas thirty acres, part of the shares set oft' to him, to which the \Vhole right of common was made appurtenant.^^ The defendant's counsel claims that the effect of the conveyance of 1 B On March 19, 1819, the title to this 30 acres was conveyed to Armstrong subject to an equity of redemption in Nicholas Taylor and the douer right of his wife. 170 RIGHTS IN THE LAND OF ANOTHER (Part 2 the thirty acres portion of the dominant estate is the extinguishment of the whole common. The first question here raised is whether this right of common was divisible and might or not be apportioned to the several parts of the dominant estate upon a severance of the estate. In regard to rights of common which by law are indivisible, a conveyance of any portion of the dominant estate Avill e xtinguish the whole^ as in the case of com- mon of estovers, Van Rensselaer v. RadcHff, 10 Wend, (N. Y.) 639, 25 Am. Dec. 582 ; Livingston v. Ketcham, 1 Barb. (N. Y.) 592, and the reason assigned is that the service is entire and appurtenant to an entire estate, and npt being divisible it cannot be appurtenarit To^'part of the estate as an entire service. There are, however, other rights of common which are in law divisi- ble, and in all such cases it may be apportioned to the several parts of the dominant estate upon its severance by different conveyances. A right of pasture for cattle san nombre is of this kmd. In such case it is held that though the right be unlimited in terms, yet it is intended for the use of the estate and limited to such cattle as may be kept upon the dominant estate or upon any portion of it, and equally upon any portion, so that, upon a division of the dominant estate and upon ap- portionment of the service to the several parts, the servient estat e is not charged to any greater extent than before or with mor^xattle. And the rule is that wherever the common is admeasurable the common is '}' apportionable. Tyrringham's case, 4 Co. 35. But the right being meas- ured by the uses of the estate cannot be severed from the estate and granted over. Drury v. Kent, Cro. J. 15. This right in the present case is of the same nature. It is intended for the use of the estate and for every acre of it, and that equally and whether the right be divided or not, the measure is the same. I^ may therefore be divided, and, by a conveyance of a part of the dominant estate, it would be apportioned to the part conveyed and so much might well pass with it under the term appurtenance. This conveyance may be afifected by another rule, for although the common may be in its nature divisible and apportionable, yet, ifjhe ef j Ject of the conveyance is to surcharge the servient estate, it shall not Only not be apportioned, but shall become extinct for the whol e. And for the same reason it is, that a release of a portion of the servient estate or purchase of part of the servient by the sole owner of the dominant shall extinguish. In Rotherham v. Green, Cro. E. 593, there was a release of part of the land in which, &c. In Kimpton v. Bellamyes, Leonard, 43, the owner of the dominant purchased two acres of forty of the servient estate. In these cases the effect was to surcharge the residue. So, in Tyrringham's case, 4 Co. 35. * * * And the rule deducible from all the cases is, as before stated, that if the effect of the conveyance is to surcharge the common and burthen to a greater extent the servient estate, it shall extinguish; if otherwiie, Ch. 1) PROFITS 171 there shall be an apportionment and such portion will pass as appurte- nantr By this rule the portion of common belonging to the thirty acres would become severed from the residue, which would remain appurte- nant to the nineteen and three-quarters acres retained by Joseph Tay- lor, and the thirty acres would become a distinct dominant estate. But inasmuch as the title to tlie dominant estate, by virtue of the conveyance, became united in the hands of Nicholas with the servient estate, all the common appurtenant to the thirty acres thereby became extinguished by unity of title. It has not been revived by any of the conveyances so as to pass by the term appurtenance in the deed of Armstrong to the plaintiff. The defendant's counsel claims that, although such would be the ef- fect of the deed to a stranger, who immediately conveys to the servient owner, yet, if made directly to the servient owner, the whole is ex- tinguished. Now, bearing in mind the reasoning on the cases generally upon the subject and the rules deducible from them, we should not expect to find a case in which it should be held that, where the conveyance does not directly surcharge the common remaining, and where the servient owner can in no wise suffer injury, the whole common should become extinguished and that against the apparent intent of the parties, but that effect would be given in such case to the clear intent. There is, however, in Tyrringham's case, the annunciation of such a rule as the defendant's counsel claims. It is this : That common ap- purtenant cannot be extinct in part and in esse for part by act of the parties, for that common appurtenant was against common right. Taken in the broad sense which counsel gives it, and independent of the connection in which it is used, it might support the ground which the counsel assumes. But taken with its connection, it is evident that it was not applied or intended to apply to such a case as is now before us. The same rule exists in relation to rent charge, which is said to be against common right as distinguished from rent-service which is deemed of common right. * * * Now Tyrringham's case when carefully examined, it will be seen, does not come up to the point made by the defendant's counsel. * * * Now, the case was : The owner of part of the servient became own- er of the whole dominant and so interested in surcharging the residue of the servient. But, in order to fully understand the case and the point immediately before the court, it must be borne in mind that so far as the severance and apportionment of the common to the dominant estate is concerned, there is no difference in the rule of law applicable to the common ap- purtenant or common appendant. In either case, upon severance of the dominant estate the common was apportionable. The difference between the two related to the servient estate, and the court in a pre- ceding part of the case had resolved that common appendant being of 172 RIGHTS IN THE LAND OF ANOTHER (Part 2 common right, might not only be apportioned to the land to which, &c., but would also be apportioned upon the severance of the estate in which, &c., and they say, that as to this kind of common, if the com- moner aliene part the land in which, &c., yet the common shall be ap- portioned. But it was not so with common appurtenant. In such case there could be no apportionment to the servient estate. And, there- fore, the court was obliged to say, referring particularly to the part of the case before them, that by this purchase the common was extinct for the whole, for in such case common appurtenant could not be extinct in part and in esse for part by act of the parties. There never was any difficulty in releasing a portion of the service charged upon the servient estate. The only difficulty was in releasing any portion of the servient estate wholly from all service, and that, be- cause it could not be apportioned. * * * We are then, upon the whole, of the opinion that the deed from Joseph W. Taylor to Nicholas Taylor, of the thirty acres, operated as a severance and apportionment of the common, and that the part ap- portioned to the thirty acres became extinguished and lost, but that the conveyance did not operate to extinguish the residue of the com- mon apportionable to the nineteen and three-quarters acres, and that so much passed by Armstrong's deed of July 4th, 1835, to the plaintiff, with a right of way as incident of it and necessary to the enjoyment. Had the plaintiff remained owner of the whole of this lot of nine- teen and three-quarters acres, he would still have been entitled to the common appurtenant. But his right has again been affected by his con- veyance to Robert H. Ives, of nine and three-quarters acres, part of the nineteen and three-quarters acres." Had he made no reservation of the common in that deed, there would have been an apportionment, and Ives would have taken the portion belonging to nine and three- quarters acres, for though such common may be apportioned, ijt_could not be severed from the estate and granted over, (Drury v. Kent, Cro. J. 15,) and, because it could not be severed, the plaintiff could not re- tain it to himself. If it exist at all, it must exist with the estate, the uses of which it is to attend and minister to. The plaintiff', then, at the time of filing his bill in this case, had a right of common to take from the shore of the defendant's estate sea- weed and gravel, and stones below high-water mark, at all times at his will and pleasure, for such purposes as he might think proper to use them upon his estate; but this right did not extend to the thirty acres, to which Armstrong derived title under the mortgage of Nicholas Fry to the Bank of Rhode Island, all right being extinguished as to that, but was limited to that portion of the nineteen and three-quarters acres 16 This conveyance to Ives by the plaintiff expressly reserved "the privi leges of sand, gravel and sea weed upon the south shore of the Taylor farm and of tipping the sea weed on the bank thereof as appurtenant to the resi- due of the said Joseph W. Taylor farm retained by" the plaintiff. Cb. 1) PROFITS 173 conveyed by Joseph W. Taylor to Armstrong, by deed of August .12th, 1813, which the plaintiff has not conveyed to Robert H. Ives; and he had, also, a right of way to and from his said land to the shore for the purpose of exercising this right as incident and necessary to its en- joyment. This is the extent of his right in our view upon the deeds and con- veyances put before us.^^ HUNTINGTON v. ASHER. (Court of Appeals of New York, 1884. 96 N. Y. 604, 48 Am. Rep. 652.) One Hogan owned a tract of land on which was a large pond. On ^ November 3, 1869, he conveyed to one J. H. Asher a half acre of land adjoinin^the gond. The deed contained the following provision: "And the party of the first part, as incident to this conveyance, also grants and conveys to the party of the second part, his heirs and as- signs, the exclusive right to take ice from the pond of the party of the first part, with the right and privilege of access for that purpose to and from the pond to the ice-house to be erected on the lot hereby con- veyed. "In consideration of which said grant, as aforesaid, the party of the second part hereby covenants and agrees for himself and his heirs and assigns to furnish and deliver to the party of the first part (so long as he shall continue to occupy his present residence), free of charge, all the ice which he shall require for his own family use, and also to fur- nish and deliver to the purchaser or purchasers of the pond and mill privilege and their heirs and assigns, free of charge, all the ice which they shall require for their own family use, so long as they continue to, reside in the village of Rhinebeck." The residue of Hogan's land came by mesne conveyances to the plaintiff, each conveyance being expressed to be subject to Asher's right. Subsequently J. H. Asher conveyed to the defendant, Emeline Asher, his half acre with the appurtenances, but made no mention of the right to cut ice. The plaintiff contended that the defendant had no right to cut ice and brought this bill for an injunction. Finch, J.^* The contract of purchase and sale between the original parties contemplated the creation of a right to take ice from the unsold lands of the grantor as an incident to the conveyance of the half acre 17 A, conveyed a farm to B. in fee, "together with the free liberty • • * of cutting timber * * * for building, fencing, and fuel * * * for the use of the said hereby released lands only" in certain land still belong- ing to A. Part of B.'s farm came to C. Held, C. has no right to cut timber for the above mentioned uses of his farm. Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) '639, 25 Am." Dec. 582 (1833). 18 The statement of facts is abridged and part of the opinion is omitted. 17)4 RIGHTS IN THE LAND OF ANOTHER (Part 2 and an appurtenance of the land conveyed. It is impossible to study the arrangement in its details and arrive at a different conclusion. The half acre of -land was purchased for the known and declared purpose of erecting thereon an ice-house to store the product of the pond, and as a means of conducting the ice business. The terms of the deed sub- stantially so declare, and the fact is not denied by the findings of the trial court. The right thus given was a natural, appropriate, and nec- essary adjunct of the land conveyed, having in view the purpose for which it was purchased, on the one hand, and sold, on the other. There was no sale of the right in gross for its own sole and separate consid- eration, but the price of the land paid and to be paid covered the land with its fight attached. The arrangement was meant to be continuous^ and to follow the two estates irrespective of their ownership. The con- veyance of the right, like that of the land, was to the grantee and his assigns, and the former was declared in terms to pass as "incident" to the grant of the latter. And then the grantee, "for himself, his heirs and assigns," covenants to furnish ice to the successive grantees of the pond and mill privilege so long as they reside in the town of Rhine- beck. The contract thus contemplated a dominant and servient es- tate. If a mill, dependent upon water-power, had stood upon the half acre, the right to draw from the pond would have passed with the land as an appurtenant easement, if such had been the actual situation of the premises, or the express agreement of the parties. If no mill and no raceway were there, but the purchase was for the purpose of erecting them and the deed gave the water-right accordingly and as in- cident to the' conveyance, such right would become an appurtenance, at least when exercised, and pass with the land. But the right in ques- tion here is of a somewhat different character, and upon that difference is founded the conclusion of the General Term, and much of the argu- ment before us. The opinion below asserts that the right under consideration was not an easement attached to a dominant estate, and not an appurtenance of the latter. The reason assigned is in these words : "A right by which one person is entitled to remove and appropriate for his own use any thing growing in, or attached to, or subsisting upon the land of anoth- er for the purpose of the profit to be gained from the property there- by acquired in the thing removed, has always been considered in law a different species of right from an easement. Such right is a privilege, and so is an easement ; but the latter is a privilege without profit, and is mereljf accessorial to the rights of property in land, while the former is the reverse. If granted to one in gross it is so far of the character of an estate or interest in the land itself that it is treated as such." * * * It must be admitted that the strict and technical definition of an ease- ment excludes a right to the products or proceeds of land, or, as they are generally termed, profits a prendre But that such a right is in Ch. 1) PROFITS 175 the nature of an easement, and although capable of behig transferred in gross, may also be attached to land as an appurtenance and pass as such, is shown by the authorities to which the General Term refer. In Post V. Pearsall, supra [22 Wend. 425], the language of the chan- cellor is, "for a profit a prendre in the land of another, when not grant- ed in favor of some dominant tenement, cannot properly be sflTTTio be an easement, but an interest or estate in the land itself." That it may be so granted by the terms of the grant as to become an appurtenant right in the nature of an easement is implied in the citation. Wash- burn, to whose discussion of the subject we are referred, says distinct- ly, "this right of profit a prendre, if enjoyed by reason of holding a certain othe'r estate, is regarded in the light of an easement appurtenant to such estate ;" (Wash, on Eas. 8, § 7) ; and alluding also to rights acquired by custom or dedication, the author adds : "it would be diffi- cult to treat of easements or servitudes, without embracing these rights, as well as that of taking profits in another's land which one may enjoy in connection with the occupancy of the estate to which such right is united." It seems, therefore, to be the law, that a right to take a profit from an other's land, although capable of being transferred in gross, may also.be so attached to a dominant estate as to pass with it by a grant tra nsferring the land with its appurtenances. * * * An instructive case on this point is that of Grubb v. Guilford, 4 Watts (Pa.) 223, 28 Am. Dec. 700. There, on sale of twenty acres of ore-bank, a right was also given to the grantee to enter upon other lands of the grantor and search for iron ore, and mine and carry it away. The question was whether such right was appurtenant to the twenty acres, and it was held that it was not. Among the reasons giv- en were that a separate consideration for the ore mined was to be given, and that the right was in no manner necessary to the use or occupation of the twenty acres, and did not concern or affect it at all. The furnace to be supplied was on other lands, and the court said that the argument tended only to show that the right was appurtenant to the furnace, and not to the twenty acres, because while it was needed for the one, it was not for the other, and in no manner concerned it. * * * The whole question, thus, turns upon the inquiry whether the priv- ilege granted was of such a character as to be in the nature of an ease- ment and become, when exercised, an appurtenance. It does not con- cern or inhere in the land precisely like a right of way which is essen- tial or convenient irrespective of the use to which the land is put, but does do so relatively to that use, as in the case of land used for a mill or for the manufacture of iron. In those cases, as in this, the use for which the land was bought, and which characterized the contract of purchas e., became the essential element by which the privilege granted was t o Jbe measured and judged. The right to take^ice from the pond was the one essential thing leading to the purchase of the half acre, justTrymg the building put upon it, and making possible the perform- 176 RIGHTS IN THE LAND OF ANOTHER l^Pait 2 ance of the covenants for supply. We think that right passed to the present defendant. The judgment should be reversed and a new trial granted, costs to abide the event. All concur. Judgment reversed.^® SMITH ,v. GATEWOOD. (Court of King's Bench, 1G07. Cro. Jac. 152.) Trespass in a place called Horsington Holms. The defendant justi- fies, for that Stixwold is an ancient vill adjoining to the place where, &c. and that within the said vill is, and time whereof, &c. hath been such a custom ; that every inhabitant within any ancient messuage, within the said vill, by reason of his commorancy therein, hath had common in the place where, for all his great beasts, at all times of the year, &c. ; and so justifies as an inhabitant. And it was thereupon de- murred, whether such a prescription and usage in a vill for the inhab- itants for common and matter of profit be good? After argument at Bar and Bench, it was resolved, that it was not good; for inhabitants, unless they be incorporated,^" cannot prescribe to have profit in another's soil, but only in matters of easement, as in a way or causey to church, or such like : so in matters of discharge, as to be discharged of toll, or of tythes, or in modo decimandi, or the like : but to have interest it cannot be ; for that ought to be by persons in- abled, who are always to have continuance : for if there should be such prescription, then, if any of the inhabitants depart from their ancient houses, and the house continues empty, the inheritance of the common should be suspended; which cannot be. Nor can such a common be released; for if one inhabitant should release, another which succeed- ed him might claim it; which is against the rules of law, that an in- heritance in a profit should not be discharged : and by such prescrip- tion a maid servant or child who resides in the house is said to be an 10 Ace: Grubb v. Grubb, 74 Pa. 25 (1S73). A. claimed, by prescription of himself and his predecessors in title of a certain piece of land, as appurtenant thereto, the right to go on the ad- jacent land of B. and there cut down and carry away for all purposes the trees there growing. Held, A. cannot assert such a right by virtue of his ownership of the land. Bailey v. Stephens, 12 C. B. N. S. 91 (1862); see Heyward v. Cannington, 1 Siderfin, 354 (1668). A. owned a farm ; he conveyed in fee a strip to a railroad company. The deed contained the following clause: "Said parties of the first part to have the privilege of mowing and cultivating the surplus ground of said strip of land not required for railroad purposes." The farm was subsequently con- veyed to B. Held, B, does not have the right to cultivate the strip. Pierce v. Keator, 70 N. Y. 419, 26 Am. Rep. 612 (1877). 2 See Boteler v. Bristow, Y. B. 15 E. 4, 129, pi. 7, (1475) ; White v. Cole- man, Freem. 134 (1673). Compare Sale v. Pratt, 19 Pick. (Mass.) 191 (1837). See. also, Goodman v. Mayor of Saltash, L. R. 7 A. C. 633 (1882) ; Johnston V, O'Neil, [1911] A. C. 552; Harris v. Chesterfield, [1911] A. C. 623, Ch. 1) PROFITS 17t inhabitant, and to have the benefit of the common ; which would be in- convenient. Wherefore they all resolved, that such a custom alledged by way of usage (not otherAvise) is not good; and adjudged it for the plaintiff. It was said to be so resolved in Trinity Term, 33 Eliz. Roll 422. Lawrence v. Hull; and Coke cited, that in 19 Hen. 8, in Spel- man's Reports, it was adjudged accordingly in this court. Vide 7 Edw. 4 pi. 26. 15 Edw. 4 pi. 29. 18 Edw. 4 pi. 3. 20 Edw. 4 pi. 10. 9 Hen. 6 pi. 62. 18 Hen. 8 pi. 1." RACE V. WARD. (Court of Queen's Bench, 1855. 4 EI. & Bl. 702.) Lord Campbell, C. J.^^ The first count of the declaration is for breaking and entering the plaintiff's close in the township of Horbury, and committing various trespasses therein. The defendants justify under an immemorial custom in the said township for ail the inhabit- ants for the time being in the said township to have the liberty and priv- ilege to have and take water from a certain well or spring of water in the said close in which, &c., and to carry the same to their respective dwelling-houses in the said township, to be used and consumed therein for domestic purposes. The plaintfff demurs : and it has been argued before us that the plea is bad, because it claims a right for all the inhabitants of the township to take a profit a prendre in alieno solo. But we are of opinion that no such right is claimed by the alleged custom. The action is not for taking water the property of the plain- tiff ; and no such action could be supported unless the water were con- tained in a cistern or some vessel in which he had placed it for his pri- vate use. The defendants have to answer the charge of having unlaw- fully broken and entered the plaintiff's close, and trampled and injured his grass growing there, &c. In doing so they certainly claim a right by immemorial custom, in all the inhabitants of the township, to take wa- ter from a spring issuing from the close, and to carry it to their dwell- ing-houses for domestic purposes : but this claim is made with the view of excusing the alleged trespasses in entering the close and injur- ing the grass, &c. The water which they claim a right to take is not the produce of the plaintiff's close; it is not his property; it is not the subject of prop- erty. Blackstone, following other elementary writers, classes water with the elements of light and air. Vol. 2, p. 14. Afterwards, having 21 Ace: Grimstead v. Marlowe, 4 T. R. 717 (1792); Smith v. Andrews, [1891] 2 Ch. 678 (fishing) ; Hill v.- Lord, 48 Me. S3 (1861), taking seaweed. , 22 Part of the opinion is omitted. 1, BlG.RlGHTS — 12 178 RIGHTS IN THE LAND OF ANOTHER (Part 2 Stated that a man cannot bring an action to recover possession of a pool or other piece of water, either calculating its capacity, as for so many cubical yards, or by superficial measure for twenty acres of wa- ter, he gives the i:eason: "For water is a movable wandering thing, and must of necessity continue common by the law of nature." lb. p. 18. It is not disputed that this would be so with respect to the water of a river or any open running stream. We think it is equally true as to the water of a spring, when it first issues from the ground. This is no part of the soil, like sand, or clay, or stones ; nor the produce of the soil, like grass, or turves, or trees. A right to take these by custom, claimed by all the inhabitants of 3. district, would clearly be bad ; for they all come under the category of profit a prendre, being part of the soil or the produce of the soil: and such a claim, which might leave nothing for the owner of the soil, is wholly inconsistent with the right of property in the soil. But the spring of water is supplied and renew- ed by nature ; it must have flowed from a distance by an underground channel ; and, when it issues from the ground, till appropriated for use, it flows onward by the law of gravitation. While it remains in the field where it issues forth, in the absence of any servitude or custom giving a right to others, the ©.wner of the field, and he only, has a right to ap- propriate it ; for no one else can do so without committing a trespass upon the field ; but, when it has left his field, he has no more power over it, or interest in it, than any other stranger. For these reasons it has been considered that the inhabitants of a dis- trict may, by custom, have a right to go upon the soil of another to take or to use water. On examining the Yearbook, Trin. 15 Ed. 4, fol. 29 A. pi. 7, cited at the bar, it would appear that Genney, as counsel, says it would be a good prescription that all the inhabitants in such a vill have used from time immemorial to have the water in such a pond to drink, &c. Catesby, then a judge, assents to this, and he likens it to a custom for all the fishermen, inhabitants in a particular vill, to have a right to dry their nets on a particular close. There the word "pre- scription" is used ; but there is no prescription stated in a que estate ; and a customary right by reason of inhabitancy in a particular district is evidently described and intended. In Weekly v. Wildman, 1 Ld. Raym. 407, we find certain obiter dicta upon this subject which are entitled to some weight. "Blencowe, J. Inhabitants may have a custom to have pot water, which is an interest, and not barely an easement. But Powell, J., denied that, and said that it is only an easement." Both these learned Judges agree that inhabit- ants may have a right to enter the soil of another to take pot water; and only differ as to the name to be given to it, * * * The authorities relied upon by Mr. Unthank are not inconsistent with this doctrine. His quotation from Bracton does not prove that the right to take water when flowing in its natural course is a profit a prendre; and the learned author of that treatise, by the words he uses immediately after, shows that he was well aware of the distinction Ch^ 1) PROFITS 179 between such water and water in a cistern, which is the subject o£ pri- vate property. In Wickham v. Hawker, 7 M. & W. 63, the Court of Exchequer held that a "liberty, with servants or otherwise, to come into and upon" lands, "and there to hawk, hunt, fish, and fowl," is a profit a prendre within the prescription act, 2 & 3 W. 4, c. 71 : but that liberty and a liberty to take water are so different that they furnish no safe analogy to guide us in this case. In Blewett v. Tregonning, 3 A. & E. 554 (E. C. L. R. vol. 30), this Court held an alleged custom to be bad for all the inhabitants occupy- ing lands in a district to enter a close, and take therefrom reasonable quantities of sand which had drifted thereupon, for the purpose of manuring their lands. The reason was that the drifted sand had be- come part of the close, so that the claim was to take a profit in alieno solo : but the water to be taken never had become part of the close ; nor was it the produce of the close. The plaintiff's counsel lastly referred to the recent decision of the House of Lords in Dyce v. Lady James Hay, 1 Macqueen, 305, in which the Lord Chancellor said that neither by the law of Scotland or ^.^^ -, of England can there be a prescriptive right, in the nature of a servi- . ' tudej)r easement, so large as to preclude the ordinary uses of property by the owner oFlhe lands affected. But no such consequence will fol- (7 ,*' /" low from the customary easement claimed in the present case; and it ;' ' '' does not interfere with the ordinary uses of the plaintiff's close so much as the custom would which was held to be valid in Tyson v. Smith, 6 A. & E. 745 (E. C. L. R. vol. ZZ), 9 A. & E. 406 (E. C. L. R. vol. 36), that, at fairs holden on the waste of a manor, every liege sub- ject exercising the trade of a victualler might enter, at the time of the fairs, and erect a booih, and continue the same a reasonable time after the fairs, for the more convenient carrying on his calling. As to customary rights claimed by reason of inhabitancy, the d is- tinction has always been between a mere easement and a profit a pren- dre^ A custom for all the inhabitants of a vill to dance on a particular close at all times of the year, at their free will, for their recreation, has been held good, this being a mere easement ; Abbot v. Weekly, 1 Lev. 176; and we held, last Term, that, to a declaration for breaking and entering the plaintiff's close and taking his fish, a custom pleaded for all the inhabitants of the parish to angle and catch fish in the locus in quo was bad, as this was a profit a prendre, and might lead to the de- struction of the subject-matter to which the alleged custom appli- ed. * * * Judgment for the defendants.^' 2 3 The privilege of piling lumber upon the land of another cannot be ob- tained by custom. Talbott v. Grace, 30 Ind. 389, 95 Am. Dec. 704 (1S08) ; Littlefield v. Maxwell, 31 Me. 134, 50 Am. Dec. 653 (1S50); Ackerman v. Shelp, 8 N. J. Law, 125 (1825) ; Post v. Pearsall, 22 Wend. (N. Y.) 425 (18391. 180 EIGHTS IN THE LAND OF ANOTHER (Part 2 CHAPTER II EASEMENTS SECTION 1.— GENERAL PRINCIPLES OF EASEMENTS ABBOT V. WEEKLY. (Court of lOng's Bench, 1665. 1 Lev. 176.) Trespass for breaking his close; the defendant prescribes, that all the inhabitants of the vill, time out of memory, &c. had used to dance there at all times of the year at their free will, for their recreation, and so justifies to dance there: issue was on the prescription, and a ver- dict for the defendant, and to save his costs the plaintiff moved in ar- rest of judgment, that this prescription to dance in the freehold of an- other, and spoil his grass, was void, especially as it is laid, viz. at all times of the year, and not at seasonable times ; and that 'twas also ill laid in the inhabitants, who although they may prescribe in easements, as 6 Co. Gateward's case, and some other books are, yet they ought to be easements of necessity, as ways to a church, &c. and not for pleasure only, as this case is. Secondly, If it be good, it ought to have been laid by way of custom in the town, and not by prescription in the persons , and a case was cited, where 'twas so adjudged on a demurrer: but by the Court, this is a good custom, and it is necessary for inhabitants to have their recreation. And as to the second, that though perhaps it had been ill on a demurrer, yet issue being taken there on and found for the defendant, 'tis good ; and judgment was given for the defend- ant.^ lAcc: Knowles v. Dow, 22 N. H. 387, 55 \va. Dec. 163 (1851), on the ground that twenty years' use .iustifies the finding of immemorial use. A custom "for all persons for the time being, being in a certain parish," to play games upon a specified close, was held bad in Pitch v. Bawling, 2 H. Bl.'393 (1795). See, also, Mousney v. Ismay, 1 H. & C. 729 (1863). C ^K-t, 41.) Action in the nature of trespass qu. cl. fr., brought by appeal from a judgment of a justice of the peace to the court of common pleas in New London county, and tried by jury before Noyes, J. ; verdict and judgment for the plaintiff for one cent damages, and appeal by the de- fendants. Error and new trial ordered. Baldwin, J. The answer contained three separate defenses — a gen- ' eral denial ; an entry in the exercise of a pres criptive right of way to ^ and from Taftville, appurtenant to a close of the defendants situated in a quarter of the town of Lisbon known as "Blissville" ; and an en- try in the exercise of a right of way to and from Taftville, belonging bymim^mOTialJocal^c^storn to all the inhabitants of BHssville. It was admitted that the land over which the way was alleged to exist was bounded by a highway, on the opposite side of which, at a distance of about half a mile, the defendants owned a house and farm, which was the close to which they claimed the way to be appurtenant. The de- fendants introduced evidence which, as they claimed, proved the exist- ence of each of the rights of way set up in their answer — the former by a continuous, uninterrupted, and adverse user for more than 15 years by them and their predecessors in title in connection with the occupation, use, and enjoyment of their close, and the latter by a like user for more than 15 years by all the landowners and inhabitants of BHssville generally, and their tenants and employes. With respect to the third defense, the jury were instructed that if a substantial portion of the inhabitants of BHssville for an entire period of at least 15 years had uninterruptedly, continuously, adversely, and under a claim of right in behalf of all the inhabitants, passed over the land in question, to and from Taftville, with the knowledge of the own- er of the land, a right of way in favor of all the inhabitants was there- by acquired, founded on custom, which attached to every one who for the time being was such an inhabitant, while he continued to be such ; that, if such a user was open, notorious, and visible, the owner of the land was charged with notice of it; that a user would be continuous and uninterrupted, if it w ere substantially such, although it were more or less frequent, according to the nature of the way and the occurrence of occasions for traveling over it ; and that certain testimony which had been introduced by the plaintiff as to the existence of other paths and their use by the inhabitants in going to and from Taftville tend- ed in a measure to show that their use of the way claimed was not con- tinuous, uninterrupted, and customary. These instructions are made a ground of appeal by the defendants. They were too favorable to the defense. A right of way by custom in favor of the inhabitants of a particular locality might be set up by the IJl^^ .^^-y^-m\ 'A 182 RIGHTS IN THE LAND OF ANOTHER (Part 2 common law of England. It could be proved by immemorial usage. From such proof a presumption was deemed to arise that the usage was founded on a legal right. This right was not assumed to arise from a grant by an owner of land of an easement in it. No grant of that nature can subject the tenement of the grantor to an easement which will outlast the life of the grantee, unless it be made in such a way as to become appurtenant to some other tenement. A right of way by custom appertains to a certain district or territory, but not to any par- ticular tenement forming 'part of that territory. Nor is it confined to owners of land within that territory.' It belongs to the inhabitants of that territory, whether landowners or not. To a fluctuating body of that kind no estate in lands can be granted. If, therefore, an easement be claimed to exist in their favor, a title cannot be made out by pre- scription, on the theory of a lost grant. It must have come, if at all, from some public act of a governmental nature. The theory of English law was that, if there had been a usage from time immemorial (that is, so far as could be ascertained, from the coronation of Richard I), affecting the use of real estate by those not able to show any paper title to warrant it, it might fairly be presumed that it arose under an act of Parliament or other public act of govern- ing power, the best evidence of which had perished. A charter from some feudal lord or ecclesiastical corporation might be such an act. Of such charters there were no public records. That the accidental de- struction of the parchment on which one was written should annul the privileges which it gave would be plainly unjust. The political and legal institutions of Connecticut have from the first differed in essential particulars from those of England. Feudal- ism never existed here. There were no manors or memorial rights. A recording system was early set up, and has been consistently main- tained, calculated to put on paper, for perpetual preservation and pub- lic knowledge, the sources of all titles to or incumbrances affecting real estate. Nor have we all the political subdivisions of lands which are found in England. An easement by custom may exist there in favor of the inhabitants of a city, county, town, hamlet, burgh, vill, manor, honor, or hundred. Co. Litt. 110b, 113b, 115b. Most of these terms denote forms of communities that are unknown in this state. Under our statute of limitations, also, rights of way may be established by a shorter user than that required by the English law. Coe .v, Wolcott- ville Mfg. Co., 35 Conn. 175; Gen. St. 1902, § 1073. During the greater part of the colonial era the common law of Eng- land was not deemed to form a part of the jurisprudence of Connecti- cut, except so far as any part of it might have been accepted and intro- duced by her own authority. Stat. (Ed. 1769) 1 ; Swift's System, I, 44. Later the doctrine received the sanction of this court that it was brought here by the first settlers, and became the common law of Con- necticut so far as it was not unadapted to the local circumstances of \his country. Card v. Grinman, 5 Conn.164, 168. This court has never Ch. 2) EASEMENTS 183 affirmed the recognition by our law of personal rights of way or other easements resting on local custom. In view of all the considerations named, we are of opinion that such rules of the English common law as gave them sanction were unadapted to the conditions of political society existing here, and have never been in force in Connecticut.^ It follows that the trial court erred in directing the jury to disregard the second defense. They were told in the first place to disregard it because the evidence of user introduced in its support was equally rel- evant to support the third defense, and if the defendants, as inhabitants of Blissville, had a personal right of way by local custom, their user, being consistent with that, could not be claimed to indicate the asser- tion and enjoyment of a way by prescription appurtenant to their par- ticular close. See Blewett v. Tregonning, 3 Adolphus & Ellis, 554. There being no such thing in Connecticut as a personal right of way established by custom, the evidence in question could only be pertinent to the second defense, and, if sufficient to support that, the defendants would have been entitled to a verdict. The defendants had themselves used the way in question only since they purchased their close, seven years before. To make out a prescriptive right, it was therefore nec- essary to tack the user by their predecessors in title. The trial court further instructed the jury particularly with regard to the second defense, that there had been no evidence that the use of the way by the defendants or their predecessors in title had any con- nection with the defendants' land, nor any direct relation to its use and enjbymeiif, since it differed in no respect from the use of the way by their neighbors, and therefore that no way appurtenant to their close had been made out. In this there was error. An easement may be ap- purtenant to land although the servient tenement is separated by other lands from the dominant tenement. * * * A right to convey water from a distant source of supply may be appurtenant to a tenement sep- arated from that on which such source of supply is situated by several intervening parcels of land, each belonging to a different proprietor. Cady V. Springsville Waterworks Co., 134 N. Y. 118, 31 N. E. 245. In like manner, a way from one close to and through another is none the less appurtenant to the former if it run over the intervening lands of numerous proprietors. Guthrie v. Canadian Pacific Railway Co., 27 Ont. App. 64, 69 ; Horner v. Keene, 177 111. 390, 52 N. E. 492. See Fisk v. Ley, 76 Conn. 295, 56 Atl. 559. No reason is apparent why the same principles should not govern when a way is prescribed for as an appurtenance, which commences at a highway. In an early English case the plaintiff declared on a way to his close in D "in, by, or through a certain way in Sale," and in over- ruling a motion in arrest of judgment the court held that assuming the term "way," as thus used, to mean highway, while the plaintiff was 2 Ace: Ackerman v. Shelp, 8 N. J. Law, 125 (1825). See Coolidge v. Learned, S Pick. (Mass.) 504 (1829). 184 RIGHTS IN THE LAND OF ANOTHER ^ (Part 2 in the exercise of a public right when on the highway he might pre- scribe for a way over adjoining ground reached from and by means of the highway. Banning's Case, Noy, 9. This is cited by Comyn as authority for the position that a private way may exist to the close of another, through or across the highway. Com. Dig., Ill, 37 "Chemin," D. So it has been held that a way may be appurtenant to a close though separated from it by a navigable river. Case of Private Road, 1 Ash- mead, 417, 421. That a way cannot be appurtenant to a close at which it neither begins nor ends has been often asserted by text-writers, and is not without countenance from judicial decision. Washburn on Ease- ments, *161 ; 23 Am. & Eng. Encyclop. of Law, 6, "Private Ways"; Whaley v. Stevens, 21 S. C. 221 ; Id., 27 S. C. 549, 558, 559, 4 S. E. 145. The better reason stems to us to lead to a contrary conclusion, and to be supported by the rules of common law. An appurtenant way or- dinarily does touch the close to and from which it leads, and that it should is commonly essential to its enjoyment; but it is not always thus essential, and, when not, the dominant may be separated even at a long distance from the servient tenement.^ The use, however, of any easement, which can be claimed as an appurtenance by prescription, must be so related to the use of the dominant tenement that its partic- ular connection with the beneficial enjoyment of that tenement is not merely conjectural, but direct and apparent. A claim to a way by pre- scription appurtenant to a particular close being founded on the pre- sumption of a lost grant, none can be so gained unless the prescriptive use was such as to make it reasonable to presume that the owner of the land over which the way was used knew that such use was in connec- tion with and furtherance of the enjoyment of such close. He might be willing to concede a claim to a personal right of way which would cease with the life of the claimant, when he would dispute a claim to a right of way appurtenant .to another's close, which would endure forever. The fact that the respective closes of the parties were half a mile apart, and that the way was only accessible by the highway on which each of these closes abutted, did not conclusively bar a claim that the way was an appurtenance to that of the defendants. The testimony which they had introduced tended to show a long, adverse, and contin- 8 In addition to the cases cited in the opinion, see Thorpe v. Brumflt, L. R. 8 Ch. App. 650 (1873); Louisville & N. R. R. v. Koelle, 104 111. 455 (1882); Winston v. Johnson, 42 Minn. 398, 45 N. W. 958 (1890). Compare Garrison v. Rudd, 19 111. 558 (1858). A. owned a farm upon which was a spring. He convej'ed a part of the farm to his son B. in fee, together with the right "to take water from my spring for his family use" ; he later conveyed another portion to his daughter C. in fee, together with "a privilege to take water from the spring on my farm as occasion may require." Held, C.'s easement was appurtenant to the land conveyed to her. Chase v. Cram, 39 R. I. 83, 97 Atl. 481, L. R. A. 1918F, 444 (1916). Compare Coatsworth v. Hayward, 78 Misc. Rep. 194, 139 N. Y. Supp. 331 (1912). Ch. 2) EASEMENTS 185 uous user by the successive owners of their close, in connection with their use, occupation, and enjoyment of it in going thence to Taftville and back. Such a user, if proved to the satisfaction of the jury, might sufficiently establish a direct connection between the use of the close and the use of the way to bring it within the definition of a way ap- purtenant. That some or all of their neighbors might have a similar way, appurtenant to their closes, was immaterial. Kent v. Waite, 10 Pick. (Mass.) 138. Other reasons of appeal require no discussion, as the questions pre- sented are not likely to recur on another trial. There is error, and a new tria l is ordered. The other Judges con- curred. ACKROYD V. SMITH et al. (Court of Common Pleas, 1850. 10 C. B. 164.) [Trespass qu. cl. f r. for breaking and entering a certain close of the plaintiff, which consisted of a road or lane running between the Brad- ford and Thornton turnpike road on one side and a certain other road known as Legram's Lane on the other side. The plaintiff was the owner subject to a mortgage to one Lister, and in possession of the locus in quo. He had also owned, subject to the same mortgage, cer- tain other adjacent parcels. He and the mortgagee by deed had con- veyed these other parcels in fee to one John Smith "together with all ways, paths, passages, particularly the right and privilege to and for the owners and occupiers, for the time being, of the said close, pieces, or parcels of land, or any of them, and all persons having occasion to resort thereto, of passing and re-passing, with or without horses, cat- tle, carts, and carriages, for all purposes, in, over, along, and through a certain road running between the Bradford !\nd Thornton turnpike road and Legram's Lane." The defendants in their plea set out the above-mentioned convey- ance and deduced a title in themselves by mesne conveyances of the above granted lands "and appurtenances," and alleged that thus being the owners of the parcels conveyed and having occs-sion for tlieir own purposes to use the right so granted they had passed over the road over which the way had been granted, and so justifief' the trespasses complained of. The plaintiff demurred, assigning for causes that the plea did not show that the trespasses justified were committed in going to or from the premises conveyed, or that they were in any manner connected with the enjoyment of these premises.] CrEswell, J.* * * * In support of the demurrer, it was con- tended, first, that the road granted was only for purposes connected 4 The statement of facts is abridged and part of tlie opinion of (Jress-veU J., and the opinion of Wilde, C. J., are omitted. 186 RIGHTS IN THE LAND OF ANOTHER (Part 2 with the occupation of the land conveyed, and therefore was not suffi- cient to support tlie justification pleaded, and, secondly, that, if the grant was more ample, and gave to the grantee a right of using the road for all purposes, although they might not be in any way connected with the enjoyment of the land, it would not pass to an assignee of the land, and therefore the defendants could not claim it under a conveyance of the land, with the appurtenances. On the other hand, it was contended that the right created by deed might be assigned by deed, together with the land, and was large enough to maintain the justification pleaded. Upon consideration, we have come to the Conclusion that the plain- tiff is entitled to our judgment on the demurrer. If the right conferred by the deed set out, was only to use the road in question for purposes connected with the occupation and enjoyment of the land conveyed, it does not justify the acts confessed by the plea. But, if the grant was more ample, and extended to using the road for purposes unconnected with the enjoyment of the land — and, this, we think,, is the true construction of it^t becomes necessary to decide whether the assignee of the land and appurtenances would be entitled to it. In the case of Keppell v. Bailey, 2 Mylne & K. 517, the subject of covenants running with the- land, was fully considered by Lord Chancellor Brougham; and the leading cases on it are collected in his judgment. He there says: ° "The covenant (that is, such as will run with the land) must be of such a nature as 'to inhere in the land,' to use the language of some cases ; or, 'it must concern the demised prem- ises, and the mode of occupying them,' as it is laid down in others : 'it must be quod ammodo annexed and appurtenant to them,' as one au- thority has it ; or, as another says, 'it must both concern the thing de- mised, and tend to support it, and support the reversioner's estate.' " Now, the privilege or right in question does not inhere in the land, does not concern the premises conveyed, or the mode of occupying them; it is not appurtenant to them. A covenant, therefore, that such a right should be enjoyed, would not run with the land. Upon the same prin- ciple, it appears to us that such a right, unconnected with the enjoy- ment or occupation of the land, cannot be annexed as an incident to it : nor can a way appendant to a house or land be granted away, or made in gross ; for, no one can have such a way but he who has the land to which it is appendant: Bro. Abr. Graunt, pi. 130." 21_.?:->YSy_be granted in gross, it is personal only, and cannot be assigned. So, coiy- mon in gross sans nombre may be granted, but cannot be granted over — per Treby, C. J., in Weekly v. Wildman, 1 Ld. Raym. 407. It is not in the power of a vendor to create any rights not connect ed w ith 2 Mylne & K. 537. 6 Citing 5 H, 7, 7 (M. 5 H. 7, fo. 7, pl. 15): "Note, tbat it was said by Fairfax (Justice of C. P.) for law, tbat, if one has a way appendant to his manor, or to his bouse by prescription, that way cannot be made in gross ; because no man can tal^e profit of tbat way, except he have the manor or the house to which the way is appendant." Ch. 2) EASEMENTS 187 the use or en|oyment of the land, and annex them to it: nor can the ovyner of land render it subject to a new species of burthen, so as to bind it in the hands of an assignee. "Incidents of a novel kind cannot be devised, and attached to property, at the fancy or caprice of an}' owner." Per Lord Brougham, C, in Keppel v. Bailey. This principle is sufficient to dispose of the present case.. It would be a novel incident annexed to land, that the owner and occupier should, for purposes wholly unconnected with that land, and merely because he is owner and occupier, have a right of road over other land. And it seems to us that a grant of such a privilege or easement can no more be annexed, so as to pass with the land, than a covenant for any col- lateral matter. The defendants cannot, therefore, as assigns, avail themselves of the grant to John Smith ; and our judgment must be for the plaintiff. Judgment for the plaintiff. BOATMAN v. LASLEY. (Supreme Court of Ohio, 1873. 23 Oliio St, 614.) Motion for leave to file a petition in error to the District Court of Gallia county. The original action was brought in the Court of Common Pleas of Gallia county by Matthew Lasley against Isaac Boatman and wife, to f oreclose a mortgage executed by the defendants to secure the payment of purchase money of the lands mortgaged. The mortgaged premises had been conveyed by the plaintiff to defendant, Isaac Boatman, on the 15th of March, 1870, by a deed containing a covenant that the de- mised premises were free and clear of all incumbrances. The defend- ant aniwered, and by way of counterclaim, alleged damages resulting from a breach of this covenant against incumbrances. The alleged in- cumbrance consisted of a private right of way over the warranted,prem- ises, outstanding at the date of the conveyance in one Alexander Logue. This right of way had been granted by deed, on the 7th day of June, 1862, by the warrantor, to "Logue, his heirs and assigns, and the ten- ants or occupiers for the time being of the lands now (then) owned and occupied by the said Alexander Logue, in section 15, town 5, of range 14, in the Ohio Company's Purchase. It is also alleged in the answer, that, before the 15th of March, 1870 (the date of the covenant), said Logue had conveyed his lands in section 15, town 5, of range 14, in the Ohio Company Purchase, to one George W. Roush. It is not al- leged, however, that Logue, at the time the right of way over the war- ranted premises was granted to him by the plaintiff, was the owner or occupier of any land in said section 15, or elsewhere, nor is it alleged that the right of way complained of became appendant or appurtenant to anv land whatever, or that said Roush had any interest in said right 188 RIGHTS IN THE LAND OF ANOTHER (Part 2 The plaintiff, in his reply, denied that Roush had an easement or right of way on the premises granted to the defendant, and also denied that the defendant had sustained any damage by reason of the right of way complained of. The cause was submitted to a jury, who assessed the defendant's damages, by reason of the existence of the right of way, at $100, which sum was deducted from the mortgage debt, and decree entered in favor of the plaintiff for tlie balance. During the trial the defendant took a bill of exceptions, from which it appears that the defendants offered in evidence the deed for the right of way from Lasley to Logue, a copy of which is attached, marked "A." They also gave evidence tending to prove that said right of way was still in the occupation of said Alexander Logue, and those claim- ing under him, who were then occupying the lands to which said right of way was intended to be made appendant. "And the plaintiff, to maintain the issue on his part, gave evidence tending to show at the time said deed of right of way was executed by him to Alexander Logue, the said Logue did not own the land to which the right of way was intended to be appendant, and that said Logue had, prior to the execution of the deed of right of way, conveyed said lands to one George W. Roush." The evidence being closed, the court charged the jury as follows: "If the jury shall find from the evidence that at the date of the deed made by Lasley to Logue, marked *A,' the said Alexander Logue, gran- tee therein, was not the owner in fee or otherwise of some real estate adjoining the farm through which said right of way is granted, or situate in the neighborhood, so that said right of way may become ap- purtenant to the same, then the said deed conveys a right of way per- sonal to himself alone — one which can not descend to his heirs, and one which he can not assign or release to another person, excep! such other person be the owner of the farm through which said way was granted." The judgment of the Common Pleas was afterward, on petition in error, affirmed by the District Court of Gallia county. Leave is now asked to file a petition in error in this court to reverse the judgment below, for alleged error in the charge to the jury as above set forth.- McIlvaine, J. Is a private right of way over the lands of another, in gross, such an interest or estate in land, as may be cast by descent, or may be assigned by the grantee to one who has no interest in the land? These are the only questions in this case. If such a right be inheritable or assignable, the Court of Common Pleas erred in its charge ; otherwise there is no error in the record. The terms of the deed from Lasley to Logue plainly import an in- tention to make the right of way therein granted appendant and ap- purtenant to other lands, but the record does not disclose either the facts or the law given to the jury, whereby it could determine whether Ch. 2) EASEMENTS 189 or not tliat intention was accomplished. It simply shows that the jury was instructed that if tlie right of way granted did not and could not, under the circumstances, become appurtenant to lands other than those over which it was granted, then it was a mere personal right in the grantee, which could not be inherited from him, or transferred by him to a stranger. The correctness of this instruction does not depend upon a construc- tion of the deed by which it was granted, for the terms of the grant are "to Alexander Logue, his heirs and assigns." The real question is, whether or not a private right of way in gross is, in law, capable of being transferred or transmitted. It is strongly insisted upon, in argument, that a right of way in gross may be conveyed to the grantee "and to his heirs and assigns forever," because an owner in fee may carve out of his estate any interest less than the whole and dispose of the less estate absolutely; and this be- cause the power to dispose of the whole estate includes a power to dis- pose of any part of it. This argument assumes the affirmative of the very question in con- troversy, to wit, that such a right of way is an interest or estate in the land. A mere naked right to pass and repass over the land of another, a use which excludes all participation in the profits of the land, is not, in any proper sense, an interest or estate in the land itself. Such a right is in its nature personal ; it attaches itself to the person of him to whom it is granted, and must die with the person. If such right be an inheritable estate, how will the heirs take? In severalty, in joint tenancy, coparcenary, or as tenants in common? If not in severalty, how can their interests be severed? If it be assignable, what limit can be placed on the power of aliena- tion? To whom and to how many may it be transferred? Why not to the public at large, and thus convert into a public way that which was intended to be a private and exclusive way only ? Where the way is appendant or appurtenant to other lands, very dif- ferent considerations arise. There the right attaches to the lands to which the way is appurtenant, because it is granted for the convenience of their occupation without respect to the ownership or number of oc- cupants. In such case the right of way passes with the dominant es- tate as an incident thereto. A right of way appendant cannot be con- verted into a way in ^ross, nor can a way in gross be turned into a way appendant. A very marked distinction also exists between a way in gross and an easement of profit a prendre ; such as the right to enter upon the lands of anotlier, and remove gravel or other materials therefrom. The latter so far partakes of the nature of an estate in the land itself, as to be treated as. an inheritable and assignable interest. Post v. Pear- sail, 22 Wend. (N. Y.) 432. 390 EIGHTS IN THE LAND OF ANOTHER (Part 2 Both upon principle and authority, we think there was no error in the charge of the court below. Mr. Washburn in his work on Ease- ments, page 8, par. 11, states the law upon this subject as follows: "A man may have a way in gross over another's land, but it must, from its nature, be a personal right not assignable or inheritable ; nor can it be made so by any terms in the grant, any more than a collateral and in- dependent contract can be made to run with the land." See also Ack- royd V. Smith, 10 C. B. 164; Garrison v. Budd, 19 111. 558; Post v. Pearsall, 22 Wend. (N. Y.) 432; Woolrych on Ways, 20; 2 Black Com. 35; 3 Kent's Com. 420, 512. Leave refused.'^ STANDARD OIL CO. v. BUCHI et ux. (Court of Chancery of New Jersey, 1907. 72 N. J. Eq. 492, 66 Atl. 427.) PiTNSY, Advisory Master.* The object of the bill is to obtain ju- dicial restraint preventing the defendant from interfering by strong hand and serious threats of violence with the complainant's work in laying across the lands of the defendant in Bergen county a line of pipe for the transportation of oil. * * * The complainant claims the right in question by virtue of a deed dated the 30th day of October, 1882, and duly recorded on the 6th day of December, 1882, in the clerk's office of Bergen county, where the lands lie, between James H. Kingsland, predecessor in title of the de- fendant and then the owner of the lands in question, and one John B. Barbour, under whom the complainant claims. That deed, or so much of it as is necessary for present purposes, is as follows : "Witnesseth : That for and in consideration of five dollars in hand paid, the receipt of which is hereby acknowledged and the further sum of twenty dol- lars to be paid before any pipe is laid, the party of the first part, his heirs and assigns, hereby grants to the party of the second part, his heirs and assigns, the right of way to lay pipes for the transportation of petroleum ; and operate the same on, over and through his lands in said County of Bergen, in said State of New Jersey, described in a certain deed dated Sept. 13th 1881, and recorded in the County Clerk's office of Bergen County, in book Z-10 page 542 of deeds, together with all the rights and privileges incident and necessary to the enjoy- ment of this grant, and the removal of said pipes. * * * It is un- derstood and agreed between the parties hereto that said pipe lines are to be laid within ten feet of the southerly lines of the above described property, excepting where there are angles in said property lines at which points such deflections shall be made therefrom as the surveyor 7 Contra: Shreve v. Mathis, 63 N. J. Eq. 170, 52 Atl. 234 (1902). See Hall v. Armstrong, 53 Conn. 554, 4 Atl, 113 (1885); Wilder v. Wheeler, 60 N. H. 351 (1880). 8 Part of the opinion is omitted. Ch. 2) , EASEMENTS 191 of the party of the second part may decide to be necessary. Witness our hands and seals the day and year first above written. [Signed] Jas. H. Kingsland. [Seal.] J. B. Barbour. [Seal.]" The bill alleges, and in this respect is supported by the affidavits, or at least is not disputed on this motion, that the grantee, Barbour, was a mere agent or trustee for procuring the right of way (and land for pumping stations) for a continuous underground series of pipes con- ducting petroleum from Pennsylvania and other oil-bearing regions to tide water. That in 1880 he purchased certain land in Bergen county from a Mrs. Zabriskie, and an adjoining tract from one Knowles, for the purpose of a pumping station, which he immediately conveyed to the Standard Oil Company, and that the deed above mentioned from Kingsland was also taken by said Barbour as a part of the right of way for a great pipe line system for conducting oil from the oil regions to tide water, and shortly afterwards was assigned and conveyed to the complainant and a continuous line of oil-bearing pipe was laid over it, including the Kingsland strip, and pumping stations erected and the pipe line put in use for tlie purpose of conveying oil, and has been in use ever since ; that later on, in 1894, a second pipe line was laid along- side the first along the entire length of the Kingsland property and put in immediate use, and that the object of the present proposed interfer- ence with the soil of the defendant is to lay a third pipe line over the whole right of way close beside the first. The justification set up by the defendant amounts to a demurrer to the bill, and the argument in its support may be briefly stated as fol- lows : That the grant contained in the Kingsland deed amounted to no more than the grant of an easement without the naming of any dom- inant tenement, and therefore amounted to no more than an easement in gross, which was not assignable, and hence amounted to a mere li- cense, and was determinable at the will of the licensor; that the license was in law immediately abandoned by the assignment thereof, and that it was also formally determined by a notice of revocation given by the defendant Buchi to the complainant, dated March 5, 1907, and annex- ed to the bill of complaint. The first inquiry naturally is : what is the true character of the grant in question? Is it properly classified either as a mere easement or as a mere revocable license? It is to be observed, in the first place, that it is an instrument under seal, and expresses to be for a valuable con- sideration presently paid, with the provision for the ascertainment of a further consideration in a mode, the reasonableness of which seems to me to be quite apparent and which has not been attacked in the argu- ment. In the next place, it is not a mere promise to do something in the future, nor is it a mere permission, but it is a grant in prsesenti, and it is not a mere privilege given to tlie grantee which can be con- sidered as merely personal to him, such as a privilege to wander over ground with or without the privilege of hunting or fishing, but it is 193 RIGHTS IN THE LAND OF ANOTHER (Part 2 made to the grantee, his heirs and assigns. Then it is not the mere privilege to walk or pass over land without the right to disturb the soil, as is a right of way, but it is a "right to lay down pipes for the trans- portation of petroleum and to operate the same over" the lands, "to- gether with all the right and privileges incident and necessary to the enjoyment of the grant and the removal of the pipes." This grants rights in the soil in perpetuo. Now just here the defendant attempts to meet this aspect of the case by setting up that he does not propose to dispute or disturb what has already been done under the so-called license, or to interfere with the complainant in the enjoyment of its works already on his land, but he claims the right to prevent any. further exercise of the rights mentioned in the grant. Nor does he contend that the right to lay the third line of pipes is not included in the terms of the grant. Nor does he con- tend that there ,is anything inequitable in the complainant's standing before the court. On the contrary, hfe puts himself on the bold, bare ground that, because there was no dominant tenement mentioned in the grant to which what would have been an easement was appurtenant or appendant, the easement so called became one in gross and not as- signable, and by its attempted assignment ceased to exist in law, or at least degenerated into a mere license revocable so far as not acted upon. Now, is it possible to treat the document in question as having no greater force than that? The doctrine contended for, if logically ap- plied, leads to this result: If Mr. Barbour had paid Mr. Kingsland $1,000 in cash for this grant, and had tlie next day assigned it to the complainant, it would have been possible for Kingsland to have imme- diately destroyed the value in the law of his grant by a formal revoca- tion of it, and the complainant would have had no relief in equity by showing that Barbour was acting merely as its agent ; for it is not con- tended by the defendant that the Standard Oil Company has not the capacity in law of holding the title to and operating a pipe line such as that described and in actual use. And it is to be observed that the ques- tion is not whether in the then present condition of the law the Stand- ard Oil Company had the right to acquire by condemnation proceed- ings the lands and rights of way for its pipe line and pumping stations from the western oil fields to tide water, but the question is whether, having first purchased the lands and rights of way through agents, by means of divers conveyances which did not disclose, so far as relates to mere rights of way, any termini or dominant tenement, it could have been prevented by any one of the grantors from proceeding to lay its pipe across the grantor's land, or, rather, whether, having acquired title in that manner, by grants which provided in effect the right to add to its pipe line from time to time, and having acted upon those grants so obtained, and having built a great trunk line and being in possession and use thereof, it may be prevented from adding thereto on the ground here taken. * * * Ch. 2) EASEMENTS 193 The idea underlying the ordinary easement is that it is at the ex- pense of one tenement, called the "servient" tenement, and for the benefit especially of another tenement, called the ''dominant'' tenement. Clearly the right granted by the deed in this case was not of that char- acter, and hence it must be construed by rules not applicable to those of ordinary easements. There was in this case, and could in the nature of things be, no dominant tenement. Nor is it, in its essential nature a license, nor can it be reduced in its nature in that respect. It by its- terms granted a permanent right to lay the pipe, to maintain the same, and to remove the same. It gave an interest in the land quite as posi- tive and as permanent as that in which a deed is given granting the right to lay a line of water pipes or to erect a line of telephone poles across the grantor's land, where the circumstances indicate that the work done thereunder was to be permanent. From these considera- tions, based on general and familiar principles, I come to the conclusion that the defendant's position is untenable, especially when urged in ? court of equity.^ * * * I think the present grant is something more than an easement, al though undoubtedly it includes easements, and I think that it is a great deal more than a license, in that it gives an irrevocable interest in the land and creates, by apt words, an estate, is expressed to be upon a consideration, and is sealed by the seal of the grantor. I can find no authority in any of the treatises or in any of the adjudged cases for holding that it is revocable. As in my judgment the right of the complainant is entirely clear and not subject^ to revoca tion, I think it is entitled to relief by way of im- mediate injunction.^" * * * 9 The court here discussed the following cases: Ackroyd v. Smith, 10 C. B. 164 (1850) ; Goodrich v. Burbank. 12 Allen (Mass.) 459, 90 Am. Dec. 161 (1866) ; Mavor, etc., of City of New York v. Law, 125 N. Y. 380, 26 N. K. 471 (1891); East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248 (1880); Eckert v.. Peters, 55 N. J. Eq. 379, 36 Atl. 491 (1896) ; Mitchell v. D'Olier, 68 N. J. Law, 375, 53 Atl. 467, 59 L. R. A. 949 (1902) ; Wilkins v. Irvine, 33 Ohio St. 138 (1877) ; Wood v. Leadbitter, 13 M. & W. 845 (1845) ; Wood v. Manley, 11 A. & E. 34 (1839) ; Berry v. Potter, 52 N. J. Eq. 664, 29 Atl. 323 (1894) ; Sked v. Pennington, 72 N, J. Eq. 599, 65 Atl. 713 (1907). 10 Ace. : Goodrich v. Burbank, 12 Allen (Mass.) 459 (1866). A. conveyed to B. in fee a piece of land between two rivers, "reserving the right of erecting a log sluice and flume between my mill and the. mill of said grantees." Held, A. could convey this right in fee to C, the owner of an- other mill, who could use it for fluming logs to his mill as against B.'s gran- tee of the servient tract. Ring v. Walker, 87 Me. 550, 33 Atl. 174 (1895). A. granted to B., "his heirs and assigns forever," the right "to take water for his family and for any other purpose" out of a specitied well on A.'s land. Held, assuming the right to be in gross, B. could convey it in fee to C, who could enforce it against A.'s grantee of the servient piece. Poull v. Mockley, 33 Wis. 482 (1873). A. had a lease of a tract of land. He made a contract under seal with B., by which ho covenanted that B. should have the right to the exclusive use of the fences surrounding the tract for advertising purposes so long as A. or his assigns should occupy the land. A, assigned the lease of the t'-act Big. Rights — 13 194 BIGHTS IN THE LAND OF ANOTHER (Part 2 CADWALADER v. BAILEY et al. (Supreme Court of Rhode Island, 1891. 17 R. I. 495, 23 Atl. 20.) Bill in equity for an injunction. The bill shows that Joseph I. Bailey and Alfred Smith were ten- ants in common of a piece of land known as Bailey's Beach. .They conveyed a portion of -it in fee to one George Cadwalader, together ~ with the right to place a bathing car on the remaining part of the beach. The deed also contained the following clause : "And we, the said Joseph I. Bailey and Alfred Smith, for ourselves, our heirs, executors, and administrators, do hereby covenant to and with the said George Cadwalader, his heirs and assigns, that no build- ing, excepting bathing-cars, shall ever be placed upon the marsh or beach called 'Bailey Beach'; that no building shall ever be placed to the westward of a line drawn southerly from Bellevue street, paral- lel to and distant five hundred and thirty-one feet westerly from the Ledge road, and that none shall be placed on a knoll overlooking said beach, and just north of the lower end of Bellevue street." ' * * * The bill further shows that the said George Cadwalader entered upon and took possession of the land to him conveyed, and thereafter- w-ards, on the 18th day of August, 1864, by deed duly executed, sold and conveyed to one William W. Tucker, his heirs and assigns, the land which the said George Cadwalader had received as grantee in the said deed of October 15, 1852; but that the said deed from Cad- walader to Tucker contains the clause : "It is understood and agreed that the grantor reserves to himself, his heirs and assigns, the cove- nants and stipulations contained in a deed from J. I. Bailey and A. Smith, dated October 15, 1852, against building on certain sites near the bathing beach, and the right of bathing on said beach." The bill further shows that the respondents are now seised and ■ possessed of said marsh or beach called "Bailey's Beach," and of the land adjacent thereto, as heirs of the said Bailey and Smith, both of whom are deceased, or as heirs or devisees of the said Bailey, and as heirs of the said Smith, and have been so seised and possessed since the deaths, respectively, of said Bailey and of said Smith; that the said George Cadwalader died February 3, 1879, testate, leaving his wife, Frances Cadwalader, his sole devisee and legatee ;- that she died testate, January 9, 1880, leaving the complainant, John Cadwalader, her residuary devisee and legatee. The bill further shows that the respondents, notwithstanding said covenants in said deed of October 15, 1852, contained, did, in the year 1890, erect, on the marsh or beach to C, who bought with notice of B.'s contract. Held, B. may enforce against C. the right to use the fence for advertising purposes. Willoughby v. Law- rence, 116 111. 11, 4 N. v.. 356, 56 Am. Rep. 758 (1880). See, also. Hall v. Ionia, 38 ^lich. 493 (187S) ; Columbia Water Power Co. V. Columbia Electric Street Railway, Light & Power Co., 43 S. C. 154, 20 S. E. 1002 (1894). Ch. 2) EASEMENTS 195 called "Bailey's Beach," a permanent_building of large size, and not bathing-cars, which building was placjed, and is by the respondents ^till maintained, on said marsh or beach, to the detriment of the complain- ant, and in violation of his rights under the said covenants, and with- out his consent, and in defiance of his protests. The prayer of the bill is that the covenants contained in said deed of October 15, 1852, may be declared valid and existent obligations upon the respondents ; that they may be required to make specific poiformance, thereof ; that said covenants may be declared in favor of the complainant, his heirs and assigns, as valid restrictions upon said marsh arid beach; and for an injunction. A plat of the premises is attached to and made part of said bill. The answer admits the material allegations in the bill to be true, ex- cept as to any wrongful or unlawful acts therein charged ; but avers and sets up that the complainant has no title to the easements granted in and by said deed of October 15, 1852 — First, because the same were wholly severed and extinguished by the reservation in the .deed from George Cadwalader to said William W. Tucker of August 18, 1864; or, second, because said easements 'were appurtenant to the land conveyed by said deed to Cadwalader, of which land no portion is owned or possessed by the complainant} or, third, because said easements were not appurtenant to said land, (nor any land,) but were rights in gro ss belonging to said George, and not assignable nor inheritable nor devisable. A groimd plan of the bmlding is attached to and made part of the answ^er. TiLLiNGHAST, J.^^ * * * These covenants, in so far, at any rate, as they constitute a restriction against building upon the re- maining land of the grantors — and this is as far as we are called upon to consider them in this case — we think were manifestly intended by the parties to be restrictions in favor of the estate granted; or, in other words, that said, coven ant against building created a negative easement appurtenant to the premises conveyed. We cannot see that the parties" in making this restriction could reasonably have had any other object in view than that of securing and preserving to the granted premises an unobstructed prospect or view of the beach and sea — a most de- sirable right, in connection with summer residents in Newport. Said restrictions were well adapted to the accomplishment of that object. It was a useful and desirable object. Between the granted premises and the sea w-as the land of the grantors, out of which this estate was carved, and there was nothing to obstruct the view of the beach on which the grantee had stipulated for the right to place a bathing-car. It is apparent, from an inspection of the premises, that buildings placed upon that part of the land included in the restrictions mentioned,- and particularly upon the "knoll,'' would, to a greater or less extent, ob- struct the prospect seaward from the granted premises. It was the 11 Part of the opinion is omitted. 196 RIGHTS IN THE LAXD OF ANOTHER (Part 2 possibility of such an obstruction, we think, which it was the intention of the parties to guard against. Furthermore, we fail to see that this restriction could have been in- tended for the purpose of making the bathing rights granted by said • deed "available and pleasant," as is contended by the complainant. For such buildings as might be constructed upon the restricted prem- ises would not, so far as we are able to discover, in any way interfere with said bathing rights. Said "knoll," in particular, is so situated that no building placed thereon could by any possibility obstruct or preju- dice said right. Moreover, the building which has been erected by the respondents upon the restricted premises (a large and commodious bathing pavilion) does not in any manner whatever interfere with said bathing right. The complainant is not the owner of any of the land conveyed by the respondents' ancestors in title to George Cadwalader in October, 1852, and has no interest in the execution of the covenant in suit; for, as already stated, said George Cadwalader conveyed the premises to which the easement in question was appurtenant to William W. Tucker in August, 1864, reserving to himself, his heirs and as- signs, the covenants and stipulations contained, in the deed from Bailey and Smith of 1852, against building on certain sites near the bathing beach, and the right of bathing on said beach. We think it not improbable that the purpose of said George Cadwalader in severing the easement from the estate was to prevent said Tucker and his suc- cessors in title from setting up the same against his (said Cadwalader's) right to build upon a lot of land which he purchased in October, 1852, which, as the record shows, was a part of the restricted premises, and upon which he subsequently built and occupied a house, which house the complainant is now occupying. But, however this may be, tlie_easement, being a negative easement appurtenant to the land conveyed, was extinguished by operation of law upon being severed therefrom, and hence is no longer in existence. The easem ent, being appurtenant to the land, cannot exist_a lone. ~It has no -standing apart from the dominant estate to which it was at- tached. Thus, as stated in Woolr\-ch on Ways, 13 ; " A wav app endant cannot be turned into a way in gross, because it is inseparably united to the manor or land to the which it is incident." And, a^ stated in Washb. Easem. (4Lh Ed.) 26: "Though a man may acquire an ease- ment in gross, like a right of way over another's land, separate and distinct from the ownership of any other estate to which it is ap- pendant, yet, if his right to such way result from his ownership of a parcel of land to which it is appendant, he cannot by grant separate the easement from the principal estate to which it is appendaiit^ so as to turn it into a way in gross in the hands of his grantee." See, also, Garrison v. Rudd, 19 111. 558, 564, and cases cited; 3 Greenl. Cruise, 83; Ackroyd v. Smith, 10 C. B. 164; Hall v. Lawrence, 2 R. I. 218, 242, 57 Am. Dec, 715, Furthermore, as stated in Trustees of Colum- bia College v. Lynch, 70 N, Y, 440, 26 Am, Rep, 615: "A negative Ch. 1') EASEMENTS 197 ea sement, by whic h the owner of lands is restricted in their use, can ^onlyjDC created by covenant in favor of other lands not owned by the gran tor and covenantor." See, also. Hills v. Miller, 3 Paige (N. Y.) 254," 24 Am. Dec. 218. But for the reservation iu the deed from Cad- walader to Tucker, the easement created would doubtless have passed to the latter, whether the grant in terms had embraced it or not, and this would also be so whether such grant, in terms, embraced privileges and appurtenances or not. Washb. Easem. (4th Ed.) p. 40, and cases cited. It follows, then, that the complainant, never having owned the domi- nant estate described in the bill, has no standing in a court of equity to enforce rights which were appurtenant thereto. So far as the bathing rights are concerned, no question is made in this case concerning the right of enjoyment thereof by the complainant. For the reason above stated we are of the opinion that the complainant has not made out a case which entitles him to relief. The bill must therefore be dis- missed/* HILL v. TUPPER. (Court of Exchequer, 1863. 2 Hurl. & C. 121.) Declaration. — For that, before and at the time of the committing by the defendant of the grievances hereinafter mentioned, the plaijitiff was entitled to, and had and was possessed of, the sole and exclusive righ t or liberty to put or use boats on a certain canal called the Basing- stoke Canal, for the purposes of pleasure and to let the same boats for hire on the said canal for the purposes of pleasure. Yet the plaintiff says that, whilst he was so entitled and possessed as aforesaid, the de- fendant, well knowing the premises, wrongfully and unjustly disturbed the plaintiff in the possession, use, and enjoyment of his said right or liberty, by wrongfully and unjustly putting and using, and causing to be put and used, divers boats on the said canal for the purposes of pleasure, and by letting boats on the said canal for hire, and other- wise for the purposes of pleasure. By means of which said premises 12ACC.: Blood v. Millard. 172 Mass. 65, 51 N. E. 527 (1S9S1, right to draw water ; Reise v. Enos, 76 Wis. 634, 45 N. W. 414, S L. R. A. 617 (1S90), right of way. Compare McKenna v. Brooklyn Union Elevated R, Co., 184 N. Y. 891, 77 N. E. 615 (1906). Water rights in irrigation ditches under the Idaho statutes have been held transferable to the owners of other lands. Hard v. Boise Citv Irriga- tion & Land Co., 9 Idaho, 589, 76 Pac. 331, 65 L. R. A. 407 (1904). A. owned in fee a right in gross to a specified amount of water power. For twelve years he used it exclusively and continuously in connection with a mill also owned by him, and then mortgaged the mill to B., describing the property by metes and bounds, and not mentioning the ■ water power. The property with the power was worth $5,000 more than the mortgage debt; without the water power, it was worth $4,000 less than the mortgage debt. Held, the water power passed to the mortgagee. Bank of British North America v. Miller (C. C.) 6 Fed. 545 (1881). See, also, Fisher v. I'air, 34 S. C. 203. 13 S. E. 470, 14 L. R. A. 333 (1890). 19S RIGHTS IN THK LAND OF ANOTHER (Part 2 the plaintiff was not only greatly disturbed in the use, enjoyment, and possession of his said right and liberty, but has 'also lost great gains and profits which he ought and otherwise would have acquired from the sole and exclusive possession, use, and enjoyment of his said right or liberty, and was otherwise greatly aggrieved and prejudiced. Pleas. — First : not guilty. Secondly : that the plaintiff was not en- titled to, nor had he, nor was he possessed of, the sole and exclusive right or liberty to put or use boats on the said canal for the purposes of pleasure, nor to let the said boats for hire on the said canal for the purposes of pleasure as alleged. — Issues thereon. At the trial, before Bramwell, B., at the London Sittings, after last Hilary Term, the following facts appeared : — Under the 18 Geo. 3, c. 75, the Company of Proprietors of the Basingstoke Canal Navigation were incorporated with perpetual succession and a common seal, for the purpose of making and maintaining a navigable canal from the town of Basingstoke, in the county of Southampton, to communicate with the river Wey in the parish of Chertsey, in the county of Surrey. The lands purchased by the company of proprietors, under their par- liamentary powers, were by the Act vested in the Company, By the 100th section of the Act it is enacted : "That it shall and may be lawful for the owners and occupiers of any lands or grounds ad- joining to the said canal, to use upon the said canal any pleasure-boat or boats, or any other boat or boats, for the purpose of husbandry only, or for conveying cattle from one farm, or part of a farm, or lands, to any other farm or lands of the same owner or occupier, without in- terruption from the said company of proprietors, their successors or assigns, agent or agents, and without paying any rate or duty for the same ; and so as such boat or boats be not above seven feet in breadth, and do not pass through any lock to be made on the said navigation, without the consent of tlte said company of proprietors, their succes- sors or assigns, or be employed for carrying any goods, wares, or mer- chandise to market or for sale, or any person or persons for hire ; and so as the same shall not obstruct or prejudice the said navigation, or the towing-paths, or obstruct any boats passing upon the said naviga- tion liable to pay the rates or duties aforesaid; and the owner of all such pleasure-boats, or other boats, shall in his- own lands or grounds, make convenient places for such boats to lie in, and shall not suffer them to be moored or remain upon the said canal." The defendant was the landlord of an inn at Aldershot adjoining the canal, and his premises abutted on the canal bank. The plaintiff, who was a boat proprietor, also occupied premises at Aldershot on the bank of the canal, which he held under a demise from the company of pro- prietors, and by virtue of the demise claimed the exclusive right_ of letting out pleasure-boats for hire upon the canal, which was the right the defendant was alleged to have disturbed. The lease under which the plaintiff claimed this right was dated the 29th of December, 1860, and by it, in consideration of the rents, cove- Ch. 2) EASEMENTS 199 nants, and agreements therein contained, the said company of proprie- tors demised to the plaintiff, under their common seal, for the term of seven years from the 24th of June, 1860, at the yearly rent of i25., "All that piece or parcel of land containing nineteen poles or there- abouts, adjoining Aldershot wharf, situate in the parish of Aldershot aforesaid, and the wooden cottage or tenement, boathouse, and all other erections now or hereafter being or standing thereon, &c." (describing the premises by boundaries, and by reference to a plan), "together with the appurtenances to the same premises belonging; and also the sole and exclusive right or liberty to put or use boats on the said canal, and let the same for hire for tlie purposes of pleasure only." The lease contained various covenants framed with the object of preventing any interference by the plaintiff's pleasure-boats with the navigation of the canal, and a proviso for re-entry for any breach of the covenants. The evidence of the defendant was at variance with that acfduced on behalf of tlie plaintiff upon the question whether the defendant had ever let out boats upon the canal for hire, in the sense of a direct money payment. The defendant did not deny that he kept pleasure-boats, and used them upon the canal, but stated that he kept them for the use of his family ; he admitted, however, that gentlemen had come from time to time to his inn and used these boats for fishing and bathing. The learned Judge reserved leave to move to enter a nonsuit or ver- dict for the defendant, and left to the jury the question whether the defendant had obtained any pecuniary advantage from the boats. The jury found a verdict for the plaintiff" ; damages, a farthing. Pollock, C. B.^^ We are all of opinion that the rule must be abso- lute to enter the verdict for the defendant on the second plea. After the very full argument which has taken place, I do not think it netes- sary to assign any other reason for our decision, than^ that the case of Ackroyd v. Smith, 10 C. B. 164 (E. C. L. R. vol. 70), expressly de- cided that it is not competent to create rights unconnected with the use and enjoym ent of fand, and annex them to it so as to constitute a prop- erty in the grantee. This grant merely operates as a license or covenanf on the part of the grantors, and is binding on them as between them- selves and the grantee, but gives him no right of action in his own name fqr_any infringement of the supposed exclusive right.. It is argued that, as the owner of an estate may grant a right to cut turves, or to fish or hunt, there is no reason why he may not grant such a right as that now claimed by the plaintiff. The answer is, that the law will not allow it. So the law will not permit tEe~owner of ah estate to grant It alternately to his heirs male and heirs female. A^new^species of in- corporeal hereditament cannot be created at the will and pleasure of the owner of property ; but he must be content to accept the estate and "the right to dispose of it subject to the law as settled by decisions or controlled by Act of Parliament. A grantor may bind himself by cove- is The opinion of Bramwell, J., is omitted. 200 RIGHTS IN .THE LAND OP ANOTHER (Part 2 nant to allow any right he pleases over his property, but he cannot an- nex to it a new incident, so as to enable the grantee to sue in his own name for an infringement of such a limited right as that now claimed. Martin, B. I am of the same opinion. This grant is perfectly valid as between the plaintiff and the canal Company ; but in order to support this action, the plaintiff must establish that such an estate or interest vested in him that the act of the defendant amounted to an eviction. None of the cases cited are at all analogous to this, and some authority must be produced before we can hold that such a right can be created. To admit the right would lead to the creation of an in- finite variety of interest in land, and an indefinite increase of possible estates. The only consequence is that, as between the plaintiff and the canal Company, he has a perfect right to enjoy the advantage of the covenant or contract; and, if he has been disturbed in the enjoyment of it, he must obtain the permission of the canal Company 'to sue in their name. The judgment of the Court of Common Pleas in Ack- royd V. Smith, 10 C. B. 164 (E. C. L. R. vol. 70), and of Lord Broug- ham, C, in Keppell v. Bailey, 2 Myl. & K. 517, 535, are, in the absence of any case to the contrary, ample authority for our present decision.^* n Compare Schmoele v. Betz, 212 Pa. 32, 61 Atl. 525, 108 Am. St. Kep, 845 (1905). It has been held that there can be no easement right to a breeze, Webb v. Bird, 13 C. B. N. S. 841 (1863) ; Chastey v. Ackland, [1895] 2 Ch. 389 ; nor to percolating water, Wheelock v. Jacobs, 70 Vt. 162, 40 Atl. 41, 43 L. R. A. 105, 67 Am. St. Rep. 659 (1897). The following rights in addition to those considered in the other sections of this chapter have been recognized as easements. To maintain a signboard, Hoare v. Board of Works, L. R. 9 Q. B. Ca. 296 (1874) ; Moody v. Steggles, 12 Ch. Div. 261 (1879) ; to have light and (through defined passages) air from the premises of another. Hall v. Brewing Co., 49 L. J. Ch. N. S. 655 (1880) ; to open a sluiceway on servient's land to relieve the dominant land from flood water, Simpson v. Godmanchester, [1896] 1 Ch, 214; to pile and hoist merchandise and to swing a projecting shutter, Richardson v. Pond, 15 Gray (Mass.) 387 (1860) ; to stretch a clothesline and hang clothes, Steiner v. Peter- man (N. J. Ch.) 63 Atl. 1102 (1906). See, further, part I, chapters II to VI, ante, and chapters IV and V, post. A. had a lease for years of a building. He assigned his interest in part of the building to B., reserving a right of passage in certain halls in that part of the building so assigned for the benefit of the part kept by him. Subsequently A.'s interest passed to X. and B.'s to Y., the lease meanwhile having been renewed. Held, X. may exercise the right of passage during the life of the lease and the renewal. Newhoft v. Mayo, 48 N. J. Eq. 619, 23 Atl. 265, 27 Am. St. Rep. 455 (1891). An easement may be appurtenant to an estate for life, in which case it terminates with the life estate. Hofi:man v. Savage, 15 Mass. 130 (1818). Compare Rymor v. ISIcIlroy, [1897] 1 Ch. 528. An easement may be appurtenant to a profit. Hanbury v. Jenkins, [1901] 2 Ch. 401, 421. Ch. 2) EASEMENTS 201 SECTION 2.— SCOPE OF EASEMENTS HOWELL V. KING. (Court of Common Pleas, 1674. 1 Mod. 190.) Trespass, for driving cattle over the plaintiff's ground. The case was, A. has a way over B.'s ground to Black-Acre, and drives his beasts over B.'s ground to Black-Acre, and then to another place ly- ing beyond Black-Acre. And, whether this was lawful or no? was the question, upon a demurrer. It was urged, that when his beasts were at Black-Acre, he might drive them whither he would. On the other side it was said, that by this means the defendant might purchase a hundred or a thousand acres adjoining to Black- Acre, to which he prescribes to have a way ; by which means the plaintiff would lose the benefit of his land : and that a prescription presupposed a • r grant, and ought to be continued according to the intent of its original creation. The whole Court agreed to this. — And judgment was given for the ' plaintiff.''' I WILLIAMS V. JAMES. (Court of Common Pleas, 1867. L. R. 2 C. P. 577.) Declaration for trespass to land. Fifth plea, that one Ann Morgan was owner in fee of certain land, and was entitled by immemorial user to a right of way over the plain- tiff's land, on foot, and with waggons, carts, and horses, to a public highway from her said land, for the more convenient occupation there- of ; that Ann Morgan demised this land with its appurtenances to one Jenkins ; and that the alleged trespasses were the use of the right of way by the defendant, as the servant of Jenkins. Issue and new assignment of excess in the user of the way. At the trial before Pigott, B., at the spring assizes for Monmouth- shire, the following facts were proved: — Ann Morgan was owner in fee of a field called the Nine acre field, and of two other fields ad- joining, called Parrott's land. These three fields were in the occupa- tion of R. Jenkins. There was from time immemorial a right of way on foot, and for waggons, carts, and horses, from the Nine acre field over the plaintiff's land to a public highway. There was no right of lEAcc: Lawton v. Ward, 1 Ld. Raym. 75 (1696). Compare Tuttle v. Kil- roa, 177 Mass. 146, 58 N. E. 682 (1900). 202 RIGHTS IX THE LAND OF ANOTHER . (Part 2 way over the plaintiff's land from Parrott's land. In the summer of 1866, Jenkins mowed the Nine acre field and Parrott's land, and stacked all the hay upon the Nine acre field. In September, 1866, Jenkins sold the hay to the defendant, who carted it over the plaintiff's land to the highway, which was the alleged trespass. The jury found, first, that there was_anJmmemoriaL.nghlL_Qlj^ from the Nine acre field to the highway; secondly, that the stacking of the hay was done honestly, and not to get the way further on ; third- ly, that there was no excess in the user of the way by the defendant, apart from the question of defendant's right to cart the hay grown on Parrott's land over the plaintiff's land ; fifthly, if Parrott's land hay could not be legally carried over the plaintiff's land, then damages 40s. Pigott, B., directed a verdict for 40s. to be entered for the plaintiff, with leave to the defendant to move to enter the verdict for him. A rule having been obtained accordingly — WiLLES, J. The distinction between a grant and pres^ri£tign_is obvious. In the case of proving a right by prescription the user of the right is the only evidence. In the ease of a grant the language of the instrument can be referred to, and it is of course for the Court to construe that language ; and in the absence of any clear indication of the intention of the parties, the maxim that. a grant must be construed most strongly against the grantor must be applied. Accordingly, in South Metropolitan Railway Company v. Eden, 16 C. B. 42, where a grant was produced without stating the object of the gsant, it was the opinion of the judges that the grant was general, and that the way in that case might be used to any part of the land to which the way was granted. I agree with the argument of Mr. Jelf that in cases like this, where a way has to be proved by user, you„cannot extend .the, puyiQS£s.Jor which the way may be used, or for which it might be reasonably in- ferred that parties would have intended it to be used. The land in this case was a field in the country, and apparently only used for rustic purposes. To be a legitimate user of the right of way, it must be used for the enjoyment of the Nine acre field, andJiQt colourably ioxMhs-X closes. I quite agree also with the argument that the right of way can only be used for the field in its ordinary use as a field. The right could not be used for a manufactory built upon the field. The use must be the reasonable use for the purposes of the jand. in the condition in which it was while the user took place. A right of way by user was here proved, and I think the verdict of the jury excludes the excess of the user charged by the plaintiff. Plonest user of the Nine acre field must have been understood by the jury in the large sense of bona fide and reasonable, not a user in order to get an advantage to which the defendant was not entitled. The finding of the jury was, that the land was used honestly, and not in order to get a right of way further on. This is equivalent to finding that the stacking of the hay on the Nine acre field was in the reasonable and ordinary use of it as a field; Ch. 2) EASEMENTS 203 also that the carting was from the Nine acre field and not from Par- rott's land. I think both these propositions are included in the finding. I think, therefore, that the rule must be made absolute. We could not refuse this without splitting straws on a subject which ought to be dealt with substantially. The case has been well argued on both sides,- and Mr. Jelf has said all that could be said for the plaintiff.^* P PARKS V. BISHOP. (Supreme Judicial Court of Massachusetts, 1S7U. 120 Mass. 340, 21 Am. Rep. 519.) Bill in equity alleging that the plaintiff' was the owner of the fee in the soil and of a right of way in a passageway leading from Purchase Street by land of the plaintiff to a shop of the defendant, which ad- joined the rear of a store of the defendant on Atlantic Avenue ; and praying that the defendant might be restrained from using the way as appurtenant to the land on which that store was built, or for the pur- pose of passing, or of carrying merchandise or other things, between that store and Purchase Street. The answer alleged that the defend- ant had acquired a right to such use by adverse, possession. Hearing before Wells, J., who ordered an injunction to issue, and re- served the case for the consideration of the full court, upon a report, the material part of which is stated in the opinion. Gray, C. J. The report of the judge, before whom this case was heard in the first instance, states the facts proved at the hearing, and his decision that the use of the way in question by the defendant, in the manner and for the purpose complained of, was not justified by any right acquired by Lakin (under whom the, defendant claims) through the use of the way by him as stated in the report, and that an injunction should issue, subject to the revision and determination of the full court upon the question, among others, "whether Lakin, upon the facts stated, had acquired such a right of way as to constitute a good defence." The report, being on the equity side of the court, submits to our revision all inferences of fact, as well as conclusions of law. 16 Bovill, C. J., and Smitti, J., delivered concurring opinions. See Finch v. Raihvaj- Co., L. R. 5 Exch. Div. 254 (1879). A. owned a piece of land, appurtenant to which was a right of way over a private road on B.'s land. X. owned a tract of land adjoining A.'s, on which he was desirous of building. He rented A.'s piece by a parol lease at a rental of £1. per annum and hauled his building material over the private road, depositing it temporarily on the A. piece. The jury found that the way was really being us6d merely as a means of getting to the X. piece. Held, B. may recover against X. in trespass. Skull v. Glenister, 16 C. B. N. S. 81 (1864). See McCullough v. Broad Exch. Co., 101 App. Div. 566, 92 iN. Y. Supp. 533 (1905), post, p. 287. Compare Kretz v. Fireproof Storage Co., 127 Minn. 304, 149 N. W. 618, 955 (1914J. 204 EIGHTS IN THE LAND OF ANOTHER (Part 2 Wright V. Wright, 13 Allen, 207, 209; Stockbridge Iron Co. v. Hud- son Iron Co., 102 Mass. 45, 47. When a right of way to certain land exists by adverse use and en- joyment only, although evidence of the exercise of the right for a sin- gle purpose will not prove a right of way for other purposes, yet proof that it was used for a variety of purposes, covering every purpose re- quired by the dominant estate, in its then condition, is evidence from which may be inferred a right to use the way for all purposes which may be reasonably required for the use of that estate while substantial- ly in the same condition. Ballard v. Dyson, 1 Taunt. 279; Cowling V. Higginson, 4 M. & W. 245 ; Dare v. Heathcote, 25 L. J. (N. S.) Exch. 245 ; Williams v. James, L. R. 2 C. P. 577 ; Sloan v. HoUiday, 30 L. T. (N. S.) 757. But if Jthe condition and character of the dom- inant estate are substantially altered — as in the case of a way to carry off wood from wild land, which is afterwards cultivated and built up- on; or of a way for agricultural purposes, to a farm, which is after- wards turned into a manufactory or divided into building lots — the right of way cannot be used for new purposes, required by the alter- ed condition of the property, and imposing a greater burden upon the servient estate. Atwater v. Bodfish, 11 Gray, 150; Willes, J., in L. R. 2 C. P. 582 ; Wimbledon Commons v. Dixon, 1 Ch. D. 362. In the present case, the report states that for more than twenty years Lakin had, in the shop abutting upon the passageway in question, a steam engine, which was driven by boilers in the larger building on the lot behind, and was used for operating the machinery in that building, the three stories of which were respectively occupied for a blacksmith's shop, a carriage shop, and a paint shop ; that there was a door in the wall between the two buildings, which was constantly used for the purpose of passing between them through the engine room and over the passageway; that the space in the passageway was occasionally used for the purpose of setting tires upon wheels, in connection with the work in the shop ; that all the coal for use under the boilers was brought in through the passageway, and deposited in the basement or cellar under the engine room, until used in the regular course of busi- ness ; and that the way was used generally as a back entrance or thor- oughfare, as convenience required, in connection with the shops oc- cupied by Lakin, without question or objection, foruHore thanjwenty.. years. These facts appear to the court to justify and require the conclu- sion that Lakin had acquired by prescription a right of way for all purposes reasonably necessary for a manufactory upon the two lots, and which, upon the buildings being destroyed by fire and rebuilt for a manufactory and storehouse, he was entitled to use for the purpose of bringing goods into the smaller building abutting upon the passage- way, to be thence hoisted up into the larger building, for storage and use therein ; that there has been no substantial alteration in the con- dition or character of the dominant estate, and no change, except in Ch. 2) EASEMENTS 205 degree, in the exercise of the easement, and that for this reason the defendant has not exceeded his rights in the use of the passageway. Bill dismissed.^^ WATSON V. BIOREN. (Supreme Court of Pennsylvania, 1814. 1 Serg. & R. 227, 7 Am. Dec. 617.) l^his was an action on the case for disturbing the plaintiff in his right of way, and for stopping his water course. The cause was tried at Nisi Prius, before Tilghman, C. J., in Febru- ary, 1814, when a verdict was found for the plaintiff, subject to the opinion of the court in bank, upon the following facts : By deed, dated December 18th, 1805, Elisha Gordon and wife, con- veyed to the plaintiff a lot of ground, .on the south side of Chesnut street, containing ten feet in front on Chesnut street, and running back seventy-seven to a three feet wide alley, which leads into Or- phan's court or Carter's alley, with free and uninterrupted ingress, egress, and regress, &c. in common with the owners and occupiers of the lots adjoining the same, and of a water course over and along the said three feet wide alley, from the premises to Orphan's court. On the 14th of July, 1810, the plaintiff conveyed to John Conyers, all the said lot of ground, except a small piece three feet wide by thirteen feet long, at the southwest corner of the lot, adjoining the said alley, Con- yers afterwards sold this lot to the defendant, who owned the adjoining ground on the east, and was proprietor of the alley. The house and lot 17 In addition to the cases cited in the court's opinion, see Baldwin v. Boston & M. R. R., 181 Mass. 166, 6.3 N. E. 428 (1902). A. claimed by prescription a right of way in a narrow passage over B.'s land, for the purpose of driving horned cattle to a building now used as a slaughterhouse, before that as a stable, and much earlier as a barn A. had been accustomed to drive a cart through the passage, ordinarily drawn by a horse, on one or two occasions drawn by an ox ; the preceding occupier had driven hogs down the passage to the slaughterhouse. Held, a verdict against A.'s claim will not be disturbed. Ballard v. Dyson, 1 Taunt. 279 (1808). For over 20 years A., and his friends visiting him, had used a path over B.'s yard to the back door of A.'s house. A. then opened a shop in the front of his house, and some few customers came by tho, path at the rear. Held, this is not a misuse of the easement. Sloan v. Holliday, 30 L. T. N. S. 757 (1874). See, also. Cowling v. Higginson, 4 M. & W. 245 (1838) ; Wim- bledon Conservators v. Dixon, L. R. 1 Ch. Div. 362 (1875). From 1866 to 1878 A. wrongfully discharged through a pipe in B.'s land his sink drainage, there being until then no bathroom in A.'s house, in 1878 A. installed a bathroom, and from then until 1888 discharged both sink and water-closet drainage through the pipe. In 1888 B. stopped the pipe. Held, A. has a right to discharge sink drainage, but not water-closet drain- age. Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197 (1894). Compare Baxendale v. McMurray, L. R. 2 Ch. App. 790 (1867). A. had acquired by prescription a right to maintain an irrigation ditch over B.'s land. Held, he cannot substitute an underground pipe of the same ca- pacity, even though this would be less of a burden on the servient estate. Allen V. San Jose Land & Water Co., 92 Cal. 138, 28 Pac. 215, 15 L. R. A. 93 (1891). 2Q6 RIGHTS IN THE LAND OF ANOTHER (Part 2 adjoining the first mentioned lot on the west, and extending back fifty- eight feet from Chesnut street, were also the property of the plaintiff, as well as another lot in Third street, running east fifty feet to the small piece of ground, which he retained out "of the lot granted by him to Conyers, and by Conyers to Bioren. The Chesnut street and Third street lots belonging to the plaintiff were contiguous ; the south line of the former, constituting part of the north line of the latter. Thus the plaintiff had access from all the above mentioned lots to the alley in question. It was admitted, that the defendant had disturbed the plaintiff in the use of the alley, and had stopped the water course. Two questions arose: 1. Whether the plaintiff", notwithstanding he had parted with the whole of the lot to which the alley was appurtenant, except the small piece of ground above described, retained the privilege of the said alley? 2. Whether the plaintiff had a right of way through the alley to his other lots ? TiivGHMAN, C. J.^* After having stated the different deeds, pro- ceeded as follows: The defendant, who is proprietor of the alley, contends, that the plaintiff has no rights to the use of it, because he has parted with all the lot to which the right of way was appurtenant, except the small piece last mentioned. It may be remarked in the out- set, that at all events, the plaintiff must recover in this actiqn^j3^^^^ the defendant has obstructed the water course, and np argument what- ever has been urged to show that the right to the water course is lost, by selling part of the lot. As to the right of way, the argument is, that the deed should be construed according to the intent of the parties, and that it must have been supposed by the grantor, that this small lot con- veyed by Gordon to the plaintiff (only ten feet wide) would have been always occupied by one person ; therefore the cutting it up into several parcels, and giving a right of passage to several persons, will subject the grantor, and those claiming under him, to greater inconvenience than was contemplated. But we are to judge of the intentions by the words of the deed. When land is conveyed with a right to the grantee, his heirs, and assigns, to pass over other land, the right is appurtenant to all and every part of the land so conveyed, and consequently every person to whom any part is conveyed," is to enjoy the right of passage. It must not be supposed, that either party was ignorant, that the gran- tee had a right to alien a part, nor that it was the intention (unless clearly expressed) that by such alienation, the right of way should be extinguished. Now, if the defendant's argument is just, the right of way is totally extinguished, by an alienation of part of the premises, because it cannot be said that the owner of one part has better right than the owner of the other, consequently as both cannot have the right, the whole is gone. We must decide this case on general principles ; the same law that is applied to a lot of ten feet wide must be applied -•s Part of the opiuiou of Tilgbraan, C. J., and tbe opinion of Teates, J., are omitted. Ch. 2) EASEMENTS 207 to one of the width of an hundred feet. And it is obvious, that such a principle cannot prevail in a city without intolerable grievance, be- cause it would force every person who has a right of way to preserve his property entire, in order to preserve his passage. Generally speak- ing, covenants that run with the land extend to assignees of every part of the land. This is the case with covenants to warrants, &c., although by multiplying the assignees, the actions against the covenantor may be multiplied. The defendant has produced no authorities distinguish- ing this case from the general principle. I am, therefore of opinion, that the plaintiff was entitled to the use of the alley in question, as appurtenant to the ground retained by him. But the plaintiff has an- other claim. * * * I do not think that the facts stated in the rec- ord make it proper to decide that point at present. * * * On the whole I am of opinion, that judgment should be entered for the plain- tiff. Judgment for plaintiff.^* WHITE V. GRAND HOTEL, EASTBOURNE, Limited. (Chancery Division, 1912. [1913] L. R. 1 Ch. 113.) Appeal from a decision of Joyce, J. This was an action by the owner in fee simple and his tenant of stables and mews and a private road leading from the mews to a pub- lic road called Silverdale Road at Eastbourne, against the owners of adjoining property, for an injunction to restrain them from using the private road as a carriageway for the passage of motor cars or other vehicles, and for an order that the defendants should rebuild part of a wall which had been pulled down. The defendants' premises formerly consisted of a private dwelling- house and garden known as St. Vincent Lodge. The only passage to the plaintiffs', mews was by a lane, running into Silverdale Road. In 1883 the predecessors in title of the plaintiffs and defendants (Mr. Peerless and Mr. Ford) entered into an arrangement whereby the lane was to be enlarged and Mr. Ford, the owner of St. Vincent Lodge, was to have a right of way over it and through a gateway nine feet in width into his premises, thus obtaining a means of access to Silver- dale Road. There was no documentary evidence of this agreement, and the question whether there was any express restriction or limitation upon the right of way was in dispute. The defendants had recently ac- quired St. Vincent Lodge and made use of it in connection with the business of their hotel; a covered yard between the stable and the house being used as a garage for motor cars belonging to visitors stay- i» Yeates and Bradcenridge, J.T., concurred. Ace: Newcomen v. Coul- son, L. R. 5- Ch. Div. 133 (1877) ; Underwood v. Carney, 1 Cush. (Mass.) 2S5 (1848) ; Lansiu? v. Wiswall, 5 Denio (N. Y.) 213 (1S4S) ; see Dawson v. St. Paul Fire & Marine Ins. Co., 15 Minn. 136 (Gil. 102), 2 Am. Rep. 109 (1870). 208' RIGHTS IN THE LAND OF ANOTHER (Part 2 ing at the hotel, and the drivers being lodged in St. Vincent Lodge it- self. These drivers were in the habit of using the right of way, and the defendants altered the gateway to facilitate their passage. The plaintiffs brought this action ; a good deal of evidence was adduced and several questions argued, but the only point which calls for a report is the first question, namely, whether the use of the right of way must be restricted so as no longer to enure for the benefit of the owners of St. Vincent Lodge and its stables unless the same continued to be used and occupied precisely as they were in 1883, when the agreement' was made, that is to say, as a private dwelling house. On this point Joyce J. said "a great many authorities were cited before me, not all quite consistent, but the result of the argument is that in my opinion the au- thorities cited at pages 90 and 91 of Theobald's Law of Land do sup- port the proposition there stated, namely: 'Where there is an express grant of a right of way to a particular place to the unrestricted use of which the grantee of the right of way is entitled, the grant is not to be restricted to access to the land for the purposes for which access would be required at the time of the grant.' Then all the cases are there cited, and in my opinion that statement is correct and I think the law is so settled * in other words I hold that the defendants had an unrestricted right of way to or from the gateway nine feet wide in the new wall as erected by Ford and that nothing has happened to deter- mine such right of way." His Lordship accordingly dismissed the ac- tion. The plaintiffs appealed. CozEns-Hardy, M. R."" This is an action in which the plaintiffs- claim an injunction to restrain the defendants from using and enjoying a right of way, which I shall have more particularly to deal with. The plaintiffs' main point was this : They said that the right of way, which was granted under circumstances which I shall state hereafter, was lim- ited in its nature ; that it was only a right of way for what I may call domestic purposes as distinct from trade purposes; and that it was only for such use as could reasonably be expected to be in tlie contem- plation of the parties at the time when the defendants' house, St. Vin- cent Lodge, was a private residence, and ought not to be altered now that St. Vincent Lodge is turned into a garage. We heard that point fully argued by counsel for the appellants and we have come to the conclusion that there is no ground for limiting the right of way in the manner suggested. It is not a right of way claimed by prescription. It is a right of way claimed under a grant, and, that being so, the only thing that the Court has to do is to construe the grant; and unless there is some limitation to be found in the grant, in the nature of the width of the road or something of that kind, full effect must be given to the grant, and we cannot consider the subsequent user as in any way sufficient to cut down the generality of the grant. 2 The opinions of Farwell and Hamilton, Lords Justices, are omitted. Ch. 2) EASEMENTS 209 I do not propose to go into the authorities, many of which were cited to us. I think that the law is spttled clearly and conclusively by the decision of the Court of Appeal in United Land Co. v. Great Eastern Ry. Co., L. R. 10 Ch. 586. I, therefore, do not differ in any way from the view taken by Joyce, J., that the right of way is not to be restricted to access to the land merely for such uses as were reasonably re- qtu'red at the date of the grant. So far this attion, I think, fails.-^ [His Lordship then considered the facts of the case and held that the defendants had no right to any access except through a gate in the posi- tion of the nine-foot gate which formerly stood there, and that the plaintiffs were entitled to an injunction to restrain them from exer- cising a right of way through a new and wider gate recently erected.] WOOD V. SAUNDERS. (Court of Chancery, 1875. 23 Weekly Rep. 514.) m [One L. B. Knight-Bruce, owner in fee of a large tract of land, made an agreement in writing with defendant whereby the latter was to erect various mansion houses upon the said land, and leases of the said houses were to be granted to the defendant. Later, by an indenture of lease dated June 9, 1870, L. B. Knight-Bruce and the defendant leas- ed to the plaintiff one of the mansion houses, known as the Priory, and two acres of land, for a term of two years from December 25, 1869. J The description of the parcels was followed by these words : "To- gether with the free passage and running of water and soil in and to the existing cesspool, and in and through all the drains, sewers, and water courses now constructed, or hereafter to be constructed, through the adjoining property of the said L. B. Knight Bruce, his heirs or as- signs." The lease contained a covenant by the plaintiff not to use the premises for any trade or business, or for any purpose or in any way which might be, or grow to be, a nuisance to the said L. B. Knight Bruce or his tenants, and not without the consent of the said L. B. Knight Bruce to erect any walls, building, or erection whatever, upon the demised premises, or alter the elevation thereof ; also a proviso that the plaintiff should have an option of purchasing the fee simple of 21 Ace: Parson v. New York, N. H. & H. R Co., 216 Mass. 269, 103 N. E. 693 (1913) ; Kretz v. Fireproof Storage Co., 127 Minn. 304, 149 N. W. 648, 955 (1914) ; Arnold v. Fee, 148 N. Y. 214, 42 N. E. 588 (1896). See United Land Company v. Great Eastern Ry. Co., L. R. 10 Cti. App. 586 (1875). A way of necessity is only for the purpose of the dominant piece in the condition in which it was at the time of the creation of the easement. Lon- don V. Riggs, L. R. 13 Ch. Div. 798 (1880), implied reservation; compare Serff V. Acton, L. R. 31 Ch. Div. 679 (1886). Contra: Myers v. Dunn, 49 Conn. 71 (1881), implied grant; Whittier v. Winkley, 62 N. H. 338 (1882). 2 2 The case is also reported in L. R. 10 Ch. 582. BiG.RlGHTS — 14 210 RIGHTS IN THE LAND OF ANOTHER (Part 2 the demised premises for i 10,000, on giving three calendar months' no- tice in writing of his desire to do so. The plaintiff gave due notice of his desire to purchase, and by an indenture dated the 21st day of May, 1872, h. B. Knight Bruce con- veyed the fee simple to him accordingly in consideration of £10,000. The conveyance granted a right of drainage in precisely the same words as were used in the lease, and contained the usual general words, "together with all buildings, yards, gardens, trees, fences, hedges, ditch- es, ways, sewers, drains, water courses, liberties, privileges, easements, and appurtenances whatsoever to the said messuage and premises be- longing, or in any wise appertaining, or then or usually occupied or en- joyed therewith, or reputed as appurtenant thereto." It appeared that the object of the plaintiff (who was a physician) in acquiring the property was to use it as a private lunatic asylum. After the plaintiff had declared his option to purchase, but before the prop- erty was conveyed to him, he stated his desire to make additions to the house, and requested a license from the lessor, L. B. Knight Bruce, in order to enable him to proceed to build immediately ; and although no license was given the alterations and additions were partially completed before the date of the conveyance. The premises, as altered, afforded accommodation for a large number of patients, and it was admitted by the plaintiff that from ninety to a hundred persons were usually resident therein. In consequence of this fact there was a greatly aug- mented user of the right of drainage conferred by the lease and the conveyance. [The defendant threatened to cut the drain, and the plaintiff, brought this bill for an injunction.] Hall, V. C.^^ The important question for me to determine in this ca?e is the construction of the grant which is contained in the lease ; for it has been admitted by the plaintiff at the bar that the conveyance is to be construed as conveying exactly what was given by the lease and nothing more ; and I think that it was a very fair, and reasonable, as well as a sound way of putting the case, to admit that the plaintiff's right as grantee under the conveyance could not be carried farther than his right as it existed as lessee. * * * That being so, the next question is. What is the extent of the ease- ment vrhich is granted ? and for the purpose of determining that, I do not think it is proper to stop at the point in the deed where I have already read to ; but I think tliat you must go through the deed and examine its further provisions, so as to ascertain, by a perusal and con- sideration of the whole of the instrument, the way in which the par- ties contemplq,ted that the property in question would be used and en- joyed. It is not necessary for me to state the different provisions in detail, but suffice it to say that it is clearly stipulated that the property shall remain in the same state and condition as it was at the time when 23 The statement of facts is abridged and part of the opinion is omitted. Ch. 2) EASEMENTS 211 the lease was made. No building was to be erected upon the property, and the elevation of the mansion house was not to be altered without license from the lessor. Therefore, the substantial thing was the pres- ervation of the property in its then existing state, subject to any altera- tions being made in it with the consent of tlie lessor. The lessor's con- sent was never given to any alteration whatever. If it had been given, it might have been qualified with reference to its effect on the right of passage of water. It might or it might not; but no license was ever^ given, and therefore I must take it that when this property was con- veyed and taken under the option matters stood exactly as they were, and tliat there was no existing right of user of the easement of free passage of soil and water other than that which existed immediately after the lease itself was made, whatever that may be. Now the right which existed at the time of the lease being made was not an unre- stricted general right in respect of this house and nine acres of land. It was a right attaching to this house and land subject to this, that they could only be enjoyed in a limited and special and peculiar man- ner. Therefore, there was no grant of right of passage of water and soil in respect of any buildings which might thereafter be erected, but only a right in respect to the actual building as it stood and existed at the time the lease was made, and from what I have already said it was consequently that right only which passed by the conveyance. It was said, however, that consistently with the authority, the grant ought to be measured with reference to the size of pipes, and not with reference to the size of the building. I do not know of any authority for any such proposition. I am not aware that in construing a grant of a right of way or road (which I do not know how you can, for this pur- pose, distinguish from a grant of a right of water course), and in as- certaining the extent of the right to a user of that road when there has been an alteration in the property in respect of which it was grant- ed, you are to consider that the grant extends to the altered state of circumstances, simply because there is plenty of room to allow per- sons to go along the road. As I understand it, you must measure the right by the existence of the thing which is to have the use of the right, and I adopt for that pur- pose what is stated by Mr. Justice Willes in the case of WilHams v. James, 15 W. R. 928, L. R. 2 C. P. 577, which has been referred to. Mr. Justice Willes there says, "The use must be the reasonable use for the purpose of the land in the condition in which it was while the user took place." I consider, therefore, that the user here must be a user consistent with the use of the mansion as a mansion in the state and condition in which it was at the time the grant was made. I do not mean to say that any small alterations which might be made in the buildings, such as the addition of a single water-closet, or anything else in the nature of a small adglition to the house — even were it the building of another room — would effect the right. You must look at it in a rea- sonable point of view; you must not, as Mr. Justice Willes says, be 212 RIGHTS IN THE LAND OF ANOTHER (Part 2 splitting straws upon these questions, but you must take it in a rea- sonable point of view ; and taking it in a reasonable point of view, you have here a case where there has been accommodation added to this house so as to render it capable of being used as a lunatic asylum for a hundred or more inmates, instead of as a private dwelling house. For this purpose it is just as if it were a user for a manufactory, ex- cept that the character of the manufacture might be such as to make the quantity of soil and water or other matter much larger than it is at present. But upon the evidence here it is clear that there has been a very large increase indeed to the quantity of water and soil which has been passed through these drains down into the moat or ditch. Another suggestion of Mr. Lindley's was that the true measure might be taken to be the quantity which the moat or ditch itself would con- tain. That view seems to me to be entirely without any authority to support it, and might raise very awkward questions indeed as to the quantity of water and sewage which the grantor himself was still en- titled to put in, and as to how the rights of the parties should be ad-. justed in case of a dispute as to the quantity which each was to put in. The same question no doubt to a certain extent might arise under the view which I take, because even the limited user might be forestalled by the grantor sending in such a quantity from his own premises as not to leave sufficient space for what might come from the grantee's premises. But an unlimited right, or some greater right than a right limited to the mansion, would be much more likely to create difficul- ties, and would have been much more likely to have been made the sub- ject of special provision, if there had been any intention to grant it, than a mere limited right of passage of water and soil from a private dwelling house, the quantity of which both parties might well conceive would be really not of much importance in reference to the use of the moat or ditch. Therefore, I consider that that argument is not ten- able. * * * The order made was as follows : "Order that an injunction be award- ed to restrain the defendant, his servants and workmen, from cutting off or stopping up the drains in the bill mentioned, or in any way pre- venting the free passage and running of water and soil in and to the existing cesspool in the bill mentioned, such cesspool being in the judg- ment of the court the moat or ditch in the bill mentioned, but this or- der is only to protect the plaintiff in the reasonable use of such cess- pool having regard to the extent to which the same was being used prior to the date of the lease." ^* 24 See Elser v. Village of Gross Point. 223 111. 230, 79 N. E. 27, 114 Am. St Rep. 326 (1906). Ch. 2) EASEMENTS 213 GRAY et al. v. CITY OF CAMBRIDGE. (Supreme Judicial Court of Massachusetts, 1905. 189 Mass. 405, 76 N. K. 195, 2 L. R. A. [N. S.] 976.) [This is a bill in equity by the executor of Edward W. Hooper to enjoin the defendant from causing- or allowing water to run thru cer- tain pipes laid in Hooper's land under a grant from one Stearns, Hoop- er's predecessor in title. In 1865 Stearns, the then owner of the land in question, granted in fee to the defendant "the right to enter upon a strip of land fifteen feet wide, situate in said Cambridge, and lying between Reservoir Street and the land of Josiah Coolidge for the purpose of laying one or more water pipes for conveying water from Fresh Pond to the, city reser- voirs on said street and of examining, repairing, and relaying the same whenever necessary." The plan at that, time was to pump the water from Fresh Pond thru pipes laid in the strip in question to the city res- ervoirs mentioned and thence to distribute it by gravity to various parts of the city. In pursuance of this plan, a twelve inch pipe was first laid in the strip from the pond to the reservoir; later this was taken up, and a twenty-four inch pipe was substituted. Several years later a second, a thirty inch supply pipe, was laid, and still later a third twelve inch pipe. Contemporaneously with the laying of the thirty inch pipe and the twelve inch pipe, the city altered~ its plans and in the next ten years gradually changed the use of the pipes in the strip in question so that instead of pumping the water to the reservoir, the city pumped the water thru these pipes under greater pressure into other pipes connecting with them in the vicinity of the reservoir and so di- rectly to the consumers. In 1896 a new reservoir was built on a dif- ferent site, the old reservoir razed and the land whereon it stood sold. The pipes in question were thereafter used solely as distributing mains in connection with the new reservoir system.] LoRiNG, J.^^ We are of opinion, first, that the master's construc- tion of the Stearns grant in the main is correct ; and, second, that pipes laid under this grant can be used as supply pipes only and cannot be used as distribution pipes. What are the terms of the grant? They are (1) "to enter upon a strip of land fifteen feet wide," which strip of land is (2) "situated in said Cambridge, and lying between Reser- voir street and land of Josiah Coolidge," (3) "for the purpose of lay- ing one or more pipes," which pipes are to be used (4) "for conveying water from Fresh Pond to the city reservoirs on said street [Reser- voir street]," and (5) "of examining, repairing, and relaying the same whenever necessary." The question comes down to this : For what purpose were the words inserted "for conveying water from Fresh Pond to the city reservoirs on said street?" and what effect is to bs given to them? They were not inserted to describe the termini of thf> 2 5 The statement of facts rewritten and part of the opinion is omitted. 214 RIGHTS IN THE LAND OF ANOTHER (Part 2 15-foot Strip. That was fully stated elsewhere. There is the previous description of the 15-foot strip as "lying between Reservoir street and land of Josiah Coolidge," and the subsequent delineation of it in the plan referred to in the deed. Moreover, as a description of the ter- minus ad quern it is inaccurate, M'r. Stearns' ownership extended only to Reservoir street. It did not extend across the street to the reser- voir. In the second place, these words were not inserted to state the use to be made of the 15-foot strip. That is stated by the words immedi- ately preceding the clause in question, to wit, "for the purpose of lay- ing one or more water pipes" in it, the 15-foot strip. We see no es- cape from the conclusion that these words were inserted as a descrip- tion of the use to be made of the pipes to be laid in the strip. That use is "for conveying water from Fresh Pond to the city reservoirs on said street" ; that is to say, these pipes are not for general use in the water system of the city, but for the narrower use of conveying water from the supply to the reservoir, which is the initial point of distri- bution. Pipes which are to convey water from, the source of supply on a low level to a reser\'oir on a higher level, which reservoir includes a standpipe to enable the water to reach houses higher than the level of the reservoir, for convenience may be termed, as they have been term- ed in this opinion, supply pipes. Those which take the water from the reservoir, including the standpipe as part of the reservoir, are or may be termed distributing pipes. The limitation "for conveying water from Fresh Pond to the city reservoirs" is, in effect, a provision that the "water pipes" to be laid in the 15-foot strip are to be used as supply pipes, thereby excluding their being used as distributing pipes as they are now exclusively used. The defendant city in effect claims that, in spite of the words "for conveying water from Fresh Pond to the city reservoirs on said street," it can use these pipes for any purpose in the water system of the city, that the reservoir was a mere resting place for the water on its way from the supply to the consumer, and the pipes can be used to convey water to the consumer. So far as we can see, no eft'ect is given to those words if that construction is adopted ; and, unless we can read the words "for the purpose of conveying water from Fresh Pond to the city reservoirs" on Reservoir street to mean or to include "for the purpose of conveying water from the city reservoirs, wherever situat- ed, to the consumers," the use now made is not covered by the grant. In our opinion the words cannot be so read. The explanation of the whole matter seems to be found in a suggestion of the plaintiffs' coun- sel that ordinarily distribution mains are laid in public streets and in public streets only. The unexpected, however, turns out to be the event in the case at bar, and it has become convenient now for the city to utilize these supply pipes as a link in the distribution system starting from the new reservoir. This remote contingency did not occur to the city when it made its bargain with Mr. Stearns in 1866, and by the Ch. 2) BASEMENTS 215 terms of what was then agreed upon as the trade struck between them such a use was not included. * * * Finally, the defendant argues that, if the grantor had intended that the easement should cease in case the city ceased to use the reservoir, it should have said so. But in that event the easement did not cease unless it was made appurtenant to the land on which the reservoir was built, upon which we do not find it necessary to express an opinion. The easement continues in legal contemplation, to wit, the easement to maintain pipes in the 15-foot strip for the purpose of conveying water from Fresh Pond, to the reservoir. So long as the defendant has no reservoir, nothing can be done under the easement, but the easement continues. The city may hereafter erect a new reservoir on the same site. Whether the city can continue the pipes after razing the reser-. voir to the ground under this continuing easement is another mat- ter. * * * There must be a decree for the plaintiffs on terms to be settled by a single justice. The interests of the public are concerned in the peremp- tory shutting off of the water asked for by the plaintiffs. Subject to such modification as may be called for by those public interests, the plaintiffs are entitled to a decree, with costs in accordance with the prayer of their bill. So ordered.^^ 2SA., through whose land ran a creek, granted to B. the right to erect and maintain a darn and ditch in A 's land and draw water thence to B.'s land for the purpose of irrigating B.'s meadow. B. built the dam and ditch, but used the water for the purpose of watering his stock as well as irrigat- ing. He kept this up for over twenty years. Held, he has, as against A.'s successor in title, the right to use the water for both purposes. Wheatley V. Chrisman, 24 Pa. 298, 64 Am. Dec. 657 (1855). See Colchester v. Roterts, 4 M. & W. 769 (1839); Northam v. Hurley, 1 E. & B. 665 (185.3) ; Rolens v. City of Hutchinson, 83 Kan. 618, 112 Pac. 129 (1910); Cheney r. Pease, 99 Slass. 448 (1868). On the 25th day of June, ISll, one Peter Townsend and wife, in considei-a- tion of the sum of five dollars, to them in haiMl paid, conveyed to one Heury McFarlan ''all the right or privilege of using or drawing off the water from a certain pond called 'Mt. Bashan Pond,' situate in the town of Monroe, in the county of Orange, near a gristmill and nail manufactory of the said Henry McFarlan and others, called the 'Monroe Works,' for the purpose of carrying on the said works, in such quantity as v.ould be sufficient for carry- ing on and working the furnace, situate between said nail manufactory and the said pond, called 'Southfield Furnace,' occupied and owned by the said Peter Townsend and others, and for which purpose said water is now used, and no further or greater quantity: Provided, always, that the right so as aforesaid granted to the said Henry McFarlan, his heirs and assigns, of drawing off said water as aforesaid, shall cease at all times whenever said furnace, called the 'Southfield Furnace,' is in blast or making iron." The plaintiff had succeeded to the right of McFarlan, and the defendant to the right of Townsend. The nail factory was destroyed by tire in the vicinity of oO years ago, and had never been rebuilt; the gristmill was converted into a basket factory, which afterwards gave place to a shoddy mill, and then to a manufactory of wooden articles, which business was still conducted therein. Held, the plaintiff is entitled to continue to use the amount of water specitied in the deed of 1811. Hall v. Sterling Iron & Rv. Co., 14S N. Y. 432, 42 N. E. 1056 (ISDGj. Ace. : Suttrel's Case, 4 Co. S6a (1601) ; Garland 216 RIGHTS IN THE LAND OF ANOTHER (Part 2 EDGETT V. DOUGLASS. (Supreme Court of Pennsylvania, 1891. 144 Pa. 95, 22 Atl. 868.) On June 14, 1889, A. J. Edgett filed a bill in equity against C. L. Douglass, charging in substance (1) that the defendant, without any au- thority, had entered upon a tract of seven acres owned by the plaintiff, for the purpose of constructing a dam to restrain the flow of Tunung- want creek and divert it from its natural course, and threatened to con- tinue lo make such entries ; and (2) that the defendant was construc- ing a dam below the plaintiff's property in such manner as to overflow, not only said seven acres, but also another tract of the plaintiff' con- taining thirty acres, to the plaintiff's irreparable damage ; praying that the defendant be enjoined from entering on the seven acres for the pur- pose of changing or diverting the channels of said creek, and from maintaining said dam "other than it now is;" and for general re- lief. * * * The dam mentioned in the pleadings was built in 1844 by W. R. Fisher, and from that time until the purchase by the defendant of the gristmill and water rights mentioned below, was maintained substan- tially in the same condition as when first erected. From 1844 to 1866 Fisher owned the dam, and the land on each side thereof. There were erected prior to 1866, on land owned by Fisher, a sawmill, situated on the west side of the creek, and a gristmill situated on the opposite side. Both were supplied with water from said dam. In 1866, Fisher con- veyed to Henrietta Peterson a parcel of land upon which the sawmill stood, and also the seven acres now owned by the plaintiff, the deed containing the following reservation : "Reserving, however, to the party of the first part sufficient water to run a gristmill on the same milldam, and the right at all times to main- tain a dam across the Tunungwant creek where the dam now is, and the right to flow the land hereby conveyed so far as may be necessary for the use of the water, privilege." * * * The plaintiff's title to the seven acres was derived, through inter- mediate conveyances, from Henrietta Peterson. The defendant owned at the time of the hearing the Fisher gristmill, and had succeeded by grant to all the rights which Fisher had in the mill property, dam, wa- V. Hodsdon, 46 Me. 511 (1859) ; Adams v. Warner, 23 Vt. 395 (1851) ; see Co- burn V. Middlesex Co., 142 Mass. 264, 7 N. E. 849 (1886). A., being the owner of a tract of riparian land and a water power, grant- ed to B. in fee a part of the land with, "the privilege of building a fulling mill, together with the privilege of drawing water from Long Pond [the source of the power], so much as shall be necessary to carry a well-built overshot fulling mill at any time when he, the said B., shall have occasion to use his said fulling mill." B. built his fulling mill; it subsequently burned, and later an oil mill was erected on the same site by B.'s successor in title, who attempted to use the same amount of power for his oil mill. Held, he is not entitled to use the water power for the oil mill. Strong v. Benedict, 5 Conn. 210 (1824). Acc: Clement v. Gould. 61 Vt. 573, 18 Atl. 453 (1889). Compare Woodring v. Hollenbach, 202 Pa. 65, 51 Atl. 318 (1902). Ch. 2) EASEMENTS 217 ter privilege and appurtenances, the same having been conveyed to him by deed of Fisher and wife, dated July 27, 1886. As originally built, the dam in question extended across Tunung- want creek. The breal<, which the defendant was claiming the right to repair, was up the stream from the dam and about 150 feet above it, and with the exception of about three feet, was wholly on the tract of seven acres belonging to the plaintiff. It was contended by the de- fendant that, soon after the construction of the dam in 1844, a dyke extending along the stream from the dam to a point beyond the break, was built for the purpose. of restraining the water from flowing over a portion of the seven acres and of thus increasing the height of the wa- ter in the dam, and it was a break in tliis dyke the defendant was seek- ing to repair. * * * 27 Paxson, C. J. This case involves some questions of fact which could have been more appropriately settled at law. Indeed, had this point been made below, we would have been inclined to sustain it. But where parties submit to the jurisdiction, and take their chances of a decree in their favor, the objection here comes with a bad grace, and will not, as a general rule, avail, unless the want of jurisdiction is so plain that we would feel justified in dismissing the bill of our motion. Aside from this, in the view we take of the case, the disputed facts are not of special importance, as it turns in a great measure upon the prop- er construction of the reservation in the deed of October 16, 1866, fron, William R. Fisher and wife to Henrietta Peterson. The language of said reservation is as follows : "Reserving to the party of the first part sufficient water to run a gristmill on the same milldam, and the right at all times to maintain a dam across the Tunungwant creek where the dam now is, and the right to flow the land hereby conveyed so far as may be necessary for the use of the water privilege." We think the master and the court below took a narrow view of this reservation. Their construction of it was, in the language of the for- mer, "simply to give him [Fisher] the right to flow this land and to maintain a dam across the Tunungwant creek where the same now is. He reserved no right to enter upon his grantee's land for any purpose, ,although this land was the subject-matter of the trade." The master's view, as we understand it, was that the right to maintain the dam con- sisted solely in the right to keep up the breastwork across the creek, and to overflow the seven acres ; but he has failed to enlighten us how the dam is to be maintained if the bank by the side of the creek is washed away, so as to allow the water to escape. In such case, repair- ing the bank which crosses the creek would be of no avail. In this case there was a break in the side of the dam, and admit- tedly on the plaintiff's land. This break could only be repaired by go- ing upon the land of the latter, and it was in doing this that the al- leged trespasses occurred. It is to be observed that the reservation is 27 The statement of facts is abridged. 218 RIGHTS IN THE LAND OF ANOTHER (Part 2 "to maintain a dam across the Tunungwant creek where the dam now is" ; that is to say, the right was reserved to maintain the dam in its length and breadth as it existed at the time of tlie reservation. This inchided all the banks by which the water was confined. The right to maintain the dam means the right to keep up the banks, and, if they are washed away, to repair them. The right to repair necessarily in- volved the right to go upon the land for that purpose, and must have been so understood by the parties to the reservation at the time it was made. Were it otherwise, the reservation would have been wortjiless, and we are not to presume that the parties intended a vain thing. We are of opinion that the defendant has the right to go upon the plain- tiff's land for the purpose of making any repairs to the bank necessary to maintain his dam. The decree is reversed, and the bill dismissed, at the costs of the ap- pellee.^* DUDGEON v. BRONSON et al. (Supreme Court of Indiana, 1902. 159 Ind. 562, 64 N. E. 910, 65 N. E. 752, 95 Am. St. Rep. 315.) DowLiNG, C. J. Mary C. Bronson, the plaintiff below, with whom was joined her husband, sued the appellant for a way of necessity over lands owned by him. The court overruled a demurrer to the amended complaint. A special finding of facts was made, and conclusions of law were stated thereon. The appellant excepted to each conclusion. Motions for a new trial and for a venire de novo were also made and overruled. These decisions of the court are assigned for error. The complaint shows that in 1875 one Stone owned two tracts of land in Allen county, one of which contained 160 acres, and the other 40 acres. Stone sold the larger tract in 1875 to one Benninghoff, and in the same year conveyed the smaller to the appellee Mary C. Bronson. The 160-acre tract bordered upon a highway, but the 40-acre tract had no outlet. The appellant is a remote grantee of Benninghoff. The suc- cessive owners of the larger tract have recognized the right of the ap- pellee to a w^ay over the same to the public highway, and such way is in use by the appellee, but, on account of the character of the location of the said way, which is low and wet for a large part of the year, and 2 8 See Vermilva v. Chicas^o, M. & St. P. Ey. Co., 66 Iowa, 606, 24 N. W. 234, 55 Am. Rep". 279 (1885) ; Prescott v. White, 21 Pick. (Mass.) 341, 32 Am. Dec. 266 (1838); Wliito v. Eagle & Pheuix Hotel Co., 68 N. H. 38, 34 Atl. 672 (1894) ; Central Christian Church v. Lennon, 59 Wash. 425, 109 Pae. 1027 (1910). Compare Thompson v. Uglow, 4 Or. 309 (1873). A. had an easement in fee over B.'s land for water pipes. B. started to build a house on his land in such a way that the repairing of the pipes, if necessary, would be much more diflicult and expensive. Held, A. may en- join B. from so building. Goodhart v. Ilyett. L. R. 25 Ch. D. 182 (1883). As to the liability of the dominant to the servient owner for damage caused bv the non-negligent exercise of the easement, see Jones v. Pritchard, flQOSl 1 CU. 630. Ch. 2) EASEMENTS 219 the nature of the soil, which is soft, the appellee cannot pass over the said way without inconvenience and difficulty. In its present condition, the said way is useless to the appellee for ingress and egress to and from her land, and an additional strip 4 feet in width, running the whole length of said way, is required to render said way passable and useful. The appellant refused to let the appellee use such additional strip, and has forbidden her to enter upon the same. The relief prayed for is that the width of the way be fixed at 20 feet. The case stated in the complaint is one in which the appellee was originally entitled to a way of necessity. Stone owned both the outer and larger tract bordering on the highway, and the inner and smaller one, which had no outlet. If the smaller tract was first sold, the right of access to the highway over the lands of the grantor was appurtenant to the grant. If the larger was first sold, then a way of necessity was impliedly reserved by tlie grantor for the benefit of the 40-acre tract. But it appears from the complaint that, after the conveyance of the two tracts by Stone, a way 16 feet in width was granted to and accept- ed and used by the appellee, and that she still continues to use it. She does not allege that she has no outlet from her land to the public high- way, btrt says that the way (which we must presume was agreed upon between the appellee and the appellant, or his grantors) has become wet and inconvenient, and therefore useless. Having accepted a way of a certain width, and over a particular part of the lands owned by tlje party holding the servient estate, the appellee has no right to change it, but must be confined to the way thus selected. The grounds of the complaint are mere matters of inconvenience. That the way once se- lected and agreed upon is too steep or too narrow or too wet does not entitle the appellee to dem^and a new way, or to increase tlie width or change the direction of the old one. The right of way from necessity over the land of another is always of strict necessity, and nothing short of this will create the right. It is said in Ritchey v. Welsh, 149 Ind. 214, 221, 48 N. E. 1031, 1033, 40 L. R. A. 105, that : "When the way is once selected, it cannot be chang- ed by either party without the consent of the other. Nichols v. Luce, 24 Pick. [Mass.] 102, 35 Am. Dec, 302; Holmes v. Seely, 19 Wend. [N. Y.] 507, 510; Morris v. Edgington, 3 Taunt. 24; Godd. Easem. (Bennett's Ed.) 351." See, also, Washb. Real Prop. (4th Ed.) 306; Washb. Easem. 163-168. "The grantee is bound to keep the way in repair,"'' and is not permitted to go extra viam, as a traveler upon a public highway is allowed to do, when the way is impassable, except, it seems, when the private way is temporarily or accidentally obstruct- 2 9 "By common law, he who has the use of a thing ought to repair it," Mansfield, C. J., in Tavlor v. Whitehead, 2 Doug. 745 (17S1). Ace.: Dana V. Smith, 114 Me. 262, 95 Atl. 1034 (1915). A. leased a house to B., together witli the use of a piimp on other land belonging to A. A. allowed the pump to get out of repair. Held, B. has no cause of action against A. Pomfret v. Ricroft, 1 Saund. 321 (lt>t)9). 220 RIGHTS IN THE LAND OF ANOTHER (Part 2 ed." Holmes v. Seely, supra. "Where the right to an easement is granted without giving definite location and description to it, the exer- cise of the easement in a particular course or manner, with the consent of both parties, renders it fixed and certain, and the dominant owner has no right afterwards to make changes affecting its location, extent, or character." 10 Am. & Eng. Enc. Law (2d Ed.) 430, and cases cited in note 3. The situation of the appellee is the same as if her deed from the own- er of the servient tract had expressly granted and described a way, 16 feet wide, from her 40-acre lot over the 160-acre tract to the highway, along the route followed by the way she now owns. In that case she certainly could not have compelled the appellant to give her a new way, or to increase the width of the old one. As it appears from the com- plaint that the appellee can get to her property from the highway over a way already belonging to her, and as that way must have been select- ed or agreed upon by her, no ground is shown for her claim to an ad- ditional strip as a way of necessity. The demurrer to the complaint should have been sustained. The other errors assigned need not be considered. For the error of the court in overruling the demurrer to the com- plaint, the judgment is reversed, with directions to sustain the demur- rer, and for further proceedings in accordance with this opinion.^" 3 Ace: OaliTi R. & L. Co. v. Armstrong, 18 Haw. 258 (1907); Jennison V. Walker, 11 Graj' (Mass.) 423 (1S60) ; Outhank v. Lake Shore & M. S. K. Co.. 71 N. Y. 194, 27 Am. Rep. 35 (1877). A. granted the city of V. a right of way over A.'s land "for any water pipes or mains which may be laid by the said city of Vallejo * * * and the right to maintain such water pipes and mains * * • and also the use of so much land as is necessary in the laying down and maintaining of said water pipes." V. laid down a 10-inch pipe. Twelve years later it sought to lay a second and 14-inch pipe within 3 feet of the first pipe. Held, it cannot do so. Winslow v. City of Vallejo, 148 Cal. 723, 84 Pac. 191, 5 U R. A. (N. S.) 851, 113 Am. St. Rep. 349, 7 Ann. Cas. 851 (1906). Contra: Standard Oil Co. v. Buchi, 72 N. J. Eq. 492, 66 Atl. 427 (1907), ante, p. 190. Compare Sked v. Pennington Spring Water Co., 72 N. J. Eq. 599, 65 Atl. 7i:; (1907); Moorhead v. Snyder, 31 Pa. 514 (1858). "It is settled law that where an unlocated right of way is granted or re- served, the owner of the servient estate may in the first instance designate a reasonable way, and if he fails to do so, the owner of the dominant es- tate may designate it. Jones on Easements, § 337; Kripp v. Curtis, 71 Cal. 62, 65, 11 Pac. 879 (1886) ; Blum v. Weston, 102 Cal. 362, 369, 36 Pac. 778. 41 Am. St. Rep. ISS (1894). Findings sufficiently sustained by evidence estab- lish that there was no such failure in this case as to entitle plaintiff to make the selection. But had she been so entitled, she would still have been required to select a route that was reasonable as to both parties, in view of all the circumstances, one 'that will not unreasonably interfere with the grantor in the enjoyment of his estate.' Jones on Easements, § 337. , The trial court was warranted in concluding that the route selected by plaintiff was unreasonable, in view of all the circumstances. The case before us is simply one where the parties have been unable to agree upon a reasonable route in which event the location may be determined in equity. Jones on Easements, § 354 ; Gardner v. Webster, 64 N. H. 520, 522, 15 Atl.' 144 (1888)." Angellotti. J., in Ballard v. Titus, 157 Cal. 683, 110 Pac. 122 (1910). See Moore v. White, 159. Mich. 460, 124 N. W. 62, 134 Am, St. Rep. 735 (1909). Ch. 2) EASEMENTS 221 DURFEE V. GARVEY. (Supreme Court of California, 1889. 78 Cal. 546, 21 Pac. 302.) [The plaintiff claimed the right to drain his land by means of a ditch running through the defendant's land.] Belcher, C. C.^^ * * * Prior to 1882, a part of defendant's land was cultivated, but in that year he ceased to cultivate it, and has since used it only for pasturing stock. He has kept on it horses, mules, and cattle, and these animals, by feeding along the ditch, and frequent- ly passing over it, have broken in its sides, and have thereby filled it up and obstructed the flow of water through it. This obstruction in- terfered with the drainage of plaintiff's land, and prevented his culti- vating 20 to 25 acres of it on which he could otherwise have raised good crops. * * * 1. The theory of plaintiff, developed at the trial, in reference to his first cause of action, was that he had acquired a prescriptive right to the use of the ditch leading from his lower line to the arroyo, and that defendant had no right to make any use of his land which would cause an obstruction of the ditch, and that if he did so he must keep it cleared out, or be liable for any damages caused by the obstruction. On the other hand, the theory of defendant was that plaintiff- had acquired no prescriptive right to the use of the ditch, and that, if he had, defend- ant had a right to use his land for any legitimate and ordinary purpose, and if, while so using it, the ditch was injured or obstructed the bur- den was upon the plaintiff to remove the obstructions and keep it in repair. * * * The question then presented for decision on this branch of the ca.''e, conceding that plaintiff had acquired an irrevocable right to have his ditch maintained over defendant's land, is, to what extent does that right interfere with and limit defendant's right to use his land ? Must defendant, if he would use his land for the pasturage of stock, fence in the ditch, or cover it over so that the stock cannot tread down its sides? And, if he so uses it, is the burden cast upon him to keep the ditch clear and unobstructed, so that water will continuously flow through it ? It must be admitted that the use of land for pasturage is a common and legitimate use of it, and there is no pretense that de- fendant did not exercise ordinary care over his stock. * * * Now, if the plaintiff's theor}- be correct, the defendant cannot use his land as a pasture, though that may be the best and perhaps only profitable use he can make of it, unless he employs men to patrol the ditch and keep the cattle away from it, or goes to the expense of fenc- ing it in or covering it with bridges. It does not seem to us that the plaintiff's easement on the land can impose any such burden as that on 81 Part of ttie opinion is omitted.' 222 RIGHTS IN THE LAND OF ANOTHER (Part 2 the defendant. The general rule is that any man may use his own land in his own way, provided he does not use it negligently, so as to in- jure his neighbor; and the rule is, also, that, where one man has an easement over the land of another, the duty of keeping the easement in repair rests upon its owner, and when repairs are necessary he may enter on the servient tenement to make them. God. Easem. 285 ; Gale & W. Easem. 215; Prescott v. Williams, 5 Mete. (Mass.) 435, 39 Am. Dec. 688. It does not appear that plaintiff was ever denied the privilege of making any repairs upon his ditch, and it would be going to an ex- treme and unwarranted length, as it seems to us, to hold that in a case like this defendant is made liable. In our opinion the court erred in giving the instruction above quoted for plaintiff and in refusing to give, without modification, that asked by defendant. * * * Per Curiam. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded for a new trial, unless the plaintiff shall, within 30 days after the going down of the remittitur, file in the court below a release of $150, and his costs in that court, and if he does file such release that the judgment and or- der stand affirmed. -^^ ATTORNEY GENERAL v. WILLIAMS. (Supreme Judicial Court of M.assachusetts, 1885. 140 Mass. 329, 2 N. E. 80, 3 N. E. 214, 54 Am. Rep. 468.) Information in equity, at the relation of the Harbor and Land Com- missioners, to restrain the erection of bay windows or projections ex- tending into or over a passageway in the rear of the defendant's Jiouse^ "*^on the corner of Boylston Street and Exeter Street in Boston. Hear- ing before Devens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion. C. Allen, J.^^ The first question which we have considered is, whether an information in the name of the Attorney. General can be maintained to enforce the stipulations In respect to the passage- way. * * * [The Court answered this question in the affirmative.] 32 Ace: Citv of Bellevue v. Daly, 14 Idaho. 545. 94 Pac. 103G. 15 L. R. A. (N. S.) 902, 125 Am. St. Rep. 179. 14 Ann. Cas. 1136 (1908). A. had a right of way over B.'s farm to his summer home. He built a carriage road at an expense of $700 B. di-ew heavy loads of agricultural products over the road from one part of his farm to another and seriously damaged the road. Held A. may enjoin B. from so doing. Ilennau v. Roberts, 119 N. Y. 37, 23 N. E. 442. 7 L. R. A. 220, 16 Am. St. Rep. 800 (1S90). See Rockland Water Co. v. Tillson, 75 Me. 170 (18S3) ; Draper v. Varnerin, 220 Mass. 67. 107 N. E. 3."0 (1914) : Kansas City Southern Ry. Co. v. Sand- lin, 173 Mo. App. 384. 15S S. W. 857 (1913); Haley v. Colcord, 59 N. H. 7. 47 Am. Rep. 176 (1879); Williams v. Safford. 7 Barb. (N. Y.) 309 (1849); Mof- fitt V. Lytle, 105 Pa. 173, 30 Atl. 922 (1895). 38 Part of the opinion is omitted. Ch. 2) EASEMENTS 223 The principal ground of objection to th^ maintenance of the infor- mation is, that the defendant has not infringed upon the stipulation referred to. Before considering this question in the light of the partic- ular stipulation, it may be well to review some of the principal authori- ties cited at the argument. The leading case upon this subject is At- kins V. Bordman, 2 Mete. 457, Z7 Am. Dec. 100, where it was held that the owner of land, over which his grantor had reserved a pas- sageway, might, under the peculiar circumstances of that case, lawfully cover such passageway with a building, if he left a space so wide, high, and light that the way was substantially as convenient as before for the purposes for which it was reserved. There, from the language of the reservation, construed in the light of the existing facts and cir- cumstances, the right reserved was held to be that of ''a._suita.bLe._aryi corrvenient_f ootway to and from the grantor's dwelling-house, of suita- ble height and dimensions to carry in and out furniture, provisions, and necessaries for family use, and to use for that purpose wheelbarrows, hand sleds, and such small vehicles as are commonly used for that purpose, in passing to and from the street to the dwelling in the rear, through a foot passage, in a closely built and thickly settled town." It was ajis^ which was individual to the occupant of that house, and not for the public. It was limited to certain simple uses, connected with getting things into and out of the house. It is obvious that the rights of the single person entitled ^under such circumstances to a passage- way are not necessarily identical with the rights involved in the pres- ent case. * * * It is necessary now to look at the terms of the bond in which the stipulation relied on in the present case is contained, in order to see what it means. In the first place, it is to be borne in mind that the place in question is a paj^t of a great scheme of improvement of waste land in a city, for streets and dwelling. The description of the land carefully defines the width and lines of the passageway : "Running one hundred and twelve feet to a passageway sixteen feei wide; thence westerly on the line of said passageway ; * * * also all that part of said passageway sixteen feet wide that lies southerly of its centre line, and between the easterly and westerly lines of said premises ex- tended ; reference being had to the plan accompanying the fifth annual report of the commissioners on the Back Bay." A reference to the plan shows a system of streets, covering an extensive territory, with passageways for the accommodation of the houses on two streets, and for access to their rear entrances. "Any building erected on the prem- ises shall be at least three stories high for the main part thereof, and shall not in any event be used for a stable or for any mechanical or manufacturing purposes." There were also other provisions showing that dwellinghouses of a high class were contemplated. Afterwards followed tlie 'particular stipulation relied on, "that a passageway six- teen feet wide is to be laid out in the rear of the premises, the same 224 RIGHTS IN THE LAND OF ANOTHER (Part 2 to be filled in by the commonwealth, and to be kept open and maintained by the abutters in common." It was contemplated that buildings might be erected on both sides of this passageway. Each owner might build up to the line of it. The defendant has done so, and has built bay windows from a point eight feet above the sidewalk, and extending from three to four feet into the passageway, to the top of his house, six stories high. If the op- posite owner should do the same, the passageway between the build- ings, extending upwards from a point beginning eight feet above the surface of the ground, would be eight feet, instead of sixteen, in width. It would be half closed up, so far as Hght and air and prospect are con- cerned. And, if this may be done, it is difficult to place any practical limit to what might be done in this manner. The passageway was de- signed as a thoroughfare for the accommodation of many persons. In appearance, it is on the plan indistinguishable from a narrow street. It is connected at each end with broad and important streets. It was to be kept open. No gates could be put at the ends of it. It- was to be "maintained," that is, kept in good order for use. Its width shows that it was designed for vehicles drawn by horses, as well as for travel- lers afoot. The supplies for all the houses on both sides of it, for its entire length, would be chiefly deliverable, and all refuse matter re- movable, by its means. Thus we have a passageway of defined dimen- sions; in the rear of all the houses on t\yo broad streets, designed for use by all who may have occasion to seek the rear entrance of any houses on either street, — a passageway available also for police purposes and for use in the extinguishment of fires, — a passageway which is to _be maintained, and kept open, and designed for horses and wagons, in a part of a large city which is designed to be wholly occupied by dwell- ings of a high class, to which air and light and prospect are not only desirable, but essential, in the rear as well as in the front, with no limi- tation to the use which may be made of it or of the persons by whom it may be used. In view of these considerations, we think the language of the stipu- lation was designed to signify a separation of sixteen feet at least be- tween the rear portions of the buildings abutting on the passageway. A passageway sixteen feet wide was not merely to be kept open at both ends, but open to the sky throughout its entire lengthy for the general convenience and benefit. It is dasy to see that the rights of others would be lessened, upon any other construction. The opposite owner, who might not wish in like manner to build into the passageway, would have in the rear of his house a space just so much narrower. The ad- jacent owner on the same side, who did not wish to occupy a part of the passageway with his building, would have light, air, and prospect cut off. The right themselves to occupy the passage in this manner would be no equivalent to owners who did not wish to build their hous- es so as to extend back to the line of it. Ch. 2) EASEMENTS 225 There is nothing in the facts proved at the hearing and reported to us which in any way controls the construction thus put upon the lan- guage of the stipulation. The result is, that a decree must be entered for the removal of the projections.^ " ' Decree accordingly.^* BITELLO V. UPSON. (Supreme Court of Connecticut, 1908. SO Conn. 497, 69 Atl. 21, 16 L. R. A. m. S.] 193, 125 Am. St. Rep. 126.) Action to restrain the obstruction of a passway, and for damages, brought to and tried by the court of common pleas in New Haven coun- ty, Wolfe, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant. Error and cause remanded. HaIvL, J.^^ Anson Brown owned a tract of land on the northerly side of Washington avenue in New Haven, about 89 feet wide and 230 feet deep. In October, 1901, Brown conveyed the northerly end of said tract, a lot some 70 feet on the east and west, and 89 feet on the north and south, to the plaintiff, and also by the same deed granted the _£laintift' a right of jway oyer the east side of the remainder of the gran- tor's tract, in the following language : "And the use of a right of way in common with myself, heirs, and assigns, forever, over a strip of land ten (10) feet wide and one hundred and sixty (160) feet more or less deep, from Washington avenue to the above-described land." At the time of said conveyance there was a dwelling house on the lot con- veyed, and there is now also a small barn and sheds upon it, * * * [The title to the dominant and servient pieces had passed by mesne conveyances to the plaintiff and defendant respectively.] In De- 3 4 See Crocker v. Cotting, 181 Mass. 146, 63 N. E. 402 (1902) ; Schmoele v. Betz, 212 Pa. 32, 61 Atl. 525, 108 Am. St. Rep. 845 (190.5). Compare Swift v. Cocker, 83 Ga. 789. 10 S. E. 442, 20 Am. St. Rep. 347 (1SS9). A. laid out a small parcel of land in seven house lots, which he conveyed in fee to various purchasers. All the lots had access to a 7-foot alley and some of the lots had no other access ; a right of way over the alley was made appur- . tenant to each lot, and it was stipulated that the ow^ners of the seven lots should bear the entire cost of the upkeep of the alley. The purchaser of one lot, who owned other adjacent land, secured from A. a release of all his in- terest in the land under the alley, and then attempted to use the alley for the benefit of his other land. Held, he may be enjoined by the owners of the other dominant lots from so doing. Greene v. Canny, 137 Mass. 64 (1884). See Wilson V. Ford, 209 N. Y. 186, 102 N E. 614 (1913) ; Kirkham v. Sharp, 1 "V\Taart. (Pa.) 323, 29 Am. Dec. 57 (1832) ; Stephen Putney Shoe Co. v. Rich- mond, F. & P. R. Co., 116 Va. 211, 81 S. E. 93 (1914)- A. conveyed a parcel of land to B. in fee, with a right of way over a 30-foot strip still owned by A. A. subsequently conveyed another parcel to C. in fee, with a right of way over the same strip. Held, B. cannot enjoin C. from building a switch track over the said strip. Murphy Chair Co. v. Ameri- can Radiator Co., 172 Mich. 14, 137 N. W 791 (1912). Ace: Forsyth v. American Maize Products Co., 59 Ind. App. 634, 108 N. E. 622 (1915). 3 5 Part of the opinion is omitted. , BiG.RlGHTS — 15 ^^x^ 226 RIGHTS IN THE LAND OF ANOTHER (Part 2 cember, 1906, the defendant commenced constructing on the east side of his dwelling house, which fronts on Washington avenue and adjoins said driveway, a bay window llfeet and 6 inches above the ground, extending about 16 feet north from the southeast corner of the house, and projecting over said driveway 2 feet and 6 inches. Upon the question of the possible interference of this Fay window with the plaintiff's use, of the driveway these facts are found : The plaintiff is engaged in the ice business and keeps his ice wagon, which is 5 feet and 4 inches high, upon said premises. A two-horse covered ice wagon is 8 feet and 6 inches high and 6 feet and 2 inches wide. The highest furniture van used in New Haven is 10 feet 6 inches high and 7 feet 4 inches wide. The highest two-horse canvas covered truck is 10 feet 11 inches high. The ordinary two-horse truck, loaded with furniture, is not higher than 11 feet. If a high furniture van were to be driven through the driveway into the plaintiff's premises, it could not be turned around on account of the buildings. .A two-horse load of loose hay is from 8 to 10 feet wide and from 10 to 12 feet high. The plaintiff purchases his hay by the bale, and has never carted any- thing over said driveway with which said bay window would interfere. The finding states that in addition to the above facts found, as stipu- lated by the paVties, the court personally viewed the premises, and that, "in the light of all the surrounding circumstances, and from a view of the premises," reached the conclusion that "the plaintiff is not only en- titled to an unrestricted right of way over the strip of land described in the grant to him for the purpose of passage, but is also entitled to the right of uninterrupted access of light and air over and across the same, and that the erection of the structure in question is an improper and material interference with, and obstruction of, such rights, thus rendering the right of way less beneficial and useful." * * * By this language, as well as from the judgment rendered upon the facts found, it seems clear that the court intended to hold that any ma- terial interference by the defendant with the "access of light and air over and across" the strip of land was an obstruction of the- plaintiff's right, even though it did not interfere with the reasonable and ordi- nai-y use of the right of way. Tliis ruling was erroneous. By his deed from Brown the defendant acquired the fee to land over which he was building the bay window, incumbered by a right of way previously granted by Brown to the plaintiff, which was a right of pas- sage over the 10-foot strip. Hart v. Chalker, 5 Conn. 311-314. The deed from Brown to the plaintiff containedjio express grant of an ease- ment of light and air. Implied grants of such easements not reasona- bly necessary for the enjoyment of the rights expressly granted are not favored in this state. Section 4046, Gen. St. 1902. There wa^_no^ implied grant to the plaintiff of a right to have light and air pass over the driveway to any greater extent than was necessary for the rea- sonable enjoyment of the right of passage granted. Puorto v. Chieppa, 78 Conn. 401-404, 62 Atl. 664; Robinson v. Clapp, 65 Conn. 365, 32 Ch. 2) EASEMENTS 227 Atl. 939, 29 L. R. A. 582 ; Atkins v. Bordman, 2 Mete. (Mass.) 457, 37 Am. Dec. 100; Gerrish v. Shattuck, 132 Mass. 235. We are unable to see how the projection 2i/2 feet over the driveway of a bay window 11% feet from the ground could so diminish or affect the supply of light and air in the driveway as to prevent those persons who have the right to use it, or those vehicles which are permitted to be driven over it, from passing along it with comfort, safety, and convenience, and the trial court has, not found that it would. The driveway is not to be kept supplied with light and air for the benefit of the public. The way grant- ed to the plaintiff is appurtenant to his land, and is a private one. That this lane is known as "Washington Place" does not make it a public court qrjhighway or thoroughfare. The deed to the defendant de- scribes it as "leading to and from Washington Place." The grant to the plaintiff' gives no right to any person' to use it for any other pur- pose than in passing to and from the plaintiff's premises. It follows from what we have said that the judgment was erroneous,_ unless it appears that the bay window itself would constitute a physi- cal obstruction to the proper use of the driveway, permitted by the deed to the plaintiff. The court has not found that it would, and the facts found show that it would not. The top of the highest loaded vehicle described in the finding, a two-horse load of loose hay, which never has passed and probably never will pass through the driveway, might extend 6 inches above the bottom of the bay window. If there should ever be any occasion to drive such a loaded vehicle by the bay window, it evidently could be done without any inconvenience. In inquiring whether an injunction ought to be granted upon the ground that the bay window may directly interfere with the plaintiff's use of the drive- way the proper question is, not what use the plaintiff might possibly attemp t to make of it^ but wEat uses can he reasonably be expected to hav e p"ccaiTon to, make of it.^^ Such uses would seem to be covered by those, the measurements required for which are given in the find- ing. * * * There was error, and thejudgment is set aside, and the case remand- ed, with directions to render judgment for the defendant. In this opin- ion the other Judges concurred. ^'^ -.^J^ Uu4 36 A. had a right of way to rnd from his wood lot over three adjoining tracts of land belonging to B. B. put up fences between the tracts, with ■movable rails at A.'s right of way. In an action by A. against B. to compel him to remove these obstructions, the court held that B. could not l>e com- pelled so to do, saying: •' * * * The plaintiff's lot is still wood lot. It may remain so for many years. * * * There is nothing inconsistent in holding that tbe present arrangements are suitable and sufficient under existing circumstances ; and after these circimistances shall have changed and the question .shall arise as to what shall _then be proper, to determine that a passage perpptually opan * * * sha7l be required of the defend- ant." Bakeman v. Talbot. 31 N. Y. 366, 88 Am. Dec. 275 (1865). 37 Ace. : Atkins v. Bordman, 2 Mete. (IMass.) 457, 37 Am. Dec. 100 (1841),; Grafton v. Moir, 130 X. Y. 405, 29 X. E. 974, 27 Am. St. Rep. 533 (1S92). A. owned two adjoining city lots, there being an alley on the east side of 228 RIGHTS IN THE LAND OF ANOTHER (Part 2 PITTSBURGH, FT. W. & C. RY. v. PEET. (Supreme Court of Pennsylvania, 1S03. 152 Pa. 488, 25 Atl. 612, 19 L. K. A. 467.) Ejectment for a lot of ground on the south side of Robinson street in the city of Allegheny. At the trial, before Stowe, P. J., plaintiff claimed title to the land in controversy by virtue of condemnation proceedings in 1855. Part of the land condemned was used by the railroad company for its tracks and abutments ; but tlie lot in suit was not in actual occupation of the company. At the time of the condemnation proceedings, the assistant engineer of the railroad company which condemned the land testified that the property was not to be used for sidings or depot purposes, but it was intended eventually to be used to build protection walls upon it on either side and fill them in. Defendants averred that they bought the land without any actual notice that the railroad company claimed it, and they were about to bnild a warehouse upon it when this action was brought. [Verdict and judgment for plaintiffs. Defendants appeal.] Paxson, C. J.^^ This was an action of ejectment in the court be- low. The plaintiffs showed title to the locus in quo by certain deeds, the west lot. A. granted the east lot to B. in fee, "together with the free use * * * of the said alley for free ingress * * * and of a water course therein, reserving to the owner of said lot adjoining to the westward the right of building over the said alley at the same height and of the same depth as the same is now built over." A. later conveyed the west lot to C. in fee, who built over for a greater depth than at the time of the above deed. It was admitted that B.'s use of the ally as a way and water course was not prejudiced. Held, B. has no cause of action against C. Duross v. Singer, 224 Pa. 573, 73 Atl. 951 (1909). A. grants B. "the free and undisturbed right to the use" of a way over A.'s land. Held, A. may later put a gate across the way. Boyd v. Bloom, 152 Ind. 152, 52 N. E. 751 (1898) ; Brill v. Brill, 108 N. Y. 511, 15 N. E, 538 (1887). Otherwise where the way was over a private alley in a city. Flaherty v. Fleming, 58 W. Va. 669, 52 S. E. 857, 3 L. R. A. (N. S.) 461 (1905). Compare Ballinger v. Kinney, 87 Neb. 342, 127 N. W. 239 (1910). "It is true that a way gained by adverse use gives rights commensurate with the adverse use. But, if the use be for agricultural purposes only, then the way becomes a way for that use — a use to be exercised in a reasonable man- ner; and reasonable use of a way for agricultural purposes, whether created by grant or adverse user, may properly be subjected to gates and bars not un- reasonably established. The way may be gained without being so obstructed at all, but it is, nevertheless, a way for a particular use; and, in the enjoy- ment of that use, unreasonable obstructions only are prohibited. The nature of the easement gained determines its character, and not the particular man- ner of the use that created the right." Haskell, J., in Ames v. Shaw, 82 Me. 379, 19 Atl. 856 (1890). Ace: Luster v. Garner, 128 Tenn. 160, 159 S. W. 604, 48 L. R. A. (N. S.) 87, Ann. Cas. 1914D, 769 (1913). Contra: Fankboner v. Corder, 127 Ind. 164, 26 N. E. 766 (1891). Compare McMillan v. Cronin, 75 N. Y. 474 (1878) ; Bolton v. Murphy, 41 Utah, 591, 127 Pac. 335 (1912). If the gate is a proper one, the dominant is under the duty of keeping it closed. Damron v. Justice, 162 Ky. 101, 172 S. W. 120 (1915). 38 The statement of facts is abridged and part of the opinion Is omitted. Ch. 2) EASEMENTS 229 and by proceedings to condemn it for railroad purposes. The defend- _ants contended that, if the plaintiffs did actually condemn the strip of ground in question, they could not recover in ejectment, for the reason that they did not acquire a fee in the ground, but only an. easem ent, and that ejectment will not lie for a mere right of way. The vice of this argument consists in treating the plaintiff's right as a mere easement or right of way. It is a great deal more than a right of way. They h ave the actual possession of the property, and that^ poss ession is exc lusive, at all tunes and for all purposes, except where a way crosses it. Railway Co. v. Hummell,. 44 Pa. 375, 84 Am. Dec. 457; Railroad Co. v. City of Philadelphia, 88 Pa. 424. The estate acquired by a railroad company by a condemnation of land is often spoken of as an "easement," but the term is used in a loose way, for the purpose of distinguishing it from a "fee." In the recent case of Pennsylvania S. V. R. Co. v. Reading Paper Mills, 149 Pa. 18, 24 Atl. 205, it was said by our Brother Mitchell: "Such title is sometimes called an 'easement,' but it is a right to ex- clus ive possession, — to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including neces- sary foundations, and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee. There was no such easement at common law, and it may well be doubted if it is not a misnomer to extend to this newly-invented interest in land the name of 'easement,' perhaps appropriate enough to the railroad's ordi- nary right of way for its tracks. It would seem to be rather a fee in the surface and so much beneath as may be necessary for support, though a base or conditional fee, terminable on the cesser of the use for railroad purposes. But, whatever it may be called, it is, in sub- stance, an interes,t in the land, special and exclusive in its nature, and which may be the subject of special injury by the obstruction of ac- cess to the abutting street, and therefore within the rule which gov- erns the application of equitable relief. The right of exclusive posses- .sion includes the right of ingress and egress from ,the street, and in this respect the injury is exactly the same as to a tenant for life or for years, whose right to relief would be unquestionable, and is en- tirely different from the general right of the public to pass along the street." * * * By the appellants' second point, the court below was asked to in- struct the jury as follows : "That, there being no evidence in the case of any necessity for the use of the property in question, or of any interfefence by its present use with the operations of their railroad company, the railroad company cannot recover in an action of eject- ment." This point was properly refused. When a railroad company condemns land, it is of necessity the judge of how much is required for its use. If this question were submitted to a jury in every case, the righ t of e rninent domain would be of little practical value. The company had a right, when it condemned the property, to regard and 230 RIGHTS IN THE LAND OF ANOTHER (Part 2 make provision for its future, as vvell as its present needs. This is settled law. It is sufficient to refer to Pittsburgh Junction R. Co.'s Appeal, 122 Pa. 530, 6 Atl. 564, 9 Ain. St. Rep. 128. If it condemns for future use land which it does not need at the time, the nonuser of a portion for present purposes cannot be held to be an abandonment. We are of opinion that, under the evidence in the case, the court be- low was justified in directing a verdict in farvor of the plaintiffs. Judgment affirmed.^® ATLANTIC COAST LINE R. CO. v. BUNTING. (Supreme Court of North Carolina, 1915. 16S N. C. 579, 84 S. E. 1009.) Appeal from Superior Court, Pitt County ; Peebles, Judge. Action by the Atlantic Coast Line Railroad against J. R. Bunting. From a judgment for plaintiff, defendant appeals. Reversed. Civil action to enjoin erection of a brick building on plaintiff's right of way, heard on return to preliminary restraining order. On the hearing, the restraining order was made permanent, and enjoining defendant from further proceeding with the building, whereupon de- fendant excepted and appealed. Hoke, J. Our decisions are to the eft'ect that aj;ailroad ngbt of way^. when once acquired, may be occupied and used by the company to its full extent, whenever the proper management and business necessities of the road may so require, and the company is made the judge of such necessity. Railroad v. McLean," 158 N. C. 498, 74, S. E. 461; Earnhardt v. Railroad, 157 N. C. 358, 72 S. E. 1062; Railroad v. Olive, 142 N. C. 273, 55 S. E. 263. And, further, that, to "the ex- tent that the land covered by the right of way is not presently re- quired for the purposes of the road, the owner may continue to oc- cupy and use it in a manner not inconsistent with the full and proper enjoyment of the easement." Lumber Co. v. Hines, 126 N. C. 254, 35 S. E. 458 ; Railroad v. Sturgeon, 120 N. C. 225, 26 S. E. 779. Both positions will be found stated and approved in the more recent cases of Coit v. Owenby, 166 N. C. 136-138, 81 S. E. 1067, and Hendrix v. Railroad, 162 N. C. 9, 77 S. E. 1001, and it is further established in this state, both by statute and precedent, that, when the company has acquired and properly entered on the enjoyment of its easement, the further appropriation and use of the right of way, as indicated, may not be destroyed or sensibly impaired by reason of the occupation of 89 Ace. : Kansas & C. P. Ry. v. Burns, 70 Kan. 627, 79 Pac. 238 (1905). A. owned a house fronting on a street with a stable and yard in the rear, the yard being connected with the street by an arched passageway under the house. A. conveyed the rear lot to B. in fee, "together with the exclusive use of the said gateway" or passageway, describing it by metes and bounds. B. later lined the passageway with boards, and converted it into a book shop. Held, a: has no cause of action. Reilly v. Booth, L. R. 44 Ch. D. 12 (1890). Ch. 2) EASEMENTS 231 the owner or other person. Revisal, § 388; Beattie v. Railroad, 108 N. C. 462, 433, 12 S. E. 913 ; Railroad v. McCaskill, 94 N. C. 746. A correct application of these principles to the- facts in evidence, about which there is no substantial dispute between the parties, is, in our opinion, against the ruling of the court below on the question presented. From these facts, it appears that plaintiff is now operating a railroad through or by the town of Bethel, and that, under its vari- ous charters, its right of way extends for 100 feet each way from the center of its track; that formerly the town was some further away, but soon after the completion of the road, about 1885, the business portion was moved towards the southern side of the track, and a sub- stantial block of business buildings, including a bank, two hotels, and some large brick stores, were erected along said track and fronting the same, leaving a space of 65 feet between said buildings and the track, which space was used as a public street known as Railroad street, tlie principal business street of the town, and had been since the before mentioned date, 1885 ; that defendant, owning one. of the lots^ on this street, had bought an old warehouse from the company and placed it on the lot and had used it as a business house or ware- Tiause for several years, till the fall of 1914, when he tore it down with intent to erect on the lot a brick business building, this being sub- stantially in line with the buildings already along the street and situ- ate, for some distance, on plaintiff's right of way. Tn making our present decision, we must not be understood as hold- ing that, under usual or ordinary circumstances, the owner of prop- erty, subject to such an easement, would be justified in building a per- manent brick structure on the plaintiff's right of way, but there is nothing in this record which shows or tends to show that plaintiff company has any present purpose of putting in a double track, or that the proposed building will tend to interfere with the proper and ef- ficient operation of the road, or that it will sensibly increase the haz- ards incident to its operation, and, in the absence of some such evi- dence, we must hold, as stated, that, on the facts presented, there is nothing to indicate that the proposed building or its contemplated use will, in any way, tend to interfere with the "full and proper enjoy- ment of plaintiff's easement," the test suggested in Coit v. Owenby, ■ supra, and the authorities cited in its support. It was only a business building in line with the other buildings on the block, and, so far as appears, it did not even sensibly increase the obstruction to the view, at times desirable for the safe operation of plaintiff's trains. The case of Coit v. Owenby was cited on the argument as authority for the position that, on the facts in evidence, the plaintiff might have some proprietary interest in that portion of defendant's lot on the right of way, which it might rent or lease for warehouse or other busi- ness purposes to some patron of the road. Owing to the fact that the testimony on that point in Coit v. Owenby, supra, was somewhat obscurely stated, in the case on appeal, the decision may, in some 232 RIGHTS IN THE LAND OF ANOTHER (Part 2 aspects of the evidence, permit of such an interpretation and we deem it well, therefore, to say that, in the case referred to, the court never intended to hold that a railroad had the right to rent out the right of way to an individual for strictly personal or private business pur- poses. The decision was made to rest on that aspect of the testimony which permitted the interpretation and tended to show that the right of way had been let to a patron of the road as a terminal 'facility for receipt and shipment of freight, and it was held that the com- pany might do this to the extent that it did not interfere with the facilities for serving the public. A railroad company would not be permitted to sell or farm out any portion of its right of way to an^ individual for any purposes extraneous to its chartered rights and duties. We find there was error in the judgment rendered, and, on the rec- ord, the same must be reversed. -?^^k^ Ju^ Reversed.* "^ [^ "^^ ' WaIvKER and Brown, JJ., dissenting. SECTION 3.— EASEMENTS IN STRUCTURES BROOKS V. CURTIS et al. (Court of Appeals of New York, 1872. 50, N. Y. 639, 10 Am. Rep. 545.) Appeal from judgment modifying judgment in favor of defendants, entered upon the decision of the court at Special Term, and affirming judgment as modified. Action to compel defendants to remove encroachments alleged to have been placed by defendants upon the premises of plaintiff, and to restore the property to its former condition. The parties own adjoining premises in the city of Rochester. In 1846 Everett Peck owned both premises. He deeded to plaintiff in July of that year. At that time Peck had begun the construction of a three-story brick building upon the lot. The easterly line of the premises conveyed to plaintiff is thus given in the deed: "Beginning 40 It has been held that the owner of the land subject to a railroad right of way may not make cattle guards under oi; along the roadbed, Alton & S. E. Co. V. Baugh, 14 111. 211 (1852) ; may excavate sand so- far as it does not in- terfere with the use of the land for railroad purposes, Vermilya v. Chicago, M. & St. P. Ry. Co., 66 Iowa, 606, 24 N. W. 234, 55 Am. Rep. 279 (1885) ; may not cultivate cotton along the right of way against the objection of the railroad, Wilmot V. Yazoo & M. V. R. Co., 76 Miss. 374, 24 South. 701 (1898) ; may in- stall a private crossing from one part of his farm to another, Cincinnati, H. & D. R. Co. V. Wachter, 70 Ohio St. 113, 70 N. E. 974 (1904). A railroad company has no right, as against the owner of the land through which the right of way runs, to sink oil wells in the right of way. Oonsum-, ers' Gas Trust Co. v. American Plate Glass Co., 162 Ind. 393, 68 N. E. 1020 (1903). ' Ch. 2) EASEMENTS 233 at a point on the north of Buffalo street * * * opposite the center of the brick wall which said party of the first part is now erect- ing as the west wall of a block of stores ; thence northwardly through the center of said brick wall seventy-nine feet." In 1855 plaintiff erected a three-story building, using the wall for the east wall. In 1856 the defendants acquired title from the executors of Peck to the other lot. In 1866 they added two stories to their building — raising the party wall for that purpose. They also lowered the ceiling of the upper story of the building, as it was, some six feet, letting the joists into theoTd wall, and passed iron anchors through the wall, fastened on the west face of the wall by nuts and plates. The anchors were inserted with the verbal consent of plaintiff. The latter gave no con- sent to raising the wall. After the addition was completed, ice and snow TronTthe roof of defendants' building fell upon plaintiff's roof, doing some damage. The trial court dismissed the complaint. The judgment of the General Term was as follows: "Ju^?"^^^^ modified so as to restrain the defendants from maintaining their roof in such manner and of such construction that the water and snow from it, and the ice formed from the waters falling from it, descend upon the roof of the plaintiff's adjoining building. As thus modified, judgment affirmed, without costs of this appeal to either party." Rapallo, J. The deed from Everard Peck to the plaintiff states tliat the wall in controversy was, at the time of the conveyance, being erected by Peck as the west wall of a block of stores. The center line of jth^ wall is, by the deed, made the easterly boundary of the land conveyed, which includes the land on which the westerly half of the wall stands. It appears that Peck's stores were afterward completed, and the plaintiff erected a building upon his own lot, using the wall as a party wall, and inserting in it the joists of his building. Peck afterward conveyed to the defendant, who made the addition to the height of the wall. We think that the language of the deed and the acts of the parties show that it was their intention that the wall should be a party wall for the common use of both lots. The deed states that Peck was at the time erecting the wall, half of which was conveyed, and that it was to be the west wall of his block. This implies that the wall was not then completed, and that Peck was to have the right to com- plete it and use it as the west wall of his block. If the deed is to be treated as an absolute conveyance, free from any reservation, easement or privilege in the co-owner of the wall, Peck would have had no right to proceed to complete it, or at least that part which was beyond his line, after, the conveyance. It cannot be supposed that such was the inte ntion of the parties. Subsequently to this conveyance the wall has been used for more than twenty years as a party wall. Although land covered by a party wall remains the several property of the owner of each half, yet the title of each owner is qualified by 234 RIGHTS IN THE LAND OF ANOTHER (Part 2 j;he easement to which the other is entitled; and an important ques- tion in this case is, whether such easement includes the right to in- crease the height of the wall, provided such increase can be made with- out detriment to the strength of the wall or to the property of the adjacent owner. This question, in the absence of statutory regulations upon the subject, does not seem to have been distinctly settled by authority ; but the fact appears in several of the cases relating to party walls that the height had been increased, and there is no intimation that such increasie was unlawful. Watt v. Hawkins, 5 Taunt 20, was an action of trespass. The plaintiff had added to the height of a party wall, and the defendant tore down the addition, for which injury the plaintiff brought trespass. The only point decided was, that the parties were not tenants in common of the land, and therefore the action of trespass could be maintained. In Campbell v, Mesier, 4 Johns. Ch. 335, 8 Am. Dec. 570, a party wall, standing equally on two lots, havmg become ruinous, the owner on one side, against the will and in spite of the prohibition of the adjacent owner, pulled down the wall and rebuilt it higher than it was originally. It was held that the adjacent owner was bound to contribute to the expense of the new wall, but not to the extra expense of making it higher than the old. There is no in- timation in the case that the increase of height was wrongful. In Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632, the new wall built by the defendant was not only higher, but its foundations were deeper than the old wall which it replaced. The right to make these additions was not however discussed in the case, and perhaps there was no occasion to discuss it, the action being brought by the tenant of the adjacent lot, whose goods were injured in making the repair, and not by the owner. In Eno V. Del Vecchio, 11 N. Y. Super. Ct. 53, it was held that the owner on one side of a party wall might, for the purpose of im- proving his own premises, underpin the foundation of the wall and sink it deeper if he could do so without injury to the building on the adjoining lot ; also, that he might increase, within the limits of his own lot, the thickness, length or height of the wall, if he could do so without injury to the building on the adjoining lot. Whether he could raise the whole party wall higher, or whether any additional elevation must be wholly within the limits of his own lot, the court expressly declined to decide. We think that the right of either of the adjacent owners to in- crease the height of a party wall, when it can be done without injury to the adjoining building, and the wall is clearly of sufficient strength to safely bear the addition, is necessarily included in the easement. No adjudication adverse to that right has been referred to by counsel or found by us. 'The party making the addition does it at his peril ; and if injury results he is liable for all damages. He. must insure the Ch.2) /-^fU^^ EASEMENTS . 235 safet y of the operation. But when safe it should be allowed.** The wall is devoted to the purpose of being used for the common benefit of both tenements. In Hendricks v. Stark, 37 N. Y. 106, 93 Am. Dec. 549, it is held that a party wall is in no sense a legal incumbrance upon either property; that the mutual easements of adjoining proprietors in such walls are a_mutual benefit to each, and not a burden, but a • valuable app urtenant which passes with the title to the property. This is undoubtedly correct, provided each party is allowed to derive from the wall all the benefit which it is capable of affording without detri- ment to the other. But if, though of sufficient strength, it cannot be used by either party in increasing the height of his building, it may prove a serious injury to the property of one desiring to make that improvement ; an improvement which is very usual and often very necessary in crowded cities. The fairer view, and the one generally adopted in legislative provisions on the subject in this and other coun- tries, is to treat a party wall as a structure for the common benefit and convenience of both of the tenements which it separates, and to permit either party to make any use of it which he may require, either by deepening the foundation or increasing the height, so far as it can be done without injury to thejother. The party making the change, when not required for purposes of repair, is absolutely responsible for any damage which it occasions (Eno v. Del Vecchio, 13 N. Y. Super. Ct. 17) ; but in so far as he can use the wall in the improvement of his own property without injury to the wall or the adjoining property, there is no good reason why he should not be permitted to do so. The judge has found that the wall was sufficiently strong to be of the increased height without any injury thereto. He has further found that the carrying up of the wall, under claim of fight, was with the *i One of two adjoining party wall owners employed a contractor to carry • the party wall up another story. During the process of construction that part of the wall which was being so carried u'p fell on the roof of the building of the other party wall owner, who thereupon brought action against the owner so causing the wall to be carried up. There was no evidence that the falling of the wall was due to any negligence in construction, or that the wall ^ was not proper for the purpose. The plaintiff relied upon Brooks v. Curti s. ajo-'o-^fJ^ The court said (Gray, J.): '"The argument is that this language formulated The rule of liability for this case. The respondent, in his brief, says : 'Under the principle there enunciated, the appellants had a legal right to increase the height of the wall. But this was a conditional, and not an absolute, right. The condition is that he insures the safety of the operation.' , We think the opinion in Brooks v. Curtis [50 N. Y. 639, 10 Am. Rep. 545 (1872)] has been quite misap- prehended in deducing from it any such rule of absolute liability, and that the language quoted, which is relied upon as furnishing the rule, should receive no such reading. In connection with the facts, it was appropriate. JThe _^safety^ there__alludcd' to, which the building parly insures, has xeference To the^strcngtli of the wall to sui^port the addition, or to the manner of its 'construction, as furnishing thereafter a possible source of danger or of nuisance to the adjoining owner. It did not mean safety against uncon- trollable accidents or the results of some third party's negligence. This is clear from, the reading of the balance of the opinion, as well as from a fair consideration of the question " Negus v. Becker, 143 N. Y. 303, 308 38 N. E 290. 25 L. E. A. 667, 42 Am. St. Rep. 724 (1894). 236 " RIGHTS IN THE LAND OF ANOTHER (Part 2 knowledge of and without objection from the plaintiff; and that the anchors were inserted with his verbal assent. We think the judge was right in his conclusion of law that the plaintiff was not entitled to relief, so far as the carrying up of the wall and insertion of the an- chors were concerned. The court at General Term however modified the judgment in respect to the roof, so as to restrain the defendants from maintaining it of such construction as to cause water, snow and ice to fall upon the roof of plaintiff's building. This modification is not appealed from. In making it, the General Term necessarily held that the Special Term should not have dismissed the complaint, but should have granted that part of the relief prayed for which is embraced in the modifica- tion, and should have denied the residue; and it is claimed that the judgment of the General Term is erroneous in affirming the dismissal of the complaint with the modification referred to. The appellant is technically correct in this claim. The more proper form would have been simply to modify the judgment, and render such judgment as the Special Term should have rendered. But the objection is one of form merely, except so far as the question of the costs awarded at Special Term is concerned. This being an equitable action, costs were in the discretion of the court below ; and it had power, either at Spe- cial or General' Term, to decree costs in favor of the defendants, al- though some part of the relief prayed for was granted. We will not therefore disturb the judgment on that ground. The judgment should be affirmed, with costs. All concur. Judgment affirmed.*^ 42ACC.: Tate v. Fratt, 112 Cal. 613, 44 Pac. 1061 (1896); Fleming T. Cohen, 186 Mass. 323, 71 N. E. 563, 104 Am. St. Rep. 572 (1004) ; Dauenbauer V Devine, 51 Tex. 480, 32 Am. Rep. 627 (1879). Compare Watson v. Gray, 14 Ch. 192 (1880) ; Field v. Leiter, 118 111. 17, 6 N. E. 877 (1886) ; Fidelity Lodge, No. 59, I. O. O. F., of New Castle, v. Bond, 147 Ind. 437, 45 N. E. 338 46 N E. 825 (1896) ; Johnson v. Minnesota Tribune Co., 91 Minn. 476, 98 N. W. 321 (1904) ; Calmelet v. Sichl, 48 Neb. 505, 67 N. W. 467, 58 Am. St. Rep. 700 (1896). A. and B. were owners of adjoining lots. A wall stood wholly on A.'s land and about 9 inches from the boundary. B. had for over 20 years used, this wall to support his house. A. erected a new walFoEThls' own land, but nearer the boundary, cut B.'s joists slightly, and inserted them in the new wall. The new wall was higher than the old, and B. later raised his house, using the higher part of the wall. Held, B. has no right to use the added height He has a right of action if he can show that the new wall is nearer the boundary than the old wall. Barry v. Edlavitch, 84 Md, 95, 3§ Atl. 170, 33 L. R. A. 294 (1896). A party wall means a solid wall; consequently, If either owner attempts to open windows, the other may get damages, Milne's Appeal, 81 Pa. 54 T1876) ; or enjoin him from so doing, Harber v. Evans, 101 Mo. 661, 14 S. W. 750, 10 L. R. A. 41, 20 Am. St. Rep. 646 (1890) ; or compel him to close the openings. Springer v. Darlington, 207 111. 238. 69 N. E. 946 (1904). Con- tra: That plaintiff can get relief in equity, only if he wishes to use the wall. Reynolds v. Union Savings Bank, 155 Iowa, 519, 136 N. W. 529, 49 h. R. A. (N. S.) 194 (1912); Witte v. Schasse (Tex. Civ. App.) 54 S. W. 275 (1899). Whether either of the adjoining owners can use the wall for other pur- poses, as advertising, depends upon the ownership of the wall; if the one Ch. 2) EASEMENTS 237 PUTZEL V. DROVERS' & MECHANICS' NAT. BANK. (Court of Appeals of Maryland, 1894. 78 Md. 349, 28 AtL 276, 22 L. R. A. 632, 44 Am. St. Rep. 298.) Bryan, J.*^ Selig G. Putzell filed a bill in equity against the Drov- ers' & Mechanics' National Bank of Baltimore. It was alleged that the defendant, without right or justification, was about to tear down the rear wall of the complainant's dwelling house, and thereby render it untenantable, and do him irreparable damage. The bill prayed an injunction to restrain the defendant from proceeding as alleged, and it was accordingly granted before answer. There was also a prayer for general relief. After answer the defendant moved a dissolution of the injunction. Testimony was taken on both sides, and when the cause came to final hearing the injunction was dissolved, and the bill dismissed. Complainant appealed. We think that a statement of the material facts of the case as they appear to us will sufficiently show the grounds of our opinion, without the necessity of a discussion of the testimony of the different witnesses. Putzell, the complainant, is the owner of a leasehold interest for 99 years, renewable forever, in a lot of ground in the city of Baltimore, on the west side of Eutaw street, between Fayette and Lexington streets. He acquired this property in the year 1866. For many years before his purchase, and ever since then, there has been on this lot a substantial brick dwelling house, which extended back to its western- most boundary. The Drovers' & Mechanics' Bank, in the year 1888, became the owner of a leasehold interest in a lot of ground fronting on Fayette street, and running back northerly to Marion street, and binding, for a portion of its easterly line, on the westernmost bound- ary of Putzell's lot. It is not distinctly stated in the record, but this leasehold interest is evidently for 99 years, renewable forever. The bank's lot and Putzell's lot are separated by a division brick wall, which, by the measurements proved in the case, is shown to be built partly on the ground of one of these parties, and partly on the ground of. the other. This wall has been standing for a very long time, cer- tainly for more than 30 years before the transactions which are the subject of complaint in this case. As far as we can ascertain from the testimony, Putzell's house, as originally built, had this division wall as its rear wall, but the rear wall was not built higher than the top of the division wall. In 1870, Put- zell put an additional story on the back building, placing its rear wall so using owns that part of the wall, he has all the privileges of an owner, save those that interfere with the other's easement. Lappan v. Glunz, 140 Mich. 609, 104 N. W. 26 (1905) ; Shiverick v. R. J. Gunning Co., 58 Neb. 29, 78 N. W, 460 (1899). If he has only an easement, he can do nothing outside the scope of his easement. Berry v. Godfrey, 198 Mass. 228, 84 N. E. 304, 16 Ti. R. A. (N. S.) 434 (1908). •s Part of the opinion is omitted. 238 RIGHTS IN THE LAND OF ANOTHER (Part 2 on the top of the division wall. This division wall was used by the owners and occupants of the lot now owned by the bank for the pur- pose of designating the boundary line between it and the Putzell lot. There was evidence of the use of it, also, for a series of years, as a support for the frame of a grape arbor. The bank, in the year 1892, commenced the erection of a large six-story building for the purposes of its business, and in the prosecution of the work proposed to take down the entire wall separating the two lots, and erect on the same line another wall of sufficient strength and thickness to support the new building, not encroaching on Putzell's lot, and offering to give him the benefit of the new wall as a partition wall for the benefit of any building to be erected on his lot. The question in the case is whether this action on the part of the bank would be a legitimate exercise of its rights of property. No one seems to know when the wall in question was built. In all probability, the time was beyond the limit of living memory. There is some reason to think so from the fact that the deeds which created the leasehold interests in these lots were executed towards the close of the last century, and early in the beginning of the present. It seems to have been erected for the purpose of making the boundary be- tween the lots, and to have been always used for that purpose. The soil of the respective owners was covered by it ; and this was the use of his soil which each owner elected to make for his own benefit. Each one owned the portion of the wall which was on his own ground. There seems to have been no cessation of the use of it, in the way in which it was intended to be used, — that is, to mark the boundary line. There was no ouster of the possession of the soil. Each coterminous proprietor owns the portion of the wall which rested on his own ground, as he had continued to own it from the beginning, and he has actual and beneficial possession of the soil by reason of the occupation and use of it by means of his portion of the wall. Surely, there could not be a more distinct and unequivocal exercise of the right of own- ership than to build on one's own land a house or a wall, and to use it continuously for the purposes to which it was suitable. * * * But, although there was no amotion of the possession of the owners of the bank lot, it does not follow that Putzell had not acquired some rights to the use of the division wall. He had used this wall for more than 20 years, as a support to his house ; the enjoyment of it for this purpose had been notorious, peaceable, uninterrupted, and "as of right." Under these circumstances, the law considers that he had a prescrip- tive title to the use of it in the manner in which he had enjoyed The bank retained all its rights in the division wall which are not inconsistent with the enjoyment of the easement. It was bound to permit it to be used as a support for Putzell's house in the accus- tomed manner ; but this is the limit of its obligation. It would be unreasonable to deny to it the right to improve its own property ac- Ch, 2) EASEMENTS 239 cording to its interests and inclinations, provided it did not infringe the__rights of other persons. In fact, the wall which it proposed to take down was insufficient to support the building which it desired to erect. If this should be taken down, and another larger and stronger one built in its stead, it would thereby exercise its own legitimate rights of property ; and, if it gave to the adjoining house the same right of support in the new wall which it had in the old one, it would not in- jure its neighbor. This seems to us the just settlement of this con- troversy. Putzell may be put to some inconvenience while the build- nig_is_going on, but this is one of the unavoidable consequences of liv- mg in a closely-built city. We have said that each portion of this division wall belonged in severalty to the proprietor on whose ground it stood; but, even if these proprietors had been tenants in common of this wall, the result would not have been practically different. In Bank v. Stokes, 9 Ch. Div. 12, Sir George Jessel cites, with marked approval, Cubitt v. Por- ter, 8 Barn. & C. 257. He quoted as follows from the opinion of Mr. Justice Bay ley: "There is no authority to show that one tenant in common can maintain an action against the other for a temporary re- moval of the subject-matter of the tenancy in common, the party re- moving it having at the same time an intention of making a prompt j;estitution. It was not a destruction. The object of the party was . not that there should be no wall there, but that there should be a wall there again as expeditiously as a wall could be made." And in a sub- sequent part of his opinion he says: "As I have read the law from the statements of eminent judges, he [that is a tenant in common] has a right to pull down when the wall is neither defective nor out of repair, if he only wishes to improve it, or put up a better or handsomer one. * * * The allegations of the bill of complaint were sufficient to give a court of equity jurisdiction, and they justified the preliminary injunc- tion. The complainant has not proved the precise title to the wall which he alleged, although he lias proved a title to a portion of it, and an .inter est in the other portion by way of easement. For the reasons which we have stated, we approve of the dissolution of the injunction, and to that extent the decree below will be affirmed. But the right to take down the wall is.not absolute and unconditional ; iMs_qualified_ in the manner which we have explained in a previous part of this opin- ion. The bank is bound to finish the division wall at its own expense, and to allow to Putzell's house the same right of support which it had in the old wall, and to indemnify him for the necessary expenses which he has incurred, and may incur, in protecting his property from the consequences of the removal of the old wall. For failure to do these things it would be liable to an action at law. But as a court of equity had jurisdiction of this case, although it could not give the precise re- lief prayed, it was proper, according to well-settled principles, to do complete justice between the parties, and thus avoid multiplication of 24(> RIGHTS IN THE LAND OF ANOTHER (Part 2 ouits lu the future. It ought to have retained the bill, for the purpose of settling and adjudicating any claim which may arise in favor of Putzell against the bank, in accordance with the principles which we have stated. We disapprove of that portion of the decree which dis- misses the bill. Decree affirmed in part, and reversed in part, and cause remanded for further proceedings ; the costs in this court to be equally divided be- tween the parties.** SHIRLEY et al. v. CRABB. (Supreme Court of Indiana, 1894. 138 Ind. 200, 37 N. E. 130, 46 Am. St. Rep. 376.) Hackney, J.*"^ This action was by the appellants, and its object was to quiet title to an easement. The only question in the case arises upon an exception to one conclusion of law stated upon the facts spe- cially found. From the special finding it appears that, in the year 1873, Homan and Piersol owned, as joint tenants, a part of lot 17, block 19, in the town of Danville, fronting east 42i/^ feet on a public street, and extending west to an alley, with an additional width upon said alley. While so owning the same, they erected thereon a double building two stories high, the division wall between the two parts of said building being so constructed that the center thereof was 21% feet south of the north line of said part lot, and 21 feet north of the south line thereof. On the south side of said division wall was constructed a stairway from said street to a landing upon the second floor of said building, and another stairway from the rear of that part of the building on the south of said division line, and on the south of said division wall, was so constructed as to reach said landing. From said landing was made an entrance to the second story of that part of said building on the north of said line, and through said en- trance, and by said stairways, was supplied the only means of ingress and egress to and from the second story of the part of said building north of said division line. By numerous conveyances the appellee became the owner of that part of said property lying south of said division line, subject to a reservation in each deed of conveyance of such right of way over the front and rear stairways so constructed, and in a hall running north and south through the second story of 44 Contra: Partridge v. Lyon, 67 Hun, 29, 21 N. Y. Supp. 848 (1893). See Wallis V. First Nat. Bank of Racine, 155 Wis. 306, 143 N. W. Q70 (1913). A. and B. were owners of adjoining buildings with a party wall. A.'s build- ing was destroyed by fire ; the wall was still adequate to support B.'s building, but, owing partly to the fire, and partly to original faulty construction, was not adequate to support the building A. wished to erect. Held, A. may tear down and replace the wall by a new party wall, being liable to B. only for negligence. Lexington Lodge v. Beal, 94 Miss. 521, 49 South. 833 (1909). *5 Part of the opinion is omitted. Ch. 2) ' EASEMENTS 241 said building, for the proper use and occupancy of the second story of that part of said building on the north of said division line. By deeds of conveyance the appellants became the owners of the real estate north of said division line, together with said right of way; and before and after such conveyances said stairways were continuous- ly used openly and freely for the benefit of the appellants' part of said building until the 28lh day of August, 1891, when said building, and the parts thereof owned by both the parties herein, together with said stairways, were wliolly destroyed by fire, without the fault of either of the parties. Since the destruction of said building the appellee has erected upon his part of said real estate a two-story brick building, occupying the entire width of his said real estate, excepting one inch along the north line thereof, or along the said dividing line between his property and that of the appellants. On the north side of the building so constructed the appellee has erected a stairway from said street to the second story of said building. The appellants contemplate the erection, at an early date, of a two-story building of the character of that so owned by them and so destroyed, and they desire to avail themselves of the use and privileges of stairways of the character, and for the purposes, of those so existing prior to the destruction of the former building. The right so desired is denied by the appellee. Upon the facts found, the court stated, as conclusions of law : First, that the appellants, by their purchase and the conveyance to them, acquire3~in easement in the nature of a right of way over said stair- wa^sjand hall as they existed before the destruction of said building; and, second, that by the destruction of said building said easement was wholly lo st and extinguished. It is to this second conclusion that the appel lants except, and insist that they held an easement not to be lost by the destruction of the building. This position necessarily in- volves the claim that the appellants' rights were more than a license to use the stairways and halls, and that their interest in the property of the appellee was an easement attaching to the real estate, and con- tinuing until extinguished by some act of the owner of that dominant estate. * * * We feel entirely certain that the reservation, in the form in which it is brought to us, was not intended to create an interest in the soil; and if it possessed the quality of an easement, in that it became an interest in real estate, it was only to the extent of affording the use of the stairways" and hall in the building as it existed, and independ- ently of any right to or interest in the soil. If this was the extent of the interest, it follows that the destruction of the building destroyed the right as effectually as if the interest had been in the soil, and the floods had carried awaythe soil; nothing would remain upon which the right couM operate. A new structure would not recreate the right, for such right had been destroyed, and not simply suspended, as would probably have been the case if the right had attached to the land. Big. Rights — 16 242 RIGHTS IN THE LAND OF ANOTHER (Part 2 The case of Hahn v. Baker Lodge, 21 Or. 30, 27 Pac. 166, 13 L. R. A. 158, 28 Am. St. Rep. 723, presents a stronger claim to a reviving right than that of the appellants. There the plaintiff owned a lot upon which was erected a two-story building, the middle room or hall in the upper story of which was owned by the defendant, and used as a lodge. The building was destroyed by fire. The conveyance to the defendant contained no provision, in case of such destruction, giving the right to rebuild. No interest in the land having been conveyed, it was held that all right was extinguished. We say the claim was strong- er because there the interest was an absolute ownership ; here, at most, it is but an easement ; and in neither case does it appear that the right extends to the subjacent soil. The distinction here marked was established by this court in the case of Thorn v. Wilson, 110 Ind. 325, 11 N. E. 230, 59 Am. Rep. 209. It was there held that a contract under which one became the owner of an upper story of a building gave no interest in the land. It was said: "The instrument before us, how- ever, grants a mere use, and not a proprietary interest in the corpus of the property; and upon such a grant a proprietary interest in the real estate itself cannot be recovered." It was also suggested that, in case of the destruction of the building, all rights under the contract would terminate. We conclude, .therefore, that the right of the appellants did not extend beyond the use of the stairways and hall, and did not consist of an interest in the soil ; that no obligation rested upon the appellee to rebuild or maintain for appellants' use another stairway in the event of the destruction of those m which the interest was held; and that, by the destruction of the building without the fault of the ap- pellee, the interest of the appellants was extinguished. The judgment of the lower court is affirmed.*^ -,- ^ J / *8 The destruction of a party wall by fire terminates the easement. Bow- hay V. Richards, 81 Neb. 764, 116 N. W. 677, 19 L. R. A. (N. S.) SS3 (1908) ; Sherred v. Cisco, 6 N. Y. Super. Ct. 480 (1851); for another part of this case, see post, p. 246. Compare Brondage v. Warner, 2 Hill (N. Y.) 145 (1841). Consequently, if either owner rebuilds the wall pai'tly upon the land of the other owner, the latter may maintain ejectment. Heartt v. Kruger, 121 N. Y. 386, 24 N. E. 841. 9 L. R. A. 135, 18 Am. St. Rep. 829 (1890). See Wigford V. Gill, Cro. Eliz. 269 (1591). An easement of user or support in a building or party wall ends when the structure becomes so decrepit that it is reasonably torn down because of its condition. McKenna v. Eaton, 182 Mass. 346, 65 N. E. 382, 94 Am. St. Rep. 661 (1902) ; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632 (1857) ; Fewell V. Kinsella (Tex. Civ. App.) 144 S. W. 1174 (1912). Compare Ballard V. Butler, 30 Me. 94 (1849) ; Riley v. Pearson, 120 Minn. 210, 139 N. W. 361, L. R. A. 1916D, 7 (1913). A. was the owner of the upper story of a building and B. of the lower ; A. having an easement of support in B.'s part. B.'s part became ruinous through the action of the elements, to the damage of A. The court, In Cheeseborough v. Green, 10 Conn. 319, 26 Am. Dec. 396 (1834), held that A. had no cause of action against B. for not repairing, but suggested that A. could have relief in equity. In Jackson v. Bruns, 129 Iowa, 616, 106 N. W. 1, 3 L. R. A. (N. S.) 510 (1906), it was held that A. could not compel B. to repair. See also Pierce v. Dyer, 109 Mass. 374, 12 Am. Rep. 716 (1872). A. owned two adioining lots, on each of which was a two-story building, Ch. 2) EASEMENTS 243 DOUGLAS V. COONLEY. (Court of Appeals of New York, 1S9S. 156 N. Y. 521, 51 N. E. 283, 66 Am. St. Rep. 5S0.) Appeal from an order and a judgment of the late General Term of the Supreme Court in the Third Judicial Department, entered Febru- ary 27 and March 8, 1895, respectively, reversing a final judgment entered upon the decision and order of the court at Special Term, sustaining plaintiffs' demurrer to the defendants' answer. This action was brought to recover the use and occupation of a certain stair way in common with the defendants, and to restrain them from interfering with such use and occupation. The facts, so far as material, are stated in the opinion. Parker, C. J.*^ By his will, Henry B. Smith conferred upon ex- ecutors named therein the power to sell and convey his real estate. It consisted in part of a three-story building that had three_ stores on the ground floor. The executors conveyed the middle store to Mar- garet A. Cantwell, and the store next adjoining it on the west to this defendant Coonley and one John Hughes and Hughes' title has since , been acquired by the defendant Sophronia C. Smith. Between the said middle and west stores was a wall that the conveyance made a_party .i^all, and from the street to the upper rooms of the building, immediately adjoining this party wall on the west side, there was a ^stairway that was used by the occupants of both buildings, it be- ing the only mode of access between the upper and lower floors of^ either b uilding. After Coonley and Hughes had become the own- ers of the west store, they undertook to confirm the alleged right of_ Margaret A. Cantw ell to use this stairway in common with them- selves as a means of ingress and egress to and from the two floors above her store, and to that end executed a deed of conveyance, by with stores below and rooms above. He granted one to B. in fee in tlie fol- lowing language: "A certain lot of land with the store thereon standing," and, after describing the land, concluding as follows: "With a privilege in the passage of the adjoining store, for the purpose of passing and repassing to the chambers of the store hereby conveyed." B.'s store came to X., and A.'s to Y. X. tore down the old store and erected another building of the same size, connecting with the passage in Y."s store, just as the old one had. It was admitted that X. did not intend to abandon his easement. Held, he has no right of passage to and from the new building. Cotting v. Boston. 201 Mass. 97, S7 N. E. 205 (190S). Ace: Day v. Walden, 40 Mich. 575, 10 N. W. 26 (1881) ; Taylor v. Hampton, 4 McCord (S. C.) 96, 17 Am. Dec. 710 (1827). Contra, as to ancient lights: Currier's Co. v. Corbett, 2 Dr. & Sm. 355 (1865) ; Ecclesiastical Com'rs v. I-uno, L. R. 14 Ch. D. 218 (ISSO). Compare, as to the construction of the deed, Bangs v. Farker, 71 Me. 458 (1880). In general, as to the loss of easement by destruction of the dominant structure, see National, etc., Co. v. Donald, 4 H. & N. 8 (1859) ; Weis v. Meyer, 55 Ark. 18, 17 S. W. 3.39 (1S91) ; Riefler & Sons v. Wavne Storage Water Power Co.. 232 Pa. 282, 81 Atl. 300 (1911); Southern Ry. Co. v. Memphis, 97 Fed. 819. 38 C. C. A. 498 (1S99). *T Part of the opinion is omitted. 244 EIGHTS IN THE LAND OF ANOTHER (Part 2 which, as the complaint recites, was "granted, sold, and conveyed to the said Margaret A. Ca,ntwell, her heirs and assigns, the right of way to pass and repass up and down the passageway or stairway be- tween the store owned by Margaret A. Cantwell and of the parties of the first part hereto at all times, in common with the parties of the first part hereto, for the purpose of going and returning to and from the rooms in the upper part of said stores ; the party of the second part to pay one-half of the expense of keeping the stairway in repair." Subsequently, these plaintiffs succeeded to the title of Margaret A. Cantwell in and to the middle store; and thereafter, and on the 11th day of January, 1893, the entire building was de- stroyed by fire. The parties at once reconstructed the T)uT!3rngs on the same foundation as before, and united in the construction between the two stores of a party wall similar to the one formerly existing, except as to the doorway leading from the head of the stairway to the second floor of the j^Jaintiffs' building. The plaintiffs put in a frame for such doorway when the wall was being constructed, but afterwards defendants tore the frame out, and built that portion of the wall up solid, thus preventing the plaintiffs from obtaining access to their premises by means of the stairway. The defendants, though frequently requested, refused to permit the plaintiffs to enjoy the stairway in common with them. It is conceded that, prior to the destruction of the building by fire, the plaintiffs had a legal right to use, as they did, this stairway and the doorway in the party wall as well, in common with the defend- ants. But it is contended that the effect of the destruction of the building by fire was to destroy this easement. The diligence of coun- sel has not succeeded in bringing to light a similar case, in this coun- try, nor have we been more fortunate. The appellate division regard- ed the case as controlled by Heartt v. Kruger, 121 N. Y. 386, 24 N. E. 841, 9 L. R. A. 135, 18 Am. St. Rep. 829. That case is certainly authority for the proposition that these plaintiffs had no right to in- sist upon a reconstruction of the party wall or of the stairway. The buildings having been destroyed without fault on the part of the de- fendants, it was their right thereafter to make such use of the land as should seem to them most conducive to their interests. They could not by their own act affect the plaintiffs' easement, but, an outside force beyond the defendants' control having destroyed the buildings and the major part of the party wall, it was within their power thereafter to so use the land that the plaintiffs' easements should not be revived. Had they done so, a situation would have been pre- sented within the doctrine of Heartt v. Kruger, supra. But this they did not do. Instead, they united with the defendants in constructing a party wall, and rebuilt the stairway in precisely the same place as before; and thus within a comparatively short period of time the buildings, so far at least as the stairway and party wall are concern- ed, were exactly the same as if the fire had never taken pla.ce. And Ch. 2) EASEMENTS 245 the question is, ■ ■ d^ way in lieu of that destroyed by the cellars and buildings. Their con- duct for seven years succeeding this interruption sufficiently indicates that there was no intention on their part to raise any question in re- gard to it until the excavation in 1888. It appears to have been mjJ.- tually und erstood that that portion of the way covered by the houses was_finalTy~a5an~d6hed. The plaintiffs silently acquiesced in the change, and intentionally surrendered the old way in consideration of the dedi- cation of and an agreement for the new one opened for their benefit. "It is not the duration of the cesser to use the easement, but the nature of the act done by the owner of the easement, or of the adverse act acquiesced in by him, and the intention which one or the other indi- cates, that is material." Pope v. Devereux, 5 Gray (Mass.) 412.^^ [The plaintiffs recovered nominal damages for the obstructions caused in 1888.] 81 Ace: Pope v. Devereux, 5 Gray (Mass.) 409 (18.56). "If. then, the predecessors of the defendants, iu consideration of the clos- ing of said portion of the north and south alley, granted to plaintiffs and to their predecessors a right of way over the east and west alley in lieu th ereof, which was accepted by the plaintiffs and their predecessors, the de- feFdanfs will not now be allowed to close the new or siibstituted alley with- out first r estoring the old one ; and the fact that such grant was oral mat- ters not, if"bn tlie fafETi of "if rights have been acquired or relinquished and acted upon. * * * And where the owner of a right of way. whether ac- quired by prescription or otherwise, consents to Ihe closing of the said right of way in consideration of substituting and granting to him a new one, the right to the use of such new way at once attaches, and he is not required to use the new way for a period of time to give him title by prescTiption." Straup, J., in Thompson v. Madsen. 20 Utah, ^.20, 332, SlPac. 160 (lUl).")). See, also, Home v. Widlake, Yelv. 141 (1G08) ; Rcignolds v. Edwards. Willes 282 (1741); I^vell v. Smith, 3 C. B. N. S. 120 (1857); Wright v. Willis, 6H S. W. 991, 23 Ky. Law Rep. 5G5 (1901) ; Davidson v. Kretz, 127 Minn. 313, 149 N. W. 652 (1914) ; Hamilton v. White, 5 N. Y. 9 (1851). 300 EIGHTS IN THE LAND OF ANOTHER (Part 2 RITGER V. PARKER. (Supreme Judicial Court of Massachusetts, 1851. 8 Gush. 145, 54' Am. Dec. 744.) f This was an action of trespass quare clausum fregit. The defendant, in justification of the alleged trespass, relied on a right of way over the plaintiff's close, as appurtenant to an adjoining lot oi land, belong- ing to the defendant. At the trial in the court of common pleas, be- fore Mellen, J., the following facts were proved or admitted: Abel Corey on the 11th of June, 1836, conveyed to James Gardner the lot now held by the defendant; James Gardner, on the 24th of September, 1836, mortgaged it to Margaret Gardner; who took pos- session to foreclose on the 5th of April, 1841 ; and on the 26th of September, 1842, conveyed the same to Gilbert Parker ; the mortgage was foreclosed on the 23d of April, 1844; and on the 15th of Sep- tember, 1847, Gilbert Parker conveyed to the defendant. The plaintiff's title to the locus in quo was as follows : Isaac Perry conveyed to James Gardner on the 10th of December, 1839 ; James Gardner on the 11th of December, 1839, mortgaged to Margaret Gard- ner, who took possession on the 5th of April, 1841, for the purpose of foreclosing this mortgage ; and the same was actually foreclosed on the 23d of April, 1844 ; and Margaret Gardner, on the 10th of May, 1844, conveyed to the plaintiff. On these facts, the presiding judge ruled^ that if any right of way existed, as appurtenant to the defendant's close, over the close of the plaintiff, prior to the 10th of December, 1839, such right of way was ^tingiiished before the defendant's close was conveyed to him. Whereupon the jury returned a verdict for the plaintiff, and the de- J5.ndant alleged_exceptions. * * * SiiAW, C. J.^^ To an action of trespass quare clausum, the defend- ant sets up a right of way, to pass on and over the close of the plain- tiff ; and insists, that as he entered in the exercise of that right, such entry was no trespass. It appears from the report that the plaintiff and the defendant own estates adjoining each other, and the defendant, as such owner, claims a right of way, as annexed to his estate. The plaintiff insists, that even though such right did formerly exist by grant or prescription, for the owner of the estate now owned by the defendant, in and over the estate now owned by the plaintiff, such_fiasement has. been extinguished, by unity of title and possession of the two estates, in one and the same person at the same time. To determine .this, it is necessary to examine the facts furnished by the report. * * * But upon principle it seems to us, that in order to extinguish an easement, by the unity of title and possession, both of the dominant and servient tenements, in the same person, he should have a perma- 82 Part of tlie opinion is omitted. Ch. 2) EASEMENTS 301 nent and enduring estate, an estate in fee in both. This results from the consideration of j__lew obvious principles. An easement oi^seryi- tude is a right, which one proprietor has to some profit, benefit, or ben- eficial use, out of, in, pr over the estate of another proprietor. An owner of land, therefore, cannot have an easement in his own estate in fee, for the plain and obvious reason, that in. having the jus dis- ponendi — the full and unlimited right and power to make any and every possible use of the land — all subordinate and inferior derivative rights are necessarily merged, and lost in the higher right. He may use every part of the surface for a way, if he chooses, and therefore has no occasion to claim any particular way ; and so of every other use, to which land may be subjected. If, therefore, after such merger, the owner grants away a portion of his estate, it is the creation of a new estate, and not the revival of an old one. And although he may make a grant of that particular land, which formerly constituted one of the separate estates, which coalesced in him, yet it is not with its former incidents, unless it is done by force of the grant itself, by such words of description. as could bring them into being, by way of new grant. * * * This, of course, does not extend to watercourses and such natural incidents as belong to the land itself, and are inseparable from it. From this view of the subject it seems manifest, tliat the merger of the easement, arising from unity of title and possession, which will extinguish and put an end to such easement, arises from that unlimited power of disposal^ which will enable the owner to grant any part of the soil with the former incidents, or to grant it without the former incidents or create and annex to it or subject it to new incidents in favor of another estate, at his own will and pleasure, ^uch a power ^f disposal can only exist when the same proprietor has a permanent estate in both tenements, not liable to be defeated by the performance of a condition or happening of any event beyond his control, and^ where the estates cannot again be disjoined by operation of law. And it seems equally clear, that the two estates did not merge, whilst held by Mrs. Gardner, as mortgagee only, although mortgagee in fee. So long as she held them, they were both defeasible, and defeasi- ble upon different conditions, (the payment of distinct debts,) and for aught that appears, conditions to be performed by different persons, because the respective equities of redemption might be held by differ- ent persons. So long as she held them, one might have been redeemed and the other foreclosed without any act of hers ; and a foreclosure or redemption or either would have entirely effected a separation of the two, each retaining its own incidents. But she conveyed one be- f ore foreclosure ; and when foreclosed, the estates were in different persons; the defendant's was then held by Gilbert Parker, and the plaintiff's by Margaret Gardner. * * * Ax 302 RIGHTS IN THE LAND OF ANOTHER (Part 2 The court are therefore of opinion, that if the defendant and those whose estates he holds had a right of way over the plaintiff's tenement prior to the conveyances to James Gardner, such right was not extin- guished by any unity of title and possession set forth in the re£ort. New trial ordered.®' 8 3 A. owned in fee a tract of land to which was appurtenant a right of way over an adjoining tract owned by X. in fee. A. mortgaged to B. the dominant land, the riglit of way being specifically included. X. then bought the dominant land subject to the mortgage; he opened a new way from the dominant tract over another piece of land owned by him, closed the original way and built a terrace over it upon the original servient tract. This lat- ter tract he then conveyed to Y. in fee, the deed making no mention of any easement. Later C. bought the dominant piece under a foreclosure sale. Held, C. has the original right of way over the tract now owned by Y. Duval V. Becker, 81 Md. 537, 32 Atl. 308 (1895). The easement is not extinguished where the dominant and servient es- tates are held by one person — as a fee simple and as a base fee respe ctively ; The King v. The Inhabitants ^6f Hermitage, Carth. 239 (1692); in tee ami under a 500-year lease, Thomas v. Thomas, 2 C, M. & R. 34 (1835) ; in sev- eralty and in common, Dority v. Dunning, 78 Me. 381, 6 Atl. 6 (1886). See, also, James v. Plant, 4 Ad. & j:. 749 (1836) ; Kilgour v. Gaddes, [1904] 1 K. B. 457 ; Richardson v. Graham, [1908] 1 K. B. 39 ; In re Bull, 15 R. I. 534, 10 Atl. 484 (1887). The easement was held to be extinguished by merger in Capron v. Greenwav. 74 Md. 289, 22 Atl. 269 (1891) ; Morgan v. Meuth, GO :\Iich. 238, 27 N. W. 509 (1886). A way of necessity ceases when the necessity ceases. Holmes v. Goring, 2 Bing. 76 (1824) ; Pierce v. Selleck, 18 Conn. 321 (1847) ; Oliver v. Hook, 47 Md. 301 (1877). Where the new access is permissive only, the way of necessity is not ex- tinguished. Lide V. Hadley, 36 Ala. 627, 76 Am. Dec. 338 (1860) ; Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966, 55 Am. St. Rep. 653 (1896). For otMer cases in which the easement ceases, see Shirley v. Crabb, ante, p. 240. Ch. 3) LICENSES 303 CHAPTER III LICENSES WOOD V. LAKE. (Court of King's Bench, 1751. Sayer, 3.)i In a case reserved, in an action upon the case, it was stated; that the defendant had agreed, by a jarjjl_ a greemen t, that the plaintiff should have the liberty of stacking coals upon part of a close belonging to the defendant, for the terrn of seven years, and that, during this term, he should have the sole us€ of that part of the close, upon which he was to have the liberty of stacking coals ; and that, after the plain- tiff had, pursuant to this agreement, enjoyed the liberty of stacking coals three yeairs^ he defendant locked up the gate of the close. ^ The question wa s, \yhether_this agreement was good for seven years? Lee, C. J., and Denison, J., were of opinion, that it was. And by them. — In the case of Webb v. Paternoster, Palm. 71, it is laid down, that the gr ant of a license to stack hay upon land does not amount to a leas e of the land ; and, although it be in that case said, that such a license, provided the grant be for a time certain, is irrevo- cable, it by no means follows, that an interest in the land does thereby pass. As the agreement in the present case was only for an^ase ■^menti and not Tor an interest in the land, it did not amount to a lease, and c onsequently it was, notwithstanding the Statute of Frauds and _Perjuries, good for seven years. Wright, J., was absent. Foster, J., concurred in opinion, that the agreement did not amount to a lease; but he inclined to be of opinion, that the words in the Statute of Frauds and Perjuries, any_uncertain interest in land, do extend to this agreement, and consequently that it Avas not good for more than three years. Lee, C. J., and Denison, J., inclined to be of opinion, that the words in that statute, any uncertain interest in land, do relate only to interests, which are uncertain as to the time of their duration. After taking time to consider, it was holden that the agreement was good for seven years. 1 S. c, 13 M. & W. 848, note. t<:. cO 304 RIGHTS IN THE LAXD OF ANOTHER (Part 2 HEWLINS V. SHIPPAM. (Court of King's Bench, 1S26. 5 Barn. & C. 221.) [Case for wrongfully obstructing a drain.] The plaintiff was a lessee of the Swan Inn, at Chichester, under W. and E. Humphrey. In May, 1819, W. and E- Humphrey rebuilt the Swan Inn, at Chichester, and being desirous to construct a drain in the adjoining premises (in the possession of the defendant) applied to Wills, tlie landlord, who said he had no objection if his tenant had not The Humphreys further agreed to repair the defendant's premises, to raise his chimnies, and to pave his yard. The defendant assented to the making the drain upon these terms, and they raised the defendant's chimnies and paved his yard, and thereby incurred an expense of 100/. The drain was constructed, it was paved at the bottom, and covered with solid stone, and the sides were brick. Upon these facts, Graham, B., was of opinion that the right claimed under the license granted by the defendant and his landlord, to have the drain in the soil of another, was an uncertain interest in the land, within the first section of the stat- ute of frauds, and not being granted by any instrument in writing, the plaintiff acquired under it a right at will only, which was determined T)y the defendant's stopping up the drain. He therefore directed a nonsuit, with liberty to the plaintiff to move to enter a verdict. Taddy, Serjt., in last Easter term, obtained a rule nisi for that pur- pose. BaylSy, j.2 * * * i^ appeared in evidence upon the trial that the drain was made in 1819, at the expense of the Humphreys, with the consent of the defendant and Mr. Wills, and that the Humphreys laid out some money in improving the defendant's premises, but noth- ing was said as to how long the drain was to continue, nor was any thing in writing between any of the parties ; and when the incon- veniences such a drain may occasion from smells, and the necessity of cleaning it are considered, it is almost impossible to suppose that Wills and the defendant meant to run all risks, and allow the parties an absolute interest so long as the defendant should continue in pos- ',^jL..d/t' ..^^ session, or so long as it should be requisite, &c. But suppose this had been the intention, can such an interest be created by parol? A ^r-^ right of way or a right of passage for water, (where it does not create an interest in the land,) is an incorporeal right, and stands upon the ' , /■( same footing with other incorporeal rights, such as rights of common, rents, advowsons, &c. It lies not in livery, but in grant, and a free- ^•^ hold interest in it cannot be created or passed, (even if a chattel in- terest may, which I think it cannot,) otherwise than by deed. * * * In Fentiman v. Smith, 4 East, 107, where the plaintiff claimed to have passage for water by a tunnel over defendant's land. Lord Ellen- 2 The statement of facts is abridged and part of the opinion is omitted. Ch. 3) LICENSES 305 borough lays it down distinctly : "The title to have the water flowing in the tunnel over defendant's land could not pass by parol license with- out deed." Upon these authorities we are of opinion, that although a parol license might be an excuse for a trespass till such license were "countermandedT^that a right and title to have passage for the water, for a freehold interest, required a deed to create it, and that, as there has been no deed in this case, the present action, which is founded on a right and title, cannot be supported. The case of Winter v. Brock- well, 8 East, 309,^ which was relied upon on the part of the plaintitt, appears clearly distinguishable from the present. All that the defend- ant there did, he did upon his own land. He claimed no right or ease- ment upon the plaintifif's. The plaintiff claimed a right and easement against him, viz. the privilege of light and air through a parlor window, and a free passage for the smells of an adjoining house through de- fendant's area ; and the only point decided there was, that as the plain- tiff had consented to the obstruction of such his easement, and had allowed the defendant to incur expense in making such obstruction, he could not retract that consent without reimbursing the defendant that expense. But that was not the case of the grant of an easement to be exercised upon the grantor's land, but a permission to the grantee to use his own land in a way in which, but for an easement of the plaintiff's, such grantee would have had a clear right to use it. Webb v. Pater- noster, Palm. 71 ; Wood v. Lake, Sayer, 3 ; and Taylor v. Waters, 7 Taunt. 374, were not cases of freehold interest, and in none of them was the objection taken that the right lay in grant, and therefore could not pass without deed. These, therefore, cannot be considered as au- thorities upon the point ; and on these grounds, therefore, that the right claimed by the declaration is a freehold right, and that if the thing claimed is to be considered as an easement, not an interest in the land, _such a right cannot be created without deed ; we are of opinion that the nonsuit was right, and that the rule ought to be discharged. Rule discharged. UGGINS V. INGE et al. (Court of Common Pleas, 1831. 7 Bing. 682.) TiNDAL, C. J.* It will be unnecessary on the present occasion to consider more than one of the questions which have been argued at the bar, namely, whether the present action, upon the facts stated in the award of the_ar|)itrator, is maintainable against the defendants. The action is, in point of form, an acti ^ of Jort, and charges the defendants with wrong fully continuing a certain weir or fletcher, which the defendants had before erected upon one of the banks of 8 Aute, p. 290. * The statement of facts is omitted. BlG.RlGHTS— 20 f was to be construed "as passing an interest in the trees when they are severed," and that a licenseto enter on the land under such contract coul d not be countermanded after it had been acted on. So in Nettle- ton V. Sikes, 8 Mete. 34, it was said by the court that a beneficial license to be exercised on land, "when acted upon under a valid contract can- not be countermanded." To the same effect are Nelson v. Nelson, 6 Gray, 385, and Douglas v. Shumway, 13 Gray, 498. In these cases it appeared that the license had been acted on by the vendee, who had entered on the land and cut the timber which was the subject of the contract of sale, and had thereby acquired a title to the wood as per- sonal property. In Giles v, Simonds, 15 Gray, 441," 77 Am. Dec. 373. a case was presented where a vendee had entered on land under a con- tract of sale of standing wood, and had cut down a part of those which was agreed to be sold, when he was forbidden by the vendor, the owner of the land, from |)roceeding any further in the execution of the con- tract, and also from removing those which had been severed from the freehold. He nevertheless did go on the land and take away such of the trees as had been previously cut down. It was held that the ven- dor had a right to terminate the contract and revoke the license as to the trees left standing, but that he could not do so as to those which had been already cut, and that an action of trespass would not lie for entermg and taking away the latter. See also Burton v. Scherpf, 1 Allen, 135, 79 Am. Dec. 717. The application of the principles established by these cases is decisive of the rights of the parties to these actions. Taking the most favorable view of these cases in behalf of the defendants, they had_ acquired no title to the wood standing on the land of the plaintiff. They had only an_executory contract for the purchase of the trees growing on the premises, with a license from the plaintift''s grantor to enter and cut and remove the same. This license, not having been acted on, was revoca ble. And it was revoked by the deed of the land to the plain- tiff by the licensor, by which it was conveyed absolutely and free of all incumbr ances to the plainti^ In Cook v. Stearns, 11 Mass. 533; 538, it was held that the transfer of land to another, or even a lease of it, without any reservation would, of itself, be a countermand of a li- cense. Clearly it must be so, because an j^mqualified grant of land car- xi£S_JAath it the title to everything which is part of the realty or an- nexed to the freehold^ and is inconsistent with a right in any other per- ^^^ RIGHTS IN THE LAND OF ANOTHER ' (Part 2 son than the grantee to enter on the land and remove therefrom trees growing thereon or other products of the soil. Coleman v. Foster, 1 Hurlst. & Norm. 37. It follows that the ruling of the court was erroneous at die trial of this cause. The defendants were trespassers, and were liable to the plaintiff for entering her close and cutting and removing wood there- from. Exceptions sustained.^^ / ^^ y: FROGLEY V. EARL OF LOVELx\CE. (Court of Chancery, 1S59. Johns. Ch. 333.) By an indenture of lease, dated the 24th of February, 1844, made between the defendant of the one part, and the plaintiff of the other part, the defendant demised to the plaintiff two farms, in the county of Surrey, for tw enty-one year s, from Michaelmas, 1842, at the rent therein mentioned. iiAcc: That a naere license is personal, and is consequently terminated by a conveyance of the land with respect to which the license is given. Em- erson V. Shores. 95 Me. 237, 49 Atl. 1051, So Am. St. Rep. 404 (1901) ; Cook V. Stearns, 11 Mass. 533 (1S14) ; Ward v. Rapp, 79 Mich. 469, 44 N. W. 934 (1890) ; Bridges v. Purcell, IS N. G. 492 (1836). A. owned a tract of land ; B. made a verbal contract with A. to purchase the timber standing thereon ; before B. could cut the tireber A. made a bind- ing contract to sell the land to C. B. had no notice of this contract and entered and cut the timber. C. had no notice that B. claimed any interest in the timber until after he (C.) took possession of the land. C. took possession of the timber so cut. Held, B. cannot maintain an action of trover against C. for the timber so taken. Bruley v. Garvin. 105 Wis. 625. 81 N. W. 1038, 48 L. R. A. 839 (1900). See White v. King, 87 Mich. 107, 49 N. W. 518 (1891). A. owned a piece of land on which it was proposed to erect a building. By written contract A., "the licensor," gave B., "the licensee," exclusive per- mission to affix advertisements upon the walls of building so to be erectert for a period of four years from the erection thereof. B. to pay therefor a •Tent" of £12 per annum. The licensor agreed that he would not, while the license remained in force, permit any other person to affix advertisements. A. then leased the land to C. by indenture for 40 years. C. covenanting to erect a building. C. had notice of the contract with B. C. erected the building and refused to allow B. to affix advertisements. Held. B. has an action for breacn of contract against A. King v. Allen, [1916] 2 A. C. 54. Com- pare Levy V. Louisville Gunning System, 121 Ky. 510, 89 S. W. 528, 1 L. R. ^V. (N. S.) 359 (1905) ; Borough Bill Posting Co. v. Levy, 144 App. Div. 7S4, 129 N. Y. Supp. 740 (1911). An assignment of the license by the licensee also terminates it, Bates v. Duncan. 64 Ark. 339, 42 S. W. 410, 62 Am. St. Rep. 190 (1897): Prince v. Case, 10 Conn. 375. 27 Am. Dec. 675 (1835) ; Dark v. Johnston, 55 Pa. 164 93 Am. Dec. 732 (1867) ; Nunnellv v. Southern Iron Co., 94 Tenn. 397. 29 S. W. 361, 28 L. R. A. 421 (1894). As to the rights of the holder of a license "coupled with an interest" against a grantee of the land, see Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19 (18S2) ; Shipley v. Fink, 102 Md. 219, 62 Atl. 360, 2 L. R. A. (N. S.) 1002 (1905). A license "coupled with an interest" Is assignable. Heflin v. Bingham, .56 Ala. 566. 28 Am. Rep. 776 (1S76) ; Ingalls v. St. Paul. M. & M. Ry. Co.. 3/^ --^ .^^^ ' '-vc/^^^^c^^ ,/i^. ' ^^ • '^^ . Ch. 4) LEG AL ENFORCEMENT OF COVENANTS 367 GOWER V. POSTMASTER GENERAL. (Chancery Division, 1S87. 57 Law T. N. S. 527.) [Action of covenant by Mary H. Gower, Henry S. Sanderson, and W. E. Sanderson, as executors of Edward Henry Sanderson, who was the executor of Edward Sherman. Sherman had been the owner of a long-term lease, which on his death had passed to the respective per- sonal representatives above mentioned. The leases to the Great North- ern Railway Company, and t6 East, referred to in the court's opinion, had been made by Edward Henry Sanderson.] Kay, J. This is a very short point, but a very curious one ; and the argument has been an interesting one to me. I confess that I did not see the difficulty until it was put by the Attorney General and Mr. Simpson. It seems that, on the 8th May, 1869, certain lessors granted a lease to a Mr. East of premises in the city of London, which are de- scribed as being messuages and tenements. In the description there is this exception : "Save and except out of the demise intended to be hereby made all such parts of the premises firstly hereinbefore de- scribed as are demised by an indenture of underlease, dated the 20th Dec, 1867, and expressed to be made between" the lessors and the Great Northern Railway Company. That was a lease for a term which would expire before the expiry of the term granted by the lease to which I am now referring — viz., the lease to Mr. East. But there can be no doubt whatever that these excepted parts are not included for any purpose of demise in that lease to Mr. East. I am told that they were some portions of the tenements, rather irregularly marked out, which jutted into the tenement which Was let to Mr. East. The lease to Mr, East contained a covenant on which the present question arises. Mr. East thereby, for himself, his heirs, executors, administrators, and assigns, covenanted with Edward Henry Sanderson, one of the les- sors, as such executor as aforesaid, his executors, administrators, and assigns. Pausing there, there can be no sort of doubt, as Mr. Simp- son pointed out, that the word "assigns" there means assigns of the re- version of the demised premises, that is, the reversion of the premises demised to Mr. East, and not assigns of anything else. That is be- yond all power of argument. It seems to me too plain for anything. Then the covenant runs thus : That he, his executors, administrators, or assigns, would, during the several terms thereby granted, pay the yearly rent, and all taxes, etc., in respect of the demised premises, and also would, during the term thereby granted in respect of the prem- ises firstly and secondly thereinbefore described and thereby demised, "pay all such sums (not exceeding in any one year the sum of ilOO.) as shall for the time being be payable by the said Edward Henry San- diana Nat. Gas. Co. v. Hintnn, 159 Ind. 398, 64 N. E. 224 (1902), post, p. 426, note 65. Harbert v. Hope Nat. Gas Co., 76 W. Va. 207, 84 S. E. 770, L. R. A. 1915E, 570 (1915), post, p. 426, note 65. 368 RIGHTS IN THE LAND OF ANOTHER (Part 2 derson, as such executor as aforesaid, his executors, administrators, or assigns, on account of the hlce taxes, tithes, rates, assessments, and outgoings in respect of the premises comprised in and demised b}' the said indenture of underlease of the 20th Dec, 1867." That is to say, the premises which before were excepted and were not demised by this lease. Now, before I say anything more about the construction of the covenant, this is what has happened: Mr. East has assigned his in- terest in the lease to Her Majesty's Postmaster General, and the ques- tion is whether the Postmaster General is bound by this covenant at all. It is for the payment — for tlie moment I do not say by wiiom — of taxes, tithes, rates, assessments, and outgoings. The covenant is to pay all such sums as the lessor, his executors, administrators, or assigns, may have to pay on account of the like taxes, tithes, and so forth, in respect of the premises not thereby demised. That is to say, tlie lessor may have to pay taxes in respect of other premises which are not thereby demised, and the lessee covenants to pay — I do not say at present to whom — whatever the lessor may have to pay in respect of those taxes on other premises to the extent of £100. a year. Now, is that or is it not a collateral covenant — a covenant to pay a collateral sum of money? If it were meant to make that sum payable by whomsoever this lease may be assigned to, the matter would have been easy. It might have been reserved as rent, and then of course anybody to whom the lease was assigned would have to pay it. But it is not reserved as rent. A rent is reserved, and it is a very large one, and this is a mere cove- nant that the lessee will pay in respect of taxes, &c. imposed upon other property not included in the lease, the amount of those taxes be- ing, at least, £100. a year. I cannot conceive anything more entirely collateral. It is a collateral sum — a sum payable in respect of other property which the lessee says he will covenant with the lessor to pay. Does that run with the land or not? One cannot go to a better au- thority than Spencer's Case (5 Co. Rep. 16 ; 1 Sm. L. Cas.), where the proposition relied on was this : "Although the covenant be for him and his assigns" — that is, although assigns are expressed — "yet if the thing to be done be merely collateral to the land, and doth not touch or con- cern the thing demised in any sort, there the assignee shall not be charg- ed. As if the lessee covenants for him and his assigns to build a house upon the land of the lessor which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it should not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing that was demised, or that is assigned over; and therefore in such case the assignee of the thing demised cannot be charged with it no more than any other stranger." Now, it was attempted to be argued in the present case that these taxes, tithes, and so forth, although no doubt in respect of a part of the property which was not demised, yet they possibly might be charg- ed on the whole tenement. That point, however, is not raised by the special case at all. What I have to deal with is distinctly a case in Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 369 which the taxes, tithes, &c., are separately payable in respect of the property which is not demised. That is the only case I have to deal with, so far as anything appears in the special case which I am asked to determine. The taxes, tithes, &c., are separately payable by the oc- cupier in respect of the undemised part of the tenement. I mean un- demised by this lease. Therefore, it comes within tlie operation of the rule in Spencer's Case (ubi supra). Of course, the lessee covenanted, but he is not before me ; the only person brought before me is his as- sign. That assign says that Spencer's Case decides, under circumstanc- es like these (this being a covenant for payment of a sum entirely col- lateral to this particular demised property), that the covenant does not run with the land, and therefore that it does not bind him. I confess that he satisfies me; and I do not see any answer to it. It seems to me that that is conclusive. There are other questions, and certainly very formidable questions, and one is this, which was suggested by Mr. Simpson, that the word "assigns" in both parts of this lease has the same meaning. At present I see no answer to that. However, I ought not to prejudice those questions, because Mr. Ince has not replied on that part of the case, and therefore I do not express any opinion upon them. This being, as I have said, a case that is completely governed by the rule in Spencer's Case (ubi supra), the consequence is, that the Postmaster General is not liable under the covenant, because it does not run so as to bind him; and the plaintiffs must pay the costs of this special case.* NORTHERN PAC. RY. CO. v. McCLURE et al. (Supreme Court of North Dakota. 1S99. 9 N. D. 73, 81 N. W. 52, 47 L. K. A. 149.) [The Northern Pacific Railroad Company on October 1, 1892, leased to the defendant McClure for a period of five years, a piece of land adjacent to its tracks at a rental of $10 per annum. The lease contain- ed the covenant which is stated in the opinion of the court. The Northern Pacific Railroad Company was reorganized, and transferred all its property to a new corporation, the Northern Pacific Railway Company. Certain machinery stored upon the leased premises with the consent of the lessee was destroyed by a fire caused by the plain- tiff. The owner of the machinery recovered judgment against the plaintiflf herein for the loss ; the plaintiff defending the action after having requested the defendant herein so to do.] Young, J.^* This action is brought, upon the indemnity covenant *A covenant by the lessee to pay taxes or assessments on the demised premises is enforceable by the assignee of the lessor against the assignee of the lessee, Post v. Kearney. 2 N. Y. 394, 51 Aa. Dec. 303 (1S49). See, also, Wills V. Summers, post, p. 393 : Mason v. .Smith, post, p. 389. 2 4 Part of the opinion is omitted. BiG.RlGHTS — 24 370 RIGHTS IN THE LAND OF ANOTHER (Part 2 in the lease from the Northern Pacific Railroad Company to the de- fendants, to recover the amount disbursed by plaintiff in paying the judgment referred to; also, the costs incurred in defending the action wherein the judgment was rendered. In the lease in question the Northern Pacific Railroad Company is named as the first party, and the defendants as second parties. The portion of said lease upon which plaintiff relies is in the following language: "The said parties of the second part shall, and do hereby, assume all risks of loss, dam- age, or destruction of any property, building or contents, coal, lumber, or material, that may be upon, or in proximity to, the grounds in- cluded in this lease, by the parties of the second part or by any other jiarty, occasioned by fire or sparks from locomotive engines, or other cause, or by neglect, carelessness, or misconduct of any person in the employment or service of the said party of the first part ; it being the intent hereof that the said parties of the second part shall and do release, forever discharge, save and hold harmless, the said party of the first part from all damages and claims for losses or injury suffered or sustained, or that may be suffered or sustained, to said property, or to any other property on or near said demised premises." No ques- tion is raised as to the validity of the contract of lease as a whole, or as to the foregoing covenant. On the contrary, counsel for defendants expressly concede in their brief that the agreement of defendants to save and hold the lessor harmless is a binding agreement, and that the lessor might have successfully maintained an action against them for recovery thereon for a breach of the same. But it is contended that this covenant did not pass to the plaintiff, as the assignee and grantee of the lessor, and that it cannot", therefore, recover thereon. Defendants' whole contention is based upon the last proposition. Did the covenant to save the lessor hannless against claims for damages for losses of property upon the demised premises pass to the new corporation, the Northern Pacific Railway Company, the plaintiff in this action? If this covenant of the lessees did pass to the plaintiff by the transfer of the lease to it by the lessor, or by the grant to it of the right of way which is the subject of the lease, then it is patent that plaintiff has stated a cause of action entitling it to the relief demanded ; for it is sufficiently alleged that it has suffer- ed such a loss as entitles it to a recovery under the covenant referred to. The loss by fire occurred about eight months after the transfer of the land and lease by the old corporation to the plaintiff. * * * In this state some of the uncertainty as to the rights and remedies of grantees and devisees of a lessor against tenants of the latter is removed by direct legislation. * * * The supreme court of Wisconsin, in construing their statute (which is substantially like sections 3366 and 3367 [of the North Dakota statute], supra, and wholly so, in effect, when the two sections are construed together) in Winterfield v. Stauss, 24, Wis. 394, said : "The effect of this statute is to cause the covenants entered into on the part Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 371 of the lessee, or the conditions upon which he holds, to run with the land, and to pass by conveyance or assignment to the assignee of the lessor, or of the reversion, so that such assignee may at once, and without attornment by the lessee, take advantage of any covenant or condition contained in the lease, the same as the lessor himself might have done. The consent of the lessee, or what was called 'attorning,' is no longer required, as at the common law, for this purpose ; but the assignee succeeds immediately to all the rights and remedies which the lessor had, or might have had, if no assignment had been made. In other words, the assignee becomes himself the landlord, standing in the place of the lessor, and enjoying all his rights and privileges under and by virtue of the lease. * * * The assignee here has all the rights and remedies of the lessor. He becomes the lessor by virtue of the assignment, and stands in the relation of landlord to the tenant in possession under the lease." We think the interpretation of the Wis- consin court, with the exception hereafter noted, is entirely sound, and evidently conforms to the legislative intention in enacting the remedial statutes,- which was to place the assignees of both lessors and lessees in the same position relative to the lease which their as- signors had, and to give to them the same rights and the same remedies. * * * Our conclusion is that the covenant in question in the case at bar passed to the plaintiff, and invested him with the same rights there- under which the old -corporation had. In reaching this conclusion, we are not controlled by the fact simply that it is a covenant contained in a lease, for, in our opinion, that is not enough ; and in this respect we think the language of the Wisconsin court in Winterfield v. Stauss, supra, is too broad, if it was intended to mean that all covenants of the lessee with the lessor passed to the assigns of the latter, regardless of the nature of the covenants. For it must be conceded that cove- nants and stipulations may be, and often are, inserted, which are wholly foreign to the subject-matter of the lease, and, while they are binding between the immediate parties thereto, are so disconnected with the estate that they do not pass by assignment, but remain as cove- nants between the original parties. But the covenant here involved is not of that nature. We think it is a covenant directly connected with the estate, and within the meaning of our statutes. While it is proba- bly true that it is not an agreement to pay "rent," as that word is commonly understood, yet it has to do with determining the compen- sation which the lessor is to receive for the use of the premises. It is perfectly apparent that the agreement to pay $10 per year as rent was merely a nominal sum, and that the real consideration for the use of the lands was this particular agreement that the lessor should not suffer loss from damage suits brought to recover for the destruc- tion of property upon the premises so leased to the defendants. If counsel's contention were true, that this covenant did not pass, then the only obligation the defendants would owe the plaintiff for the 372 RIGHTS IN THE LAND OF ANOTHER (Part 2 use of the property is the payment of the nominal rent of $10 per year, and that would be the extent of their liability ; for it is clear that they can incur no liability to the old corporation, in fact or in law. For,' by reason of the sale of all of its property to the plaintiff, it cannot be the moving agent in negligently setting fire to property on the premises from which alone the liability would arise. Further, none of the covenants of the lease have been binding upon the lessor since August 18, 1896; for on that day all of its rights were transferred to the plaintiff, and the defendants attorned to it as their landlord under the lease in question. The legal effect of these acts was a surrender of all of the rights which the lessor had in the lease to the plaintiff which were connected with the estate, and an assumption of all of the obligations therein by the lessee as thereafter binding upon him in favor of his new landlord. Moreover, this was in accordance with the intention of the original parties, and their express agreement in the lease, contained in the following language : "It is further mutually covenanted and agreed by and between the said parties hereto that the covenants, agreements, and conditions herein contained shall be binding upon the executors, administrators, and assigns of the said parties of the second part, and the successors and assigns of the said party of the first part." The covenants and conditions which are thus expressly agreed to be binding upon the assigns of the lessor must be considered as bind- ing upon the lessee, also, in order to effect mutuality; and such, without doubt, was the intention of the parties in making the stipula- tion. It would also seem that the covenant in question was one which directly affected the value of the property. It certainly would dur- ing the five years in which the lease run. For, without this covenant to save the lessor harmless, the lease of the property would, as this case shows, have been productive of loss, instead of profit, to the lessor or its assigns. So, too, the agreement to indemnify the lessor was one of the conditions, and the most important one, under which the de- fendants held the property, and was extremely valuable to the as- signee of the lessor, and one which, as we have seen, was valueless to the lessor after its assignment of the lease, both in fact and by reason of its surrender. Covenants to indemnify and hold harmless, like that we have been considering, are not entirely new to the courts. They have been held to be legitimate provisions, and have been up- held as not against public policy. Hartford Fire Ins. Co. v. Chicago, M. & St. P. Ry. Co., 17 C. C. A. 62, 70 Fed. 201, 30 L. R. A. 193. But we have not been able to find an adjudication upon the question whether this particular kind of a covenant runs with the land, and passes to the assigns of the lessor. Our conclusion, however, is, for the reasons stated, that this cove- nant passed to the plaintiff, and invested it with the same rights of protection against losses by it, and to the same extent and in the Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 373 same manner as the lessor might have asserted had there been no as- signment of the lease. The demurrer was properly overruled. Judgment affinned. All concur.-'^ (b) Covenants by the Lessor JOURDAIN V. WILSON. (Court of King's Bench, 1S21. 4 Barn. & Aid. 266.) Covenant by the assignee of the lessee against the reversioner. By the lease two messuages were demised. The breach assigned was up- on the following covenant : "And the said William Inwood, the land- lord, for himself, his executors, &c. doth covenant, promise, and agree to and with the said lessee, his executors, &c., to supply the said two messuages or tenements and premises with a sufficient quantity of good water, at the rate of three guineas per annum for each house." To this declaration there were several pleas, to some of which the plain- tiff demurred ; and the question argued was, whether this covenant ran with the land. Abbott, C. J. By this lease the lessor covenants to supply the messuages and tenements demised with a sufficient quantity of good water at the rate of three guineas per annum for each house. The lease does not specifically point out the particular mode by which the water is to be supplied : whether by pipes, by collecting the water in cis- terns, or by carrying it to the premises by buckets ; but it is quite clear, that the covenant cannot be satisfied unless a sufficient quantity of good water is brought upon the premises during the term. This is, there- fore, a cove*nant which respects the premises demised and the man- ner of enjoyment, and I have no doubt, therefore, that it is a covenant which runs with the land, and that the assignee may sue the reversion- er for the breach of it. Judgment for the plaintiff.^* 2SA. leased laud and a factory to X. by indenture. X. covenanted with A. to save harmless the overseers of the poor of the parish from all charges incurred by reason of his hiring as laborers in the factory any persons who should thereby gain a settlement in the town. A. died. L/ater, during the term of the lease, X. broke the covenant. Held, A.'s executor has an action against X. Walsh v. Fussel, 6 Bing. 163 (1829). 2«Acp.: Covenant to supply wood, assignee of lessee against lessor. Palm- er V. Edwards, 1 Doug. 187n (1783) ; covenant to exterminate rabbits, lessee against assignee of lessor, Sturgeon v. Wingfield, 15 M. & W. 224 (1846) ; rovenant to supply heat, lessee against assignee of lessor, Storandt v. Vogel & Binder Co., 140 App. Div. 671, 125 N. Y. Supp. 568 (1910) ; covenant to supply servant to care for demised premises, assignee of lessee against as- signee o« lessor, Barnes v. City of London R. E. Co., [1918] 2 Ch. 18 (semble). 374 RIGHTS IN THE LAND OF ANOTHER (Part 2 WOODALL V. CLIFTON. (Cpurt of Appeal, 1905. [1905] 2 Cb. 257.) By a lease dated July 4, 1867, a piece of land of about six acres at Chislehurst was demised by the then owner in fee to the lessee for a term of ninety-nine years from June 24, 1866, at the yearly rent of £142. The lease contained the following clause: "Provided always and it is hereby agreed and declared that in case the lessee, his heirs or assigns, shall at any time during the said term become desirous of purchasing the fee simple of and in the said lands and premises here- by demised, or any portion thereof not being less than one acre (unless by previous purchase the land remaining subject to this present demise shall be less than one acre), at and after the rate of £500 per acre, and such further sum for the timber thereon as shall be ascertained by a fair valuation thereof, and upon receipt of the amount of the purchase money for the same, the said [lessor], his heirs or assigns, shall and will execute a conveyance or other assurance of the said land and prem- ises with the timber thereon in favour of the said [lessee], his heirs and assigns, upon the same terms as to title and otherwise as the said [lessee] and other purchasers of portions of the Camden Park es- tate have hitherto completed their purchases." By another lease dated July 14, 1869, another piece of land of about four acres in Chislehurst and Bromley was demised by the same les- sor to the same lessee for a term of ninety-nine years at the yearly rent of £112. This lease contained a proviso similar in its terms to that contained in the lease of 1867, except that the option to purchase was reserved to the lessee, his "executors, administrators, or assigns," in- stead of to his "heirs or assigns," and that the price per acre was to be £600. The lands comprised in and demised by these two leases were now vested in the plaintiff, an assign of the original lessee, for the residues unexpired of the terms thereby respectively granted, and he claimed that, as assignee of the two terms, he was entitled to the benefit of both the options, if the same were valid and subsisting options. Subject to the leases and the options therein contained the defendants, who were assigns of the lessor, were the owners in fee simple of the lands com- prised in the leases. Notice to purchase the whole of the premises demised by the two leases had, in pursuance of the terms of the options, been given by the plaintiff to the defendants, but the defendants, who were trustees, having been advised that the options were invalid as against them, de- clined to complete the purchase. The plaintiff thereupon commenced this action against the defend- ants, and by his writ claimed a declaration that the two options to pur- chase "are valid and subsisting options and have been duly exercised Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 375 by the plaintiff, and that the plaintiff is entitled to the benefit thereof, and to enforce the same against the defendants." The writ also claimed that "the defendants may be ordered upon payment by the plaintiff to the defendants of the purchase money pay- able in accordance with the terms of the said two options respectively to execute a proper conveyance to the plaintiff of the premises subject to the said two options respectively." [Judgment below was for the defendants. Plaintiff appealed.] RoMER, L, J., read the following judgment of the Court (Vaughan Williams, Romer and Stirling, L. JJ.) : A contract in a lease giving an option of purchase might be good, without regard to the provisions of the statute of Henry VIII, as. binding the land in the hands of the heirs or assigns, provided it did not infringe the law as to perpetuities. It would not be the less a bind- mg contract because it was contained in a lease. But in the present case it is clear that the plaintiff cannot succeed on such a ground. Un- less the covenant or proviso giving the option of purchase can be said to run with the land by virtue of the provisions of the statute, then the plaintiff must fail. Now undoubtedly the statute is in its wording very wide, but it has long been held that some limitations must be im- plied; as; for example, that the statute does not apply to covenants which do not touch or affect the land demised, or to assigns where the covenants relate to things not in esse, and "assigns" are not ex- pressed to be bound. The question in the present case is whether the statute was intended to cover, or can be construed as covering, such a covenant or proviso as we have now to consider, so as to make the liability to perform it run with the reversion. We have come to the conclusion that that question must be answered in the negative. The covenant is aimed at creating, at a future time, the position of vendor and purchaser of the reversion between the owner and the tenant for the time being. It is in reality not a covenant concerning the tenancy or its terms. Properly regarded, it cannot, in our opinion, be said to directly affect or concern the land, regarded as the subject- matter of the lease, any more than a covenant with the tenant for the sale of the reversion to a stranger to the lease could be said to do so. It is not a provision for the continuance of the term, like a covenant to renew, which has been held to run with the reversion, though the fact that a covenant to renew should be held to run with the land has by many been considered as an anomaly, which it is too late now to question, though it is difficult to justify. An option to pur- chase is not a provision for the shortening of the term of the lease, like a notice to determine or a power of re-entry though the result of the option, if exercised, would or might be to destroy the tenancy. It is, to our minds, concerned with something wholly outside the relation of landlord and tenant with which the statute of Henry VIII was deal- ing, and allowing such a provision to come within the purview of the statute, and to be enforced as running with the land, would lead to 376 RIGHTS IN THE LAND OF ANOTHER (Part 2 very anomalous and, to our minds, most undesirable results as to per- petuities, conversion, and otherwise, which this Court should not vali- date unless it is obliged to do so. And we cannot think that the Court is so obliged on the true construction and effect of the statute. It is strange that there is no direct authority on the point. There are cases where the option has been exercised by the tenant and accepted by the landlord, and subsidiary questions have had to be decided which nat- urally would be dealt with on the footing that what had already been done could not or need not be questioned by the Court, as, for example, In re Adams and Kensington Vestry, 27 Ch. D. 394. But such cases are really of no assistance for the decision of the present case. In our judgment the appeal should be dismissed. HOLLANDER et al. v. CENTRAL METAL & SUPPLY CO. (Court of Appeals of Maryland, 1908. 109 Md. 131, 71 AtL 442, 23 L. R. A. [N. S.] 1135.) Appeal from Circuit Court of Baltimore City; Thos. Ireland Elliott, Judge. Suit by the Central Metal & Supply Company of Baltimore City against Charles S. Hollander and others. From a decree for plaintiff, defendants appeal. Affirmed and remanded. Thomas, J.^^ The Central Metal & Supply Company of Baltimore City, "a. corporation duly incorporated under the laws of the state of Maryland," having purchased the leasehold estate in a certain lot of land in Baltimore city, brought this suit on the 31st day of May, 1907, against the appellants, as the present owners of the reversion in said lot, for a specific performance of the covenant in the lease of the les- sor, "her heirs and assigns," upon payment of the amounts specified therein, to convey the fee to the lessees, their "heirs and assigns." The bill alleges that the defendants, Charles Hollander and Elsie Hollander, his wife, and Lee M. Hollander, are nonresidents, and that the plain- tiff, in January, 1907, addressed a letter to these defendants notifying them of its desire to redeem the ground rent under the lease, and pre- pared and forwarded to them for execution a deed from them to the plaintiff of the fee in said lot, which they refused to execute on the ground that "the said rent is not redeemable." [The defendants de- murred on various grounds.] * * * The next ground of the demurrer is that the covenant to convey the fee to the lessees, "their heirs and assigns," is not a covenant running with the land. In Glenn v. Canby, 24 Md. 127, the court stated, as the established doctrine, "that a covenant to run with the land must extend to the land, so that the thing required to be done will affect the quality, value, or mode of enjoying the estate conveyed, and thus constitute a 2 7 Part of the opinion is omitted. Ch. 4) LEGAL EXFOKCEMENT OF COVENANTS 377 condition annexed or appurtenant to it; there must also be a privity of estate between the contracting parties, and the covenant must be consistent with the estate to which it adheres, and of such a character that the estate will not be defeated or changed by a performance of it." This is the doctrine asserted by Mr. Poe in 1 Poe's P. & P. (1st Ed.) 253, and reiterated by this court in Whalen v. B. & O. R. R. Co., 108 Md. 11, 69 Atl. 390, 17 L. R. A. (N. S.) 130, 129 Am. St. Rep. 423. In Taylor's Landlord and Tenant (7th Ed.) § 261, it is said that : "In order that a covenant may run with the land, its performance or nonperformance must afifect the nature, quality, or value of the prop- erty demised, independent of collateral circumstances, or must affect its mode of enjoyment. It must not only concern the land, but there must be a privity of estate between the contracting parties." "In order that a covenant may run with the land — that is, that its benefit or obligation may pass with the ownership — it must respect the thing granted or demised, and the act covenanted to be done or omit- ted must concern the land or estate conveyed. Whether a covenant will or will not run with the land does not, however, so much depend on whether it is to be performed on the land itself, as on w^hether it tends directly or necessarily to enhance its value or render it more bene- ficial and convenient to those by whom it is owned or occupied, for if this be the case every successive assignee of the land will be entitled to enforce the covenant." 11 Cyc. 1080. "Such covenants, and such only, run with land as concern the land itself, in whatsoever hands it may be, and become united with, and form a part of, the consideration for which the land, or some interest in it, is parted with, between the covenantor and covenantee." Wash- burn on Real Property, § 1205. That the covenant in this case is within these requirements, as affect- ing the interest in the land demised, as enhancing the value thereof, and as forming a part of the consideration for the acceptance of the lease by the lessees, would seem to be free of doubt. The learned counsel for the appellants contend, however, that the performance of the covenant would defeat the estate of the lessor, and change the char- acter of the estate of the lessee, and that it therefore falls within the restrictions of Glenn v. Canby, supra. But in Taylor's Landlord and Tenant, § 262, it is said : "The right of renewal constitutes a part of the tenant's interest in the land, and a covenant to renew is consequently binding upon the as- signee of the reversion. So the grant of an additional term, or the right to purchase, is, for many purposes, to be considered a continua- tion of the former lease ; and, if there is nothing in the lease to show that such right or renewal was intended to be confined personally to the lessee, they will inure to his assignees or executors, without their being particularly named." In the case of MaughHn v. Perry, 35 Md. 352, the covenant on the part of the lessor was as follows : 378 RIGHTS IN THE LAND OF ANOTHER (Part 2 "And the said party of the first part, for himself, his heirs and as- signs, doth hereby covenant and agree with the party of the second part, his heirs and assigns, to sell and convey unto the party of the second part, his heirs and assigns, the above-described property and premises for the sum of fifteen hundred dollars at any time before the expiration of this lease or tenancy." The lessor died after having sold the property, and suit was brought by the assignees of the lessee against the assignee of the lessor for a specific performance of the covenant, and the court, in affirming a de- cree requiring the defendant to convey the property to the plaintiff in accordance with the terms of the covenant, said : "As a part of the consideration of the lease constituting the contract between the parties. Wells, the lessor, covenanted to sell the property to Hynson, his lessee, for fifteen hundred dollars, at any time during the existence of the lease. This was a continual obligation running with the lease on the part of the lessor, with the option in the tenant to accept the same, or not, within that time. But it seems Wells, be- fore the right of Hynson to make his election had determined, made sale of the property to Maughlin, and died. Maughlin, with notice of the recorded contract between the parties, can acquire no greater right than possessed by Wells." The certain and definite rule deducible from the authorities cited, then, is that if the covenant, as in this case, touches and concerns the land or estate demised, enhances the value thereof, and forms a part of the consideration for the acceptance of the lease by the lessee, a court of equity will decree specific performance, not only as between the parties to the contract, but, in the absence of intervening equities controlling its conscience, also as between those claiming under them in privity of estate. 24 Cyc. 1026; Gear on Landlord and Tenant, § 84; Laffan v. Naglee, 9 Cal. 662, 70 Am. Dec. 678; Robinson v. Perry, 21 Ga. 183, 68 Am. Dec. 455 ; Kerr v. Day. 14 Pa. 112, 53 Am. Dec. 526; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368 ; Spencer's Case, 1 Smith's Leading Cases, 75.. [Decree for specific performance affirmed.]^® 2 8 Ace: Giving specific performance. Blakeman v. Miller, 136 Cal. 13S, tJS Pac. 5S7, 89 Am. St. Rep. 120 (1902) ; Harper v. Runner, 85 Neb. 343, 123 ^. W. 313 (1909) ; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368 (1872). In the last case the court said (44 Vt. 290, 8 Am. Rep. 368) : "This consideration is sufficient to dispose of the question made by the defendants as to the right of the orator to stand upon this covenant in this suit. But if not, covenants that do not run with the land may be assigned in equity so as to pass the right to enforce them by action in the name of the covenantee to tlie assignee. 1 Smith's L. C, 179, Field, J.; Willard v. Tay- loe, 8 Wall. 571 [19 L. Ed. 501 (1869)]. An assignee of a chose in action, who has the right to proceed at law upon it in the name of the assignor, has the right to proceed iipon it in equity in his own name, in cases proper to be proceeded with in courts of equity. If this covenant had not passed with the estate in the land from Meringo to Mary Ann Turner, his conveyance would liave operated as an equitable assignment of his interest in it and of his right to enforce it in his name to her; and a suit in equity in his name Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 379 THOMAS V. HAYWARD. (Court of Exchequer, 1S69. L. R. 4 Exch. 311.) Declaration by the assignee of a lease against the lessor, on a cove- nant in the lease, by which, the lessee having covenanted for himself his executors, administrators, and assigns, during the continuance of the term to use and continue the demised house for the sale of spirits, the defendant, for himself, his executors, administrators, and assigns, covenanted "not to build, erect, or keep, or be interested or concerned in building, erecting, or keeping, any house for the sale of spirits or beer within the distance of half a mile from the premises thereby de- mised, during the continuance of the said term." Demurrer and joinder. BramwELL, B.^^ The covenant does not touch or concern the thing demised. It touches the beneficial occupation of the thing, but not .the thing itself; and this becomes manifest when it is considered that, supposing the lessee's covenant to carry on the sale of spirits on the premises to be discharged by agreement between the lessor and les- see, or that without such discharge, the lessee, in fact, discontinued the business, the defendant's covenant would obviously in no way concern the land. This shows that the covenant relates only to the mode of occupying the land, not to the land itself. It does not, therefore, run with the land so as to enable the plaintiff to sue upon it. * * * Judgment for the defendant.^" for such relief as is sought in this case would have been proper. The orator, being the personal representative of Mary Ann Turner, could maintain this suit in equity in his own name, as well as the original covenantee could have maintained it if no assignment or conveyance had been made." A covenant to renew the lease runs: In favor of the assignee of the les- see, Cook V. Jones, 96 Ky. 2S3, 28 S. W. 9C0 (1894) ; McClintock v. Joyner. 77 Miss. 678, 27 South. 837, 78 Am. St. Rep. 541 (1900) ; against the assignee of the lessor, Isteed v. Stonely, 1 And. 82 (1580) ; Leominster Gaslight Co. V. Hillery, 197 Mass. 267, 83 N. E. 870 (1908). Compare Muller v. Trallord [1901] 1 Ch. 54. A., a wine merchant, who owned a hotel, leased the hotel to X., who cove- nanted to sell no wines there save those purchased from A., his successors or assigns. The lease contained a proviso that so long as X. observed this covenant the rent should be abated a specihed sum. A. died, devising all his real and personal estate to B. The wine business was sold by B. to C. The lease ~was assigned by X. to Y. Upon a submitted case, to have deter- mined the proper construction of the lease, held, so long as Y. sells no wines on the premises save those purchased from C, he is entitled to the abate- ment in the rent. White v. Southern Hotel Co., [1897] 1 Ch. 767. 2 8 The opinions of Channell and Cleasby, BB., are omitted. 3 In Norman v. Wells, 17 Wend. (N. Y.) 136 (1S37), on substantially the .same state of facts, the court held for the plaintiff, saying (page 151): "in the case at bar the covenant is still more material. It is not to avoid doing what would be a mere matter of inconvenience or offence to good taste ; l)ut what might very materially impair the factory lot demised to Delacroix, for business purposes. The rent was doubtless large in proportion ; and the benefit would attend the lessee and all his assignees, whether immediate or remote, during the term. The covenant respected the premises ; it fegulat- 380 RIGHTS IN THE LAND OF ANOTHER (Part 2 DEWAR V. GOODMAN. (Court of Appeal, 1907. [1908] 1 K. B. 94.) [Action by the assignee of a lease against the assignee of the rever- sion for breach of the covenants contained in the lease. Judgment be- low was for the defendant and the plaintiff appeals.] Lord AlvErstone, C. J.^^ In this case we are asked to reverse the judgment of Jelf, J., who has held that the action cannot be main- tained. Speaking for myself, I wish to say that I am greatly indebted to Mr. Copping for his very able argument, and I think that much that has been said by him would be strong ground for holding that a lessee in the circumstances of this case ought to be allowed by the law to have a remedy against the assignee of the lessor, but there is a strong line of authorities which, in my opinion, prevents us from giving effect to that argument. The question which we have to decide arises in this way. In 1820 a lease of certain land was granted, which contained a covenant on the part of the lessee to keep in repair all buildings erect- ed on the land. Houses to the number of 211 were erected on the land. In 1886, Barns, in whom the lease of 1820 had become vested, sub-demised two of the houses to Humphrey, the underlease containing a covenant by Humphrey, to keep the two houses in good repair and covenants by Barns and his assigns for quiet enjo5'ment and for the performance of the covenants in the head lease, and for an indemnity against their non-performance. The underlease also contained a pro- viso which is not without significance as shewing that the parties had some doubt as to the effect of the covenants in the underlease, because it provided that the lessor, that is, Barns, should only be bound by the covenants whilst he held the reversion, and that it was the intention of the parties that the covenant should bind "so far as can be" any other persons for the time being entitled to the reversion. The plaintiff is the assignee of Humphrey, and the defendant is the assignee of Barns. The plaintiff was ejected by the head landlord for a breach of the cov- enant in the head lease to repair all the houses including the two demis- ed by the underlease. In respect of that ejectment the plaintiff sues the defendant on the covenants contained in the underlease. For the purpose of my judgment I will assume that, if the complaint ed their value, it fixed the amount of rent, it was co-extensive with tlie estate, it benefited the owner of the demised premises, and nobody but the owner. So far it would, I thinli, be a plain departure from the principle and analogy to deny the assignees' action on this covenant." A., being the owner in fee of a town, leased a store to X. and covenanted that he should have the exclusive privilege of selling merchandise in the town for ten years. A. leased another lot to B., who subleased to C, who sold merchandise within the ten years. C. had notice of A.'s covenant with X. before he took his sublease. Held, X. has no rights, legal or equitable, against C. Taylor v. Owen, 2 Blackf. (Ind.) 301, 20 Am. Dee. 115 (1830). See Hebert v. Dupaty, 42 La. Ann. 343, 7 South. 580 (1890). «i The opinions of Buckley and Kennedy, L. J J., are omitted. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 381 as to non-repair had related only to the two houses occupied by the plaintiff, there would have been no ejectment of the plaintiff. I do not base my judgment in any way on any question as to whether the plain- tiff, having himself been under covenant to keep those two houses in repair, is thereby precluded from maintaining this, action. The real question which we have to consider is whether the lessor's covenants in .the underlease are covenants which run with the land. It has been pointed out by Jelf, J., in his most carefully considered judgment that the law on this subject is fenced round with technicalities, but he sug- gested that it might be possible for this Court to take a, broader view of the matter than he felt bound to take, and to break through those technicalities. In my opinion it is not possible for us to deal with this case in the way contended for in the argument for the plaintiff' without introducing entirely new principles, and overruling one if not two cases. It was said in aj-gument that it was assumed in Dough- ty V. Bowman, 11 Q. B. 444, that a covenant of the kind in question in this case would bind the assignee of the reversion, if assigns were named in the covenant. I was at first somewhat impressed with that, but I had not quite appreciated the facts of that case. There was in Doughty v. Bowman, 11 Q. B. 444, a covenant by the lessee to erect certain houses on the demised land ; the lessee sub-demised to the plaintiff, and cove- nanted with him to perform all the lessee's covenants in the lease, but not naming assigns. The lessee afterwards assigned to the defendant, and the question was whether the lessee's covenant to perform the cov- enant as to building the houses was binding on the defendant. I agree that the judges assumed that if assigns had been named in the covenant it would have been binding on them, but it is clear, I think, that the decision really turned on the distinction between the thing to be done on the land being in esse or in posse at the time of the demise, for Pat- teson, J., in his judgment said (11 Q. B. at page 448) : "There are two sorts of covenants, the one binding the assignee of land whether nam- ed or not, the other not binding him unless he is named. If the cove- nant in question be considered as a covenant to build houses, then it relates to a thing not in esse at the time of demise, and does not bind the assignee of the land, as he is not named" ; and Parke, B., said (Ibid, at page 454) : "The first resolution in Spencer's Case, 5 Rep. 16, 1 Smith, L. C, applies here, and so does the first of the two answers given by my brother Patteson in the present case. Assigns are not named, and the covenant, concerning a thing not in esse at the time of the demise, does not pass to assigns unnamed." It is quite clear from those passages that the Court there was not considering the question of a covenant to do something on land oth- er than that demised. This view is borne out by the comments on Doughty V. Bowman, 11 Q. B. 444, made in Minshull v. Oakes, 2 H. & N. 793, and both cases are referred to in Smith's Leading Cases, vol. 1, 11th Ed., pp. 70, 71, as authorities for the proposition that covenants as to things not in existence at the time of the demise are not binding ■382 RI3HTS IN THE LAND OF ANOTHER " (Part 2 on assigns if they are not named. The covenant in the present case is a covenant to do something on land which was not the subject of the demise, but it is contended for the plaintiff, that, as the performance of the covenant was for the benefit and protection of the sub-lessee and concerned his interest or estate in the land, that is sufficient to bind the assigns, and cases were cited for the purposes of shewing that^ the terms "estate" and "land" were in this connection to be treated as equivalent. But the important thing to observe with regard to the cases cited was that in every one of them the covenant did touch and concern the land demised in the strictest sense of the word, and more- over it must be remembered that observations as to covenants for quiet enjoyment must always be read as applying to the particular facts of each case. The case of Sampson v. Easterby, 9 B. & C. 505, 6 Bing. 644, was cited in reply as an instance of a covenant to do something on land other than the land demised which was held to run with the land. That was a case where there was a lease of minerals in or under certain moors or waste lands, and there was a covenant by the lessees to erect a new smelting mill on part of the waste. It was held that the cove- nant passed with the reversion, but the decision proceeded upon the ground that the erection of the new mill was a matter so closely con- nected with the working of the mines that it tended to the support and maintenance of the thing demised. The facts in that case were of such a very special character that the case cannot in my opinion be regarded as an authority in favour of the plaintiff's contention in the present case. * * * In my opinion, having regard to the original foundation of the rule in Spencer's Case, 5 Rep. 16, 1 Smith L. C. 11th Ed. p. 55, and to the way in which that rule has been applied in numerous cases, it is im- possible to say that Jelf, J., came to a wrong conclusion in holding that this action failed. For these reasons the appeal must be dismissed.^- 32 On appeal to the House of Lords the decision of the Court of Appeal was affirmed. [1909] App. Cas. 72, Lord Collins said (page 77): "The reason why the covenant to do something on land other than that demised presumably does not run is not because there is not privity of estate in the land on which the covenant is to be performed, but because such a covenant is prima facie collateral, i. e., does not touch or concern the land demised. But instances may be imagined of covenants to do things on land other than that demised which touch and concern so nearly the land demised as to run with it. Of this Sampson v. Easterby, 9 B. & C. 505 [1829], 6 Bing. G44 [1830], is an instance, if it be assumed, as it seems to have been, that no demise was to be implied of the site on the waste where the mill was to be built. Vyvyan v. Arthur, 1 B. & C. 415 [1823], is another instance where there was no privity of estate in the land on which the covenant was to be performed, but on special grounds the covenant was held to run." A. owned two adjoining lots. He leased one to X. and covenanted that he would not build on the adjacent piece within 30 feet of the street. X. assigned the lease to Y. A. built on the adjacent lot within 30 feet of the street. Held, the covenant runs with the land and Y. has an action against A. for damages for breach thereof. Ricketts v. Entield Church VVaraeus, [1909] 1 Ch. 544. Ch. 4) LEGAL ENFOKCEMENT OF COVENANTS 383 (D) Assignments (a) G«NERAL Principles , BRETT V. CUMBERLAND. (Court of King's Bench, 1619. 2 Rolle, 63.) The king leased three mills for years by his letters patent in which was this clause: "And the aforesaid W. C, the lessee, his executor and assigns from time to time during the aforesaid term, as often as shall be necessary, will well and truly keep up and repair the aforesaid mill and other premises." The lessee grants over his estate; the king accepts rent from the grantee ; the first lessee dies ; the king assigns his reversion ; the assignee of the reversion accepts rent from the grantee ; the mills become ruinous; the assignee brings action of covenant against the executors of the first lessee. * * * The court took the matter under advisement and it was finally re- solved: 1. That this was an express covenant. * * * 2. That the king himself could clearly charge the lessee himself after the assign- ment of the term, for by no assignment that the lessee could make could he discharge himself from the express covenant. 3. That the king could have charged the executors of the lessee after the assign- ment of the term, for they represent the person of the testator. 4. That the king could have charged each assignee of the term who had the estate, but if the king leased to A with such a covenant and A as- signed to B, and B to C, now the king could not charge B for the re- pairs which have to be made ; for although B was the assignee of the estate, still he was not so at the time the repairs were made and his (the lessee's) executors can be made chargeable (as aforesaid). 5. The king could not recover for repairs suffered after his own assign- ment. 6. The assignee of the king in all the cases aforesaid shall have like remedy by action of covenant as the king himself could have, by the express words of the Statute of 32 H. 8, ch. 34. * * * Wherefore judgment was given for the plaintiff. ^^ 33 Ace. : Norton v. Acklane, Cro. Car. 579 (1640). 384 EIGHTS IN THE LAND OF ANOTHER (Fart 2 WALL V. HINDS. • (Supreme Judicial Court of Massachusetts, 1S55. 4 Gray, 256, 64 Am. Dec. 64.) [Wall executed to Hinds a lease under seal of certain premises for a term of years, Hinds covenanting, among other things, to pay the rent. Six months later Hinds assigned the lease and Wall ac- cepted rent from the assignee. Subsequently the assignee failed to pay the rent, and Wall brought this action against Hinds upon the covenant in the lease.] BiGELOW, J.^* L The assignment by the lessee of his entire in- terest in the estate under the lease, and the acceptance of rent by the plaintiffs from the assignees, do not constitute a valid defence to the present suit. It is the well settled rule of law that in such case the lessor cannot maintain an action of debt for rent against the lessee; ■ but that an action will lie against him on the covenant for the payment of rent. The reason of the rule is, that, although by the assignment the privity of estate between lessor and lessee is terminated, there still remains the privity of contract between them, created by the lease, which is not affected by the assignment. The lessee still con- tinues liable on his covenant, by virtue of the privity of contract. Bachelour v. Gage, Cro. Car. 188; Barnard v. Godscall, Cro. Jac. 309; Thursby v. Plant. 1 Saund. 240 : Auriol v. Mills, 4 T. R. 94. * * * Judgment for the plaintiffs.^ ^ WASHINGTON NATURAL GAS CO. v. JOHNSON et al. (Supreme Court of Pennsylvania, 1889. 123 Pa. 576, 16 Atl. 799, 10 Am. St. Rep. 553.) Williams, J.,^' This action is brought to recover for a breach of covenant contained in an oil lease dated August 5, 1885. By the terms of the lease, Guffy & Co., the lessees, acquired the exclusive right to drill and operate wells for oil and gas on about 75 acres of land for the term of 20 years. In consideration of the grant, they undertook to commence operations on the premises, and complete one well within six months from the date of the lease. They were also to commence a second well four months after the time for the com- pletion of well No. L The royalty to be paid was fixed by the terms of the lease at one-fourth of all oil produced, if oil was found, and $800 per annum for each gas well operated, if gas was found in suffi- cient quantities to be utilized. The lessees took possession, and drill- s' Part of the opinion is omitted. ssAcc: Consumers' Ice Co. v. Bixler, 84 Md. 437, 35 Atl. 10S6 (1896). Compare Kimpton v. Wallcer, 9 Vt. 191 (1837). 3 6 Tlie statement of facts and part of the opinion are omitted. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 385 ed one well in accordance with their covenant, which produced gas in sufficient quantities to be utilized. Three months before the time for putting down the second well, Gufify & Co. assigned the lease to Robbins, who held it from the 18th March, 1886, till the 20th January, 1887, and then assigned to Washington Natural Gas Company. The second well should have been drilled, allowing three months to be a reasonable time in which to complete it, during the time when Rob- bins was the holder of the lease. The action, however, is against the assignee of Robbins, whose title was acquired some two months after the time when the well should have been completed, and at least five months after it should have been begun. The liability of the assignee was brought to the attention of the court by the sixth point submitted on the part of the defendant below, as follows : "It being a conceded fact that a reasonable time for drilling said second well had elapsed before defendant became assignee of the lease, the defendant can- not be held liable for a failure to drill said well." This point was refused. The seventh point asked the further instruction that, "it being shown by the plaintiffs themselves that the covenant in the lease * * * to commence the second well * * * was brxDken before the defendant acquired any interest in the lease, the proper remedy for such breach was an action against the original lessee, or the holder of the lease at the time of the breach." This was also refused; and the learned judge told the jury in his general charge that the breach of covenant to drill a second well was not complete until the end of the 60 days after the well should have been finished, because that was the time when the rent for the second well would fall due. "The commencement of the breach," said the learned judge to the jury, "was the failure to begin a second well on or before October, 1886, and the consummation was in not paying the eight hundred dollars when it ought to have been paid, had a paying well been struck." The answers to the points and the foregoing instruction are assigned for error. The covenant sued on is as follows : "And it is further agreed that the second well shall be commenced four months after May, 1886, the time stated for the completion of well No. 1." The plaintiffs al- lege a breach of this covenant, and state their cause of action to be that the defendant has failed to commence a second well upon said leased premises within the time mentioned in said lease; to-wit, within four months from May 1, 1886, or at any other time. The in- struction of the learned judge that a covenant to commence a well at a fixed time was only partly broken by a failure to commence it is not in harmony with the plaintiff's claim, as stated in their narr., nor is it justified by the terms of the covenant. If the well had been drilled at the proper time, the covenant would have been fully performed, 1 hough neither gas nor oil had been found, and in that event no rent BiG.RiGH^s — 25 386 RIGHTS IN THE LAND OF ANOTHER (Part 2 would have been demandable. The duty to pay rent for the second well as for the first one was conditional upon actual production, and it ceased when the production ceased, or when the quantity of gas was to small to be utilized. The object of the covenant was to secure the development of the lessors' land by the putting down of two wells upon it for which rent was to be paid if the wells were successful. The breach was complete when the lessees failed to drill as they had agreed. .Loss of rents and profits might or might not follow, depending on the productiveness of the field. This subject might have been considered by the jury in fixing the damages after the plaintiffs' right to recover was settled, but had no relation what- ever to the question on which the liability of the defendant depended. Turning, then, to the question raised by the points, we find the facts to be as assumed therein, and the liability of the gas company to de- pend upon the extent to which the covenants of Guffy & Co. run with the land. That they continued liable notwithstanding their assign- ment to Robbins is very clear. The covenant was their own, and their privity of contract with their lessors continued notwithstanding their assignment of the lease. Their assignee, Robbins, who was in possession when the time for performance arrived, was also liable be- cause of the privity of estate which arose upon his acceptance of the assignment. Acquiring the leasehold estate by an assignment of the lease, he is fixed with notice of its covenants, and he takes the estate of his assignors cum onere. But as his liability grows out of privity of estate, it ceases when the privity ceases. If he had as- signed before the time for performance, his liability would have" ceased with his title, and liability would have attached to his assignee by reason of privity of estate, and so on, toties quoties. Each succes- sive assignee would be liable for covenants maturing while the title was held by him because of privity of estate, but he would not be lia- ble for those previously broken, or subsequently maturing, because of the absence of any contract relation with the lessor. While he holds the estate, and enjoys its benefits, he bears its burdens, but he lays down both the estate and its burdens by an assignment, even though, as is said in some of the cases, his assignment be to a beggar. Negley V. Morgan, 46 Pa. 281 ; Borland's Appeal, 66 Pa. 470. It is clear, therefore, that, when Robbins made his assignment to the Washington Natural Gas Company, the time fixed in the lease for the sinking of the second well had gone by, and the covenant was broken. Guffy & Co. were liable upon their contract because, al- though their assignment had divested them of the lease, it could not relieve them from their contract. Robbins, who was the owner when the covenant matured, was liable because of the privity of estate, but the gas company had no relations with the lessor or the leasehold until after the covenant was broken. The covenant ran with the land until the breach. It then ceased to run, because it was turned into a cause of action. The case of Oil Co. v. Blair, 113 Pa. 83, 4 Atl. 218, Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 387 57 Am. Rep. 442, has been cited as sustaining a contrary doctrine, but an examination' of it will show that it is clearly distinguishable from this case. The covenant which it is sought to enforce in that case was not for the completion of successive wells at successive dates, but it was for the commencement of the work of developing Blair's farm at a time certain, and to continue with due diligence and without delay to prosecute the business to success or abandonment, and, if success- ful, to prosecute the same without interruption. Two wells were completed, and were successful oil wells. The assignee of the lease owned adjoining lands upon which it was operating, and it stopped work on the Blair farm. The action rested on the breach of the covenant to prosecute the business of producing oil from the land of the lessor with due diligence and "without interruption." The obliga- tion of a covenant to prosecute the business of developing the land of the lessor without delay and without interruption is a continuing one. The breach for which the Bradford Oil Company was held liable was not that of some previous holder of title, but its own. * Judgment reversed. *' JONES V. PARKER et al. SAME V. GROVER. (Supreme Judicial Court of Massachusetts, 1895. 163 Mass. 5G4, 40 N. E. 1044, 47 Am. St. Rep. 485.) HoLMES,_ J.'* The case of Jones v. Parker is a bill in equity brought by a. lessee upon a lease purporting to begin on September 1, 1893, and to demise part of a basement in a building not yet erected. The lessor "covenants to deliver possession of the same to the lessee upon completion of said building, and thereafter, during the term of this lease, reasonably to heat and light the demised premises." It is al- leged that the building has been completed, but that the defendants re- fused to complete the premises with apparatus sufficient to heat and light the same, and to deliver the same to tlie plaintiff. It also is alleged that the occupancy of the premises for the purpose contemplated in the lease was impossible without the construction in the premises of proper apparatus for heating and lighting them before delivery to the plaintiff. The prayer is for specific performance of the covenant quoted, and for damages. The defendant demurs. The last objection taken is based on an allegation that the lessor, Parker, has conveyed the reversion to Blackall. It is not alleged that 87Acc.: Grescot v. Green, 1 Salk. 199 (1700); Churchwardens v. Smith, 3 Burr. 1271 (17G2). Ace. as to lessee's assignee's liability for rent accruing after an assignniout by the assignee: Johnson v. Sherman, 15 Cal. 287, 70 Am. Dec. 481 (ISGO). 88 The statement of facts and part of the opinion are omitted. 388 RIGHTS IN THE LAND OF ANOTHER (Part 2 Blackall had notice of Parker's covenant. But, as the lease is for less than seven years, it is valid without recording or notice (Pub. St. c. 120, § 4), and the assignment does not entitle Blackall to prevent the performance of the covenant. We need not consider whether the cove- nant runs with the reversion, by virtue of St. 32 Hen. VIII, c. 34, § 2, — a question not to be confused with the different one as to the cove- nants attaching a burden or a right to land at common law, irrespective of privity or the mention of assigns, after the analogy of commons or easements, or the yet different one as to the transfer of the benefit of warranties or covenants for title to assigns, when mentioned, being privies in estate with the original covenantees. Norcross v. James, 140 Mass. 188, 2 N. E. 946; Middlefield v. Knitting Co., 160 Mass. 261, 35 N. E. 780. This covenant is pretty near the line, as it has been drawn between covenants that will and those that will not pass under the statute, in respect of their nature. Assigns are not mentioned, and the plaintiff has not entered, but perhaps none of these objections would be fatal. Spencer's Case, 5 Coke, 16, and note to same case in 1 Smith, Lead. Cas. 137; Moore, 159; Plow. 300; Jourdain v. Wil- son, 4 Barn. & Aid. 266, 268; Doughty v. Bowman, 11 Q. B. 444; Minshull V. Oakes, 2 Hurl. & N. 793, 808 ; Rawle, Cov. (5th Ed.) §§ 313, 318; Williams v. Bosanquet, 1 Brod. <&; B. 238; Simonds v. Turner, 120 Mass. 328. However this may be, the plaintiff is enti- rted to his lease, and to his heat and light, notwithstanding the as- signment; and whether the covenant passes, or not, he can hold the defendant, Parker, on his express contract. All the cases which have come under our eye are cases of covenants by lessees, but the rea- soning is equally good for covenants by lessors. Wall v. Hinds, 4 Gray, 256, 266, 64 Am. Dec. 64; Mason v. Smith, 131 Mass. 510, 511; Barnard v. Godscall, Cro. Jac. 309; Brett v. Cumberland, Id. 521; Bachelour v. Gage, Cro. Car. 188; Pitcher v. Tovey, 4 Mod. 71, 76; Auriol v. Mills, 4 Term R. 94, 98, 99. * * * Demurrer overruled.^® 3BACC.: Stuart v. Joy. [1904] 1 K. B. 362; Hazen v. Hoyt (Iowa) 75 IN. W. 647 (189S) ; Neal v. Jefferson. 212 Mass. 517, 99 N. E. .334, 41 L. R. A. (N. S.) 387, Ann. Cas. 1913D, 205 (1912) ; Chamberlain v. Dunlop, 126 N. Y. 45, 26 N. E. 966, 22 Am. St. Rep. 807 (1891). Compare Mansel v. Norton, L. R. 22 Ch. D. 769 (18S3). A. leased land to X. on a long terra lease. In the lease A. covenanted for himself, his heirs, executors, administrators, and assigns with X., his heirs, executors, administrators, and assigns, that A. and his heirs, executors, ad- ministrators, and assigns, would within one year from the maliing of the lease build and finish a roadway upon A.'s land along the east boundary of the demised premises. A. did not so build within the year or at any other time, nor did any other person build the road. A.'s interests were subsequently conveyed to B., and X.'s Interest to Y. Held, admitting the covenant to be of a sort that might run with the land, Y. had no cause of action against B. for the non-building of the road. Morris v. Kennedy, [1896] 2 Ir. 247 (1894). Ace. Coffin V. Talman, 8 N. Y. 465 (1853). A. leased a house to X. and covenanted for himself and his assigns that he "would, as the court construed the covenants: (1) Paint the house within A reasonable time after the making of the lease; (2) during the lease, on Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 389 MASON V. SMITH. (Supreme Judicial Court of Massachusetts, 1881. 131 Mass. 510.) Contract for money paid. Trial in the Superior Court, without a jury, before Dewey, ]., who allowed a bill of exceptions, in sub- stance as follows : On December 20, 1869, Nancy J. Fuller leased to the plaintiff a parcel of land in Boston, for the term of fifteen years from January 1, 1870, by an instrument under seal and duly recorded, the lessee covenanting to pay rent and taxes. On April 8, 1870, the plaintiff assigned the lease to the defendant by an instrument under seal, writ- ten on the back of the lease, and signed by him, as follows : "Boston, April 8, 1870. In consideration of one dollar and other good and valuable considerations paid to me by T. H. Smith, the receipt whereof is hereby acknowledged, I do hereby assign to said Smith all my right, title and interest to the within written instrument." This as- signment was recorded on the same day. On March 12, 1873, the defendant, by a similar indorsement on the lease, assigned the lease to John Carney. The plaintiff* had no knowledge of this assignment, and it was not recorded until' June 14, 1877. On April 10, 1876, the heir at law of Nancy J. Fuller brought an action against the plaintiff upon the covenant in the lease, for the taxes assessed upon the demised premises for the years 1872, 1873, 1874 and 1875. The plaintiff requested the defendant to defend the action; but, as he did not do so,, the plaintiff defended it, and judg- ment was recovered against him in the sum of $392 damages, and $24.32 costs. The plaintiff asked the judge to rule that the assignment of the defendant to Carney was not operative against the plaintiff in this action, he having no notice or knowledge of the same, and it not being recorded until June 14, 1877; and that the defendant was liable for all the taxes which the plaintiff had paid. demand, repair the pipes. Two years after the making of the lease A, as- signed the reversion to B., A. having neither painted the house nor repaired the pipes. X. brings action against B. for breach of the two covenants. Held, he cannot maintain his action on the first covenant; he can on the second, no demand ever having been made on A., by showing a demand on B. and a refusal by him. Gerzebek v. Lord, 33 N. J. Law, 240 (1869). A. leased premises to X. for a term of years and covenanted to keep the premises properly heated. A. assigned the reversion to B., and X. accepted B. as his landlord. Later there was a negligent failure to keep the premises properly heated and in consequence thereof, one of X.'s employes suffered personal injury. In an action of tort by the employe against A. setting forth the above facts. Held, admitting that the complaint would state a cause of action as against the landlord (Glidden v. Gbodfellow, 124 Minn. 101, 144 N. W. 428, L. R. A. 1916F, 1073 [1913]), it does not state a cause ot •action as against A. Glidden v. Second Ave. Investment Co., 125 Minn. 471, 147 N. W. 658, L. R. A. 19150, 190 [1914]. See Wagner v. Van Schaick Realty Co., 163 App. Div, 632, 148 N. Y. Supp. 736 (1914). 390 RIGHTS IN THE LAND OF ANOTHER (Part 2 The judge refused so to rule; and ruled that the defendant was only liable for the tax for the year 1872 ; and ordered judgment ac- cordingly. The plaintiff alleged exceptions." Endicott, J. It is clear that the plaintiff was liable to the lessor upon the covenants of the lease for the payment of taxes for the years 1872, 1873, 1874, 1875 ; although he had assigned all his right, title and interest in the lease to the defendant in 1870, which as- signment was under seal and duly acknowledged and recorded. The defendant, as assignee, would also be liable to the lessor for the taxes accruing during his term, by virtue of the privity of estate created by the assignment. In such a case, the liability of the original lessee does not depenci upon privity of estate, for he has parted with his whole interest, but upon privity of contract, and continues during the whole term ; while the liability of the assignee continues only during the time he holds the legal title to the leasehold estate under his assignment. When the privity of estate thus ceases, his liability to the lessor ceases. Farrington v. Kimball, 126 Mass. 313, 30 Am. Rep. 680, and cases cited. See Rowland v. Coffin, 9 Pick. 52. The plaintiff, being thus liable, was sued by the legal representative of the lessor for these unpaid taxes, and judgment having been ren- dered against him for the whole amount, he paid the same. That a lessee can recover from his assignee, and also from a sec- ond assignee, the taxes accruing during their terms respectively and which the lessee has been obliged through their default to pay to the lessor, is well settled. Patten v. Deshon, 1 Grav, 325 ; Burnett v. Lynch, 5 B. & C. 589 ; Moule v. Garrett, L. R. 5 Ex. 132 ; s. c, 7 Ex. 101 ; Farrington v. Kimball, ubi supra. The question presented in this case is whether the plaintiff is entitled to recover from the defendant, not only the taxes for 1872, when the defendant was ac- tually in possession, but also the taxes for the following years, when Carney was in possession, to whom the defendant had transferred the lease in 1873 by an assignment, not recorded until 1877. The lease was for the term of fifteen years from January 1, 1870. The assignee of a lessee takes the whole estate of the lessee in the premises, subject to the performance on his part of the covenants running with the land, under the terms of the lease. By accepting and entering under the assignment, the law implies a promise to perform the duties thus imposed upon him. If through his neglect or refusal to perform them, the lessee is obliged to pay rent, taxes or other sums of money to the lessor under the covenants of his lease, he may recover the same from his assignee. Whether the lessee may recover from his assignee such sums as he has been obliged to pay, arising out of the default of a second assignee to whom the first assignee has assigned all his interest, presents a very diff'erent question, in the ab- sence of an express agreement to do so in the instrument of assign- ment. For the implied promise to perform the duty imposed upon him by the acceptance of the assignment must be limited to the time Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 391 while he holds the estate under the assignment, and while, by virtue of his privity of estate with the lessor, he is liable to him for the performance of the covenants. In other words, the implied promise cannot include the payment of any sums, except those which as as- signee he assumes, and for which, when he assigns the lease, he is no longer liable to the lessee. Wolveridge v. Steward, 1 Cr. & M. 644, The presiding judge, therefore, rightly ruled that the defendant was only liable to the plaintiff for the tax of 1872. It is immaterial that the assignment by the defendant to Carney was not recorded. The provisions of the Gen. Sts. c. 89, § 3, have no application here; and the failure of Carney to record the assign- ment cannot affect the rights or liability of the defendant in this case. See Parsons v. -Spaulding, 130 Mass. 83. Exceptions overruled.*" MASCAL'S CASE. (Court of Common Bench, 15S7. 1 Leonard, 62.) Mascal leased a house to A. for years by indenture, by which A. covenanted with Mascal to repair the house leased, and that it should be lawful for Mascal his heirs and assigns to enter into the house to see in what plight for matter of reparation the said house stood, and if upon any such view, any default should be found in the not repair- ing of it, and thereof warning be given to A. his executors, &c. then within four months after such warning, such default should be amend- ed : the house in the default of the lessee became ruinous : Mascal granted the reversion over in fee to one Carre, who upon view of the 4 See Burnett v. Lynch, 5 B. & C. 589 (1826); Bender v. George, 92 Pa. 36 (1879) ; State v. Martin, 14 Lea (Tenn.) 92. 52 Am. Rep. 167 (18S4). Com- pare Bonner v. Tottenham Building Soc, [1S99] 1 Q. B. 161 (1898). A. leased premises to X. by a long term lease, X. covenanting to pay the rent. A. assigned, the reversion to B. X. assigned the lease to Y. by writ- ten assignment under seal "in consideration of the assumption by the said" Y. "of all the obligations and liabilities of the lessee arising under said lease." B. dealt with Y. as his tenant. Y. assigned the lease to Z., but con- tinued to pay the rent for a time ; he later ceased to pay ; Z. made no pay- ments. In an action of covenant by B. against X., Y., and Z., the trial court held that Y. and Z. were both personally liable for the rent accruing sub- sequent to the assignment by Y. to Z. Y. appealed. In affirming the deci- Bion of the lower court with respect to the right of B. (appellee) against Y. (appellant) and Z. (McGinniss), the court said: "The appellant received a conveyance of the leasehold estate, received pos- session of such estate, and assumed to pay the rent. There was thereby established between the appellant and the appellee a privity of contract and a privity of estate. That privity of estate was terminated by the conveyance and transfer of possession of the demised premises to McGinniss. But the privity of contract — the contractual liability of the appellant — was not thu.s terminated. No valid reason is apparent to us why the appePant should not pty the rent he assumed." Springer v. De Wolf, 194 111. 224, 62 N. E. 542. 56 L. R. A. 465, 88 Am. St. Rep. 1.55 (1901). Compare Seventy-Eighth Street & Broadway Co. v. Purcell Mfg. Co., 92 Misc. Rep. 178, 155 N. Y. Supp. 259 (1915). 392 RIGHTS IN THE LAND OF ANOTHER (Part 2 house gave warning to A. of the default, &c. which is not repayred, upon which Carre, as assignee of Mascal, brought an action of cove- nant against A. It was moved by Fenner, Serjeant, that the action did not lye, because the house became ruinous before his interest in the reversion; but the opinion of the whole Court was against him, for that the action is not conceived upon the ruinous estate of the house, or for the committing of waste, but for the not repayring of it within the time appointed by the covenant, after the warning, so as it is not material within what time the house became ruinous, but within what time the warning was given, and the default of the reparation did happen.** STODDARD v. EMERY. (Supreme Court of Pennsylvania, 1889. 128 Pa. 436, 18 Atl. 339.) [On April 26, 1876, Stoddard leased land to Emery, the latter cove- nanting to sink one oil well within four months, and to sink a second well if the flow from the first one should be large enough to justify it. The first well was sunk within the time provided. On January 7, 1878, Stoddard conveyed his reversion to James. The second well Avas sunk in 1881. This was an action of covenant, brought by Stoddard for not sinking the second well within a reasonable time. The lower court ruled that the plaintiff was limited to showing that there was an un- reasonable delay before January 7, 1878. The plaintiff excepted. Judgment for the defendant, and plaintiff appeals.] GrSEn, J." * * * We agree with the learned court below that there was no breach of the lease prior to the sale of the reversion by Stoddard, in January, 1878, and that being so there was no right of action by Stoddard. If there were any breaches after the purchase of Janes, there would be no right of action in Stoddard, and there could be no recovery in an action brought in his name. * * * Judgment affirmed.*' 41 See Vivian v. Champion, 2 Ld. Raym. 112.5 (1705). A. leased a farm to X., who covenanted not to cut the wood. A. assigned the reversion to B. X. cut and carried away part of the wood. B. assign- ed the reversion to C. Held, B. may maintain an action of covenant against X. for the wood cut prior to the assignment to C. Beach v. Barons, 13 Barb. (N. Y.) 305 (1850). 42 The statement of facts and part of the opinion are omitted. 48 See Beely v. Parry, 3 Lev. 154 (1684) ; Hayes v. New York Gold Min. Co. of Colorado. 2 Colo. 273 (1874). Compare Payne v. James, 42 La. Ann. 230, 7 South. 457 (1890). Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 393 WILLS et al. v. SUMMERS. (Supreme Court of Minnesota, 1890. 45 Minn. 90, 47 N. W. 463.) Vanderburgh, J, The plaintiffs, owners of the real estate in con- troversy, leased the same to certain parties, and thereafter, on the 2d day of Februar)', 1885, the defendant became the assignee of the lease, and entered into possession of the leased premises thereunder, subject to the covenants and stipulations therein, and has since continued in such possession, and paid the rent agreed on. The lease contained a covenant requiring the lessees "to pay all rates, taxes, or assessments on the premises during the continuance of the lease." On the 1st day of January, 1889, the premises were subject to the payment of $501.74 taxes, which became payable on the last-mentioned date. On the 21st day of February, 1889, the plaintiffs, lessors, granted their entire in- terest and estate in the premises to one Murphy, by deed of general warranty, with covenant against incumbrances; and on the 26th day of March, 1889, the plaintiffs paid and satisfied the taxes above refer- red to in full. And thereafter, in December, 1889, they brought this action against the defendant assignee in possession, to recover the amount so paid. The trial court held that the action would not lie, be- cause the estate had passed to Murphy, and plaintiffs had no longer any title or interest therein. Conceding that, in the absence of more specific language in the cove- nant to pay the taxes, the tenant was entitled to delay the payment thereof until they became "delinquent" under the statute, this is no rea- son why the plaintiffs might not pay them sooner, because the covenant ran to them as owners, and it was immaterial to defendant whether he paid the same to plaintiffs or the treasurer ; and if the plaintiffs had a right to pay the taxes, or were bound to do so, by reason of their re- lation to tlie leasehold estate, they would be entitled to recover them back of defendant, in case of his ultimate default. The respondent, however, does not complain in this court that the taxes were prema- turely paid by the plaintiffs, but contends that any payment by them after the sale to Murphy was intermeddling, and, in contemplation of law, a voluntary payment of the debt of another. To this proposition .we are unable to assent. It is not disputed that the plaintiffs might have paid the taxes after January 1st, and prior to the sale to Murphy, and subsequently recov- ered the amount of the defendant; but it is argued that, upon their conveyance to Murphy, this right ceased, for the reason, before stated, that all their interest in the leased property had passed to him. If Murphy had assumed the payment of the taxes, and discharged the plaintiffs from liability, by reason of the lien thereof, or had taken a meie quitclaini deed, an altogether different case would have been pre- sented. But plaintiffs' relations to the property continued, as respects their liability to pay the taxes, by virtue of the covenant in their deed, 394 RIGHTS IN THE LAND OF ANOTHER (Part 2 and the statute making the same a lien as against the grantors from January 1, 1889. It was still their right and duty to pay the same as between them and their grantee, Murphy, though the primary Hability to pay them rested upon the defendant, arising from his privity of es- tate created by the assignment of the .lease which made the covenant to pay the taxes binding on him. Gas Co. v. Johnson, 123 Pa. 576, 16 Atl. 799, 10 Am. St. Rep. 553, and notes. Plaintiffs were not, then, mere volunteers or intermeddlers in discharging the incumbrances on the leased premises by the payment of the taxes, which, as between them and Murphy, it was their duty to do immediately upon the deliv- ery of the deed, as the covenant against incumbrances is in praesenti. Where a lessee assigns a lease containing a covenant to pay taxes which the assignee becomes liable to pay by virtue of the assignment, and the former is afterwards obliged to pay the same, because of his privity of contract with the lessor, he may recover the same of the as- signee, though his own interest in the estate has entirely ceased. Mason V. Smith, 131 Mass. 511. Plaintiffs' right of action may be sustained under the equitable doc- trine of subrogation, which is now recognized at law, as well as in equity, and which compels the ultimate payment of a debt by one who, in justice and good conscience, ought to pay it. Thus, it is admitted that defendant would be bound to pay these taxes to Murphy, but plain- tiffs were also liable to him in praesenti upon their covenant, and as the previous owners of the property, so that upon the payment thereof by the latter, a right to recover the amount thereof ultimately from the defendant accrued to the plaintiff's. Under the terms of the lease, we are of the opinion that the cove- nant to pay the taxes would be satisfied by the payment thereof at any time before they became delinquent, June 1, 1889; but this is not ma- terial in this action, except as to the question of interest, because it was not commenced till long afterwards. The item of $72.83 paid by plain- tiffs in October, 1889, had not become due or payable when this action was brought, and cannot be recovered herein. The order denying a new trial is reversed, and the case will be re- manded, with directions to render judgment for the plaintiffs for the sum of $501.74, with interest from June 1, 1889. Ch, 4) LEGAL ENFORCEMENT OF COVENANTS 395 (b) Assignment op Part Interests CONGHAM V. KING. (Court of King's Bench, 1631. Cro. Car. 221.) Covenant against the defendant as assignee of an assignee, for not repairing of an house let inter alia. The defendant takes issue upon the mean assignment of the lease laid in the declaration. Wright, after verdict for the plaintiff, took divers exceptions to the declaration in arrest of judgment, that tlie plaintiff shows the lease to be to J. S. and by him devised to J. D. and made J. N. his executor, and that he virtute legationis entered and assigned to W. S. and he entered and assigned one house, parcel of the premises, to the defend- ant, who entered and made spoil in an hall and chamber, parcel of the demised premises, &c. * * * The next exception alleged was, that the defendant is but assignee of parcel of the things demised ; and then he is not chargeable with this covenant, no more than the assignee of parcel shall be charged in debt for the rent; but the action lies against the first lessee, as it is held Walker's case, 3 Co. 23. Sed non allocatur; for this covenant is dividable, and follows the land, with which the defendant, as assignee, is chargeable by the common law, or by the statute of 32 Hen. 8, c. 37. Whereupon it was adjudged for the plaintiff.** HOLFORD V. HATCH. (Court of King's Bencli, 1779. 1 Doug. 1S3.) This was an action of covenant, for rent in arrear, brought against the defendant as assignee of one Saunders. The declaration stated, (in the common form,) that the plaintiff demised to Saunders for seven years, by virtue whereof he entered and was possessed, and that after- wards, all the estate, right, title, and interest, of Saunders, in the prem- ises, came to the defendant, by assignment thereof, by virtue whereof he entered and was possessed, and that, after the assignment, rent had become due, which the defendant had not paid. The defendant plead- ed, that all the estate, right, title, and interest, of Saunders in the prem- ises, did not come to him by assignment thereof in manner and form as the plaintiff had alleged. On the trial, it appeared, that the defendant was in possession of tlie premises during the time when the rent in arrear became due, but that, by the deed under which he held, they were conveyed to him, by Saun- ders, for a day, or some days less than the original term, and that he had actually surrendered them before the action was brought. Some re- 4* Part of the opinion is omitted. c?-^ 396 RIGHTS IN THE LAND OF ANOTHER (Part 2 ceipts also were produced for rent which had been paid by the defend- ant to the plaintiff, and which run thus : "Received of Saunders by the hands of Hatch." Upon this evidence, it was contended, at the trial, which came on be- fore Lord Mansfield, at the Sittings for Middlesex, in last Hilary Term ; 1. That, in point of law, a person holding of the first lessee, by an under-lease, like the present, is not liable to be sued by the original lessor, on the covenant for rent contained in the original lease ; 2. That the fact put in issue on the record, viz. that all the estate, &c. of Saun- ders came to the defendant, was not proved. A verdict was found for the plaintiff, but Lord Mansfield saved the points made by the defendant's counsel, for the opinion of the court. Accordingly, in Hilary Term, (Thursday, the 4th of February,) Daven- port obtained a rule to shew cause why the verdict should not be set aside, and a nonsuit entered. He cited Poultney v. Holmes, M. 7 G. 3. at N. Pr. before Pratt, Ch. Just. 1 Str. 405, Crusoe v. Bugby, C. B. T. 11 G. 3, 3 Wils. 234, since reported 2 Blackst. 766, and Hare v. Cator, B. R. E. 18 G. 3 [f 58]. Vide infra, note (21), p. 184. Lord Mansfield. It is fit that we should look into the authorities ; therefore let the case stand over. The court were understood to be for some time divided, and judg- ment was not given till this day, when Lord Mansfield delivered their unanimous opinion, as follows : Lord Mansfield. This is an action of covenant by a lessor against an under-lessee, and the single question is, whether the action can be maintained against him, as being, substantially, an assignee. For some time, we had great doubts ; we have bestowed a great deal of consid- eration on the subject, and looked fully into the books, and it is clear- ly settled, (and is agreeable to the text of Littlefton,) that the action can- not be maintained, unless against an assignee of the whole term. The rule made absolute,** EARL OF DERBY v. TAYLOR and another, Executors of Twist. (Court of King's Bench, 1801. 1 East, 502.) This was an action for a breach of covenant, wherein the declara- tion stated, that the late Earl of Derby, whose grandson and heir the plaintiff is, being seised in fee of a messuage and other premises there- in described, by indenture dated 14th December, 1756, made between the late earl of the one part, and Thomas Taylor of the other part, *bA. leased a house and land to X. for 30 years by deed at a rental of £150 per annum, and covenanted to supply wood to repair the house. A. as- signed his reversion to B. X. assigned to Y. for 30 years all his interest in that part of the premises including the house at an annual rental of £30 payable to X. The lease contained other covenants varying from those of the head lease. B. did not supply wood to repair the house. Held, Y. may bring covenant against B. Palmer v. Edwards, 1 Doug. 186 (1783). J,4^^^ Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 397 demised to Taylor, his heirs and assigns, the said premises, &c. for the Hves of three persons therein named, all of whom are now dead. That Taylor covenanted for himself, his heirs, and assigns, with the late earl, his heirs and assigns, to repair and keep in repair the prem- ises demised during the said term, and at the end of the term to deliv- er them up so repaired to the late earl, his heirs and assigns. The dec- laration further stated the entry and seisin of Taylor the lessee, the death of the late earl, and the descent of the reversion to the plaintiff. And that afterwards all the estate, right, title and interest, property, claim and demand whatsoever, of T. Taylor, of and in the demised premises with the appurtenances came to and vested in J. Twist by assignment; by virtue whereof Twist entered into and became seised of the demised premises for the remainder of the term demised to Tay- lor. The declaration further stated the death of the three persons for whose lives the estate was demised ; and averred that Twist suf- fered the premises to be out of repair, and that at the end of the term they were delivered up to the plaintiff without being repaired. The defendants pleaded several pleas, but the only material one was that which denied that all the estate, right, title and interest, property, claim and demand whatsoever of T. Taylor, of and in the demised premises, came to and vested in J. Twist by assignment thereof, in manner and form as alleged in the declaration. The indenture [of assignment] in question, dated 24th of January, 30 Geo. 2, between T. Taylor and T. Harrocks of the one part, and James Twist of the other part, witnessed that in consideration of 2451. Taylor and Harrocks hath demised, granted, bargained, sold, assigned, transferred, and set over, and by these presents doth demise, &c. to Twist, his executors, administrators, and assigns, all that messuage and tenement, &c. held by lease, under Edward Earl of Derby, and now in possession of Twist, his assignees, &c. and all the estate, right, title, interest, goodwill, and tenant right, sole power of leasing or re- newing leases of the said premises, property, benefit, advantage, claim and demand whatsoever, both at law and in equity, of them the said Taylor and Harrocks, of, in, or to the same, every or any part or par- cel thereof, to have and to hold the said messuage, tenement, &c. and all and singular other the premises abovementioned, and intended to be hereby assigned, with their appurtenances ; unto Twist, his execu- tors, administrators, and assigns, from the day next before the day of the date of these presents, for and during and unto the full end and term of ninety-nine years from thence next ensuing and following, and fully to be complete and ended, if Harrocks, J. Twist, and T. Twist, the three lives in the indenture of lease thereof named, or any of them, should so long live : and that in as large, ample, and beneficial way, manner and form, to all intents, constructions and purposes, as they the said T. Taylor and T. Harrocks, their heirs, executors, or admin- istrators, or any of them, can, may, might, or could, have held and enjoyed the same if these presents had not been made; yielding and 398 RIGHTS IN THE LAND OF ANOTHER (Part 2 paying therefore yearly during the said term unto the lord and owner of the reversion and inheritance of the said hereby assigned premises the yearly rent of 5s. 6d., &c. Then followed the usual covenants for quiet enjoyment, for freedom from other incumbrances than the rent, and for further assurance ; executed by the proper parties. Lord Kenyon, C. J.*^ * * * /pj^g question at present before the Court is as to what estate passed to Twist under the indenture? It cannot be said that a term of 99 years is co-extensive in law with an estate of freehold: and here are no words by which the freehold of which the original lessees were seised was conveyed to the defendant's testator. Then how can we say that the whole interest in the lease passed to him. The conveyance of all the grantor's "estate, right, title interest," &c. to a man and his executors for years cannot convey a freehold. Such words mean no more than all their interest, &c. in the legal estate thereby granted ; and we cannot give those words a larger operation than the parties themselves have declared they should have. Per Curiam. Postea to the Defendant. McNEIL V. KENDALL et al. AMES V. SAME. (Supreme Judicial Court of Massachusetts, ISSO. 12S Mass. 245, 35 Am. Rep. 373.) Endicott, J. In the first of these cases McNeil, the plaintiff, as assignee under a levy of sale of the leasehold estates of Samuel T. Ames, created under cerfain indentures from Lucy Ann Harris, seeks to recover rent from the defendants, to whom Samuel T. Ames had leased, prior to the sale, a portion of the premises included in the in- dentures. In the second case James B. Ames, the plaintiff, contends that the lease from Samuel T. Ames to the defendants operated in law as an assignment of his entire term in the premises described therein, and not as an underlease; and that there was no estate or reversion in those premises remaining in Samuel T. Ames which could be levied upon and sold. Under an assignment, therefore, after the levy and sale, made to him by Samuel T. Ames of the rent resei-ved in the de- fendant's lease, James B. Ames seeks to recover the same from the defendants. The cases were argued together as one case, and will be so consid- ered by the court in determining which plaintiff is entitled to recover the rent from the defendants. It appears from the record in these cases, that Lucy Ann Harris was, in 1866, the owner in fee of two estates in Boston, one on Sum- mer Street, and the other on Lincoln Street. By an indenture dated *6 The statement of facts is abridged and part of the opinion is omitted. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 399 in September of that year, she demised to Samuel T. Ames, for the term of twenty years from January 1, 1867, the estate on Summer Street; and, at the same time, by another indenture, she demised to him for the same term the estate on Lincoln Street, which was bound- ed in part by the rear line of the estate on Summer Street. It is un- necessary to recite these indentures at length ; with the exception of the amount of rent reserved, and certain provisions in regard to the removal and erection of buildings, they do not differ materially. Un- der the first named, the lessee was bound by his covenants to take down the building standing on the estate on Summer Street, and to erect thereoh a good and substantial warehouse, of not less than a certain value, and to keep the same in repair, and insured for the benefit of the lessor. Under the second, he had the right to take down the build- ings on the estate on Lincoln Street, and, if he did so, he was also re- quired to build thereon a good and substantial warehouse. It was stipulated in this indenture that the lessee should keep the buildings standing thereon, or such as he might erect in their place, in good re- pair. Under these indentures, which were duly recorded, Samuel T. Ames went into possession of the whole estate. The city of Boston, in the exercise of the right of eminent domain, took a portion of each lot for the purpose of widening the street on which it fronted, and laid out the same as a highway before any of the instruments were executed which are the subject of this controversy. Under the powers and in accordance with the covenants contained in these indentures, Samuel T. Ames took down all the old buildings on the demised premises, and, having full power and control over the same, treated them as one estate, and erected two warehouses thereon, obliterating the old lines of division. One warehouse was built on Summer Street, which covered all the land included in the first in- denture, excepting that which was taken for the highway, and also covered a portion of the rear of the land demised by the second inden- ture. It was constructed of brick and stone and was four stories high. The other was built on Lincoln Street, as widened, of brick and stone, two stories high, and covered a portion of the land described in the second indenture. A space or area was left open between the two buildings, and a passageway was constructed five feet wide and plank- ed, leading from Lincoln Street on the southerly side of the premises, in a direct line, under the last-named building, and across the area, to a door in the rear part of the building fronting on Summer Street. Each building had windows opening upon the area, and the building on Summer Street had windows overlooking the building on Lincoln Street. It is stated in the defendants' bill of exceptions, in the first case, that this passageway was left, constructed and designed for the use of the building on Summer Street, in connection with the door in the rear of the same, and was the only means of access from the high- way to the area, and also to the door fronting thereon in the rear of the building on Lincoln Street. 400 RIGHTS IN THE LAND OF ANOTHER (Part 2 In July, 1873, Samuel T. Ames, by an indenture duly recorded, leas- ed to the defendants for the remainder of his term "the store and warehouse Nos. 119 and 121 on Summer Street in Boston," giving no other description of the premises, and making no allusion to the area or the passageway in the rear, except in a clause which recites that "it is understood that the rear building on Lincoln Street shall not be carried up any higher, so as to obstruct the light during the continu- ance of this lease. Also agreed that the party occupying the small building on Lincoln Street shall have a right through the passageway." This lease is in the common form, and contains the provisions, that the lessor shall rebuild in case of fire, and remit during the time 5t fair proportion of rent; that the lessees shall pay the rent reserved and taxes, and deliver up the premises at the end of the term, and not make or suffer any waste; and that the lessor may enter to view and make improvements, and may expel the lessees if they fail to pay rent and taxes, or make or suffer any strip or waste. Whatever may be the legal effect of this indenture, it is evident that the parties contemplated only a sub-lease of a portion of the whole estate, as improved by Samuel T. Ames. Before giving this lease, Samuel T. Ames, in May, 1873, demised, by an indenture to H. P. Bambauer for the remainder of his term, "the two-story building, No. 2 Lincoln Street, in Boston," giving no other description, and not alluding to the area, but referring to the passage- way in these words : "Passageway partly under the building is not included in this lease." This lease was surrendered in August, 1873, and at the same time Samuel T. Ames executed another lease of the same premises for the same term to Jacob Bambauer, which contains the same provision in regard to the passageway. Neither of these leases was ever recorded. The last was assigned by Samuel T. Ames to the plaintiff, McNeil, after he had purchased the leasehold interest of Ames in the Lincoln Street estate, which was sold at the sheriff's sale. By neither of these indentures did Samuel T. Ames convey the land included within the area or the passageway. It is clearly to be implied from the language of the lease to the defendants, taken in connection with the fact that the passageway was then laid out from Lincoln Street to the door in the rear of the defendants' premises, that a right in that passageway passed by the indenture to the defendants in com- mon with Samuel T. Ames and the occupants of the other building. It is also clear that the defendants acquired an easement for the light afforded to their building by the area, under the provision that the building on Lincoln Street should not be "carried up higher so as to obstruct the light during the continuance of this lease." These easements thus granted to the defendants, in the land not conveyed in either indenture and in the land occupied by the other building, consti- tuted a portion of the premises demised to the defendants to be enjoyed Ch. 4) LKGAL ENFORCEMENT OF COVENANTS 401 in common with Samuel T. Ames, and such other persons as might oc- cupy the building on Lincoln Street. It was in this condition of the property, that all the right, title and interest of Samuel "T. Ames, in the two estates, held by him under the two indentures from Lucy Ann Harris, were seized and sold, at a sheriff's sale in November 1875, upon an execution issued against him in favor of the Lancaster National Bank. The plaintiff, McNeil, pur- chased the leasehold estate fronting on Summer Street, which was duly conveyed to him by the sheriff. One E. K. Harris purchased the oth- er, and, having received a deed of the same from the sheriff, conveyed his interest therein to McNeil, who thus became assignee in law of the entire interest of Samuel T. Ames in the whole estate, to the same extent as if Ames had himself transferred all his leasehold interests therein. Sanders v. Partridge, 108 Mass. 556, 558. It was not con- tended at the argument that these sales were in any respect irregular or invalid. There is no question that some portion of the leasehold estates of Samuel T. Ames in the premises passed to McNeil by the levy and sale. The lease to Jacob Bambauer was not recorded, and cannot be treated as valid against the levy; and the subsequent assignment of it to McNeil cannot in any way operate to his prejudice. That portion of the premises therefore passed to him, as well as the area and passage- way, subject to the defendants' easements therein; together with such interests and rights of reversion as Samuel T. Ames had in the strips of land taken for highway. Whether the remaining premises passed to him depends upon the question, whether the defendants hold, as as- signees of a part of the premises for the whole term, or as sub-lessees. Before dealing with that question, it is proper to allude to some dif- ficulties which might have arisen on this state of facts. In improving the property, Samuel T. Ames disregarded the lines of division, as set out in the two indentures from Lucy Ann Harris, and erected the building on Summer Street partly on land included in the first, and partly on land included in the second indenture; and, in leasing this building to the defendants, he attached to the whole estate thus con- veyed certain easements in the other land included in the second in- denture. In selling his leasehold estates under both indentures, of course they must be sold separately, and if they had been bought and were now held by different persons, each purchaser would have ac- quired only a part of the building occupied by the defendants; and a very serious question would have arisen, in regard to their respective rights, as against the defendants, who hold the whole building, and the easements connected therewith, as one estate. But this question is not before us, for McNeil holds whatever passed by the sale of both. Nor is it denied that Samuel T. Ames had the right thus to disregard the old lines of division in improving the property, as one estate; and all parties claim interests under him in the entire premises occu- BiG. Rights — 26 402 RIGHTS IN THE LAND OF ANOTHER (Part 2 pied by the defendants. As between them, therefore, we must assume that it is one estate, irrespective of all lines of division and of the fact that Samuel T. Ames obtained his interest by separate and distinct indentures; and the cases have been argued before us on this "as- sumption. It is unnecessary to cite authorities to the proposition, that to con- stitute an assignment by a lessee of the whole, or of a specific part, of his leasehold estate, the entire interest of the lessee in all the prem- ises included in the assignment must pass to the assignee. Even if the instrument may be in form a sub-lease, yet if it conveys the whole es- tate it will operate as an assignment. In deciding, therefore, wheth- er this lease to the defendants is in law an assignment, we must ascer- tain from all its provisions, as applied to the subject-matter, whether Samuel T. Ames conveyed his entire term and interest in the prem- ises, which the defendants have the right to occupy and enjoy under their lease from him. What then passed to the defendants from Samuel T. Ames? The land under the building, the building itself, the right to use the pas- sageway in the rear extending to Lincoln Street, the right to enjoy the light in the area, secured by the provision that the space above the two-story building on Lincoln Street shall remain open and unob- structed. These were not mere personal rights, but easements ap- purtenant to and a part of the premises conveyed, and necessary for the complete enjoyment of that portion which opened on the area. Dennis v. Wilson, 107 Mass. 591; P,eck v. Conway, 119 Mass. 546. And if Samuel T. Ames or those claiming under him had raised the building on Lincoln Street higher than two stories, the defendants would have been entitled to relief in equity to enforce the restriction. Parker v. Nightingale, 6 Allen, 341, 83 Am. Dec. 632. The defendants thus acquired the whole interest in the warehouse on Summer Street and the land on which it stood, and subordinate and limited interests in all the other land between the warehouse and Lincoln Street. These cannot be separated or divided, but form one estate, carved out of the whole leasehold estate of Samuel T. Ames, acquired from Lucy Ann Harris. It is plain, therefore, that Samuel T. Ames, while he conveyed to the defendants his whole term for years, did not convey his whole in- terest in the premises, which the defendants had the right to occupy and enjoy under their lease; but retained in himself all the land, not covered by the warehouse on Summer Street, subject to the easements granted to the defendants. The interest which he conveyed to the de- fendants was a portion of the entire estate, and not his whole estate in a portion of the same. "For there is a diversity between the whole estate in part, and part of the estate in the whole, or of any part." Co. Lit. 3AND OF ANOTHER (Part 2 We do not argue from the rule that new and unusual incidents are not to be annexed to land, because that rule seems to belong rather to the law of easements and the like than to the class under discussion. See Norcross v. James, 140 Mass. 188, 192, 2 N. E. 946. It is true, no doubt, that the heirs are the only persons interested in the rent, and therefore are the only persons who suffer substantial dam- ages by a failure to pay it. We assume that, if the administrators re- cover substantial damages, they will receive them as trustees for the heirs. We agree, as suggested by Lord EHenborough in a different case, that a recovery by them would bar the heirs from recovering at all. But we do not agree to his further suggestion that they could re- cover, at most, but nominal damages. Kingdon v. Nottle, 1 Maule & S. 355, 362. At the present day a trustee may recover damages to the extent of the interest of his cestui que trust. Drummond v. Crane, 159 Mass. 577, 580, 35 N. E. 90, 23 L. R. A. 707, 38 Am. St. Rep. 460; Lloyd's v. Hamper, 16 Ch. Div. 290. Executors or adminis- trators represent the person of the deceased "more actually" than do the heirs. Co. Litt. 209a; Bullard v. Moor, 158 Mass. 418, 425, 33 N. E. 928. Unless we are prepared to hold that assigns could sue in their own names upon this contract, we ought to adhere to the gen- eral rule, and allow the administrators to maintain the action. For the reasons which we have given, we are of opinion that the plaintiffs can maintain this suit. In Harbeck v. Sylvester, 13 Wend. (N. Y.) 608, 609, not noticed in Allen V. Culver, an opposite decision was reached from that in Allen v. Culver. See, also, as to collateral covenants, Raymond v. Fitch, 2 Cromp., M. & R. 588, 599, 5 Tyrw. 985, 996. Judgment for the plaintiffs.®^ 65 See Webb v. Russell, 3 T. R. 393 (1789), post, p. 566. A., owning land in fee, granted to X. for a term of years the right to dig clay in a specified part of the land. X. covenanted with A. and his assigns, inter alia, to pay compensation for all inclosed lands in the said specified part that should be damaged by the digging and that he would keep the works; in repair and deliver them up in good condition at the end of the term. A. then conveyed to B. all his estate. Held, B. may maintain an ac- tion against X. for breaches of the covenants occurring after the convey- . ance by A. to B. ; the St. 32 H. 8. c. 34, covering incorporeal as well as corporeal interests. Martyn v. Williams, 1 H. & N. S17 (1857). Ace: Nor- val V. Pascoe. 34 L. J. N. S. Ch. 82 (1S64) ; Hastings v. R. R., [1898] 2 Ch. 674 ; Louisville & N. R. Co. v. Illinois Cent. R. Co., 174 111. 448, 51 N. E. 824 (1898); Jordan v. Indianapolis Water Co., 159 Ind. 337, 64 N. E. 680 (1902). Sre Portmore v. Bunn, 1 B. & C. 694 (1823). A. "leased" to X. the privilege of sinking oil and gas wells in A.'s land and transporting thence the oil and gas ; X. covenanting to supply gas to A. for the use of A.'s house standing on the land. A. assigned all his interest to B., and X. to Y. Y. did not furnish gas as stipulated. Held, B. has a cause of action against Y. Indiana Natural Gas & Oil Co. v. Hinton, 159 Ind. 398, 64 N, E. 224 (1902). Accord, where B.'s house is situated upon another tract of laud never owned bv A. Harbert v. Hope Natural Gas Co., 76 \V. Va. 207, 84 S. E. 770, L. R. A. 1915E, 570 (1915). Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 427 SECTION 2.— AS BETWEEN OWNERS IN FEE I. Agreements under Seal (A) Formalities PAKENHAM'S CASE. (Court of Common Pleas, 1368. Y. B. 42 Edw. Ill, 3, pi. 14.) One Lawrence Pakenham brought a writ of covenant as heir against a prior, and alleges by his writ that he does not keep a covenant made between one J., his ancestor, towit, the grandfather of the plaintiff, whose heir he is, and one of his predecessors, because the prior and the convent ought to sing every week in a chapel in his manor of K., for himself and his servants, etc. Belknap. The plaintiff and his servants are not living in the manor. Therefore judgment upon the writ. Cavendish. This goes to the action, therefore if you wish this for your answer, we desire an imparlance. Belknap. The deed which you have proffered states that he ought to sing for him and his servants and since he and his servants do not live in the manor, you cannot maintain this action. Cavendish. Then this goes to the action. Therefore if you wish to answer thus, we desire an imparlance. And then Belknap did not dare to demur, but said that the plaintiff had an older brother who was heir to the ancestor, to whom the ac- tion should be given, wherefore judgment, if you, who are the young- er son, and not the heir, ought to have an action. ' Cavendish. The plaintiff is tenant of the manor where the singing ought to be done ; in which case it is reasonable that the action should be maintained by him. Wherefore judgment, and we demand our damages. Belknap. And since you have brought your action as heir, and you have an older brother, judgment, if you have an action as heir, etc. Ad alium diem : Cavendish said that this same J., the great-grandfather of the plain- tiff enfeoffed one G. of M. of the same manor ; the said G. enfeoffed the plaintiff", and one Alice, his wife, of the same manor to them- selves and the heirs of their two bodies begotten, and for default of issue, the remainder to J. and his heirs. So the plaintiff is tenant of the manor, and the action belongs to no one else except him. Wherefore judgment, and we pray our damages. And we also say that since the feoffment, the singing has been done from 'time whereof memory is not to the contrary. 428 RIGHTS I-\ THE LAND OF ANOTHER (Part 2 Belknap. And since you have brought this action as heir, and yet it is not denied by you that there is a nearer heir to him who made the covenant, to whom the action should rather be given than to you, we consequently pray that you should be barred. Cavendish. And we, judgment; since we are tenant of the manor by purchase, and 'privy to the ancestor who made the covenant, and also the services have been done from time whereof memory is not to the contrary. Wherefore judgment. Belknap. Altho he is privy in blood, and altho he has bought the land, since he has brought this action as heir, and he is not heir, and the action of covenant is not given to anyone except to him who made the covenant or his heir, therefore we do not understand that action, etc. Finchden. I have seen this in terms adjudged here: That two jparceners made a division of the land between 'them, and the one par- cener niade a covenant with the other to acquit her and her heirs of a suit which was due from the land, and the parcener aliened the land to a stranger, and then the suit was in arrear, and the stranger brought a writ of covenant against the parcener to acquit him of the suit. And the writ > was maintained notwithstanding that he was a stranger to the covenant. And so here. Belknap. I admit it in your case because the acquittance fell Upon the land and not upon the person; and here the covenant is to the person. Finchden. And if you admit that this is law, then all the more strongly in the other case, for in the case that I mentioned of the suit, this was maintained, because he was tenant of the land, from which the suit M-as due, and so it is here, he is tenant of the manor where the chapel is, and it ought to be done in the chapel. Wherefore, etc. Wichingham. If the king grants warren to another, who is tenant of a manor, he shall have warren of all the manor, and if he aliens the manor, still the warren does not pass by the grant, because it is not appendant to the manor, and it seems no more so here, since the serv- ices are not appendant to the manor. Thorpe to Belknap. There are some covenants upon which no one shall have an action except the party to the covenant or his heir, and other covenants have inheritance in the land, so that he who has the land by alienation or in any other manner shall have an action of covenant: and when you say that he is not heir he is privy in blood. and may be heir; and so he is tenant of the land, and this is a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor : and also he has said that the services have been done from time whereof memory is not to the contrary, by which it is reasonable that this action should be maintained. Belknap. He never counted upon such a prescription, in his count. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 429 Thorpe. He did so count, and we remember it. And it was ad- journed. And it was said that if I lease land to a man for the term of his life rendering certain rent, and I grant the reversion of the same land to another and the tenant attorns, that the grantee shall have the rent notwithstanding that he has no specialty, and this was not denied, etc. MORSE V. ALDRICH et al. (Supreme Judicial Court of Massaoiusetts, 1837. 19 Pick. 449.) This was an action of covenant. The cause was tried before Put- nam, J. In 1794, Stephen Cook, the defendants' ancestor, conveyed to Wil- liam Hull, in fee, a tract of land in Watertown, containing about thirteen acres; with the privilege of using and improving the land and mill pond west of the same tract, for the purpose of fish ponds, baths, etc., within certain bounds described, including a portion of the grantor's mill pond; and the "full liberty of ingress, egress, and re- gress to and from any part of the said described land and water, to dig out and carry away the whole or any part of the soil, etc. ; to build such causeways and dams as may be necessary to divide the same into six separate and distinct fish ponds." Hull conveyed the same premises to the plaintiff. Afterward, in November, 1809, an agreement under seal was made by and between Cook and the plaintiff, in which, in consideration of the covenants on the part of the plaintiff, Cook covenants with the plaintiff, his heirs and assigns, "that he will draw off his said pond when thereto requested by said Morse, in the months of August and September, not exceeding six working days in the whole, in each year, for the purpose of giving said Morse an opportunity ot digging and carrying out mud, etc., as long as there may be mud in said pond, and no longer." It was upon this clause that the present action was brought. In the same agreement are other covenants, some concerning Morse's land and Cook's mill pond, and some concerning the dis- continuance and costs of certain actions then pending between Cook and Morse. Cook does not covenant, in express terms, for his heirs or assigns. It was contended by the plaintiff, that the covenant above recited was a covenant running with the land, and therefore binding upon the defendants, who derive their title to their estate as heirs of Cook, as to four fifths thereof, and as assignees by quitclaim, of one of his heirs, as to the other fifth. And this construction was supported at the trial, against the objection of the defendant. The plaintiff claimed the right to take the mud, etc., for the purpose of manuring his land. 4t^0 RIGHTS IN THE LAND OF ANOTHER (Part 2 The plaintiff requested the defendants to draw off the pond in Sep- tember, 1835, in order that he might get out tlie mud, but the de- fendants refused. * * * The questions reserved were, 1. Whether the covenant ran with the land, and was binding upon the defendants as the heirs of the cove- nantor; 2. Whether the privilege extended to the whole pond, or was restricted to the plaintiff's own land under the pond.®® Wilde, J., afterward drew up the opinion of the Court. The de- fendants are charged as the heirs of Stephen Cook, their ancestor, with the breach of a covenant made by him with the plaintiff, and the question submitted to the Court is, whether this covenant is such as is binding upon the heirs of the covenantor ? And the decision of this question depends on another, namely, whether the covenant is a real covenant, running with the land, which the defendants inherit from their ancestor, the covenantor ? It is generally true, as has been argued by the defendants' counsel, that, by the principles of the common law, the heir is not bound by the covenant of his ancestor, unless it be stipulated by the terms of the covenant, that it shall be performed by the heir ; and unless assets descend to him from his ancestor sufficient to answer the charge. Piatt on Cov. 449; Dyer, 14a, 23a; Barber v. Fox, 2 Saund. 136. If therefore the heir be not named in the covenant, it will be binding only on the covenantor, his executors and administrators, although the heir may take by descent from the covenantor assets sufficient to an- swer the claim. But this principle is not to be applied to real covenants running with the land granted or demised, and to which the covenants are attached for the purpose of securing to the one party the full benefit of the grant or demise, or to the other party the consideration on which the grant or demise was made. Such covenants are said to be inherent in the land, and will bind the heir or the assignee though not named. For as he is entitled to all the advantages arising from the grant or de- mise, it is but reasonable that he should sustain all such burdens as are annexed to the land. Piatt on Cov. 65. When a covenant is said to run with the land, it is obviously implied that he who holds the land, whether by descent from the covenantor, or by his express assignment, shall be bound by the covenant. The heir may be charged as an assignee, for he is an assignee in law, and .so an executor may be charged as the assignee of the testator. Deris- ley V. Custance, 4 T. R. 75 ; Jac. Law Diet. Assigns. And a devisee may be charged in the like manner, and is entitled to the benefit of any covenant running with the land. Kingdon v. Nottle, 4 Maule & Selw. 53. If then the covenant in question runs with the land, it is clear that the defendants are liable ; and it is immaterial whether the heirs and «6 The statement of facts is abridged. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS ' 431 assigns of the covenantor are named in the covenant, or not, quia transit terra cum onere. Bally v. Wells, 3 Wils. 29. To create a covenant vi'hich will run vi^ith the land, it is necessary that there should be a privity of estate between the covenantor and covenantee. Spencer's case, 5 Co. 16; Cole's case, Salk. 196; 3 Wils. 29; Webb v. Russell, 3 T. R. 40^; Keppell v. Bailey, 2 Mylne & Keen, 517; Kyryan v. Arthur,' 1 Bam. & Cressw. 410. In these cases, and in most of the cases on the same subject, the covenants were between lessors and lessees; but the same privity exists between the grantor and grantee, where a grant is made of any subortlinate interest in land ; the reversion or residue of the estate being reserved by the grantor, all covenants in support of the grant, or in relation to the beneficial enjoyment of it, are real covenants and will bind the assignee. This principle is decisive of the present action. It appears by the deed of Stephen Cook, the defendants' ancestor, to William Hull, that the former conveyed to the latter a tract of land adjoining the mill pond in question, "with the full and free privilege of using and im- proving the said mill pond within certain limits, with tlie full liberty of ingress and egress, to dig out and carry away the whole or any part of the soil in said pond, and to divide the same pond, as de- scribed in the deed, into six separate and distinct fish ponds." William Hull conveyed the premises to the plaintiff; after which, disputes arose between Cook and the plaintiff relative to their respec- tive rights, and for settling the same they entered into sundry cove- nants in relation to said grant, and qualifying the same; for the breach of one of which this action was brought. At the time these covenants were .made, there was a privity of estate between the parties in that part of the mill pond described in the grant to Hull. The cove- nant in question was made in reference to the plaintiff's right and in- terest under that grant, and was manifestly intended to confirm it, and to secure the plaintiff in the enjoyment thereof. This covenant there- fore, upon the principles stated, is a real covenant, running with the land, and is binding on the heirs of the covenantor. Judgment on the verdict.*'^ «7 In Gilmer v. Mobile & M. Ry. Co., 79 Ala. 5C9, 574 (5S Am. Rep. 623) (1S85) — for facts, see post, p. 452 — Somerville, J., said: "We think, in tlais case, the plaintiff retained an interest in the land conveyed to the assignor of the defendant, v>'hich was in the nature of an easement. He not only imposed a servitude upon tlie land, by a prohibition against the sale of ar- dent spirits on the premises, but retained the right to cultivate it under certain conditions and circumstances ; thus retaining an interest in the realty which would preserve the privity of estate in it and to which the covenant of defendant would attach, or become annexed." A. owned land with a water privilege appurtenant thereto. He conveyed part of the laud and a proportionate water privilege to X. The race through which the water ran went first to A.'s mill, then to X.'s. Five days after the conveyance, A. and X. covenanted that for the improving of the w-ater pow- er ttey should erect and maintain a dam and Hume; that X. would pay a proportionate part of the cost of erection and repairs. A. so built. X.'s interest became vested in Y. The dam needed repairs, which A. made. He 432 ' BIGHTS IX THE LAXD OF ANOTHER (Part 2 KURD V. CURTIS et al. (Supreme Judicial Court of Massachusetts, 1837. 19 Pick. 450.) Action of covenant. The declaration recites that in 1816, an inden- ture of four parts was made between. Simon Elliot and, Solomon Cur- tis, of the first part, Moses Grant, of the second, Hurd, the plaintiff, and Charles Bemis, of the third, and John Ware, of the fourth, own- ers of the mills and mill privileges on the upper dam of Newton Low- er Falls, to wit, two paper-mills and a saw-mill, with their mill privi- leges, on the Needham side of the river, and four paper-mills, one fulling-mill and one saw mill with tlieir mill privileges, on the Newton side, for the purpose of fixing the quantity of water which the several parties should have a right to draw at their respective mills and mill privileges, to regulate the use of the same, and for some other purposes therein set forth, did for themselves, their heirs, administrators and assigns, respectively covenant and agree to and with each other and their respective heirs, administrators and assigns, that the six paper- mills and the fulling-mill, should have the first and exclusive right to the use of the water, when no more ran to the paper mills and fulling- mill then erected and used, or that might be erected and used on the six paper-mill privileges and fulling-mill priyilege, than should be necessary to work them to advantage, and that the saw-mill owned by Hurd and Bemis should have the second right of water, or the first right to the overplus water; that all the paper-mills and the fulling- mill, then erected or that might be erected, should be altered and built with breast-wheels, each for a power equal to carrying two paper en- gines, in the paper-mills, and for a power equal to carrying a fulling and wool-carding machine, in the fulling-mill, that all the gates of all the mills or breast-wheels, should be drawn from the same level, and should be on a level with some permanent mark, to be made by consent of the' parties ; that the respective parties, and their heirs and assigns, should have a right to substitute and erect any other mills, works or brouglit action against Y. to recover his proportionate part of the cost thereof. Held, T. is not liable. The court said: "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. N.or 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. * * * As the grantors had no estate in the land owned by the defend- ant 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 Terra, 393 (1789)] and Stokes v. Russell. Id. G7S [1790] : Hurd V. Curtis, 19 Pick. [Mass.] 459 [1837]; Inhabitants of Plymouth v. Carver, 16 Pick. [IVIass.] 183 [1834]. See, also, an elaborate review of the question in 1 Smith's Lead. Cas., note to Spencer's case, 2 Wash. li. P. 16 Pick. 183 [1834]." Wheeler v. Schad. 7 Nev. 204, 210 (1871). See, also. Evansville & S. I. Traction Co. v. Evansville Belt R. Co., 44 Ind. App. 153, 87 N. E. 21 (1909). Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 433 machinery, in the place of those then erected, provided the new mills, works and machinery should require no greater power than the mills, works and machinery which the parties had a right to erect and use by virtue of the indenture. The declaration then avers that, at the time of the making of the indenture, the plaintiff was the owner of one un- divided half of the saw-mill on the Newton side, and of the first right to the overplus water, and that Bemis was the owner of the other un- divided half; that in 1817, Bemis conveyed his half to the plaintiff; that the two paper-mills and paper-mill privileges on the Newton side, which belonged to Elliot and Solomon Curtis, and the fulHng-mill, with the privilege of water to work a fulling and wool-carding machine, which belonged to Ware, have, since the making of the indenture, been cunveyed to the defendants, and these two paper-mill privileges and the fulling-mill privilege have, for eleven years last past, been used and occupied by the defendants ; that the defendants had due notice and full knowledge of the covenants, and agreements in the indenture set forth, on the part of Ware, Elliot and S. Curtis, and their respective heirs, administrators and assigns, to be kept and performed, and that the same are binding upon the defendants ; yet that the defendants have erected and used and now use, on their two paper-mill privileges, breast-wheels constructed for a power much more than equal to carry- ing two paper engines in each of their paper-mills, to wit, for a power equal to carrying six paper engines in each of their paper-mills, and have actually carried the same, and on the fuUing-mill privilege they have erected and used breast-wheels for a power more than equal to carr}'ing one fulling and wool-carding machine, to wit, for a power equal to carrying four fulling and wool-carding machines, and have actually carried the same ; and have also substituted and actually used in the place of the mills, works and machinery used on the two paper- mill privileges and the fulling-mill privilege, at the time of the making of the indenture, others which require a much greater power to carry the same than those which the defendants have a right to erect and use thereon by virtue of the indenture ; whereby the plaintiff has lost the use and benefit of his saw-mill and of his first right to the overplus water, as secured to him by the indenture. The defendants demurred. Wilde, J.,"* afterward drew up the opinion of the Court. The plaintiff claims damages of the defendants for a breach by them of certain covenants contained in an indenture made by and between the plaintiff and several other persons, who were owners of mills on Charles river, at Newton Lower Falls, so called, the object and intent of the indenture being to limit and regulate the use of the waters of the river at their respective mills. The defendants were not parties to the indenture, but they have since purchased of two of the covenantors «8 Part of the opinion is omitted. Big. Rights — 28 ■434 RIGHTS IN THE LAND OF ANOTHER (Part 2 their mills mentioned in the indenture, and the question is, whether they are bound as assignees by any of the covenants between the contracting parties, as is alleged in the declaration. To make a defendant liable to an action of covenant, there must be a privity between him and the plaintiff. Bally v. Wells, 3 Wils. 29. As there is no privity of contract between the plaintiff and the defend- ants, it follows that the defendants are not liable in this action, unless there is a privity of estate between them. Where such a privity ex- ists between the covenantor and the covenantee, and the covenantor assigns his estate, the privity thereby created between the assignee and the other contracting party, renders the former liable on all such cov- enants as regulate the mode of occupying the estate, and the like cove- nants concerning the same. And so if the covenantee assigns his es- tate, his assignee will have the benefit of similar covenants. These covenants are annexed to the land and run with it. But if there is no privity of estate between the contracting parties, the assignee will not be bound by, nor have the benefit of any covenants between the con- tracting parties, although they may relate to the land he takes by as- signment or purchase from one of the parties to the contract. In such a case, the covenants are personal and are collateral to the land. Covenants for title may be considered as an exception to the general rule, and the reason for the exception is very strong; for nothing can be more manifestly just, than that the party who loses his land by a defect of title, should have the benefit of the covenants which were intended to secure an indemnity for the loss. Such a covenant is de- pendent on the grant, is annexed to it, as part and parcel of the con- tract, and runs with the land in favor of the assigns of the grantee or covenantee ; but there is no exception to the rule, that no covenant will run with the land so as to bind the assignee to perform it, unless there were a privity of estate between the covenantor and covenantee. "It is not sufffcient," as Lord Kenyon remarks, in Webb v. Russell, 3 T. R. 402, "th^t 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." And so the law has been laid down in all the cases turning on this point, ever since Spencer's case. * * * Considering this principle as well established by the cases cited, and many others not adverted to, we are of opinion that this action cannot be maintained, as there was no privity of estate between the covenant- ing parties. Their estates were several, and there was no grant of any interest in the real estate of either party, to which the covenants could be annexed. The stipulations in the indenture cannot be con- strued as grants and covenants at the same time. If they were grants, then an action of covenant is not the proper remedy for the violation of them ; and if covenants, the assignee is not bound, for want of priv- ity of estate between the parties. Nor can one covenant be considered as a grant, and the other as a covenant, for the stipulations are mutual, and if one is to be construed Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 435 as a grant, the other should be construed in the same manner. If the stipulation that one party is to have the first preference of the use of the water for certain mills, is to be construed as a grant, the like stip- ulation, that the other party shall have the second preference, cannot consistently be construed as a covenant. And we ought not to give a strained construction to the indenture, for the purpose of extending the obligation of the contract to those who were not parties thereto. All the stipulations are covenants in form, were doubtless considered as such by the contracting parties, and must be so construed. As such they are mere personal covenants, according to all the authorities, and cannot be otherwise construed, without determining that all covenants concerning lands are real covenants, and binding on the assignee, how- ever remote; which certainly cannot be maintained, either upon au- thority or upon principle. Such an extension of the obligation of cov- enants might be productive of great mischief and confusion of rights and obligations of tlie purchasers and owners of real estate. Declaration adjudged insufficient.®* HORN v. MILLER et al. (Supreme Court of Pennsylvania, 1890. 136 Pa. 640, 20 Atl. 706, 9 L. K. A. 810.) Clark, J.^" This action was brought to recover damages for the diversion of the water of Wills creek, from the channel through which the plaintiff supplied the wheel of his grist-mill, near Hyndman, in Bedford county. It appears that the waters of Wills creek divide at a point about a mile above the plaintift*'s land, (whether from arti- ficial or natural causes does not appear,) and thence proceeds in two channels, one by the plaintiff's mill, and one by the defendants' mill, to a point a short distance below both mills, where a junction is again effected. It also appears that, in the year 1852, John Miller owned, the land now own6d by the defendants, and also the land adjoining, up- on which the stream divides, now owned by Jacob Evans, and that Enoch Cade was the owner of some 42 acres in two adjoining parcels, one containing 37 acres, more or less, part of the New Bridgeport tract, the other containing about 9 acres, known as the "Carpenter Lot." The appellant's contention is that the extent of his right is fixed by an agreement dated July 8, 1852, between John Miller and Enoch Cade, who were thus the predecessors in title to the respective premises in- volved in this controversy. In the year 1852. an action was pending in the court of common pleas of Bedford county in which Enoch Cade 09 See Lawrence v. Whitney, 115 N. Y. 410, 22 N. E. 174, 5 L. K. A. 417 (1889). 10 The statement of facts and part of the opiniou are omitted.. 436 RIGHTS IX THE LAN'D OF ANOTHER (Part 2 was plaintiff, and John Miller defendant. The action was brought to recover damages for the diversion by Miller of the water of Wills creek to his saw-mill, on one channel of the 'stream, to the prejudice of the right of Cade, who was the owner of a mill-site, on the other channel. The matters in controversy in this suit were settled accord- ing to the terms of the agreement mentioned. By this agreement it is provided, in substance, as follows: Cade, "his heirs, executors, ad- ministrators, or grantees," were conceded the right to use and enjoy the "water right or power" for two wheels, of any capacity and size he or they might see proper to construct, on either of the lots mentioned as belonging to him, "without let, hindrance, or diversion by said Mill- er, his heirs, executors, administrators, or grantees." When there was any surplus water, "over and above what may be needed for the full, free, and uninterrupted enjoyment of the two wheels," Miller was to have thereof what is sufficient for the full and free use of his saw- mill, "not requiring, using, or diverting more" than was necessary for that purpose. The rest of the water of said creek (and there was to be no unnecessary waste of the water by either party) was to be used and enjoyed by Cade. The concluding clause of the" contract is as fol- lows: "Said Miller is to have a flood-gate erected at the mouth of his head-race, and shut the same down tightly and securely when the said creek does not furnish more than enough for the said two wheels of said Cade, as aforesaid, and also at all times else when he is not using his own mill, and at all times is not to interfere in any way with said two wheels, as aforesaid, or the rest of said water, over and above his own, belonging to said Cade as aforesaid." There is no dispute as to the proper construction of this agreement. There is no ambiguity of expression, or uncertainty of meaning, al- leged, but the legal effect of it is what is most in dispute. It is cer- tainly clear that the suit pending in 1852 was for redress of injuries for an invasion of Cade's right as a riparian owner. The agreement was made in adjustment of Cade's right as such. Miller had no right by artificial means, to withdraw the water from Cade's use. He was restricted in his use and enjoyment of the water to the natural flow, and the foundation of the action was that the natural condition of the stream had been interfered with. The agreement was virtually a rec- ognition of the superior claim of Cade, for his right was distinctly rec- ognized and entitled to a preference, and was intended to be protected under the terms of the agreement. But the right which was thus pro- tected was nevertheless his right as a riparian owner, the extent of which, in view of all the facts and circumstances, was declared and es- tablished between the parties, their heirs, executors, administrators, and assigns, in the terms of the contract. The right to reasonable use of water in its natural flow, without any diversion of it from its ordinary channel by artificial means, is incidental to the ownership of the land through which it flows, and the extent to which it may be used and applied affects the use and Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 437 consequent value of the land itself. These covenants, therefore, relate to the land of the respective parties, or to the enjoyment of the land which ihey had in possession in fee, and were to be performed upon and in connection with its use and enjoyment. The present parties lit- igant have, in part at least, the same lands respectively to which the agreement relates, also in fee. The covenants were by the covenantors for the mutual benefit of themselves, their heirs, executors, administra- tors, or grantees, and the present owners, holding the land by convey- ance from the covenantors respectively, under the law of this state, are in privity of estate with them respectively. There was no privity of estate between the contracting parties, but the covenants being in adjustment of their respective rights to the use of the water of Wills creek, must be construed as a mutual benefit to, and not as a burden upon, the lands of either. We are of opinion, therefore, that the covenants in question run with the land, and define the rights not only of the parties thereto, but of their respective heirs and assigns. To the general rule that between the covenantor and covenantee there must be such privity of estate as would formerly have given rise to the rule of tenure, there are in this state, and perhaps in some of the other states, well-recognized excep- tions. Covenants capable of running with an assignment of a present estate in land may, it seems, have that capacity in certain cases, al- though no estate passes between the covenantor and covenantee at the time of covenant made. The obligation of contracts is, in general, limited to the parties making them. Where privity of contract is dispensed with, there must ordinarily be privity of estate; but justice sometimes even requires that the right to enjoy such contracts should extend to all who have a beneficial interest in their fulfillment, not to impose a burden upon an ignorant and innocent third person, but to enable purchasers of land to avail themselves of the benefit to which they are in justice entitled. The character of a covenant of this kind must depend upon the efifect of the entire agreement of which it is a part, and, where the benefit and the burden are so inseparably con- nected that each is necessary to the existence of the other, both must go together. The liability to the burden will be a necessary incident to the right to the benefit. * * * The effect of the agreement of 1852 was therefore to adjust and fix the rights of the parties thereto, and of their heirs and assigns. It is of no consequence that in the deeds constituting the chain of title from Cade to Horn no mention of this agreement is made, or of the rights accruing therefrom. The right passes' as appurtenant to the land. As the assignee of the land from Cade in fee, Horn has a right to enjoy the benefit of the contract which runs with it. This action is trespass upon the case, for diversion of the water to the prejudice of the plaintiff's rights as a riparian owner, which, in view of the alleged previous artificial diversion of the waters of the stream, were fixed and determined by the agreement of 1852. Trespass was the proper 138 RIGHTS IN THE LAND OF ANOTHER (Part 2 remedy. The agreement of 1852 established the rights of the parties, and the covenants were to that effect merely. The agreement was equivalent to a grant. Whatever may be conveyed by grant may be secured by covenant in this form. No one has ever supposed before, as was said in Lindeman v. Lindsey [69 Pa. 93, 8 Am. Rep. 219], su- pra, that upon a grant by deed of an easement or privilege upon land, or land covered by water, of one man to another, the remedy for dis- turbance of such eas'ement or privilege was an action of covenant up- on the deed. Take a common case of a grant or reservation of a right of way. Surely an action on the case may be maintained by the gran- tee for the obstruction of it, as well as against the grantor and those claiming under him as against strangers. The books are full of such cases, in which no such point was made. Citing Watson v, Bioren, 1 Serg. & R. 227, 7 Am. Dec. 617; Kirkham v. Sharp, 1 Whart. 333, 29 Am. Dec. 57 ; Jamison v. McCredy, 5 Watts & S. 129 ; Van Meter V. Hankinson, 6 Whart. 307 ; Ebner v. Stichter, 19 Pa. 19. It is true that Horn is the assignee of part only of the 44 acres held by Cade, to which this covenant is applied, but his rights as a riparian owner are in no way impaired by this. If after the water leaves the tail-race of his mill others avail themselves of its power, we cannot see how this can affect Miller. But non constat that any other wheel will be placed on any other part of Cade's tract. One thing is cer- tain, — that the mere apprehension of this cannot excuse Miller for diverting the water of the stream, in violation of the contract. It will be time enough to provide for this contingency when it happens. We are of the opinion that the learned judge of the court below erred in entering judgment for the defendant non obstante veredicto. The judgment is therefore reversed, and judgment is now entered on the verdict for the plaintiff for $52.''^ 71 See Shaber v. St. Paul Water Co., 30 Minn. 179. 14 N. W. 874 (18Sc!). In Hurxthal v. St. Lawrence Boom & Lumber Co., 53 W. Va. 87, 44 S. E. 520, 97 Am. St. Rep. 954 (1903), the defendant had covenanted with one B. H. to maintain for five years certain dams that supplied water for a racf that ran thru the lands of the defendant and of B. H. ; B. H. covenanting^ in return therefor to pay the defendant $75.00 a year, "and the said obli- gation fto pay $75.00] shall be * * * a covenant running with the land." An option was given to B. H. "his heirs, representatives, or assigns" ta extend the agreement by giving notice to the defendant. B. H.'s interest passed to J. H., who gave due notice of an extension of the agreement, and made one subsequent annual payment of the $75.00. The defendant then refused to keep up the dams as provided in the covenant, and J. H. brought action for this breach. Brannon, J., said: "It is true that this covenant has one element of a covenant real in the fact that it benefits the estate of the covenantee, the mill property; but it laclis another material element — ^privity in estate — as the company conveyed no interest in the mill, but merely made a per.sonal obligation on the company touching the mill. So this covenant is not, in its inherent nature, a real covenant. But does its language make it such? The agreement malves the obligation of Hurxthal to pay for maintaining the dam one running with the land. It seems, un- der the law above stated, that this would not, perhaps, make it a covenant real; but it was clearly a lien in its terms as an equitable mortgage. There is no such provision as to the covenants made by tbe company, and we in- Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 439 BURBANK V. PILLSBURY. (Supreme Court of New Hampshire, 1S69. 48 N. H. 475, 97 Am. Dec. 6'6o.) This is an action of covenant broken, founded upon tiie covenant against incumbrances, the covenant of seisin, the covenant that the defendant had full power and lawful authority to sell and convey in the manner he assumed to do, and the covenant of general warranty, all contained in a warranty deed, executed by the defendant to the plaintiff and dated the seventh day of April, 1868, in common form, purporting to convey to the plaintiff a small tract of land in Haver- hill; in which deed the land conveyed purported to be conveyed by metes and bounds in fee simple, without any reservation or exception, with all the privileges and appurtenances belonging to the same. The same matter is relied on as a breach of each of said covenants, and consists of this, viz. : That on the 29th day of August, 1838, one Michael Johnston, Jr., was seized and possessed of the premises conveyed, which were surrounded on three sides thereof by other ad- joining lands of said Johnston, and on that day said Johnston by his deed of that date conveyed the land in controversy to one Apphia JNIartin, with the following clause in said deed, to wit: "Said Apphia agrees for herself and her heirs and assigns that she and they will forever make and maintain a good, substantial, and lawful fence all « fer it was not so intended. But there is the clause in the agreement giving the right to the assignees of Hurxthal to continue tlie agreement for five years. "What is the effect of that clause? It seems to be well settled in law that if a covenant is not, in nature and kind, a real covenant, the mere declaration of the parties that it shall run with the land will not make it a real covenant, though so stated, in the document. 8 Am. & Eng. Ency. 1^. l.'?4 ; 2 Washb. R. Prop. §§ 1203, 1205 : Gibson v. Holden [115 111. 199, 3 N. E. 282 (1885)1 56 Am. Rep. 146, 149. Under this authority I do not see how a covenant not one of such nature as to run with land could, by declaration in the agreement, be made such, so as to place an obligation on the land in the hands of subsequent owners ; but this covenant is one not placing a bur- den on the Hurxthal mill, but benefiting it, and the company agreed that benefit should go to the use of tlie assigns of Hurxthal. The point is not without difficulty, but it does seem to me that under these circumstances this consent of the company, v.hile it would not place a burden on the com- pany property, wciuld give the mill property of Hurxthal the benefit of the covenant, so as to enable the plaintiff as alienee to sue upon it. I do not know that it will add anything to the strength of this position, in a legal point of view, to rely upon the fact that the company accepted from the plaintiff pay for one year's maintenance of the dam. If the covenant does not give her right, it would be doubtful whether an oral agreement would do so under the statute of fraud, as being a contract not performable in one year, though the statute is not pleaded. This is not material, however, be- cause I hold that the plaintiff is entitled to sue for a breach of the covenant occurring during her ownership, by reason of the clause giving tlie benefit of the agreement to the assignee of Ben Hurxthal. There can be no ques- tion but that the plaintifL" is a privy in estate with Ben Hurxthal, and, an "assign" within the meaning of that word used in said agreement; for she purchased at the judicial sale, which by law cast upon her the entire estate of Ben Hurxthal, and she is as much an assignee of the property from Ben Hurxthal as if he had conveyed it to her." 440 RIGHTS IN THE LAND OF ANOTHER (Part 2 around said premises free from all costs and every expense to Michael Johnston, Jr., his heirs and assigns forever." This deed was sea- sonably recorded. There is no record of any conveyance of the premises to any one by said Apphia Martin. But Robert French and others, being heirs of said Apphia Martin, conveyed the premises to the defendant, as such heirs, by full warranty deed in common form, dated May 8th, 1854, and said clause in said Johnston's deed to said Apphia Martin is not inserted, and in no manner referred or alluded to in this deed. In the deed from the defendant to the plaintiff, reference is made in the description, to the deed of the said Robert French and others to the defendant, as follows, after naming boundaries and abuttals : "Being all and the same land conveyed to me by Robert French and others by deed recorded in Grafton County Registry of Deeds, liber 226, folio Z77 " But no reference is made to said Johnston's deed or to any other conveyance. The plaintiff relies upon the existence of said clause in said John- ston's deed to said Apphia as a breach of each of said covenants ex- cept that of general warranty, and in respect to the covenant of gener- al warranty he relies on that clause, and the fact that said Johnston, by virtue of said clause, claims and exercises thie right of turning his animals into his lands adjoining said premises without contributing to the repair of said fences, and the further fact that said animals have strayed from said Johnston's lands upon sai4 premises and damaged the plaintiff's crops. And it is agreed that, if upon the grounds hereinbefore stated the plaintiff can maintain an action of covenant broken against the de- fendant upon any of said covenants, judgment shall be rendered for the plaintiff for such sum in damages as the court, at a jury term, shall assess, unless the defendant elect to demur generally to the plain- tiff's declaration, or shall confess judgment for such amount as he may deem expedient. It was agreed that the writ and declaration, and copies of the rec- ords of any conveyances of the premises in question might be used in the arguments of this cause, the same as if fully set forth in the agreed case. In the argument it was suggested that Apphia Martin is described in Johnston's deed as a married woman. Smith, J.^^ * * * j^ j^^5 ht^xv asserted that covenants or agree- ments made by owners of land will not run with the land as a burden unless there is between the covenantor and covenantee a privity of es- tate arising upon the relation of tenure between them. Assuming that the statute of "quia emptores" is in force in this State, it is clear that no relation of tenure existed between Johnston and Apphia Martin, the original grantor and grantee, and if the doctrine just referred to »2 I'art of the opinion is omitted. Cll. 4) LEGAL ENFORCEMENT OF COVENANTS 441 is correct, it would follow that the agreement entered into between them would not run with the land. But we are not disposed to adopt the doctrine. It is inconsistent with the rule that certain covenants for title entered into on a conveyance in fee will run with the land. There is no more privity of estate, in the sense of tenure, Jo support covenants which are a benefit to the landowner than there is to sup- port those which are a burden to him. The suggestion that the running of certain covenants for title with the land is an exception, may be met by the reply of Sir Edward Sugden (just quoted) to a similar sugges- tion upon another topic. The doctrine that privity of estate, in the sense of privity arising upon tenure, is necessary to make the burden of a covenant run with the land, is also entirely at variance with the rule that if the owner of an estate for life conveys his whole estate reserving an annual rent which the grantee covenants to pay, the gran- tor may maintain covenant for rent against an assignee of the gran- teo. McMurphy v. Minot, 4 N. H. 251, is exactly that case. It is there said by Richardson, C. J. (page 254) : "Rent may be reserved upon a grant of a man's whole estate, in which case there can be no reversion." See other cases cited in Delafield v. Parish, 25 N. Y. 99. Considering the question on principle, it seems to us that in a case Hke the present there is such a connection between the parties that the agreement should run with the land, although no relation of tenure exists. * * * Denio, J., said [in Van Rensselaer v. Hays, 19 N. Y. 68, 91, 75 Am. Dec. 278] : "There is a certain privity between the grantor and gran- tee of the land. It is not the privity arising upon tenure, for there is no fiction of fealty annexed. It is, however, the same sort of privity which enables the grantee of a purchaser to maintain an action upon the covenants of title given to his vendor ; and it is moreover a privity af the same nature with that which obtains between the grantor and gfantee of terms for life and years. It is notorious that the grantee of a term is liable upon covenants which are in their nature capable of running with the land, such as covenants to pay rent, to repair and the like, which his grantor made with the owner of the reversion. In this case there is, it is true, a reversion, and that may be indispensable to enable the covenantee to assign the obligation made to him ; but it is not easy to see how, upon any kind of reasoning, the presence or ab- sence of a reversion can affect the relations between the party prima- rily chargeable upon the covenants, and another to whom he conveys the land, charged with the performance of these covenants. It is ob- vious that the fiction of a feudal tenure has nothing to do with the case." * * * The cases where the original covenanting parties stood in the rela- tion of landlord and tenant are not in point, because there the relation of tenure existed; nor are the cases where covenants are entered in- to for the performance of acts on land, but no conveyance of land is made at the same time. In the latter class of cases "the covenantor 4^2 RIGHTS IN THE LAND OF ANOTHER (Part 2 takes nothing in the land at the time of the covenant made," and the equitable considerations which apply to a covenantor and his assigns who enjoy the land in fee under a conveyance which was a part of the same transaction with the covenant are wanting.'^ Cases falling under th^e classes, not being in point, have not been cited here. * * * Unless the defendant elects to demur, or confess, there must be Judgment for plaintiff.^* BROWN v. SOUTHERN PAC. CO. (Supreme Court of Oregon,, 1899. 36 Or. 128, 58 Pac. 1104, 47 L. R. A. 409, 78 Am. St. Rep. 761.) This is an action to recover damages resulting from the killing of four of plaintiff's cows by defendant's locomotive. The negligence al- leged as constituting the cause of action is defendant's failure to place gates or bars at the intersection of its right of way with a private road crossing a farm cultivated by plaintiff, in consequence of which said cows got upon the track and were killed. The answer, after denying the material allegations of the complaint, avers that on November 10, 1870, Samuel Brown and Elizabeth Brown, his wife, executed a deed to the Oregon & California Railroad Company, a corporation, convey- ing a strip of land 60 feet in width across said farm, and therein cov- enanted with said corporation, its successors, and assigns, to build and maintain a fence on each side of the railroad to be built through said premises; that said deed was duly recorded in the records of Marion county on November 11, 1870, and plaintiff had full notice and knowl- edge thereof ; that defendant is the lessee of said corporation, and successor in interest of its right of way and of said covenant; that plaintiff is the son and successor in interest of Samuel Brown, and as such used and occupied said farm, and the private crossing there- on, subject to said covenant ; that said cows got upon defendant's track at said crossing by reason of plaintiff's failure to place gates or bars thereat, and were killed without any fault upon defendant's part. The reply having put in issue the allegations of new matter con- tained in the answer, a trial was had, in which the jury, in pursuance of the court's instructions, returned a verdict for the defendant, and, a judgment having been rendered thereon, plaintiff appeals. 7 3 A. owned a mill and dam. B. covenanted with A. and his grantees that he would keep the dam in repair. A. conveyed the property to C Held, C. has no right of action against B. upon the covenant. Lyon v. Parker, 45 Me. 474 (1858). A. covenants with B. not to erect a mill on land owned by A. A. conveys the land to C. Held, C. is not liable to B. on the covenant. Harsha v. Reid, 45 N. Y. 415 (1871). T4A0C.: Georgia Southern R. Co. v. Reeves, G4 Ga. 492 (1880). Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 443 IMooRE, J.^" (after stating the facts). The question presented for consideration is as to whether the covenant in the deed of Samuel Brown and wife to the Oregon & CaHfornia Railroad Company cre- ated a charge upon their estate running with the land, and binding upon plaintiff. The said covenant is as follows: "And we further agree to build and maintain a fence on such side of said railroad through the premises herein, north of the town of Gervais, or not hold such railroad responsible for any damage done to stock belonging to us." The right to have a division fence built or repaired by an ad- joining proprietor is a benefit to the dominant and a detriment to the servient estate, which is in the nature of a distinct easement, affect- ing the lands of the proprietor upon whom the burden is imposed. Tyler, Bound. 343 ; Washb. Easem. (2d Ed.) 601 ; Bronson v. Cof- fin, 108 Mass. 175, 11 Am. Rep. 335. It has been held that a covenant to build or maintain a division fence creates an incumbrance upon the covenantor's estate, which .runs with the land, if so intended by the parties to the deed. 12 Am. & Eng. Enc. Law (2d Ed.) 1049 ; Beach V. Grain, 2 N. Y. 86, 49 Am. Dec. 369; Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633. In order to determine whether a clause in a deed conveying real property is to be construed as a covenant running with the land, or a condition personal to the parties, it is necessary to consider two subordinate questions : First, whether the right granted or the burden imposed is connected with the land affected by the con- veyance, or collateral to it; and, second, if found to be the former, whether the situation of the parties and the condition of the subject- matter enable the court to say, from an inspection of the language of the deed, that it was the intention of the parties thereto that the cove- nant should run with the land. Masury v. Southworth, 9 Ohio St. 340. In Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 550, Mr. Justice Phelps, after speaking of those covenants which necessarily run with the land, says : "There is another class of covenants of a doubtful or equivocal character, and which may be treated either as merely person- al, or as annexed to and running with the land. With respect to these, it is doubtless competent for the contracting parties to make them either tlie one or the other, as they think expedient. When, there- fore, the party covenants for himself and his assigns, it evinces an intent to bind the land, and the obligation becomes connected with and qualifies his estate." An examination of the covenant in the deed of Samuel Brown and wife shows that it does not include their "assigns" in express words, and, inasmuch as the fence along the right of way was not in esse at the time the deed was executed, it is contended that the omission in this particular manifests an intention that the covenant should be personal only. * * * The word "heirs" is not now necessary to create or convey an es- tate in fee simple. All of the grantor's estate passes by his deed, un- T6 Part of the oinilion is omitted. 444 RIGHTS IN THE LAND OP ANOTHER (Paft 2 less the intent to convey a less estate appears by express terms, or is necessarily implied from the language of the deed. Hill's Ann. Laws Or. § 3005. The statute not having prescribed that the word "assigns," or other words of like import, shall be necessary to make a covenant run with the land, the omission of such words from a deed by which a right is connected with the dominant estate, or an obligation inheres in the servient estate, does not necessarily evidence an intention that the clause conferring the right or imposing the burden is a condition personal to the party charged with its performance. An examination of the language of the deed for the purpose of ascertaining the inten- tion of the parties, shows that the grantors stipulated, in effect, that, if they neglected to build or maintain the fence agreed upon, the gran- tee should not be held responsible for any damage resulting from such neglect to stock belonging to them. This exemption from liability is the legal result of the grantors' failure to comply with the terms of their deed, and necessarily follows their neglect to build and maintain the fence, without being recited in the deed ; for the rule is well set- tled that, if an adjoining landowner agree with a railroad company to build and maintain a fence along its right of way, the company is not liable to such proprietor, or to his assigns, who take his estate with no- tice thereof, for injury resulting from neglect to perform or keep such agreement. 12 Am. & Eng. Enc. Law (2d Ed.) 1071 ; Railway Co. V. Washburn, 97 111. 253 ; Duffy v. Railroad Co., [2 Hilt. (N. Y.) 496], supra. No agreement, however, entered irlto between a railroad company and an adjoining proprietor, whereby he stipulates to build and maintain division fences, will absolve the company from liability to persons not parties to the contract, or in privity with them, for injury resulting from the land owner's failure to keep his engagement in this respect. 12 Am. & Eng. Enc. Law (2d Ed.) 1072; Railway Co. V. Williamson, 104 Ind. 154, 3,N. E. 814; Warren v. Railroad Co., 41 Iowa, 484; Thomas v. Railroad Co., 82 Mo. 538; Oilman v. Rail- way Co., 60 Me. 235. A tenant who enters upon land with notice of his landlord's covenant with a railroad company to build and maintain a division fence along the right of way, can acquire by the demise no greater estate in the premises than his landlord possessed therein, and hence he has no remedy against the company for injury to his stock resulting from the landlord's failure to build or repair such fence. Easter v. Railway Co., 14 Ohio St. 48 ; Duffy v. Railroad Co., supra ; Railway Co. v. Petty, 25 Ind. 413; Railway Co. v. Washburn, supra. If Samuel Brown and his wife had leased their land, their tenant's stock could not, in any sense, be regarded as their own. The right con- ferred by their deed upon the railroad company was, so far as they were concerned, to permit it to operate its trains without fencing its right of way, and by exempting it from liability for injury to stock be- longing to them they would, in such case, thereby impliedly reserve the right to their tenant, which he could enforce, of compelling it to fence its track across their premises, or be responsible to him for any Ch. 4) LEJ3AL ENFORCEMENT OF COVENANTS 445 injury to his stock in consequence of a failure to do so ; for by exempt; ing the company from liability for stock belonging to them only they restricted its right to use the track without fencing to the time in which they had possession of the premises, and made it responsible to their tenant for damage done by it to his stock in consequence of its failure to fence the track through said premises ; and what is true of their tenant's stock must apply with equal force and reason to the stock of their successor in interest. The failure to include the word "assigns" in the deed is not controlling if it can reasonably be inferred from the language of the instrument that the parties intended that the covenant should run with tlie land;'^ but the absence of such word, or other words of like import, may be considered in connection with the con- text of the deed in arriving at the intent of the parties in this respect. Giving to the deed such construction, we think the parties thereto nev- er intended that the stipulation to build and maintain the fence should be regarded as a covenant running with the land, but that such clause was meant to be a condition personal to the grantors, and binding up- on them only. * * * it follows that the judgment is reversed, and a new trial ordered.'^^ 7 6 Ace: Dotv V. Cliattanoosa Union Ry. Co., 103 Tenn. 564, 53 S. VV. 944. 4S L. R. A. 160 (1S99). 7TA. conveyed a strip of land to the X. Railroad Company, and the latter covenanted to erect a station on the land conveyed and to stop its trains ther^. The rest of A.'s adjacent land came to B., and the X. Railroad Com- pany was succeeded by the Y. Railroad Company. B. brought action against the Y. Railroad for breach of the covenant.' The court (Worthington, J.) said: "In the case at bar the covenant was made with reference to some- thing not then in esse, and there are no words of limitation to the heirs and assigns of the grantor. It is contended, however, that since Acts 1856, p. 253."c. 154 (Code Pub. Gen. Laws 1904, art. 21, § 11), as words of inheritance are unnecessary to create a fee, the covenant in this case being in the na- ture of a reconveyance of an interest in the lands conveyed, such words are unnecessary here. • * ♦ Here the right was created by way of a coven- ant which * * * extended to something not in existence at the date of the deed, and the words 'heirs and assigns' are not expressed. Under the circumstances we do not think the act of 1S56 does away with the necessity for the use of these words in order tp pass the right created by the covenant in question to an assignee of the grantor." Maryland & P. R. Co. v. Silver, 110 :Md. 510, 516, 73 Atl. 297 (1909). See Gulf, C. & S. Ry. Co. v. Smith, 72 Tex. 122, 9 S. W. sm, 2 I.. R. A. 281 (1888) ; Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 550 (1834). 446 RIGHTS IN THE LAND OF ANOTHER (Part 2 (B) What Covenants Run NATIONAL UNION BANK AT DOVER v. SEGUR. (Supreme Court of New Jersey, 1877. 39 N. J. Law, 173.) On demurrer to the declaration. The articles of agreement, sued on, commenced in these words, viz. : "Agreement made this, &c., between Anson G. P. Segur, of, &c., of the first part, and Hudson H6agland, of, &c., of the second part, wit- nesseth." The substance of the agreement was, that Segur would sell and convey to Hoagland a certain lot and banking-house. After this stip- ulation, then followed these recitals and covenants, to wit : "And whereas, the said Segur is now engaged in the business of banking as a private banker in Dover aforesaid ; and whereas, the said Hoagland intends to associate himself with other persons to or- ganize a banking association, to be located and to do business in Dover aforesaid, and expects to convey said lot of land and banking-house to said banking association when organized and ready to commence business, to be occupied and used by said association; and whereas, it is a part of the consideration of this sale of said lot and banking- house, that said Segur shall withdraw from the business of banking, and not engage in the same at any time within ten years in tlie borough of Dover aforesaid : "Now it is further agreed between the said parties, and said Segur doth hereby covenant and agree with the said Hoagland, that as soon as said new banking company or association so expected to be organized, or any banking company to whom the said Hoagland, his heirs or assigns, may hereafter lease, convey or assign said premises and banking-house, or any part of the same, shall commence the business of banking therein, then and from thenceforth the said Segur shall withdraw in good faith, as soon as practicable, from the business of banking in said borough of Dover, and shall abstain from receiving or accepting any money on deposit' as a banker therein ; and shall not, at any time for the space of the ten years thereafter, engage directly or indirectly, in the business of banking in said borough of Dover, either as a private banker, a capitalist or as a shareholder or director in or as an officer or employe of any banking company or association, or savings bank, located in or doing business in said borough of Dover; provided, that nothing herein contained shall be construed as preventing said Segur from being a shareholder in or an officer or employe of any banking company or savings bank which may, at any time, be the owner or occupant of the lot of land hereby agreed to be conveyed, or any portion thereof. "And it is further agreed and understood that this covenant on the part of said Segur to abandon, abstain from, and not engage in the Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 447 business of banking in said borough of Dover for the period of ten years, is made for the benefit of said Hoagland, as the owner of said lot of land and banking-house, and shall attach to and run with the same in tlie hands of any heir or heirs, assignee or assignees, gran- tee or grantees of said Hoagland ; and in case of any breach of the same by said Segur, an action may be maintained thereon against him by the person or persons or body corporate who shall, at the time of such breach, be the owner of the fee simple of said lot of land so hereby agreed to be conveyed; and it is further agreed, in order to insure the observance by said Segur of his said covenant to abandon, abstain from, and not engage in the business of banking, for the period aforesaid, in Dover aforesaid, that in case of any breach there- of by him, the damages to be recovered in any action against him for such breach, shall be and they' are hereby fixed and liquidated by the parties thereto at the sum of $10,000. "In witness whereof, the parties have hereunto set their hands and seals the day and year first above written. "[Signed.] Anson G. P. Segur. [L. S.] "H. Hoagland. [L. S.]" The declaration also showed a conveyance of the premises in ques- tion from Hoagland to the plaintiff, and averred that they were still the owners thereof. BeaslEy, C. T-^* The contention on the part of the defence, on the argument of this demurrer, was, that the right of action disclosed in the record was not resident in the plaintiff. The deed in suit, in its commencement, purports to be made between Segur, of the first part, and Hoagland, of the second part ; and it was insisted that when a sealed instrument is so conditioned, the suit must be by the formal party to it. The plaintiff is the grantee of the premises sold to Ifoag- land, and claims the right to enforce, in its own name, the agreement, by virtue of the last clause in it, which is to the effect that in cjse of a breach of the covenant now sued on, the right of action shall be in the owner in fee of the land. Two questions are thus presented to the attention of the court: First, whether, when a deed is in form inter partes, and it contains a covenant to a third person, such third person may sue, in his own name, for a breach of such particula'- cov- enant, it appearing in the instrument to have been the intention to confer such right; and, second, whether such covenant exists, ind such intention appears in the present instrument. I begin with the first of these propositions. An examination of the authorities upon the subject will show that the rule is conclusively settled : that the naked fact that in a deed inter partes there is contained a covenant with a third person, will not en- able such person to sue for its breach. * * ♦ 7 8 Part of the opiiiiou is omitted. 448 RIGHTS IN THE LAND OF ANOTHER (Part 2 But the question now raised has a further reach. The counsel of the defendant in this case asks the court to say that the deed being inter partes, it is not lawful to make in it a covenant with. a third person, and to give, by an expressed intention to that end, a right to such person to sue for its breach. No precedent has been cited, or has been found, which will stand as a warrant for this conten- tion. * * * [The court held that a covenant could so be made with a third per- son and that the intent to make the covenant in question with the plaintiff as such third person was sufficiently clearly manifested in the deed in question.] But again, even if I had yielded to the view so forcibly presented to the consideration of the court, which is directly opposite to that just expressed, and had concluded that the plaintiff was not a party to this agreement, so as to give him an ability, as such, to sue upon it, yet, nevertheless, I should have thought this action maintainable. This result, in my opinion, would have been justifiable, on the ground that the covenant forming the basis of this suit is, in law, capable of running with the land, and that, if it is to be regarded, technically, as a covenant between the formal parties to the .deed, it has passed, with the title to the present plaintiff. The doctrine with respect to what agreements will so attach to real estate as to devolve with the title, has been a fruitful subject of discus- sion in the text-books, as well as in judicial opinions, and, since the various resolutions in Spencer's case, has given rise to a long line of decisions, which, it must be admitted, it would be difficult entirely to harmonize. But I think this discord will be found, upon a care- ful examination of the authorities, to prevail chiefly in other branches of the subject than in "the one in which the present case is to be classed. There is such an essential difference, in social effect, between permit- ting a burthen to be annexed to the transfer of land, and the giving to a benefit such a quality, that the subject will unavoidably run into obscurity, unless the distinction is kept constantly in view. The con- spicuous impolicy of allowing land to be trammeled in its transfer, to the extent that previous owners may choose to affect it by their con- tracts, was pointed out and condemned in the case of Brewer v. Marshall, 18 N. J. Eq. 337, and 19 N. J. Eq. 537, 97 Am. Dec. 679. In that case, the owner of real estate sold a portion of it, and cove- nanted with the purchaser that neither he nor his assigns would sell any marl from off the residue of the tract. The suit was against the alienee of the vendor, and the decision was that such a burthen would not follow tlie land into the hands of such alienee of the cov- enantor. The reason assigned for this conclusion was the public inconvenience that would result if incidents could be annexed to land "as multiform and as innumerable as human caprice." But when we turn our attention to the consideration of those covenants, which, instead of being burthensome to the land, are beneficial to it, we per- Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 449 ceive, at once, that such objection does not apply. Such covenants do not hinder, but rather facilitate the transmission of land from hand to hand, and, therefore, with respect to their transmissibility, the ques- tion of public convenience has no place. This being the case, it is not easy to see why any contract, which is of a nature to attach to the land, and which has a beneficial tendency, should not be considered as- signable, by act of law, as against the covenantor, with the title. In every instance where the question, in this form, is presented, the suit being between the original covenantor and the alienee of the covenantee, if the making of the covenant be not denied, the sole point for solution would seem to be whether such covenant, in the legal sense, relates to or concerns the land, for, if not, by its quality, it passes as an incident to the property, and is enforceable in the name of the person who is owner at the time of its breach. When the cov- enantor has been the party sued, and the covenant admittedly related to the land, the alienee of the covenantee being the plaintiff, I think no considered case has held that such action was not maintainable. In the present case, it is conceded tliat the parties to the suit have these characteristics, but it is denied that the covenants are of a nature to run with the land. It is insisted that these covenants "relate to future personal acts and omissions of the covenantor ; that those acts are not to be done or omitted on the land conveyed, nor on any other land of the grantor or grantee; nor are the covenants with the heirs or assigns of Hoag- land"; and, in support of these objections, tlie first and second resolu- tions in Spencer's case are cited. But none of these positions are sustained, or in any degree sanc- tioned, by the authority referred to, that authority being merely to the effect that a covenant will not run with the land if it relates to personalty, or if it be merely collateral to the land. But I fail to find that Sir Edward Coke says anything which lends the slightest counte- nance to the idea that the covenant is not transmissible if it stipulates for "the future personal acts and omissions of the covenantor," or if "those acts are not to be done or omitted on the land conveyed, or on any other land of the grantor or grantee." It is true that he does declare that, in certain cases, the burthen of a covenant will not fall on the assignee of the covenantor, unless such assignee be expressly referred to in the covenant ; but as this suit is against the covenantor himself, and not against his assignee, that doctrine can serve no pur- pose in this connection. But Lord Coke, in this case cited, states, as one of the judicial resolutions, that a covenant will not run with the land "if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort," and, consequently, the inquiry is presented with regard to the nature of the present covenants in relation to the premises conveyed ; and this inquiry has been pressed, Big. Rights — 29 , 450 RIGHTS IN THE LAND OF ANOTHER (Part 2 with earnestness, on the attention of the court in the brief of the coun- sel of the defendant. I must say, however, that but for this urgency, it would not have occurred to me that any doubt Qould be entertained with respect to the question, I understand that a covenant touches and concerns land when its performance confers a direct benefit on the owner of land by reason of its ownership ; and, tested by such a defini- tion, the covenant sued on has such a capacity. To be sure of this, we have but to turn to the contract. That agreement is for the sale and conveyance of the premises in question, which are described as a lot upon which is a building, adapted to the business of banking, in the course of erection, and which, it is stated, the defendant is to complete, and which was to include "a counter for the main banking-room," which "had already been ordered" by him. It is then recited that the defendant was then engaged in the business of banking, as a private banker, in Dover; and that Hoagland, the covenantee and grantor of the plaintiff, intended to associate himself with other persons to organize a banking association, to be located and to do business in Dover; and that he expected to convey said lot of land and banking- house to said bank association ; and that it was a part of the considera- tion of the sale of said lot and banking-house, that the said defend- ant would withdraw from the business of banking, and would not engage in the same, at any time within ten years, in the borough of Dover. After this, follow the covenants, which lay the ground of suit, to the purport that the defendant, "as soon as the new banking company or association, so expected to be organized, or any banking" company to whom the said Hoagland, his heirs or assigns, may here- after lease, convey or assign said premises or banking-house, or any part of the same, shall commence the business of banking therein, then and from thenceforth," the said defendant "shall withdraw, in good faith as soon as practicable, from the business of banking," &c. To this, there is superadded a stipulation that it is understood and agreed that the foregoing covenant is made for the benefit of said Hoagland, as the owner of the land to be conveyed, and is to attach to and run with the same. In view of these stipulations and recitals, it is undeniably clear that the parties to this contract thought that the covenant in question was one which would appertain to and benefit, not merely the person of the grantee, bufthe land itself, which was to become his by a convey- ance. Indeed, it was made such an appurtenance to the property that it was to have no effect until the business of banking was commenced upon these particular premises. Now, while it is plain that a mere personal covenant cannot, by the agreement of parties, have its nature so altered as to make it transmissible with land, nevertheless when the question is whether the given covenant does concern certain prem- ises, the fact that such parties considered it to have such quality, should be potent in a decision of the inquiry. Since these parties most manifestly have thought that the stipulation in question gave addi- Ch. 4) LEGAL ENFOKCEMEXT OF COVENANTS 45l lional value to tlie property, why, and on what ground, should the court declare that such was not the case? Nor is it perceived that there is any force in the suggestion that this covenant would affect, not only the business done upon these particular premises, but any other banking business that might be carried on in the vicinity, for the answer to such objection is, that such incidental effects are common to all agreements that in any wise regulate the dealings of men ; and that the rule of law requiring the covenant to touch or concern the land, does not require that it shall touch or concern nothing else. In the present instance, this covenant will have an immediate, permanent and beneficial eft'ect upon the use to which the land is to be put, and that is sufficient to annex it to the title. To apprehend how closely this stipulation is related to these premises, we have but to observe that in case of its breach, the party directly, and for aught that the court can know, exclusively injured, will be the owner for the prop- erty at the time such breach shall occur. There is nothing in the pleadings to show that, upon such violation of this agreement, the original covenantee, or any other person but the plaintiff", has sus- tained, or can sustain, the least inconvenience or injury. And, finally it should be observed, that under the circumstances of this case, it is necessary to hold that tlie covenant under consideration, has capacity to run with the land, in order to give damages to the only party actual- ly grieved by its nonperformance. This conclusion is, I tliink, amply sustained by the decisions. It is not necessary to review them. The following seem to me directly to the point: The Prior's case, reported in the seventh resolution in Spencer's case, 1 Smith's Lead. Cas. 118; Vyvyan v. Arthru's Adm'rs, 1 Barn. & Cress. 410; Vernon v. Smith, 5 B. & Aid. 1 ; Mayor of Con- gleton, 10 East 130; Norman v. Wells, 17 Wend. (N. Y.) 137; 1 Smith's Lead. Cas. 142. Having carefully examined the cases cited in the brief of the coun- sel of the defendant, I shall dismiss them with the observation that they seem to me plainly to be covenants relating to personalty, or covenants entirely collateral to the land, or cases pertaining to the question when covenants will pass as a burthen with the title. Another objection taken to this suit is, that the agreement in ques- tion, and every part of it, was prospective and executory, and at the time it was entered into, no title to the lands existed, or was trans- ferred to Hoagland, the covenantee. But I find no autliority for this proposition. The adjudications ap- pear, on the contrary, to show, very plainly that when a covenant ben- eficial to land is made, it is not essential to its devolution with the title that the covenantee should have title to the land to which it relates, or that the estate should have come from the covenantor, or should have passed from him, eo instanti, with the inception of the covenant. When, therefore, the covenantee in this, case became vest- ed with the title, the covenant, as it touches and concerned the land, 452 RIGHTS IN THE LAND OF ANOTHER (Part 2 became an incident to such land, and as such, passed with it, upon con- veyance, by act and operation of law. On the one or other of these grounds, the declaration, in my opin- ion, must be upheld.^® GILMER V. MOBILE & M. RY. CO. (Supreme Court of Alabama, 1S85. 79 Ala. 569, 58 Am. Rep. 623.) This action was brought by George N. Gilmer, against the Mobile & Montgomery Railway Company, as the assignee and successor of the Alabama & Florida Railroad Company, to recover damages for alleg- ed breaches of covenant; and was commenced on the 30th March, 1885. The covenants alleged to have been broken were contained in a written instrument under seal, dated March 7th, 1868, by. which the Alabama & Florida Railroad Company, "in consideration," as therein recited, "of George N. Gilmer having sold and conveyed to said rail- road company, for the sum of one dollar, the right of way and the land for fifty feet on each side of the centre line of said railroad extending through his plantation, and certain other privileges mentioned in the deed of conveyance given by said Gilmer," agreed and bound itself as follows: "The Alabama & Florida Railroad Company will stop the passenger and freight trains (when proper signals are given) at some convenient point opposite the house of said Gilmer, and receive and discharge (without extra charge) passengers and the sacked and baled produce of the farm, or other freight or produce of said farm, when the receiving and delivery of said other freight and produce can be done without seriously interfering with the running of schedule. The further privilege is given said Gilmer to cultivate such parts of said right of way not used by said railroad company, so long as the same may not interfere with the wants and requirements of said railroad company ; and further, if at any time the said railroad company should erect a depot on said right of way, the sale of ardent spirits will be strictly prohibited." The complaint claimed that these stipulations were covenants running with the land, and were binding on the defend- ant as the assignee and successor of said Alabama & Florida Railroad Company ; and alleged specific breaches of each. The court sustained a demurrer to the complaint, on the ground that the covenants were not binding on the defendant as assignee; and the judgment on the demurrers is now assigned as error, T»A. granted to a railroad a right of way over his land, the railroad covenanting to maintain its roadbed at a certain height. Held, A.'s succes- sor in title may maiutain action against the railroad for breach of the covenant. St. Louis, I. M. & S. Ry. v. O'Baiigh, 49 Ark. 418, 5 S. W. 711 (1887). So as to a covenant by the grantee of a right of way to stop its trains at a designated point. Ford v. Oregon Electric Ry. Co., GO Or. 27b, 117 1'a.c. 809, 36 L. R. A. (N. S.) 358. Ann. Cas. 1914A, 280 (1911). Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 453 SOMERVILLE, T.*° The action is one at law for the breach of cer- tain covenants entered into with the plaintiff by the Alabama & Florida Railroad Company, a body corporate, from which the defendant de- rived title, as assignee, to a strip of land, including the right of way, through the farm of the plaintiff, situated in the county of Lowndes. In March, 1868, the appellant, who was plaintiff in the court below, conveyed to the said assignor of defendant this right of way and land, extending fifty feet on each side of the center line of the railroad track. In consideration of this grant, the said Alabama & Florida Railroad Company agreed in substance, by a separate instrument, to establish what we may briefly denominate a flag-station on said land, at a con- venient point adjacent to the plaintiff's house, where both passenger and freight trains would stop, upon the giving of proper and usual sig- nals, for the transportation of passengers and certain kinds of produce. The plaintiff was to have the right to cultivate so much of thfs right of way as may not. be needed for use by the railroad, and so long as such cultivation did not interfere with its wants and requirements. It was further stipulated that, in the event of a depot being erected on the premises, the sale of ardent spirits would be strictly prohibited. It is averred that the defendant corporation derived title by succes- sion from the original vendee and covenantor, with full knowledge of the obligations growing out of the contract. The Circuit Court sustained a demurrer to the complaint, and dis- missed the action, on plaintift''s refusal to amend. There is an agreement of counsel waiving so much of the demurrer as raises any question touching the plaintiff's right to bring the action in his name, if it would lie at all upon the facts stated. The consider- ation of this point we, therefore, pretermit, assuming that the action was properly brought in the name of the plaintiff as husband, for the use of the wife. The question for decision is, whether the covenants in question, or either of them, so run with the land, as to be of binding obligation at law upon the defendant, as the assignee of the covenantor. A covenant is said "to run with land" when the liability to perform it, on the one hand, or the right to enforce it, on the other, passes to the vendee, or other assignee of the land. Such covenant must relate to, or, as is more commonly said, "touch and concern the land," and not as merely collateral to it, in order that the assignee of the land may be charged with their benefit or burden. Spencer's Case, 1 Smith, Lead. Cas. 27. They are often called real contracts, because they are annexed or inhere to the realty as part and parcel of it, and "pass from hand to hand with the interest in the realty they are annexed' to." 1 Addison Contr. § 430. And no doubt seems to exist as to the rule, that covenants may run with incorporeal, as well as with corporeal hereditaments, as in the case of tithes and rent-charges, which savor ••Part of tbe opinion Is omitted. 454 RIGHTS IN THE LAND OF ANOTHER (Part 2 of the realty, because they are carved out of and charged on it. 2 Sugden Vend. 482. It is impossible to lay down any fixed rule by which to distinguish in all cases real covenants, which run with land. and are binding as such on heirs, devisees, and assignees, from those which are merely personal, and are binding only on the covenantor and his personal representative. The subject is one full of intricate leani- ' ing, and the decisions of the courts touching it are greatly conflicting, and far from satisfactory. Among those, however, which have been decided to follow the realty into the hands of an assignee, are cove- nants of warranty and for quiet enjoyment, covenants by tenants to pay rent, to repair, maintain fences, reside on the premises, or culti- vate the demised lands in a particular manner ; not to carry on a par- ticular trade on the premises leased or purchased ; not to build on ad- jacent premises, and many others of an analogous character. Among those adjudged to be personal, and not therefore to touch or concern the land, are covenants made by owners of land between whom and the covenantee there is no privity or title or estate ; a covenant not to hire persons of a certain description to work in a mill; or a covenant with a stranger not to permit a grist-mill to be erected on the owner's prem- ises ; a covenant by the vendor of lands not to permit marl to be sold from adjoining lands ; by a lessee of a house to pay so much for every tun of wine sold in the house; or to buy all beer used by him from his lessors or from his successors in trade. Law Real Property (Boone), § 317; 1 Addison Contr. § 436; 2 Greenl. Ev. § 240; 1 Parsons' Contr. 231-233. * * * A proper application of these principles leads us to the conclusion, that the condition assumed by the Alabama and Florida Railroad Com- • pany, the defendant's assignor, by which it was agreed to establish a "flag-station" on the road adjacent to plaintiff's house, and to permit plaintiff to cultivate the land on which the right of way was granted, imposed a burden on the land itself, and was not a mere personal cov- enant. It touched and concerned the land itself, and was not collat- eral to it, because it was to be performed on it, and affected the val- ue of the adjacent land of the grantor, being greatly beneficial tp it; and was in the nature of compensation by way of rent for the land conveyed, no other consideration having been paid therefor than that which was confessedly nominal. 1 Smith, Lead. Cas. 22-27, and note, with cases cited. Its performance or non-performance, also, affected the mode ol enjoyment of the granted premises, and their value or quality, so as to render the title acquired by the vendee a subordinate one ; and this is one of the tests by which to decide whether the cove- nant is%nherent in the land itself. 1 Addison on Contracts, § 435. In other words, the covenant of the vendee "qualified the estate which he took, and attached itself to that estate." Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, s. c. 13 Am. Rep. 556. * * * The thing to be done by the covenantor in this case related to the land, and, being annexed to it, the assignee, by accepting possession Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 455 of the land, became bound by the covenant, as one running with the land, without being named in the agreement. Fulton v. Stuart, supra ; Taylor on Landlord & Tenant, § 437; Spencer's Case, above cited; Morse v. Aldrich, 19 Pick. (iMass.) 449 ; 1 Add. Contracts, Morgan's ed. § 455. The court below erred in sustaining the demurrer to the complaint; and the judgment must be reversed, and the cause remanded.^ ^ ATLANTA, K. & N. RY. CO. v. McKINNEY. (Supreme Court of Georgia, 1906. 124 Ga. 929, 5:^, S. E. 701, 6 L. R. A. [N. S.] 436, 110 Am. St. Rep. 215.) McKinney brought suit against the Atlanta, Knoxville & Northern Railway Company, and alleged: On September 13, 1886, Andrew W. Green conveyed to petitioner the exclusive right to the use and control of all the springs and branches upon a described lot of land in Fannin county, for the purpose of being used on an adjacent lot of land. On November 12, 1888, petitioner conveyed to the Marietta & North Georgia Railroad Company the right to the use of water from the branches and springs on the said lot of land, for the pur- pose of supplying its water tank at Blue Ridge, Ga., "in consideration of the fact that said Marietta & North Georgia Railroad Company shall carry and convey sufificient water to the residence of said Mc- Kinney for the ample use and accommodation of said residence and its occupants." It is further alleged that the Atlanta, Knoxville & Northern Railway Company purchased all the property, rights, and franchises of the Marietta & North Georgia Railroad Company at a receiver's sale, and became thereby bound by all the conditions of the above-described deed, and that for more than four years and ever since the purchase of the Marietta & North Georgia Railroad the de- fendant has been continuously using the water conveyed in the above- described deed, and that neither the defendant nor its assignor ever carried water to the residence of petitioner. Petitioner claimed, as damages for the breach of the covenant, $500 as the cost of conveying the water to his residence as contemplated in the deed, and the value of the use of the water at the rate of $25 per year since November 12, 1888, the date of the covenant. The defendant demurred generally to the petition, and specially to that portion seeking damages for siAcc: Parrott v. Atlactic & N. C. R. Co., 165 N. C. 295, 81 S. E. 348, Ann. Cas. 1915D. 265 (1914). A. owned a mill, a dam, and a water power. He conveyed to X. the mill and part of the water power, and covenanted to keep the dam in repair, so as to enable X., his heirs and assigns, to use the power so granted. A.'s land and dam came to B.. and X.'s mill and power rights to Y. Held, Y. may maintain an action against B. for failure to repair the dam as covenant- ed. Fitch v. Johnson, 104 111. Ill (1SS2). See Morse v. Aldrich, ante, p. 429 ; Nye v. Hoyle, 120 N. Y. 195, 24 N. E. 1 (1S90). 456 RIGHTS IN THE LAND OF ANOTHER (Part 2 the cost of conveying the water to the petitioner's residence. The special demurrer was sustained, and tlie general demurrer overruled. To the judgment overruling the general demurrer the defendant ex- cepted. Cobb, P. J. (after stating the foregoing facts.) ^^ The right of ac- tion of the petitioner depends upon whether or not the covenant to convey water to his residence is a covenant running with the land. If it is a real covenant, he may recover for its breach against the as- signee of the covenantor. If it is only a collateral or personal cove- nant, he has no cause of action. The determination of a question of this character is usually one of some difficulty. * * * These defi- nitions are founded directly upon Spencer's Case, 5 Coke, 16, 1 Smith's Leading Cases (9th Ed.) 174, or upon authorities derived therefrom. The rule as there laid down is as follows : "When the covenant ex- tends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land and shall bind the as- signee although he be not bound by express words; but when the covenant extends to a thing which is not in being >at the time the demise is made, it cannot be appurtenant or annexed to the thing which hath no being." In the case of Atlanta Con. St. Ry. v. Jack- son, 108 Ga. 638, 34 S. E. 184, Mr. Chief Justice Simmons said : "To constitute a covenant running with the land, the covenant 'must have relation to the interest or estate granted, and the act to be done must concern the interest created or conveyed.' 1 Ballard, Real Prop. § 491. In 2 Kerr on Real Prop. § 1218, it is said: 'Of the covenants in a lease, some run with the land, while others are binding only upon the person. * * * j^ order that it may run with the land, its performance or nonperformance must affect the nature, quality, or value of the property demised, independent of collateral circum- stances, or it must affect the mode of enjoyment, and there must be a privity between the contracting parties.' " In the present case the thing demised was the right to the use of water from springs and branches upon a certain lot of land for the purpose of supplying a water tank. The covenant, the breach of which is alleged, was the agreement to convey a part of the water to the residence of the plaintiff. Under the rules above laid down, we think it is clear that this is a ccTvenant running with the land. It measures up to every test suggested. It not only relates to the interest or estate conveyed, it is inseparably annexed to and a part of it, a charge upon it. It affects the nature, quality, and value of the thing demised. It qualifies its mode of enjoyment; it restricts its use. It is inextricably woven into the manner in which the grantee shall enjoy the thing demised. "A covenant by a lessor to supply houses with water at a rate therein mentioned for each house also runs with the • 2 Part of the opinion is omitted. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 457 land, and for a breach of it the assignee of the lessee may maintain an action against the reversioner." 1 Taylor's Land. & Tenant, 330, citing Jourdain v. Wilson, 4 B. & A. 266. * * * in the case of Cooke V. Chilcott, L. R. 3 Ch. Div. 694, it is said: "A purchaser of a piece of land with a well or spring upon it covenanted with the ven- dor, who retained land adjoining intended to be disposed of for build- ing sites, to erect pump or reservoir, and to supply water from the well to all houses built on the vendor's land. Held, that both the benefit and burden of the covenant ran with the land, and that the case was not. within the second resolution of Spencer's Case." See, also, Sha- ber V. St. Paul Water Co., 30 Minn. 179, 14 N. W. 874. * * * Anotlier contention of the defendant was that the language of the instrument should not be construed as a covenant to supply to the plaintiflF's residence water derived from the water rights conveyed to the defendant, but that, under the instrument, the defendant might supply water from any locality whatever. If this construction were correct, the covenant would undoubtedly be collateral, personal, and independent of the land ; but we do not think it a fair construction of the deed. "Covenants are to be so construed as to carry into effect the intention of the parties, which is to be collected from the whole in- strunient and from the circumstances surrounding its execution." 11 Cyc. 1051, and citations; Peden v. Chicago Ry. Co., 73 Iowa, 579, 35 N. W. 424, 5 Am. St. Rep. 680. The covenant in question reads : "The said M. McKinney, for and in consideration of the fact that said Marietta & North Georgia Railway Company shall carry and convey sufficient water to the residence of the said McKinney for the ample use and accommodation of the said residence and its occupants, then and in that event the said M. McKinney grants, sells, and conveys unto said Marietta & North Georgia Railway Company the right to the free and unrestricted use of water for the supplying of the railroad water-tank at Blue Ridge, in said county, with ample and sufficient water for their use from all the springs and branches for the use of said company," etc. It seems to us apparent that it was the intention of the parties that the water conveyed to the plaintiff's residence should be from the springs and branches which were the subject-matter of the agreement. The grantor reserves what might be said to be the first lien upon the water, and it is only after the needs of his residence are satisfied that the defendant is given the unrestricted use of the branches and springs. It would be unreasonable to hold that the intention of the parties expressed in this instrument was that the water furnished to the plaintiff was to be derived from another locality, and conveyed by separate machinery to the plaintiff's residence. * * Judgment affirmed. All the Justices concur.^^ 8 3 See Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 Pac. S5S, 15 L. It. A. (N. S.) 359 (1908); Hottell v. Farmers' Protective Ass'n, 25 Colo. 67, 53 Pac. 327, 71 Am. St. Rep. 109 (189S) ; Farmers' High Line Caual & Reservoir Co. v. Xe\v Hampshire Real Estate Co., 40 Colo. 407, 92 Pac. 290 (1907); Lydick v. Baltimore & O. R. Co., 17 W. Va. 427 (ItJbO). 458 RIGHTS IN THE LAND OF ANOTHER (Part 2 MILLER V. CLARY et al. (Court of Appeals of New York, 1913. 210 N. Y. 127, 103 N. E. 1114, L. R. A. 191SE, 222, Ann. Cas. 1915B, 872.) This is an action to construe a deed granting an easement, and to enforce certain covenants relating to the easement. In and prior to the year 1872, the Phoenix Mills was seised in fee and possessed of cer- tain lands on the Seneca river in the village of Seneca Falls. There was erected on such lands a flouring mill operated by water drawn from the river. The land to the east of the mill property and lower down the river was also owned by the Phoenix Mills. This land, in the year 1872, the mill company divided ihto four lots, and on May 18th of that year conveyed the easterly lot, which was taken off the easterly end of the land, to one Zalinski. The deed, after describing the property conveyed, continued as follows : "Together with suffi- cient power (subject to the elements) from a wheel in the Old Stone Mills or Jewett Building to turn a shaft and propel machinery in the basement of any building to be erected on the premises hereby convey- ed not requiring more than fifteen horse power, provided, however, that such machinery shall be confined to the basement stories of such building and shall not be used elsewhere nor shall said shaft ever be used for any other purpose than operating machinery in said basement ; and provided also that said shaft shall be put up at the sole expense of said party of the second part and shall be properly connected with the shaft running from said mill and shall be made and put up in a manner to be approved by the said party of the first part, and said shaft and machinery shall at all times be kept in good condition by said party of the second part and shall be operated in a proper and economifcal manner, and said power is to be used in common with all other per- sons who shall be entitled to power from said wheel." Following the clause quoted, the deed contained certain exceptions and reservations, and then the following covenant on the part of the gran1;or: "Said party of the first part shall keep said wheel in said mill in good con- dition, 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." Subsequently, in the same year, the Phoenix Mills conveyed to different individuals the two lots to the west of the Zalinski lot, and the deed in each instance contained practically the same provisions as the Zalinski deed, except that the grantee agreed to construct and maintain the shaft to transmit power over the land conveyed to him to the adjoining lots on the east thereof. Still later, in the same year, the Phoenix Mills conveyed the fourth lot, which adjoins the mill prop- erty, to a fourth person by deed which contained practically the same clauses as the Zalinski deed. Thereafter the Phoenix Mills for a time Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 459 transmitted power under the provisions of its deeds aforesaid to lots 1, 2, and 3. No power was transmitted to the fourth lot. Since about the year 1890 no power has been transmitted to any of the lots, and the appliances for conveying the power have been destroyed by the elements or otherwise. In 1873 the Phoenix Mills conveyed the mill property by deed, "excepting and reserving, however, all such rights and privileges as have been conveyed by the party of the first part to" Zalinski and the other grantees aforesaid. Subsequently the prop- erty was conveyed to the defendants Clary by deed, containing the same exceptions and reservations. The plaintiff is, and for several years has been, the owner of all four lots to the east o'f the mill property conveyed to Zalinski et al. There is now upon the mill property an electric power plant operated by the defendant the Geneva-Seneca Electric Company under lease from the owners. There are several wheels in the power plant which are run by water from the Seneca river. The object of this action is to secure a construction of the covenants and stipulations in the deeds to Zalinski and others, to compel the defendants Clary to keep and ob- serve such covenants and stipulations, and to require said defendants to furnish "power at the plaintiff's buildings and convey such power at their own cost and expense, and by their own appliances, to the plaintiff's buildings." The judgment was in favor of the plaintiff on all points. CuDDEBACK, J-^* (after stating the facts as above). There can be no question but that the words, "together with sufficient power (sub- ject 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 prem- ises, contained in the deeds from the Phoenix 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 au easement that ran with the land. Nye v. Hoyle, 120 N. Y. 195, 24 N. E. 1. The question arises on the subsequent covenant to transmit the pow- er, 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 sec- ond 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 con- cerned 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 Phoenix Mills to the «* I'urt of the opiuiou is omitted. 460 RIGHTS IN THE LAND OF ANOTHER (Part 2 plaintiff's predecessors in title, whereby the grantor undertook to "construct and maintain a shaft of proper dimensions to the west Ime 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 own- er of the servient estate, either at law or in equity. Haywood v. Brunswick Bldg. Society, 8 O. B. Div. 403 ; London & S. W. Ry. Co. V. Gomm, 20 Ch. Div. 562 ; Austerb'erry v. Corp. of Oldham, 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. Id. Some of the courts of this country have taken a different view, notably the Massachusetts Supreme Court. In Whittenton IMfg. Co. V. Staples, 164 Mass. 319, 41 N. E. 441, 29 L. R. A. 500, 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 vie^v*, namely, that affirmative covenants may be enforced in equity, and criticises the English decisions. 3 Pomeroy, Eq. Jurisprudence (3d Ed.) § 1295. * * * 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, 99 N. Y. Supp. 309); covenants relating to party walls (Crawford v. Krollpfeiffer, 195 N. Y. 185, 88 N. E. 29, 133 Am. St. Rep. 783) ; 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, 26 N. E. 7) ; covenants in leases to pay rent or repair buildings on the demised premises (Allen v. Culver, 3 Denio, 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, Den- man 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 ex- pense in keeping up and repairing the dams in the stream from which Ch. 4) LEGAL ENFOfiCEMENT OF COVENANTS 461 the water was obtained. Later on he conveyed the sawmill to the de- fendants, 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 ex- pense. The court held that the covenant to share in the costs of re- pair ran with the land, and was binding on the defendants, and, fur- ther, 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, 3 Ch. Div. 694, the court held tliat 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 re- straining the defendants, who had purchased the land on which the pump and reservoir were located, with notice of the covenant to re- frain from allowing the work of pumping to be unperformed. The evil and lasting effect of the decision, which would compel all per- sons who might thereafter become the owViers of the reservoir to for- ever pump and supply water, led the court to practically overrule Cooke V. Chilcott, and announce the rule, before referred to, that af- firmative 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; Aus- terberry v. Corp. of Oldham, supra. Except in Gould v. Partridge, 52 App. Div. 40, 64 N. Y. Supp. 870, 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 of Columbia College v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615. If, under the circumstances presented by the Denman Case, the defendants had abandoned their sawmill and de- voted 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 conveyanc- es of land are not enforceable against subsequent owners is a wise o;ie. It has its limitations, as has been seen, and may require further limi- tation ; but the present case is one in which the rule should be applied. The plaintiff here has the right, under the grant of the Phoenix 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 nee- 462 RIGHTS IN THE LAND OF ANOTHER (Part 2 essary and convenient to the complete enjoyment of the plaintiff's prop- erty, 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 ODnstruct 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 strik- ing out the provision that the covenants in the deeds from the Phoenix 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, C. J., and Werner, Hiscock, Chase, Collin, and Ho- GAN, JJ., concur. Judgment accordingly.®' WIGGINS FERRY CO. v. OHIO & M. RY. CO. (Supreme Court of Illinois, 1S79. 94 111. S3.) [The Wiggins Ferry Company granted to the Ohio & Mississippi Railroad Company the right to build and maintain upon certain de- scribed lands of the grantor, tracks, warehouses, and other structures to be used for railroad purposes, tenendum so long as used for railroad purposes. The consideration was $1.00 and a covenant by the grantee 85 In Austerberry v. Oldham, L, R. 29 Ch. Div. 750. 781 (1885), Lindley, L. J., said: "Does the burden of this covenant run with the land so as to bind the defendants? The defendants have acquired the road under the trustees, and they are bound by such covenant as runs with the land. Now we come to face the difficulty; does a covenant to repair^ all this road run with the land — that is, does the burden of it descend upon those to whom the road may be assigned in future? "We are not dealing here with a case of landlord and tenant. The authorities which refer to that class of cases have little, if any, bearing upon the case which we have to consider, and I am not prepared to say that any covenant which imposes a burden upon land does run with the land, unless the covenant does, upon the true con- struction of the deed, containing the covenant, amount to either a grant of an easement, or a rent charge, or some estate or interest in the land. A mere covenant to repair, or to do something of that kind, does not seem to me. I confess, to run with the land in such a way as to bind those wl\o may acfiuire it." Cb. 4) LEGAL ENFORCEMENT OF COVENANTS 463 that it would always employ the Wiggins Ferry Co. to transport all its passengers, freight cars, etc., across the Mississippi river to and from St. Louis and Bloody Island. The Ohio & Mississippi Rail- way Company later succeeded to the rights of the Ohio & Missis- sippi Railroad Company, and refused to employ the plaintiff for the specified ferry purposes. This action is brought to recover damages resulting from the refusal.] ScHOLFiELD, J.^" * * * If remains, then, only to inquire, does the performance or non-performance of this covenant affect the na- ture, quality or value of the property demised, independent of col- lateral circumstances, or the mode of its enjoyment? It is not shown that the two parcels of lands in which this easement is granted are any part of the ferry of appellant. For aught that ap- pears, these properties are totally distinct and independent of each other, and we are authorized to assume that a sale and conveyance of the one would not necessarily affect the other. This covenant is not to do anything upon or about the ease- ment granted to the Ohio & Mississippi Railroad Company, nor does it in anywise affect the parcels of land in which the easement is grant- ed. Its language is : "The said party of the second part will always employ the said Wiggins Ferry Company, party of the first part, to transport for the said party of the second part across the said river all persons and property which may be taken across the said river, either way, by the said party of the second part to or from Bloody Island, either for the purpose of being transported on the railroad of said party of the second part, or having been brought to said river upon the said railroad, so that the said party of the first part, their legal representatives or assigns, owners of the said Wig- gins Ferry, shall have the profits of the transportation," etc., etc. So, it is the owner of the ferry, and not the owner of the parcels of land, for whose benefit the covenant is made. Hence if appellant had conveyed its ferry to A., and its parcels of land to B., A. alone would have been injured by a breach of the covenant. It is impossible to conceive how the owner of the parcels of land, merely as such, could be injured by a breach of the covenant. It adds nothing to the value of the parcels of land, and gives nothing to him claiming as owner, merely because he is owner. It is all for the benefit of tlie owners of the ferf}', a totally separate and distinct property. It would be diffi- cult to give a better illustration of a purely collateral covenant. It has been said, whether a covenant will or will not run with land does not, however, so much depend on whether it is to be performed on the land itself, as whether it tends directly or necessarily to en- hance its value, or render it more beneficial and convenient to tliose by whom it is owned or occupied. Masury v. Southwoi:th, 9 Ohio St. 340. Following this form of expression, the easement here granted •• The statement of facts is abridged and part of the opinion is omitted. 464 RIGHTS IN THE LAND OF ANOTHER (Part 2 IS in the two parcels of land, not in the ferry, while the covenant re- lates to and affects the ferry only. Undoubtedly the covenant en- hances the value of the ferry, or renders it more beneficial, but this has nothing to do with the two parcels of land in which the easement is granted. See Webb v. Russell, 3 Term R. 393, 402 ; Bally v. Wells, 3 Wilson, 25-29; Hurd v. Curtis, 19 Pick. (Mass.) 459; Brewer v. Marshall, 18 N. J. Eq. 337; 19 N. J. Eq. 537, 547, 97 Am. Dec. 679; Spencer's case, and notes, 1st part 1 Smith's Leading Cases. It may be questionable whether this easement, under the allegations before us, legally passed to the assignee, the present appellee, at all, and of course, if it did not, no covenant could run against appellee as being a charge upon that easement. But upon this we express no opinion. We have assumed, without examination, that the declara- tion sufficiently avers the assignment of the easement; and we have also assumed, as matter of law (of the correctness of which, however, we do not apprehend there can be much doubt), that the easement, is one with which, under a different supposable state of facts, a covenant might run as a covenant running with the land. Our decision goes no further than the matters specially noticed. For the reasons given, we think the court below properly sustained the demurrer to the declaration. Its judgment is therefore affirmed. Judgment affirmed.*' WOOLISGROFT v. NORTON et al. (Supreme Court of Wisconsin, 1862. 15 Wis. 198.) Action to recover for work done and materials furnished by the plaintiff in repairing a dam and raceway. The facts, as reported by a referee, were substantially as follows : A. Hyatt Smith and M. O. Walker were owners of land in Rock count}% and of a dam erected thereon across Rock river, and of the power thus created; Smith owning three-fourths and Walker one- fourth, undivided. While they were such owners, in 1849, Smith executed to Stevens & Older a deed of a portion of said land for a mill site, and for 550 square inches of water to be used thereon — this being the first conveyance of any part of said water power by the pro- 87A covenant by a railroad to its grantor of a right of way to give to tlie grantor a pass over the railroad has been held not to be binding upon its successor in title. Ruddick v. St. Louis, K. & N. W. Ry. Co., 116 Mo. 25, 22 S. W. 499. .38 Am. St. Rep. 570 (1893) ; Eddy v. Hinnant, 82 Tex. 354, 18 S. W. 562 (1891). A. owned riparian land, a mill and a dam. He granted to a canal com- pany the right to construct a canal through his land and draw water from the river, the canal coniimny covenanting to maintain the dam so that A., his heirs and assigns, should always have a specified amount of water power. Held, a person claiming title under A. cannot maintain an action of covenant against the assign of the original canal company for failure so to keep up the dam. Barringer v. Virginia Trust Co., 132 N. C. 409, 43 S. E. 910 (1903). Ch. 4) LEGAL EXFORCEMKNT OF COVENANTS 465 prietors or either of them. This deed contained a covenant by the grantees that they would pay their ratable share of the expenses of keeping in repair the dam and raceway, "in proportion to the num- ber of square inches of water by them owned or used ;" and that on a failure by them to make such payments, the grantor should have the right to enter upon said lot, and to shut off therefrom all of said water, until such payments should be made ; and for that purpose, but no other, all watergates through which such water might pass, were declared to be the property of the grantors, their heirs, etc. Subse- quently Older quit-claimed his interest in said grant to Stevens, who afterwards, in December, 1850, received a deed from Smith & Walker of additional land and 500 square inches more of water. This deed contained a covenant by Stevens similar to that above described. By mesne' conveyances, each containing similar covenants on the part of the grantees, the defendants Norton and Ford became equal owners in common of the land and the right to said 1050 square inches of water, and were such owners when the repairs mentioned in the com- plaint were made. * * * i^i 1857, Smith & Walker employed the plaintiff to make certain repairs mentioned in the complaint; and he did work and furnish materials to the value of $1,630.62, and thi? amount was apportioned among the several owners, lessees and users of the water in accordance with the rule above stated — the sum of S221.69 being apportioned to the defendants. After the work was completed and the assessment made, the plaintiff called on Norton, one of the defendants, for payment, and he agreed to pay by giving the note of Norton & Ford if Ford would consent ; but Ford declined to pay or to give the note of the firm as proposed, but offered to set off a note which he held against A. Hyatt Smith, to pay the assessment or such part thereof as it would pay. All parties then called on Smith to obtain his assent to such offset, which he refused. The referee also found that neither at the time when the work was done and the materials furnished by the plaintiff, nor afterwards, had any formal assignment or transfer of the assessments been made to the plaintiff' by the owners of said dam and water power, but the same were handed over to him by A. Hyatt Smith with directions to collect them and apply the money to the payment of said claim for repairs. The referee found also that Norton & Ford had a valid counterclaim against the plaintiff for v$36.34. * * * [The judge found in favor of the plaintiff, but the plaintiff* ex- cepted to his method of computing the amount due from the defend- ants, and took this appeal.] Cole, J."*' It appears to us that this suit was properly brought in the name of the plaintiff. He was employed to do the work and make the repairs on behalf of the proprietors of the water power; *8 Part of the opinion Is omitted. BicRiairrs — ."JO 466 RIGHTS IN THE LAND OF ANOTHER (Part 2 and although there was no formal assignmerff of the account against the defendants for repairs, still it was in fact given to him with di- rections to collect and apply the money to the payment of his claim, so that really he is the party in interest. So that the case may be considered as resting substantially on the same grounds and control- led by the same principles of law, as though the proprietors had done the work, and made the assessment for repairs, and brought their suit for a ratable compensation. If the action could be sustained in the latter case, we cannot see why it cannot now. Could then the proprietors of the water power recover contribution for the repairs, by virtue of the covenants in the deed. * * * 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 ade- quate 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 sev- eral grantees and lessees. This appears to be the plain intent and ob- ject of the covenant. The defendants were let into a participation of the common rights and privileges in the power, and were made sub- ject 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 own- ers 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. * * *- Where a privity of estate exists between the parties, and the cove- nant is one about or affecting the land devised or granted, and tends directly and necessarily to enhance its value or render it more bene- ficial 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 sub- sequently 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 ^e 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 security of Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 467 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 grant- ed. 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 con- tribute to the expense of preserving the water power most unques- tionably relates to the thing granted. We therefore must hold that the covenant is one connected with or annexed to the property granted, and binding upon the defendants. This, we think, is clear upon all tlic authorities. * * * [The case was remanded on other grounds.] FARMERS' & MERCHANTS' IRRIGATION CO. v. HILL. (Supreme Court of Nebraska, 1912. 90 Neb. 847, 134 N. W. 929, 39 L. R. A. [N, S.] 79S, Ann. Cas. 1913B, 524.) Hamer, J.«® The plaintiff, the Farmers' & Merchants' Irrigation Company (appellant in this court), commenced an action in the district court of Dawson county against the defendant, S. J. Hill, to recover a judgment for $750 and interest for a water maintenance fee for the years 1907, 1908. and 1909. The plaintiff alleged that it owned and op- erated an irrigation canal and furnished water to lands upon which water rights were held, and that the defendant owned section S in township 10 N., of range 21 W., in Dawson county, and that one of the main ditches of the plaintiff passed ^through said land; that there was attached to said land a water right which was evidenced by a "water right deed" for 500 acres of said land lying under said ditch, which deed was of record at the time the defendant purchased the land ; that in this water right deed there was a provision which re- quired the payment of 50 cents an acre as an annual maintenance fee ; that the plaintiff was engaged in furnishing water to water users under its said canal ; that the land of the defendant was susceptible of irrigation ; that no part of said maintenance fee had been paid ; and that there was due the plaintiff* from the defendant $750 and in- terest. The defendant answered that he was the present owner of the land, but denied all the other matters alleged. Upon the trial the plaintiff' offered in evidence the deed for the land described in the petition together with the indorsements thereon, all of which were received without objection. There was also offered and 89 Part of the opinion is omitted. 468 RIGHTS IN THE LAND OP ANOTHER (Part 2 redeived in evidence a "water right deed" containing the covenants upon, which plaintiff predicates its right of action. The deed for the land is one of general warranty running from the Nikaniss Company to the defendant, and contains only the ordinary and usual covenants in such a deed. The water right deed from the plaintiff to the Nikaniss Company contains the following conditions : "That the said party of the first part [The Farmers' & Merchants' Irrigation Co.], for and in consideration of the sum of $1,750 to it in hand paid, the receipt whereof is hereby acknowledged, and of the further annual payment hereinafter mentioned and provided for, to be made at the times named in this deed, have sold subject to the limitations and conditions hereinafter named, and by these presents, does sell and convey, unto the said party of the second part [Nikaniss Company], and to its heirs, assigns, and legal representatives, the right to use water, from the canal of the said party of the first part, during the irrigating sea- son of each and every year, in an amount not exceeding the rate of one cubic foot per second of time for each 70 acres of land hereinafter de- scribed, to be used upon and for tlie purpose of irrigating the said land, only, the same being situated in the county of Dawson, state of Ne- braska, to wit: All that part of section 5, in township 10 north, tDf range 21 west, lying south of the main canal of the the party of the first part (except that part taken up by slough) containing 500 acres. The said party of the second part, its heirs, assigns and legal repre- sentatives agree to pay to the party of the first part, its successors and assigns, as a part of the consideration of this grant, annually in advance, on or before the first day of March in each and every year, the further sum of $250, the same being in addition to the consid- eration above expressed, and the amount named is hereby agreed upon as a liquidated sum as compensation to the first party for main- taining and operating said canal which it hereby promises and agrees to do, and the said party of the second part agrees to make said pay- ments well and truly, at the times herein named." * * * The deed from the Nikaniss Company to Silas J. Hill is of the date April 6, 1906, and was filed for record May 10, 1906. The "water right deed" from the Farmers' & Merchants' Irrigation Com- pany to the Nikaniss Company is of the date February 13, 1904, and was filed for record February 24, 1904. On the trial it was stipulated that the plaintiff was a corporation, and that the defendant had paid no part of the maintenance fee claimed by plaintiff in the petition, that the defendant owned the land at the time of the commencement of the action, and that he has owned it at all times since he purchased the same. It was also stipulated for the purposes of the case that at all times mentioned in the petition the plaintiff has been willing and able to furnish water as provided in the "water right deed," but that the defendant at all times refused to recognize any rights or liabilities by reason of such deed, and refused to ask for water or to accept wa- ter thereunder. It was also agreed thaf the "water right deed" was Cll. 4) LEGAL ENFORCEMENT OF COVENANTS 469 duly indexed against the land therein described at the time the same was filed for record. It is the contention of the plaintiff that the "water right deed" at- tached to the land and passed with the change of title, and that, there- fore, the defendant was liable to pay the maintenance fee for each year as it matured. It is said in plaintiff's brief that: "Under the rule established by this court the water right deed attached to the land, and cannot be severed from it. The appellee, the owner of the land, is the only person who can receive any benefit from this water right, and he, in turn, should be held Hable to pay the annual mainte- nance fee." Counsel for the plaintiff contends in his brief "the sole question in this case is, Can appellant maintain a cause of action against appellee to recover this maintenance fee, there having been no express- ed assumption of the obligation in the deed conveying the land to the appellee?" The defendant contends that he cannot be held personally liable, and the district court adopted that view and dismissed the case. The question to be determined is whether the defendant has as- sumed the obligations of the contract entered into between the irriga- tion company and the Nikaniss Company, tlie original owners of the land. The defendant bought the land and received a deed which was in the ordinary form of a warranty deed, and did not mention or re- fer to the contract sued upon. By the purchase of the land and by re- ceiving the deed, does the defendant assume the contract of his gran- tor, and is he personally charged with the obligations of such grantor ? It is argued that section 6825, Ann. St. 1909, obligates the ditch com- pany to keep its canal in repair, and that, therefore, the duty which the Legislature fixes upon the ditch company creates an obligation on its patrons to provide the funds necessary for the performance of the duty. The contract sought to be enforced is executory. The suit brought is in personam. It is brought against the person instead of against the thing, and is not a suit against the land to enforce an al- leged lien, but it is an action against the defendant, and the theory up- on which it is sought to be maintained of necessity would seem to imply the personal promise of the defendant to pay the money. The conveyance made by the Nikaniss Company to the defendant Hill may have transferred to him all the property rights which the Nikaniss Company had in the land conveyed, but, if the grantee did not promise in any manner to assume the obligation of his grantor, how can he be bound ? The argument of counsel for plaintiff is that "there was no reser- vation or suggestion of reservation in the deed from the Nikaniss Company to appellee. Hill. That deed, 'Exhibit B,' it is submitted, carried with it the water right attached to this land as an appurtenance to the land. The acceptance of the deed by appellee Hill from the Nikaniss Company was an acceptance of all the incidents attached to or belonging to the land transferred to appellee (defendant), and charg- ed him with the conditions written therein." The defendant Hill 470 RIGHTS IN THE LAND OF ANOTHER (Part 2 is a stranger to the original contract made between the Farmers' & Merchants' Irrigation Company and the Nikaniss Company. If it may be properly said that the defendant, Hill, received the deed to the land from the Nikaniss Company with notice that the ditch is an ease- ment and with notice of all the rights of the ditch company (Arter- burn V. Beard, 86 Neb. 733, 126 N. W. 379), and therefore he is- charged with such notice, as is said in Seng v. Payne, 87 Neb. 812, 128 N. W. 625, yet it would seem that that does not in any way tend to establish the personal Hability of the defendant. Counsel for the plaintiff seems to have been unable to find any case directly in point which supports his contention. * * * In Lexington Bank v. Sailing, 66 Neb. 180, 92 N. W. 318, it is held that the conveyance of land subject to outstanding incumbrances im- poses upon the purchaser no obligation to pay such incumbrance. In discussing the case -the court said : "It has long been settled in this state that the acceptance of a deed which in express terms conveys land subject to an incumbrance does not impose upon the grantee a personal obligation to pay the debt. He is in such case interested irv discharging the incumbrance, but he owes neither the grantor nor the incumbrancer any duty arising ex contractu. The transaction being nothing more than the purchase of an equity of redemption, no im- plied agreement is deducible from it." We approach the determination of this case with a full realization of the importance of irrigation to the state. While the great bulk of farming in Nebraska is done upon agricultural lands which are not irrigated, yet a very considerable section must always depend upon the successful application of water to agricultural uses. This section of our state is already prosperous, and is destined to support a dense population. Irrigation is to be encouraged and protected in every le- gitimate way. While the plaintiff may be obliged to furnish the de- fendant with water for irrigation purposes if he demands it, and the plaintiff has it, yet the refusal of the defendant to accept the water does not create a personal liability against the defendant. It is contended by the plaintiff that the maintenance fee is by the terms of the "water right deed" made a charge upon the land, and that the defendant by his purchase of the land became personally liable for the payment of such maintenance fee. The trouble with this contention is that neither the terms of his deed nor the several irrigation acts impose upon him any such personal liability. We are of opinion that the trial court correctly determined the question before it. The judgment of the district court is right, and it is affirmed.^" 90 A similar covenant was held to create no personal obligation upon the grantee of the covenantor, but to create a lien upon the land for the price of the water actually furnished. Fresno Canal Co. v. Rowell, 80 Cal 114, 22 Pac. 53, 13 Am. St. Rep. 112 (1889). See Consolidated Arizona Smelting Co. v. Hinchman, 212 Fed. 813 121) C. C. A. 267 (1914). As to the liability of a covenantor after he has conveyed the burdenod Cll. 4) LEGAL ENFORCEMENT OF COVENANTS 471 . (C) Party Wall Covenants GIBSON V. HOLDEN (Supreme Court of Illiiiois, 1885. 115 111. 199, .3 N. E. 282, 56 Am. Kep. 146.) [Holden and Armstrong were the owners of adjoining lots in the city of Chicago. Holden was about to build on his lot, and it was desired by both persons that the wall on the side toward Armstrong's lot should be a party wall. On July 3, 1872, they executed a deed which, after reciting the above facts, provided as follows :] "They therefore agree that said Holden may, in the erection of the improvements on his property, place one-half in width of the wall of his building upon the property of said Armstrong, that said wall shall be suitable for a party wall, and shall continue to be a party wall for- ever. And the said Holden and Armstrong agree to keep, maintain, repair and rebuild said wall, whenever necessary, at the equal joint expense of each. Said wall, when first built, is to be built and paid for by said Holden alone, and whenever said Armstrong uses all or any part of said party wall, he shall first pay to said Holden the cost of one-half of the part of the said wall. * * * "The provisions of this agreement shall be deemed and taken to be covenants running with the land, and shall be binding upon the execu- tors, heirs, devisees and assigns of said parties, and shall bind all persons having, at any time, any interest or estate in said land." [Holden built and paid for the wall. He later conveyed his lot to Emeretta A. Gibson, who continued to own it at the time of this action. The title to Armstrong's lot became vested, by mesne con- veyances, in one Kedzie. Kedzie wished to erect a building and use a portion of the party-wall. Being uncertain as to who was entitled to the money, he paid into court one half the cost of that part of the wall. This bill was filed to settle the rights of Gibson and Holden in the money.] ScHOLFiELD, J.°^ The language of this agreement very clearly shows that this wall was built as a party-wall, and to rem.ain such. It says, after the recital showing the intention of Holden to build the wall, and the mutual desires of the parties that it shall be a party- wall on the line between their lots, one-half of the wall resting on the ground of each : "They therefore agree that said Holden may, in the premises, see Pcden v. Chicago, E. I. & P. Ry. Co., 73 Iowa, 328. .35 N. W. 424, 5 Am. St. Rep. 680 (1887); Sexauer v. Wil.sou. 136 Iowa, 357, 113 JN. W. 941, 14 L. R. A. (N. S.) 185, 15 Ann. Cas. 54 (1907) ; Hickey v. Lake Shore & M. S. Rv. Co., 51 Ohio St. 40, 36 N. E. 072, 23 L. R. A. 396, 46 Am. St. Rep. 545 (1804) ; Carr v. Lowry's Adm'r, 27 Pa. 257 (1856). As to the running of covonauts annexed to a rent charge, see note 14 to V. Cooper, post, p. 566. 91 The stiiteiuent of facts is abridged and part of the opinion is omitted. 472 RIGHTS IN THE LAND OP ANOTHER (Part 2 erection of the improvements on his property, place one-half in width of the wall of his building upon the property of said Armstrong; that said wall shall be suitable for a party-wall, and shall continue to be a party-wall forever." The word "continue" manifestly means from the time of the building of the wall, for there is no other period indicated to which it can have reference. This view is confirmed by the further language : "And the said Holden and Armstrong agree to keep, maintain, repair, and rebuild said wall." When? The language of the agreement, continuing, answers, "Whenever necessary ;" that is to say, at any time from the building of the wall. And this is to be done "at the equal joint expense of each." Had it been intended that the ownership of the wall should be in Holden until such time as Armstrong should pay him for one-half, it would have been the duty of Holden alone, until that time, to have kept, maintained, re- paired, and rebuilt the wall; and we are bound to presume that, had such been the intention, language expressing that the wall should be a party wall ivhen or upon condition that Armstrong should pay for one-half, and that thereafter the wall should be kept, maintained, re- paired, and rebuilt at the equal joint expense of each, would have been used instead of that which was used. The sharing of the burdens of repair, rebuilding, etc., jointly, is an obvious result of a joint title or ownership, and could never be presumed, in the absence of language admitting of no other reasonable construction, as intended to apply to property whereof the title or ownership was in but one of the parties. While, however, it is clear that the title or ownership of the wall is joint the moment it is built, and that it so continues, it is also clear that in order to secure Holden for his advances on the joint account in building the wall, the sole possession of the wall shall be in Holden alone; or, in other words, that Armstrong shall not be allowed to use the wall until he shall repay those advances. Armstrong has title to one-half of the wall, but Holden retains the possession of the whole as a security for his debt.. There is no language used applicable to a sale. When Armstrong desires to use the wall, he is not to pay for one-half its value, or a sum to be agreed upon as the price of one-half of the wall, as we .should expect in case of a sale; he is simply "to first pay to said Holden the cost of one-half part of said wall." Hold- en's necessities for the immediate use of tlie wall are such tliat he is will- ing and consents to loan, in effect, to Armstrong so much money for that indefinite time. Cases, therefore, where parties are, by the deed under which they take title, given one-half of a wall as a party-wall, xvhen or upon condition of making payment, and cases in which the owner of one lot has licensed the owner of the adjoining lot to build a wall for himself, resting one-half of it on each lot and reserving the privilege of thereafter purchasing one-half the wall as a party-wall, are not analogous. In all such cases the title to the whole wall may be reearded as appurtenant to the lot of the builder, and so passing Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 473 by every conveyance of it, until the severance of the half by the pay- ment of the purchase money. The sale of the half of the wall does not occur, nor the title to it pass, in those cases, until the payment is made, and so, necessarily, it is constructively a sale by the assignee of so much of tlie wall. His right to the purchase money is not be- cause he is the assignee of a covenant running with the land, but be- cause he is the vendor of so much of the wall."^ * * * All, therefore, that Holden could have conveyed to another was the title to his lot, and the easement in the half of the wall resting upon the lot of Armstrong for the support of his half of the wall. We think it quite clear from the language of the agreement that it was never intended that more than this should pass by any conveyance of the lot of Holden. Counsel for appellant, however, contend that the concluding paragraph of the agreemen*: shows that it was intended that the right to receive payment for constructing the half of the wall resting on the lot of Armstrong should pass by conveyance as an ap- purtenant to the lot of Holden. That paragraph reads : "The provisions of this agreement shall be deemed and taken to be covenants running with the land, and shall be binding upon tlie exec- utors, heirs, devisees, and assigns of said parties, and shall bind all persons having at any time any interest or estate in said land." It must be apparent to all that this language was hot intended to be taken literally ; for it would be absurd to suppose that an assignee of Armstrong's lot should be bound for the payment of the one-half of the cost of the wall resting on that lot after the amount had once been paid. And it would seem equally apparent that it could not have been intended that payment should be made to the lot-owner, as such, unless the payment would necessarily have the effect to benefit the lot in some way. Unless such a payment, or rather a payment having such an effect, was intended, there is no conceivable reason why Holden should have desired that one debt rather than another should be paid to his assignee. If the debt could not have that effect, why should he want it transferred to his assignee at all ? Why should a debt be transferred by a sale of real estate, unless of tliat character that it would neces- sarily affect the value or quality or the enjoyment of the real es- tate ? Where the covenant is not of a nature that the law permits it to be attached to the estate as a covenant running with the land, it cannot 02 "We think that the proper rule, founded upon reason and fundamental principles, is that, unless payment for an interest in said wall is, by the clear tprras of the contract, made a condition precedent to the vesting of title In )the nonbuilder, such title should be held to vest in such nonbuilder at least »as soon as, under the terms of such contract, he becomes liable to pay the agreed consideration for such interest therein ; that, regardless of the time when the nonbuilder becomes liable for .such consideration, the title should be held to vest in him immediately upon the erection of such wall, if under the terras of such contract he then assumes any responsibilities in relation to such wall, such as liability to keep same in repair or to share in expense of repairs." Hill v. City of Huron. S,*^ S. D. 324, 331, 145 N. W. 570, 57*-' (1914). See also Mickel v. York, 17.5 111. 62, 51 N. E. 848 (1S9S). 474 RIGHTS IX THE LAND OF ANOTHER (Part 2 be made such by agreement of the parties. Masury v. Southworth, 9 Ohio St. 340; Glenn v. Canby, 24 Md. 127; Brewer v. Marshall, 18 N. J. Eq. 2,Z7; Id., 19 N. J. Eq. 537, 97 Am. Dec. 679; notes to Spen- cer's Case, 1 Smith, Lead. Cas. (7th Amer, Ed.) pt. 1, 168. Our conclusion therefore is that tlie fair construction of this clause of the agreement will not warrant us in holding that it was intended the right to receive payment for the half of the cost of the wall should pass by a conveyance of Holden's lot, unless the language of the for- mer part of the agreement is susceptible of that construction, and that it was only intended by this clause that such covenants should run with the land of both parties, or of either party, as were, when considered with reference to their subject-matter, practically adapted to the ac- complishment of that end, and susceptible, legally, of being enforced as such. * * * It seems impossible to hold that the right to receive payment for the cost of one-half the wall ran with the land. One easement was un- doubtedly the consideration of the other. The party-wall was to be built at the joint expense of the lot-owners, but by what particular per- son the materials were to be procured and brought upon the ground, and the mechanical operation of laying up the wall performed, or by whom this was to, be superintended, or by whom the money was to be advanced to make payments, were questions entirely independent of and apart from the ownership of the wall and the character of the easement which the lot-owners had in the part of the wall resting on the lots of each other. The materials might have been furnished, the wall built, and the entire amount paid therefor advanced by a stranger. This was the mere furnishing of so much material and doing of so much work for so much money, or the advancing of so much money to be repaid again, and created only the relations of employer and employe, or borrower and lender. The fact that Holden was furnish- ing materials and doing work for himself on his side of the wall could, by no reasonable construction, affect his relations in regard to the other half of the wall which he was building for Armstrong. There is no claim that the money to be paid by Armstrong, or on his half of the wall, was to be expended upon the lot of Holden, or upon the wall generally, or that it was to be used in any particular way. As to Hol- den, the money, when collected, would be like all other money. An assignee would be no more benefited by receiving this money than by receiving money from any other source, or on any other account. To benefit him as landowner, it must, in some way, affect the value or the use of the land. It is not enough that it simply enri(ihes the assignee by that many dollars. Whether this money should be paid or not, the condition of the wall and of the lot of Holden would remain, in every respect, precisely the same. It would be difficult to give a better illus- tration of a purely collateral contract or covenant, so far as Holden's rights are affected, than this undertaking to pay for the cost of one- half of the wall. * * * Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 475 Counsel for appellant strenuously insist that the ruling in Roche v. Ulman, 104 111, 11, authorizes the plaintiff here to recover. We do not think so. That case states that had an action been brought against Kcdzie, he would have been held liable, but it goes no further. Ked- zie took under the agreement, and with notice of it, and before he can have the benefit of the agreement he must comply with its terms. His lot is charged with ttje burden of paying, that is, in the sense that the wall cannot be used for the benefit of his lot until he does pay ; but that burden is not to be discharged for the benefit of the adjoining lot, or so as in anywise to affect it. Like a mortgage or deed of trust, the land is, in the sense mentioned, burdened with the payment of a debt ; but its payment affects no other land beneficially. We see no cause to disturb tlie judgment of the appellate court. It is therefore affirmed. Judgment affirmed.^' CONDUITT V. ROSS. (Suprome Court of Indiana, 18S5. 102 Ind. 166, 26 N. E. 198.) Mitchell, J. On the 26th day of April, 1875, Julia A. Ross and John Hauck were the owners of adjoining lots in the city of Indian- apolis. Pursuant to a written agreement entered into by Mrs. Ross and her husband on the one part, and Mr. Hauck on the other, she placed one-half the width of the south wall of a four-story brick and stone building which she erected on her lot on the north margin of the Hauck lot. After erecting the building she conveyed the lot, with the improvements thereon, to George P. Bissell, reserving, by a stipulation contained in her deed, the right to receive compensation from adjoin- ing property owners for the building, or use of existing party-walls* Subsequently the appellant became the owner of the Hauck lot, and in 1882 commenced the erection of a building thereon, and attached the same to and used the wall erected by Mrs. Ross. Refusing to make payment, this suit was commenced to recover one-half the orig- inal cost of the wall. Upon issues made, a trial was had, which re- sulted in a finding and judgment for the plaintiff. Counsel for appellant rest their argument for a reversal of this judgment mainly upon tlie proposition that the agreement between »3Acc., where the party wall agreement lacked the tinal covenant con- tained in the deed in Gibson v. Ilolden: Bloch v. Isham, 28 Ind. 37, 92 Am. Dec. 2S7 (1S67) ; Cole v. Hughes, 54 N. Y. 444, 13 Am. Rep. 611 (1873) ; Kenny V. Mackenzie. 12 Ont. App. 346 (1885). Compare Crater v. McCormick, 4 Colo. 196 (1878). A. owned a wall standing wholly on his own land. X. had a lease of an adjoining lot. A. by deed leased to X. the use of one-half of A.'s wall as a party wall for thirty years at a specified rent. A. died, and the parcel own- ed by him was allotted to B. as one of A.'s heirs. X. died, and his lease- hold intere.'=t passed to Y. Held, R. may recover the rent from Y. Mackin V. Haven, 1S7 111. 480, 58 N. E. 448 (1900). 476 RIGHTS IN THE LAND OF ANOTHER (Part 2 Hauck and Mrs. Ross was purely personal to them, and that Conduitt, by using the wall erected in pursuance thereof, came i;nder no obliga- tion whatever in consequence of such use. They insist further, that, if liable at all, the extent of his Hability was the actual value of the wall when used, and not its original cost. The rights and obligations of the parties must be determmed .by a construction of the agreement al- ready referred to, which is of the following tenor: "This agreement between John Hauck of the first part, and Julia A. Ross, and Norman M. Ross, her husband, of the second part, wit- nesseth: That, in consideration that the parties of the second part shall erect a substantial brick wall, twelve inches in thickness, and four stories high, on the line dividing the property of John Hauck and Julia A. Ross, in square 87, in the city of Indianapolis, Marion county, Indiana, which line is twelve feet south of the south line of lot No. 4, in Morris Morris' subdivision of square 87, in the city of Indianapolis, and which wall is to stand six inches in width upon the ground of said Hauck, and six inches upon the ground of said Ross, and is to run back the depth of said Ross' present building, and may at any time be extended further back on the same line the full depth of said lots, by either party, the full consent of said Hauck to the erection of said walls being hereby granted : Now, therefore, said John Hauck here- by binds himself, his heirs, executors, administrators, and assigns, that whenever, after the erection of said wall or walls by the party of the second part, said Hauck, his heirs, executors, administrators, or assigns, shall, in any building he or they may erect on the present ground of said Hauck, use said wall, or any part thereof, or attach any part of his or their building thereto, then the said Julia A. Ross shall be paid, without relief from valuation or appraisement laws, the full value of one-half the original cost of said wall or walls. And it is further agreed that neither party shall have the right to so use any part of said wall or walls as to weaken or endanger the same; and that said Hauck, his heirs, executors, administrators, or assigns shall not, in any wise whatever, use or attach to said wall or walls so to be erected by said Ross, until the said value and costs of one-half there- of shall be ascertained, and paid or tendered to said Julia A. Ross. In witness whereof, we have hereunto set our hands and seals, this 26th day of April, 1875. [Signed] John Hauck. [Seal.] Julia A. Ross. [Seal.] N. M. Ross. [Seal.]" This agreement was duly acknowledged, and recorded in the mis- cellaneous records of Marion county, and it is averred that the appel- lant had actual notice of it at the time he purchased. The liability of the appellant depends upon whether the contract set out constituted a continuing covenant, which became annexed to, and ran with, the Hauck lot. If it did, he is liable according to its terms; if it did not, he is liable in this form of action for nothing. In considering whether a covenant is one which does, or does not, run with land, there are always embraced the following inquiries: (1) Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 477 Is the covenant one which, under any circumstances, may run with land? (2) Was it the intention of the parties, as expressed hi the agreement, that it should so run? Doubtless, a covenant which, from its character, might run with the land, may be so restricted in terms as to make it purely personal, and available to the parties to it, and no other. So, too, a cove'nant may contain apt words to make it a continuing covenant, yet if its nature or the subject-matter of it is such that it does not concern some interest or estate in land, either exist- ing or created by it, it cannot run with land. When, an instrument conveys or grants an interest or right in land, and at the same time contains a covenant in which a right attached to the estate or interest granted is reserved, or when the grantee covenants that he will do some act on the estate or interest granted which will be beneficial to the grantor, either as respects his remaining interest in the lands out of which an interest is granted, or lands adjacent thereto, such cove- nant is one which may become annexed to, and run with, the land, and bind its owners successively. When such grant is made, and contains a covenant so expressed as to show that it was reasonably the intent that it should be continuing, it will be construed as a covenant running with the land. A covenant which may run with the land must have relation to the interest or estate granted, and the act to be done must concern the interest created or conveyed. In Bally v. Wells, 3 Wils. 25, it was said : "When the thing to be done, or omitted to be done, concerns the lands or estate, that is the medium which creates the privity between the plaintiff and defendant." By the contract under consideration, Mrs. Ross acquired the right to enter upon the Hauck lot and erect, and permanently maintain thereon, a party-wall. This was a grant to her of an interest in land, and was of such a character that a perpetual covenant might be an- nexed to it. Snowden v. Wilas, 19 Ind. 10, 81 Am. Dec. 370: Haz- lett V. Sinclair, 76 Ind. 488. 40 Am. Rep. 254, 1 Smith Lead. Cas. (8th Ed.) 161, 162 In consideration of this grant to her, she cove- nanted to do an act beneficial to the remaining interest of Hauck. That act was the erection of a wall so situated as that one-half of it should rest on the margin of his lot and the other half on hers, thus devoting each estate to the mutual support of the party-wall. She, at the same time, covenanted that when she should be reimbursed one- half of the cost of the wall, he or his grantees should acquire a re- ciprocal interest in her lot, and, in legal effect, become owner of one- half the party-wall. This agreement created what has been aptly termed mutual, or cross, easements in favor of each in the lot of the other, and was an arrangement mutually beneficial to both properties. Fitch v Johnson, 104 111. HI ; Roche v. Ullman, Id. 11; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335; Thomson v. Curtis, 28 Iowa, 229. It contaihed, therefore, all the elements necessary to a covenant capable of runnmg with the land. Hazlett v. Sinclair, supra; Rich- 478 RIGHTS IN THE LAND OF ANOTHER (Part 2 ardson v. Tobey, 121 Mass. 457, 23 Am. Rep. 283 ; Standish v. Law- rence, 111 Mass. Ill; Maine v. Cumston, 98 Mass. 317; Savage v. Mason, 3 Cush. (Mass.) 500; Brown v. McKee, 57 N. Y. 684; Ketel- tas V Penfold, 4 E. D. Smith (N. Y ) 122 ; Piatt v. Eggleston, 20 Ohio St. 414 ; Masury v. Southworth, 9 Ohio St. 340 ; Bertram v. Curtis, 31 Iowa, 46; Norfleet v. Cromwell, 70 N.'C. 634, 641, 16 Am. Rep. 787. It is apparent, too, that it was the intention of the parties that the covenant to pay should run with the land. The words used in that connection are those usually and aptly employed for the purpose: "John Hauck hereby binds himself, his heirs, executors, admmistra- tors, and assigns, that whenever, after the erection of said wall or walls by the party of the second part, said Hauck^ his heirs, executors, administrators, or assigns, shall, in any building he or they may erect," etc., 'they will pay," etc. A continuing covenant may exist without the word "assigns," or "grantees," but when these or equivalent words are used, they become persuasive of the intent of the parties. Van Rensselaer v. Hays, 19 N. Y. 68, 75 Am. Dec. 278 It was the mani- fest purpose of the parties that the right to receive payment for the wall should be personal to Mrs. Ross. It was stipulated that payment should be made to Julia A. Ross. It results that the complaint was sufficient, and that the second paragraph of answer, in which it was alleged that the wall, by reason of injuries sustained from fire, was wprth much less than the original cost, was insufficient, and the re- spective ruHngs of the court were not erroneous. The covenant be- ing one which ran with the land, when the appellant availed himself of its benefits he became related to it as the original covenantor, and it became the measure of his obligation. We think it is fairly de- ducible from the complaint that the appellant derived his title through Hauck. Judgment affirmed, with costs.®* «>•* Opinion of Mitchell, C. J., on rehearing, Is omitted. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 479 SOUTHWORTH v. PERRING. (Supreme Court of Kansas, 1905. 71 Kan. 755, 81 Pac. 4S1, 82 Fac. 785, 2 L. R. A. [N. S.] 87, 114 Am. St. Rep. 527.) Mason, J.''^ In 1885 the respective owners of two adjoining lots entered into a written contract ®^ by the terms of which it was agreed that one of them, who was about to erect a brick and stone building upon his lot, should place one of its walls upon the dividing line, and that when the other should build he should use this wall as a division wall, and pay him half its value. The agreement concluded with these words: "The parties hereto bind and obligate their heirs, executors, administrators and assigns to the fulfillment of all the terms and cove- nants of this agreement." The building was accordingly erected. In course of time the lot on which the buildmg stood was conveyed to Hiland Southworth, and the other lot to E. L. Perring. In 1901 Per- ring built upon his property, and made use of the party wall. South- worth then demanded of him pay for half its value, and, upon payment being refused, brought action to enforce it. Judgment was rendered against the plaintifif, who prosecutes error. 95 Parts of tlie opinions are omitted. 9 6 The contract is as follows: "This agreement, made and entered into this 22d day of July, A. D. 1885, by and between G. W. C. Rohrer and Mag- gie A. Rohrer, his wife, and J. E. Bonebrake and Elvira A. Bonebrake, his wife, of Abilene. Kansas, parties of the first part, and W. S. Hodge and I^aura T. Hodge, his wife, of Abilene, Kansas, parties of the second part, witnesseth: That whereas, the parties of the first part, are the owners of lot seven (7) and the parties of the second part are the owners of lot six (li) in Henry, Hodge & Reed's subdivision of Thompson & McCoy's addition to the city of Abilene, Dickinson county. Kansas: Now, therefore, the par- ties of the first part for and in consideration of tbe promises and agreements of the parties of the second part, hereinafter contained, hereby grant and give to the parties of the second part the right and privilege to build the west wall of a two story brick and stone building on the line separating said lots in said subdivision from each other ; that is to say one half of said west wall of said building to be located on said lot seven (7). Said wall shall be of the following material and dimensions, to wit: The base shall be of stone, and be three feet wide and ten feet high ; the first story wall shall be brick, and be sixteen inches wide and sixteen feet high ; the second story wall shall be brick, and be twelve inches thick and ten feet high; all of said wall to extend the full length of said lots on said separating line. And the said parties of the first part further promise and agree that when they shall build on their said lot seven (7) they will pay to the said parties of the second part one-half the value of said west wall and use the same as a di- vision wall ; the value of the same to be fixed by three appraisers to be s*e- lected, one by the parties of the first part, one by the parties of the second part, the two so chosen to select a third one. The parties of the second part for and in consideration of the promises and agreements of the parties of the first part, as herein contained, do hereby promise and agree to build said wall on the location and of the materials and dimensions hereinbefore de- scribed and set out, aud, when said parties of the first part build on their said lot, to take one-half of the value of said wall, to be fixed and deter- mined as hereinbefore provided, and permit the said parties of the first part to use the same as a division wall. The parties hereto bind and obligate their heirs, executors, administrators, and assigns to the fulfillment of all the terms and covenants of this agreement." 480 RIGHTS IN THE LAND OF ANOTHER (Part 2 As appears from this statement, the questions involved are (1) whether the right to compensation provided for in the contract under the circumstances stated remains with the individual who constructed the wall, or has passed to Southworth in virtue of his being the owner of the lot upon which the first building was erected, at the time the wall was made use of by the adjoining proprietor; and (2) whether the liability to pay a part of the value of the wall still exists against the original owner of the second lot, who made the contract, or has shifted to its present owner, who made use of the wall. * * * It is generally conceded to be competent for the parties to make the privilege as well as the duty created by such an agreement follow the ownership of the land, and the disputed question in each case is whether they have done so; the conflict of authority arising upon the interpretation of the language employed. Different conclusions as to the intentions of the parties are reached by different courts upon substantially the same state of facts according to the view taken of the general nature of such contracts. A court that regards them as closely related to the real estate, and inherently adapted to run with it, will be persuaded of the intention of the parties that they should do so upon much less evidence than would convince another court that considers them as essentially personal; * * * It is easier to find support in reason and authority for holding that the obligation to make payment runs with the land than for holding that tlie right to receive payment does. The important inquiry in the .present case is therefore whether Southworth is entitled to collect pay- ment for half the value of the wall. If he is not, the judgment must be affirmed. If he is, the same considerations that justify that con- clusion will necessarily compel also the determination that Perring is the person who must make tlie payment, and the judgment must be reversed. The reasoning in support of the doctrine that the right to demand payment from the second builder passes with each conveyance of the land of the first builder is thus presented in the note in 89 Am. St. Rep. 941, to which reference has already been made : "It seems to us that the more reasonable rule is that an agreement between the owners of adjoinmg premises, whereby one is to build a party wall one-half on the land of each, and the other to pay for one-half of its construc- tion when he uses the wall, creates cross-easements as to each owner, running with the land, with or without notice to the grantee, and is binding on all persons succeeding to the estates to which such ease- ment is appurtenant, and that a purchaser of the estate of an owner so contracting must be required to pay one-half of the cost of the wall, if it is unpaid for at the time of his purchase, and he afterward avails himself of its benefits. [Citing cases.] Under this view, the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passes by every conveyance of it until the severance of the one-half by the payment of the purchase money. The sale of the one- Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 481 half of the wall does not occur, nor the title to it pass, until the pay- ment is made, and thus necessarily it is constructively a sale by the assignee of so much of the wall. His right to the purchase money is not because he is assignee of a covenant running with the land, neces- sarily, but because he is a vendor of so much of the wall, for which the party using it is liable. [Citing cases.]" With regard to the effect of the decisions bearing upon the question, the note continues : "Quite a respectable number of well-considered cases maintain the doctrine that the right to that portion of a party wall resting on the lot of an adjoining owner is not personal to the owner of the lot on which the building is erected, but one running with the land, and that a convey- ance of the lot on which the building is erected passes to the grantee the right to recover of the adjacent owner the value of one-half of the wall when used by him. [Citing cases.] And this rule has been enforced especially under agreements wherein the covenantor has cov- enanted for himself, his executors, heirs, or assigns." * * * Without attempting to declare what general principles relating to the question presented are sustained by the greater number of deci- sions, we shall decide it upon these considerations : We regard con- tracts of the character of that here involved as in their nature so related to the real property affected, and so adapted to impose their obligations and bestow their benefits upon the successors in title of the landowners by whorn they are made, that the purpose that they shall have that effect is readily to be inferred from the employment of language having any substantial tendency in that direction. In the present case we hold that the use of the clause making the terms of the contract binding upon the heirs, executors, administrators, and as- signs of the parties sufficiently indicates that intention. What the effect of the omission of that provision might have been, we do'not now determine. The judgment is reversed, with directions to render judgment for the plaintiff. All the Justices concurring. Opinion denying petition for rehearing. Per Curiam. * * * jt must be conceded * * * that none of the cases, in which the right to receive compensation from one us- ing a party wall already built is held to pass to the grantee of the builder, arose upon a contract precisely like the one here involved. Nevertheless the fact remains that the weight of authority supports the view that party wall contracts may be so drawn as to have this ef- fect, and that in each case the question is whether such is the inten- tion of the parties, as shown by the language used. * * * If the last paragraph [of the party wall contract] as contended by the defendant in error, means only that the personal obligations as- sumed by the parties shall be binding upon their respective estates, then, as said in the motion for a rehearing, it expresses absolutely nothing that the law does not imply, and is utterly without force. It should BiG.RlGHTS— 31 4S2 RIGHTS IN THE LAND OP ANOTHER (Part 2 not be so treated if there is a reasonable and natural construction avail- able that will give it some effect. We interpret it as in substance a stipulation that the covenants of the agreement shall run v^ith the land. It is not expressly said that the benefits of the contract shall accrue to the heirs, executors, administrators, and assigns of the builders of the wall, but there is an express reference to the heirs, executors, administrators, and assigns of all the parties, and the provision that all the terms of the contract shall be binding upon them clearly indi- cates an intention to establish a permanent status between the respec- tive owners of the two lots with reference to the party wall. In the body of the contract the reading is that the first parties shall pay the money to the second parties ; no mention being made of the heirs, executors, administrators, or assigns of either. But the second parties affirmatively agree not only to build the wall according to certain speci- fications, but to take one-half the value, to be fixed in a prescribed manner, and to permit the first parties to use it as a division wall. These agreements are by the very letter of the contract made binding upon the heirs, executors, administrators, and assigns of the second parties. This shows that it was within the contemplation of the par- ties that the payment should be made to the successors in interest of the builders of the wall, quite as explicitly as though their assigns were mentioned each time they were themselves referred to in the con- tract. * * * The motion for a rehearing is denied. ^^ ' CRAWFORD V. KROLLPFEIFFER. (Court of Appeals of New York, 1909. 195 N. Y. 185, 88 N. E. 29, 13." Am. St. Rep. 783.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department, entered January 22, 1908, af- firming a judgment in favor of defendant, entered upon a dismissal of the complaint by the court on trial at Special Term. 07 Ace: Savajre v. Mason, 3 Cush. (Mass.) 500 (1849); Sandberg v. Row- land, 51 Wash. 7, 97 Pac. 1087, 130 Am. St. Rep. 1077 (1908). See Roche v. Ullman, 104 111. 11 (18S2). "Provided always, and the above second clause and the rights of using the party wall thereby conferred shall depend and be contingent upon the said Kantenberger, his heirs, executors, administrators or assigns, paying or causing to be paid, to the said Brusse, his heirs, executors, administrators or assigns, the one half part of the original cost of said wall." Brusse hav- ing erected the wall, conveyed the lot to A., and assigned his claims under the contract to B. Held, A. is entitled to collect one-half the cost of the wall from Kantenberger's grantee, who made use of it as a partv wall. Adams v. Noble, 120 Mich. 545, 79 N. W. 810 (1899). Ace: LoyarMystic Legion v. Jones, 73 Neb. 342, 102 N. W. 621 (1905). Ace, where the language is of promise to pay when the wall is used: Ferguson v. Worrall, 125 Ky. 619, 101 S. W. 906, 9 L. R. A. (N. S.) 1261 (1907). See, also, Piatt v. Eggle- ston, 20 Ohio St. 414 (1S70). Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 483 The plaintiff and Francis Crawford were owners of adjoining par- cels of land, and on February 28, 1899, entered into an agreement in writing, plaintiff being party of the first part, and Francis Crawford being party of the second part, which was duly recorded in the office of the register of the county of New York, in and by which it was provided that the plaintiff should forthwith construct a party wall, the center line of which should be the' line between the two lots. It was further provided that the entire cost of constructing the wall should be borne by the plaintiff or his assigns, and that "the said party of the second part hereto, or his assigns, shall be at liberty at 'any time hereafter to use the said wall for all the purposes of a party wall for any house, which he, or his assigns, may erect on said land owned by the said party of the second part, upon payment by the said party of the second part, or his assigns, to the' said party of the first part, his legal representatives or assigns, the sum of five hundred dol- lars in cash, such payment to be made when the wall is used." It was further provided that, should it become necessary to repair or to rebuild the wall after the same should be used by the party of the second part, or his assigns, the cost thereof should be borne equally by the parties, or their representatives, heirs, executors, administra- tors, or assigns. The final clause of the agreement was as follows : '"Fifth. That this agreement shall be binding on and enure to the bene- fit of the heirs, executors, administrators and assigns of the respective parties hereto, and shall be construed as a covenant running with the land," etc. The plaintiff built the wall contemplated, in connection with the construction of his building. Francis Crawford died seised of the premises adjoining, and his executors conveyed them to another — sub- ject to the party-wall agreement — who built upon the same, using the wall. The grantee of the executors conveyed the premises so built upon to the defendant, subject to the party-wall agreement. This ac- tion was brought to enforce a lien for the amount due under the agree- ment for the use of the party wall. The complaint was dismissed up- on the merits, at the Special Term, and the judgment recovered by the defendant was affirmed by the Appellate Division in the First De- partment. The plaintiff further appeals to this court. Gray. J. (after stating the facts as above). The Appellate Division, in affirming the judgment for the defendant, based its determination upon the ground that the covenant ih the party-wall agreement did not run with the land, within the authority of certain decisions of this court, inasmuch as it did not create any privity of estate. This dis- tinction was pointed out that "where the agreement does not contem- plate the present construction of a party wall, but authorizes its con- struction by either party in the future, the rule is different, and the covenant is said to create a privity of estate and to run with the land." We think that this distinction is one which has been established by our decisions, and that a rule of property has thereby been created 484 RIGHTS IN THE LAND OF ANOTHER (Part 2 which should not be departed from. See Mott v. Oppenheimer, 135 N. Y. 312, 31 N. E. 1097, 17 L. R. A. 409, and Sebald v. Mulholland, 155 N. Y. 455, 50 N. E. 260. Prior to the decision in Mott v. Oppenheimer, the rule had become firmly settled that where an owner of land builds a party wall, under an agreement with his adjoining landowner that, when he or his assigns shall use it, he or they should pay the value of the party wall, the covenant of payment was not one which ran with the land. See Cole V. Hughes, 54 N. Y. 444, 13 Am. Rep. 611; Scott v. McMillan, 76 N. Y. 141 ; Hart v. Lyon, 90 N. Y. 663. In the case of Cole v. Hughes, upon which were rested the decisions in Scott v. McMillan" and in Hart v. Lyon, it was held, in substance, that the party-wall agreement, which was entered into for the purpose of permitting one of the parties to erect the wall, created no privity of estate between the contracting parties, but merely a privity of contract, leaving the burden or liability of payment with the original covenantor. Those cases were actions at law to recover one-half of the value of the party wall against subsequent adjoining owners, upon their using the wall, in which the plaintiffs failed to recover. In the last one, of Hart v. Lyon, the covenant for payment was accompanied in the agreement by a furtlier covenant that the expense of repairing or of re- building the party wall should be borne equally by the parties, their heirs and assigns. This gave occasion to the court to hold that the latter covenant "should be construed as perpetual and as a covenant running with the land, while the other, being personal, could not be so regarded" ; thus plainly intimating that there was a distinction to be observed, where the covenant was prospective in imposing a burden up- on the land in the hands of its future owner. When the case of Mott v. Oppenheimer was decided, the rule of the cases referred to was not sought to be disturbed, and the decision proceeded upon the difference in the situation and in the agreement of the parties. There, neither of the parties to the agreement, ap- parently, was about to build, and they made it with reference to the future. They were adjoining owners of unimproved lots, and through the agreement obtained the necessary authority for the con- struction of a party wall thereafter by either, or by the successors in interest of either, and for the use of the same by the then adjoining owner upon his paying one-half of the then value of the portion used. Subsequently, and when the lands had come into other ownerships, such a party wall was built, and the plaintiff, who had acquired the premises so improved, brought the action against the adjoining land- owner, and was given a lien upon the defendant's premises for the yalue of one-half of the wall. It was held tliat the covenant of the parties to the agreement was not personal, and that it concerned the land and became annexed to the estate. "The effect of the contract," it was said, "clearly was to grant, or to create, an interest in the prem- ises described." Ch. 4) LEGAL ENFORCEMENT OF COVKNANTS 485 Later, in the case of Sebald v. Mulholland, 155 N. Y. 455, 464, 50 N. E. 260, 262, the case of Mott v. Oppenheimer was considered, and, adverting to the fact that it was not proposed, in its decision, to change the rule of the earlier cases, it was held that it was distinguishable in its facts. That disti-nction was pointed out as being in this ; that "the provisions of the agreement in that case related to the future use of the property, and there was no intention to provide for any present or existing situation"; that it was "made with the view that such a contract would be beneficial to the land of both parties, and would bind it when the conditions contemplated should subsequently arise. * * * But in the other cases, * * * as well as in the case at bar, the agreement was in effect a personal covenant between the parties." The agreement in Sebald v. Mulholland was made between one, who was "about to erect a building upon his lot," and another, owning the adjoining land, who agreed for himself and "his personal 1-epresentatives," whenever he or they might desire to use the wall, to pay the due proportionate expense of its construction. The agree- ment differed from that in Mott v. Oppenheimer, not only in the re- spect dwelt upon in the opinion, but also in the fact that the covenant of payment was made by the adjoining lot owner for himself and "his personal representatives." Though I had written the opinion for the court in Mott v. Oppen- heimer, I expressed myself as concurring with Judge Martin, who wrote in Sebald v. Mulholland, upon the ground that the contract then in question required a differen,t construction from that in Mott V. Oppei'iheimer. It was different in the respects noted. The result of this last decision was to establish a test by which it should be ascertained when the covenant in a party-wall agreement ran with the land. The Appellate Division Justices have correctly pronounced upon the rule as it was left by the decisions mentioned, and, as I have said, it being a rule of property, it should stand. The judgment appealed from should be affirmed. CuLLEN, C. J., and Edward T. BartlEtt, Vaxn, Willard Bart- LE^T, and Chase, JJ., concur. Haight, J., not voting. Judgment affinned^ with costs. ^^ 9 8 A. and X., owners of adjoining lots, made a party wall agreement. A. erected a wall as provided. X. conveyed to Y. Y. used the wall as a party wall. A. brought action against Y. for the value of one half the wall, and* the case was submitted upon an agreed statement of fac-t. The court said: "But even if, in accordance with the decision in Cole v. Ilughes, 54 N. Y. 444 [13 Am. Rep. 611 (1873)], cited for the defendant, the agreement to pay money should be considered a personal covenant only, not running with the land of the grantors, yet the plaintiff clearly had a right of property in the waU which she built in the exercise of the right which had been granted to ber in that land. Maine v. Cuniston, 98 Mass. 317 [1867] ; Standish v. l^aw- rence. Ill Mass. Ill [1S72]. The defendant, having made use of the wall so built, cannot deny the plaintiff's right therein, and is bound to compen- sate her for such use, either according to the covenant in the deed from his gr&ntors to the plaintiff, or according to the value of the wall. We need not consider what the amount of such compensation should be, in the absence 486 RIGHTS IX THE LAND OF ANOTHER (Part 2 LINCOLN V. BURRAGE. (Supreme Judicial Court of Massachusetts, 1901. 177 Mass. 378, 58 N. E. G7, 52 L. K. A. 110.) Appeal from a decree of the Superior Court sustaining the defend- ant's demurrer to the declaration. Writ dated July 6, 1899. The declaration alleged that the plaintiffs, as executors of the will of Frank N. Thayer, deceased, by virtue of the powers conferred upon them under said will, conveyed to Franklin T. Rose by deed dated November 9, 1883, a certain parcel of land in Boston on the corner of Commonwealth Avenue and Hereford Street, bounded west- erly on land conveyed by said executors to Richard C. Flower, through the middle of the iDrick party wall ; "that in said deed it was provided as follows : 'Said grantee, by accepting this deed, agrees for himself, and his heirs, and assigns, to pay to said executors, or their successors in said trust from time to time, the value at the time of use of so much of said p^rty wall standing on the described premises, including the pil- ing and foundations under the same, as he or they may at any time use.' "At the time of said conveyance there stood upon the premises described in said deed, one half of a party wall constructed by the said Thayer at his own expense, but said premises were not otherwise built upon, and so remained until the same were purchased by the de- fendant. "Thereafter, on or about January 17, 1899, the defendant purchased the said lot of land, and also the adjoining lot conveyed by said exec- utors to said Flower, as aforesaid, and the same were conveyed to her, subject to the agreement above recited. "The defendant then proceeded to tear down the dwelling house erected on the said adjoining lot, and to construct a building covering of agreement between the parties to this action, because these parties, in tlie case stated, liave themselves assessed tlie amount, by agreeing upon the sura which the plaintiff shall recover if she can .maintain her action." Kichard- s6n V. Tobev. 121 Mass. 457, 459, 23 Am. Rep. 283 (1877). See, also, Irving v. Turnbull, [1900] 2 Q. B. 129 (1899). "Where a party wall is erected by agreement, resting in part on the lands of two adjoining owners, with a covenant that the owner erecting the wall shall have compensation for a portion of the expense from the otlier owner when the latter shall make use of the wall, the obligation to pay arises only when sudi use is made. The covenant runs with the land as against a grantee of such adjoining owner, and the grantee who first avails himself of the benefits of the wall becomes bound to pay his share under his gran- tor's covenant to the owner, who has erected such wall,- and there is no lia- bility on the part of the covenanting grantor, who has made no use of the wall, to pay the stipulated share of the expense either to the adjoining own- er with whom the covenant was made and who erected the wall, or to the grantee who has first availed himself of its benefits." Percival v. Colonial Invfstmeut Co., 140 Iowa, 275, 278, 115 N. W. 911, 24 L. R. A. (N. H.) 293 (1908). See. also, Home v. Macon Tel. Pub. Co., 142 Ga. 489, 83 S. E. 204, Ann. Cas. 1916B, 1212 (1914). Cll. 4) LEGAL ENFORCEMENT OF COVENANTS 487 both of the said lots, and to erect a wall upon the said foundations, and in place of the said party wall. "That the defendant was bound b)' the terms of said agreement, and having torn down the said party wall for the purpose of erecting a building on said premises, and having used the piling and foundations under the same, for the purpose of erecting another wall thereon, be- came liable to the plaintiffs for the value of the whole [one-half] of said party wall, piling and foundations, which, at the time of use thereof, were of the value of $1,500." The defendant demurred to the declaration. The case was heard in the Superior Court by Bell, J., who sustained the demurrer and ordered judgment for the defendant; and the plain- tiffs appealed to this court. Holmes, C. J.*^ The acceptance by Rose of the conveyance to him implied a promise by him to pay for the party wall at the time of use. Although not a covenant, under our decisions such a promise might be held, in equity, if not at law, to follow the analogy of cove- nants running with the land in a case to which that analogy would ap- ply. Manufacturing Co. v. Staples, 164 Mass. 319, 41 N. E. 441, 29 L. R. A. 500. But it is most unusual to see a covenant under which the rights are held in gross and the burdens go with the land. We suspect that it would be hard to find in the books another case like Middlefield v. Knitting Co., 160 Mass. 267, 272, 35 N. E. 780. Com- pare, further, Walsh v. Packard, 165 Mass. 189, 192, 42 N. E. 577, 40 L. R. A. 321, 52 Am. St. Rep. 508. Leaving cases of landlord and tenant on one side, commonly, where t"he burden of a covenant goes with land, the covenant either creates a servitude, or a restriction in the nature of ^a servitude, in favor of a neighboring parcel, or else is in some way incident to and inseparable from such a servitude, or, if attached to the dominant estate, appears to be the quid pro quo for the easement enjoyed. Savage v. Mason, 3 Cush. 500; Richardson V. Tobey, 121 Mass. 457, 23 Am. Rep. 283 ; Norcross v. James, 140 Mass. 188, 191, 2 N. E. 946; King v. Wight, 155 Mass. 444, 29 N. E. 644; Manufacturing Co. v. Staples, 164 Mass. 319, 41 N. E. 441, 29 L. R. A. 500., In the present case Rose's assumpsit did not purport to be for the benefit of the owner for the time being of the adjoining land. The deed which he accepted showed that his grantors had conveyed that land so that they could not annex a promise to it, and disclosed no in- terest on their part to secure compensation for use of the party wall to their grantee. Oti the contrary, the stipulation is in favor of the executors making the conveyance, "or the successors in said trust from time to time," showing in the clearest way that the benefit of the promise was intended to be personal, and a postponed compensation to the estate for the use of a wall which the testator had built. This is »9 Part of the opiuiou is omitted. 488 RIGHTS IN THE LAND OF ANOTHER , (Part 2 the construction upon which this action is brought. But if the promise is personal on the side of the benefit, no reason whatever is shown for departing from the tradition of the law in order to make it follow the land with its burden, as we already have said. Indeed, the words of Rose's promise are satisfied if they be read as a personal promise to pay whenever he or his assigns may use the wall. Furthermore, it never is to be forgotten that under all circumstances it is an anomaly requiring explanation when an active duty is other than personal, and is attached to land. See Norcross v. James, 140 Mass. 188-190, 2 N. E. 946; Cole v. Hughes, 54 N. Y. 444, 13 Am. Rep. 611. This difficulty is felt so strongly in England that, when a duty to pay for a party wall is recognized between owners who have not contracted to- gether personally, it seems likely that it will be worked out in terms of implied contract, as it was in Irving v. Turnbull, [1900] 2 Q. B. 129. See, also, Maine v. Cumston, 98 Mass. 317, 320; Standish v. Lawrence, 111 Mass. Ill, 114; Richardson v. Tobey, 121 Mass. 457, 459, 460, 23 Am. Rep. 283. The plaintiffs put their argument in the form last suggested. But we do not see any reason why a change in the fiction should enlarge their rights. In fact, the defendant did not contract with the plain- tiffs. Any ground upon which she should be held liable in contract would be a fiction. In the present case, where the plaintiffs have no in- terest in the property used by the defendant, it is no better to say that a contract is implied than to say that it runs with the land. If a cove- nant by Rose in the form of the stipulation set forth would not have bound his assigns, even under our law, which permits the burden of such covenants to be transferred, and if, therefore, there was no obliga- tion on the defendant arising from Rose's simple contract on the analo- gy to such a covenant, we conceive that we should be unwarranted in saying that a contract by the defendant was to be implied simply from the facts of that same contract by Rose and the defendant's succession to his title. It is not quite clear that there are any further facts which might strengthen the plaintiffs' case on this latter ground of implied contract. It is not quite clear that the defendant actually contracted even with her grantor. It does not appear that her grantor was Rose. If both these facts be assumed to have been in the form most favorable for the plaintiffs, while it may be that slight circumstances would be laid hold of to avoid circuity, and to establish a privity of contract be- tween the parties to this suit, still it would be difficult to imply a con- tract in favor of the plaintiffs simply on the ground that a contract was made with somebody else. In the cases which have gone fur- thest, the first step has been that both lots have been conveyed under an arrangement with contemplated reciprocal benefits and burdens be- tween the two. Maine v. Cumston, Irving v. Turnbull, ubi su- pra. * * * Judgment qffirmed. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 489 II. Agreements Not Under Seal BURBANK V. PILLSBURY. (Supreme Court of New Hampshire, 1869. 48 N. H. 475, 97 Am. Dec. 638.) [The facts are stated ante, p. 439.] Smith, J."° If Apphia Martin accepted the deed of Johnston, containing a stipulation that certain services should be performed by her, she thereby (if she had legal capacity to contract), impliedly prom- ised to perform these services, and an action of assumpsit might have been maintained against her for non-performance. "A deed poll, when accepted by the grantee, becomes the mutual act of the parties, and a stipulation on the part of the grantee, though it cannot be de- clared upon as his deed, yet by force of his acceptance, is a valid con- tract on his part, by which a right may be reserved or granted, or upon which a suit may be maintained." This language was used by Shaw, C. J., in Newell v. Hill, 2 Mete. (Mass.) 180. in reference to a deed poll containing a clause almost precisely similar to that now un- der consideration ; and there are various other cases where the same general principle has been enunciated; Goodwin v. Gilbert, 9 Mass. 510; Minor v. Deland, 18 Pick. (Mass.) 266; Pike v. Brown, 7 Cush. (Mass.) 133 ; Guild v. Leonard, 18 Pick. (Mass.) 511 ; Maine v. Cumston, 98 Mass. 317, Bigelow, C. J., pp. 319, 320; Atlantic Dock Co. V. Leavitt, 50 Barb. (N. Y.) 135 ; Hufl:' v. Nickerson, 27 Me. 106. Indeed, there are authorities which go so far as to maintain that an action of covenant will lie against a party who accepts such a deed. It is unnecessary to consider here the correctness of this position; for if the contract entered into by a grantee who accepts such a deed poll as Johnston's is not a technical "covenant," it is none the less a binding obligation, the only difference being in the remedy; see 3 Blackstone's Com. 158; and the authorities which hold that an action of covenant will lie are referred to here only by way of showing that the obligation created by the acceptance of such a deed is so nearly akin to a covenant executed by the grantee that it has been seriously contended that there is not even a technical, much less a substantial, diflFerence between them. * * * The next question to be considered is whether the obligation thus entered into by the original grantee is binding on her grantees with notice, or, in other words, whether the burden of the agreement runs with the land, so far as those having notice are concerned. Is the obligation enforceable at bar against the subsequent purchas- ers with notice? The agreement related to the land and contemplated acts to be performed upon the land. The word "assigns" is used, and the acts 100 Part of the opiuion is omitted. 490 RIGHTS IN THE LAND OF ANOTHER (Part 2 to be performed are of a "continuing" nature. Probably the amount of the consideration paid for the original conveyance was less than it would have been if this stipulation had not been inserted in the deed. * * * Upon principle we should say that a subsequent grantee, purchasing with the notice which registry gives of such a stipulation, impliedly enters into the same engagement as the first vendee, and is liable in assumpsit for non-performance of the stipulation. We think that the first grantee in a deed poll like the present stands on the same footing with a devisee taking property under a devise imposing a burden in fa- vor ^f a third party. In Pike v. Brown, 7 Cush. (Mass.) 133, p. 135, Shaw, C. J., expressly asserts that a devise "stands on the same foot- ing with a deed poll." In Veazey v. Whitehouse, 10 N. PI. 409, it was held that assumpsit could be maintained against the grantee of a dev- isee for non-performance of the duties imposed by the devise. The principle of that decision would seem to render the present plaintiff liable to an action of assumpsit at the suit of Johnston for not main- taining the fence. * * * Our conclusion is that the stipulation in Johnston's deed is so far binding upon persons holding under that source of title that assumpsit may be maintained against a subsequent grantee with notice (actual or constructive) if he fails to perform the service stipulated for. If the coverture of Apphia Martin prevented any legal remedy against her, it does not bar the maintenance of an action of assumpsit against her grantees who took the land with notice of the stipulation that they should maintain the fence. * * * Unless the defendant elects to demur, or confess, there must be Judgment for plaintiff. ^''^ KENNEDY v. OWEN. (Supreme Judicial Court of Massachusetts, 18S4. 136 Mass. 199.) Contract. The declaration alleged that the plaintiff, on July 31, 1880, was the owner in fee and occupant of a certain tract of improved land in Greenfield; that the defendant was the owner in fee and oc- cupant of an adjoining tract of improved land; that both of these tracts of land were formerly one undivided lot, of which one Harding C. Woodard was seized in fee; that Woodard, on July 18, 1868, con- veyed to one Jesse A. Coombs the defendant's land, by a deed duly recorded and containing the following condition: "that the said Coombs, his heirs and assigns, shall make and maintain all fences around the granted premises;" that afterwards Coombs, under and by virtue of said condition, made and erected a partition fence between 101 Ace: Georgia Southeru R. Co. v. Reeves, 61 Ga. 492 (ISSO). .See Hins- lale V. Humphrey, 15 Conu. 4.31 (1843), ante, p. 412. Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 41)1 the land so conveyed to him and the remaining part of said lot, which is the same as the plaintiff's land ; tliat said fence was kept up and maintained by Coombs while he remained the owner of said land ; that on September 7, 1868, Coombs conveyed said land in fee to the defendant, by deed duly recorded and containing the following condi- tion: "that the said Owen is to make and maintain all the fences around the granted premises;" that Woodard, on February 7, 1870. by deed duly recorded, conveyed in fee the remaining part of said lot, separated by the said fence, to the plaintiff; that, under and by virtue of said condition, the defendant, as owner of said land ad- joining the land of the plaintiff', became bound by law to keep up and maintain the fence; that on July 31, 1880, said fence had become ruinous and out of repair by the neglect and refusal of the defendant to maintain the same, though repeatedly requested to do so; and that the fence so remained out of repair and unmaintained, by the defend- ant's neglect, during the period of the defendant's ownership of said land, and until she conveyed away her interest therein, on August 14, 1880. Writ dated March 4, 1882. The defendant demurred to the declaration, on the ground that it set forth no legal cause of action. The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this court. C. Allen, J. The particular question which is -presented by the demurrer in this case is settled by the recent decision in jMartin v. Drinan, 128 Mass. 515, where it was held that a stipulation in a deed poll, that the grantee agreed, for himself, his heirs and assigns, to keep in repair a building on adjoining land of the grantor, was not a covenant, and did not run with the land, and that an assign of the grantor could not maintain an action of contract against the grantee for a failure to perform the agreement. The present action is in form an action of contract, and the plaintiff is a purchaser from, and as- sign of, the grantor in the deed which contains the stipulation upon which the plaintiff relies, and, under the decision referred to, cannot maintain an action of contract against the grantee in the deed, es- pecially not against the defendant, who is a purchaser from said grantee. The plaintiff, however, without apparently adverting to the fact that his action is in form an action of contract, has put his argument upon the broader ground that he is in some form entitled to a remedy against the defendant upon the facts stated in his declaration ; and we have considered this broader question, which involves an examina- tion of the nature of the right created by the provision of the deed which is set forth, and of the appropriate remedy for a violation of such right. The plaintiff avers that the deed of the original grantor, Wood- ard, was "with the condition following, to wit, 'that the said Coombs [the grantee], his heirs and assigns, shall make and maintain all fences 492 RIGHTS IN THE LAND OF ANOTHER (Part 2 around the granted premises ;' " and that the deed from Coombs to the defendant was with a condition substantially similar. The deed itself is not before us, by copy or otherwise, so that we have no op- portunity of looking at the language of this. special provision, in con- nection with the rest of the deed. If the plaintiff's averment were to be taken as showing that the deed conveyed an estate on condition subsequent, the question would arise whether the plaintiff could in any form, avail himself of a breach of such condition. But it seems more probable that the provision of the deed was not intended to have that effect, and that it was merely designed to express an obligation or undertaking to make and maintain the fences ; and such appears to be the construction put upon it by the plaintiff's counsel. See Ayl- ing v. Kramer, 133 Mass. 12, 13. It is also clear that the stipulation is not technically a covenant, running with the land. The grantee sealed nothing. In Parish v. Whitney, 3 Gray, 516, it was held that a stipulation in a deed poll, that the grantee, his, heirs and assigns, should erect and perpetually maintain a fence between the land granted and other land of the gran- tor, did not create an incumbrance on the granted premises, within the meaning of a covenant against incumbrances in a deed subsequently made by the grantee. The court' said, that it was not a reservation out of the estate granted, nor a condition, nor a covenant, running with the land, or otherwise ; but that it was only a personal agreement of the grantee, evidenced by his acceptance of the deed, which might bind him and his legal representatives, but did not affect the estate. That case was criticised in Burbank v. Pilsbury, 48 N. H. 475, 97 Am. Dec. 633, where it was held that such an agreement was of the same ef- fect as an express covenant, signed and sealed by the grantee ; that it would run with the land; that it created an incumbrance upon the land; and by implication it was recognized that a subsequent gran- tee would be liable to the original grantor in an action of assumpsit on the agreement. No question arose there, or could arise, whether an assignee of the grantor could maintain such action. A decision sub- stantially similar was made in Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 550, where the stipulation was regarded as a covenant, or a condition ; and it was held that it created an incumbrance on the land, within the meaning of a covenant against incumbrances. In Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335, it was held that a formal covenant by the grantor, in a deed of portion of his land, that he and his heirs and assigns would make and maintain a fence between the land granted and his remaining land, with a provision that this covenant should be perpetual and obligatory upon all per- sons who should become owners of the land adjoining to that grant- ed, created an interest in the nature of an easement, and ran with the land, and created an incumbrance upon the land, within the meaning of a covenant against incumbrances in a subsequent deed of such adjoining land ; and, in referring to Parish v. Whitney, the Ch. 4) LEGAL ENFORCEMENT OF COVENANTS 493 court, by Mr. Justice Gray, incidentally remarked, "If that decision can be supported, it must be as falling within the rules that no ease- ment in or right affecting real estate can be created by contract of the party, except by deed, and that an agreement not sealed by the party who is to perform it cannot create a covenant or run with the land." The above decisions in New Hampshire and Vermont were cited and commented upon. In the later case of Martin v. Drinan [128 Mass. 515], as has been seen, it was explicitly held by this court, in an opinion delivered by Chief Justice Gray, that such an agreement, implied or shown by the acceptance of a deed poll, is not a covenant; and Parish v. Whitney was cited, with apparently a full approval of the decision. It is plain that an agreement not under seal cannot, technically speaking, run with the land. * * * It has never been held or considered in Massachusetts, so far as we are aware, that a stipulation like that contained in the deeds on which the plaintiff relies would have the effect to create an easement of this peculiar description, the right to which could be asserted or protected by an action at law. It certainly is not an exception out of the estate granted. It is not strictly a reservation. It appears to be rather a mere personal obligation, imposed upon and assumed by the grantee, and binding upon him and his legal representatives as an implied contract entered into with the grantor; not amounting to a covenant, or a charge upon the land; but an obligation, which, if enforceable at all against purchasers, is to be enforced against them by a court of equity alone, and having no more force and effect than in case of an express agreement not under seal between two owners of adjoining land. * * * Being .of the opinion, for these reasons, that the judgment of the Superior Court must be affirmed, we do not enter upon the consider- ation of the grave question, whether even upon the assumption that an easement of this peculiar nature was created by the deed, the plaintiff has a remedy, either at law or in equity, against the defendant, who conveyed away her interest in the premises about two years before the action was brought ; there being no averment in the declaration that the plaintiff suffered any actual damage during the time of the defendant's ownership. Judgment affirmed. 494 RIGHTS IN THE LAND OF ANOTHER (Paxt 2 CHAPTER V EQUITABLE ENFORCEMENT OF AGREEMENTS RUN- NING WITH THE LAND SECTION 1.— GENERAL PRINCIPLES TULK V. MOXHAY. (Court of Chancery, 1S48. 2 Phil. 774.) In the year 1808 the plaintiff, being then the owner in fee of the va- cant piece of ground in Leicester Square, as well as of several of the houses forming the square, sold the piece of ground by the descrip- tion of "Leicester Square Garden or Pleasure Ground, with the eques- trian statue then standing in the centre thereof, and the iron railing and stone work round the same," to one Elms in fee: and the deed of conveyance contained a covenant by Elms, for himself, his heirs, and assigns, with the plaintiff, his heirs, executors, and administrators : "That Elms, his heirs, and assigns, should, and would from time to time, and at all times thereafter at his and their own costs and charges, keep and maintain the said piece of ground and Square Gar- den, and the iron railing round the same in its then form, and in suffi- cient and proper repair as a Square Garden and Pleasure Ground, in an open state, uncovered with any buildings, in neat and ornamental order; and that it should be lawful for the inhabitants of Leicester Square, tenants of the plaintiff, on payment of a reasonable rent for the same, to have keys at their own expense and the privilege of ad- mission therewith at any time or times into the said Square Garden and Pleasure Ground." The piece of land so conveyed passed by divers mesne conveyances into the hands of the defendant, whose purchase deed contained no similar covenant with the vendor: but he admitted that he had pur- chased with notice of the covenant in the deed of 1808. The defendant having manifested an intention to alter the charac- ter of the Square Garden, and asserted a right, if he thought fit, to build upon it, the plaintiff, who still remained owner of several houses in the Square, filed this bill for an injunction; and an injunction was granted by the Master of the Rolls, to restrain the defendant from converting or using the piece of ground and Square Garden, and the iron railing round the same, to or for any other purpose than as a Square Garden and Pleasure Ground in an open state, and uncovered with buildings. On a motion, now made, to discharge |hat order. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 495 The Lord Ciiancdllor.* * * * That this court has jurisdic- tion to enforce a contract between the owner of land and his neighbor purchasing a part of it, that the latter shall either use or abstain from using the land purchased in a particular way, is what I never knew disputed. Here there is no question about the contract; the owner of certain houses in the Square sells the land adjoining, with a cove- nant from the purchaser not to use it for any other purpose than as a Square Garden. And it is now contended, not that the vendee could \iolate that contract, but that he might sell the piece of land, and that the purchaser from Him may violate it without this court having any power to interfere.' If that were so, it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless. It is said that, the covenant being one which does not run with the land, this court cannot enforce it ; but the question is, not whether the covenant runs with the land, but- v.heLher a party shall be permitted to use the land in a manner incon- sistent with the contract entered into by his vendor, and with notice of which he purchased.- Of course, the price would be afifected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a great- er price, in consideration of the assignee being allowed to escape from the liability which he had hmiself undertaken. That the question does not depend upon whether the covenant runs with the land, is evident from this, that if there was a mere agreement and no covenant, this court would enforce it against a party purchas- ing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased. There are not only cases before the Vice-Chancellor of England, in which he considered that doctrine as not in dispute ; but looking at the ground on which Lord Eldon disposed of the case of the Duke of Bedford v. The Trustees of the British Museum, 2 My. & K. 552, it is impossible to suppose that he entertained any doubt of it. 1 Part of the opinion is omitted. 2Adjaccnt owners made an unsealed agreement bj'^ which a window In the house of the one was to have a certain amount of light from the land or the othor. The second owner sold to a third person, who saw the window, but had no actual notice of the agreement. Held, reversing the decision of Hall, V. C, he is not bound by the agreement. Allen v. Seekham, L. R. 11< Ch. D. 790 (187S). See, also. Bradley v. Walker, 1.3S N. Y. 291, 299, .33 N. E. 1079 (1S93). "It cannot, I think, be denied that generally speaking a purchaser or mortgagee is bound to inquire into the title of his vendor or mortgagor, and will be affected with notice of what appears upon the title if he does not so inquire ; nor can it, I think, be disputed that this rule applies to a pur- chaser or mortgagee of leasehold estates, as much as it applies to a pur- chaser or mortgagee of freehold estates, or that it applies equally to a ten- ant for a term of years; and I cannot see my way to hold that a rule which applies in all these cases ought not to be held to apply in the case of a ten- ant from year to year." Wilson v. Hart, L. K. 1 Ch. App. 463, 4(J7 (18(3(5). Compare Carter v. Williams, L. R. 9 Eq. Cas. 67S (1870). 496 RIGHTS IN THE LAND OF ANOTHER (Part 2 With respect to the observations of Lord Brougham in Keppell v. Bailey [2 M. & K. 547] he never could have meant to lay down, that this court would not enforce an equity attached to land by the owner, unless under such circumstances as would maintain an action at law. If that be the result of his observations, I can only say that I cannot coincide with it. I think the cases cited before the Vice-Chancellor and this deci- sion of the Master of the Rolls perfectly right, and, therefore, that this injunction must be refused with costs.' HAYWOOD v. BRUNSWICK PERMANENT BENEFIT BUILD- ING SOCIETY. (Court of Appeal, 1881. L. R. 8 Q. B. D. 403.) This was an action against a building society, the mortgagees .of cer- tain land, upon a covenant to build and keep in repair houses erected upon the land. The facts were these : By an indenture dated tlie 17th of May, 1866, made between Charles Jackson and Edward Jackson, Charles Jackson granted a plot of land to Edward to the use that Edward should pay Charles an annual chief rent of £11., and Edward for himself, his heirs, executors, administra- tors, and assigns, covenanted with Charles, his executors and assigns, that he Edward, his heira and assigns, would pay Charles, his heirs and assigns, this rent half-yearly, and would erect and keep in good repair and, when necessary, rebuild, , messuages on the land of the value of double the rent. On the 2nd of March, 1867, Charles Jack- son conveyed to Haywood to the use of Haywood, his heirs and as- signs, the said chief rent and all powers and remedies in respect there- of, together with the benefit of the said covenant. Edward Jackson assigned his interest to MacAndrew. MacAndrew by a deed of the 8th of" September, 1871, mortgaged the premises in question to certain persons described as the trustees of the Brunswick Building Society in 8 "It is strenuously urged, in bohalf of the defendants and respondents, that there was no privity of estate between the mutual covenantors and covenantees, in respect of the premises owned by them respectively, and which were the subjects of the covenants and agreements, and that the covenants did not therefore run with the lands, binding the grantees, and subjecting them to a personal liability thereon. This may be conceded for all the purposes of this action. It is of no importance whether an action at law could be maintained against the grantees of Beers, as upon a covenant running with the land and binding them. Whether it was a covenant run- ning with the land or a collateral covenant, or a covenant in gross, or whether an action at law could be sustained upon it, is not material as afTccHng the jurisdiction of a court of equity, or the right of the owners of the dominant tcnemont to relief upon a disturbance of the easements." Allen, J., in Trustees of Columbia College v. Lynch, 70 N. Y. 440, 448, 2(> Am. Uep. 015 (1ST7J. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 497 fee subject to the rent-charge and covenants above-mentioned. The building society was afterwards incorporated under the Act of 1874, and under the mortgage deed took possession of the land and the buildings on it. It was conceded on the one hand that buildings of the stipulated value had been erected upon the land, and on the other that they had not been kept in repair, and the question was whether, under the circumstances stated, the building society was liable upon the cov- enant to keep them in repair. No question arose as to their liability to pay the chief rent, as the arrears were paid into court in the ac- tion. The case was tried before Stephen, J., without a jury, at the Man- chester Winter Assizes, 1881, who reserved it for furtlier consideration, and after stating the facts as above, gave judgment as follows. * * * The result is that there must be judgment for the plaintiff, with costs. There will be no damages, the parties having agreed that if it is for- mally decided that the defendants are to put the buildings in repair, they must be repaired to the satisfaction of a gentleman agreed upon. The defendants appealed. Brf/i't, L. J.* This appeal must be allowed. I am clearly of opinion, both on principle and on the authority of Milnes v. Branch, 5 M. & S. 411, that this action could not be maintained at common law. Milnes v. Branch. 5 M. & S. 411, must be understood, as it always has been un- derstood, and as Lord St. Leonards (Sug. V. & P. [14th Ed.] p. 590) understood it, and it will be seen, on a reference to his book, that he considers the effect of it to be that a covenant to build does not run with the rent in the hands of an assignee. This being so, the question is reduced to an equitable one. Now the equitable doctrine was brought to a focus in Tulk v. Moxhay, 2 Ph. 774, which is the leading case on this subject. It seems to me that that case decided that an assigiiee taking land subject to a certain class of covenants is bound by such covenants if he has notice of them, and that the class of covenants comprehended within the rule is that cov- enants restricting the mode of using the land only will be enforced. It may be also, but it is not necessary to decide here, that all covenants also which impose such a burden on the land as can be enforced against the land would be enforced. Be that as it may, a covenant to repair is not restrictive and could not be enforced against the land ; therefore such a covenant is within neither rule. It is admitted that there has been no case in which any Court has gone farther than this, and yet if the Court would have been prepared to go farther, such a case would have arisen. The strongest argument to the contrary is, that the rea- son for no Court having gone farther is that a mandatory injunction was not in former times grantable, whereas it is now ; but I cannot help thinking, in spite of this, that if we enlarged the rule as it is * Part of the opinious of Brett aud Cotton, L. JJ., are omitted. Big. Rights — 32 498 RIGHTS IN THE LAND OF ANOTHER (Part 2 contended, we should be making a new equity, which we cannot do. * * * Cotton, L. J. I am of the same opinion on both points. I think that a mere covenant tliat land shall be improved does not run with the land within the rule in Spencer's Case, 1 Sm. L. C. 8th Ed. at page 89, so as to give the plaintiff a right to sue at law. I also think that the plaintiff has no remedy in equit}^ Let us consider the examples in which a Court of Equity has enforced covenants affecting land. We tind that they have been invariably enforced if they have been re- strictive, and that with the exception of the covenants in Cooke v. Chil- cott, 3 Ch. D. 694, only restrictive covenants have been enforced. In Tulk V. Moxhay, 2 Ph. 774, the earliest of the cases. Lord Cottenham says, "That this Court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing a part of it, that the latter shall either use or abstain from using it in a particular way, is what I never knew disputed." In that case the covenant was to use in a par- ticular manner, from vvhich was implied a covenant not to use in any other manner, and the plaintiff obtained an injunction restraining the defendant from using in any other manner, although the covenant was in terms affirmative. At page 778, Lord Cottenham says, "If an equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased." This lays down the real principle that an equity attaches to the owner of the land. It is possible that the doctrine might be extended to cases where there is an equitable charge which might be enforced against the land, but it is not necessary to decide that now ; it is enough to say that with that sole exception the doc- trine could not be farther extended. The covenant to repair can only be enforced by making the owner put his hand into his pocket, and there is nothing which would justify us in going that length. * * * [LiNDLEY, L. J., delivered a concurring opinion.] Appeal allowed,'^ HALL v. EWIN. (Court of Appeal, 1SS7. L. R. 37 Ch. D. 74.) The plaintiff, W. H. Hall, was the owrier of a house in Edgware Road, in the parish of Paddington. By an indenture dated the 3d of November, 1849, the plaintiff granted a lease of the house to G. Tarl- ington for eighty years. The lease contained a covenant by the lessee for himself, his heirs, executors, administrators, and assigns, in the following terms : "That he, his executors, administrators, and assigns, shall not at any time during the said term use, exercise, or carry on in sAcc: Austerberry v. Oldham. L. R. 29 Ch. D. 750 (1SS5) Contra- Holmes v. Buckley, Free, in Ch. 39 (1692). See Foitescue v. Lostwithiel Ry. Co., [Ib'Ji] 3 Ch. G21. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 499 or upon the said hereby demised premises, or permit or suffer any part thereof to be occupied by any person or persons who shall use, occupy, or carry on therein any noisome or oftensive trade, business, or employment whatsoever without the like consent in writing of the said W. H. Hall, his heirs or assigns, first obtained." By an indenture dated the 11th of January, 1851, G. Tarlington, de- mised tlie premises to R. S. Ruddach for the residue of the term of eighty years, except the last three days thereof, by way of mortgage for securing the repayment of a principal sum and interest. By an indenture dated the 19th of September, 1865, the executors of R. S. Ruddach, under the power of sale contained in the mortgage deed, assigned the premises for the residue of the term of eighty years, except the last three days thereof, to the defendant John Ewin. By an indenture dated the 29th of October, 1885, the defendant John Ewin demised the premises to the defendant George McNeff for twenty-one years. This lease contained tlie following covenant by Mc- Xefif : "And also shall not at any time during the said term use, exer- cise, or carry on in or upon the said demised premises any noisome or offensive trade, business, or employment whatsoever without the like consent in writing of the said John Ewin, his executors, admin- istrators, or assigns, first obtained." In tlie month of February, 1886, the defendant McXeff purchased some lions, and opened an exhibition of wild beasts on the premises. He exhibited pictures outside the house, and employed black men to parade in front of it with a gong and trumpet, so that the neighbours complained of the nuisance. The present action was brought by W. H. Hall and C. Breitbart, who was a carver and gilder, keeping a shop two doors from the prem- ises in question, asking for an injunction to restrain Ewin and Mc- Xeff from using tlie premises as an exhibition of wild animals, or otherwise so as to cause a nuisance to the plaintiffs, and also from carrying on upon the premises, or permitting or suffering any part thereof to be occupied by any person carrying on, any noisome or of- fensive trade or business without the consent in writing of the plain- tiff W. H. Hall. In his defence the defendant Ewin pleaded that if the allegations in the statement of claim were correct they created no cause of action against lym, that none of the acts complained of had been committed by him, and that he had given no consent in writing to the acts com- plained of ; but, on the contrary, he had done all in his power, save by bringing an action, to induce McX^'eff to desist from any acts which might cause annoyance to the neighbourhood, and that he was not liable for the alleged acts of McXeif. The existence of the nuisance was sufficiently proved by the evi- dence. There was no evidence of Ewin having in any way encouraged or consented to the exhibition complained of. * * * The case was heard on the 3d of May, 1887, before Air. Justice 500 EIGHTS IN THE LAND OF ANOTHER (Part 2 Kekewich. His Lordship was of opinion that although Ewin was not an assignee of the lease, he was equitably bound by the covenant, and that as he had the power to enforce his own covenants against AIc- Neff and to stop the nuisance, he had broken the covenant against suf- fering the premises to used for the purpose of carrying on a noisome occupation. He therefore granted the injunction against both of the defendants, with costs. From this judgment the defendant Ewin ap- pealed. Cotton, L. J.® This is an appeal by the Defendant Ewin against a judgment of Mr. Justice Kekewich, granting an injunction restraining him from the breach of a certain covenant in a lease. Is tliis right? Ewin is in this position. The plaintiff Hall granted a lease contain- ing tlie covenant in question, and the lessee made a mortgage of the lease by underlease, and the mortgagee sold his interest under his power of sale to Ewin ; therefore Ewin was merely an underlessee and was not bound at law by the covenants in the original lease. He would have been bound if he had taken an assignment of the estate of tlie lessee under the lease, but he took no such assignment. It is useless to consider whether if Ewin had been bound at law the plain- tiff could have maintained an action against him and got damages. If the plaintiff is entitled to relief in this case it must be not on the ground of breach of covenant, but on the ground that he is equitably bound, on the principle laid down in Tulk v. Moxhay, 2 Ph. 774, to use the house in conformity with the covenants in the lease. I am of opinion that it would be an extension of the principle of Tulk v. Moxhay to hold him liable to an injunction in such a case as this. The words of the covenant in the original lease are these. [His Lordship read the cove- nant,] Then what are the facts? The defendant Ewin, who was him- self an underlessee, granted an underlease to McNeff, in which there was a covenant tliat he could not exercise any noisome or offensive trade or business without the consent in writing of Ewin. If the plain- tiffs had shewn that Ewin had granted this underlease for the purpose of its being used for an oft'ensive trade or had granted a written li- cense to McNeff so to use it, he would have acted in a way inconsist- ent with the covenants in the original lease, and I should have had no hesitation in granting an injunction against him; but he has done noth- ing of the kind, and the case made against him is that by standing by allowing the house to be used for the exhibition of wild beasts, he has acted in violation of the covenant. I give no opinion whetlier the plaintiff' would have had a right of action against him if he had been bound in law by the covenant. There is no doubt tliat under the prin- ciple of Tulk v. Moxhay, 2 Ph. 774, if a man had actually done any- thing in contravention of the covenants of which he had notice, the Court would grant an injunction. As I understand Tulk v. Moxhay, the principle there laid down was that if a man bought an underlease, « Statement abridged and part of opinion omitted. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 501 although he was not bound in law by the restrictive covenants of the original lease, yet if he purchased with notice of those covenants the Court of Chancery could not allow him to use the land in contraven- tion of the covenants. That is a sound principle. If a man buys land subject to a restrictive covenant, he regulates the price accordingly, and it would be contrary to equity to allow him to use the land in con- travention of the restriction. But here the plaintiff does not seek to restrain Ewin from using the house in a particular way, or from doing something which will enable the tenant so to use it, but to compel him to bring an action against his tenant who is in possession of the house. The principle of Tulk v. Moxhay, has never been carried so far except in a case before Vice Chancellor Malins. Cooke v. Chilcott, 3 Ch. D. 694. The question came practically before the Court of Ap- peal in Haywood v. Brunswick Permanent Benefit Building Society, 8 Q. B. D. 403, and the Court there laid down that the principle in Tulk V. Moxhay was not to be applied so as to compel a man to do that which will involve him in expense. The covenant in Haywood v. Brunswick Permanent Benefit Building Society was to repair build- ings on the land, and was therefore as much with reference to the land as the covenant in this case, but the Court would not compel the defendant, who was the assignee of the original grantee, to repair the buildings. There is no evidence in this case that the defendant Ewin has given -any license to his tenant to do the act complained of. I think it would be wrong to make an order that would have the effect of compelling him to bring an action, or of making him liable to damages if he did not bring an action. It is said that he did nothing to prevent the use of the house in the way complained of. But be- fore the action was brought it appears from the evidence that the clerk of the plaintiff's solicitor called at the house of the defendant Ewin, and that Ewin informed him that he would see McNeff about the matter, and then the plaintiff himself puts In evidence a letter from McNeff' saying that oui of respect to Ewin's wishes he had stopped the exhibition. It is true that the statement of McNeff, that the ex- hibition was closed, was false, but the plaintiff" has not proved that it was false that Ewin had requested him to stop it. So that on the evidence it stands that there is no proof that the defendant gave per- mission to his tenant to open the exhibition, but it does appear that he spoke to him and requested him to discontinue it. I think it would be wrong to grant an injunction against Ewin under these circum- stances. The injunction against him must therefore be discharg- [LiNDLEY and Lopes, L. JJ., delivered concurring opinions.]' 7A. leased to B. with a covenant, which was apparently also a condition, that. B. "would not make or suffer any * * ♦ offensive use of the prera- ises." B. subleased to C, who made an improper use of them. A. entered and forfeited the lease. B, hrought ejectment to regain possession of the premises. Held, he cannot recover possession. The court (Knowlton, J.) 502 EIGHTS IN THE LAND OF ANOTHER " (Part 2 RANDALL et al. v. LATHAM. (Supreme Court of Connecticut, 1869. 36 Conn. 48.) Bill in equity, to compel the specific performance of an agreement of the respondent with the petitioners' grantor with regard to water from the respondent's raceway for the petitioners' mill ; brought to the Superior Court in Windham county. The respondent was the owner of a water privilege on a stream known as Round Brook, with a grist mill and raceway leading to the same, and, on the 20th of April, 1855, took from one Hiram Thomas a conveyance of a tract of thirty acres adjoining his mill, the grantor remaining the owner of a factory a little below on the same streafii. The deed from Thomas to the respondent contained the following provision : "Reserving and excepting the following privileges, to wit : the privilege of the right of way, in common with the said grantee, in the lane from the said bridge to the said turnpike, nearly eleven feet on the westerly side of said lane, making the whole width of said lane twenty-two feet ; and also, the said grantor is to have the priv- ilege of drawing the water from the ditch of said Latham's grist mill, at all times when the said Latham, or his successor, is not using sufficient water for the accommodation of the factory below said Latham's mill, and the said Latham and his successor are-.to keep a spout ten inches square in the inside, at the bottom of said ditch, to which the said grantor shall at all times have access for the purpose of drawing water as aforesaid." On the 9th day of February, 1866, Thomas conveyed his factory, and the land connected with it, to the petitioner Randall; the deed expressly conveying "all rights and privileges specified in the deed of the grantor to said Joseph B. Latham, dated April 20th, 1855." Ran- dall afterwards conveyed one half the property embraced in his deed to the other petitioner, Harris. The present petition was dated August 10, 1868. Down to this time the respondent had never put in the spout provided for in the deed of Thomas to him, and on the application of the petitioners, after they became the owners of the Thomas factory, refused to put it in paid: "We are of opinion that tlie asreement not 'to make or suffer' an unlawful use of the premises must be interpreted as a stipulation that there shall be no unlawful use by the original lessee, or by any person who is occupying under him. It is easy for the lessee to control the use of the property, and to protect the interests of the lessor and of himself in this particular. With this interpretation, effect is given to the word 'suffer.' It may not be reasonable to hold that the covenant makes the lessee liable for an unlawful use of the property by trespassers, but he may well be held to 'suffer' unlawful use of the property if he does not take effectual measures to prevent such a use bv those who occupy by his authority." Mill- er V. Prescott, 163 Mass. 12, 13, 39 N. E. 409, 410, 47 Am. St. Kep. 4^4 (1895). .Soe L'niversity Club v. Deakin, 265 111. 257, lOG K. E. 790, L. R. A. 1915C, 854 (1914), post, p. G13. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 503 and denied their right to require him to do it. The petitioners by their suit sought to compel him to put it in, and claimed the right, under their deed from Thomas, and as owners of the factory bought of him, to draw water for the factory from the respondent's ditch, and by spout put in and maintained by him, and to which they should have constant access and over which they should have control. The ditch itself was never owned by Thomas, and he had no interest in the same beyond that acquired by the provision of his deed to Latham, and the petitioners had no interest beyond tliat acquired by Thomas' deed to Randall. Upon these facts the case was reserved for the advice of this court. Park, J.* In the deed from Thomas to the respondent the grantor reserved from the premises conveyed the right to draw a certain quan- tity of water at all times when the respondent or his successor should not be using sufficient water for the accommodation of the factory be- low. The grantor owned a factory below the mill deeded to the re- spondent, and the reservation was for the benefit of that factory. There is a provision in the deed in connection with the reservation that the respondent and his successor should keep a spout ten inches square at the bottom of the ditch leading to his grist mill to which the grantor should at all times have access for the purpose of exercising the right reserved in the deed. The reservation taken in connection with this provision is in effect a reservation of the right to draw water through a spout ten inches square. The right reserved is not otherwise limit- ed or defined. That right was never sold to the respondent, but Was subsequently transferred to the petitioners, and is now owned by them in as ample a manner as it formerly was by Thomas. But the deed purports to require the respondent to put in the spout upon land not conveyed, and the question is, whether a court of equity can compel him to do it under the circumstances of the case. That the respond- ent by accepting the deed containing this provision thereby agreed to perform this duty there can be no doubt. The case of Hinsdale v. Humphrey, 15 Conn. 431, is in point. See, also, Townsend v. Ward, 27 Conn. 610;Felch v. Taylor, 13 Pick. (Mass.) 133; Goodwin v. Gilbert, 9 Mass. 510; Burnett v. Lynch, 5 Barn. & Cress. 589. This duty was a part of the consideration of his deed. The respondent has received full compensation, and it is difficult to see why he is not bound to perform it. It will be seen that the agreement merely pre- scribes the mode of exercising the right reserved. Without the agree- ment Thomas would have had the right to draw the water at some proper place on the land conveyed, but in order that the convenience and interest of both parties might be promoted it was agreed that the orifice should be placed at the bottom of the ditch leading to the re- spondent's grist mill. The land of the respondent was selected for the purpose instead of the land conveyed. 8 Tart of the opinion is omitted. 5(7i RIGHTS IN THE LAND OF ANOTHER (Part 2 The reservation of the right to the water would have carried with it an easement in the land conveyed for the purpose of drawing the water, on the principle that where a right is reserved or conveyed what is necessary for the enjoyment of the right, and without which the right would be useless, passes or is retained by implication. And again, if the agreement had not been made no doubt Thomas would have expressly reserved a place for the orifice. The agreement of the respondent prevented his doing this, and shall the respondent be per- mitted now to say that he will not perform his agreement when he has obtained the land of Thomas by means of it, and has been and is now in the enjoyment of the land as his own? If A. agrees to convey to B. a tract of land in consideration that B. will convey to A. an easement in certain other lands, and A. fulfills his part of the agreement and B. goes into possession of the land, there can be no doubt that a court of equity would compel B. to perform his part of the agreement. The respondent therefore can derive no benefit from the fact that the spout was agreed to be placed upon land that Thomas never own- Again it is claimed that the agreement was a mere chose in action, and did not pass by the deed from Thomas to the petitioners. The deed to the petitioners refers to the deed from Thomas to the respond- ent, and expressly conveys all the rights and privileges specified in that deed that Thomas had the right to convey. The right to the water was reserved by that deed. That right was manifestly conveyed to the petitioners. By that deed Thomas acquired an easement in the respondent's land to the spout. That right was an equitable interest in the land and was also conveyed. By that deed the respondent agreed with Thomas to put in the spout. The act of putting in the spout is intimately connected with the easement, so much so that the easement could not be enjoyed without the performance of this duty. Thomas had no right to go upon the respond- ent's land and dig up the soil for the purpose of inserting the spout, neither have the petitioners. The spout was agreed* to be placed in the bottom of the ditch leading to the respondent's grist mill. The respondent has the right to select the place in the ditch where it shall be put, and to attend himself to the putting and keeping of it there. For aught that we can discover this may be an important qual- ification of the right given to Thomas to have it there, A conveyance therefore of the equitable easement carried with it the privilege of the respondent inseparably connected with it. Again, the promise of the respondent to put in the spout cannot be regarded as a sepa- rate and independent promise, even if it is a duty onerous to be per- formed. He agreed not only to grant an easement in his land, but to put it in a condition to be enjoyed. An easement in that condition he promised Thomas in consideration for the land he conveyed. An equitable easement in that promised condition, Thomas conveyed to the petitioners. Again, if the promise to put in the spout was a chose Ch, 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 505 in action, it was transferred to the petitioners by virtue of the statute of 1864. That statute applies to assignments existing when the act was passed as well as to those that should thereafter be made. * * * It is further claimed that the petitioners cannot sustain their bill because the finding does not show tliat the spout is needed to supply the lower mill with water. We think the respondent is right in this claim. But the want of a finding upon this subject may have been owing to oversight on the part of counsel in neglecting to offer evi- dence upon a point not in dispute between the parties, and we think the proper course therefore is to advise the Superior Court that if it shall be found on a further hearing of the case that the spout is needed to supply the petitioner's mill with water, the prayer of the petition should be granted. And we so advise. In this opinion the other judges concurred." COUNTRYMAN v. DECK. (Supreme Court of New York, 1SS3. 13 Abb. N. C. 110.) The plaintiff David F. Countryman and his wife, Emma J., brought this action for a specific performance of an alleged covenant to main- tain a fence. It appeared, that on April 1, 1875, Simpson, owning a farm, con- veyed a lot of land out of it to one Woodward, by warranty deed, which contained, after the description of the land, the following words: "Provided always that the party of the second part shall fence and keep fenced the premises above described." Woodward entered upon the lot, and fenced it. He afterwards con- veyed to defendant. Simpson died, and his daughter, Emma J. Countryman, and two sons, succeeded to his title to the farm. The two sons afterwards con- veyed their interests to plaintiffs, who thus become the owners of the entire Simpson farm. Defendant refused to keep the fence about his lot in repair, and this action was brought to compel him to do it, the fence having become too dilapidated to serve the ordinary purpose of a fence. »A., who owned a reservoir and several mill privileges upon the stream below, wbich was supplied by the reservoir, conveyed one of the sites with water privileges to B. in fee. The deed contained a stipulation that B. and his assigu.s should pay one-fifth of the flowage damage caused by the dam. In a bill in eiiuity by A.'s successors against B.'s assigns to recover this one-fifth, it was held that the stipulation created a right in A. and its suc- cessors, that could be enforced against the laud in the hands of B.'s assigns, biit not as a personal obligation. Whitteuton Mfg. Co. v. Staples, 164 Mass. 319, 41 N. E. 441, 29 L. K. A. 500 (1895). See Rochester Lodge, No. 21. A. F. & A. M., v. Graliam, Go Minn. 457, an N. W. 79, 37 L. R. A. 404 (1S9G). 506 RIGHTS IX TOE LAND OP ANOTHER (Part 2 RuMSEY, J^° [After holding that the proviso was equivalent to a covenant by the grantee:] The only remaining question is as to the relief to be given to the plaintiffs. The duty of the defendant is to keep up the fence, and the plaintiffs -are not called upon to do it (Beach V. Grain, 2 N. Y. 86, 49 Am. Dec. 369). The covenant is a continuous one, and plaintiffs cannot get the full benefit of it if they are put to a suit for damages each time the defendant fails to perform. There is no such uncertainty about it as to forbid a decree for spe- cific performance. In Jones v. Seligman (81 N. Y. 190), the duty im- posed upon a railroad company to build a fence was decreed to be performed, and in People v. R. & S. L. R. R. Co. (76 N. Y. 294), per- formance of the like duty was compelled by mandamus. If the build- ing or repair of a fence may be compelled when the duty is imposed by statute, there is no reason why it may not be decreed when it is as- sumed by contract. The judgment should be that, defendant keep the fence in repair where it adjoins the premises of the plaintiffs, with costs to plaintiffs. ^^ NORCROSS et al. v. JAMES et al. (Supreme Judicial Court of Massachusetts. 18S5. 140 Mass. 188, 2 X. E. 94U.) Holmes, J. One Kibbe conveyed to one Flynt a valuable quarry of six acres, bounded by other land of the grantor, with covenants as follows : "And I .do, for myself, my heirs, executors, and adminis- trators, covenant with the said Flynt, his heirs and assigns, that I am lawfully seized in fee of the afore-granted premises ; that they are free of all incumbrances; that I will not open or work, or allow any person or persons to open or work, any quarry or quarries on my farm or premises in said Long Meadow." By mesne conveyances the plaintiffs have become possessed of the quarry conveyed to Flynt, and the de- fendants of the surrounding land referred to in the covenant. The defendants are quarrying stone in their land like that quarried by the plaintiffs : and the plaintiffs bring their bill for an injunction. The discussion of the question under what circumstances a land-owner is entitled to rights created by way of covenant with a former owner of the land has been much confused since the time of Lord Coke, by neg- lecting a distinction, which he stated with perfect clearness, between those rights which run only with the estate in the land and those which are said to be attached to the land itself : "So note a diversity be- 10 Part of the opinion is omitted. 11 Certain land was allotted to A. in fee under an inclosure act, the award providing that A. and his assigns should maintain a division ditch and hedge between the lot awarded and an adjoining lot. The defendant had acquired A.'s land, and had broken down the hedge and filled the ditcli. Held, the plaintiff, as owner of the adjoining lot. is entitled to an injunction ordering the defendant to restore the ditch and hedge. Bidvvell v, Ilolden, G3 L. T. (N. a.) 104 (1800). Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 507 tvveen a use or warranty and the like things annexed to the estate of the land in privity, and commons, advowsons, and other hereditaments annexed to the possession of the land." Chudleigh's Case, 1 Coke, 122b; s. c. 1 Poph. 70, 71. Rights of the class represented by the ancient warranty, and now by the usual covenants for title, are pure matters of contract, and from a very early date down to comparatively modern times, lawyers have been perplexed with the question, how an assignee could sue up- on a contract to which he was not a party. West, Symboleog. I,^ § 35 ; Wing. Max. 44, pi. 20, 55, pi. 10; Co. Litt. 117a; Sir Moyle Finch's Case, 4 Inst. 85. But an heir could sue upon a warranty of his an- cestor, because for that purpose he was eadem persona cum anteces- sore. See Y. B. 20 & 21 Edw. I, 232, (Rolle's Ed.;) Gates v. Frith, Hob. 130; Bain v. Cooper, 1 Dowl. Pr. Cas. (N. S.) 11, 14. And the conception was gradually extended in a qualified way to assigns, where thcv were mentioned in the deed. Bract, fol. 17b; 67a, 380b; 381; Fleta, III, c. 14, § 6; 1 Britt. (Nich. Ed.) 255, 256; Y. B. 20 Edw. I, 232-234, (Rolle's Ed.;) Fitz. Abr. "Covenant," pi. 28; Vin. Abr. "Voucher," N, p. 59; Y. B. 14 Hen. IV, 56; 20 Plen. VI. 6, 34b; Old Natura Brevium, "Covenant," 67, B, C, in Rastell's Law Tracts Ed. 1534; m. k Student, I, c. 8; F. N. B. 145, A; Co. Litt. 384b; Com. Dig. "Covenant," B 3 ; Middlemore at. Goodale, Cro. Car. 503, 505 ; s. c. W. Jones, 406; Philpot v. Hoare, 2 Atk. 219. But in order that an assignee should be so far identified in law with the original cove- nantee he must have the same estate, — that is, the same status or in- heritance, — and thus the same persona quoad the contract. But, as will be seen, the privity of estate which is thus required is privity of estate with the original covenantee, not with the original covenantor; and this is the only privity of which there is anything said in the an- cient books. See further^ Y. B. 21 & 22 Edw. I, 148, (Rolle's Ed. ;) 14 Hen. IV, pi. 5. Of course we are not now speaking of cases of landlord and tenant, and it will be seen that the doctrine has no nec- essary connection with tenure. F. N. B. 134, E. We may add that the burden of an ordinary warranty in fee did not fall upon assigns, although it might upon an heir, as representing the person of his an- cestor. Y. B. :^ & 33 Edw. I, 516, (Rolle's Ed.) On the other hand, if the rights in question were of the class to which commons belonged, and of which easements are the most con- spicuous type, these rights, whether created by prescription, grant, or covenant, when once acquired were attached to the land, and went with it, irrespective of privity, into all hands, even those of a disseizor. "So a disseizor, abator, intruder, or the lord by escheat, etc., shall have them as things annexed to the land." Chudleigh's Case, ubi supra. See 1 Britt. (Nich. Ed.) 361; Keilw. 145, 146, pi. 15; F. N. B. 180, N; Sir H. Nevil's Case, Plowd. 377, 381. In like manner, when, as was usual, although not invariable, the duty was regarded as falling upon land, the burden of the covenant or grant went with the servient 508 RIGHTS IN THE LAND OF ANOTHER (Part 2 land into all hands, and of course there was no need to mention as- signs. See cases supra et infra. The phrase consecrated to cases where privity was not necessary was transit terra cum onere. Bract, fol. 382, a, b; Fleta, VI, c. 23, § 17. See Y. B. 29 Edw. I, 360, (Rolle's Ed.;) Keilw. 113, pi. 45. And it was said that "a covenant which runs and rests with the land lies for or against the assignee at common law, quia transit terra cum onere, although the assignee be not named in the covenant." Hyde v. Dean of Windsor, Cro. Eliz. 552; Id. 457; s. c, Co. R. 24a ; Albore, 399. It is not necessary to consider whether possession of the land alone would have been sufficient to maintain the action of covenant. It is enough for our present purposes that it carried the right of proper- ty. Neither is it necessary to consider the difficulties that have some- times arisen in distinguishing rights of this latter class from pure mat- ters of contract, by reason of their having embraced active duties as well as those purely passive and negative ones, which are plainly interests carved out of a servient estate and matters of grant. The most con- spicuous example is Pakenham's Case, Y. B. 42 Edw. Ill, 3 pi. 14, where the plaintiff recovered in covenant as terra-tenant, although not heir, upon a covenant or prescriptive duty to sing in the chapel of his manor. Spencer's Case, 5 Coke, 16a, 17b. Another which has been recognized in this commonwealth is the quasi easement to have fences maintained. Bronson v. Coffin, 108 Mass. 175, 185, 11 Am. Rep. 335; s. c. 118 Mass. 156. Repairs were dealt with on the same footing. They were likened to estovers and other rights of common. 5 Coke, 24 a, b; Hyde v. Dean of Windsor, ubi supra. See F. N. B. 127; Spencer's Case, ubi supra; Ewre v. Strickland, Cro. Car. 240; Brett V. Cumberland, 1 RoUe, 359, 360; and other examples might be giv- en. See Bract. 382, a, b ; Fleta, VI, c. 23, § 17 ; Y. B. 20 Edw. I, 360; Keilw. 2a, pi. 2; Y. B. 6 Hen. VII, 14b, pi. 2; Co. Litt. 384b, 385a; Cockson v. Cock, Cro. Jac. 125; Bush v. Cole, 12 Mod. 24; s. c, 1 Salk. 196 ; 1 Show. 388 ; Carth. 232 ; Sale v. Kitchingham, 10 Mod. 158. The cases are generally landlord and tenant cases; but that fact has nothing to do with the principles laid down. When it is said, in this class of cases, that there must be a privity of estate between the covenantor and the covenantee, it only means that the covenant must impose such a burden on the land of the covenantor as to be in substance, or to carry with it, a grant of an easement or qua- si easement, or must be in aid of such a grant, (Bronson v. Coffin, ubi supra,) which is generally true, although, as has been shown, not in- variably, (Pakenham's Case, ubi supra,) and although not quite rec- oncilable with all the old cases, except by somewhat hypothetical his- torical explanation. But the expression "privity of estate," in this sense, is of modern use, and has been carried over from the cases of warranty, where it was used with a wholly different meaning. In the main, the line between the two classes of cases distinguished by Lord Coke is sufficiently clear ; and it is enough to say that the pres- Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 509 ent covenant falls .into the second class, if either. Notwithstanding its place among the covenants for title, it purports to create a pure neg- ative restriction on the use of land, and we will take it as intended to do so for the benefit of the land conveyed. The restriction is in form within the equitable doctrine of notice. Whitney v. Union Ry. Co., 11 Gray, 359, 71 Am. Dec. 715; Parker v. Nightingale, 6 Allen, 341, 83 Am. Dec. 632. See Tulk v. Moxhay, 2 Phil. 774 ; Haywood v. Bruns- wick Building Soc, 8 Q. B. Div. 403; London & S. W. Ry. Co. v. Gomm, 20 Ch. Div. 562; Austerberry v. Oldham, 29 Ch. Div. 750. But as the deed is recorded, it does not matter whether the plaintiff's case is discussed on this footing or on that of easement. The question remains, whether, even if we make the further as- sumption, that the covenant was valid as a contract between the par- ties, it is of a kind which the law permits to be attached to land in such a sense as to restrict the Use of one parcel in all hands for the benefit of whoever may hold the other, whatever the principle invoked ; for equity will no more enforce every restriction that can be devised than the common law will recognize as creating an easement every grant purporting to limit the use of land in favor of other land. The prin- ciple of policy applied to affirmative covenants, applies also to negative ones. They must ''touch and concern" or "extend to the support of the thing" conveyed. 5 Coke, 16a; Id. 24b. They must be "for the benefit of the estate." Cockson v. Cock, Cro. Jac. 125. Or, as it is said more broadly, new and unusual incidents cannot be attached to land by wav either of benefit or of burden. Keppell v. Bailey, 2 Mvlne & K. 517, '535; Ackroyd v. Smith, 10 C. B. 164; Hill v. Tupper, 2 Hurl. & C. 121. The covenant under consideration, as it stands on the report, falls outside the limits of this rule, even in the narrower form. In what way does it extend to the support of the plaintiff's quarry? It does not make the use or occupation of it more convenient. It does not in any way aflFect the use or . occupation ; it simply tends indirectly to increase its value, by excluding a competitor from the market for its products. If it be asked what is the difference in principle between an easement to have land unbuilt upon, such as was recognized in Brooks v. Reynolds, 106 Mass. 31, and an easement to have a quarry left unop- ened, the answer is that, whether a difference of degree or of kind, the distinction is plain between a grant or covenant that looks to direct physical advantage in the occupation of the dominant estate, such as light and air, and one which only concerns it in the indirect way which we have mentioned. The scope of the covenant and the circumstanc- es show that it is not directed to the quiet enjoyment of the dominant land. Again, this covenant illustrates the further meaning of the rule against unusual incidents. If it is of a nature to be attached to land, as the plaintiff contends, it creates an easement of monopoly, — an easement not to be competed with, — and in that interest alone a right 510 RIGHTS IN THE LAND OF ANOTHER (Part 2 to prohibit one owner from exercising the usual incidents of prop- erty. It is true that a man could accomplish the same results by buy- ing the whole land and regulating production. But it does not follow because you can do a thing in one way that you can do it in all ; and we think that if this covenant were regarded as one which bound all subsequent owners of the land to keep its products out of commerce, there would be much greater difficulty in sustaining its validity than if it be treated as merely personal in its burden. Whether that is its true construction as well as its only legal operation, and whether, so construed, it is or is not valid, are matters on which we express no opinion. Bill dismissed. ^^ 12 Ace: Bill by the covenantee aarainst the assignee of the covenantor, Kettle River R. Co. v., Eastern Ry. Co., of Minnesota, 41 Minn. 461, 43 N. W. 469, 6 L. R. A. Ill (1SS9) ; Tardy v. Creasy, 81 Va. 553, 59 Am. Rep. 676 (1SS6) ; assignee of covenantee against assigiiee of covenantor, Brew^er V. Marshall, 19 N. J. Eq. 537, 97 Am. Dec. 679 (1868). One Lewis ov^'ned land on the Illinois river and ran a ferry across the river ; he conveyed to the grantor of the appellee in this case another piece of land on the river with a stipulation in the deed that the grantee, his heirs and assigns, should not establish a ferry thereon without the consent of Lewis, his heirs and assigns. The appellee ran a ferry from the second piece without the consent of Lewis or of the appellant who had purchased from I^ewis tlie first mentioned lot. Appellant sought an injunction. The court granted the injunction, saying, per Craig, J.: "Appellee purchased with notice of the agreement in the deed under which his grantor derived title, as the deed had been upon record for many years, and it can not be claimed he was misled or in any manner deceived, and, under the authori- ties cited, it is within the power of a court of equity to enforce the contract upon which, alone, Lewis, tlie original owner, parted with the title to the land, and compel appellee to abide by its terms and conditions. It would be a strange doctrine, indeed, to hold that an owner of real estate could not convey a part, and restrict its use in such a manner as not to impair or lessen in value the portion retained. We are aware of no restriction upon the right of an owner to convey upon such terms and conditions as he may see proper, and as may be acceptable to the grantee, except that the right should be exercised with proper regard to public policy, and that the con- veyance should not be made in restraint of trade. When a vendee pur- chases with full notice of a valid agreement- between his vendor and the original owner, concerning the manner in which the property is to be occu- pied, it is but a reasonable and equitable requirement to hold him bound to abide by the contract under which the land was conveyed. We are, there- fore, of opinion, that the provision in the deed proliibiting the use of the eight acre tract for ferry purposes, is obligatory upon appellee, and it was within the power of a court of equity to enjoin him from using the land in a manner and for a purpose actually prohibited by the terms of one of the deeds which is a link in the chain of title under which he holds the land." Frye v. Partridge, 82 111. 267, 272- (1876). Ace: Robbins v. "Webb, 68 Ala. 393 (1880); covenantee against assignee of covenantor. Hodge v. Sloan, 107 N. Y. 244, 17 N. E. 335, 1 Am. St. Kep. 816 (18S7) ; Stines v. Dorman, 25 Ohio St. 580 (1874). See, also, Keppell v. Bailey, 2 M. & K. 517 (1834); Taylor v. Owen, 2 Blackf. (Ind.) 301. 20 Am. Dec. 115 (1830), ante, p. 380 ; Lynn v. Mt. Savage Iron Co.. 34 Md. 603 (1S71) ; Bald Eagle Val. R. Co. v. Nittanv Val. R. Co., 171 Pa. 284, 33 Atl. 239, 29 L. R. A. 423, 50 Am. St. Rep. 807 (1895). Ch. 5) EQUITABLE ENIOIICEMENT OF AGREEMENTS 511 SECTION 2.— RUNNING OF BENEFIT AND BURDEN MASTER V. HANSARD. (Court of Appeal, 1S7G. L. R. 4. Ch. D. 718.) By indenture dated the 1st of December, 1853, Hansard and Rogers demised to one Masters a piece of ground at the Anerley Road, Penge, with a building upon it known as the Crystal Palace Hotel, for the term of ninety-nine years, from the 24th of June, 1852. The deed con- tained a covenant by Masters that he, his executors, administrators, or assigns, would not during the term do anything upon the premises which might be an annoyance to the neighbourhood or to the lessees or tenants of the lessors, their heirs or assigns, or diminish the value of the adjacent property, nor should nor would erect or build, or cause or permit to be erected or built, upon the said piece or parcel of ground thereby demised iany dwelling-house, outbuilding, coach-house, stable, or other building nearer tlian tw^enty feetto the Anerley Road, and also should not nor would during the term erect or cause or per- mit to be erected upon the demised ground any other messuage, build- ing, or erection whatsoever without first submitting Jhe plans thereof to the lessors, their assigns, and obtaining their approval of the same. On the 14th of May, 1858, Plansard and Rogers demised to Hantler an adjoining piece of ground with two houses tliereon, for ninety-four years, from the 24th of June, 1857. This lease contained a negative covenant on the part of the lessee identical in its terms with the above negative covenant contained in the lease to Masters. It did not appear that Hantler when he took this lease knew anything of the terms of the lease to Masters. After divers mesne assignments, the leasehold interest created 'by the lease to Masters was, by indenture dated the 12th of October, 1875, assigned to the Crystal Palace Hotel Company. The leasehold interest created by the lease of 1858 had in the meantime become vested in the plaintiflf. Miss Master. In 1876 the Crystal Palace Hotel Company, determined to enlarge the hotel by adding a new wing, and on the 10th of March, 1876, wrote to the lessors asking their permission to extend the hotel as shewn by the plan. It was not in dispute that the additional building was one the erection of which could have been restrained as unduly interfering with the plaintiff's lights had they been ancient lights. The plaintiff com- plained to the lessors, who stated that the buildings would be pro- ceeded with. The plaintiff thereupon commenced her action against' the lessors and the Crystal Palace Flotel Company, claiming that the lessors might be restrained from giving their approval to the plans, or 513 RIGHTS IN THE LAND OF ANOTHER (P^rt 2 their consent to the erection of any buildings which would interfere with the access of light to the plaintiff's house; that the defendants might be restrained from erecting or permitting to continue erected on the lands of which the company were the tenants the building then in course of erection or any other buildings which would interfere with the access of "light to the plaintiff's house, or diminish the value of tlie house, and for damages and further relief. Vice Chancellor Bacon held that the plaintiff could not claim to have the restrictive covenant enforced in her favour, but directed an inquiry as to damages. The Crystal Palace Hotel Company appealed. The appeal was heard on the 25th November, 1876. Jamds, L. J. I am of opinion that this decree cannot be sustained. The defendants, the Crystal Palace Hotel Company, are owners of a property under a demise for a term of years, and are erecting on it a building which may lawfully be erected unless they have put themselves under an obligation not to do so. The plaintiff is the owner of an ad- joining property under another demise for a term of years from the same lessors, of later date than that of the defendants; he therefore cannot have acquired, any right against them, except under some grant which could lawfully be made. Now, the lessors could not grant any- thing so as to derogate from the rights of their prior grantee. The respondent, therefore, was obliged to rest his case on the covenants entered into by the defendants' predecessor in title with the grantor, and the question is whether those covenants bring the case within the rule which says that the owner of two tenements who grants one of them cannot derogate from his own grant by anything he does on the property wliich he reser^^es, the property granted becoming entitled to easements known as easements derived by the disposition of the own- er of two tenements. The plaintiff contends that though the grantor when he made the grant under which the plaintiff' claims had ceased to be the ov/ner of the defendants' tenement, he had a right which he could have used in such a way as to prevent the plaintiff's enjoyment of his property being interfered with in any way in which the grantor would not have been allowed to interfere with it if he had retained the de- fendants' propert}^ and that this interest brings the case within the rule as to the owner of two tenements. It would be a novel extension of that doctrine to hold that not only a grantor cannot do anything to derogate from his own grant, but that he is obliged to take active steps to prevent other persons from doing what he might not him- self do. It cannot, in my opinion, be said, that a right under a covenant is properly within the meaning of this rule. Then the plaintiff says: "You, my lessor, could, under the covenants entered into with you by your other lessee, have prevented this erection ; you had and have that right ; you have granted me a piece of ground with a house on it, and you ought to enforce those covenants for my benefit." Now, when the plaintiff took his lease he had no knowledge of the nature of the title to tlie adjoining property; all he knew was that the piece of property Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 513 adjoining his had once been part of tlie same estate ; he knew noth- ing of the covenant; the grant to him contains no notice of it, and it would be strange to say that a man who has taken a covenant for his own benefit can be prevented from dealing with it for his own benefit because he has granted parcels of the land to other people. The cov- enant is not mentioned in the plaintiff's lease, and it cannot have been the intention of the parties thus to restrict the use of a covenant which was entered into, not for the benefit of the adjoining land, but for the benefit of the owner of the estate, that he mJght be able to make the most of it. It would be too great an extension of the doctrine of implied obligation to raise by implication a right in the nature of an equitable assignment of the benefit of the covenant. There was no bargain as to enforcing the covenant for the benefit of the plaintiff, and we can- not imply one.^^ RENALS V. COWLISHAW. (High Court of Justice, Chancery Division, 1878. L. R. 9 Ch. D. 125.) By an indenture dated the 29th of September, 1845, Messrs. Hoby, Winterbotham, and Russell, as the devisees in trust for sale of a man- sion-house and residential property known as the Mill Hill estate, and of certain pieces of land adjoining thereto, sold and conveyed two of these adjoining pieces of land to one Francis Shaw, in fee, and Shaw thereby for himself, his heirs, executors, and administrators, covenant- ed with Hoby, Winterbotham, and Russell, their heirs, executors, ad- ministrators, and assigns, not to build upon the lands thereby conveyed within a certain distance from a particular road leading "to the Mill Hill house and property belonging to the said trustee" ; that the garden walls or palisades to be set up along the side of the said road should stand back a certain distance from the centre of the road ; that any house to be built on the land adjoining the road should be of a certain value, and of an elevation at least equal to that of the houses on a particular road; and that no trade or business should be carried on in any such houses or buildings, but that the same should be used as private dwelling-houses only. The conveyance did not state that this covenant was for the protection of the residential property, or in ref- 13 Baggallay and Bramwell, L. J J., delivered concurring opinions. A. leased one of a row of shops to B. and covenanted that he would not lease any of the other shops for the purpose of the trade of a greengrocer. B. assigned his lease to C. A. leased another shop to X., with a covenant by X. that he would use the premises as an oil warehouse only. X. later began to use it as a greengrocery. C. brought action against A. and X. for an injunction to restrain A. from letting or continuing to let the premises to X. to be used as a greengrocery or from permitting them to be so used, and to restrain X. from so using them. Held, C. has no cause of action against either defendant. Ashby v. Wilson, [1900] 1 Ch. 66 (1899). See, also. Kemp V. Bird, L. R. .5 Ch. D. 549 (1877) ; University Club of Chicago v. Deakin, 265 111. 257, 106 N. E. 790, L. R. A. 1915C, 854 (1914), post, p. 613. BlG.RlGHTS— 33 514 RIGHTS IN THE LAND OF ANOTHER (Part 2 erence to the other adjoining pieces of land, or make any statement or reference thereto. The same trustees also sold about this time other pieces of lands adjoining the Mill Hill estate; and the conveyance to the purchaser in each case contained restrictive covenants similar to those above men- tioned. It was alleged by t^e plaintiffs in their statement of claim that the intention of all the restrictive covenants was to protect and main- tain the value of the Mill Hill estate, and to secure the continuance of the surrounding neighborhood as purely residential in character. The trustees, in December, 1854, sold and conveyed the Mill Hill estate to T. P. Bainbrigge in .fee, and, Bainbrigge having died, his devisees in trust, in September, 1870, sold and conveyed the same es- tate to the plaintiffs as tenants in common in fee. In neither of these two conveyances were there covenants similar to those in the conveyance to Shaw, but there was in the conveyance to the plaintiffs a covenant by them with their vendors not to build a public-house or carry on offensive trades upon a particular portion of the property conveyed to them. Neither of the two conveyances recited or mentioned in any way the conveyance or sale to Shaw, or the existence of any restrictive covenant entered into by Shaw or by Gadsby, nor did either of them recite or mention the sales or convey- ances of the other pieces of land sold as above mentioned. There had also been a devolution title with regard to the lands sold to Shaw, for after his death Mary Shaw, the person entitled under his will, in August, 1867, sold and conveyed part of the lands comprised in the indenture of September, 1845, to John Gadsby in fee, who, in his conveyance, entered into covenants with Mary Shaw, her heirs, exec- utors, and administrators, substantially identical mutatis mutandis with the restrictive covenants contained in the indenture of the 29th of September, 1845. And subsequently the lands so conveyed to Gads- by were sold and conveyed (with certain buildings erected thereon) by Gadsby, or persons deriving title through him, to the defendants as tenants in common in fee. The plaintiffs alleged that the defendants were carrying on upon their lands and in contravention of the restrictive covenants first above mentioned, the trade of wheelwrights, smiths, and bent timber manu- facturers, and had erected a high chimney which emitted thick black smoke, and that those acts were destructive of the residential character of the neighborhood, and had deteriorated the value and amenity of the Mill Hill estate. By their action they claimed an injunction to restrain the defendants from carrying on any trade or business upon their lands, and from permitting the buildings erected thereon to be used otherwise than as private houses, and from contravening in any manner the restrictive covenants contained in the indenture of Sep- tember, 1845. The principal question argued, and that on which the decision turn- ed, was as to the right of the plaintiff's to sue upon these covenants. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 515 It appeared that no contract had been entered into or representa- tions made, either upon the occasion of the purchase by Bainbrigge from the trustees, or upon the purchase from Bainbrigge by the plain- tiffs, that the purchaser should have the benefit of the covenants en- tered into by Shaw with the trustees. * * * Hall, V. C. I think this case is governed by Keates v. Lyon, by Child V. Douglas, Kay, 560; 5 D., M. & G. 739, as ultimately decided by Vice Chancellor Wood, 2 Jur. (N. S.) 950, who, after granting an interlocutory injunction in the first instance, refused to grant the plain- tiff an injunction at the hearing, and by the case of Master v. Han- sard [4 Ch. D. 724] . The law as to the burden of and the persons entitled to the benefit of covenants in conveyances in fee, was certainly not in a satisfactory state ; but it is now well settled that the burden of a covenant entered into by a grantee in fee for himself, his heirs, and assigns, although not running with the land at law so as to give a legal remedy against the owner thereof for the time beings is binding upon the owner of it for the time being, in equity, having notice thereof. Who, then (other than the original covenantee), is entitled to the benefit of the cove- nant? From the cases of Mann v. Stephens, 15 Sim. Z77 , Western v. Macdermott, Law Rep. 2 Ch. 72, and Coles v. Sims, Kay, 56; 5 D., M. & G. 1, it may, I .think, be considered as determined that any one who has acquired land, being one of several lots laid out for sale ^s building plots where the court is satisfied that it was the intention that each one of the several purchasers should be bound by and should, as against the others, have the benefit of the covenants entered into by each of the purchasers, is entitled to the benefit of the covenant; and that this right, that is, the benefit of the covenant, enures to the assign of the first purchaser, in other words, runs with the land of such purchaser. This right exists not only where the several parties execute a mutual deed of covenant, but wherever a mutiial contract can be sufficiently established. A purchaser may also be entitled to the benefit of a restrictive covenant entered into with his vendor by another or others where his vendor has contracted with him that he shall be the assign of it, that is, have the benefit of the covenant. And such covenant need not be express, but may be collected from the transaction of sale and purchase. In considering this, the expressed or otherwise apparent purpose or object of the covenant, in reference to its being intended to be annexed to other property, or to its being only obtained to enable the covenantee more advantageously to deal with his property, is important to be attended to. Whether the pur- chaser is the purchaser of all the land retained by his vendor when the covenant was entered into, is also important. If he is not, it may be important to take into consideration whether his vendor has sold off part of the land so retained, and if he has done so, whether or not he has so sold subject to a similar covenant: whether the purchaser 516 RIGHTS IN THE LAND OF ANOTHER (Part 2 claiming the benefit of the covenant has entered into a similar covenant may not be so important. The plaintiffs in this case, in their statement of claim, rest their case upon their being "assigns" of the Mill Hill estate, and they say that as the vendors to Shaw were the owners of that estate when they sold to Shaw a parcel of land adjoining it, the restrictive covenants entered in- to by the purchaser of that parcel of land must be taken to have been entered into with them for the purpose of protecting the Mill Hill estate, which they retained; and, therefore, that the benefit of that restrictive covenant goes to the assign of that estate, irrespective of whether or not any representation that such a covenant had been en- tered into by a purchaser from the vendors was made to such assigns, and without any contract by the vendors that that purchaser should have the benefit of that covenant. The argument must, it would seem, go to this length, viz., that in such a case a purchaser becomes entitled to the covenant even although he did not know of the existence of the covenant, and that although the purchaser is not (as the purchasers in the present case were not), purchaser of all the property retained by the vendor upon the occasion of the conveyance containing the cove- nants. It appears to me that the three cases to which I have referred show that this is not the law of this Court; and that in order to enable a purchaser as an assign (such purchaser not being an assign of all that the vendor retained when he executed the conveyance con- taining the covenants, and that conveyance not showing that the bene- fit of the covenant was intended to enure for the time being of each portion of the estate so retained or of the portion of the estate of which the plaintiff is assign), to claim the benefit of a restrictive cove- nant, this, at least, must appear, that the assign acquired his property with the benefit of the covenant, that is, it must appear that the bene- fit of the covenant was part of the subject-matter of the purchase. Lord Justice Bramwell, in Master v. Hansard, 4 Ch. D. 724, said: "I am satisfied that tlie restrictive covenant was not put in for the benefit of this particular property, but for the benefit of the lessors to enable them to make the most of the property which they retained." In the present case I think that the covenants were put in with a hke object. If it had appeared in the conveyance to Bainbrigge that there were such restrictive covenants in conveyances -already executed, and expressly or otherwise that Bainbrigge was to have the benefit of them, he and the plaintiffs, as claiming through him, would have been entitled to the benefit of them. But there being in the conveyance to Bainbrigge no reference to the existence of such covenants by recital of the conveyances containing them or otherwise, the plaintiffs cannot be treated as entitled to the benefit of them. This action must be dis- missed with costs. ^* i4Affirmed L. R. 11 Ch. D. 866 (1879). Ace: Berryman v. Hotel Savoy Co., 160 Cal. 559, 117 Pac. 677, 37 L. R. A. (N. S.) 5 (1911); Badger v. Boardman, 16 Gray (Mass.) 559 (1860); Mc- Ch. 5) . EQUITABLE ENFORCEMENT OF AGREEMENTS 517 WEIL V. HILL. (Supreme Court of Alabama, 1915. 193 Ala. 407, 69 South. 438.) Sayre, J.^** Appellee, Hill, owns the lot, 50 by 165 feet, on the southwest corner of Perry street and Jeff Davis avenue, in the city of Montgomery. On the lot is a residence which stands 47V2 ^^et from the line of Perry street, on which the property fronts. Appellee was preparing to move his house nearer to the Perry street line, when appellant, Weil, who owns. and occupies the lot next south of appel- lant's [appellee's] lot, filed this bill to enjoin the operation. There are two branches to appellee's title. On May 1, 1909, he took a warranty deed from Mrs. Winn, in which the property conveyed is described as fronting 50 feet on Perry and running back 165 feet on Jeff Davis. Ten days later he took from Sloane Young and his wife, Cora, a deed of all their right, title, and interest, "both in ex- pectancy and in reversion," in and to the rear 35 feet of the same lot, which part Young had purchased from one Rugely, and to which, for convenience, we will refer as the Rugely lot. Prior to September 25, 1901, in pursuance oi an understanding between Young and Josie W. Hubbard, who afterwards became Mrs. Winn, and in anticipation of the deed to be presently mentioned, the latter had moved her house on the lot she then owned back on a line with the house now occupied by appellant on the adjacent lot, and then on the last-mentioned date Young, his wife' joining in the deed, on the recited consideration of $1 and "the covenants and agreements" contained in the deed, con- veyed the Rugely lot to Josie W. Hubbard by a deed containing, after a description of the property and customary v\fords of conveyance, the following clause or stipulation: "But it is covenanted and agreed by the said Josie W. Hubbard, her heirs, legal representatives, and assignees, and it is made a cov- enant running with said land, that no house or other structure shall ever be erected on the lot immediately east of the lot hereby conveyed on the southwest comer of Perry street and Jeff Davis avenue, near- er or closer to the said Perry street than the house now standing on the said lot, the front of which is, to wit, forty-seven and one-half feet west of the west line of said Perry street, and a violation of this covenant shall immediately work a reversion to the grantors herein, their heirs and assignees, of the land hereby conveyed : Provided, however, that should the residence, as now occupied by us, be rebuilt, remodeled, moved, or in other respects be changed or altered, so as to place same or other permanent improvements on said lot nearer to said Perry street than now located, then this obligation shall be by such change in location of said house or buildings on said lot so modified as Nichol V. Townsend, 73 N. J. Eq. 276, 67 Atl. 93S (1907) ; Hutchinson v. Thoui- as, 190 Pa. 242, 42 Atl. 681 (1899). 16 Part of the oijinion is omitted. 518 RIGHTS IN THE LAND OF ANOTHER . (Part 2 to require only that the house and other improvements on the lot of said Josie W. Hubbard shall maintain, with such changes or improve- ments as may be made upon the premises owned by us, the same rel- ative position to the said Perry street as is now established." This deed was recorded in July, 1906, thus putting appellee upon no- tice of it, and upon the quoted clause appellant bases his claim of right to the injunction sought. His theory is that the clause should be held effectual in equity by way of estoppel or implied covenant to impose upon the lot previously owned by Josie W, Hubbard the burden of a. "perpetual building restriction, a negative easement or servitude, ap- purtenant to Ml"s. Young's adjacent lot, now owned by him, and bind- ing upon any purchaser of the Hubbard lot having notice — this, though the instrument of conveyance containing the clause was not subscrib- ed by the grantee and would fix a servitude on property not the sub- ject of conveyance for the benefit of the property of a grantor whose interest in the property conveyed was nothing more than an inchoate right of dower. The title by which appellant claims to have acceded to the right in question has two branches also. Cora Young and husband mortgaged the lot to the Travelers' Insurance Company on June 27, 1899. It will be observed that this was before the execution of the deed con- taining the clause. This mortgage was foreclosed on April 5, 1906, and appellant became the purchaser and received a deed from the per- son executing the power. This title is stated in the bill, but we do not consider that it affects the question under consideration. In the mean- time — that is, on December 28, 1901 — Cora and Sloane Young had conveyed the lot to J. H. Clisby, "together with all improvements and appurtenances thereunto belonging." In 1908 Clisby conveyed the lot to Weil, describing it by metes and bounds, and to this description add- ing words and figures which, with slight changes to avoid confusion, may be quoted as follows : "Being the same property described in the mortgage of Cora Young and Sloane Young, her husband, to the Travelers' Insurance Company, date June 27, 1899, recorded in Mortgage Book 160, page 272, in the office of the judge of probate of Montgomery county, Ala., except one piece thereof heretofore released therefrom as described in Deed Book 45, page 307, with an alleyway ten feet w^ide running into said proper- ty from the south side of Jeff Davis avenue." There was no other mention of appurtenances. It was held in the court below on these facts that appellant's case was devoid of equity, and from the decree dismissing his bill this ap- peal has been taken. In determining the intention expressed by the deed of September 25, 1901, we must look to the terms of the deed itself, and then, if there be any doubt, to the relation between the properties and the cir- cumstances of the parties at the time so far as disclose'd by the bill, to the end that good sense and sound equity may be applied in the Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 519 case. Appellant assumed, of course, the burden of stating facts that would show the intent to create a right in the nature of an easement over the land of the grantee, that the intent had been so expressed as to become binding on land, and his accession to the right; but, the right appearing, the court will not presume that it was intended to be in gross, or personal to the grantor, if it can fairly be construed as appurtenant to his land ; and one test, approved by experience and common sense, is that the restriction would naturally operate to en- hance the value of the grantor's adjacent property, whether retained by them or conveyed to another. "If this be so, it is a strong circum- stance to indicate that the restriction was not intended for the mere personal benefit of the grantor, but as a permanent servitude beneficial to the owner of the land, whoever he may be, and appendant to the premises." McMahon v. Williams, 79 Ala. 289. And, besides, in this case, from the language of the clause itself, considered apart from the stipulation for a "reversion," it is apparent that the parties intended that the advantage contracted for should be permanent and appurte- nant to the grantors' adjacent land — this, for one reason, among oth- ers, that the covenant was made "a covenant running with said land." Appellee would refer these words to the land granted and deny their application to the adjacent lot previously owned by the grantee. But on looking to the substance of things it is seen that appellee's application would render the words insensible. If an easement was created run- ning with any land, it runs with the land upon which it was fastened as a burden. It would be quite anomalous to destroy the entire bene- ficial meaning of the covenant on the sole consideration that the par- ties made an inapt use of the single word of reference, "said." Nor, on the other hand, was the easement made personal by reason of the fact that it was not expressly limited to the "heirs" of the grantors, since it appeared otherwise from the deed that the right to enjoy the easement was not limited to the lifetime of the grantors therein — this, in view of the statute which provides that words of inheritance are not necessary to the creation of a fee. Code, § 3396; Jones on Ease- ments, § 45, ' There can be no doubt, aside from what effect may be given to the provision for a "reversion," that Josie Hubbard, by her acceptance of • the deed to the Rugely lot, containing the clause in question, agreed for herself, her heirs, legal representatives, and assigns, that no house or other structure should ever be erected on the lot she previously own- ed nearer to Perry street than the house then standing on the lot. * * * But appellee insists that the clause as a whole amounted to nothing more than a condition upon the grantee's title in the Rugely lot, and that the condition has been extinguished by the unity of the condition and the fee which has been effected by the quitclaim deed of the Youngs to him. Unmistakably the clause does connect the covenant with the condition, and makes it manifest that the condition was in- 520 RIGHTS IN THE LAND OF ANOTHER (Part 2 serted to secure the advantage expressed in the covenant. Nor is it to be escaped that the stipulation was so framed that a violation of the covenant would operate immediately, and therefore without the necessity for an entry, to determine the estate granted. The clear le- gal effect was to create a conditional limitation upon the fee granted, leaving in the grantors a possibility of reverter conditioned upon an unobstructed flow of light and air and view across the front of the adjacent Hubbard lot. But the covenant and the condition, though thus connected, affected different estates. The condition affected the title to the Rugely lot and inured to the benefit of the grantors, their heirs and assigns. The covenant imposed upon the front 47^2 feet of the Hubbard lot a servitude for the benefit of, and annexed to, the grantors' adjacent lot. This servitude was the real considera- tion for the grant. The condition, imposed for security, was an in- corporeal hereditament in the grantors, the legal title to which would pass only by express grant. But the easement, as we have seen, pass- ed by a grant of the land to which it was appurtenant. There is no reason, therefore, why the extinguishment by the Youngs of the con- dition upon one title should affect the servitude appurtenant to the other which had previously passed by their deed to Clisby. An exist- ing easement appurtenant to land passes by the deed of the owner of the land to his grantee and follows the land without any mention what- ever. Jones on Easements, §§ 22, 23, and authorities cited. * * * It is next insisted that a covenant purporting to ireserve an easement in favor of one other than the grantor is void. It is true that an ease- ment cannot in strict law be made the subject of a reservation or ex- ception, for it does not issue out of land as a profit, nor is it parcel of the land. But it is to be observed, in line with what we have previously said and the authorities cited above, that in equity at least the effort is to construe and enforce contracts according to the true intention of the parties so long as they violate no principle of public policy, and such a reservation or exception is construed precisely as if it were a counter grant by the grantee, and thus, in a case like this, effect is given to the plain terms of the contract. Goold v. G. W. Deep Coal Co., 2 De G., J. & S. 600; Dyer v. Sanford, 9 Mete. (Mass.) 395, 43 Am. Dec. 399. In this bill there is no attempt to enforce an easement created by reservation or exception. The effort is to enforce a notion- al counter grant, or a covenant implied by the grantee's acceptance of the benefits of the deed to him, and the court of chancery will compel performance, whether the servitude bargained for is imposed upon the land granted or other land of the grantee so situated with respect to land of the grantor as that the former may naturally and reasona- bly be made servient to the latter.^® Mrs. Young joined in the con- veyance, and though her interest in the tract conveyed was only an 18 See Rogers v. Hosegood, [1900] 2 Ch. 388; Hays v. St. Faul M. Jfl. Church, 196 IlL 633, 63 N. E. 1040 (1902). Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 521 inchoate right' of dower, her release constituted a valuable considera- tion for her execution of the deed. Gordon v. Tweedy, 71 Ala. 202. These considerations lead us to conclude that the decree denying appellant's right to the easement in question, and dismissing his bill for want of equity, was error. Reversed and remanded. Anderson, C. J., and McClEllan and Gardner, JJ., concur." PARKER V. NIGHTINGALE. (Supreme Judicial Court of Massacliusetts, 1863. 6 Allen, 341, 83 Am. Dec. 632.) Bill in equity, setting forth that before the erection of houses upon Hay ward Place in the city of Boston, the land upon and adjoining the same was owned by Lemuel Hayward ; that upon his decease it was arranged among his heirs that the said land should be laid out into a court or street, to be occupied exclusively for dwelling-houses ; that for this purpose the land was surveyed and laid out into a court, with house lots of convenient size, and numbered, following the course of the court ; that this agreement was made to facilitate the sale and iTAcc: Peck v. Conway. 119 Mass. 546 (1876); Codman v. Bradley, 2U1 ]Mass. 361, 87 N. E. 591 (1909) ; Coughlin v. Barker, 46 Mo. App. 54 (1891) ; Hills V. Miller, 3 Paige (N. Y.) 254, 24 Am. Dec. 218 (1832) ; Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. 190 (1S90); Clark v. Martin, 49 Pa. 289 (1865). See Judd v. Robinson, 41 Colo. 222, 92 Pac. 724, 124 Am. St. Rep. 128, 14 Ann. Cas. 1018 (1907). "When the benefit has been once clearly annexed to one piece Of land, it passes by assignment of that land, and may be said to run with it, in contemplation as well of equity as of law, without proof of special bargain or representation on the assignment. In such a case it runs, not because the conscience of either party is affected, but because the purchaser has bought something which inhered in or was annexed to the land bought. This is the reason why, in dealing with the burden, the purchaser's conscience is not affected by notice of covenants which were part of the original bar- gain on the first sale, but were merely personal and collateral, while it is affected by notice of those which touch and concern the land. The covenant must be one that is capable of running with the land before the question of the purchaser's conscience and the equity affecting it can come into dis- cussion. When, as in Renals v. Cowlishaw, 9 Ch. 'D. 125 [1878], there is no indication in the original conveyance, or in the circumstances attending it, that the burden of the restrictive covenant is imposed for the benefit of the land reserved, or any particular part of it, then it becomes necessary to examine the circumstances under which any part of the land reserved is sold, in order to see whether a benefit, not originally annexed to it, has be- come annexed to it on the sale, so that the purchaser is deemed to have bought it with the land, and this can hardly be the case when the purchaser did not know of the existence of the restrictive covenant. But when, as here, it has been once annexed to the land reserved, then it is not necessary to spell an intention out of surrounding facts, such as the existence of ii building scheme, statements of auctions, and such like circumstances, and the presumption must be that it passes on a sale of that land, unless there is something to rebut it, and the purchaser's ignorance of the existence of the covenant does not defeat the presumption." Farwell, J., In Rogers v Hosegood, [1900] 2 Ch. 388, 407. 522 RIGHTS IN THE LAND OF ANOTHER (Part 2 enhance the value of the lots, by rendering them quiet and desirable places of abode ; that it was further agreed among the heirs, and those who represented such as were not sui juris, that in conveying the lots the grantees should be laid under an express obligation or duty, by way of condition or limitation of the use thereof, that "no other build- ing, except one of brick or stone, of not less than three stories in height, and for a dwelling-house only," should be erected by them ; that the deeds of all the lots were made upon this condition, and the same was either repeated or referred to in the subsequent conveyances there- of ; that lot No. 2 was set to Charles Hayward, one of the heirs, and, being under the control of trustees, was by them conveyed in 1822, upon condition "that no other building shall be erected or built' on the lot except one of brick or stone, not less than three stories in height, and for a dwelling-house only," and the same came by inter- mediate conveyances to James Nightingale, one of the defendants, who now owns the same; that early in 1862 said Nightingale leased said premises, consisting of a three story dwelling-house, and con- venient and comfortable accessory erections, to Frederick Loeber, the other defendant ; that the plaintiffs believe and charge the fact to be that the said lease contains the same condition above recited, but they also insist that said Loeber is bound by the conditions of the tenure of his lessor, whether he had actual knowledge thereof or not ; * * * that Loeber has since used the place as a restaurant, having large numbers of noisy and boisterous persons in and about the same, and has thus rendered Hayward Place almost unfit for quiet and com- fortable residences; and that the plaintiff Parker, in behalf of him- self and eleven others who were named, being each the proprietor of a lot on Hayward Place, with a dwelling-house thereon of the descrip- tion above set forth, has brought this bill. The titles of some of the plaintiffs were set forth in detail. The prayer was for an injunction against such use of the premises, and for other and further relief. The defendants filed a general demurrer, and the case was there- upon reserved for the determination of the whole court. BiGELOW, C. J.^® A court of chancer)'- will recognize and enforce agreements concerning the occupation and mode of use of real estate, although they are not expressed with technical accuracy, as exceptions or reservations out of a grant not binding as covenants real running with the land. . Nor is it at all material that such stipulations should be binding at law, or that any privity of estate should subsist betvyeen parties in order to render them obligatory, and to warrant equitable relief in case of their infraction. A covenant, though in gross at law, may nevertheless be binding in equity, even to the extent of fastening a servitude or easement on real property, or of securing to the owner of one parcel of land a privilege, or, as it is sometimes called, "a right to an amenity'' in the use of an adjoining parcel, by 18 The statement of facts is abridged and part of the opinion is omitted. Ch. 5) ' EQUITABLE ENFORCEMENT OF AGREEMENTS 523 which his own estate may be enhanced in value or rendered more agreeable as a place of residence. * * * This brings us to a consideration of the most important and diffi- cult question raised by the demurrer, which is, whether the present plaintiffs, or any of them, set forth in the bill any such claim or title as will enable them to enforce this restriction on the use and occupation of the premises in controversy as against tlie defendants. A satisfac- tory answer to this inquiry will, we think, be found in the fact, wiiich is sufficiently apparent from the allegations in the bill, that the pur- pose intended to be accomplished by the restrictions inserted in the deeds of the estate now owned and occupied by the defendants was for the benefit and advantage of other owners of lots situated on the same street or court. Indeed it could have been designed for no other purpose. If we lay aside all the facts alleged in the bill which rest in parol .evidence only, and look exclusively to the history of the title as shown by the deeds, the conclusion is unavoidable that tliQ orig- inal grantors, in whom the title to the entire tract now owned by the several parties to this suit in different parcels was vested, intended, by limiting the use of the several lots and prescribing the kind of structures which are to be erected by the grantees thereon, to estab- lish a permanent regulation and restriction by which to prevent each parcel from being appropriated to a purpose which might enure to the injury of any other parcel, or render it less agreeable as a place of residence. By excluding all erections for the purposes of trade, and appropriating each lot to a prescribed use as a dwelling-house, the entire neighborhood comprised within the limits of the original tract laid out for a street or court was secured against annoyances arising from occupations which would impair the value of the several lots as places of residence. Thus a right or privilege or 'amenity in each lot was permanently secured to the owners of all the other lots. While each was restrained in the use of his own estate, he had the benefit of a like restraint imposed on all the other estates. That this restriction or limitation was not imposed by the original grantors for their own benefit or advantage, and cannot be considered as personal to them, is manifest from the fact that they retained no right or in- terest in any of the parcels of land. The whole tract was conveyed by them. It does not appear that they retained the occupancy or own- ership of any of the lots or of any adjoining estate, by means of which they could derive any personal benefit or advantage from the restrictions. But even if they had, it would not change the result ; be- cause, by uniting in a scheme or joint enterprise for the division of the estate into lots or parcels on a street or court laid out by them, and annexing to the conveyance of each lot a restriction on its use, by the observance of which each parcel would be occupied for a similar pur- pose with every other, the legal inference is, in the absence of any evidence to the contrary, that the intention was to secure to each es- tate the benefit or advantage which might arise from the specific mode 524 RIGHTS IN THE LAND OP ANOTHER (Part 2 in Ayhich the adjoining premises were to be improved and occupied. The effect of such a restriction, inserted in contemporaneous convey- ances of the several parcels under the circumstances alleged in the bill, was to confer on each owner a right or interest in the nature of a servitude in all the lots situated on the same street which were conveyed subject to the restriction. Thus it entered into the consid- eration which each purchaser paid for his land, either by enhancing its price in view of the benefit secured to him in the restraint imposed on adjoining owners, or by lessening its value in consequence of the limitation affixed to its use. In this view of the case, it is quite immaterial to determine the precise legal nature or quality of the re- striction in question. In strictness, perhaps, the right or interest cre- ated by the restrictions, being a qualification of the fee, did not pass out of the original grantors, and now remains vested in them or their heirs. But if so, they hold it only as a dry trust, in which they have no beneficial use or enjoyment, the entire usufruct being in their gran- tees and their assigns now holding the estates, for whose use and benefit it was intended. Such being the case, then the latter are prop- er parties to enforce the restriction ; and the former, not having any present interest in it, need not be parties to the proceeding. The same result would follow, if the restriction be construed as in the na- ture of a covenant by each grantee with the other owners of estates on the court, or others holding under a similar restriction. In either view, the present plaintiffs, having a common interest in the subject matter of the bill, and a right to ask for the same remedy against the defend- ants, are rightly joined as parties. Story, Eq. PI. §§ 121, 126; Adair v. New River Co., 11 Ves. 429, 444; Gray v. Chaplin, 2 Sim. & Stu. 267. Demurrer overruled.^* leAcc: Nottingham Brick Co. v. Butler, L. R. 16 Q. B. D. 778 (188(5); De Gray v. Monmouth Beach Club House, 50 N. J. Eq. 329, 24 Atl. 388 (1892) ; Tallmadge v. East River Bank, 26 N. Y. 105 (1862). The same principle was applied to the relation of landlord and tenant in Hudson V. Cripps, [1896] 1 Ch. 265 (1895). "In the present case, I think, no one can doubt that the object of the covenants in the deeds from Mercein was to secure all the purchasers of lots in the block, against an offensive use of any other of those lots. And if lots No. 12 and 13 had been conveyed to the defendants, or to those un- der whom they claim, while Mercein was still the owner of lot No, 11, I am not sure that any technical difficulty would have arisen in the maintaining an action at law, upon the covenants of the grantees of the two first men- tioned lots by the complainant as the subsequent purchaser of lot No. 11, and the assignee of the covenants for an easement for the benefit of that lot But as No. 11 was first conveyed, and the mutual covenants in the deed refer to that lot only, and not to other lots which still remained in the hands of Mercein, the subsequent purchasers from him of lots No. 12 and 13, would have taken their lots entirely discharged of the easement in favor of No. 11, had it not been for their covenants in their own deeds for the benefit of the "neighboring inhabitants ;" that is, the owners of other lots in the block. Although the complainant could not maintain a suit at law on that covenant in his own name, and would, perhaps, be only entitled to nominal damages if the suit was brought in the name of Mercein, this court Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 525 CLARK V. McGEE. (Supreme Court of IlUnois, 1896. 159 111. 518, 42 N. E. 965.) This was a bill in equity brought by Melville Clark in the circuit court of Cook county against John McGee to enjoin the erection of a certain building, and asking for a removal of the building. Upon filing the bill, a temporary injunction v^as granted. The defendant appear- ed and put in an answer to the original bill, and entered a motion to dissolve the injunction. The court denied the motion. Thereupon McGee removed the building in process of erection, and commenced the erection of another building. The complainant then filed a supplemental bill. [This bill alleged in substance: That one Dray owned a tract of land in Chicago extending from Seventy-Second street to Seventy- Third street on both sides of Rhodes avenue. That he platted this land and divided it into house lots, nineteen on each side of the avenue, lot 38 being at the southwest corner of Seventy-Second street and Rhodes avenue. This lot was sold to one Taylor, who in turn con- veyed it to complainant.] That at the time Dray made his said sub- division, and pursuant to a general scheme or plan adopted by him, and for the benefit of all future owners of lots in said subdivision. Dray conveyed all lots in said subdivision subject to certain restrictions inserted by Dray in the deeds to the different purchasers of lots in said subdivision. That all of the deeds for said lots, except possibly two or three of the lots, in said subdivision, contained said restrictions, and that the purchasers of the lots in which said restrictions are not stated in the deeds bought said lots with actual notice of such restric- tions. That the owners of the said two or three lots concerning which no restrictions are contained in the deeds to them had actual notice that the lots so purchased by them were subject to similar condi- tions and restrictions, as to the kind and cost of buildings, and the amount of frontage such buildings should occupy, as were 'contained in the deeds where such restrictions were mentioned. That John Mc- Gee was the owner of the north one-half of lot 36, and all of lot 37, in Dray's Cottage Grove Addition, which has a frontage of 45 feet on Rhodes avenue, and is immediately south of and adjoining the prop- erty so owned by complainant, and that McGee obtained title to lot 37 and the north one-half of lot 36 by deed from Dray and wife dated February 15, 1890, and recorded in recorder's office of said Cook coun- ty, in Book 3189, page 189. That the said deed to McGee contained the following expressed conditions, which Ayere a part of the consid- eration therefor: "First. No house shall be erected upon a less portion can give full effect to the covenant by a suit in the name of the party for whose benefit and protection the covenant was intended. See Bleecker v. Bingham, 3 Paige's Rep. 240 [1832]." McCoun, V. C, in Barrow v. Richard, 8 Paige (N. Y.) 351, 359, 35 Am. Dec. 713 (1840). 526 RIGHTS IN THE LAND OF ANOTHER (Part 2 of the aforesaid premises than a frontage of 45 feet. Second. No house shall be erected upon said premises at a less cost than $2,000, and be built less than 25 feet back from the front line of said premises." That in the conveyance of lot 20, in said subdivision, Dray inserted a "similar provision to that in the deed to McGee, except that it was provided in such deed that no house should be erected on said lot 20 upon a less portion of the said premises than a frontage of 44"^Vioo feet. That in the conveyance of lots 21 to 29, inclusive, and lots 31, 32, 33, and 34, similar restrictions to those contained in said deed to McGee were inserted, except the frontage for each house was to be 30 feet and the cost of each house not less than $2,000. And that in tlie deed to Taylor from Dray and wife, from whom Taylor derived title, similar restrictions were made, except that the house to be erected on such lot should not be erected on a less frontage than 44 feet, and that such house should not cost less than $2,500. That said property was situated in a good residence district. It was also alleged that since the filing of the original bill McGee tore down the frame shanty erected by him on his property, and had then in process of erection a one- story cottage having an eight-inch brick wall, the same being set on posts about two feet from the ground; that said building would not cost when completed to exceed $700. That it was being constructed of cheap and inferior material, and is shabby-looking in every respect, and was being erected by McGee with full knowledge on his part that the same was contrary to and in violation of the express covenants contained in the deed to him. The defendant to the supplemental bill appeared, and entered a motion to dismiss. The court, on hearing the motion, allowed the motion, and dismissed the bill. Craig, C. J.^° (after stating the facts). Walter S. Dray, who owned a tract of land in Chicago consisting of five acres, laid it off into 38 lots, 19 on each side of that part of Rhodes avenue lying between Sev- enty-Second and Seventy-Third streets. He surveyed and platted the property. The plat was acknowledged as required by law, and recorded in the recorder's office of Cook county. The plat shows the size of the various lots, the streets upon which they are located, the dimensions and numbers of the respective lots ; but the plat contains nothing showing or tending to show an intention on the part of the proprietor of the subdivision to impose any condition or restriction whatever upon purchasers, in reference to the mode or manner in which they should use, improve, or erect buildings on the respective lots which might be purchased. No deed executed by the proprietor of the subdivision contained any covenant on his part that in the sale of any of the lots embraced in the subdivision he would impose any re- striction on purchasers in regard to buildings to be erected by pur- chasers on the lots ; nor does it appear that the proprietor ever entered into any contract under which he obligated himself to impose any «o The statement of facts is abridged and part of the opinion is omitted. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 527 restriction on purchasers. As will be seen from the following plat, the defendant's premises adjoin the lot owned by the complainant on the north. The south one-half of lot 36 and all of 35 He directly south of the south line of defendant's lot, as indicated by the plat. - I l_ T2d St. II INI !l IM 1 II i r 1 1 As has been seen, the deed under which McGee obtained title to the premises occupied by him from Walter S. Dray contained a pro- vision that no house shall be erected upon a less portion of the prem- ises than a frontage of 45 feet. No house shall be erected upon the premises at a less cost than $2,000 and be built less than 25 feet back from the front line of said premises. And the question presented by this record is whether the adjoining lot owner, Clark, can maintain a bill to prevent the erection of a building contrary to the provision of the deed. We think it well settled by the authorities that where a grantor of two adjoining lots conveys one, and incorporates in the deed of the lot conveyed a covenant restricting the right of the gran- tee to build in a certain specified manner, which covenant is intend- ed for the benefit of the other lot held by the grantor, a subsequent conveyance of the lot retained will pass or transfer the covenant to the grantee or grantees of such lot as an easement for the benefit of the lot, and the grantee may enforce the covenant against the owner of the other lot in an appropriate action. Coughlin v. Barker, 46 Mo. App. 61, and cases there cited. Hutchinson v. Ulrich, 145 111. 336, 34 N. E. 556, 21 L. R. A. 391. The law is also well settled, "where a tract of land is subdivided into lots, and these lots are con- veyed to separate purchasers, subject to conditions that are of a nature to operate as inducements to the purchase, and to give to each pur- chaser the benefit of a general plan of building or occupation, so that each shall have attached to his own lot a right in the nature of an ease- ment or incorporeal hereditament in the lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee." Sharp v. Ropes, 110 Mass. 385. It is claimed in this case, as we understand the argument, that the 528 RIGHTS IN THE LAND OF ANOTHER (Part 2 complainant is entitled to relief, on the ground that Dray, the orig- inal proprietor of the tract of land, laid it off into 38 lots, adopted a general scheme or plan under which all the lots conveyed were to be subject to certain restrictions, which restrictions were intended for the benefit of the several lot owners. We do not. concur in this view. There is nothing in the record to show that the restriction placed on the deed to the defendant was part of a general plan adopted by Dray, the proprietor, for the benefit of the lots embraced in his Cottage Grove Addition to Park ' Manor, i In the conveyance of the lots by Walter S. Dray, no two of the deeds executed by him contained the same restriction. They were similar, but not the same. Moreover, for two or three of the lots conveyed they contained no restrictions what- ever. The absence of the building restrictions from record of the deeds executed by Dray, as well as the variance in the terms and conditions of the restrictions embraced in the other deeds, destroyed the uniformity essential to establish a general plan. See Dana v. Went- worth. 111 Mass. 293; Sharp v. Ropes, supra; Jewell v. Lee, 14 Allen (Mass.) 145, 92 Am. Dec. 744; Badger v. Boardman, 16 Gray (Mass.) 559, and Coughlin v. Barker, supra. * * * Had a general plan or scheme been adopted in this case by the proprietor of the addition, and uniformly adhered to in the conveyance of the lots, the complainant might be entitled to maintain a bill, but such was not the case. The judgment of the circuit court will be affirmed. Affirmed.*^ 21 Ace: Summers v. Beeler, 90 Md. 474, 45 Atl. 19, 48 L. E. A. 54, 78 Am. St. Rep. 446 (1899) ; Sliarp v. Ropes, 110 Mass. 381 (1872) ; Equitable Life Assur. Soc. of United States v. Brennan, 148 N. Y. 661, 43 N. E. 173 (1896). "The evidence shows the adoption of such general plan of improvement In this case, and that all of the lands conveyed by the land company, or by the Coast Land Improvement Company, its successors in title, on Allen avenue (with one exception) have been conveyed with a restriction as to the build- ing line of not less than 40 feet. On the second block east of the block now in question, lots Nos. 82 and 83 were conveyed by the land company, with a 25-feet restriction, instead of 40 feet; but this was because lot No. 81, next adjoining these on the east was never owned by the land company, and upon this latter lot a house had already been built by a prior owner up to the 25-feet line. This exception as to Nos. 82 and 83 cannot be considered a change of the general plan of the company. And although different building lines were adopted for different avenues, the line adopted for each street is the general plan or scheme for that .street, upon which purchasers upon the street or avenue have a right to rely." Emery, V. C, in Morrow v. Hassel- man, 69 N. J. Eq. 612, 614, 61 Atl. 369 (1905). Ace: Allen v. Detroit, 167 Mich. 464, 133 N. W. 317, 36 L. R. A. (N. S.) 890 (1911). "Tlie deliberate continued intention of all parties from 1860 onwards was that this building scheme should continue in force and be operative on all parties. Then it is said that the whole scheme is inconsistent and can- not have been intended, because there was power in the vendor to deal with property undisposed of without refei'ence to this deed. That is an argument which has not been brought for the first time here. So far as I am aware it is an argiunent that has never prevailed. I do not deny that the insertion of such a power is an element to be considered, but out of many building schemes which I have seen I think I am right in this remark, that it is al- Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMKNTS 529 WINFIELD V. HENNING. (Court of Chancery of New Jersey, 1S70. 21 N. J. Eq. 1S8.) The Chancellor. The complainant owns a house and lot on the south side of South Fifth street, formerly called also Gilbert street, in Jersey City. The defendant owns a house and lot adjoining it on the west, and on the corner of South Fifth street and Coles street. These lots are part of a tract of one hundred feet square, at the southeast corner of Coles street and South Fifth street, which was conveyed by the devisees of John B, Coles to Keeney and Wheeler, on the first of May, 1854. In the deed the premises were designated by num- bers, as four lots fronting on South Fifth or Gilbert street, and the deed contained this provision : "It being expressly understood and agreed that tlie houses which may be erected on Gilbert street, shall be set back ten feet from the southerly line of said street." In May, 1857, Keeney conveyed his interest in this tract to Wheeler, who afterwards erected on it five two story houses of twenty feet front on South Fifth street, ten feet from the south line of the street. After they were built, in May, 1858, he conveyed the house and lot of the complainant to a grantee, through whom the complainant derives title, and one year after this he conveyed the house and lot of the defendant to a grantee, through whom the defendant claims title. The stipulation as to the placing houses ten feet from the street, is not contained in any deed after that to Keeney and Wheeler. The together exceptional not to see some power reserved to the vendor to ab- stract certain property from the scheme. On the face of the scheme, which all the parties were content with, they were told that they entered into this building scheme with the knowledge that the vendors might, if they were so advised, on the one hand give consent to the erection of a public-house next door to the man who bought the lot, and on the other hand release any un- sold property from the covenants. I cannot see that that has any real im- portance in the case." Cozens-Hardy, M. R., in Elliston v. Reacher, [1908] 2 Ch. 665, 672. See, also, Schreiber v. Creed, 10 Sim. 9, 33 (1839) ; Everett V. Remington, [1892] 3 Ch. 148. A. leased a large tract of land to the B. Company, a corporation, for 99 years, renewable forever ; to be sold in building lots, the lessor reserving one large lot for himself. It was agreed between A. and the company, inter alia, that no land was to be sold or leased without a stipulation that the lessee should build speedily; that no buildings should be erected unless the designs were approved by the directors of the company. Lots were then sold or leased by the company. Several years later the lessor died and the company bought in his lot and his reversionary interest. On a bill for spe- cific performance by the company against a defendant who had contracted to purchase one of the lots, but who refused upon the ground that the com- pany could not give a clear title, Held, the company could give a title free from the obligation to build speedily, but not from the obligation to build a structure whose design had been approved by the directors, and hence could not compel the defendant to accept the title. Peabody Heights Co. of Baltimore City v. Willson. 82 Md. 186. .32 Atl. 386, 1077. 30 L. R. A. 393 (189u). See, also, Keates v. Lyon, L. R. 4 Ch. App. 218 (1869); Electric City I>and & Improvement Co. v. West Ridge Coal Co., 187 Pa. 500, 41 Atl. 458 (1898). BiG.RlGHTS — 34 530 RIGHTS IN THE LAND OF ANOTHER (Part 2 grantors in that deed owned a large number of lots in the vicinity, some of which were on the opposite side of the street, and retained them after the deed to Keeney and Wheeler. The defendant, in May, 1870, commenced erecting an addition to the dwelling house on his lot, which would occupy the ten feet between it and the street, by which the westerly view or prospect from the front of the complainant's house is cut off. The injunction restrains the defendant from proceeding with, or completing that building. The two questions in the case are, whether the defendant is bound by the stipulation or covenant in the deed from the Coles family, and if he is, whether the complainant has any right to compel its perform- ance. The provision or covenant in the deed is not Hke that in Spencer's Case, 5 Rep. 16, as was. urged on the argument. It does not relate to something collateral to the land, but to the land conveyed itself. In that case the covenant was to erect a brick wall on an adjoining lot. Nor does it relate to a thing not in esse, as a wall to be built; but it relates to the ten feet of the tract next to the street, and the negative stipulation not to erect houses on that is, in its legal effect, to keep it free from buildings ; this is the only legal effect of the covenant ; it does not oblige the grantees or their assigns to erect buildings at that distance, or to erect any houses at all. The stipulation names no one as bound, neither the grantees, their heirs or assigns, but it is annexed to the land and the grant of it, and must therefore be coextensive with the estate granted, which is to them, their heirs and assigns. In a suit by the grantors there would be no question but that this stipulation would be enforced against any owner of this tract, or any part of it, who derived his title through this deed. The question whether the complainant is entitled to enforce this stipulation, is not so clear. If any purchaser of the other lots retained by the Coles family at the giving of this deed, and injured by this erection, was the complainant, the authorities are numerous and de- cided, that he would be entitled to the benefit of this stipulation. Tulk V. Moxhay, 11 Beav. 571; s. c, 2 Phil. 774; Barron v. Richard, 3 Edw. Ch. (N. Y.) 96; Hills v. Miller, 3 Paige (N. Y.) 254, 24 Am. Dec. 218. But in this case both parties derive title from the covenantors, and not from the covenantee, and the question is, whether they are bound to each other by the covenants which Wheeler entered into with the Coles family, for the benefit of the property which they retained. An action at law could not be maintained by the complainant against the defendant on such covenant. But in equity their position is differ- ent. Both parties are bound to the grantors in the Coles deed to keep this front free from buildings; each is subject to the easement over his lot, in favor of those subsequently deriving title from Coles, and each is equitably and justly entitled to the advantage which the ob- Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 531 servance of this stipulation by his neighbor may be to him. If all were relieved from the encumbrance, none perhaps could complain. But to be restrained from extending his own building to the street, and to have his neighbor on each side project in front of him, would be a much greater grievance to any of these lot owners, than was contained in the stipulation in the deed through which he derived title ; and he has no power to compel the grantors to enforce the covenant. It seems equitable that this court should, at his instance, compel the ob- servance of this covenant. . This view is supported by the dictum of Lord Romilly, in a case heard before him at the Rolls, in 1866, Western v. Macdermot, 1 Eq. Cases (L. R.) 507, and by a decision of the Supreme Court of Rhode Island, Greene v. Creighton, 7 R. I. 1. This easement was in existence at the time of the conveyance of the complainant's lot by Wheeler, who still retained the lot of the de- fendant, which was the dominant tenement ; and this space being left open in compliance with a covenant or stipulation binding on both lots it might be held to be an apparent and continuous easement, to which the part retained was thus made subject. The motion to dissolve must be denied.^^ FORMBY V. BARKER. (Court of Appeal, 1903. [1903] 2 Ch. 539.) Appeal from a decision of the Vice Chancellor of the County Pala- tine of Lancaster (Sir S. Hall). The action was brought to restrain the defendant from commit- ting a breach of a restrictive covenant relating to land. The plaintiff was the administratrix with the will annexed of R. H. Formby, the covenantee, and he by his will gave and bequeathed all his property to her. ^ By a deed dated July 27, 1868, land, situated at Fornlby in the coun- ty of Lancaster (including, some land coloured pink on a plan drawn upon the deed), was conveyed by R. H. Formby and his mortgagees to the Mutual Land Company, Limited, in fee simple. The deed contained the following covenant by the company, for themselves, their successors and assigns, with R. H. Formby, his heirs, executors, and administrators, "that they * * * shall not nor will erect, build, or make on the land coloured pink and fronting Raven Road any beerhouse or shop or any hotel of less annual valu'e than £50." * * * The deed comprised the whole of the land belonging to R. H. Form- by in the neighbourhood. 22 Contra: King v. Dickson, L. R. 40 Ch. D. 596 (1SS9) ; Korn v. Camp- bell, 192 N. Y. 490, 85 N. E. 6S7, 37 L. R. A. (N. S.) 1, 127 Am. St. Rep. 925 (1908). 532 RIGHTS IN THE LAND OF ANOTHER (Part 2 This deed was never executed by the land company, but they enter- ed into possession under the deed of the land comprised in it. The defendant was an assignee from the land company of part of the land coloured pink and abutting on Raven Road. He acquired the land with notice of the above covenant. R. H. Formby died on October 8, 1884, and letters of administra- tion with the will annexed were, on January 30, 1899, granted to Caro- line Formby, his widow, the plaintiff, to whom by his will he had given all his property. In 1902 the defendant commenced to erect on part of the land col- oured pink and abutting upon Raven Road two shops, and threatened and intended to complete the same. These shops were not beerhouses or beershops, but were ordinary shops unconnected with the sale of beer. The action was commenced on September 20, 1902, and the plaintiff claimed an injunction to restrain tlie defendant from erecting, build- ing, or making any shop upon the land coloured pink and abutting on Raven Road. She claimed also damages and costs. Hall, V. C, held on the construction of the covenant that it applied only to a beershop, and that the erection of any other shop would not be a breach. The Vice-Chancellor also held that, even if there should be a breach, the plaintiff could not maintain an action in respect of a breach committed after the death of the covenantee. The plaintiff appealed. Vaughan Williams, L. J.,^' read the following judgment: The plaintiff sues in her individual capacity and also as administratrix with the will annexed of R. H. Formby, deceased. * * * I think we ought to read "shop" as meaning "beershop." This view really puts an end to the plaintiff's case. But, as an- other defence was raised and was discussed by~the learned Vice Chan- cellor, I think it right to deal with that point also. The learned Vice Chancellor expressed an opinion that, even if the plaintiff's construction of the covenant was right, and there had been a breach of the covenant, nevertheless the plaintiff was not entitled to sue — that is, was not entitled to sue either as personal representa- tive of R. H. Formby or as residuary devisee under his will. I agree with the conclusion of the Vice Chancellor that there is nothing in the point made by the defendant of the non-execution of the deed by the company other than this — that there is no legal cove- nant. I have no doubt that the land company took the estate convey- ed subject to the condition contained in the covenant, and I have no doubt that Formby during his life could have enforced that condition, and, as I am inclined to think, even by an action for damages. Before dealing with the question of the plaintiff's right to sue, I 28 The statement of facts is abridged and part of opinion of Vaughan Wil- liams, L. J., is omitted. Cll. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 533 wish to point out that that which R. H. Formby conveyed was his whole estate, and that he had no contiguous estate which would be benefited by the covenant in question. Moreover, there is in the deed no re-entry clause under which the vendor could go in as of his old es- tate, or, indeed, as of any estate. In my judgment this covenant is a personal covenant, but I do not think that, having regard to the opinions of the judges delivered in the House of Lords in Becklam v. Drake, 2 H. L. C. 579, the right of action, which, in my judgment, would have vested in R. H. Formby on a breach in his lifetime, is of such a character that a breach after his death would not give to his personal representative a right of action against the covenantors, the land company. The maxim "Actio personalis moritur cum persona" has no ap- plication to any breaches of contract, except those which constitute a mere personal wrong and, with that exception, all rights of action for breaches of contract pass to the executors, and in an action for breach of covenant or condition proof of damage is not essential, and, in my judgment, there has been in this case, if the plaintiff's construction of the covenant is right, a plain breach of the covenant, which breach is not a mere personal wrong. I make these observations to dispose of the argument addressed to us on the maxim "Actio personalis moritur cum persona." But this still leaves the difficulty that the defendant is not a party to the deed, and that there is plainly no covenant running with land on which the defendant could be sued at law. It becomes necessary, therefore, to see whether an action for an injunction can be brought, upon the principle established by the judgment of Lord Cottenham, L. C, in Tulk v. Moxhay, 2 Ph. 774. Now in the marginal note of that case it is said : "A covenant between vendor and purchaser, on the sale of land, that the purchaser and his assigns shall use or abstain from using the land in a particular way, will be enforced in equity against all subsequent purchasers with notice, independently of the question whether it be one which runs with the land so as to be binding upon subsequent purchasers at law." But at the beginning of the Lord Chancellor's judgment he said, 2 Ph. 777: "That this Court has ju- risdiction to enforce a contract between the owner of the land and his neighbour purchasing a part of it, that the latter shall either use or abstain from using the land purchased in a particular way is what I never knew disputed." These words do not cover the present case, because the land company did not purchase a part only of the vendor's land, but the whole of it. It becomes necessary, therefore, to ascer- tain whether the principle of Tulk v. Moxhay, 2 PIi. 774, applies to a case in which the vendor sells his whole estate. I have not been able to find in any case in which, after the sale of the whole of an estate in land, the benefit of a restrictive covenant has been enforced by in- junction against an assignee of the purchaser at the instance of a plain- tiff having no land retained by the vendor, although there are cases 534 RIGHTS IN THE LAND OF ANOTHER (Part 2 in vdiich restrictive covenants seem to have been enforced at the instance of plaintiffs, other than the vendor, for the benefit of whose land it appears from the terms of the covenant or can be inferred from surrounding circumstances, that the covenant was intended to operate.^ In all other cases the restrictive covenant would seem to be a mere personal covenant collateral to the conveyance. It is a covenant which cannot run with the land, either at law or in equity, and therefore the . burden of the covenant cannot be enforced against an assignee of the purchaser. But it is said that the doctrine of Tulk v. Moxhay, 2 Ph. 774, is independent of the question whether there is in law or in equity a covenant running with the land, and that the doctrine is based upon ob- ligations on the conscience of a person taking an estate with notice of a restrictive covenant binding it. The answer, I think, is to be found in a passage in the judgment of Collins, L. J., in Rogers v. Hosegood, [1900] 2 Ch. 388, 407. He said: "These authorities establish the proposition that, when the benefit has been once clearly annexed to one piece of land, it passes by assignment of that land, and may be said to run with it, in contemplation as well of equity as of law, with- out proof of special bargain or representation on the assignment. In such a case it runs, not because the conscience of either party is af- fected, but because the purchaser has bought something which in- hered in or was annexed to the land bought. This is the reason why, in dealing with the burden, the purchaser's conscience is not affected by notice of covenants which were part of the original bargain on the first sale, but were merely personal and collateral, while it is affected by notice of those which touch and concern the land. The covenant must be one that is capable of running with the land, before the ques- tion of the purchaser's conscience and the equity affecting it can come into discussion." It seems to me that in the passage I have just read Collins, L. J., assumes that the doctrine of Tulk v. Moxhay, 2 Ph. 774, will not ap- ply to a contract which is merely personal and collateral. In my judgment the covenant in the present case is merely personal and collateral; it has not been entered into for the benefit of any land of the vendor, or of any land designated in the conveyance; it is a covenant which, in my judgment, would not pass to. the heirs of the vendor, notwithstanding the words of the covenant are, "covenant with the said R. H. Formby, his heirs, executors, and administrators." There is no land designated to which the word "heirs" can be applied. R. H. Formby could have sued the purchasers for breaches in his lifetime, and I think that his executrix could have sued the purchasers for breaches after his death, but I do not think that the executrix can sue the assignee of the purchasers. There is no contractual privity and no relation of "dominancy" and "serviency" of land which will en- able an action to be brought against a person not a party to the orig- Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 535 inal contract, nor do I think that the benefit of this covenant could be dealt with by a devise. There is the following passage in the judgment of Jessel, M. R., in London & South Western Ry. Co. v. Gomm (1882) 20 Ch. D. 562, 583: "The doctrine of Tulk v. Moxhay, 2 Ph. 774, rightly considered, ap- pears to me to be either an extension in equity of the doctrine of Spencer's Case, 5 Rep. 16a, to another line of pases, or else an exten- sion in equity of the doctrine of negative easements ; such, for in- stance, as a right to the access of light, which prevents the owner of the servient tenement from building so as to obstruct the light." Again, Jessel, M. R., said: "This is an equitable doctrine, establish- ing an exception to the rules of common law which did not treat such a covenant as running with the land, and it does not matter whether it proceeds on analogy to a covenant running with the land or on analogy to an easement." I think that in both these paragraphs Jessel, M. R., whether describ- ing the doctrine of Tulk v. Moxhay, 2 Ph. 774, as an extension of Spencer's Case, 5 Rep. 16a, or of the equitable doctrine of negative easements, regards it as something arising from the relation of two estates one to the other. * * * I think that for the reasons which I have given the decision of the Vice Chancellor was right on both points, and that the appeal should be dismissed with costs. [RoMER and Stirling, L. JJ., delivered concurring opinions.]^* VAN SANT et al. v. ROSE et al. (Supreme Court of Illinois, 1913. 260 111. 401, 103 N. E. 194, 49 L. R. A. [N. S.] 186.) Farmer, J.^"^ Defendants in error (hereafter referred to as com- plainants) filed the bill in this^case to enjoin plaintiffs in error (here- after called defendants) from erecting a flat building on the premises described, in violation of restrictive covenants in the deed from com- plainants to defendants. * * * siAcc: Dana v. Wentworth, 111 Mass. 291 (1S73). A. owned land through which he wished to lay out a street. He applied to the London County Council, the plaintiff, for its consent, under the Lon- don Building Act, to lay out such street. This consent was given in return for a covenant executed by A. for his heirs and assigns not to build across the end of the new street without the consent of the plaintiff, the purpose being to facilitate an extension of the street if the plaintiff should later de- sire so to do. A. subsequently sold the land to the defendant, who bought with notice of the covenant. The defendant started to erect buildings across the end of the street without the plaintiff's consent. The plaintiff owned no neighboring land for the benefit of which the covenant was imposed. Held, the plaintiff is not entitled to enjoin the erection of the building. London County Council v. Allen, [1914] 3 K. B. 642. Compare Tx)s Angeles Terminal Land Co. v. Muir, 136 Cal. 36, 6S Pac. 308 (1902). 25 I'art of the opinion is omitted. 536 RIGHTS IN THE LAND OF ANOTHER (Part 2 It appears from the allegations of the bill that complainants were seized in fee simple of lot 1 and the north 43.86 feet of lot 2, in block 14, in Cochran's second addition to Edgewater, Cook county, 111., and on or about December 16, 1904, conveyed said premises, by deed bear- ing date September 6, 1901, to Frank A. Rose; the deed containing the following restrictive covenants: "It is hereby expressly cove- nanted and agreed that neither said party of the second part, nor his heirs, executors, administrators, or assigns, shall erect any fence, in- closure, or obstruction to view on said lots within thirty (30) feet of the front or side street line of said lots for a period of ten years from the date hereof, and shall not build any wall of any building erected on said lots within said thirty (30) feet of the front or side street line of said lots for a period of twenty years from the date here- of, without the written consent of said party of the first part. * * * It is hereby expressly covenanted and agreed that neither said party of the second part, nor his heirs, executors, administrators, or as- signs, shall build or cause to be built on said lots any building known as a flat or tenement building, hereby covenanting to erect thereupon only a single private dweUing house (excepting the stable as aforesaid) for a period of twenty years from this date." The bill alleged that Frank A. Rose, through an intermediary, has conveyed the premises to his wife, Alvida A. Rose, and that said defendants, Alvida A, and Frank A. Rose, were about to erect on the premises a large apartment house or flat building, and place the north wall thereof substantially on the lot line, all in disregard of the covenants and reservations in the deed from the complainants. Defendants did not deny their intention to violate the covenants and restrictions as alleged in the bill. * * * There is no dispute that covenants of the character here involved are lawful and valid, and are in the class of covenants courts of eq- uity will enforce by enjoining their breach. Nevertheless, it is in- sisted that this case affords -no ground for equitable relief, because it does not appear from the bill that complainants own any neighboring land to be affected in any way by a breach of the covenants. Counsel on both sides have filed voluminous briefs, in which they have cited and extensively discussed many cases decided by the courts of this country and of England having more or less bearing upon this ques- tion. They are not altogether harmonious, and in most of them the precise question here presented was not involved. In our opinion the rule contended for by defendants cannot be applied in this case. Com- plainants are the original covenantees. Alvida A. Rose is not the orig- inal covenantor, but she received her title, through an intermediary, from her husband. The deed to her husband containing the covenants was on record, and she had notice of them. She is in no better posi- tion to resist the enforcement of the covenants than her husband would have been, and is to be treated, and will be referred to here- after, the same as if she were the covenantor. We must assume Ch. 5) EQUITABLE ENFORCEMENT OF AGREEIMENT8 537 that the covenants formed a part of the consideration for the convey- ance, and that complainants were unwiUing to part with the land with- out the restrictions m the deed. As absolute control over the prop- erty was denied the purchaser by the restrictions assented to, he pre- sumably paid less for it than he would otherwise have been required to pay. At all events, the restrictions were mutually agreed to. They are plain and unambiguous, and there is no pretense that there was any concealment of any fact when they were agreed to. Can defendants now violate or disregard the contract, on the ground that its perform- ance will be of no benefit to complainants? * * * True, a bill to enjoin the breach of restrictive covenants cannot be maintained by one having no connection with or interest in their en- forcement; but we cannot agree that complainants had no interest. They were the original covenantees, and by their conveyance of the property reserved an interest in it. They conveyed the property sub- ject to that interest. They had a right to reserve such interest, and this right was not dependent upon the covenantees having other prop- erty in the vicinity that would be affected by a breach of the covenants, or that they should in any other manner sustain damages thereby. This court has held, in harmony with the prevailing rule in other ju- risdictions, that the right to enjoin the breach of restrictive covenants does not depend upon whether the covenantee will be damaged by the breach ; but the mere breach is sufficient ground for interference by injunction. Bispham's Principles of Equity (4th Ed.) par. 461 ; Consohdated Coal Co. v. Schmisseur, 135 111. 371, 25 N. E. 795 ; Hart- man V. Wells, 257 111. 167, 100 N. E. 500, Ann. Cas. 1914A, 901. It would seem inconsistent, then, to say, as the covenantees had no other land in the neighborhood, they had no interest in the perform- ance of the covenants. The only purpose their having other land in the vicinity could serve would be to show that they would be injuri- ously affected — that is, damaged — by a violation of the contract. But, as their right does not necessarily depend upon their being damaged by the breach, it would seem it would not necessarily depend upon their owning other land in the vicinity. Bispham, in the paragraph above referred to, says it is no answer to an action of this kind to say the breach will inflict no injury upon the complainant, or even that it will be a positive benefit. In Steward v. Winters, 4 Sandf. Ch. (N. Y.) 587 (a suit to enjoin the breach of restrictive covenants in a lease), it was contended the breach would cause no injury, and also that the plaintiff had an adequate remedy at law for damages. The court held the grantor or lessor of land had a right to insist upon such covenants as he pleased touching the use and mode of enjoyment of the land, "and is not to be defeated, when the covenant is broken, by the opinion of any number of persons that the breach occasions l^im no substan- tial injury." That case was cited, and the opinion quoted from with approval in the Schmisseur and Hartman Cases, supra. Kerr on Injunctions (4th Ed.) p. 370, says : " 'If there is a negative covenant,' 538 RIGHTS IN THE LAND OF ANOTHER (Part 2 said Lord Cairns, in Doherty v. Alman (L.), 'the court has no discre- tion to exercise. If parties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say, by way of injunction, that the thing shall not be done. In such a case the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties. It is not, then, a question of the balance of convenience or inconvenience or of the amount of damage or injury; it is the specific performance by the court of that negative bargain which the parties have made, with their eyes open, between themselves.' " * * * Judgment affirmed. LEWIS V. GOLLNER et ux. CCourt of Appeals of New York, 1S91. 129 N. Y. 227, 29 N. E. SI. 26 Am. St. Rep. 516.) [One Gollner was a builder of flats. He secured a contract for a piece of land in a neighborhood devoted to private residences and an- nounced his intention of erecting a large flat building thereon. The trial court found as a fact that such a building in that locality would cause injury and damage to the other premises. Gollner was finally induced by the plaintiff, upon a consideration of $24,500, which gave him a net profit of $6,000, to sell out his interest in the land, and to make an oral contract "not to construct any flats in the plaintiff's im- mediate neighborhood or to trouble him any more." Immediately after selling out upon these terms Gollner secured a contract for another lot in the same neighborhood and began the erection thereon of another large flat building. Upon litigation being tlireatened, he conveyed to his wife his equity in the lot, worth $2,000, and the foundations of the building, which had involved a large expenditure. The considera- tion for this was certain equities owned by her worth $700. Gollner then, as the agent and architect of his wife nominally and in form, con- tinued tlie construction of the flat building. Mrs. Gollner knew all the facts and took title for the purpose of aiding her husband in his plan. The plaintiff brought suit against the two Gollners to enjoin the con- struction of the flat buildings. Judgment below was for the defend- ants, and tlie plaintiff appeals.] Finch, J.^^ * * * I think we should first examine the situa- tion, as between plaintiff and Gollner, upon the supposition that the latter had remained owner of tlie land and was himself engaged in violating his contract, and ask of ourselves the question whether in such event it would have been possible for equity to interfere, or whether the objections and difficulties suggested by die respondents would have proved insuperable. ♦ ♦ * 2« Part of tho opinion is omitted. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 539 [The court decided that Gollner himself could have been enjoined from breaking the agreement.] But Gollner did not remain the owner of his new purchase, and that brings us to the difficulty which the courts below deemed insurmount- able, and which needs to be thoughtfully considered. They reasoned that the new vendee could not be affected except through or by the purchase of the land, and so only when the land carried with it as an inseparable attachment the burden of the contract; that when the contract was made there was no land to which it did or could attach ; and so the agreement remained wholly personal to Gollner, and did not affect or bind his wife. I do not see the contract in that way. Gollner might have fulfilled it by omitting to buy or lease any land within the prescribed limits, but his agreement left him at liberty to do so or not, as he pleased, but required that, if he did so purchase or lease, he should not erect upon the land so owned or possessed the prohibited structures. The moment he bought or leased any such land he came under an obligation not to use it in a particular way; the land in his hands necessarily became restricted and limited in the use of which it was capable ; and as much so, though bought of another, as if it had come from the contractor who imposed the restraint as vendor. I do not see why the equitable rights of the plaintiff did not attach to the land when bought, if it came, as it did, within the scope of the con- tract. Why should it affect the result that the obligation and the land ownership were not simultaneous, or that the latter came from a vendor who did not restrict when the contractor could and did? In the case of a mortgage the lien rpay attach to and bind after-acquired property, or cover future and later advances, as between the parties themselves, and that is permitted because they have so agr,eed and their contract contemplates that precise result. In like manner I think the agreement under discussion was, in substance and effect, that whatever land the defendant Gollner might thereafter possess in that immediate neigh- borhood should be restricted in its use by him, and should not be de- voted to the construction of tenements or flats. In other words, when, he bought the land the plaintiff's equitable rights at once atached to it, and became a burden upon it so long as Gollner owned it, so that ap- parently the contract ceases to be merely and purely personal because it affects and was intended to affect the use and occupation of Gollner's after-acquired land in that neighborhood. But, if the contract remains technically a personal one, I think the reasonable and settled doctrine is that the contract equity is so attached to the use of the land which is its subject-m.atter as to follow the land itself into the hands of a purchaser with full knowledge of all the facts, who buys with his eyes open to the existing equity, and more especially when he buys for the express purpose of defeating and evading that equity. It has been held that the equity resulting from a valid agree- ment, although the latter was not a covenant running with the land, or a legal exception or reservation out of it, but stood solely upon the 540 RIGHTS IN THE LAND OP ANOTHER (Part 2 ground of a personal contract dictating the mode of user, would never- theless go with the land into the hands of a purchaser with notice, and who did not buy innocently or in good faith. Whitney v. Railway Co., 11 Gray (Mass.) 363. In Hodge v. Sloan, 107 N. Y. 250, 17 N. E. 335, 1 Am. St. Rep. 816, we substantially affirmed that doctrine, hold- ing that a purchaser without restriction in his deed, but from one who was restricted by a personal covenant not running with the land or binding his assigns, yet with notice of the facts, is bound by the restric- tion in a court of equity; Judge Danforth describing tlie character of the agreement thus: "It is restrictive, not collateral to the land, but relates to its use." It is true, and should be noted, that in these cases the restrictions followed the line of title and were imposed by the original owners and vendors of the land, while here they were not so imposed, but came from one never an owner of the land, but deriving his right from a contract with one who did become such owner. But why should that difference change the result? The original owner's right rests upon one consideration, and that of the stranger to the title upon another, but each one equally good and worthy of equitable regard. In Park- er v. Nightingale, 6 Allen (Mass.) 344, it is declared not to be in the least material that the restrictive stipulations should be binding at law, or that any privity of estate should subsist between parties in order to render them obligatory, and to warrant equitable relief in case of their infraction. I think that doctrine is sound and just. The source of the restriction would seem to be immaterial, if itself binding, and found- ed upon sufficient consideration ; and a breach is no greater wrong to a privy in estate than to a stranger validly contracting about its use. Nor can the vendee in bad faith stand upon such a difference. Equity has no compassion for a fraud, and he who buys in aid of one, with full knowledge of what is right, but with purpose to defeat it, should not escape the hand of equity by a criticism upon the origin of the re- striction violated. Ijf these views are correct it will follow that plaintiff should have been awarded the relief which he sought. The judgment should be reversed, and a new trial granted, costs to abide the event. All concur, except RuGER, C. J., and Andrews, J., not voting.^^ 27 Compare Millbourn v. Lyons, [1914] 1 Ch. D. 34, [1914] 2 Ch. D. 231. A person in de facto occupancy of the premises with notice of the cove- nants may be enjoined from a breach thereof. Mander v. Falcke, [1891] 2 Cli. 554. See Seaward v. Paterson, [1897] 1 Ch. 545. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 54J McCLURE V. LEAYCRAFT. (Court of Appeals of New York, 1905. 1S3 N. Y. 36, 75 N. E. 961, 5 Ann. Uas. 45.) [The plaintiff and the defendant were owners of neighboring lots of land in the city of New York. Both derived title from a common source and both were subject to a covenant running until December 8, 1911, forbidding the erection of apartment buildings. The defend- ant started to erect an apartment building upon his land and the plain* tiff sought an injunction. The trial court made the following findings of fact:] "Tenth. That at the time when the conveyances hereinbefore set forth were made and entered into, the real property in the vicinity of the property hereinbefore described was occupied exclusively by small private dwellings, and was classed as a private residential dis- trict, and such houses were built solely for one family and occupied by one family, and there were no places of business, flats, tenements, or apartment houses in the immediate neighborhood of the property affect- ed by the said covenants. "Eleventh. That since the making of the said covenants, and within the period of about 10 years last past, great changes have occurred in the neighborhood and in the class of buildings erected upon the prop- erty in said neighborhood, and in the immediate vicinity of the prem- ises owned by the plaintiff and the defendant, and there has been erected upon such property, including the three corners directly oppo- site to defertdant's premises, large apartment houses having a great many apartments therein, several on each floor and several stories in height, and which are occupied on the ground floor by places of busi- ness and used for business purposes. Numerous flats or tenement houses have been built on the block fronting on 145th street between St. Nicholas and Bradhurst avenues, which is in the vicinity of plain- tiff's and defendant's property. * * * "Fourteenth. That the erection upon the said land of the said apartment house which the defendant proposes to erect thereon will not decrease the fee value of the plaintiff's premises, or of the land and dwellings within the tract hereinbefore described, but will increase the value thereof, and the use of the same as an apartment house will not make the neighborhood undesirable nor decrease the values of the adjoining property. "Fifteenth. That the change which has taken place in the character of the neighborhood has made the property, including the tract herein- before described, especially the land owned by the defendant, unde- sirable for the erection of a private dwelling thereon. "Sixteenth. That by reason of the change in the character of the neighborhood and of the immediate vicinity of plaintiff's property and defendant's property the same has been so altered as to render inex- 542 RIGHTS IN THE LAND OF ANOTHER (Part 2 pedient the observation of the said covenants, and it would be inequi- table to enforce the covenants hereinbefore set forth against the de- fendant, as the enforcement of the same would cause him great dam- age and would not benefit the owners of the adjoining property." The complaint was dismissed on the merits, for the reason, among others, "that the character and condition of the neighborhood have so changed since the making of the said agreements that it would be inequitable to enforce a covenant prohibiting the erection of a struc- ture such as tlie defendant proposes to erect, and equitable relief en- joining the defendant from erecting the said structure should be refused." Upon appeal to the Appellate Division the judginent of the Special Term was reversed, and a new trial ordered. The defend- ant appealed to this court. Vann, J.^^ * * * Assuming that the defendant was about to violate the covenant, the question is whether, upon the facts found and approved by the courts below relating to the radical change in the situation of the property affected by the covenant, a court of equity was bound to refuse equitable relief in the form of an injunction and to leave the injured party to recover his damages in an action at law. If the granting or withholding of a permanent injunction is within the absolute discretion of the Supreme Court, the exercise of that discre- tion by the Appellate Division in favor of the plaintiff is beyond our power to review; but if the facts found compel the conclusion, as matter of law, that an injunction should be refused, as inequitable, the order of reversal was wrong, and the judgment rendered by the trial court should be restored. While a temporary injunction involves discretion, a permanent in- junction does not, when the facts conclusively show that it would be inequitable and unjust. A court of equity will not do an inequitable thing. It is not bound by the rigid rules of the common law, but is founded to do justice, when the courts of law, witli their less plastic remedies, are unable to afford the exact relief which the facts require. Its fundamental principle, as its name implies, is equity. It withholds its remedies if the result would be unjust, but freely grants them to prevent injustice when the other courts are helpless. It cannot set aside a binding contract ; but when the effect would be inequitable, ow- ing to facts arising after the date of the agreement and not within the contemplation of the parties at the time it was made, it refuses to enforce the contract and remands the party complaining to his remedy at law through the recovery of damages. These principles were applied by this court in an important case which we regard as analogous and controlling. Trustees of Columbia College v. Thacher, 87 N. Y. 311, 41 Am. Rep. 365. In that case adjoining landowners in the city of New York had entered into re- ciprocal covenants restricting the use of their respective lands to the 28 Part of the oi)inion is omitted. Ch. 5) EQUITABLE" ENFORCEMENT OF AGREEMENTS 543 sole purpose of a private residence and expressly excluding "any- kind of manufactory, trade, or business whatsoever." After the lapse of nearly 20 years the defendant permitted a building upon his land, which was bound by the covenant, to be used for the business of a tailor, a milliner, an insurance agent, a dealer in newspapers, and a tobacconist. After the commencement of an action by the other land- owner to restrain such use, an elevated railway was built and a station located in the street in front of the premises of both parties. It was found as a fact that the "railway and station affect the premises in- juriously and render them less profitable for the purpose of a dwelling house, but do not render their use for business purposes indispensable to their practicable and profitable use and occupation. The said rail- way and station, however, do not injuriously affect all the property fronting on Fiftieth street and included in the said covenant, but only a comparatively small part thereof." The trial court awarded a permanent injunction, and the General Term affirmed the judgment; but the Court of Appeals reversed and dismissed the complaint on the ground that a contingency, not within the contemplation of the par- ties, had frustrated the scheme devised by them and rendered the enforcement of the covenant oppressive and inequitable. This court obviously held that an injunction, under the circumstances, was not witliin the absolute discretion of the Supreme Court; for otherwise, according to its uniform rule of action, it would not have reversed the judgment or dismissed the complaint. The opinion of Judge Danforth, concurred in by all the members of the court, declared that there was a. clear breach of the covenant, which, under ordinary circumstances, would entitle the plaintiff to an injunction; but, he said, "though the contract was just and fair when made, the interference of the court should be denied if subsequent events have made performance by the defendant so onerous that its en- forcement would impose great hardship upon him and cause little or no benefit to the plaintiff. Willard v. Tayloe, 8 Wall. 557, 19 L. Ed. 501 ; Thomson v. Harcourt, case 66, p. 415, vol. 2, Brown's Parlia- mentary Reports; Davis v. Hone, 2 Sch. & Lef. 340; Baily v. De Crespigny, L. R. [4 O. B.] 180; Clarke v. Rochester, Lockport & Niagara Falls Railroad Company, 18 Barb. 350." After reviewing the 'authorities cited, the learned judge continued : "In the case before us, the plaintiffs rely upon no circumstance of equity, but put their claim to relief upon the covenant and the viola- tion of its conditions by the defendant. They have established by their complaint and proof, a clear legal cause of action. If damages have been sustained, they must, in any proper action, be allowed. But, on the other hand, the defendant has exhibited such change in the con- dition of the adjacent property, and its character for use, as leaves no ground for equitable interference if the discretion of the court is to be governed by the principles I have stated, or the cases which those prin- 544 EIGHTS IN THE LAND OF ANOTHER (Part 2 ciples have controlled. * * * The road was authorized by the Legislature, and, by reason of it, there has been imposed upon the property a condition of things which frustrates tlie scheme devised by the parties and deprives the property of the benefit which might other- wise accrue from its observance. This new condition has already affect- ed, in various ways and degrees, the uses of property in its neighborhood and property values. It has made the defendant's property unsuitable for the use to which by the covenant of his grantor it was appropriat- ed, and if, in face -of its enactment and the contingencies flowing from it, the covenant can stand anywhere, it surely cannot in a court of equity." This case was followed in Stokes v. Stokes, 155 N. Y. 581, 590, 50 N. E. 342 ; Amerman v. Deane, 132 N. Y. 355, 359, 30 N. E. 741, 28 Am. St. Rep. 584; Conger v. N. Y., W. S. & B. R. R. Co., 120 N. Y. 29, 32, 23 N. E. 983; Page v. Murray, 46 N. J. Eq. 325, 331, 19 Atl. 11. See, also, Jewell v. Lee, 96 Mass. (14 Allen) 145, 92 Am. Dec. 744; Taylor v. LongwortH 14 Pet. 172, 174, 10 L. Ed. 405; Duke of Bedford v. Trustees British Museum, 2 My. & K. 552 ; Sayers V. Colly er, 24 L. R. (Ch. Div.) 170. So long as the Columbia College Case stands, the judgment ap- pealed from cannot ; for the same principle controls both. In each the changed condition was wholly owing to the lawful action of third parties, which made the allowance of an injunction inequitable and oppressive. Indeed, an injunction in the case before us would be more oppressive than in the case cited ; for it is expressly found, and the finding is final here, that the proposed erection would actually increase the value of the plaintiff's premises, while the enforcement of the covenant, without benefiting any one, would cause great damage to the defendant. It is a reasonable inference from the evidence that the rent roll of the defendant's land, with such dwelling houses on it as would rent to the best advantage, would not exceed $4,500 a year, while an apartment house such as he proposes to erect would rent for over $40,000 a year. Nineteen of the twenty-five years which bound- ed the life of the covenant in question have passed, and the object of the parties in making it has been defeated by the unexpected action of persons not under the control of the defendant. Under the circumstances now existing tlie covenant is no longer effective for the purpose in view by the parties when they made it, and the enforcement thereof cannot restore the neighborhood to its former condition by making it desirable for private residences. If the build- ing restriction were of substantial value to the dominant estate, a court of equity might enforce it, even if the result would be a serious injury to the servient estate; but it will not extend its strong arm to harm one party without helping the other, for that would be unjust. An injunction that bears heavily on the defendant without benefiting the plaintiff will always be withheld as oppressive. No injustice is done, for the damages sustained can be recovered in an action at law, Ch. 5) EQUITABLE ENFORCEMENT OF AGKEEMENT8 545 and the material change of circumstances so affects the interests of the parties as to make tliat remedy just to both. We think that botli reason and authority require a reversal of the order of the Appellate Division, but exact justice calls for a modifica- tion of the judgment of the Special Term. As that court found tiiat the proposed erection would cause no damage to the plaintiff", its judgment might be held a bar to an action at law, unless it expressly appeared that it was without prejudice to that remedy for the recovery of all damages sustained. We therefore reverse the order appealed from, and so modify tlie judgment of the Special Term as to declare that it is without prejudice to an action at law, and, as thus modified, we affirm it, without Costs in this court or in the Appellate Division to either party. CuLLEN, C. J., and Gray, BartlEtt, and WernSR, ]]., concur. O'Brikn and HAiGiir, JJ., absent. Order reversed, etc.-® LOUD v. PENDERGAST. (Supreme Judicial Court of Massachusetts, 1910. 206 Mass. 122, 92 iV. E. 40.) RuGG, J. This is a suit to restrain the alleged violation of a build- ing restriction. A tract of land called "Shirley Park" was laid out in 1895 with streets, and the lots were sold subject to the restriction imposed as a general scheme for the common benefit, that "all buildings shall be set back from the street line at least ten feet." The plaintiff and defendant each own one of these lots, which are adjacent. Each has erected a building on her lot. A small part of the main body of the defendant's house at one corner and a bay window, extending from the ground through the second story, and a piazza and steps are with- in the restricted area. These constituted a violation of the restriction. Reardon v. Murphy, 163 Mass. 501, 40 N. E. 854: Bagnall v. Davies, 140 Mass. 76, 2 N. E. 786; Linzee v. Mixer, 101 Mass. 512; San- IxDrn V. Rice, 129 Mass. 387; Payson v. Burnham., 141 Mass. 547, 6 N. E. 708. \ 2 9 Ace: Jaclison v. Stevenson, 156 Mass. 496, 31 N. E. 691, 32 Am. St. /'.ep. 47G (1S92). Compnro Brown v. Iluher. 80 Ohio St. 183, 88 N. E. 322. 28 L. R. A. (N. S.) 70.5 (3909); I>andell v. Hamilton, 175 Pa. 327, 34 Atl. 663, 34 L. R. A. 227 (1896). "A person who Is entitled to the benefit of a restrictive covenant may, by his cci.duot or omissions, put himself in such an altered relation to the )^r- son bound by it, as malces it manifestly unjust for him to asli a court to Insist on its enforcement by injunction. • * • In the present case }ve do not decide tliat a mere alteration in the character of the neighborhood would bo sufficient ; liecause there is no evidence that such alteration was caused by the plaintiff." Bowen, L. J., in Sayers v. Collyer, L. U. 2S Ch D. 103, lOS (1884). Big. Rights — 35 546 RIGHTS IN THE LAND OF ANOTHER (Part 2 It is urged that the plaintiff is not entitled to relief because she has been guilty of laches, because she has herself violated the same re- strictions in such a way that she comes into court with unclean hands, and because the original scheme has been so generally violated in the neighborhood as to make it unconscionable to enforce the restriction against this defendant. Relief in equity in cases of this nature is granted only when sought with promptness, and where active diligence has been exercised throughout respecting the matter of complaint. Conscience .requires that one should not stand by in silence, while another makes consid- erable expenditures in good faith under an assumed right, and then ask a court to enforce compliance with the restrictions at great loss, when seasonable notice or other appropriate action might have pre- vented the wrong complained of. Stewart v. Finkelstone, 206 Mass. 28, 92 N. E. 37, 28 L. R. A. (N. S.) 634, 138 Am. St. Rep. 370, and cases cited. Where a plaintiff has violated the very restriction he seeks to en- force to substantially the same extent and in the same general way as has the defendant, and there is no material difference in kind or degree between them, a court of equity will not ordinarily interfere. Bacon v. Sandberg, 179 Mass. 396, 60. N. E. 936; Scollard v. Normile, 181 Mass. 412, 63 N. E. 941. Such a plaintiff is not in a position just- ly to complain, for he does not come into court with clean hands re- specting the precise subject as to which he invokes relief, nor has he complied with the maxim that he who seeks equity must do equity. Butterick Publishing Co. v. Fisher, 203 Mass. 122, 89 N. E. 189, 133 Am. St. Rep. 283. This rule is applied in other jurisdictions. Olcott V. Knapp, 96 App. Div. 281, 89 N. Y. Supp. 201 ; s. c, 185 N. Y. 584, 78 N. E. 1108; Landell v. Hamilton, 177 Pa. 23, 35 Atl. 242; Ocean City Ass'n v. Headley, 62 N. J. Eq. 322, 50 Atl. 78; Ewertsen v. Ger- stenberg, 186 111. 344, 57 N. E. 1051, 51 L. R. A. 310; Brutsche v. Bowers, 122 Iowa, 226, 97 N. W. 1076.3° 3 A. laid out a tract of land in building lots and conveyed four adjoining lots to B., with a covenant that they should be used only for residence pur- poses. B. sold to C, who knew of the restriction. In sales then made over a period of years, A. conveyed several of the other lots to various purchas- ers with no restrictions. C. started to erect a business building upon liis lots. A. still owned a few lots. Held, A. cannot enjoin C. Duncan v. Central Pass. Ry. Co., 85 K,y. 525, 4 S. W. 228 (1887). Ace: Jenks v. Faw- lowski, 98 Mich. 110. 5G N. W. 1105, 22 L. R. A. 863, 39 Am. St. Rep. 522 (1893). See Osborne v. Bradley, [1903] 2 Ch. 446; Reilly v. Otto, 108 Mich. 330, 66 N. W. 228 (1896). Lots were sold subject to a restriction that "no building or structure" should be placed on the lots within 13 feet of B. street. The plaintiff and the defendant had each acquired title to one of these lots. The defendant had erected a small building within 13 feet of B. street. On bill by tlie plaintiff to enforce the restriction the court said : "Lastly, it is urged in defense that the plaintiffs cannot come into a court of equity for redress, because they have infringed the restrictions by allowing projections from the houses into the space of 13 feet between the houses and the line of Bea- con street. These projections conVjist of bay windows, piazzas, and steps. Ch. 5) EQUITABLE ENFORCEMENT OF AGREEMENTS 547 Where there has been no uniform observance of the restrictions and substantially all the landowners have so conducted themselves as to indicate an abandonment of the right, which is in the nature of an easement, to have the neighborhood kept to the standard established by the original plan and where the enforcement of the restriction against the defendant will not tend materially to restore to the dis- trict the character impressed upon it by the scheme, and the infraction complained of does not diminish the value of other estates, then it would be inequitable and oppressive to compel at great loss a com- pliance with the restrictions. Jackson v. Stevenson, 156 Mass. 496, 31 N. E. 691, 32 Am. $t. Rep. 476; Baptist Social Union v. Boston University, 183 Mass. 202, 66 N. E. 714." There is added force It appears to be settled iu this commonwealth that a plaiutiff is not pre- vented from obtaining relief by the fact that he has not objected to a viola- tion of a restriction by some one in the neighborhood other than the de- fendant. Linzee v. Mixer, 101 Mass. 512. 531 [1809] ; Payson v. Burnliam, 141 Mass. 547, 556. 6 N. E. 708 [1SS6]. See, also, Knight v. Simmonds, [189UJ 2 Ch. 294 ; German v. Chapman, 7 Ch. Div. 271, 278 [1877]. When a breach of restriction or of a covenant has been committed by the plaintiff, the case stands somewhat differently. "Whether a court of equity will or will not aid the plaintiff in such a case depends largely upon the question whether there has been such a material and substantial breach as will enable the court to say that it ought not to interfere. Kerr, Inj. (3d Ed.) 431 ; Western V. Macdermot. L. K. 1 Eq. 499 [1866] ; Id., 2 Ch. App. 72 [1806] ; Jackson v. Winnifrith, 47 Law T. (N. S.) 243 [1882] ; Chitty v. Bray, 48 Law T. (N. S.) S60 [1883]. In the case before us it may be assumed that the plaintiffs, by their conduct in respect to their own houses, could not invoke the aid of a court of equity to prevent the defendants from erecting a piazza, bay win- dow, or steps extending into the restricted space ; but the building of a separate house in this space is something the plaintiff's have not done, and, as this building violates the first restriction, we see no reason why the plain- tiffs sliould not be allowed to enforce their rights in equity without consid- ering whether the defendants have not also violated some of the other re- strictions. Evans v. Mary A. Riddle Co. (N. J. Ch.) 43 Atl. 894 [1899]." La- throp, J., in Bacon v. Sandberg, 179 Mass. 396, 399, 60 N. E. 936 (1901). Compare Curtis v. Rubin, 244 111. 88, 91 N. E. 84, 135 Am. St. Rep. 307 (1910). See, also, Landell v. Hamilton, 177 Pa. 23, 35 Atl. 242 (1896). 8i Acc. : Curtis v. Rubin, ante, p. 547. "As to the territory southwesterly of Ninth street, which has been de- fined as the residential district, I entertain the view that the six violations of the covenant pointed out by defendant cannot be considered as suthcient evidence to indicate the abandonment of the original plan in the district where nearly 400 buildings have been erected in conformity to the plan. The extremely small percentage of the breaches of the covenant which de- fendant has pointed out rather tends to the establishment of the fact that it has been the defined purpose of the property holders in that district to adhere to the pre.servation of the original plan sought to be preserved by the covenant. I think it also clear that the eiiuitable right of complainant to the enforcement of the covenant in question is not impaired by isolated breaches of the covenant in locations where such breaches can in no way be said to affect the desirability of complainants' property. It is not to be expected that the courts will be appealed to for the preservation of the genei'al scheme in localities where a complainant is without interest. It is only when the interest of a property owner is affected that, in my judgment, he can he reasonably cjiarged with the duty of applying to the court for the l<4-eservation of rhe general sfhenie." Learning. V. C, in Barton v. Slifer, 72 X. J. E(i. 812, S17, 66 Atl. 809 {VMl). Acc : Knight v. Simmonds, [1896] 2 Ch. 294. 548 RIGHTS IN THE LAXD OF ANOTHER (Part 2 to the argument drawn from these cases when as in the present case under Rev. Laws, c. 134, § 20, the restriction will expire after 30 years, about one-half of which has already run. The facts as to which these principles are to be applied were found by the superior court. As the evidence upon which they rest is not re- ported they must be assumed to be true. They are, in substance, as follows: On many of the lots in Shirley Park buildings, completed and occupied for several years prior to the acts here complained of, have been erected within 10 feet of the street lines without objection from the plaintiff or any one else. The plaintiff bought her lot in 1900, and in 1903 built a one-story building flush with the street line. This building was removed in 1907, and in its place a three-story building was erected, the main part of which encroached a few inches upon the prohibited 10 feet and bay windows on which project into it over 3 feet. .She also erected a wooden signboard measuring 4 feet by 9 feet, one end of which is wfithin a foot of the street line. See Nussey v. Provincial Bill Posting Co., 1909, 1 Ch. 734. In De- cember, 1908, the batten boards were set for the house upon the de- fendant's lot, standing within 3 feet of the street line, and these remained about 2 months. On February 18, 1909, excavation of the cellar began, and the foundation, including that of the bay, was com- pleted March 11th, and the house was boarded in March 20th, and Work continued until the 9th of April following, when the house was substantially finished on the outside with the exception of paint- ing and a little work on the piazza. On the last date process was served in this suit. The defendant's house stands with reference to the restrictions in material respects the same as the plaintiff's. The defendant assumed that she had a right thus to build, relying upon the position of the plaintiff's building and upon the general disregard of restrictions by others. The plaintiff was in her building every day during the progress of the work, and although she often saw the de- fendant and her husband, who was her agent and daily upon her prem- ises, made no protest to either of them, and did not consult counsel until April 6th. The erections complained of cause no pecuniary dam- age to the plaintiff, and do not diminish the market value of her es- tate. The enforcement of the restriction against the defendant will make her house less commodious and attractive and would cause thus her substantial loss. This narration demonstrates that taking all the facts together the plaintiff has failed to establish a right to equitable relief under the governing rules of law which we have stated. The decree dismissing the -bill is to be so modified as to include the costs of this appeal, and as so modified is to be affirmed. So ordered. Ch. Q) KENTS 549 CHAPTER VI RENTS * SECTION 1.— GENERAL NATURE OF RENTS WALKER'S CASE. (Court of Queen's Bench, 1587. 3 Coke, 22a.) The case was in effect: Walker leased certain lands to Harris for years, the lessee assigned all his interest to another, Walker brought an action of debt against Harris for rent behind, after the assign- 1 The payment of rent was not in its origin considered to be the discharge of a personal or contract duty that the tenant owed the lord ; rent was re- garded as property interest that the lord had in the specified return; and the obligation was somewhat metaphorically stated as being owed by the land rather than by the tenant as an individual. This feudal theory of rent is shown by the forms of action that were used to protect and vindi- cate the lord's right to rent. If the tenant had a freehold interest in the land and refused to pay the rent reserved, the lord was regarded as being disseised of the rent, and his action to regain the seisin of the rent was similar to that which he would have brought in order to regain the seisin of the land from a person who had wrongfully ousted him therefrom. • If the tenant's estate in the land was less than freehold, the theory as to the nature of rent remained the same, although the action which was used to enforc-e the lord's right to tlie rent was different. Since in these circum- stances the lord had no seisin of the rent (see Prescott v. Boucher, 2 B. & Ad. 4S9 [1&'.2]), a refusal by the tenant could nor be a disseisin, and conse- quently a real action could not be brought by the lord. The proper form of action for the recovery of the rent in this state of facts was debt. The use of this action, however, shows that the tenant was regarded as wrongfully retaining something, 1. e., the rent, to the return of which the owner of the reversion to which the rent was incident, was properly entitled. For a similar reason the action of debt also lay against a freehold tenant after the expiration of his estate. Another method that the lord had for enforcing the payment of the rent from his tenant was by distress. This was the privilege that the lord had, whenever the rent was in arrear, of seizing any chattels that might be found upon the demised land and detaining them until the rent was paid. This privilege was not limited to the chattels of the tenant;, a fact which also indicates that the obligation was regarded as that of the laud. This right of distress was not in its origin limited to the enforcement of the payment of rent, but was a general method of compelling the performance of various feudal ol)ligations, although its most common use wa§ to enforce the payment of rent. Except where created by contract, however, the right of distress existed only in the ease where a relation of tenure existed be- tween the one levying the distress and the one against whom it was levied. Thus far the rent discussed has been of a kind that existed only in the case of a tenure relation ; it is technically called a rent service. Kents might, however, be created independent of a tenure. One case of this sort results from Quia Emptores (1290), by which tenure was abolished between feoffor and feoffee in a conveyance in fee simple. If, prior to the statute, A., owning laud, conveyed it to B. in fee, there would be a relation of tenure 550 RIGHTS IN THE LAND OF ANOTHER (Part 2 ment, and whether the action were maintainable or not, was the ques- tion,^ * * * On great deliberation and conference with others, it was adjudged by Wray, L. C. J., Sir Thomas Gawdy, and the whole court of King's Bench, that the action would lie after such assignment. And first for the apprehending of the true reason of this case,r and of all the other cases, which have been urged on the other side, (for the law always, and in all cases, is consonant to itself,) it is to be known, that as to the matter now in question, there are three manner of privities, scil. privity in respect of estate only, privity in respect to contract only, and privity in respect of estate and contract togeth- er: privity of estate only; as if the lessor grants over his reversion (or if the reversion escheat) between the grantee (or the brd by es- cheat) and the lessee is privity in estate only, so between the lessor and the assignee of the lessee, for no contract was made between them. Privity of contract only, is' personal privity, and extends only to the person of the lessor and to the person of the lessee, as in the case at bar, when the lessee assigned over his interest, notwithstand- ing his assignment the privity of contract remained between them, al- though the privity of estate be removed by the act of the lessee him- self; and the reason thereof is. First, because the lessee himself shall not prevent by his own act such remedy which the lessor hath against him by his own contraci:, but when the lessor grants over his reversion, there, against his own grant, he cannot have a remedy, because he hath granted the rever- sion to another, to which the rent is incident. Secondly, the lessee may grant the term to a poor man, who shall not be able to manure the land, and who will, for need or for malice, suiier the land to lie fresh, and then the lessor will be without rem- between A. and B. If a rent was reserved upon the conveyance, it would be dependent upon the tenure and would consequently be a rent service. If such a conveyance was made after Quia Eraptoves, there would be no tenure l^etween A. and B., and consequently the rent reserved would not be a rent service. Other cases of rent not dependent upon tenure are where a person owning land, grants a rent out of it to a third person, in fee, or for life or years ; or where a person having in land a reversion to which a rent .service is incident conveys the rent to a third person, retaining the rever- sion. . As already stated the right of distress was incident to a tenure relation. Since in none of these last mentioned cases was there a tenure relation be- tween the owner of the rent and the holder of the land whence the rent was derived, tli,e only method of enforcing his right that the owner of the rent had, was by action. The rent was consequently known as dry rent, or rent sec. The parties might, however, by deed, create as an incident to the rent the right to distrain for it although there was no tenure. In this case the rent was known as a rent charge. See, in general, as to the forms of action for the recovery of rents, '1 Pollock and Maitland, History of the English Law (2d Ed.) p. 125 and fol. ; 10 Harvard Law Ileview, p. 78 and fol.; 11 Harvard Law Review, 1; 13 Law Quart. Rev. 288; Amer. Lectures on Legal History, p. 1G7. 2 Part of the case is omitted. Ch. 6) RENTS 551 edy either by distress or by action of debt, which would be incon- venient, and in effect concerns every man ; (for, for most part, eveiy man is a lessor or a lessee) and for these two reasons all the cases of entry by wrong eviction, suspension and apportionment of rent are answered: for in such cases either it is the act of the lessor himself, or the act of a stranger ; and in none of the said cases the sole act of the lessee himself shall prevent the lessor of his remedy, and intro- duce such inconveniences, as hath been said. The third privity is of contract and estate together, as between the lessor and the lessee himself. * * * Note, reader, so great was the authority and consequence of this judgment, that after this time, not only the point adjudged hath been always affirmed, but also all the differences in this case taken by Wray, C. J,, and the court have been adjudged, as you may learn by the cases following. Hil. 36 Eliz., in the King's Bench, Rot. 420, between Un- gle and Glover ^ it was adjudged, that if the lessee for years assigns over his interest, and the lessor by deed indented and enrolled accord- ing to the statute bargains and sells the reversion to another, that the bargainee shall not have an action of debt against the lessee, for there is no privity betwixt them. But it was unanimously agreed by Pop- ham, Ch. Justice, Clench, Gawdy, and Fenner, Justices, that after the assignment the lessor himself might have an action of debt against the lessee for rent due after the assignment. * * * Also it was said, if the lessee assigns over his term, the lessor may charge the lessee or his assignee at his election ; and therefore if the lessor accepts the rent of the assignee, he hath determined his elec- tion, and shall not have an action against the lessee afterwards for rent due after tlie assignment,* no more than if the lord once accepts the rent of the feoffee, he shall not avow on the feoffor: and by these judgments and resolutions you will the better understand your books ; between which prima facie seems to be some diversity of opinions. Vide 44 E. 3, 5, and 44 Ass. 18, 9 H. 6, 52, by Paston, which agree with the judgment of Sir Christopher Wray. See 8 Eliz. Dyer, 247, and the quaere there made, is now well resolved. 3 Reported Poph. 55 ; Cro. Eliz. 328. 76, 37 Am. Dec. 117; Insurance Co. v. Wil- son, 10 Mete. (Mass.) 126. An assignment of rent reserved under a lease gives the assignee an action in his own name for rent subsequently accruing. Kendall V. Garland, 5 Gush. (Mass.) 75 ; Hunt v. Thompson, 2 Allen (Mass.) 341 ; Harmon v. Flanagan, 123 Mass. 288 ; Beal v. Spring Co., 125 8Acc.: Horn v. Beard, [1912] 3 K. B. 181; McDonald v. Hanlon, 79 CaL 442, 21 Pac. 861 (1889); Hendrickson v. Beesoa, 21 Neb. 61, 31 N. W. 266 (1887). X. was tenant from year to year under A., his tenancy having begun at Midsummer. In May, Y. took a parol lease from A. of the same premises for a year, to begin at Midsummer. Y. demanded the fall and winter quarter rents from X., and on his refusal to pay distrained. X. sued Y. for an illegal distraint. Held. Y.'s lease being by parol, the distraint is il- legal. Brawloy v. Wade. McClell. 664 (1824). See Bordereaux v. Walker, 85 111. App. 86 (1899). A. lea.sc'd land to X., the lease expiring September 29, 1869. During this term A. executed an indenture of lease of the same premises to Y. for a period of 17 years from September 29, 1869. After the execution of the lease to Y., X. refused to pay rent to A. Held, A. may distrain. Smith v. Day, 2 M. & W. 684 (1837) ; and if X. holds over after the expiration of his tenn A. may recover a statutory penalty. Blatchford v. Cole, 5 C. B. N. S. 514 (1858) ; or damages, Thomas v. Wightmau, 129 111. App. 305 (190U) ; or possession. Eells v. Morse. 208 N. Y. 103. 101 N. E. 803 (1913). But com- pare Pendergast v. Young. 21 N. H. 234 (1850) ; United Merchants' Realty & Improvement Co. v. Roth, 193 N. Y. 570, 86 N. E. 544 (1908). See, also, Prescott V. De Forest, 16 Johns. (X. Y.) 159 (1819). • The statement of facts and part of the opinion are omitted. 560 RIGHTS IN THE LAND OF ANOTHER (Part 2 Mass. 157, 28 Am. Rep. 216. No case can be found where an assignee of a lease or of rent reserved has been permitted, at common law, "to sue in his own name for rent in arrear at the time of the assignment. The conveyance of the reversion and of the lease was August 8, 1895. It passed the title that day of estate held by their insolvent on the 20th of November, 1894. It cannot be construed as a grant or assignment, taking effect the previous November, when the debtor was adjudged insolvent. The part of the grant referring to that date was mere description of the estate conveyed. The rent meantime had accrued to the assignees, and payment to them would have discharged the rent. It had become separated from the land, and was a chose in action recoverable only at common law in the name of the assignees. Whether that rent be held as assigned to the plaintiff under the con- veyance of August 8th, or the subsequent assignment of it in the fol- lowing January, makes no dift'erence, as it was a chose in action to be sued for in the names of the assignees in insolvency only.^** Under Rev. St. c. 82, § 130, an assignee of choses in action, not negotiable, may sue in his own name to recover the same, but "shall file with his writ the assignment or a copy thereof." No assignment was so filed in this case, but both the conveyance of August 8th and the assignment of the following January, when offered in evidence, were objected to, and under the stipulations cannot be considered if not legally admissible. Tliis question has been decided in Bank v. Gooding, 87 Me. 338, 32 Atl. 967, where it is squarely held that such assignments not filed with the writ are not admissible in evidence against objection. The claim sued in the first count cannot, there- fore, be recovered in this action. The second count declares for rent from August 8 to November 20, 1895. On the former date the lease had been assigned to plaintiff, so that rent accruing afterwards may be recovered by plaintiff in his own name. The lease was terminated on the 20th of November, 1895, by plaintiff taking possession for nonpayment of rent. The rent was payable monthly on the 1st day of each month, so that all plaintiff can recover in any event is rent for August, September, and October. The November rent had not accrued, and therefore cannot be recovered. Nicholson v. Munigle, 6 Allen (Mass.) 215. * * * Defendant defaulted for $49.98 and interest from date of writ. * * * 10 See Midgley v. Lovelace. Carth. 289 (1693) ; Thornton v. Strauss, 79 Ala. 164 (1885); Burden v. Thayer, 3 Mete. (Mass.) 76, 37 Am. Dec. 117 (1841) ; Farmers* & Mechanics' Bank v. Ege, 9 Watts (Pa.) 436, 36 Am. Dec. 130 (3840). Ch. G) BENTS 561 ARDS V. WATKINS. (Court of Queen's Bench, 159S, 1599. Cro. Eliz. 637, 651.) Upon demurrer the case was, lessee for thirty years of a parcel of land called Shortwood, lets it for twenty-eight years, rendering £34. rent per annum ; and after deviseth £28. parcel of that rent to his three sons, severally to every of them a third part. One of them brings debt for his part of the rent: and, whether this action lay, or not? was the question. Gawdy and Fenner held, that the action well lay; for there is no doubt but that rent may be devised, and be divided from the reversion ; for it is not merely a thing in action, but quasi an inheritance, as Knowles' Case is. Dyer, 5b; and in 24 Hen. 8 Rysden's Case, Dyer, 4b. If lessee grants over all his term in part of the land, yet it is chargeable in an action with the entire rent ; for he by his act cannot apportion it. • And by the grant of part, the lessee is not compellable to attorn ; for then he should be liable to two actions, or two dis- tresses. But the devise is quasi an act of law, which shall inure with- out attornment, and shall make a sufficient privity, and so it may be well apportioned. by this means. Wherefore, &c. Popham and Clench e contra. For as the lessee by his own act shall not divide the lessor's contract, nor apportion his action ; so likewise the law favours the lessee, that the act of the lessor shall not charge him with divers actions, or double distresses, but upon his voluntary attornment : and the contract being entire cannot be apportioned. But Popham agreed, that the rent was well devisable, and by that means severable from the reversion. And although a thing in action cannot be transferred over, nor be devised ; yet a contract, which ariseth from an interest in land, or which is an interest, may be well transferred over. Wherefore, &c. Adjoumatur. The case was now moved again; and Gawdy and Fenner, and Clench agreeing with them, held, that the devise was good, and well severable: for as to that objection, that a mischief may happen to the tenant, that he shall be subject to two actions and distresses, that is his own fault; for if he pays his rent, he shall avoid it: and the same mischief is, where he deviseth part of the reversion and rent, which is agreed on the other part to be well enough ; and although a contract, or a thing in action, cannot be transferred nor divided, yet rent only may be. For it is a thing in possession; for he doth not grant the action, but the law gives it as incident to the rent. And Huntley's Case, 10 Eliz. Dyer, 326, is express, where a devise was of a reversion upon a lease for years, w'ith the rent to a man and his sister, and the heirs of their bodies ; the sister dies without issue ; the brother dies having issue ; the heir had the moiety of the rent. BiG.RlQHTS— 3G 562 EIGHTS IX THE LAND OF ANOTHER (Part 2 Popham e contra. For the difference will be, when part of a re- version and rent is granted, that is good ; but when the rent is sever- ed from the reversion, it is otherwise : for then it is but in nature of an annuity, which cannot be granted by parcels, but entirely; but an annuity or rent only are grantable over, because they are things of continuance, and are not personal. And the reason of Huntley's Case, 10 Eliz. Dyer, 326, is, because the rent is divided with the re- version. But notwithstanding, in regard three of them agreed, he consented that judgment should be entered for the plaintifiF. Note. That in the argument of this case, a case was cited in this Court, Easter Term, 28 Eliz. Roll. 344, where a devise was of an en- tire reversion and rent, which was void for a third part ; because it was holden in capite, and debt was brought for two parts of the rent, and adjudged maintainable.^^ NEWCOMB V. HARVEY. (Court of King's Bench, 1690. Carth. 161.) The plaintiff being lessee for years assigned over his whole term, by indenture, to the defendant, rendering rent, and an action of debt was now brought for the rent in arrear. The defendant pleaded non concessit & hoc, &c. And upon a demurrer to this plea, it was objected in behalf of the defendant, that this action would not lie, because the sum reserved was not properly any rent, but a sum in gross, tlie plaintiff having assigned .over his whole term, and by consequence had no reversion, and therefore the action ought to be for a sum in gross upon the con- tract, (and not debt for rent) and that would not lie till the last day expires. 11 Ace: That the right to rent may be severed from the reversion. Rob- ins V. Cox, 1 Lev. 22 (1661); Brownson v. Roy, 133 Mich. 617, 95 N. W. 710 (1903) ; Moffat v. Smith, 4 N. Y. 126 (1S50). A. leased land to X. for years, reserving a rent. A. left the rent by will to B. B. died. In a contest between B.'s heir and B.'s executor, held, the latter is entitled to the future rent. Knolle's Case, Dyer, 56 (1534). A. leased land to X. for years, reserving a i-ent. A. mortgaged the prem- ises to B. Tlie mortgage contained this clause: B. "is to receive all the rents to be derived from said lease * * * and this deed shall operate as an assignment of the interest of the said A. in said lease." B. sued X. in his own name for rent accruing after the execution of the mortgage. The court held the action maintainable, saying: "The doctrine of the com- mon law, that choses in action are not assignable, does not obtain with us." Watson V. Hunkins, 13 Iowa, 547 (1862). The lessor mav convev the reversion, but retain the right to the rent. Crosbv V. Ivoop, 13 111. 025 (18.52) ; Goodwin v. Hudson, 60 Ind. 117 (1877). See Cheatham v. J. W. Beck Co., 96 Ark. 230, 131 S. W. 699 (1910). If the reversion in parts of the leased premises is conveyed to separate' grantees, the rent is divided proportionately, and each grantee may recover his proportionate part of the rent. Swansea v. Thomas. 10 Q. B. D. 48 (1882) ; Worthington v. Cooke, 56 Md. 51 (1881) ; Linton v. Hart, 25 Pa. 193, 64 Am. Dec. 691 (1855) ; Pelton v. Place, 71 Vt. 4.30, 46 Atl. 63 (1899). Ch. 6) RENTS 563 To wlliich it was answered, and so resolved per Curiam, that this is rent, tho' the plaintiff had no reversion; for if a rent is reserved upon a feoffment in fee, there is no reversion in the f eoffer ; but yet this is a rent, and recoverable by the name of a rent upon the contract, and so it shall be in the principal case. Moreover, if the defendant had assigned over the term to another, an acrion of debt would lie for the plaintiff against the second assignee. The plaintiff had judgment.^ ^ WILSTON V. PILKNEY. (Court of King's Bench, 1673. 1 Vent. 242.) In debt for rent the plaintiff declared, that the dean and chapter of, &c. demised to the defendant for Hfe; by force of which he entered and demised the land to the plaintiff' for years, by virtue of which he was possessed, and afterwards granted to the defendant, reserving a rent, for which he brings his action. To this declaration the defendant demurs. ^^ * * * Thirdly, as to the matter, that the reservation was void, it being upon a surrender by parol. A rent cannot be reserved upon a feoff- ment by parol; so where lessee for life or years assigns over his whole interest, 12 H. 4, 14; 9 H. 6, 43; 12 H. 4, 17. Also no rent can be reserved upon a conveyance that works an extinguishment, un- less by deed, where it is good upon the contract. Peto's Case, 3 Cro. 101, is, that a surrender drowns the interest to all intents and pur- poses between the parties. Dyer, 251. The tenant for life agreed with him in reversion, that he should have his land for the annual rent of 20s. 'tis doubted there whether this amounts to a surrender, there being no deed or livery. But in 2 Roll. 497, 'tis said, if it had been a surrender the reservation had been void. * * * As to the matter, the Court resolved for the plaintiff. For 1. The reservation was good by the contract, tho' without deed. And so it. was adjudged in this Court in Manly's Case, that tenant for years might assign his whole term by parol, rendering rent; so in the case of Purcas and Owen, 23 Car. But it was doubted, wheth- er an action would lie until the last day were past. 'Tis all one where the grant is made to him in reversion, which is not actually, but con- sequentially a surrender by operation of law, before which the contract is perfected, upon which the rent arises. 7 E. 4, is, that the lessee may surrender upon condition; and there is no reason, why a rent can- 12 A. leases to X. for years. X. assigns his whole term to Y., reserving a rent. X. assigns his right to the rent to M. Held, M. may sue Y. in debt in his own name for the rent so reserved. Williams v. Hayward, 1 K. & E. 1040 (1859) ; Clark v. Coughlan, 3 Ir. L. R. 427 (1841) ; Patten v. Deshon, 1 Gray (Mass.) 325 (1854). 13 Fart of the opinion is omitted. 564 RIGHTS IN THE LAND OF ANOTHER (Part 2 not be created* upon it as well as a condition. If it were in the case of tenant for life, a deed were requisite as well for a rent as a condi- tion, in respect of the freehold, but that is not so in the case of ten- ant for years. LOYD V. LANGFORD. (Court of Common Pleas, 1677. 2 Mod. 174.) A special verdict. The case was : A. being a tenant in fee of lands, demised the same to B. for seven years. B. re-demised the same lands to A. for the said term of seven years, reserving twenty pounds rent per annum. A. dies; his wife enters as guardian to the heir of A. her son, and receives the profits. B. brings debt against her as ex- ecutrix de son tort, in the debet et detinet. The question was, whether this action would lie or not? Baldwin, Serjeant, who argued for the plaintiff, held, that it did lie; for though the rent reserved in this case did not attend the re- version, because the lessee had assigned over all his terni, yet an ac- tion of debt will lie for that rent upon the contract. Cro. Jac. 487. Witton V. Bye, 45 Edw. 3, pi. 8. 20 Edw. 4, pi. 13. Covenant will lie upon the words "yielding and paying." If then here is a good rent reserved, the wife, who received the profits, becomes executrix de son tort, and so is liable to the payment. It hath been held, that there cannot be an executor de son tort of a term, but the modern opinions are otherwisp. ♦ * * Pemberton, Serjeant, for the defendant, would not undertake to answer these points which were argued on the other side, but admitted them to be plain against him ; for he did not doubt but that debt would lie upon the contract, where the whole term was assigned, and that there may be an executor de son tort of a term. But he said, that which was the principal point in the case was not stirred: the ques- tion was, whether an action of debt will lie against the defendant as executor de son tort, where there is no term at all? for it is plain there was none in being in this case; because when the lessee re-de- mised his whole term to the lessor, that was a surrender in law, and as fully as if it had been actually surrendered: and therefore this was quite different from the case, where lessee for years makes an assignment of his whole term to a stranger, debt will lie upon the contract there, because an interest passes to him in reversion ; and as to this purpose a term is in esse by the contract of the parties, and so it would here against the first lessor, who was lessee upon the re-de- mise : but now, because of the surrender, the heir is entitled to enter, and the mother, who is the defendant, enters in his right as guardian, which she may lawfully do. If, therefore debt only lies upon the contract of the testator, as in truth it doth where the whole term is gone, the plaintiff cannot charge any one as executor de son tort in Ch. G) RENTS 565 the debet et detinet. And the whole term is gone here by the re-de- mise, which is an absolute surrender, and not upon condition; for in such case the surrender might have entered for non-performance, and so it might have been revived. And of this opinion was the whole Court in both points, and would not hear any farther argument in the case. The plaintiff having no remedy at law, the Court told him that he might seek for relief in' Chancery, if he thought fit. ST. 4 GEORGE II, c. 28, § 5. And whereas the remedy for recovering rents seek, rents of as- size, and chief rents, are tedious and difficult, be it therefore enacted by the authority aforesaid, That from and after the twenty-fourth day of June one thousand seven hundred and thirty-one, all and every person or persons, bodies politic and corporate, shall and may have the like remedy by distress, and by impounding and selling the same, in cases of rent seek, rents of assize, and chief rents, which have been duly answered or paid for the space of three years, within the space of twenty years before the first day of this present session of Parlia- ment, or shall be hereafter created, as in case of rent reserved upon lease; any law or usage to the contrary notwithstanding. V. COOPER. (Court of Common Pleas, 1768. 2 Wils. 375.) In replevin, the defendant avows under a distress for rent due from the plaintiff to him upon an assignment of a lease of a term for years to the plaintiff, in which assignment there is no clause of dis- tress ; the single question is, Whether this is such a rent for which a distress lies, there being no reversion in the defendant. It was said for the defendant, that although rent be incident to the reversion, yet it is not an inseparable incident, and therefore it may be severed from the reversion; and although there is no clause of distress in the assign- ment of the term, yet the rent reserved thereupon may be considered as a rent-seek, and distrained for by the statute 4 Geo. 2. c. 28, sec. 5, and that it appears clearly to be the intent of the parties that the plaintiff should pay rent to the defendant; this case was so clear, that the court gave judgment for the plaintiff without hearing his counsel. Curia. There are two ways of creating rent; the owner of the lands either grants a rent out of it; or grants the lands and reserves a rent; there is no such thing as a rent-seek, rent-service or rent- charge issuing out of a term for years. Bro. Dette, pi. 39, cites 43 Ed. 3, 4, per Fynchden Ch. Justice C. B. If a man hath a term for years, and grants all his estate of the term rendering certain rent, he 566 RIGHTS IN THE LAND OF ANOTHER (Part 2 cannot distrain if the rent be in arrear; this case is law and in point; therefore ri the avowant will recover what is owing to him from the plaintiff, he must bring his action upon the contract. Judgment for the plaintiff per totam curiam.^* WEBB V. RUSSELL. (Court of King's Bench, 1789. 3 Term R. 393.) This was an action of covenant. The declaration stated an indenture of 26th October, 1780, by which William Stokes, and R. Webb who was described to be the mortgagee of the premises in question, demised them to the defendant for 1 1 years, from the 29th September then last, at the yearly rent of £200. payable to Stokes or his assigns ; in which were contained covenants on the part of the defendant with Stokes and his assigns (inter alia) to pay the rent, and to keep the premises in repair. It then stated that R. Webb at the time of the lease was possessed of the premises for the residue then to come and unexpired of a term of 99 years, commencing on the 24th of June, 1770, sub- ject to an equity of redemption by Stokes on payment of a certain sum with interest to R. Webb. That the defendant entered on 26th Octo- ber, 1780, and became possessed for the term of 11 years, the rever- sion thereof for the term of 99 years belonging to R. Webb, subject to such equity of redemption, and the further reversion in fee belonging to one G. Medley. It then stated that by indentures of lease and re- lease of the 23d and 24th March, 1781, Medley granted the reversion in fee, expectant on the determination of the terms for 99 years, to Stokes and Morgan Thomas ; who, by indentures of lease and release, dated 26th and 27th March, 178.1, and made between Stokes and Thomas of the first part, R. Webb of the second part, and Makepeace Thackeray of the third part, granted it to Thackeray his heirs and assigns in trust for R. Webb his heirs and 'assigns, subject to a pro- viso for redemption on payment of a certain sum of interest by Stokes to R. Webb on a day therein mentioned and since past. That on the 30th May, 1785, R. Webb died, having first made his will; by which 14 Ace: Parmenter v. Webber, 8 Taunt. 50:? (1818); Lewis v. Baker, [1905] 1 Ch. 46 : rre.7 he bequeathed to the plaintiff all his worldly estate, and appointed her sole executrix ; that she proved the will, took upon herself the burthen of the execution of it, assented to the said bequest, and claimed lo have the reversion of the premises for the residue of the term of 99 years, (subject to Stoke's equity of redemption) and the money thereup- on secured to R. Webb, as legatee ; and by virtue of that bequest, assent, and claim, she became possessed of the said reversion for the residue of the term of 99 years, subject, &c. That by indentures of lease and release, dated 12th and 13th February, 1787, and made, between Thackeray of the first part, Stokes of the second part, and the plain- tiff of the third part, Thackeray and Stokes granted and released to the plaintiff the reversion of the premises in fee, freed and discharged from all right and equity of redemption whatsoever, by virtue whereof she became and was and still is seised in fee of the reversion of the prem- ises, immediately expectant on the determination of the term of 11 years. The declaration concluded with setting forth two breaches of covenant; the one for non-payment of one year and one quarter's rent, due at Lady-day, 1788; and the other for not keeping the prem- ises in repair. To this there was a general demurrer ; and joinder. Lord Kexyon, Ch. J., now delivered the opinion of the Judges then in Court. I cannot conceive why tlie plaintiff has introduced into her declara- tion many facts there stated. If there were no other objection against the plaintiff''s recovering in this action, the pleader has raised some difficulty to himself by stating that the plaintiff, who was executrix, assented to the legacy to herself, and took the term in her own right; for in some views of this question, the action possibly might have been sustained, if the plaintiff had sued as executrix ; because nothing is clearer than that a term which is taken in alieno jure is not merged in a reversion acquired suo jure. It is extremely well settled at common law, without referring to the statute 32 H. 8, c. 34, that covenants which run with the land will pass to the person to whom the land descends. And that statute enacted, for the benefit of the grantees of reversions, that they should have the like advantages against the lessees, their executors, &c., by entry for non- payment of the rent; and should have and enjoy all and every such advantages, benefits, and remedies, by action only for not performing other conditions, covenants, or agreements, contained in the leases, against the lessees, as the lessors or grantors had. The. statute also contains a clause, giving the lessees the same remedy against the gran- tees of the reversion which they might have had against their grantors. Therefore under this statute the grantees or assignees stand in the same situation, and have the same remedy against their lessees, as the heirs at law of individuals, or the successors (in the case of corpo- rations), had before the statute. It becomes therefore necessary to en- Quire whether this action of covenant could have been maintained by 568 RIGHTS IN THE LAND OF ANOTHER (Part 2 the heirs of the person from whom the plaintiff derives her title. 1 have already observed upon the introduction of one fact into this case, which might have been omitted; there is also another, which de- serves some observation here. It is stated that Stokes was only a mortgagor, who had parted with his whole term to the mortgagee ; and the declaration goes on to state that the whole interest which was vested in him he had transferred to the mortgagee. Therefore, in point of law, I cannot conceive how this covenant made with Stokes can be said to run with tlie land; for Stokes is stated in the declaration to have no interest whatever in the land, and yet both the implied cove- nant, "arising from the yielding and paying," and also the express covenants are entered into with Stokes. It is not sufficient that a cov;- enant 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. But here Stokes had no interest in the land of which a court of law could take notice; though he had an equity of redemption, an interest which a court of equity would take notice of. These therefore were collateral covenants. And though a party may covenant with a stranger to pay a certain rent in consideration of a benefit to be derived under a third person, yet such a covenant cannot run with the land. But even supposing that these covenants had been entered into (not with Stokes but) with Webb, who had an interest in the land, the sub- sequent transaction, which is stated in the declaration, puts an end to this question. It appears that the person entitled to the reversion of the 99 years term, expectant on the determination of the 11 years term created by the lease, afterwards acquired in her own person the absolute inheritance of the land ; in consequence of which the reversion attendant on the lease granted to the tenant no longer existed. Another estate, totally different, arose by the extinguishment of the interven- ing estate. Many cases were cited on this subject; one of which, Moor, 94, is very applicable. There a person made a lease for 100 years, and the lessee made an underlease for 20 years, rendering rent, with a clause of re-entry; afterwards the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term ; and it was held that the grantee should not have either the rent, or the power of re-entry ; for the reversion of the term, to which they were incident, was extinguished in the reversion in fee. And though this case was only determined at the assizes, yet it was afterwards recogniz- ed in the Court. Considering then that these are covenants entered into with a stran- ger that do not run with the land, considering also that the rent is in- cident to the reversion out of which the term is carved, and that that reversion is gone, it seems to me, with all the inclination which we have to support the action, (and we have hitherto delayed giving judgment in the hopes of being able to find some ground, on which the plaintiff's demand might be sustained) that it cannot be supported. The defence which is made^is of a most unrighteous and unconscien- Ch. 6) RENTS 569 tious nature: but unfortunately for the plaintiff the mode which she has taken to enforce her demand cannot be supported; and consequent- ly there must be Judgment for the defendant." McMURPHY V. MINOT. ' (Supreme Court of New Hampshire, 1827. 4 N. H. 251.) This was an action of covenant broken on an indenture made the 12th July, 1811, by which the plaintiff demised to Seth Daniels, a certain tract of land to hold during her natural life, and the said Daniels cove- nanted with the plaintiff to pay her, on the first day of May, annu- ally, a rent of $30. The action was brought against the defendant, as assignee of Daniels, for the said rent from 1st May, 1817, to the 1st May, 1825, and was submitted to the decision of the court upon the following state- ment of facts. The indenture was made as stated in the declaration, and Daniels having entered under it, afterwards conveyed all his estate to one Oilman Dudley, who, on the 3d April, 1822, conveyed the land to the defendant in fee and in mortgage. Dudley remained in possession and took the profits until his death in October, 1822, and after his decease his administratrix remained in possession, taking the profits imtil April, 1824. On the 16th April, 1824, a tenant entered upon part of the land under an agreement with the defendant to pay rent to him in case the land was not redeemed. On the 23d April, 1825, the administratrix of Oilman Dudley con- veyed to the defendant the right in equity to redeem the land mortgaged as aforesaid, and the defendant's said tenant has been in possession of the whole tract from that time to the commencement of this action, on the 22d March, 1826. All the interest which the plaintiff ever had in the land was an es- tate for her own life, and the reversion was in Daniels. Richardson, C. J.^' It has been urged in behalf of the defend- ant in this case that the plaintiff is not entitled to recover any thing, bcause the rent was never demanded of Minot. The law on this point is well settled. When a lessor proceeds for a forfeiture or to en- force a penalty he must show a demand of a rent on the vt?ry day it was payable. But in an action of covenant no demand is necessary. 18 Johns. (N. Y.) 477, Remsen v. Conklin; Com. Dig. "Rent," D, 4; 2 N. H. 163, Coon v. Brickett. We are therefore of opinion that this objection to the action cannot prevail. 15 Ace: Threer v. Barton, Moore, 94 (1570). See Thorn v. Woollcombe, 3 B. & Ad. 586 (1832). 16 Part of the opinion is omitted. 570 RIGHTS IN THE LAND OF ANOTHER (Part 2 It has also been urged that this action cannot be maintained, be- cause the particular estate and the reversion having become united in the same person, the particular estate is merged and the rent extin- guished. Had the rent in this case been incident to the reversion it is clear that this action could not be maintained. 2 N. H. 454, York v. Jones. But it is well settled that the rent is not inseparably incident to a reversion. Coke, Litt. 143, and 47, a; 2 Bl. Com. 176. Rent may be reserved upon a grant of a man's whole estate in which case there can be no reversion. The case of Webb v. Russell, 7 D. & E. 393, which has been cited by the defendant's counsel does apply in this case. It was there held that where rent is incident to a particular reversion, when that particu- lar reversion is merged, the rent is extinguished. But in this case the rent was never incident to the reversion. The plaintiff granted her whole estate reserving a rent, and she had no reversion to which it could be incident. In order to maintain this ground it must be shown that when he who has a reversion takes a lease of the particular estate and covenants to pay rent, such rent is extinguished by the union of the particular es- tate and the reversion. But this proposition cannot be sustained by any reason or authority, and we^are of opinion that this ground of de- fence fails altogether. * * * In considering this case, the question occurred to us whether the liability of the defendant could be affected by the circumstance that the rent was reserved upon a grant of the freehold, while the con- veyance to him was in fee. But we find that it has been decided that covenant will lie against the assignee of part of an estate for not re- pairing his part, for it is divisible and follows the land. Cro. Car. 222, Congham v. King ; 2 East, 580. And we are not able to discover any reason why he who takes a larger estate should not be bcmnd by a covenant running with a less estate which is parcel of the larger. On behalf of the plaintiff it has been argued that the defendant is liable in this action, not only for the rent which has become due since he became owner of the land, but the rent which became due before that time. The cases which have been cited by the defendant's counsel seem to show that the law is not so. It is another argument in favor of the defendant, that when the action is against an assignee, it is usual to allege in assigning the breach of the covenant, that the breach happened after the assign- ment. 2 Chitty's PI. 191; Lilly, 134; 6 Johns. (N. Y.) 105; Dubois v. VanOrden; Carthew, 177; 2 Ventris, 231. It is said in Woodfall, 274 and 338, that an assignee is liable for arrearages of rent incurred before, as well as during his enjoyment; but he cites no case in which it has been so decided, and offers no ar- gument in support of the propositions, and we are of opinion that this Ch. 6) RENTS 571 is not law, and there must be judgment for the plaintiff for the rent which has become due since the 3d of April, 1822. Judgment for the plaintiff. SMILEY et al. v. VAN WINKLE et al. (Supreme Court of California, 1856. 6 Cal. 005.) This was an action against P. W. Van Winkle, H. W. Halleck and A. C. Peachy, for the rent of certain premises leased by plaintiffs to John Middleton, tlie lease being by him assigned to Henry Haight, by whom it was assigned to J. L. Folsom; the defendants being appointed executors of the latter shortly after his death, and hav- ing held the premises as such executors for the time for which the rent is sought to be recovered. The complaint sets forth in full the lease from the plaintiffs to John Middleton, in which it is recited that the property is demised to him for the unexpired term of a lease thereof made to the plaintiffs* by J. L. Folsom. The lease to Middleton employs the usual words of demise, and contains a reservation of rent and covenant of re-entry for conditions broken. The defence set up is that the defendants have only occupied the premises as executors of Folsom, and that the accounts of plaintiffs for rent have been presented and allowed, to be paid in due course of administration, and that the defendants are not liable therefor, de bonis propriis. The Court below entered judg- ment for the defendants. Plaintiffs appealed. The opinion of the Court was delivered by Mr. Chief Justice Mur- ray. Mr. Justice Heydenfeldt and Mr. Justice Terry concurred. The question presented bv this case, say the learned counsel for the appellants, is, "whether executors who have entered into and possessed a leasehold estate of which their testator was assignee, are liable for the rents accruing during the possession as assignees de bonis pro- priis." Were this the only question, we would have no difficulty in deciding it in the affirmative, but the facts of the case present a somewhat dif- ferent inquiry. The conveyance by Smiley et al., although it employs words ordi- narily used in a demise, and contains a reservation of rent and the right of re-entry upon covenants broken," is not an underletting or sub-lease, but is considered in law as an assignment of their whole interest, as there remains in them no reversion of the estate; for it is one of the essentials of a lease, that it should contain a reversion in favor of the party from whom the grant or assurance proceeds. If this position be correct, and we are satisfied it cannot be success- fully controverted, then the instrument, which was possibly intended for a demise by the parties, in reality operated a conveyance of the en- tire estate of the lessees to Middleton, through whom, by sundry 572 RIGHTS IN THE LAND OF ANOTHER (Part 2 mesne conveyances, it afterwards returned to the grantor, and was merged in fee and thereby extinguished. No action will lie against the executors, although it might have been otherwise, had there been no merger. Judgment affirmed. , BEAL V. BOSTON CAR SPRING CO. (Supreme Judicial Court of Massachusetts, 1878, 125 Mass. 157, 28 Am. Rep. 216.) Contract for rent due under a written lease made by Heyer Broth- ers to the defendant for the term of five years from April 1, 1874, and by Heyer Brothers assigned to the plaintiff. At the trial in the Superior Court, before Allen, J., it appeared in evidence that the premises described in the lease of Heyer Brothers to the defendant constituted a part of the same premises which Heyer 'Brothers held under and by virtue of a lease to them for a term of ten years from April 1, 1874, made by the plaintiff, who was the owner of the premises ; that on February 7, 1877, when the plaintiff received the assignment from Heyer Brothers of their lease to the defendant, he executed upon the back of the original lease from himself to Heyer Brothers the following instrument: "Boston, February 7, 1877. The within-named lessor, in consideration of the assignment to him of certain underleases made by the within-named lessees of parts of the premises demised in the within lease, and of one dollar to him paid by the within-named lessees, doth hereby release and forever dis- charge the said lessees, their heirs, executors and administrators, of and from all claims, demands and causes of action of and concerning the within lease, and especially all claims by him for rent thereunder ; and said lessees do hereby surrender and yield up the said' lease and the premises within described to said lessor, and such surrender is hereby accepted by him, but without prejudice to the leases of parts of the premises assigned to him as above mentioned." It further ap- peared that the terms of this instrument were carried out, and that Heyer Brothers ceased to occupy the premises. The defendant offered to show that it had not been in the occupa- tion of the premises since February 7. This evidence was objected to as being immaterial, and was excluded. The defendant contended and asked the judge to rule that if, by the arrangement entered into between the plaintiff and Heyer Brothers, the original lease was on February 7, 1877, given up, discharged or vacated, and the tenancy of Heyer Brothers thereupon ceased, and the plaintiff resumed control of the premises, and Heyer Brothers at the same time assigned and transferred to the plaintiff the underlease before then held by the defendant from them ; and if the defendant, when informed of this, ceased to have anything further to do with the Ch. G) KENTS 573 premi^ses, and refused to recognize as longer subsisting or continuing in force the underlease given to them by Heyer Brothers, or to become liable to the plaintiff as assignee thereof in any way, the plaintiff could not maintain his action. The judge refused so to rule, but ruled that the plaintiff was entitled to recover; and directed the jury to return a verdict for the plaintiff. The defendant alleged exceptions. Endicott, J. The plaintiff, being the owner of the estate leased the same for the term of ten years to Heyer Brothers; and they, on the same day, leased a part of the premises to the defendant for a term of five years. It is to be inferred from the subsequent agreement be- tween the plaintiff and Heyer Brothers that other underleases were made. Before the expiration of the underlease to the defendant, Hey- er Brothers assigned it to the plaintiff ; who at tlie same time indorsed on the original lease to Heyer Brothers an agreement releasing them from rent and accepting the surrender of their lease and the premises, "but without prejudice to the leases of parts of the premises assigned to him." This agreement was made in consideration of the assignment to the plaintiff of the underleases by Heyer Brothers. The intention of the parties is plain. Heyer Brothers having made underleases of parts of the premises which the plaintiff was willing to take, and desiring also to surrender the reversion in the leases to the plaintiff, which he was willing to accept, the underleases were assigned, including the defendant's, and the surrender of the original lease ac- cepted without prejudice to the underleases. They evidently did not intend that the rights of the plaintiff under the assignment, or the es- tates of the sub-lessees, should be destroyed by the surrender, for the language of the acceptance carefully provides for both. The purpose was to put the plaintiff precisely in the position of Heyer Brothers. This intention, as expressed iti the papers they have executed, will be carried out, if consistent with the rules of law, and we are of opinion that it is. The plaintiff brings this action, as assignee of the lease, to recover upon the defendant's covenant to pay rent ; and it is well settled that when a lease is assigned without the reversion, the privity of contract is transferred, and the assignee may sue in his own name for the rent accruing after the assignment. Kendall v. Garland, 5 Cush. 74; Hunt v. Thompson, 2 Allen, 341. The only objection suggested to the plaintiff's right to recover is the surrender of the lease of Heyer Brothers to the plaintiff ; and the claim is, that the rent due from the defendant is an incident of the reversion in Heyer Brothers, and, the reversion having been extinguished by the surrender, all remedies in- cident to it are taken away. But rent is not necessarily an incident to the reversion, so that it cannot by the acts or agreements of the parties be separated from it. In a general grant of the reversion, the rent will pass as incident to it. Burden v. Thayer, 3 Mete. 76, Z7 Am. Dec. 117. But the reversion may be granted and the rent re- 574 RIGHTS IN THE LAND OF ANOTHER (Part 2 served, or the rent may be assigned, reserving the reversion, if such is the intention of the parties as expressed in the words they use. Lord Coke says that fealty is an incident inseparably annexed to the reversion, and the donor or lessor cannot grant the reversion and save to himself the fealty; but the rent he may except, because the rent, though it be an incident, yet is not inseparably incident. Co, Lit. 143a, 151b; 3 Cruise, Dig. 337; Demarest v. Willard, 8 Cow. (N. Y.) 206. Heyer Brothers therefore could have granted their reversion, or surrendered it to the plaintiff and reserved the rent accruing upon the under leases. In such a case, their relations to the sub-lessees would not be changed by the grant or surrender of the reversion, and they could have recovered rent of this defendant upon the covenants of its lease. Having that estate reserved in the premises, they could have assigned it to a third party or to the plaintiff, and the assignment would have been good, and the defendant would have been bound to pay to the assignee rent for the estate held under its lease. This form of proceeding was not adopted by the parties, but the same result was accomplished. As the assignments were simultaneous with the sur- render, Heyer Brothers did not in terms reserve the rent to them- selves, but the plaintiff accepted the surrender in consideration of the assignment, wilii the express stipulation that it should not prejudice the underleases assigned to him; that is, should not invalidate the assignment, or affect the rights of the parties holding the leases. The case is not presented, what would be the rights of Heyer Broth- ers against this defendant ; or what would be the rights of the plain- tiff, if he had not taken an assignment of the underleases, and had ac- cepted a surrender without qualification. The two cases of Grundin v. Carter, 99 Mass. 15, and Webb v. Russell, 3 T. R. 393, relied on in support of the proposition of the defendant, have no appHcation to the facts here presented. Exceptions overruled/' 17A. leased premises to B., who subleased to C. B, surrendered his re- version to A. C. then paid A. a month's rent. Held, this establishes the relation of landlord and tenant between A. and C, accordins to the terms of the B.-G. lease. McDonald v. May. 96 Mo. App. 236. 69 S. W. 1059 (190:^). See, also, Bailev v. Richardson, 66 Cal. 416, 5 Pac. 910 (1885) ; Appleton v. Ames, 150 Mass. 34, 22 N. E. G9, 5 L. R. A. 206 (1SS9) ; I>atta v. Weiss. 131 Mo. 2.30, 32 S. W. 1005 (1895) ; Krider v. Ramsey, 79 N. C. 354 (1878) r Hessel v. Johnson, 129 Pa. 173, 18 Atl. 754, 5 L. R. A. 851, 15 Am. St. Rep. 716 (1889). Compare Rochester Lodge No. 21, A. F. & A. M., v. Graham, 65 Minn. 457, 68 N. W. 79, 37 L. R. A. 404 (1896). Ch. 6) RENTS 575 SECTION 2.— SUSPENSION AND APPORTIONMENT OF RENTS WHITE et al. v. MOLYNEUX. (Supreme Court of Georgia, 1S47. 2 Ga. 124.) NiSBET, J.^' * * * 'Phis was an action for rent, to which the defendant pleaded the destruction of the house rented, by fire. Upon motion the Court ordered the plea to be stricken out, and error is as- signed upon that decision. We consider this question as conclusively settled in England and the United States, if authority can settle any- thing. It is well settled, that neither a court of law, nor of equity, will relieve against an express contract to pay rent upon the ground that the premises have been destroyed by fire, or the King's enemies, or any casualty whatever, unless that is an express stipulation to that effect. Inevitable accident will excuse a party from a penalty, but will not relieve him from his covenant to perform. 1 Dyer, 33 a; 3 Kent, 468. And an eviction of the tenant upon a title paramount to the land- lord's, will excuse the tenant from payment of rent. Idem, Auct. ; also, Crabb's Law of Real Property, t. p. 152; Gilb. Rents, 145. By the law of Scotland, upon the hire of property, a loss or injury to that property, which is not occasioned by the fault or negligence of the hirer, falls upon the owner; and the lessee is entitled to an abatement of the rent in proportion to any partial destruction of the subject. 1 Bell's Com. 452. A similar- doctrine prevails in Louis- iana. Civil Code of Louisiana, art. 2667. And in France by the Code of Napoleon. Code Nap. art. 1722. Pufifendorf? considers this a plain principle of natural law, founded in eternal justice. Puff, book 5, ch. 6, sec. 2. By the civil law the preetor would exempt the tenant from paying rent, or modify the obligation according to equity, when the property was destroyed by fire,- inundation or violence, or the crops failed by bad seasons. Dig. 19, 2, 15, 2; Code, 4, 65, 8. In a case in England, Brown v. Quitter, Lord Northman thought it very clear, that a man should not pay rent for what he cannot enjoy, if occasioned by an accident which he did not undertake to meet. Amb. R. 619. Indeed the Courts of Equity in England for a long time struggled against a contrary doctrine. See Harrison v. North, 1 Ch. Cas. 83 ; Steel v. Wright, 1 T. R. 708, note. The question whether a Court of Equity would grant relief against a landlord's claim for 18 The statement of facts and part of the opinion are omitted. 576 RIGHTS IN THE LAND OF ANOTHER (Part 2 rent has been set at rest in England, in Hare v. Grove, 3 Anst. R. 687, and Holtzapffel v. Baker, 18 Ves. Jr. 115, and Leeds v. Chatham, 1 Simon, 146. See also, Lamott v. Sterett, 1 Har. & J. (Md.) 42. The reason in 'equity is, that in case of the destruction of the prop- erty, the loss of the rent must fall somewhere, and there is no more equity that the landlord should bear it than the tenant, when the tenant has expressly agreed to pay it, and when the landlord must bear the loss of the property destroyed. Equity considers the calamity mutual. She will not interfere to relieve against the express con- tract of the tenant, So that, notwithstanding the opinion of Puffen- dorff, the authority of the civil law, and even some adjudications in England and in this country, we consider the rule established as we at first laid it down. As early as the reign of Henry VHI this question was mooted at law, and in the case of Taverner it was left unsettled. 1 Dyer's R. 55, 56. In the reign of Charles I, the Court of King's Bench held, that where the rentor had been driven from the premises by public enemies, viz. Prince Rupert and his soldiers, he could not plead it in bar of the rent. Chancellor Kent, after reviewing the authorities, declares: "It is well settled that, upon an express contract to pay rent, the loss of the premises by fire, or inundation, or external vio- lence, will not exempt the party from his obligation to pay rent." Hallett V. WyHe, 3 John. (N. Y.) 44; 4 Taunt. R. 45; Pollard v. Shaaffer, 1 Dall. 210, 1 L. Ed. 104; Fowler v. Bott, 6 Mass. 63; Wagner v. White, 4 Har. & J. (M^d.) 564; Gates v. Green, 4 Paige (N. Y.) 355, 27 Am. Dec. 68; 3 Kent, 466; 1 Dyer R. 33; 6 T. R. 650; 6 T. R. 750; 2 Stra. R. 763; 1 Story, Com. sees. 101, 102. The reasons upon which the decisions at law have gone, are, that it is competent for a party, in his contract, to stipulate against pay- ment in case of fire, or other casualty, or violence ; and, having failed to do so, he cannot take advantage of his laches. The contract is an executed one; the tenant is in the position of a purchaser of the premises for the term; he is let into the possession, and the landlord has no right to enter or in any way molest him. And, as in all other express, unconditional contracts, both parties must abide their solemn act. The rule, too, is not without foundation in policy. It secures, on the part of the tenant, that carefulness and vigilance which is necessary to the safety of the owner's property whilst he is out of possession, and whilst it is under the absolute control of one who has only a temporary interest in it. If the destruction by fire would excuse the payment of rent, then might the tenant, so far as .pecuniary interest is concerned, become careless to protect it. The owner would be left to rely upon the tenant's sense of moral obligation, which unfortunately is not, in all men, so just or so strong as to constrain them to do right. Indeed there are men to be found base enough to burn down Ch. 6) RENTS 577 a house, to get rid of the payment of rent, if their interest might thereby be subserved. The contrary of this rule would therefore op- erate in restraint of renting. Let the judgment of the Court below be affirmed.^" WATTLES V. SOUTH OMAHA ICE & COAL CO. (Supreme Court of Nebraska, 1897. 50 Neb. 251. 69 N. W. 785, 36 L. K. A. 424, 61 Am. St. Rep. 554.) [The plaintiff leased to one Cotton a tract of land with six ice houses on it adjacent to a lake, reserving a rent of $100 per month. Cotton assigned his interest to the defendant, who took possession of the premises and began using them for the purpose of its ice busi- ness. During the term the ice houses were totally destroyed by a vio- lent hurricane. The land with the ice houses was worth $1,200 a year rental; without them it was worth $600 a year rental. The plaintiff claimed the rent as reserved by the lease; the defendant in- sisted that it was entitled to an apportionment of the rent until the buildings were rebuilt by the lessor. The case was submitted upon an agreed statement of fact.] Ragan, C.-° [After holding that the lessee was under no obligation to rebuild the ice houses :] A lease for real estate is not a bargain and sale for a given time of the lessor's interest in the leased premises. It is rather a hiring or letting of property for a certain time, and for a named consideration ; and, when a lessee covenants to pay rent for a term, the consideration for that covenant is his right to the use and occupancy of the thing leased. In the covenant of a lessee to pay at stated times certain sums of money for the rent — that is, for the privilege or the right to use and occupy the leased premises — is involved the condition that such leased property shall be in existence, and be capable of being used and enjoyed by the lessee. The promise to pay a stated sum of money as rent for leased premises for a certain term is based upon the pre- sumption that the leased premises shall exist for the term. In the case at bar if the lessee had been evicted frorh part of the demised loAcc: Monk v. Cooper, 2 Str. 763 (1727), covenant; Baker v. Holtpzaf- fel, 4 Taunt. 45 (ISll), assumpsit for use and occupation ; Fowler v. Bott, 6 jMass. 63 (1809) ; Arbenz v. Exley, 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957 (1903). "A lease for years is a sale of the demised premises for the term. • • • The rent is, in effect, the price or purchase money to be paid for the own- ership of the premises during the term, and tbeir destruction or any de- preciation of their value, happening without fault of the lessor, is no abate- ment of his price, but entirely the loss of the purchaser." Sewall, J., 1» Fowler v. Bott, supra. See Felix v. Griffiths, 56 Ohio St. 39, 45 N. E. 1092 (1897). 20 Part of the opinions are omitted. BiG.RlGHTS — 37 578 RIGHTS IN THE LAND OF ANOTHER (Part 2 premises by the holder of a title paramount to that of the lessor's, the lessee would be entitled to an apportionment of the rent. Tayl. Landl. & Ten. § 387, and cases there cited. Under the exception established to the rule, had the entire leased premises been washed away by a flood, the relation of landlord and tenant existing between the parties to this suit would have from that moment ceased. This relation would not have been terminated by the act of the parties, but by operation of law ; and the lessee would have been relieved from the payment of rent accruing thereafter, upon the principle that tlie consideration for his promise to pay such rent had failed. If we look to the subject-matter of the lease under con- sideration, and the language employed by the parties in making the contract, we cannot say that either of these parties, at the time they made this lease, had in contemplation the fact that the leased premises, or any part thereof, might be destroyed by a hurricane. They did not contract with reference to such a casualty. To use the language of McKean, C. J., in Pollard v. Shaffer, supra, had the lessor been asked at the time this lease was made, "Is it your intention to hold the lessee liable for the entire rent reserved in case the leased buildings shall be destroyed by cyclone ?" he doubtless would have answered that he had never considered that contingency. If the question had been asked the lessee whether it was his intention to pay the entire $6,000 rent even if one-half of the leased property should be destroyed before the expiration of the term, it is very probable that he would have said that he had no such an intention. Yet, in construing this contract, we must, if possible, give effect to the intention of the parties, notwith- standing the common-law rule of construction. To us it seems that the lessor, in effect, said to the lessee : "I own this tract of land, and these ice houses. They are in good repair. They are fit for the pur- poses of harvesting and storing ice. I will hire them to you for five years if you will pay me twelve hundred dollars per year, and keep the premises in good repair." To this the lessee assented. This was an offer and a promise upon the part of the lessor to furnish for the entire time the hired property. It was a promise and a covenant upon the part of the lessee to pay the monthly installments of rent for the right to use and occupy the hired property, if it existed. But it was not a proposition on the part of the lessor to quitclaim his right to the use and occupancy of the leased premises to the lessee for five years, in consideration of $6,000 paid or to be paid by the lat- We reach the conclusion that the common-law rule of construction under consideration is not in force in this state, and formulate the rule as follows : Where a substantial portion of leased premises is destroyed without the fault of the lessee, he is entitled to an appor- tionment of the rent covenanted to be paid and accruing thereafter, in the absence of an express assumption by him of the risk of such Ch. G) RENTS 579 destruction. The decree appealed from is reversed, and the cause re- manded, with instructions to the district court to enter a decree in ac- cordance with this opinion. Reversed and remanded. Irvixe:, C. (dissenting). * * * We think the law is exactly stated in a very exhaustive opinion by Willard, J,, in Coogan v. Park- er, 2 S. C. 255, to the effect that, where there is a substantial destruc- tion of the subject-matter of the lease by act of God or the public enemy, the tenant may elect to rescind, and, on surrendering, shall be discharged from the payment of the rent ; but unless he elect to re- scind by surrender, or offer to surrender, he must pay the rent accord- ing to his covenant, and that, in determining what amounts to a sub- stantial destruction of the subject-matter, the nature of the premises and the use which the parties intended should be made thereof are to be considered. This doctrine reconciles cases supporting the general rule announced with those holding that where a room in a building is let, and the building is destroyed, the rent is extinguished, because in such a case there has been a complete eviction or surrender. Where, however, there has been only a partial destruction, and the lessee sees fit to continue the lease, and remain in possession, he must so do ac- cording to its terms, and pay the rent reserved. Post, C. J., and Ryan, C, concur in the foregoing dissenting opin- ion.-^ GRAVES v. BERDAN. (Court of Appeals of New York, 1863. 26 N. Y. 49S.) Action begun in the City Court of Brooklyn to recover rent. In May, 1856, defendant leased from plaintiff, for a term of years, rooms and passage-ways in the basement, and on the second floor of tlie City Central Hall, in Brooklyn, at the yearly rent of $2,700, payable quar- terly. The building was also occupied by other lessees of apartments. On May 6, 1857, the building was destroyed by fire. Soon after, plain- tiff entered upon the land and removed the ruins of the building, and defendant removed tlie machinery, brickwork and materials which he had put in, and plaintiff afterward erected a building one story high, upon a portion of the same ground, beneath a part of the premises leased to defendant, but not reaching up to, encroaching upon, or in- cluding any part of the space leased to defendant. After the fire the premises (except as above stated) remained vacant, and were not used or occupied by either party. The lease contained no stipulation on the part of either landlord or tenant for rebuilding. The court ordered judgment for plaintiff, and on appeal to the Supreme Court, the judg- ment was reversed and plaintiff appealed. 21 Ace: Coogan v. Tarker, 2 S. C. 255, 16 Am. Rep. 659 (1871). 580 RIGHTS IN THE LAND OP ANOTHER (Part 2 RosEKRANS, J.^^ The opinion delivered by Justice Emott in this case, in the Supreme Court, is a correct exposition of the law applicable to it, and for the reasons stated therein, the judgment should be af- firmed. The case of Stockwell v. Hunter, 11 Mete. (Mass.) 448, 45 Am. Dec. 220, may be added to the authorities cited by Justice Emott to show that a lease of basement rooms, or chambers, in a building of several stories in height, without any stipulation, by the lessor or lessee, for rebuilding, in case of fire^or other casualties, gives the lessee no interest in the land upon which the building stands, and that if the whole building is destroyed by fire, the lessee's interest in the demised rooms is terminated, and the lessor may, after the destruction of the building, enter upon the soil and rebuild upon the ruins of the former edifice. It may be added that at common law, where the interest of the lessee in a part of the demised premises was destroyed by the act of God, so that it was incapable of any beneficial enjoyment, the rent might be apportioned. In Rolle's Abr. 236, it is said that if the sea break in and overflow a part of the demised premises, the rent shall be appor- tioned, for though the soil remains to the tenant, yet, as the sea is open to every one, he has no exclusive right to fish there. A distinc- tion is taken between an overflow of the land by the sea, and fresh water, because, though the land be covered with fresh water, the right of taking the fish is vested exclusively in the lessee, and in that case the rent will not be apportioned. In the latter case the tenant has a beneficial enjoyment, to some extent, of the demised premises, but in the former he has none, and if the use be entirely destroyed and lost, it is reasonable that the rent should be abated, because the title to the rent is founded on the presumption that the tenant can enjoy the demised premises during the term. Com. Landl. & Ten. 218; Gilb. Rents, 182. Where the lessee takes an interest in the soil upon which a building stands, if the building is destroyed by fire, he may use the land upon which it stood, beneficially, to some extent, without the building, or he may rebuild the edifice; but where he takes no interest in the soil, as in the case of a demise of a basement, or of upper rooms in the building, he cannot enjoy the premises in any manner after the destruction of the building, nor can he rebuild the edifice. He cannot have the exclusive enjoyment of the vacant space formerly occupied by the demised rooms. The effect of the destruction of the building, in such a case, is analogous to the effect of the destruction of demised premises by the encroachments of the sea, mentioned in Rolle's Abr. ; and the established rule for the abatement or apportionment of the rent should be applied in the former as well as in the latter case. The same reason exists for its application in both cases. 22 Dissenting opinion of Wright, J., is omitted. Ch. G) RENTS 581 But even if the lessee's interest in the demised apartment, in a case Hke this, was not terminated by the total destruction of the building, it may be doubted whether the lessor could recover rent so long as he failed to give to the demised upper rooms the support necessary to tliem for special enjoyment. The rule seems to be settled in Eng- land, that where a house is divided into different floors or stories, each occupied by different owners, the proprietor of the ground floor is bound, by the nature and condition of his property, without any servitude, not only to bear the weight of the upper story, but to re- pair his own property so that it may be able to bear such weight. The proprietor of tlie ground story is obliged to uphold it for the support of the upper story. Humphrey v. Brogden, 12 Q. B. 739; 1 Eng. Law &.Eq. 241 ; Rowbothem v. Wilson, 36 Eng. Law & Eq. 236; Harris v. Roberts, 6 El. & Bl. 643 ; 7 El. & Bl. 625. In the case last cited the duty of such support is recognized as a general common- law right. In a lease of upper rooms by the owner of the entire building, a covenant should be implied on the part of the lessor to give such support to tlie upper rooms as is necessary for their beneficial enjoyment. It has been decided in this court that the statute forbid- ding the implication of covenants in conveyances of real estate, does not apply to leases for years. Mayor, etc., v. Maybee, 13 N. Y. 151, 64 Am. Dec. 538; Vernam v. Smith^ 15 N. Y. 332, 333. The judgment should be affirmed. ^^ Denio, C. J., and Selden, Balcom and Marvin, JJ., concur. FITCHBURG COTTON MANUFACTORY CORPORATION V. MELVEN et al. (Supreme Judicial Court of Massachusetts, ISIS. 15 Mass. 268.) This was an action of covenant broken, upon an indenture made by and between plaintiffs and the defendants on the 10th of June, 1816, by which the plaintiff's demised to the defendants certain buildings and mill privileges, with tools and machinery in the buildings, for the manufacture of woollen cloths, for the term of three years from the date of the indenture, "yielding and paying therefor the rent of $275 28 Ace: McMillan v. Solomon. 42 Ala. 356, 94 Am. Dec. 654 (186S). Com- pare Izon V. Gorton, 5 Bing. N. C. 501 (1S.39) ; Taylor v. Caldwell, 3 B. & S. 826 (1S6.3) ; Roberts v. Lynn Ice Co., 187 Mass. 502, 73 N. E. 523 (11K)5). If after such destruction the lessee attempts to occupy the same space, he may be evicted therefrom. Winton v. Cornish, 5 Ohio, 477 (1832); Harring- ton V. Watson, 11 Or. 143, 3 Pac. 173, 50 Am. Rep. 465 (1883). A. executed to B. a "lease" of "the riv*er front and landing in front ol" certain lots owned by A. in Memphis. A flood in the river washed away all of A.'s laud but a narrow strip, wholly destroyed the landing, and rendered the formation of a landing or the mooring of boats impossible. Held, B. is no longer liable for the rent reserved. Waite v. O'Neil, 76 Fed. 408, 22 C. O. A. 248, 34 L. R. A: 550 (189G). 5S2 RIGHTS IN THE LAND OP ANOTHER (Part 2 annually during the term aforesaid." The breach was alleged in the non-payment of one year's rent, due on the 10th of June, 1817. The defendants pleaded, in bar that, before the making of the in- denture, the plaintiffs had mortgaged all the demised premises, ex- cepting tools and machinery, to one Edmund Gushing, to secure the payment of their promissory note to him; and that on the 2d of November, 1816, the said note being tlien due and unpaid. Gushing entered for the condition broken, and evicted the defendants. The same facts were pleaded in a second plea, in bar of damages, ex- cept for a ratable and meet sum for the rent of the tools and ma- chinery; and in a .third plea, in bar of damages for the rent of that part of the demised premises which had been mortgaged, for any time after the 2d of November, 1816. The plaintiffs 4eniurred to each of these pleas ; and the defendants joined in demurrer. Jackson, J. We are all of opinion that the first plea in bar is good, and that the plaintiffs are not entitled to recover anything in this action. If the rent had been payable quarterly, the sum due for the first quarter might have been recovered, notwithstanding the sub- sequent eviction; but as the tenants were evicted before the first day of payment, no rent can be recovered upon the indenture. The result is not influenced by the circumstance that Gushing, who evicted the defendants, was a mortgagee. It is enough that he en- tered under a title paramount to that of the lessors. If the lease had been made before the mortgage. Gushing would have been assignee of the reversion, and in that character entitled to all the rents payable by force of the indenture, excepting only such as might have been paid by the lessees before notice of the assignment. He could not, in that case, have evicted the tenants, but would have held subject to their lease. But when the lease is made, as in this case after the mortgage, it does not bind the mortgagee, nor in any manner affect his right. There is no privity between him and the lessee, and no right in him to de- mand the rent reserved by the lease. He may consider the lessee as a trespasser or a disseisor, and may maintain an ejectment or writ of entry against him. The lessee stands in the situation of the mort- gagor ; and as the mortgagee cannot recover the back rents against the mortgagor, when he is left in possession, it seems to be the better opin- ion that he could not recover, in the like case, against the lessee of the mortgagor. It may often happen that the lessee will suffer a loss, by being evict- ed, that would overbalance the advantage of holding the premises for a part of the term. In such a case, equity would concur with the rule- of law which prohibits an apportionment of the rent. But if the lessee has derived a substantial .benefit from the use of the estate de- mised, although he does not hold it for the whole term, equity would require that he should pay a quantum meruit. If the lessors, in the present case, have any claim on that ground, their only remedy must be an action of assumpsit; as in the analogous case of a charter- Ch. 6) RENTS 583 party of affreightment. In that case, when the ship is prevented by the perils of the sea from carrying the goods to the cfestined port, and they are received by the owner at an intermediate place, the latter is not liable to an action of covenant on the charter-party ; but it was thought, in a case of that kind, that he might be held, in an action of assumpsit, to pay a reasonable compensation for the services of the ship owner, as far as they were performed, and so far as he was benefited by them. Some doubts have arisen, whether the plaintiffs may not recover in this action for the rent or use of the tools and machinery, which were not included in the mortgage to Gushing. When a part of the land is evicted, and the residue is enjoyed by the lessee, it is a dis- charge only in proportion to the value of the land evicted. But in the case at bar, the tools and machinery cannot be considered as a distinct, substantial part of the estate demised. They are in the nature of mere appurtenances to the mill and the buildings, and to be used in them for the manufacture of woollen cloth. They would apparently have been of no use to the defendants, unless in connection with the buildings ; and tlie eviction of these latter seems, therefore, to amount to an eviction of the tools and machinery likewise. The plain- tiffs may probably recover a reasonable compensation for the loan or use of the tools and machinery, in an action of assumpsit; but they .cannot recover it in this action. Per Curiam. Defendants' plea in bar good.^* SEABROOK V. MOYER. (Supreme Court of Pennsylvania, 1S79. 88 Pa. 417.) Mercur, J.^° This was an action of debt for the rent of certain premises demised by plaintiff to defendant. The term was for three years from January 1st, 1874, at an annual rental of $3,000 payable monthly. The narr. contained two counts, one on a demise at $250 a month, the other for use and occupation. The premises leased consist- ed of a building fronting on Market street, with a right of way over an alley, of three feet two inches in width, between the leased building 24ACC.: Friend v. Oil Well Supply Co., 165 Pa. 652, 30 Atl. 1134 (1895). A." leased to B., with a covenant and condition against using the premises for purposes forbidden by the insurance policies. B. subleased to C, who subleased to D. ; both subleases having the same provisions as the head lease. D. violated the provisions. A. brought ejectment against B., C, and D., and recovered judgment. D. thereupon abandoned the premises, leaving the key with C. In an action by C. against D. for rent subsequently accruing, held, the eviction is a defense. Home Life Ins. Co. of Brooklyn v. Sherman, 46 N. Y. 370 (1871). See, also, Leopold v. Judson, 75 111. 536 (1874) ; Russell v. Fabyan. 27 N. H. 529 (1853) ; 28 N. H. 543, Gl Am. Dec. 629 (1854) ; Giles v. Comstock, 4 N. Y. 270, 53 Am. Dec. 374 (1850). 26 The statement of facts is omitted. 5S4 RIGHTS IN THE LAND OP ANOTHER (Part 2 and the adjoining property. The defendant took possession and paid the rent up to 1st February, 1875. In that month the adjoining owner began to build, and in so doing he constructed a party-wall on eleven inches of his alley-way, thus reducing its width and also the width of the rooms in the second and third story of the building. This taking by the adjoining owner was by virtue of a written agreement entered into between him and the plaintiff before the execution of the lease between plaintiff and defendant. By the terms of that agreement the plaintiff and adjoiner had each relinquished to the other the right of way over the alley. In so far as the defendant was not deprived of the premises by this interference of the adjoining owner, he re- mained in possession of the building, but refused to pay any rent, claiming it to be such an eviction as discharged him from all obligation to pay. The plaintiff claimed the defendant remained liable on a quantum meruit for use and occupation. The court below ordered a judgment of nonsuit to be entered. That is assigned for error. It is a well-settled rule that if a landlord wrongfully dispossesses his tenant of any portion of the demised premises the rent for the whole is thereby suspended. In the present case, the plaintiff committed no act after possession taken under the lease, by which his tenant was de- prived of any part of the demised premises. On the contrary the evi- dence shows that he tried to prevent the eviction. His offence con- sisted in demising premises to the defendant to a portion of which he had no title at the time. The eviction of the defendant was by virtue of a title paramount to the title of his landlord. It matters not that the plaintiff previously held it. At the time the lease was executed and the relation of landlord and tenant between the parties was created, the outstanding title of the adjoiner was as superior to the title of the plaintiff as if he had never held it. If the defendant had been evicted by paramount title from the whole premises, he would have been discharged from the payment of the whole rent, after that time. But an eviction by such title, from a part only of the demised premises, when the tenant continues in possession of the remaining part, using and enjoying it, does not work a suspension of all sub- sequent rent. He remains liable to the payment of such proportion of the rent as the value of the part retained bears to the whole. On having been evicted from a part he might have removed from the resi- due and thereby wholly relieved himself from the payment of future rent ; failing to do so, he became liable to a just apportionment. 'This conclusion is fully sustained in Taylor on Landlord and Tenant, § 378, and the English and American cases there cited. Our own cases recognize the same rule when the landlord conveys a part of the demised premises during the term and possession of the tenant, and the vendee has entered and evicted the tenant from the part thus conveyed. By retaining possession of the remaining part he becomes liable to pay for the use of the portion thus retained. It is held not to be such a wrongful eviction bv the landlord as to release the Ch. G) EE.NTS 585 tenant from paying a just compensation for that which he continues to enjoy: Reed v. Ward, 22 Pa. 144; Linton v. Hart, 25 Pa. 193, 64 Am. Dec. 691. The learned judge therefore erred in ordering a judgment of nonsuit. Judgment reversed and a procedendo awarded.** PARKS V. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts, 1834. 15 Pick. 198.) This was a complaint presented to the Court of Common Pleas, praying that a jury might be empannelled to assess the damages sus- tained by the complainant in consequence o£ the taking of 313 square feet of land by the mayor and aldermen of Boston, on July 13, 1829, for the purpose of widening Doane street in that city. The respondents admitted the taking of the land, but traversed the allegation in the complaint, that the complainant was damaged in his property thereby, and tendered an issue thereon, which was join- ed. * * * In the course of the trial, the respondents, in order to show that the complainant was not entitled to recover the full value of the land at the time when it was taken, and that they were liable to pay one Enoch Patterson, who had preferred a complaint against them, for the loss of the use of the land taken, from the time when it was taken until January 1, 1832, proved the execution of a lease of the land taken and of other lands, which was made by the complainant to Pat- terson before the taking of the land, by virtue of which lease Patter- son was entitled to hold such lands for the term of three years from January 1, 1829, at an annual rent of $725 ; and thereupon they con- tended, that, inasmuch as the complainant would be entitled to recover such rent of Patterson during the continuance of the lease, a deduc- tion should be made by the jury on this account, from the value of the land. The judge instructed the jury, that part of the land leased having been taken by law for the use of the public, without the consent of the complainant or Patterson, the lease was thereby determined ; 2«Acc.: Stevenson v. Lombard, 2 East. ."iTu (1S02); Fifth Ave. Bldg. Co V. Kernochan, 221 N. Y. 370, 117 N. E.,579 (1917). 'The question is, "Whether the rent be apportionablc in this action of covenant by the lessor against the assignee of the lesseeV It clearly is so in an action of debt or upon an avowry in replevin, by all the authorities ; and the only question is, Whether it be so in co\enant? In covenant as be- tween lessor and lessee, where the action is personal, and upon a mere privi- ty of contract, and on that account transitory as any other personal con- tract is, the rent is not apportionable." Stevenson v. Lombard, 2 East, 579 (1802). Compare Swansea v. Thomas, L. R. 10 Q. B. D. 48, 52 (1S82). See Toston v. Jones. 37 N. C. 3.^0. 38 Am. Dec. 6S3 (1S42). As to the method of computing proportionate values, see Tomlinson v. Dav, 2 Brod. & B. 680 (1821) ; Carter v. Burr, .39 Barb. (N. Y.) 59 (1862). 586 RIGHTS IN THE LAND OP ANOTHER (Part 2 that the complahiant could not compel Patterson to pay such rent; that the city would not be liable to pay Patterson any damages on ac- count of his having covenanted to pay the rent to the complainant; and that the complainant was entitled to recover against the city the full value of the land taken, as if it had not been leased. To this ruling the respondents excepted. * * * Shaw, C. J.^^ * * * But I presume this supposed effect of de- termining the term is thought to result from the other branch of this opinion, which is, that by the act of thus taking away a part of the leased estate, the tenant would be exempted from the payment of the reserved rent, and therefore the landlord ought to receive an equivalent in his compensation from the public. If such were the effect, the in- ference would undoubtedly be correct. But upon what principle can it be maintained, that a lessee under such circumstances would be exempted from the payment of the stip- ulated rent? The lessee takes his term, just as every other owner of real estate takes title, subject to the right and power of the public to take it or a part of it, for public use, whenever the public necessity and convenience may require it. Such a right is no incumbrance ; such a taking is no breach of the covenant of the lessor for quiet en- joyment. The lessee then holds and enjoys exactly what was granted him, as a consideration for the reserved rent ; which is, the whole use and beneficial enjoyment of the estate leased, subject to the sov- ereign right of eminent domain on the part of the public. If he has* suffered any loss or diminution in the actual enjoyment of this use, it is not by the act or sufferance of the landlord ; but it is by the act of the public, against whom the law has provided him an ample remedy. If he is compelled to pay the full compensation for. the estate actual- ly diminished in value, this is an element in computing the compensa- tion which he is to receive from the public. In this view, it becomes unimportant, in settling the principle we are now discussing, whether the taking for public use diminishes the leased premises, little or much, in quantity or in value ; all this will be taken into consideration in as- sessing the damages, which the lessee may sustain. But it was contended on the part of the complainant, and authori- ties-were cited to show, that where a covenant is to do any act, law- ful at the time the covenant is made, but which becomes unlawful afterwards, the covenantor is excused from the performance. This principle is correct, but I cannot perceive that it has any application to the present case. For instance, if one should covenant with the owner of a lot of land to build a warehouse upon it, at a future time, and before the time a street should be laid over it, so that it would become unlawful to build upon it, the covenant would be repealed ; and it would probably follow, that the corresponding covenant on the other side to pay for such building would be considered repealed also. But 27 The statement of facts is abridged and part of tbe opioion is omitted. Ch. 6) RENTS 587 nothing renders It unlawful for the tenant in the present case, to use, occupy and enjoy the leased premises, subject only to the public ease- ment. Toi the extent of the property not taken he has still the bene- ficial use; if its value is diminished by the taking, to that extent he has his compensation from the public, and thus he has still an equiva- lent for his rent paid. Upoh these grounds, we are of opinion, that the lease from the com- plainant to Patterson was not dissolved by the act or taking part of the leased premises to widen a public street ; that Patterson, notwith- standing such taking, continued liable to pay the reserved rent, during the term which remained unexpired ;^^ and that the jury should have been instructed to take that fact into consideration, in estimating the damages which the complainant had sustained, by such tak- ing. * * * The result is, that the exceptions taken by the city are sustained, that the verdict in the writ below is set aside, and that the cause is to be tried at the bar of this Court, BIDDLE v. HUSSMAN et al. (Supreme Court of Missouri, 1S56. 23 Mo. 597.) [The plaintiff owned a lot in the city of St. Louis. He leased this to the defendant for a term of years, reserving rent. During the term, part of the land was condemned by the city of St. Louis and appro- priated to public uses. The plaintiff brought action for the rent re- served, accruing after the condemnation and appropriation, and a. judgment was obtained below for the whole rent. The defendant ap- pealed.] Leonard, j. * * * The judgment must be reversed and an- other trial had. The question will then come up as to the effect of the subsequent condemnation of the lot upon the respective rights of the landlord and tenant. The interests of both these parties in the lot were equally within the protection of our constitution. Both were owners within the meaning of the statute authorizing the condemnation, so that the interest of neither could be taken without a just compensa- tion. If the rights of the parties had remained as they were originally before the making of the deed to the city, and the whole of the leased premises had been applied to the pubhc use, we think the condemna- tion would have divested all rights of private property in the lot, and have thus extinguished the whole rent issuing out of it.^* The con- 2 8 Ace: Stubbings v. Village of Evanston, 130 111. 37, 26 N. E. 577, 11 L. R. A. 839, 29 Am. St. Rep. 300 (1S91) ; Gluck v. Baltimore, 81 Md. 315, 32 Atl. 515, 48 Am. St. Rep. 515 (1895). 2 9 Ace. : Corrigan v. City of Chicago, 144 111. 537, 33 N. E. 746, 21 L. R. A. 212 (1893) ; O'Brien v. Ball, 119 Mass. 28 (1874) ; Lodge v. Martin, 31 App. Div. 13, 52 N. Y. Supp. 385 (1898). Contra: Foote v. City of Cincinnati, 11 Ohio, 408, 38 Am. Dec. 737 (1842). 588 RIGHTS IN THE LAND OF ANOTHER (Part 2 demnation was a reassumption by the state of her original title to the land under her right of eminent domain. It was a revocation of the landlord's title, and may well be considered as extinguishing all rights depending upon the continuance of that title. This revocation was effected by law without the fault of either party, and could only be upon a just compensation to both parties, according to their respective rights in the property. The landlord was entitled to the present value of his reversion, and of the rents that were to become due to him dur- ing the continuance of the term, and the tenant to the present value of his leasehold interest over and above the rents payable during the term. The public, upon tlie resumption of the land, must pay the present value of the property, which is to be distributed between the landlord and tenant according to their respective interests. Ellis v. Welch, 6 Mass. 250, 4 Am. Dec. 122. In the present case, however, only part of the lot was taken, and the effect of this partial applica- tion, we think, was to apportion the rent, extinguishing it in respect to the part taken, and leaving it subsisting as to the residue. This was so held in the case of Cuthbert v. Kuhn, 3 Whart. (Pa.) 357, 31 Am. Dec. 513, although a different view of the matter seems to have pre- vailed in Parks v. Boston, 15 Pick. 198. We concur, however, in the last case, so far as it holds that the condemnation of part of the leased premises does not extinguish the whole rent; and that seems to have been the matter to which the attention of the court was mainly di- rected, although the case, perhaps, may be considered as laying down the doctrine that in such a case there can be no apportionment, but that the tenant must continue liable under his personal contract to pay the whole rent, and be indemnified against this continuing liabil- ity in an additional compensation to be allowed him by the public on that account. The condemnation of the whole lot, it must be adrhitted, discharges the lot from the rent, so that the rent ceases thereafter to issue out of the land. If the rent must be considered as still sub- sisting on account of the personal obligations of the original lessee to pay it, the lessor, in case of the insolvency of the fonner, might just- ly complain that he had been deprived of his rights without compen- sation. And so, in like manner, we think the consideration [con- demnation] of part of the lot discharges it from a proportionate part of the rent, and extinguishes it accordingly.^" This apportionment must be made by the jury, who will determine whether any thing, and how much, is due, and have reference, in making their estimate, to the real value of what is left to the tenant, and not to the quantity ; and the plaintiff will recover accordingly. Gilbert on Rents, 190. * * * Judgment reversed.'* »o Ace. : Board of Levee Cora'rs v. Johnson, 66 Miss. 248, 6 South. 199 (1889). See Folts V. Huntley, 7 Wend. (N. Y.) 210 (1831). 31 Compare Rhode Island Hospital Trust Co. v. Hayden, 20 R. I. 544, 40 Atl. 421, 42 h. R. A. 107 (1898). Ch. G) RENTS 589 LAWRENCE v. WHITE. (Supreme Court of Georgia, 1909. 131 Ga. 840, 63 S. E. 631, i9 L. R. A. " [N. S.] 966, 15 Ann. Gas. 1097.) James B. White leased to Bryan Lawrence a hotel in the city of Au- gusta known as the "Albion Hotel" for the term of five years, to begin on the opening of the hotel for the reception of guests not later than April 20, 1901, with privilege of renewal. The stipulated rent was $10,000 per annum, payable in monthly installments of $833.33. The only portions of the written contract of lease which need be set out are as follows: "The leased premises consist of the corridor, of- fice, bar, barber shop, cigar stand, billiard room, on the first floor. * * * " The lease was renewed after the first term for five years more. On August 6, 1907 (Laws 1907, p. 81), an act passed by the Legis- lature was approved prohibiting the manufacture or sale of alcoholic, spirituous, malt, or intoxicating liquors in the state after the expira- tion of that year. After this act became operative, the lessee claimed that he was entitled to an apportionment and reduction of the rent, be- cause of his inability to further conduct the business of a bar in the hotel. * * * The lessor declined to allow any abatement in the rent, and sued out a distress warrant for the past-due rent at the monthly rate stipulated,. and also a dispossessory warrant, for the pur- pose of evicting the lessee from the premises on account of the fail- ure and refusal to pay the rent without abatement. The lessee there- upon filed an equitable petition, claiming an abatement of the rent to be made in proportion of the diminution in rental value because of the legal impossibility of operating a barroom on the premises, and pray- ing that the lessor be enjoined from prosecuting the actions at law commenced by him, and for process and general relief. * * * Qn the hearing of the application for interlocutory injunction it was de- nied, and Lawrence excepted. Lumpkin, J.*^ 1. The question in this case is whether the lessee of a hotel, including a barroom, was entitled to a reduction or propor- tional abatement of the agreed rental because during the term of the lease the Legislature of the state enacted a law prohibiting the sale of alcoholic, spirituous, malt, or intoxicating liquors, and thus the bar could no longer be used for that purpose. The adjudicated cases with unusual uniformity answer this question in the negative, though they do not all give the same reasons for the ruling. It has been very generally held that the enforcement of public offi- cers of restrictions or conditions in regard to the use of leased prem- ises does not amount to an eviction of the tenant. * * * [The court here cited and discussed Taylor v. Finnigan, 189 Mass. 568, 76 N. E. «2 The statement of facts Is abridged and part of the opinion is omitted. 590 ' RIGHTS IN THE LAND OF ANOTHER (Part 2 203, 2 L. R. A. (N. S.) 973; Abadie v. Berges, 41 La. Ann. 281, 6 South. 529; Teller v. Boyle, 132 Pa. 56, 18 Atl. 1069; Baughman v. Portman (Ky.) 14 S. W. 342 ; Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79, 88 S. W. 197 ; Miller v. Maguire, 18 R.-I. 770, 30 Atl. 966; Kerley v. Mayer, 10 Misc. Rep. 718, 31 N. Y. Supp. 818; Newby v. Sharpe, L. R. 8 Ch. Div. 39; Nicholls v. Byrne, 11 La. 170; Gazlay V. Williams, 210 U. S. 41, 28 Sup. Ct. 687, 52 L. Ed. 950; Fleming V. King, 100 Ga. 449, 28 S. E. 239; Fitzgerald v. Witchard, 130 Ga. 552, 61 S. E. 227, 16 L. R. A. (N. S.) 519.] It was urged that the lease now involved specifically named the bar, and that its operation was a material consideration entering into the lease of the hotel. * * * The mere use of the word "bar" in the lease did not amount to a covenant or warranty on the part of the landlord that the law would continue to allow the tenant to conduct the business of keeping a bar and selling liquors, or a covenant by the tenant that he would do so. * * * It was argued that as to the bar the tenancy was terminated; and cases were cited to the effect that where an apartment in a building is rented, and the building is destroyed, the tenancy ceases (Gavan v. Norcross, 117 Ga. 356, 360, 43 S. E. 771); also, to sustain the con- tention that, if there is a substantial destruction of the subject-matter of the lease by the act of God or the public enemy, rent ceases (9 Cyc. 631) ; that eviction by the landlord results in suspension of rent, evic- tion by another from a portion of the premises, under paramount ti- tle, entitles the lessee to an apportionment of rent (24 Cyc. 1186-7); that, according to some authorities, if part of the premises are taken by condemnation under the power of eminent domain, the rent may be apportioned, and that to the general rule that a party to a contract is not discharged by subsequent impossibility of performance there is an exception where the performance becomes impossible by law (9 Cyc. 629-631 ; Civ. Code 1895, § 3725). These propositions, as ab- stract rules, do not require discussion. They do not aid the plaintiff in error, because they do not apply to the facts of this case. Neither the leased premises nor any part of them have been destroyed. No act of Providence or of the public enemy has affected the status. The only act complained of is that of the Georgia Legislature. There has been no eviction of the tenant from the premises by the landlord or by one holding paramount title, and no condemnation of any part of them. Nor has the law prevented the carrying out of the written contract between these parties. An underlying error in the contention of the plaintiff in error arises from dealing with the contract of lease as different from w'hat it really was. The landlord leased to the ten- ant a certain hotel, including a barroom, cigar stand, etc. The tenant contracted to pay certain rent, that the premises should be used for hotel purposes alone, and that it should be a first-class hotel, with oth- er agreements not material now to recite. The argument for the plaintiff in error treats the lease, so far as re- Ch. G) RENTS 591 lates to the barroom, as a lease of the "bar privilege" or the right to sell liquor. Such is not the effect of the written lease. The landlord leased the premises to the lessee. So far as he was concerned as landlord, under the law as it then stood, he gave the lessee the privilege of using a portion of them for a bar or of subrenting. But he did not contract or warrant that the law would remain unchanged, or that there should be any diminution of rent, if a change occurred. It may be unfortunate for the lessee that he did not anticipate the possibility of the passage of a prohibition law and provide for such a contingen- cy; but that he did not do so does not alter the contract as made. The lessee is still entitled to the occupancy and use of the premises. The landlord, who had nothing to do with making the sale of liquor by the lessee impossible under the law, is entitled to his rent. The law has not made it impossible to perform the contract of rental of prem- ises. That must not be confused with the prohibition by law of sell- ing liquor on the rented premises. See, on incidental injury from police laws, MIenken v. City of Atlanta, 78 Ga. 668, 2 S. E. 559; State V. Griffin, 69 N. H. 1, 39 Atl. 260, 41 L. R. A. 177, 76 Am. St. Rep. 139. * • * * Judgment affirmed. CIBEL & HILLS' CASE. (Court of Common Pleas, 1588. 1 Leon. 110.) A lease was made of a certain house and land rendering rent, and another sum, nomine poense ; and for the nomine poense the lessor brought an action of debt ; the lessee pleaded, that the lessor had en- tered into parcel of the land demised, upon which they were at issue, and found for the plaintiff : and now the lessor brought debt for the rent reserved upon the same lease : to which the defendant pleaded, ut supra, scil. an entry into parcel of the land demised : and issue was joyned upon it; and one of the jury was challenged, and withdrawn because he was one of the former jury : and the issue now was, wheth- er the said Cibel the lessor, expulit & amovit & adhuc extra tenet, the said Hills. And to prove the same, it was given in evidence on the de- fendant's part, that upon the land demised there was a brick-kill, and thereupon a little small cottage, and that the lessor entered, and went to the said cottage and took some of the bricks and untiled the said cottage : but of the other side it was said, that the lessor had reserved to himself the bricks and tiles aforesaid, which in truth were there ready made at the time of the lease made, and that he did not untile the brick-kill house, but that it fell by tempest, and so the plaintiff did nothing but came upon the land to carry away his own goods : and also he had used the said bricks and tiles upon the reparation of the house. And as to the extra tenet, which is parcel of the issue, the lessor did not continue upon the land, but went off it, and relinquished the pos- 592 RIGHTS IN THE LAND OF ANOTHER (Part 2 session : but as to this last point, it seemed to the court, that it is not material if the plaintiff continued his possession there or not, for if he once doth anything which amounts to an entry, although that he depart presently, yet the possession is in him sufficient to suspend the rent, and he shall be said, extra tenere the defendant the lessee, until he hath done an act which doth amount to a re-entry. And afterwards to prove a re-entry, it was given in evidence on the plaintiff's part, that the defendant put in his cattel in the field where the bricK-kill was, and that the cattel did estray into the place where the defendant had supposed that the plaintiff had entered. And by Anderson, Justice, the same is not any re-entry to revive the rent, because they were not put into the same place by the lessee himself, but went there of their own accord. And such also was the opinion of Justice PEriam. 1 ROLLE'S ABRIDGMENT, 940, EXTINGUISHMENT, N, 1, 2. If a man leases a rectory for years reserving a rent and upon part of the glebe in a corner of the close is a sheep cote and the lessor en- ters and destroys this and the lessee re-enters and then the rent is in arrear, the rent is suspended notwithstanding the re-entry of the lessee in the toft ; for part of the profit of the thing leased is taken from the lessee, namely, his house, and this by the act of the lessor. M. Zl El. [1595] B. R., per Popham and Gawdy. If the lessor of a wood or orchard rendering rent cuts them down and the lessee re-enters, still the rent is suspended : quaere as to this. CARRELL v. READ. (Court of Queen's Bench, 1595. Owen, 65.) A lease for years was made of divers fenny grounds in Cambridge ss. and the lessee covenanted to defend the ground, for being sur- rounded with water, and to drain the water out of other lands that were demised to him in the said county. And upon an action of cove- nant for not performing, the defendant pleaded that the plaintiff had entered in the land demised. And adjudged no plea by the Court, because the covenant was not in respect that the lessee should enjoy the land, nor was it a covenant adhering to the land, but to a collat- eral thing; but if it had been in respect of enjoying the land, there it is a good plea to say that the plaintiff had entered, but where the thing to be done is collaterall, it is otherwise, and also if he did plead such plea, yet it is not a bar, unlesse he holds him out of possession. Coke, lib. 3, 221 ; 4 Ed. 3, 29. The lord shall not have a cessavit after entry in parcel. 10 Ed. 4, 11 ; 35 H. 6; Bar. 162; 19 Ed. 4, 2." PsAcc: Newton v. Allin, 1 Q. B. 518 (1841) ; Morrison v. Chadwick, 7 C. B. 266 (1849). Ch. 6) I RENTS 593 PAGE V. PARR. (Upper Bench, 1654. Styles, 432.) Page brought an action of covenant upon a covenant conteined in an indenture of a demise for years, for the not paying the rent reserved by the indenture, according to the covenant. The defendant pleads in bar that the plaintiff entered into part of the land demised before the rent due, for which the action v^-as brought, and so had suspended his rent : the plaintiff replyed, the defendant did re-enter, and so was possessed as in his former estate, and to this replication the defendant demurred, and for cause he shewed, that here was no confession and avoidance, or traverse of the plea in bar. Roll, Chief Justice. Have you shewed that he continued in pos- session until the rent grew due ; for you ought to shew that he entered and Avas possessed until after the rent-day, but here you have only said Ihdf he was possessed in his former right, therefore nil capiat per billam, nisi. SMITH v. RALEIGH. (Nisi Prius, 1814. 3 Camp. 513.) Assumpsit for the use and occupation of a house and garden. Plea, the general issue. It appeared, that after the defendant had agreed to take the prem- ises at an entire rent, and possession had been delivered to him, the plaintiff railed off a part of the garden, and built a privy upon it, for the use of a number of his other tenants. The defendant thereupon re- turned the keys to him. Lord EllExborougii ruled, that this amounted to an eviction from part of the demised premises ; which the taking being single, and the rent entire, he considered a complete answer to the action. Plaintiff non-suited.'* 8* This case was recognized by Dallas. J., in Stokes v. Cooper, Worcester Lent Assizes, 1S14, in which the rule was laid down that, after eviction from part, the landlord cannot recover upon the original contract, and tlie tenant, by giving up possession of the residue, is entirely discharged, but that, if the tenant, after the eviction, continues in possession of the residue, he may be lioble upon a quantum meruit. Vide Dalston v. Keeve, L,d. Raym. 77 (1G97) ; Clun's Case, 10 Rep. 12S (IGIS).— [Rep.] BiG.RlGHTS— 38 594 BIGHTS IN THE LAND OP ANOTHER (Part 2 BENNETT v. BITTLE et al. (Supreme Court of Pennsylvania, 1834. 4 Rawle, 339.) Error to the Court of Common Pleas of Delaware County. In the court below, an action of replevin was brought by Lewis Ben- nett, the plaintiff in error, against WiUiam Bittle and Josiah Moore, the defendants in error, in which Moore made cognizance as the bailiff of Bittle, who avowed for rent in arrear. The plaintiff repUed, no rent in arrear, and an eviction of part of the premises leased. On the trial, the defendants gave in evidence a lease from William Bittle to Lewis Bennett, dated the 9th of February, 1830, of which the following are the material parts: "Be it remembered, that William Bittle has leased to Lewis Bennett, the messuage, tenement or tavern-house, barn, sheds, &c. with four lots of land, on the north-east side of the Westchester road, in the township of Haverford, and county of Delaware, known by the name of the Spread Eagle Tavern, to hold the same for one year from the first day of April next ensuing, the said Lewis Bennett yielding and paying to the said William Bittle, the rent or sum of three hun- dred and seventy-five dollars, together with the price of the license for keeping the public house, and all the taxes that may be levied upon the said premises for the year 1829. It is further agreed to pay the rent half yearly." After having proved that Bennett went into possession of the premises, under this lease, soon after the middle of April, 1830, and remained in possession until the last of March, 1831, the defendants closed their case. The plaintiff then examined several witnesses, from whose evidence it appeared, that about the first May, 1830, two men and a boy em- ployed by Bittle, hauled manure out of the barnyard. They were hauling it the greater part of one day, and they afterwards returned to haul more. Bennett was not at home on the first day. He after- wards reproved Bittle for taking away the manure, who replied, he would do as he pleased. Some further dispute then took place be- tween them. Bittle. also turned cattle into the barn lot; one day seven, and the next day ten, and kept them there more than two weeks, putting them in in the morning, and taking them out at night. Bennett forbade his putting cattle into the lot, and told him he should charge him the same that he did for drove cattle. Bennett used the barn and lot, but each insisted that they were his. * * * When the evidence was closed, the president judge delivered to the jury the following charge. * * * "In the course of the argument the court has been asked by the plaintift"'s counsel to instruct the jury, 'That any entry on the prem- ises demised against the will or wishes of the tenant, is an eviction in point of law, and suspends the rent.' I cannot so instruct the jury. If Ch. 6) RENTS 595 such were the law, and if Mr. Bittle had entered the tavern of Mr. Bennett, after having been forbidden — had walked over his field, or without leave had walked into the little orchard and carried away a basket of apples or fine peaches, or in short committed any other trespass, it would, according to this position, be an eviction, and sus- pend the whole rent. But the law is not so ; in this, as in every other instance, it is more consonant to reason ; it declares, that if the land- lord takes the high-handed measure of entering upon the lands he has leased to his tenant, and ejects, expels, evicts, or turns out the tenant, and prevents him from enjoying and using the land, or a portion of it, which he had solemnly leased to him, thus preventing the tenant's enjoyment of the premises, in respect of which rent was to be paid, that would be an eviction which would suspend the rent; so that the inquiry with this jury will be whether Bittle did eject from, and dispossess Bennett, and thus evict him of any partic- ular portion of the premises really demised to him, and for which the rent was to be paid ; or whether Bittle merely did other wrongs short of eviction and expulsion, such as trespasses in the field or barn- yard. If the former, the rent for that half year is wholly suspend- ed; and if the latter only, it affords the tenant no such de- fence." * * * Kennedy, J.^^ * * * />^^ entry of the lessor, without an expul- sion of the lessee from at least some part of the demised premises, is insufficient to produce a suspension of the rent; it follows, that the court below were right in refusing to charge the jury as requested by the counsel of the plaintiff, and in directing them that nothing short of an eviction or expulsion from at least a portion of the demised premises, would be sufficient for that purpose. Whether an eviction was proved or not, was left entirely as a matter of fact to be decided by the jury, upon which I cannot perceive that the president of the court in delivering the charge, ventured to intimate an opinion. He seems to have met, very fully and fairly the proposition contended for by the counsel of the plaintiff. And it was perhaps owing to a conviction resting on the mind of the plaintiff's counsel at the time, that his evidence at most tended only to prove a mere entry by the de- fendant against the will and consent of the plaintiff, that he was in- duced to contend as he did, that such an entry amounted in law to an eviction. For if he had conceived that his evidence was, under any view that might be taken of it by the jury, sufficient to establish any thing beyond such entry, as for instance, an exclusion or holding of the plaintiff out of the possession and enjoyment of any part of the demised premises, he ought to have shaped his proposition according- ly, and to have asked the instruction of the court to the jury in re- gard to it; and in this way, it is more than probable, some of those things, which it has been alleged on the argument that the court in »B The statement of facts is abri(lj,'ed and part of the opinion is omitted. 596 RIGHTS IN THE LAND OF ANOTHER , (Part 2 explanation of what in law amounted to an eviction ought to have told the jury, would have been mentioned by the court to them. But as the proposition of the plaintiff's counsel did not require any such il- lustration, there was nothing improper on the part of the court in omitting it. The judgment of the Court below is affirmed.^^ PRIDGEON V. EXCELSIOR BOAT CLUB. (Supreme Court of Michigan, 1887. 66 Mich. 326, 33 N. W. 502.) Sherwood, J, The plaintiff sued the defendant in this case for the use of a water lot on the Detroit river, claiming four months' rent due him on the lease under which the defendant occupied, ending De- cember 31, 1885. The rental was the sum of $25 per month. By the terms of the lease the lot extended to the channel bank of the riv- er, and included "all and singular the benefits, liberties, and privileges belonging and appertaining to the premises." The defense was evic- tion during the last month of the term for which rent was claimed to be due. The plaintiff obtained judgment before the justice where the suit was commenced, and on appeal a like result was obtained, and the defendant brings error. The facts which the defendant claims amount to an eviction are substantially as follows: The premises were rented by lease to be used for a boathouse; that the only method of going to and from the river was from the front of the slip ; that the latter part of No- vember, 1886, the plaintiff caused his propellor to be moored at the docks on either side of the slip, and in front of defendant's premises, completely shutting off ingress and egress to the same, thereby de- priving the defendant of the particular and only use for which the premises were rented; that the defendant requested the plaintiff to remove the propeller that they might have access to their property, but the plaintiff neglected so to do, and that the defendant had not any beneficial enjoyment of the property during the time the block- ade by the propeller continued. It is claimed by counsel for the de- fendant that these facts constitute such an eviction as will suspend the right of payment of rent during their continuance; and this is the only question made in the case. We think counsel are correct in this position. If the facts stated are true, the action of the plaintiff in the premises was a substantial eviction of the defendant from a part, if not the whole, of the rented lot. The subject cannot be discussed except in connection with the object and purpose for which the lot was rented and occupied. The 3«Acc.: Harrison's Case, Clayton, 34 (1635); Roper v. Lloyd, T. Jones, 148 (1678). See Way v. Myers, 64 Ga. 760 (ISSO) ; Hayward v. Raiuge, 33 Neb. 836, 51 N. W. 229 (1892). Ch. 6) RENTS 597 disturbance of the lessee's beneficial enjoyment of the water front of the premises amounts to an eviction, actual, if any exists, and not constructive. The right toenter upon the land leased was of no inter- est or benefit to the defendant, only as it furnished a water front upon which the club could store its boats, and launch and land the same unobstructed. In a case like the present the technical rule which requires the ele- ment either of absolute expulsion from the property by the landlord, or abandonment by the tenant, to be included in the act of eviction, does not and ought not to be applied. A party should be held evicted when the act of the landlord is of such a character as to deprive the tenant, or has the effect of depriving him, of the beneficial use and enjoyment of the whole or any part of the demised property, to the extent he is tlius deprived. Upton v, Townsend, 17 C. B. 30; Peck V. Hiler, 24 Barb. (N. Y.) 178; Briggs v. Hall, 4 Leigh (Va.) 484, 26 Am. Dec. 326; Dobbins v. Duquid, 65 111. 464; Lynch v. Baldwin, 69 111. 210; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Bentley v. Sill, 35 111. 414 ; Dyett v. Pendleton, 8 Cow. (N. Y.) 727 ; Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 499; Randall v. Albur- tis, 1 Hilt. (N. Y.) 283 ; Lawrence v. French, 25 Wend. (N. Y.) 443 ; Jackson v. Eddy, 12 Mo. 209; Shumway v. Collins, 6 Gray (Mass.) 232; Christopher v. Austin, 11 N. Y. 216. And in such case, when^ the eviction is by the landlord, the rent is suspended during the time of such disturbance. Wood, Landl. & Ten. 793; Tayl. Landl. & Ten. §§ 378, 379; Vaughan v. Blanchard, 4 Dall. 125, 1 L. Ed. 769; Neale v. Mackenzie, 2 Cromp., M. & R. 84; Blair v. Claxton, 18 N. Y. 529; Griffith v. Hod,!?es, 1 Car. & P. 419; Hoeveler v. Fleming, 91 Pa. 322; Leishmah v. White, 1 Allen (Mass.) 489; Hayner v. Smith, 63 111. 430, 14 Am. Rep. 124. The defense claimed in this case is not that the plaintiff did acts tending to diminish the enjoyment of the leased rights and property, but that what he did deprived the defendant of them altogether, and which, it would seem from the record, was substantially done. We think the judgment should be reversed, and a new trial granted. Champlin and Morse, JJ., concurred. C.\MPBELL, C. J., did not sit.*'' ST Ace: Hunter v. Reiley, 43 N. J. Law. 4S0 (18S1) ; American Tract So- ciety V. Jones, 76 Misc. Rep. 23G. 134 N. Y. Supp. 611 (1912). A. leased the basement and first floor of a tliree-story building to X., re- serving rent, the fee of the street being owned by the abuttor subject to the public easement. During the term A. erected a building upon an adjacent lot owned by him and for three months deposited building material upon the street and sidewalk in front of the premises leased to X, and tore up and fenced off the sidewalk adjacent. X. continued in occupation of the prem- ises. Held, X. is not liable for the rent of the premises during the said three months. Edmison v. Lowry, 3 S. D. 77, 52 N. W. 5S3, 17 U K. A. 275, 44 Am. St. Rep. 774 (1892). Compare Meeker v. Spalsbury, 66 N. ,1. Law, 60, 48 Atl. 1026 (1901); Hancock v. Austin, post, p. 636, and footnote thereto. 598 RIGHTS IN THE LAND OF ANOTHER (Part 2 SMITH V. McENANY. (Supreme Judicial Court of Massachusetts, 1S97. 170 Mass. 26, 48 N. E. 781, 64 Am. St. Rep. 272.) Holmes, J. This is an action upon a lease for rent and for breach of a covenant to repair. There also is a count on an account annexed, for use and occupation, etc., but nothing turns on it. The defense is an eviction. The land is a lot in the city of Boston, the part con- cerned being covered by a shed which was used by the defendant to store wagons. The eviction relied on was the building of a permanent brick wall for a building on adjoining land belonging to the plaintiff's husband, which encroached 9 inches, by the plaintiff's admission, or, as his witness testified, from measurements, 13% inches, or, as the • defendant said, 2 feet, for 34 feet along the back of the shed. The wall was built with the plaintiff's assent, and with knowledge that it encroached on the demised premises. The judge ruled that the de- fendant had a right to treat this as an eviction determining the lease. The plaintiff asked to have the ruling so qualified as to make the question depend upon whether the wall made the premises "uninhab- itable for the purpose for which they were hired, materially chang- ing the character and beneficial enjoyment thereof." This was re- fused, and the plaintiff excepted. The bill of exceptions is unneces- sarily complicated by the insertion of evidence of waiver and other matters, but the only question before us is the one stated, and we have stated all the facts which are necessary for its decision. The refusal was right. It is settled in this state, in accordance with the law of England, that a wrongful eviction of the tenant by the landlord from a part of the premises suspends the rent under the lease. The main reason which is given for the decisions is that the enjoyment of the whole consideration is the foundation of the debt and the condition of the covenant, and that the obligation to pay can- not be apportioned. Shumway v. Collins, 6 Gray, 227, 232; Leish- man v. White, 1 Allen, 489; Royce v. Guggenheim, 106 ]\Iass. 201, 202, 8 Am. Rep. 322; Smith v. Raleigh, 3 Camp. 513; Watson v. Waud, 8 Exch. 335, 339. It also is said that the landlord shall not apportion his own wrong, following an expression in some of the older English books. Royce v. Guggenheim, supra ; Colburn v. Morrill, 117 Mass. 262, 19 Am. Rep. 415 ; Mirick v. Hoppin, 118 Mass. 582, 587. But this does not so much explain the rule as suggest the limitation that there may be an apportionment when the eviction is by title paramount or when the lessor's entry is rightful. Fillebrown v. Hoar, 124 ]\Iass. 580, 583; Neale v. Mackenzie, 1 Mees. & W. 747, 758; Christopher v. Austin, 11 N. Y. 216, 218; Hodgkins v. Robson, 1 Vent. 276; Id., Poll. 141; Id., 3 Keb. 557; Co. Litt. 148b; Gilb. Rents, 151 et seq. It leaves open the question why the landlord may not show that his wron? extended onlv to a part of the premises. No doubt the ques- Ch. 6) BENTS 599 tion equally may be asked why the lease is construed to exclude ap- portioiiincnt, and it may be that this is partly due to the traditional doctrine that the rent issues out of the land, and that the whole rent is charged on every part of the land. Gilbert, Rents, 178, 179, gives this as one ground why the lessor shall not discharge any part from the burden and continue to charge the rest, coupled with considera- tions partly of a feudal nature. See, also, Walker's Case, 3 Coke, 22a, 22b ; Hodgkins v. Thornborough, Poll. 141, 143 ; Neale v. Mac- kenzie, 1 Mees. & W. 747, 763. But the same view naturally would be taken if the question arose now for the first time. The land is hired as one whole. If by his own fault the landlord withdraws a part of it he cannot recover either on the lease or outside of it for the occupation of the residue.^^ Leishman v. White, 1 Allen, 489. See Fuller v. Ruby, 10 Gray, 285, 289; Keener, Quasi Cont. 215. It follows from the nature of the reason for the decisions which we have stated that, when the tenant proves a wrongful deforcement by the landlord from an appreciable part of the premises, no inquiry is open as to the greater or less importance of the parcel from which the tenant is deforced. Outside the rule de minimis, the degree of interference with the use and enjoyment of the premises is important only in the case of acts not physically excluding the tenant, but alleged to have an equally serious practical effect, just as the intent is import- ant only in the case of acts not necessarily amounting to an entry and deforcement of the tenant. Skally v. Shute, 132 Mass. 367. The in- quiry is for the purpose of settling whether the landlord's acts had the alleged effect; that is, whether the tenant is evicted from any por- tion of the land. If that is admitted, the rent is suspended because, by the terms of the instrument as construed, the tenant has made it an absolute condition that he should have the whole of the demised prem- ises, at least as against willful interference on the landlord's part. A case somewhat like the present is Upton v. Townsend, 17 C. B. 30, 74. See, also, Sherman v. Williams, 113 M^ss. 481, 485, 18 Am. Rep. 522.^^ * 3 8 "To tlie claim on the covenant [for rent] the answer is the eviction; to the demand for use and occupation the answer is that the defendant holds under his lease ; so that in neither aspect of the case can the plaintiff main- tain his action." Bigelow, J., in Leishman v. ^yhite, 1 Allen (Mass.) 4sy, 490 (1S61). Contra: Anderson v. Winton, 136 Ala. 422, 34 South. 962 (1902). Compare Collins v. Karatopsky, 86 Ark. 316 (ISSO). 3 9 Ace: Morris v. Kettle, 57 N. J. Law, 218, 30 Atl. 879 (1S94) ; Christo- pher V. Austin, 11 N. Y. 216 (1854). Compare Hayner v. Smith, 63 111. 430, 14 Am. Rep. 124 (1872). A. leased premises to B. at a specified monthly rental. The rent being four days in arrears A. filed a bill against B. alleging that B. was insolvent and was removing his assets from the state and asking the appointment of a receiver. A temporary receiver was appointed, who took possession of the leased premises and the property thereon and ousted B. therefrom until several weeks later, when the receivership was discharged ; it not appear- ing that B. was insolvent. In an action by A. against B. for rent, the above facts were alleged as an eviction, suspending the obligation to pay 600 RIGHTS IN THE LAND OF ANOTHER (Part 2 We must repeat that we do not understand any question, except the one which we have dealt with, to be before us. An eviction like the present does not necessarily end the lease (Leishman v. White, 1 Allen, 489, 490), or other obligations of the tenant under it, such as the covenant to repair (Carrel v. Read, Cro. Eliz. 374; Snelling v. Stagg, Buller, N. P. 165; Morrison y. Chadwick, 7 C. B. 266; New- ton V. Allin, 1 Q. B. 518). Exceptions overruled. PENDLETON v. DYETT. DYETT V. PENDLETON. (Supreme Court of New York, 1825. 4 Cow. 581. On Writ of Error In Court for Correction of Errors, 1826. 8 Cow. 727.) Covenant for rent upon a lease dated October 15th, 1818, given by the plaintiff to the defendant, for the term of two, three, five, or eight years, but not for a less term than two years, of two rooms, or the whole of the second floor, and two rooms chosen by the defendant on the third floor of a certain house or store in Beaver street, corner of William street, in the city of New York, at a rent of $425 per annum, which the defendant covenanted to pay, and entered into possession of the demised premises. The defendant pleaded, 1st, non est factum ; 2. That before any of the rent became due, to wit, on, &c. the plain- tiff entered upon the demised premises, and ejected, expelled, put out rent. The court held that these facts did not constitute a defense, saying, per Fish, C. J.: "In the present case it cannot be said that there was an actual expulsion of the defendant from the rented premises by the plain- tiff itself. Was the appointment of a temporary receiver upon the applica- tion of the plaintiff, and the taking of possession of the leased premises by him under the order of the court and at the Instance of the plaintiCt, such an act, under the circumstances above set forth, as indicated an intention on the part of the plaintifE to deprive the defendant of the enjoyment of the rented premises? We think not. The evident purpose of the plaintiflC in applying for the appointment of a receiver, taking the averments in the answer and offered amendments as true, was to secure its alleged rights and the payment of the rental claimed to be due it by the defendant. * * * The taking possession of the leased premises, under the circumstances, should therefore be held not to be an eviction of the defendant by the plain- tiff, but merely an auxiliary measure frequently incident to the character of cases such as the one in which the receiver was appointed, for the purpose of preserving tempoi'arily the status, and not with an intention on the part of the landlord, the plaintiff, that the tenant, the defendant, should no longer continue to hold the premises." Potts-Thompson Liquor Co. v. Capital City Tobacco Co., 137 Ga. 648, 74 S. E. 279 (1912). A, leased a shop to X., the entrance of which was known to be over the street line. Tlie city later ordered A. to remove the entrance, which he did, only in pursuance of the order. In an action by A. against X. for sub- sequently accruing rent, held, this is not an eviction, so as to suspend the rent. Duhain v. Mermod. .Taccard & King Jewelry Co., 211 N. Y. 364, 105 N. E. 657, Ann. Cas. 1915C, 404 (1914). Compare Taylor v. Finnegan, 189 Mass. 568, 76 N. E. 20:'., 2 L. R. A. (N. S.) 973 (1905) ; Barns v. Wilson, 110 Pa- 303, 9 Atl. 437 (1887). Ch. 6) RENTS 601 and amoved the defendant, and kept and continued him so ejected, expelled and amoved from thence hitherto. Replication, denying the expulsion and issue. The cause was tried at die New York Circuit, June 19th, 1823, be- fore Edwards, C. Judge. On the trial, the counsel for the defendant produced receipts for rent to the 1st February, 1820, and offered to prove that about that time the plaintiff introduced into the house demised, lewd women or prosti- tutes, and continued this practice from time to time and at sundry times, keeping and detaining them in there all night for the purpose of prostitution; that such women would frequently enter the house in the day time, and, after staying all night, would leave it by day light in the morning; that the plaintiff sometimes introduced otlier men into tlie house, who, together, with him, kept company with the lewd women or prostitutes during the night; that on such occasions, the plaintiff" and the women, being in company in certain parts of the house not included in the lease, but adjacent and in the plaintiff's occupation, were accustomed to make a great deal of indecent noise and disturbance, the women often screaming extravagantly so . as to be heard throughout the house, and by the near neighbors ; and frequently using obscene and vulgar language, so loud as to be understood at a considerable distance ; that such noise and riotous proceedings being frequently continued all night, greatly disturbed the rest of persons sleeping in other parts of the house, and particularly in the parts de- mised ; that these practices were matter of conversation and reproach in the neighborhood ; and were of a nature to draw, and did draw, odium and infamy upon the house as being a place of ill fame, so that it was no longer reputable for moral or decent persons to dwell or enter there; that all these practices were by the procurement or per- mission and concurrence of the plaintiff. That the defendant, be- ing a person of good and respectable character, was compelled by the repetition of these practices to leave the house, and did leave it for that cause, about the beginning of March, 1820; and did not return. That a respectable man by the name of Fox, to whom part of the house had been underlet, left it for the same cause. This evidence was objected to, and overruled by the Judge as in- admissible upon the issue ; and the defendant's counsel excepted. Ver- dict for the plaintiff, damages $362.52. Curia, per Sutherland, J. Eviction of the whole, or any part of the demised premises, is a good plea in bar to an action either of debt or covenant for the rent. In this, all the authorities agree. (Cruise, Dig. tit. 28, Rents, ch. 3. Woodfall, 412-13. 1 Saund. 204, n. 2, and cases there cited.) The plea in this case is unexceptionable in point of form. It is according to the established precedents. (Salmon v. Smith, 1 Saund. 203, 4, n. 2.) It states that the plaintiff, (who was the de- fendant's lessor,) entered into and upon the demised premises, and ejected, expelled, put out and amoved the said defendant from the G02 ~ RIGHTS IN THE LAND OF ANOTHER (Part 2 possession thereof, and kept and continued him so ejected, expelled, &c. from thence hitherto. The only question in the case, is, whether the evidence offered by the defendant, and which was rejected by the Judge who tried the cause, supported the plea, or was of a character which ought to have been submitted to the jury, for them to decide whether it made out the fact of eviction or not. No actual ouster or turning out of possession is pretended. The proof offered does not show an entry by the lessor upon the premises. It does not make out even a trespass. The acts complained of as amounting to an eviction, were committed in a different part of the same house, with which the demised premises had no connection, except that the approach to each was by a common entrance. They operated not upon the physical safety of the tenant, or the physical condition of the demised prem- ises; but upon the moral sense and feeling of the defendant. The acts were exceptionable in themselves ; and, if they could not be abat'ed, the defendant had not only a moral right, but it was his moral duty, to abandon the scene of riot and prostitution. But they could have been abated. The law aft'orded a prompt and sufficient remedy. The police of the city, upon the complaint of the defendant, would have instantly taken the plaintiff and his associates into custody, and pun- ished them by fine and imprisonment as often as the ofi'ence was re- peated. There was no moral necessity therefore for "abandoning the prernises. Suppose the plaintiff had been in the habit of exhibiting him- self either in the common passage or in the street opposite the prem- ises in question, in indecent attitudes, or in a state of oft'ensive naked- ness, so that the defendant and his family could not leave his house witliout witnessing the disgusting exhibition ; would this cause have supported a plea of eviction ? They would both stand upon the footing of nuisances, which the plaintiff or any other citizen might cause to be abated. But if, instead of taking that course, he should abandon- his house, it must be considered a voluntary and not a compulsory act. But I apprehend there can be no eviction, without an actual entry. Such is the form of the plea, and the proof must sustain it. The very definition of the term eviction, is an expulsion of the lessee out of all or some part of the demised premises ; and Sergeant Williams says, that to occasion a suspension of the rent, the plea must state an evic- tion or expulsion of the lessee by the lessor, and a keeping him out of possession, until after the rent became due; otherwise it will be bad. (1 Saund. 204, n. 2.) If a constructive expulsion, without entry, may constitute an eviction, which will operate as a suspension of the rent, why is the averment of an entry contained in all the precedents and why do all the cases agree, that without such averment the plea would be bad? Thus, in Timbrell v. Bullock, (Styles, 446,) it is said that, to make a suspension of rent reserved upon a lease for years, the lessor must oust the lessee of part of the thing let, at least, and hold him out until after the day on which the rent is made payable by the lease; Ch. 6) RENTS « 603 and if the lessee re-enters the rent is revived. A re-entry presup- poses an actual ouster or expulsion, * * * Hunt V. Cope, (1 Covi'p. 242,) is a strong case. There the defendant pleaded that the lessor, with force and arms, entered upon the demised premises and demolished a summer house, (being a part of the prem- ises,) by means whereof the tenant had been deprived of the use of the summer house, &c. This plea was held to be bad, because it ' did not aver an actual eviction or expulsion of the lessee. The defendant's counsel urged that the facts in the plea amounted to an eviction, on the ground that an actual entry was stated and a destruc- tion of a portion of the premises; and if an eviction could be con- structively pleaded, this would seem to be good. But all the Court held it bad, and Aston, J., says, all the cases in the books suppose the lessee to be put out of possession. Therefore, merely saying that he was deprived of the enjoyment of the premises is not sufficient. If it is necessary to state, in terms, that the lessee was turned out of posses- sion, in order to make a good plea of eviction, it would seem to follow that the proof in support of the plea must be substantially of the same character. Lord Mansfield, in Hunt v. Cope, says that the facts there stated, might have been sufficient for the jury to have found for the defendant under a good plea of eviction. But there, it will be recollected, an actual entry, and a physical destruction of a portion of tlie premises are averred; and if an actual ouster can be inferred from circumstances, it surely might in that case; yet Lord Mansfield considers it as matter of doubt. In the case before us, there was not only no actual entry, but no as- sertion either express or implied of a right of entry on the part of the lessor or of any other right or control over the demised premises. The disturbance suffered by the lessee was the consequence of conduct on the part of the lessor, which partook of the nature of a nuisance, and which he had the power of abating at pleasure. He was not, therefore, constrained by any necessity, either moral or physical, to abandon the premises; and, in judgment of law, so far as this ac- tion is concerned, his abandonment must be considered voluntary. The evidence offered was properly rejected by the Judge. The mo- tion for a new trial must be denied. New trial refused. [On Wrif of Error.] Spencer, Senator.*" It seems to be conceded that the only plea which could be interposed by the defendant below, to let in the de- fence which he offered, if any would answer that purpose, was, that the plaintiff had entered in and upon the demised premises, and ejected and put out the defendant. Such a plea was filed; and it contended *o Part of the opinion of Spencer, Senator, and the opinion of Cr^ry, Coldon, and Allen, Senators, are omitted. 604 RIGHTS IN THE LAND OP ANOTHER (Part 2 on the one side, that it must be Hterally proved, and an actual entry and expulsion estabhshed; while on the other side it is insisted, that a constructive entry and expulsion is sufficient, and that the facts which tended to prove it, should have been left to the jury. It is true that "pleading is the formal mode of alleging that on the record, which would be the support or defence of the party on evidence," as de- ■fined by Buller, J., in 1 Term Rep. 159; and the same learned judge immediately after draws the correct distinction : "whether the evi- dence in each particular case is a sufficient foundation for that support or defence, is, a question that does not arise upon pleading, but upon the trial of the issue afterwards." In pleading, the legal effect of the facts is stated, not the facts themselves. The form of the plea, there- fore, does not determine the kind of evidence necessary to establish it. To support a plea that the defendant never promised, he may prove a payment, or a performance of his undertaking, or some matters which excused him from its performance. * * * There are many similar cases, where the proof of one fact justifies the legal conclusion of another fact. This, then, is a question of prin- ciple, whether the evidence offered by the defendant below tended in any manner to establish a constructive entry and eviction by the plain- tiff ; for if it did, it should have been left to the jury to decide on its effect. To determine this, it seems only necessary to inquire what are the conditions express or implied, on which the defendant was to pay the rent. The agreement set forth in the plea, contains a covenant that the defendant shall have "peaceable, quiet and indisputable possession" of the premises. This is, in its nature, a condition precedent to the payment of rent; and whether the possession was peaceable and quiet, was clearly a question of fact for the jury. Such conduct of the lessor as was offered to be proved in this case, went directly to that point ; and without saying at present, whether it was or was not sufficient to establish a legal disturbance, it is enough that it tended to that end, and should have been received, subject to such advice as the judge might give to the jury. The opinion of the supreme court proceeds upon the ground that there must be an actual physical eviction, to bar the plaintiffs ; and in most of the cases cited, such eviction was proved ; and all of them show that such is the form of the plea. But the forms of pleading given, and the cases cited, do not establish' the principle on which the recov- ery of rent is refused, but merely furnish illustrations of that prin- ciple, and exemplifications of its application. The principle itself is deeper and more extensive than the cases. It is thus stated by Baron Gilbert, in his essay on Rents, p. 145 : "A rent is something given by way of retribution to the lessor, for the land demised by him to the tenant, and consequently the lessor's title to the rent is founded upon this: that the land demised, is enjoyed by the tenant during the terni included in the contract ; for the tenant can make no return for thing Ch. G) RENTS 605 he has not. If, therefore, the tenant be deprived of the thing letten, the obHgation to pay the rent ceases, because such obhgation has its force only from the consideration, which was the enjoyment of the thing demised." And from this principle, the inference is drawn, that the lessor is not entitled to recover rent in the following cases : 1st. If the lands demised be recovered by a third person, by a superior title, the tenant is discharged from the payment of rent after eviction by such recovery. 2d. If a part only of the lands be recovered by a third person, such eviction is a discharge only of so much of the rent as is in proportion to the value of the land evicted. 3d. If the lessor expel the tenant from the premises, the rent ceases. 4th. If the lessor expel the tenant from a part only of the premises, the ten- ant is discharged from the payment of the whole rent; and the rea- son for the rule why there shall be no apportionment of the rent in this case as well as in that of an eviction by a stranger, is, that it is the wrongful act of the lessor himself, "that no man may be encour- aged to injure or disturb his tenant in his possession, whom, by the policy of the feudal law, he ought to protect and defend." This distinction, which is as perfectly well settled as any to be found in our books, establishes the great principle that a tenant shall not be required to pay rent, even for the part of the premises which he re- tains, if he has been evicted from the other part by the landlord. As to the part retained, this is deemed such a disturbance, such an injury to its beneficial enjoyment, such a diminution of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent. Here tlien, is a case where actual entry and physical eviction are not necessary to exonerate the tenant from the payment of rent; and if tlie principle be correct as applied to a part of the premises, why should not the same principle equally apply to the whole property demised, where there has been an obstniction to its beneficial enjoyment, and a diminution of the consideration of the contract, by the acts of the landlord, although those acts do not amount to a physical eviction? If physical eviction be not necessary in the one case, to discharge the rent of the part retained, why shoufd it be essential in the other, to discharge the rent of the whole? If I have not deceived myself, the distinction referred to settles and recog- nizes the principle for which the plaintiff in errof" contends, that there may be a constructive eviction produced by the acts of the landlord. An eviction cannot be more than an ouster; and we have the au- thority of Lord Mansfield for saying that there may be a constructive ouster. In Cowper, 217, he remarks, "Some ambiguity seems to have arisen from the term actual ouster, as if it meant some act accompanied by real force, and as if a turning out by the shoulders were necessary ; but that is not so : a man can come in by rightful possession, and yet hold over adversely without a title," &c. * * * We regard cases as containing the evidence of the law, as evincing the rule of decision ; and they are consulted to ascertain the principle 606 RIGHTS IN THE LAND OF anotheh (Part 2 on which that rule is founded. The review of the cases now made, shows that the principle on which a tenant is required to pay rent, is the beneficial enjoyment of the premises, unmolested in any way by the landlord. It is a universal principle in all cases of contract, that a party who deprives another of the consideration on which his obHga- tion was founded, can never recover damages for its non-fulfilment. The total failure to the consideration, especially when produced by the act of the plaintiff, is a valid defence to an action, except in certain cases, where a seal is technically held to conclude the party. This is the great and fundamental principle which led the courts to deny the lessor's right to recover rent where he had deprived the tenant of the consideration of his covenant, by turning him out of the pos- session of the demised premises. It must be wholly immaterial by what acts that failure of consideration has been ' procjuced ; and only inquiry being, has it failed by the conduct of the lessor? This is a question of fact, and to establish it the proof offered in this case was certainly competent. I do not feel called upon to say that those facts would have been alone sufficient. Of that the jury were to judge, at least, in the first instance; and the question whether they amounted to a full and complete legal defence, might have been presented in another shape. The only question for our decision is, whether that testimony ought to have been received at all ? Believing that it tended to establish a constructive eviction and expulsion against the con- sent of the tenant : that it tended to prove a disturbance of his quiet possession, and a failure of the consideration on which only the tenant was obliged to pay rent, I am of the opinion that it ought to have been received ; and that, therefore, the judgment of the supreme court should be reversed, with the directions to issue a venire de novo. * * * A majority were for reversal. Whereupon it was ordered, that the judgment of the supreme court be reversed; and that a venire de nova should issue in the court below.* ^ EDGERTON V. PAGE. (Court of Aj)peals of New York, 1859. 20 N. Y. 281.) Appeal from the Common Pleas of the city and county of New York. Action to recover one quarter's rent of the first floor of brick building No. 8 Fulton street in said city, for the quarter ending May 1st, 1855, leased by the plaintiff to the defendant for one year from May 1st, 1854, at a yearly rent of $1,500, payable quarterly on the first days of August, November, February and May. The defendant in his answer set out a copy of the lease, by which it appeared that the defendant was to have the privilege of renewal for one year at the same rent. 41 See Alger v. Kennedy, 49 Vt. 109, 24 Am. Rep. 117 (1876). Compare Wolf V. Eppen.stein, 71 Or. 1, 140 Pac. 751 (1914). Ch. 6) RENTS 607 The answer alleged that this privilege was one of the main induce- ments on the part of the defendant to the taking of the lease, and one of the principal causes of its value. The answer further alleged that the plaintiff, between the first days of February and May, 1855, was the occupant of the entire upper part of the building in question, and also of the adjoining building; that between those days, and while the de- fendant occupied the demised premises, the plaintiff wantonly, ma- liciously and negligently permitted certain water pipes, coming down through the rear of tlie building and communicating with a sewer under the demised premises, and which pipes were used for carrying off the waste water from the upper, stories of the building, to get out of order and leak: and that the plaintiff' knowing this, maliciously and negligently permitted large quantities of water and filth to flow through the pipes which leaked therefrom into the demised premises, injuring the property of the defendant, deposited therein, to the amount of $390, interfering with and depriving the defendant of the bene- ficial enjoyment of the premises: that the plaintiff could, by ordinary care and prudence, have prevented the injury, and that the defendant requested the plaintiff to repair the pipes or abstain from their use which he neglected to do : that the defendant was injured to the amount of $250 in the prosecution of the business during the quarter in question. The answer further alleged, that at divers times during the quarter in question, large quantities of water, filthy and otherwise, were thrown out by the plaintiff and his servants, from the rear win- dows of the portion of the building occupied by the plaintiff', so neg- ligently and maliciously as to run into the demised premises, by which the defendant was injured to the amount of $150: that the defendant was compelled, by the injuries, to abandon the possession of the prem- ises on or about 1st of May, 1855, thereby losing the benefit and be- ing deprived of the privilege of renewal created by the lease which' he intended to avail himself of but for said injuries. The answer insists upon the facts as a defence to the action, and also as a counterclaim. The plaintiff demurred to the answer and assigned several causes, among them that the facts did not constitute a defence, nor a coun- ter-claim available to tiie defendant in the action. The cause was heard at special term, and judgment given for the defendant upon the de- murrer. The plaintiff appealed; the court at general term reversed the judgment, and gave judgment for the plaintiff, from which the defendant appealed to this court. Grover, T. The demurrer presents two questions: First, whether the facts alleged in the answer constitute a defense; second, whether they constitute a counter-claim, available to the defendant by way of recoupment or otherwise in this action. The rule has long been settled, that a wrongful eviction of the tenant by the landlord, from the whole or any part of the demised premises, before the rent becomes due, precludes a recovery thereof until the possession is restored. Christopher v. Austin, 11 N. Y. 217. Whether this eviction must be G08 RIGHTS IN THE LAND OF ANOTHER (Part 2 actual by the forcible removal of the tenant by the landlord from the demised premises or a portion thereof, was not settled in this State until the case of Dyett v. Pendleton, 8 Cow. 728. In that case, the principle was established by the Court for the Correction of Errors, that when the lessor created a nuisance in the vicinity of the demised premises, or was guilty of acts tliat precluded tlie tenant from a bene- ficial enjoyment of the premises, in consequence of which the tenant abandoned the possession before the rent became due, tlie lessor's ac- tion for the recovery of the rent was barred, although the lessor had not forcibly turned the tenant out of possession. Ever since that case, this has been considered as a settled rule of law binding upon all the courts of the State. Such act of the lessor accompanied by an aban- donment of possession by the lessee, is deemed a virtual expulsion of the tenant, and, equally with an actual expulsion, bars the recovery of rent. The reason of the rule is, that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord ; and thus the consideration of his agreement to pay rent has failed. In case of eviction from a portion of the premises, the law will not apportion the rent in favor of the wrongdoer. In this case, the answer shows that the defendant continued to occupy the premises for the whole time for which the rent demanded ac- crued. In this, the case differs from Dyett v. Pendleton (supra). I cannot see upon what principle the landlord should be absolutely bar- red from a recovery of rent, when his wrongful acts stop short of de- priving the tenant of the possession of any portion of the premises. The injury inflicted may be to an amount much larger than the whole rent, or it may be of a trifling character. In all the cases where it has been held that tlie rent was extinguished or suspended, the tenant has been deprived, in whole or in part, of the possession by the wrong- ful act of the landlord, either actually or constructively. There is no authority extending the rule beyond this class of cases. It would be grossly unjust to permit a tenant to continue in the possession of the premises, and shield himself from the payment of rent by reason of the wrongful acts of the landlord impairing tlie value of the use of the premises to a much smaller amount than the rent. This must be the result of the rule claimed by the defendant. The moment it is con- ceded that the injury must be equal to the amount of the rent, the rule is destroyed. It would then only be a recoupment to the extent of the injury. In Ogilvie v. Hull (5 Hill, 52), Nelson, Ch. J., in giving the opinion of the court, says : That no general principle is better settled, or more uniformly adhered to, than that there must be an entry and expulsion of the tenant by the landlord, or some deliberate disturb- ance of the possession depriving the tenant o£ tlie beneficial enjoy- ment of the demised premises, to operate a suspension or extinguish- ment of the rent. The rule contended for by the defendant is a very different one, suspending or extinguishing the rent whenever the en- joyment, in consequence of the tortious acts of the lessor, becomes Ch. 6) EENTS 609 less beneficial than it otherwise would have been. The true rule, from all the authorities, is that while the tenant remains in possession of the entire premises demised, his obligation to pay rent continues. *- The remaining question is whether a counter-claim, arising from the fact-s contained in the answer, is available to the defendant in this action. By section 149 of the Code, the defendant is permitted to in- clude in his answer new matter, constituting a counter-claim. Sec- tion 150 defines the class of demands which are embraced in section 149, as counter-claims. A counter-claim must be 1st, a cause of action arising out of tlie contract or transaction set forth in tlie complaint as the foundation of the plaintiff's* claim, or connected with the subject of the action ; or 2d, in an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action. The demand of the defendant, set out in the answer, does not arise out of the contract set forth in the complaint. That con- tract is for the payment of rent, upon a lease of the demised prem- ises. The defendant's demands arise from the wrongful acts of the plaintiff in permitting water to leak and run into the premises, and in causing or permitting it to be thrown upon the premises and property of the defendant. These acts are entirely independent of the con- tract of leasing upon which the action is brought. The demands are not connected with the subject of the action; that is, the rent agreed to be paid for the use of the premises. The defendant's demands are for a series of injuries to his property deposited upon the premises, and for impairing the value of the possession. It would be a very liber- al construction to hold that in an action for rent, injuries from tres- passes committed by the lessor upon the demised premises might be interposed as a counterclaim. The acts of the plaintiff in this case are of a similar nature. They are either acts of trespass or negligence, from which the injuries to the defendant accrued. Such a construc- tion could only be supported by the idea, that the subject of the ac- tion was the value of the use of the premises. But when there is an agreement as to the amount of rent, that value is immaterial. Unless the acts of the defendant amount to a breach of the contract of letting, they are not connected with the subject of the action. In the case of The Mayor, etc., of New York v. Mabie, 13 N. Y. 151, 64 Am. Dec. 538, it was held by this court that a covenant for quiet enjoyment by the lessor was implied in a lease under seal, for a term not exceeding *2 Compare Lumpkin v. Provident Loan Soc., Inc., 15 Ga. App. 816, 84 S. E. 216 (1915). See Halligan v. Wade, 21 111. 470, 74 Am. Dec. 108 (1859) ; De Witt V. Pierson, 112 Mass. 8, 17 Am. Rep. 58 (1873). A. leased a building to B. B. subleased portions to C. and D. Owing to A.'s wrongful failure to keep the roof in repair, that part occupied by B. became untenantable, and B. abandoned the premises. Held, B. is entitled against A. to have the rent proportionally reduced. Dolph v. Barry, 165 Mo. App. 659, 148 S. W. 196 (1912). Compare Weiss v. Zenith Realty Co., 129 Minn, 486, 152 N. W. 869 (1915), BiG.RlGHTS — 39 GIO RIGHTS IN THE LAND OF ANOTHER (Part 2 three years, since as well as before the Revised Statutes ; that this covenant was broken by an interference with possession by the lessor under a claim of right; consequently, that damages sustained from such acts might be recovered in an action for rent. It was remarked by Denio, J., in giving the opinion in that case, that it is not, however, every mere trespass by the lessor upon the demised premises which will amount to a breach of this covenant; although the covenantor can- not avail himself of tlie subterfuge, that his entry was unlawful, and he, therefore, a trespasser, to avoid the consequences of his own wrong, still, to support the action of covenant^ the entry must be made under an assumption of title. For tliis, the learned judge cites Piatt on Cove- nants, 319, 320. There is nothing in the answer in this case tending to show that any of the acts of the defendant were done under any claim of right whatever. They did not, therefore, amount to a breach of the contract created by the lease, and the injuries sustained by the defendant do not, therefore, constitute a counter-claim connected with the subject of the action. The judgment should be affirmed. Judgment affirmed. BASS v. ROLLINS. (Supreme Court of Minnesota, 1S95. 63 Minn. 226, 65 N. W. 34S.) Start, C. J. Action to recover $50 for twa months' rent. Trial by the court without a jury, and judgment for the defendant, from which the plaintiff appealed. The here material facts, as found by the court, are that on November 1, 1894, the plaintiff leased to the defend- ant a certain apartment for a monthly rental of $25, payable in ad- vance on the first secular day of each month; that it was a part of the agreement of such leasing that the plaintiff should furnish to the defendant proper and sufficient heat while he was occupying the de- mised premises ; that at times during the month of December, 1894, and up to the 6th' day of February, 1895, the plaintiff failed to provide such heat, although repeatedly notified by the defendant so to do, but kept the premises during such times, at such a low temperature as to render the same unfit for occupancy ; and that, by reason of such fail- ure, the defendant was compelled to and did vacate the premises on the 6th day of February, 1895. The defendant paid all rent except for the month of February. We concede, for the purposes of this case, without so deciding, that the agreement to furnish to the defendant sufficient heat was not a condition precedent to the payment of rent, but the trial court has not found that the defendant, by remaining in possession of the prem- ises after February 1st, elected to keep them for that month. Nor can such fact be inferred from the facts found by the court. In this respect the case differs from Flint v. Sweeney, 49 Minn. 509, 52 N, W. 136, which was a case where the condition of the demised premises Ch. 6) RENTS 611 had not materially changed for several months, and it was held that the lessee, by continuing the occupancy of the premises after the end of the current month, elected to remain for another month, and was liable for that month's rent. In the case at bar it was only at times that the lessor failed to furnish a proper amount of heat. It was a mere neglect of duty, which tlie lessor might have corrected at any time, and the lessee did not, as a matter of law, elect to keep the premises for the month of February if the lessor did not keep them warmed, and he had a right to vacate them upon the lessor's failure to do so. The court found that, on the 6th day of February, the defendant was com- pelled to and did vacate the premises, for the reason that they were unfit for occupancy by reason of the plaintiff's failure to keep them warm. This amounted to an eviction by the plaintiff, and he is not entitled to recover for rent accruing after such eviction. It is not an answer to this proposition to say that $25 was due for rent six days before the eviction, for, suppose that, on the 1st day of February, the premises were properly heated, and the defendant paid the month's rent on that day, but on the next day the plaintiff, having received the rent, had shut off tlie heat, and thereby forced the defendant to vacate February 6ih, and he had thereupon brought an action for damage, would he not have been entitled to recover at least $20 for the rent, which he had paid in advance for the four-fifths of a month that he did not occupy the premises? But tjie $25 was not paid. Then, why should the plaintiff recover in this action that which, !f the defendant had paid on the due day, he could recover back from the plaintiff' ? It may be suggested that this line of reasoning would lead to the con- clusion that the plaintiff was entitled to recover for one-fifth of a month's rent, $5. This point is not raised by the plaintiff. Her claim is that she was entitled to at least a full month's rent. If her claim was only for $5, the maxim "de minimis" would be applicable, in this court, to it. Judgment affirmed.** STEWART V. CHILDS CO. (Court of Errors and Appeals of New Jersey, 1914. S6 N. J. Law, 64S, 1)2 Atl. 392, L. R. A. 1915C, 649.) BLACK, J. The error complained of by the appellant in this case is the ruling of the trial court dii-ecting a verdict for the plaintiff. The suit was instituted in the Hudson circuit court to recover rent, due un- der a written lease for the premises No. 53 Newark avenue, Jersey City. The lease was dated the 26th day of December, 1901 ; the term 48ACC.: Jackson v. Paterno, 58 Misc. Rep. 201, 108 N. Y. Supp. 1073 (1908). See Delmar Investment Co. v. Blninentield, 118 Mo. App. 308, 94 S. W. S23 (190ni : Metropole Const. Co. v. Harti^an, S3 X. J. Law. 409, 85 Atl. 313 (1912); West Side Sav. Bank v. Newton, 76 N. Y. 616 (1879). 612 RIGHTS IN THE LAND OF ANOTHER (Part 2 commencing on the 1st day of February, 1902, ending on the 1st day of May, 1922, at the yearly rental of $3,000. The lease contained these covenants : By the tenant : "That the tenant shall pay the rent afore- said as the same shall fall due." By the landlord : "The basement shall be waterproof, and not less than 7 feet high. And he does hereby guar- antee that he will at all times during the said lease keep the said cel- lar waterproof at his own expense." The evidence of the defendant showed tliat there was a breach of the above covenant on the part of the landlord to keep the cellar waterproof during the term of the lease. The trial court held that the two covenants were independent. The breach of the covenant to keep the cellar waterproof was not a defense to an action for rent. The judge at the trial, therefore, directed a verdict for $4,350 in favor of the plaintiff. It is this ruling of the trial judge which the defendant alleges is erroneous in law, and seeks to have the judgment reversed. The defendant contends, to use the words of the brief, that the fail- ure of the landlord to do what is lawfully required of him, either by the terms of the lease or otherwise, which renders the demised premises unfit for the purpose for which they are leased, or which seriously in- terferes with the beneficial enjoyment thereof, in consequence of which the tenant abandons the premises, constitutes an eviction by construc- tion of law, and releases the tenant from the obligation under the lease to pay rent accruing thereafter, while the plaintiff contends that the failure by the landlord to perform his guaranty does not constitute an eviction in fact or constructively. There are numerous cases in this and other jurisdictions illustrating the principle of eviction, both actual and constructive, applied as a defense, to an action for the nonpayment of rent. Chief Justice Tarvis, in the case of Upton v. Townend and Greenless, 17 C. B. 30, 51, after speaking of a physical expulsion or a motion, in reference to a constructive eviction, said : "I think it may be taken to mean this : Not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoy- ment of the demised premises." This definition of a constructive eviction was cited with approval by pur Supreme Court in the cases of Meeker v. Spalsbury, 66 N. J. Law, 63, 48 Atl. 1026; Metropole Construcfion Co. v. Hartigan, 83 N. J. Law, 411, 85 Atl. 313. The record shows that the premises were fitted for and used as a Childs restaurant. Soon after the place was opened for business, there was water in the basement, which was taken care of, by the tenant, \yith a hand pump ; that at times it got two feet deep ; that the tenant moved out of the premises in May, 1904, and resumed again in Novem- ber, 1904. From 1905 to 1909 the premises were sublet. The tenant abandoned the premises in 1909. In October, 1910, there were three feet of water in the cellar. The presence of the water in the cellar Ch. C) BENTS 613 was wholly due to the fact that the walls and foundations were not waterproof. The cellar was necessary for the conduct of the business of the defendant. The cellar was used in part for storage, but mainly for the steam apparatus that perfects the coffee. There is no evidence that the landlord in any way was responsible for the water in the cellar, except that the walls and foundations were not waterproof, ac- cording to the guaranty. The facts in the record, on which the judge at the trial was called upon to make a ruling, tested by the rule above cited, fall short of making out either an actual or constructive evic- tion. We are unable to find in the record any evidence that shows that the landlord, or by his procurement, did anything with the intention of depriving the tenant of the enjoyment of the premises. A breach of his covenant was not a defense to the action. The ruling of the trial court in directing a verdict for the plaintiff was not error. No error appearing in the record, the judgment is affirmed.** UNIVERSITY CLUB OF CHICAGO v. DEAKIN. (Supreme Court of Illinois, 1914. 265 111. 257, 106 N. E. 790, L. R. A. 1915C, 854.) Cooke, J. Defendant in error, the University Club of Chicago, brought suit in the municipal court of Chicago against Earl H. Deakin, the plaintiff in error, to recover rent alleged to be due under a lease. A trial was had before the court without a jur}-- and resulted in a judg- ment for $2,007.66. Deakin prosecuted an appeal to the Appellate Court for the First District, where the judgment of the municipal court was affirmed. A writ of certiorari having been granted by this court, the record has been brought here for review. On March 31, 1909, defendant in error leased to plaintiff in error, for a term of one year, a storeroom in its building at the corner of Michigan avenue and Monroe street, in the city of Chicago, at a rental of $5,000 for the year. The lease provided that plaintiff in error should use the room for a jewelry and art shop and for no other pur- pose. It also contained the following clause, numbered 12 : ** Compare Skally v. Shute, 132 Mass. 367 (1S82). "While the breach of the landlord's agreement to make repairs or im- provements for the benefit of the tenant may not relieve the tenant in possession from his liability to pay rent, nevertheless where the failure to repair amounts to a constructive eviction, the tenant will be justified in leaving the premises and his liability for rent will thereupon terminate. * ♦ ♦ It has been said that constructive eviction results when the lessor renders, the enjoyment of the premises impossible, or diminishes such en- jovraent to a material degree." Jagsard, J., in Rea v. Algren, 104 Minn. 316, 317, 116 N. W. 580, 124 Am. St. Rep. 627 (190S). Ace: Bissell v. Llovd, 100 111. 214 (1881) ; Piper v. Fletcher, 115 Iowa, 203. 88 N. W. 380 (1901). Compare Lewis v. Chisholm, 68 Ga. 40 (1881) ; Lincoln Trust Co. v. Nathan, 175 Mo. 32. 74 S. W. 1007 (1903) ; Arbenz v. Exley, Watkins & Co., 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957 (1903). 614 RIGHTS IN THE LAND OF ANOTHER (Part 2 "Lessor hereby agrees during the term of this lease not to rent any other store in said University Club building to any tenant making a specialty of the sale of Japanese or Chinese goods or pearls." Shortly after this lease was made defendant in error leased to one Sandberg, for one year, a room in the University Club building, two doors from the corner at a rental of $2,500. The following pro- vision was inserted in the Sandberg lease : "It is further distinctly understood and agreed by and between the parties hereto tliat at no time during the term of this lease will the lessee herein use the demised premises for a collateral loan or pawn- shop or make a specialty therein of the sale of pearls." On May 1, 1909, being the first day of the term of the lease, plain- tiff in error took possession of the premises and thereafter paid the rent, in monthly installments, for May and June. During the latter part of June plaintiff in error, through his attorney, sought to obtain from defendant in error a cancellation of his lease on the ground that by leasfng a room in the University Club building to Sandberg and permitting him to display and sell pearls therein defendant in error had violated the provision of plaintiff in error's lease above quoted, and that for such violation plaintiff in error was entitled to terminate the lease. Defendant in error refused to cancel the lease, and on June 30th plaintiff in error vacated the premises, surrendered the keys, and refused to pay any further installments of rent. This suit was brought to enforce payment of subsequent installments of rent accruing under the lease for the time the premises remained unoccupied after June 30th. The evidence offered by plaintiff in error tended to show that Sandberg had made a specialty of the sale of pearls in connection with the conduct of his general jewelry business ever since he took pos- session of the room leased to him, and that plaintiff in error vacated the premises and surrendered possession because of the failure of defendant in error to enforce the twelfth clause of his lease. The evidence offered by defendant in error tended to prove that Sandberg had not made a specialty of tl^e sale of pearls, and that when plaintiff in error first made known his desire to assign or cancel his lease he gave as his only reason that his health was failing and that he had been advised by his physician to leave the city of Chicago. Propositions were submitted to the court by both, parties to be held as the law of the case. The court held, at the request of plain- tiff in error, that the lease sued upon was a bilateral contract, and up- on a breach of an essential covenant thereof by the lessor the lessee had a right to refuse further to be bound by its terms and to surren- der possession of the premises, and that a breach of the twelfth clause of the lease would be a good defense to an action for rent if the tenant surrendered possession of the premises within a reasonable time after discovery of the breach. The court refused to hold as law propositions submitted by defendant in error stating the converse of Ch. 6) RENTS C15 the propositions so held at the request of plaintiff in error. The court properly held that the lease in question was a bilateral contract. It was executed by both parties and contained covenants to be per- formed by each of them. The propositions so held with reference to the effect of a breach of the twelfth clause of the lease also correctly stated the law. By holding these propositions the court properly construed the twelfth clause as a vital provision of the lease and held that a breach of that provision by the lessor would entitle the lessee to rescind. Where there is a failure to comply with a particular pro- vision of a contract and there is no agreement that the breach of that term shall operate as a discharge, it is always a question for the courts to determine whether or not the default is in a matter which is vital to the contract. City of Belleville v. Citizens' Horse Railway Co., 152 111. 171, 38 N. E. 584, 26 L. R. A. 681 ; People v. Central Union Telephone Co., 232 111. 260, 83 N. E. 829. While there was no provision in this contract that plaintiff in error should have the option to terminate it if the terms of the twelfth clause were not observed, it is apparent that it was the intention of the parties to constitute this one of the vital provisions of the lease. It was con- cerning a matter in reference to which the parties had a perfect right to contract, and it will be presumed that plaintiff in error would not have entered into the contract if this clause had not been made a part of it. It is such an essential provision of the contract that a breach of it would warrant plaintiff in error in rescinding the con- tract and surrendering possession of the premises. The court was not asked to make any finding of fact, and there is nothing in the record to indicate that the judgment is based upon any finding of fact. Whether Sandberg had, in fact, made a specialty of the sale of pearls was one of the controverted questions in the case. One of the propositions submitted by defendant in error and held by the court stated that the conduct of a general jewelry business was not "making a specialty of the sale of pearls," within the meaning of the words quoted as they were used in the twelfth clause of plain- tiff in error's lease. This cannot be construed as a holding that Sand- berg did not, in fact, in addition to his conduct of a general jewelry business, make a specialty of the sale of pearls. The following proposition was submitted by defendant in error and held by the court as the law of the case : "That plaintiff performed all the obligations imposed upon it by its covenant that it would not rent any other store in its building to a tenant making a specialty of the sale of pearls, by incorporating in its lease to the second tenant that said second tenant should not make a specialty of the sale of pearls in the demised premises." From a consideration of all the propositions of law held and refused, it appears that the judgment of the trial court was reached from the application of the proposition just quoted to the facts in the case. The court erred in holding this proposition as the law. By 616 RIGHTS IN THE LAND OF ANOTHER (Part 2 covenanting with plaintiff in error not to rent any other store in this building, during the term of plaintiff in error's lease, to any tenant inaking a specialty of the sale of pearls, defendant in error assumed an obligation which could not be discharged by simply inserting in the contract with the second tenant a covenant that such tenant should not make a specialty of the sale of pearls. It was incumbent upon it to do more than to insert this provision in the second lease. By -the terms of its contract with plaintiff in error it agreed that no other portion of its premises should be leased to any one engaged in tlie_ prohibited line of business, and, if it failed to prevent any subse- quent tenant from engaging in the business of making a specialty of the sale of pearls, it did so at the risk of plaintiff in error terminating his lease and surrendering possession of the premises. This precise question has never been passed upon by this court, so far as we are able to ascertain. Defendant in error cites and relies upon Lucente v. Davis, 101 Md. 526, 61 Atl. 622, which sup- ports its theory. We cannot yield our assent to the doctrine there announced. Defendant in error cannot escape its obligation by the mere insertion of a clause in the lease with the second tenant pro- hibiting him from engaging in the line of business named. Plaintiff in error contracted for the exclusive right to engage in this particular business in that building. There was no privity between him and Sandberg, and he was powerless to enforce the provisions of the con- tract between defendant in error and Sandberg. It is idle to say that an action for damages for a breach of contract would afford him ample remedy. He contracted with defendant in error for the sole right to engage in this specialty in its building, and, if defendant in error saw fit to ignore that provision of the contract and suffer a breach of the same, plaintiff in error had the right to terminate his lease, surrender possession of the premises, and refuse to further perform on his part the provisions of the contract. For the errors indicated, the judgment of the Appellate Court and the judgment of the municipal court are reversed, and the cause is remanded to the municipal court for a. new trial. Reversed and remanded.*' 46 See Lucente v. Davis. 101 Md. .526, 61 Atl. 622 (1905). Compare Hall V. Ewin, 37 Ch. D. 74 (18S7), ante, p. 498. Ch. 6) BENTS 617 SECTION 3.— FAILURE TO OBTAIN POSSESSION NEALE V. MACKENZIE. (Exchequer Chamber, 1836. 1 Mees. & W. 747.) [On writ of error to the Court of Exchequer.] Lord Denman, C. J." This is an action of trespass for entering the plaintiff's dwelUng-house, and taking his goods. The declaration is dated the 25th of April, 1834. The defendant, on the 24th of May, 1834, pleaded that he, being seised of the dwell- ing-house and certain other premises, demised the same to the plain- tiff for one year from the 25th of June, 1833, at the rent of 70/., paya- ble quarterly; that tlie plaintiff accepted the lease, and, by virtue of the said demise, entered into and upon the said demised premises, and thereupon became and yet was possessed thereof for the said term so granted to him as aforesaid; and, until the 25th of December, 1833, and from thence until and at the time when &c., held and en- joyed the dwelling-house and premises by virtue of the said demise ; that, on the said 25th of December, 1833, 35/. of the rent was in arrear. wherefore the defendant entered and made a distress for the same. The plaintiff, on the 6th of December, 1834, replied that one Adam Charlton, before the demise in the plea mentioned, and from thence and still was in possession of eight acres of land of the said demised prem- ises, under and by virtue of a demise theretofore made by the defend- ant to him, which demise was then and from thence had been and still was in full force and undetermined, whereby the plaintiff did not and could not enter into the possession of, or hold or enjoy the said last- mentioned land, so being parcel of the demised premises in the plea mentioned ; and although he had been willing and desirous of entering, he had been kept out of possession by Adam Charlton by virtue of the demise to him, and the plaintiff had been prevented from holding and receiving the profits. The rejoinder alleges that the plaintiff, at the time of his entering on the demised premises, had notice that Adam Charlton was in posses- sion of the eight acres as tenant to the defendant, under a demise for a term then unexpired. To this rejoinder there is a special demurrer, for inconsistency with the plea and departure therefrom. The question to be determined is, whether the replication be. an an- swer to the plea. It has been argued that the impediment to the plaintiff's obtaining possession of the eight acres demised to Adam Charlton by the de- *• The statement of facts Is omitted. 618 RIGHTS IN THE LAND OF ANOTHER (Part 2 fendant previously to the demise made to the plaintiff, is in the na- ture of an eviction. On one side it is contended that it is analogous to an eviction by title paramount, the right of Adam Charlton being prior to the demise made by the lessor, and to the title acquired under that demise by the lessee ; and on the other side, that it is analogous to an eviction by the tortious act of the lessor, since the impediment arises from the wrongful act of the lessor himself in demising land which he had already parted with ; and is not to be distinguished in principle from the case of an entry upon the lessee under a demise made by the lessor to a stranger immediately after possession taken by the lessee. If the former of these views be adopted, the rent will be apportion- able, and the distress justified by the plea: — for it is clear that a person may distrain for apportionable rent ; and, if the defendant was entitled to distrain at all, the action of trespass cannot be maintained. If the latter view be correct," the defendant was not entitled to distrain at all, so long as the plaintiff was kept out of possession of any part by his wrongful act. But, we are of opinion that the impediment to the plaintiff's taking possession in this case, is not analogous to an eviction : — for it appears to us that no interest in the eight acres previously demised to Adam Charlton passed to the plaintiff by the demise subsequently made to him. The demise to Adam Charlton covered the whole time during which the rent distrained for accrued. But it has been supposed, that notwithstanding the demise to Adam Charlton, by which the defendant had parted with his right of posses- sion in the eight acres, the plaintiff by his subsequent lease took an in- tcresse termini in these eight acres for the period of his own lease, viz., one year, so' as to give him a right to a term for all that period, and to the possession on the determination of the prior lease by ef- flux of time, or by any other lawful mode, whenever and in whatever way it should be determined ; and that the existence of the prior de- mise being the impediment by which alone the plaintiff was prevented from obtaining possession under the demise to him, the case must be governed by the same principle as that of an eviction by title para- mount : and, if any interest in the eight acres did pass to the plain- tiff' under the demise to him, we might possibly be disposed to accede to this view of the case ; considering that eviction by title paramount means eviction by a title superior to the titles both of lessor and lessee ; against which neither is enabled to make a defence. It appears to us, however, upon authority which we do not feel our- selves at liberty to dispute, that the demise to the plaintiff* of the eight acres in question was wholly void. It has been already observed that the demise to Charlton, made pre- viously to the demise to the plaintiff, covers the whole of the plaintiff's term ; or at least the whole period for which the distress was made. Now, it is expressly laid down in Bacon's Abr., Leases, (N.,) (which is Ch. G) RENTS 619 to be considered as the language of Lord Chief Baron Gilbert,) as fol- lows: "If one make a lease to A. for ten years, and the same day make a parol lease to B. for ten years of the same lands, this second lease is absolutely void, and can never take effect either as a future interesse termini, or as a reversionary interest, though the first lessee should forfeit or otherwise determine his estate, or though the first lease were on condition, and the condition broken within ten years ; neither shall the lessor have the rent reserved upon such second lease, but such second lease is absolutely void, as if none such had been made. The reason whereof is, because the first lease being made for ten years, the lessor during that time had nothing to do with the posses- sion, or to contract with any other for it ; and the second lease being made the same day, and for no longer term than the first ten years, would not pass any interest as a future interesse termini certainly ; for, the first lessee had the whole interest during that time ; and his forfeiture or determination of it sooner, which was perfectly contingent and accidental, shall liever make good the second lease as a future in- teresse termini, when at the time of making thereof it was absolutely void for want of a power in the lessor to contract for it: and as a re- versionary interest it cannot be good for want of a deed." And a little further on, "But now, if s.uch second lease had been made for twenty years, then it had been good as a future interesse termini for the last ten years, and void for the first ten years for the reasons be- fore given, but for the last ten years it had been good ; because, when the first ten years were elapsed, the second lessee might then execute and reduce into possession by entry as well as if it had been at first made in possession ; for, it had been good for the whole twenty years if the first lease had not stood in the way, and tliat can stand in tlie way no longer than it continues, and therefore, by its termination, lets in the second lease ; but, as a grant of the reversion such second lease could not be good for want of a deed, for the reasons before given, neither could any attornment help it or let in the second lease, till the ^first ten years ran out by effusion of time." And afterwards it is said that if, after a lease for ten years, a second lease by deed poll were made for twenty years, it might take effect with attornment as a grant of the reversion, or, if no attornment could be had, "yet it would enure as a future interesse termini for the last ten years, and *\'ould be absolutely void for the first ten years, as much as if it had been made by parol." It has been remarked that the doctrine here laid down is derived from the argument of counsel in the case of Bracebridge v. Clowse, in Plowd. 421 : but it may be answered, that although the matter intro- duced into Bacon's Abridgment is first distinctly found in the argument set forth at length in Plowden, it now stands upon the authority of Lord Chief Baron Gilbert. Moreover, the point immediately under consideration in this case is confirmed by the opinion of. Gawdy, J., in Dove v. Willcot, Cro. Eliz. 160, who says, "If a lease be made for two 620 RIGHTS IN THE LAND OF ANOTHER (Part 2 years, and after the lessor let the land for four years, this is but a lease for two years, although the first lessee surrender, for he had no power to contract for the first two years at the beginning; but other- wise when the estate is determinable upon an uncertainty;" and cites Plowd. Comment. Smith & Stapleton's case, which is the case where the argument is fully stated — fo. 432. It may be remarked also that in Comyns's Digest, title Estates (G. 13,) it is said that a lease which cannot take effect in interest, except by possibility, if it be not an estoppel, shall be void; as, if tenant in fee leases by parol to A. for nine years, and the same day to B. for nine years, the lease to B. shall be void. For this he cites Plowden, 432, and though this statement be only part of the language of the apprentice who argued the case of Smith v. Stapleton, Chief Baron Comyns, by introducing it in this general way, must be considered as adopting it in some degree at least as authority: in what is said by Gawdy, as referred to in Cro. Eliz. 160, there is afterwards added Smith V. Stapleton, Plow. 426, though it is not clear whether this be his language or that of the reporter. The same doctrine, as far as regards a second parol lease for years after a former lease for years, appears to have been treated as clear law in various books ; though the effect of such a lease made after a prior lease for life, has been the subject of discussion. See Bro. Abr., Lease, pi. 35, 48 ; Plowden, 521, note of the reporter. Welchden v. Elkington, Plowd. 521 ; Plowden's Quseries, 122 and 161 ; Sir Hugh Cholmon- deley's case, Moore, 344, in tlie argument of Cook, Attorney-General. So, in Watt v. Maydewell, Hutton, 105 — "If a man make a lease for twenty-one years and after makes a lease for twenty-one years by parol, that is merely void; but if the second lease had been by deed, and he had procured the former lessee to attorn, he shall have the reversion." Edward v. Staler, Plardr. 345, arguendo. So Shep- pard's Touchst. 275 b : "If the second lease be for the same or a less time, as, if the first lease be for twenty years, and the second lease be for twenty or for ten years, to begin at the same time, these second leases are for the most part void ;" but if the second lease be by fine, deed indented or poll, it may pass the reversion with attornment when attornment is necessary, and without if not necessary. But, if the second lease be by word of mouth it is otherwise :" "And if the second lease be by fine, or deed indented, then it may work by way of estoppel both against the lessor and the lessee; so that, if the first lease happen by any means, as, by surrender or otherwise, to determine before it be run out, then the second lessee shall have it." Upon these authorities, therefore, we feel ourselves obliged to hold that the lease to the plaintiff was utterly void, so far as regarded the €ight acres demised to Charlton. If that be so, we are unable to distinguish the case in principle from that of Gardiner v. Williamson, 2 Barn. & Adolph. 336, where the tithes of a parish, together with a messuage used as a homestead for Ch. 6) BENTS 621 collecting the tithes, having been demised by parol at a rent of 200/. per annum and a distress made for arrears, the Court of King's Bench held that an action of trespass would lie, because the demise of the tithes, being by parol, was void. There was no valid demise, it was said, of the whole subject matter, nor any distinct rent reserved for that part of it upon which there might have been a legal distress. That case was the stronger, because it was contended that the whole rent must be taken to be issuable out of the corporeal hereditament, upon which alone a distress could be made. And accordingly, in a case of a lease by indenture, Dyer is reported to have held, (Moore, 50,) that, if lands at common law and copyhold lands are leased by indenture rendering rent, all the rent is issuing out of the lands at common law ; for the lessor had no power to make such a lease of copyhold, where- fore as to this the lease is utterly void; but it is added, that if a man lets lands, parcel of which he is seised of by disseisin, then the rent is issuing out of all the land, and by the entry of the disseisee the rent shall be apportioned, because the lease of this was not void but voida- ble. In this last case the tenant took an interest, and enjoyed all the lands demised till the time of his being evicted from a parcel thereof by the disseisee, and was therefore liable in respect of such interest and enjoyment to a portion of the rent. In the case before the court, which is not the case of a demise by indenture, the rent is reserved in re- spect of all the land professed to be demised, and to be issuing out of the whole and every part thereof ; and as the plaintiff, as to a portion of the land comprised in the demise, (which might be great or small, as far as the principle is concerned,) has taken no interest, and had no enjoyment, and is not bound by any estoppel, we are of opinion that the distress made by the defendant is not justifiable, either in respect to the whole rent reserved or any portion of it. It may further be observed, that, even supposing the plaintiff to have taken an interesse termini in the eight acres, capable of being executed by entry in case the demise to Charlton should happen to be forfeited or surrendered, yet, as that demise to Charlton was in force at the commencement of the plaintiff's tenancy, and continued during the whole period, in respect of which the distress has been made, no demise of those eight acres to the plaintiff ever took effect ; and, consequently, no right to any rent in respect of those eight acres has ever come into existence. And we are not aware of any case where an entire rent reserved has been held to be apportionable, in which the tenant has not been at some period subject to the entire rent by virtue of the demise. Here, the right of apportionment is not founded upon any eviction, or other matter occurring subsequently to the demise, but up- on an original defect in the demise itself by which the entire rent was reserved. In this respect it is strictly analogous to Gardiner v. Wil- liamson. In the case of Tomlinson v. Day, 5 Moore, 558, which has been refer- red to, the landlord did not claim an apportioned part of an entire rent, 622 RIGHTS IN THE LAND OF ANOTHER (Part 2 either by avowry for a distress or by action for the rent. It was an action for use and occupation, in which he was allowed to make use of an agreement for a lease, (according to the express provision of the statute 11 Geo. 2, c. 19, s. 14,) "as evidence of the quantum of damages to be recovered;" and, as the defendant had been interrupted in the full enjoyment of what had been agreed for, the plaintiff was held "entitled to recover a reasonable compensation for the property en- joyed by the defendant as an equivalent for rent." The interruption to the defendant's right of exclusive sporting was indeed compared by Lord Chief Justice Dallas and Mr. Justice Richardson to an eviction ; but, if it was an eviction, it was clearly an eviction by title paramount. The agreement for exclusive sporting was not void on account of the landlord having made a prior agreement to let it to some other per- son ; but it was defeated, because other persons interfered who had a right superior to that of the landlord. Supposing the circumstances, therefore, to amount to an eviction, it would be a case of apportion- ment according to the acknowledged rule ; and would not assist the argument in favour of the defendant. Upon the whole, therefore, we are of opinion that the judgment of the Court of Exchequer ought to be reversed. Judgment reversed. LAWRENCE v. FRENCH. (Supreme Court of New York, 1841. 25 Wend. 443.) This was an action of replevin, tried at the Albany circuit in June, 1839, before the Hon. John P. Cushman, one of the circuit judges. The plaintiff, on the 12th December, 1835, took a lease of the de- fendant of a building in the city of Albany called the Exchange Coffee House, for the term of one year from the first day of May, 1836, at an annual rent of $1,050, payable quarterly. He had, since May, 1834, been in possession of the whole of the premises demised, except one room in the corner of the building, which was occupied by one Candy. On the first day of May, 1836, Candy, under a prior lease from the defendant, at an annual rent of $400, continued in the occupation of the room; and the plaintiff continued to occupy all the residue of the building, until 17th January, 1837; when the de- fendant issued a distress warrant, claiming $487.50 to be. due to him from the plaintiff from three quarters' rent, estimating the rent by deducting $400 from the annual rent reserved in the lease to the plaintiff; thus charging the plaintiff with an annual rent of only $650, for three-fourths of which sum the warrant was issued. The proper- ty of the plaintiff was distrained to the amount of $487.50; and the plaintiff sued out a writ of replevin. It was conceded by the plain- tiff that $650 per annum was a fair price for the use of that portion of the premises occupied by him ; but he insisted that the defendant. Ch. 6) KENTS G23 not having put him into possession of the whole of the demised prem- ises, had no authority by law to distrain for the rent reserved, or any part thereof; and so requested the judge to charge the jury. The judge refused so to charge; and on the contrary instructed the jury that the defendant had a lawful right to make tlie distress for the sum demanded, and was entitled to their verdict. The jury accord- ingly found a verdict for the defendant, with six cents damages and six cents costs; found the rent to be $487.50, and the value of the property at the same sum ; and assessed the damages of the defendant at $10, for the detention of the property. The plaintiff having ex- cepted to the charge of the judge, moved for a new trial. Nelson, C. J.*^ It is a familiar rule of law, that if the landlord enter wrongfully upon, or prevent the tenant from the enjoyment of, a part of the demised premises, it suspends the whole rent, until possession is restored. His title is founded upon this, that the land leased is enjoyed by the tenant during the term ; if, therefore, he be deprived of it, the obligation to pay ceases. The rule is otherwise wliere a part is recovered by title paramount to the lessor's ; for, in that case he is not so far considered in fault, as that it should deprive him of a return for the part remaining. The law, therefore, directs an apportionment of the rent. 6 Bacon's Abr. 44, tit. Rent, L.; Gilbert on Rents, 173; Comyn's Land. & Ten. 214-219; Bradby on Dist. 24—3. But as between lessor and lessee, an eviction from part by the former, or any person claiming through him, will operate a suspension of the whole. Comyn's Land. & Ten. 524; 2 Saund. PI. & Ev. 630. There are some cases illustrating this principle to which I will refer. * * * The case of Ludwell v. Newman, 6 T. R. 458, in principle, comes near the present one. It was an action on a covenant of quiet en- joyment in a lease. The breach was, that the plaintiff could not ob- tain the possession; that he applied to the tenant to attorn, who re- fused ; an action of ejectment was brought, and defeated by a previous lease of the defendant, given the month before ; by reason of all which the plaintiff was prevented from enjoying the term, &c. The second count was like the first, except it omitted the application to attorn, and proceedings in ejectment. Defective pleas were pu^ in to each count, to which there were, demurrers. One objection taken to the pleas was this: they stated the plaintiff' might lawfully have en- joyed during the first half year; when it appeared by the declaration, that he could not have entered at any time on account of the prior lease. The court held, that the defendant's covenant of quiet enjoy- ment meant a legal entry and enjoyment, without the permission of any other person; which could not take place on account of the prior subsisting lease granted to R. See Piatt on Cov. 327. The case de- cides that the lessee is not bound to test his right of entry by suit, as *'' Part of the opinion is omitted. 624 RIGHTS IN THE LAND OF ANOTHER (Part 2 the only legal evidence of a breach of the covenant; nor need he com- mit a trespass by an actual entry. Piatt on Cov. 327; Hob. 12; 2 Bacon, 66, B. In Tomlinson v. Day, 2 Brod. & Bing. 680, the defendant took a farm under an agreement, by which the plaintiff stipulated that he should enjoy the exclusive right of sporting over the manor In which the farm lay, and should occupy the glebe land of the parish; rent i450. The agreement, though acknowledged and recognized by the defendant, had never been signed by him; but he occupied the farm for some time. The chief inducement in taking it, was the privilege of sporting ; but it turned out the plaintiff had no power to grant the privilege, and the defendant was in fact warned off by the occupiers of the manor. Neither did he get possession of the glebe. In an ac- tion for use and occupation, the court held that an eviction of a part of the subject matter of the demise had been proved, and allowed a recovery for no more than the annual value of the farm. Though the rule for a time seems to have been inflexible, that in these cases the whole rent should be suspended till possession was restored, the last case referred to shows, that if the tenant occupies part, he may be charged for such occupation upon a quantum meruit. * * * The result of all these cases, I think, shows that the defendant here has deprived himself of the remedy by distress. The eviction from part of the demised premises, by means of his prior lease, defeated the contract ; and though the tenant is still liable by reason of his occu- pation of the residue, the holding is not strictly under the original agreement, but an implied obligation arises to pay the worth of them at the time specified therein. No fixed rent is due, and therefore distress is not the appropriate remedy. It would be unjust to allow it here, as the party himself has put it out of the power of the tenant, to tender the amount. His rights will be sufficiently protected by allowing the usual redress, where no specific rent has been agreed on. 5 Barn. & Aid. 322. New trial granted,. . FRIEND v. OIL WELL SUPPLY CO. (Supreme Court of Pennsylvania, 1897. 179 Pa. 290, 36 Atl. 219.) Sti;rre;tt, C. J.'** There is practically no controversy as to any of the material facts in this case. On March 12, 1892, by written agreement, plaintiff leased to defendant company, for one year from July 1, 1892, "all that portion of Eagle Rolling Mill" described there- in, for the yearly rent of $6,000, payable monthly, etc. Prior to the date of said lease, the rolling mill had been occupied by the Oliver Iron & Steel Company under lease from plaintiff which expired on *8 Part of the opinion is omitted. Ch. 6) RENTS 625 July 1, 1892. By and with the consent of their lessor, that company had sublet part of said property to the defendant company, and it had entered upon the demised premises, and was in possession there- of prior to March 12, 1892, and continued in possession until July 1, 1893, the expiration of the first-mentioned lease. This suit was brought to recover the one year's rent due under that lease. The de- fense was eviction by the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company under paramount title, etc. * * * The railroad bridge or viaduct referred to by the court below was erected prior to 1865, and, having been destroyed by fire, was rebuilt in 1885. From the date of its original construction until the present time it has stood on the same abutments, etc. The right of way, for that part of the railroad, etc., was acquired by condemnation proceed- ings in the district court of Allegheny county at No. 115, July term, 1855, in connection with the release of James Wood, then owner of the Eagle Rolling Mill property, executed December 2, 1864, and duly recorded, etc. For the consideration therein set forth, said Wood, for himself, his heirs, executors, administrators, and assigns, granted and released unto the then owners of the railroad, their successors and assigns, forever, the right of way for their railroad tracks, bridg- es, and abutments, as the same are now located through, over, and upon a certain tract of ground, and over a certain rolling mill, situate on the south side of the Monongahela river, at or near Saw Mill run, "being all the rights, liberties, and privileges secured by the Pittsburg & Steubenville Railroad Company by virtue of divers proceedings had in the district court of Allegheny county at No. 115, July term, 1855, the said record and proceedings being taken and made as part of this release." He also released them "from all claims for damages by reason of the location of the said railroad and bridge of the said companies, through, over, or upon the tract aforesaid." The perpetual servitude thus imposed upon a portion of the rolling •mill property, with all its incidental rights of maintenance, repair, reconstruction, etc., pertaining thereto, has been continuous, open, and manifest to all who had anything to do with the property; and its effect on the servient property must have been contemplated by both lessor and lessee when the lease in question was executed. With this bridge or viaduct, constituting a section of the railroad there upon the ground, the defendant went into possession as the subten- ant of the Oliver Iron & Steel Company, and afterwards took the new lease from the plaintiff. It cannot be doubted that the defendant was fully aware of the open and visible servitude to which the demised property then was, and would continue to be, subject, while in its possession as lessee. It is well settled that, where a continuous and apparent easement or servitude is imposed upon land, a purchaser of the servient property, in the absence of an express reservation or agreement on the subject, takes the property subject to the easement Big. Rights — iO 626 RIGHTS IN THE LAND OF ANOTHER (Part 3 or servitude. Cannon v. Boyd, 7Z Pa. 179; Geible v. Smith, 146 Pa. 276, .23 Atl. 437, 28 Am. St. Rep. 796; Ormsby v. Pinkerton, 159 Pa. 458, 28 Atl. 30Q. This principle is not restricted to cases between the owner of the servient and the owner of the dominant property. Eby V. Elder, 122 Pa. 342, 15 Atl. 423. In that case the defense in- terposed to a purchase-money mortgage was that the land purchased was incumbered by a private right of way, and it was held that "if, when land is conveyed, it is openly and plainly subject to an easement of way, the e^xistence of the easement will be no defense to the pay- ment of the purchase money, as a breach of the covenant against in- cumbrances implied from the words 'grant, bargain and sell.' " * * * Other authorities to the same effect might be cited, but those above referred to are sufficient. The soundness of the underlying principle therein recognized can- not be questioned, nor is there any valid reason why the same prin- ciple should not be applied in cases between lessor and lessee, where it is clearly shown that the latter was fully aware of the fact that the demised premises, or part thereof, was subject to an open, notorious, and permanent servitude or easement, such as the railway viaduct, etc., in this case. In such cases, unless something to the contrary ap- pears, it is fair to assume that the parties contracted with reference to the then existing condition of the premises, and that the lease was made and accepted subject to the railway company's right of way over some of the buildings composing the rolling-mill plant, together with all the incidental rights pertaining to such an easement. It so happened that the railway company found it necessary, during a few months of defendant's term, to exercise some of those incidental rights in repairing and practically reconstructing its viaduct. In consequence of this, the defendant was more or less inconvenienced and deprived of the beneficial enjoyment of a part of the premises during that time ; but that result was neither the fault of the pUintiff nor a mat- ter over which he had any control. If an unreasonable time was con- ' sumed in the work of reconstruction, or if anything to defendant's injury was done by the railway company, in excess of the authority acquired by the condemnation proceedings and release aforesaid, de- fendant company's remedy, if any it has, would be against the wrong- doer, and not against the plaintiff. It is unnecessary to consider the plaintiff's further answer to the defense against the payment of rent, viz. "that there was no eviction in this case." It follows, from what has been said, that there was no error in directing the jury to find for the plaintiff the full amount of his claim. The authorities mainly relied on by the learned counsel for defendant are inapplicable to the undisputed facts of this case. Judgment affirmed.*® *» See Duncan v. Granas. 166 Cal. 41, 134 Pac. 979 (1913) ; Tunis v. Gran- dy, 22 Grat. (Va.) 109 (1872). Ch. 6) BENTS 627 MOORE V. MANSFIELD et al. (Supreme Judicial Court of Massachusetts, 1902. 182 Mass. 302, 65 N. E. 398, 94 Am. St. Rep. 657.) Holmes, C. J. This is a bill to reach and apply the proceeds of a judgment recovered by the defendant to the payment of a debt al- leged to be due to the plaintiff for use and occupation. The bill was dismissed by the Chief Justice of the Superior Court, and the facts found by him were reported under the statute, substantially as fol- lows : The defendant hired of the plaintiff an entire house by a parol lease, and took possession. At the time, the attic was locked and contained goods belonging to the plaintiff. The defendant did not find this out at first, but when he did he asked for the key and the use of the attic but never got it while he occupied the house. The judge found that there was a partial eviction and dismissed the bill, seem- ingly on this ground and the further one that the equitable process given by Rev. Laws, c. 159, § 3, cl. 7, to reach and apply certain prop- erty "in payment of a debt," would not be available upon a claim for an unascertained amount for use and occupation. The question is whether the facts found show the decree to have been wrong. We say nothing about the latter ground inasmuch as we are of opin- ion that the former is good in substance, so far as appears from any facts stated in the report. The plaintiff' contends that there was no eviction because the defendant never had possession of the room. Townsend v. Wharf Co., 117 Mass. 501 ; Vanderpool v. Smith, 1 Daly (N. Y.) 311. If the question were material, it would raise the diffi- culty that while the defendant had possession of the whole land and of the room on the outside considered as an enclosed cube, yet if the analogy of the cases on larceny by carriers breaking bulk were followed, he w^ould not have possession of the contents of the room; and, by the same argument, perhaps not of the inside of the room itself. Y. B. 13 Ed. IV, 9, pi. 5 ; Fairfax, J., in Keilway, 160, pi. 2 ; 8 Edw. II, 275 ; s. c. Fitz. Abr. "Detinue," pi. 59 ; 2 Bish. Cr. Law (8th Ed.) §§ 834, 860. The true reason appears from the old books. Perhaps possession by the tenant would be presumed until the landlord's refusal gave an expressly adverse character to the landlord's conduct, inasmuch as the tenant lawfully might have unlocked the door. But it does not matter whether the refusal to give up the room was a failure to per- form the whole contract from the beginning, or a partial eviction aft- er performance at the outset. The difference would be material onfy if there were a question of waiver involved. But there is no such question in the case. The tenant entered not knowing that the room was locked, and no fact later than the entry is recited which implied a waiver. All that appears is that the failure to open the room con- tinued during the tenancy, and that the tenant insisted upon his 628 RIGHTS IN THE LAND OF ANOTHER (Part 2 rights. There being no waiver the plaintiff could not recover on the express contract because he had not furnished the stipulated consider- ation, and he could not recover upon an implied one for the benefit actually received because the failure to furnish the whole was due to his own willful fault. Leishman v. White, 1 xA.llen, 489; Royce v. Guggenheim, 106 Mass. 201, 202, 8 Am. Rep. 322; Smith v. Mc- Enany, 170 Mass. 26, 48 N. E. 781, 64 Am. St. Rep. 272. It may be that in this class of cases the old common law is adhered to a little more rigidly than in some others. See Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. The absence of a written lease makes no difference. Colbum V. Morrill, 117 Mass. 262, 264, 19 Am. Rep. 415. The distinction taken by Tayl. Landl. & T. (8th Ed.) § 379, between eviction and refusal to put the tenant in possession of some privilege which he ought to have enjoyed, very likely is sound with regard to the cases which the author cited and had in mind, that is to say, with regard to cases where the tenant entered and occupied the demised premises, and there was a subsequent failure to perform a covenant for an improvement or one affecting the enjoyment of the premises. Eth- eridge v. Osborn, 12 Wend. (N. Y.) 529 ; News Co. v. Brown, 103 111. 317, 320. See,, also, Allen v. Pell, 4 Wend. (N. Y.) 505. And so it might be where there was a known failure at the outset to give posses- sion of all the stipulated land and the entry of the tenant showed a waiv- er*of compliance with the strict terms of the lease. Decree affirmed.^" SMITH v. BARBER. (Supreme Court of New. York, Appellate Division, First Department, 1906. 112 App. Div. 187, 98 N. Y. Supp. 365.) Ingraham, J.°^ The action was brought to recover the rent re- served by a lease, whereby the plaintiff leased certain premises to the defendant, together with the costs of certain improvements on the premises, which was, under the lease, to be paid by the tenant. On the trial the court excluded evidence oft'ered by the defendant to sustain the defense set up in the answer, and directed a verdict for the plain- tiff. Exceptions were taken to these rulings and they were ordered to be heard here in the first instance. The lease is annexed to the com- • plaint. By it the plaintiff leased to the defendant the office on the first floor fronting on Wall and Nevv streets, and a portion of the second floor fronting on Wall and New streets, in a building in course of erection at the comer of Wall and New streets in the city of New York, to be used as offices for the business of the Equitable Trust 5 Ace: McClurg v. Price, 59 Pa. 420, 98 Am. Dec. 356 (1869). See SulU- van V. Schmitt, 93 App. Div. 4G9, 87 N. Y. Supp. 714 (1904) ; Penny v. Fell- ner, 6 Okl. 386, 50 Pac. 123 (1894). 61 Part of the opinion is omitted. Ch. 6) EbNTS 629 Company, and for no other purpose, "beginning February 1, 1900, and expiring May 1, 1910, at a yearly rental of thirty-seven thousand five hundred (37,500) dollars," payable in equal monthly payments in advance. The lease provided: "No compensation or claim shall be made by the tenant by reason of inconvenience or annoyance arising from the necessity of repairing any portion of the building, however the necessity may occur. * * * And it is further understood and agreed that the landlord will fit up the herein demised premises in a proper and suitable manner for the transaction of a banking and trust company business, the cost of which in excess of the sum of four thousand (4,000) dollars is to be paid by the tenant. * * * " This lease was dated September 27, 1899, and the term was to com- mence on February 1, 1900. The action was brought to recover the rent from February 1, 1900, to September 1, 1900, and also for the cost of fitting up the demised premises in excess of the sum of $4,000, to wit, $11,068.73. * * * On the trial the plaintiff was allowed to amend his complaint, and subsequently the defendant was allowed to amend * * * para- graph 12 of his answer so that the same read : "That on the first day of February, 1900, and for a long time there- after, plaintiff was in possession of said premises by his tenants, agents, servants, contractors, and employes, engaged in the construc- tion, completion, and fitting up of the same. That said tenants in pos- session of said premises held the same under a lease made by the plaintifif to them prior to the making of the lease annexed to the com- plaint herein, and said tenants were holding such possession under title paramount to the defendant herein, and the plaintiff thereby ex- cluded the defendant from possession of a portion of the demised premises." On the trial the defendant admitted that the rent sued for had been demanded and not paid. The following facts were then stipulated by counsel : "At the time the parties to this action entered into the lease, a por- tion of the first floor of the premises covered by the lease was occu- pied by Seligsberg & Company. Said lease had been made by the plaintiff to Sehgsberg & Company on or about May 1, 1899, for a term expiring May 1, 1900. The lease was an oral lease. The plaintiff was notified that the defendant would require Seligsberg & Company to vacate the premises on the 1st of February, 1900. The occupancy of the premises by Seligsberg & Company delayed the completion of the improvements in the premises, and some of the work could not be finished until they vacated on that date. The improvements made by the plaintiff in fitting up the premises pursuant to the lease herein were not completed on February 1, 1900, and not until about the 1st of June, 1900, when they were completed." 630 RIGHTS IN THE LAND OF ANOTHER (Part 2 The plaintiff, while conceding these facts, objected to their com- petency under the answer, and this objection was sustained, and de- fendant excepted. * * * The real question presented on this appeal is whether the defendant was entitled to prove as a defense to the action that the improvements upon the premises were not completed. prior to February 1, 1900, and that from February to May, 1900, other tenants were in possession of the premises leased to the defendant under an oral lease made by the plaintiff prior to the execution of the lease in question for one year from May 1, 1899. This case was before this court upon a for- mer appeal from an order setting aside a verdict in favor of the plain- tiff, and granting a new trial. 96 App. Div. 236, 89 N. Y. Supp. 317. Although there was some discussion in the opinion as to the rights of the plaintiff and the defendant under this lease, it does not seem that that question was decided. The court held that certain evi- dence which was admitted had no bearing upon the question of wheth- er the defendant on February 1, 1900, waived his right to rescind the contract, or thereafter acted with reference to the premises so that the jury could have inferred, by assuming dominion over the premises, he elected to continue in possession under the lease; that, in view of the course which the trial took, the evidence which was improperly admitted, and the erroneous theory upon which the case was submit- ted to the jury, the conclusion was that the trial judge was justified in setting aside the verdict, and granting a new trial, and that order was therefore affirmed. The court, however, in discussing the question as to the liability of the defendant for this rent, said: "The acceptance of the lease, therefore, under which the defendant obtained the right to the use of the entire premises from the first of February, did not render him Hable for the rent, where a substantial portion thereof was held by another tenant under a valid lease from the plaintiff, and where, as here, the defendant never went into actual occupancy of any portion of the premises. Having notified the plain- tiff of the obligation resting upon him of getting Seligsberg & Com- pany out, and no action having been taken, so far as appears, by the plaintiff to that end, the defendant, had he so elected, would have had the legal right on the first of February t6 notify the plaintiff' that he regarded the lease as terminated and canceled. Upon that date, when the term was to begin, the defendant was legally put to his election, and it was entirely competent for the plaintiff to show, as was at- tempted to be shown, that not only had the defendant not elected to .terminate the lease, but that his acts were such that they are to be legally construed into a waiver of the condition precedent to his lia- bility for rent, namely, his obtaining complete possession." The court then says : "Where a person enters into possession of a portion of the premises, he is liable for the rent of the whole ; and if he has not full possession he cannot refuse to pay the rent, but his Ch. 6) BENTS 631 remedy for his damages arising from the failure to receive full pos- session is either by way of counterclaim to the original action for rent, or by way of an independent action." The observation here would seem to indicate that it was the opinion of the court that tlie defendant would be liable for rent for the period, unless he proved that he elected to terminate the lease. The law in this state in relation to the obligation of the tenant to pay rent after the beginning of the term does not depend upon the possession by the tenant of the demised premises. If the tenant acquire a perfect title to the premises by virtue of the lease, which would include the right of possession, then he is bound under his covenant to pay rent, regardless of the question whether or not he actually obtained pos- session of the premises. Gardner v. Keteltas, 3 Hill, 330, 38 Am. Dec. 637, where Nelson, Chief Justice, says: "All that either of the covenants mentioned exact of the lessor is that he shall have such a title to the premises at the time as shall en- able him to give a free, unincumbered lease for the term demised. There is no warranty, express or implied, against the acts of strangers. Hence, if the lessee- be ousted by one who has no title, the law leaves him to his remedy against the wrongdoer, and will not judge that the lessor covenanted against the wrongful acts of strangers, unless the covenant be full and express to the purpose. * * * j admit the covenant of quiet enjoyment means to insure the lessee a legal right to enter and enjoy the premises, and if he is prevented from entering into the possession by a person already in under a paramount title the action may be sustained. That was decided in Ludwell v, Newman, 6 T. R. 458. In such a case no ouster or expulsion is necessary on which to predicate a suit, as the lessee is not bound to enter and com- mit a trespass." * * * These cases all recognize the rule that where a third party is in pos- session of the demised premises, claiming possession under a title paramount to the title of the lessor, and the tenant is thereby exclud- ed from possession of the premises, there can be no recovery for rent under the covenant in the lease. The amendment of the defendant's answer, whereby the defendant as a defense alleged that the tenants in possession of the premises held the same under a lease made by the plaintiff to them prior to the making of the lease to the defendant, and that the said tenants were holding such possession under a title para- mount to the defendant herein, and plaintiff thereby excluded the de- fendant from a portion of the premises, was a good answer for a de- mand for rent of the premises during the period that the defendant was excluded from the premises. It was, therefore, competent for the defendant tq prove under this answer that at the time the term commenced the premises were occupied by Seligsberg & Co. under a lease from the plaintiff which extended to the 1st of May, three months after the defendant's term commenced, and that the defend- ant never occupied these leased premises. (532 RIGHTS IN THE LAND OF ANOTHER (Part 2 I think, therefore, that the exceptions should be sustained, and a new trial ordered, with costs to the defendant to abide the event.**^ O'BRiiiN, P. ]., and McLaughlin, Clarke^, and Houghton, JJ., concurred. SECTION 4.— WHAT PAYMENTS ARE RENTS Y. B. 12 H. 8. MICH. [1520] pi. 5. Note that it was agreed: If one makes a lease of goods and land for a year and the land is recovered against him but he keeps the goods until the end of the term the rent shall be apportioned. EMMOTT V. COLE. (Court of Queen's Bench, 1591. Cro. Eliz. 255.) 88 Debt upon an obligation made ult' March, 29 Eliz. The condition was, to perform all covenants, conditions, articles, agreements and clauses in an indenture bearing the same date. The defendant pleads the indenture, which was a lease for years of certain lands and stock of cattle 'to the defendant and to Tolfry, rendering twenty pounds rent per annum, and all the covenants and other clauses in it were concerning the land; and pleads, that long time before the lessor had any thing in it, one C. was seised of the land in fee, and ac- knowledged a statute to J. S. and that after the lease made, viz. 29 May, 29 Eliz. the conusee sued execution, and all the land was deliv- ered in execution (so they were thereof evicted) ; and that after the date of the indenture, until execution sued, he and Tolfi-y had per- formed all the covenants, conditions, agreements and clauses in the said indenture. Upon this plea it was demurred in law. ♦ * * The matter in law was, if a lease be made of lands and goods ren- dering rent, if the land be evicted, whether all the rent shall be gone, or there shall be an apportionment in regard of the goods ; and so the non-payment of the portion for the rent be a forfeiture of the bond. And he said there shall be an apportionment, 12 Hen. 8, pi. 62 Compare United States Restaurant & Realty Co. v. Schulte, 67 Misc. Rep. 633, 124 N. Y. Supp. 835 (1910). A. leased premises to B., occupation to begin at a specified date. On that date a former sublessee, whose lease had expired, was in J)ossession of part of the demised premises and continued to occupy this part. Held, in an action by A. against B. for the rent reserved this fact is no defense to A.'3 action. Ward v. Edesheimer, 17 N. Y. Supp. 173 (1892). See Little v. Hudg- ins, 117 Ark. 272, 174 S. W. 520 (1913). 6 8 Part of the opinion is omitted. Ch. 6) BENTS 633 11; 35 Hen. 8, Dyer, 56, if the goods be evicted there shall be an apportionment; and so e converso. Curia contra in omnibus. * * * For the matter in law, there shall be no apportionment, for the rent issueth out of the land, and follows it; and so Wray, Chief Justice, said it hath been heretofore adjudged. And it was here adjudged that the plaintiff shall be barred."* NEWMAN V. ANDERTON. (Court of Common Bench, 1806. 2 Bos. & P. [N. R.] 224.) Replevin. The plaintiff in his declaration complained that the de- fendant took certain goods and chattels of the plaintiff in a bed-room and shop, and unjustly detained them, against sureties and pledges. The defendant avowed the taking in the bed-room, because "'the plain- tiff, for the space of 16 weeks and more next before, and ending, &c enjoyed the said bed-room, in which, &c. together with a certain oth- er room and apartment, also being in and part and parcel of the said dwelling-house in the declaration mentioned, with certain furniture and effects with which the said bed-room in which, &c. and the said other room and apartment, with the appurtenants, were furnished un- der a demise thereof theretofore made by the defendant to the plaintiff, at the weekly rent of 13s. of lawful money of Great Britain, payable weekly on the Thursday in every week, and during all that time held the same of the defendant by virtue of the said demise, as his ten- ant thereof." And because £12. were in arrear, avowed the taking and prayed a return. The plaintiff took judgment for so much as related to the shop ; and as to the avowry, pleaded that he did not hold tlie said bed-room to- gether with the said other room and apartment in the said declaration mentioned, and certain furniture and effects with which the said other room and apartment were furnished under a demise thereof theretofore made by the defendant to the plaintiff, at the weekly rent of 13s. pay- able on the Thursday in eveiy week in manner and form, &c. On this plea issue was joined. At the trial before Sir James Mansfield, Ch. J., at the Westminster sittings after last Hilary term, a verdict was found for the defendant. [Rule nisi to set aside the verdict.] Sir James Mansfield, C. J. Cases like this must have very often occurred, and yet it does not appear that the right of distress has ever before been called in question. The difficulty of the case consists in this, that in London and other towns it scarcely ever happens that any house is let without some goods being let with it, and yet one 5* See Le Taverner's Case, Dyer, 56a (1543); Read v. Lawnse, Dyer, 212b (1562). 634 RIGHTS IN THE LAND OF ANOTHER (Part 2 rent is always reserved. In the case of a brew-house it is common to let the utensils with it, and yet I never heard it doubted that the landlord might destrain for rent. Whether the goods be worth five shillings or five hundred pounds the case must be the same. We will inquire into the matter, and give our opinion in a few days. Cur. adv. vult. On this day Sir James Mansfield, C. J., said: Upon this question no authorities have been cited either on the one side or the other. But it must occur constantly that the value of de- mised premises is increased by the goods upon the premises, and yet the rent reserved still continues to issue out of the house or land, and not out of the goods ; for rent cannot issue out of goods. In Spen- cer's case, 5 Co. 17, it is resolved that if a man lease sheep or other stock of cattle, or any other personal goods, for any time, aod the lessee covenants for him and his assigns at the end of the time to de- liver tlie like cattle or goods as good as the things letten were, or such price for them, and the lessee assigns the sheep over, this cov- enant shall not bind the assignee; for it is but a personal contract; and it is added "the same law, if a man demises a house and land for years with a stock or sum of money, rendering rent, and the lessee covenants for him, his executors, administrators, and assigns, to de- liver the stock or sum of money at the end of the term, yet tlie as- signee shall not be charged with this covenant, for although the rent reserved was increased in respect of the stock or sum, yet the rent did not issue out of the stock or sum, but out of the land only." The ma- terial words in that resolution are those which declare tliat where land is leased with stock upon it, the rent still continues to issue out of the land only. In that case, therefore, as well as any other, the person to whom the rent is due may distrain for the same ; and consequently tlie landlord here, who was not paid his rent, has pursued his legal remedy of distress, though the rent issued out of ready furnished lodgings. Rule discharged.°^ 5 Ace: Mickle v. Miles, 31 Pa. 20 (1856); Stein v. Stely (Tex. Llv. App.) 32 S. W: 782 (1895). See Farwell v. Dicliinson, 6 B. & C. 251 (1827) ; Armstrong v. Cummings, 58 How. Prac. (N. Y.) 331 (1880). Compare Cranston v. Rogers, 83 Ga. 750, 10 S. E. 364 (1889). Ch. 6) KENT8 635 SALMON et al. v. MATTHEWS. (Court of Exchequer, 1S41. 8 Mees. & W. 827.) Assumpsit by the assignees of a bankrupt for tlie use and occupa- tion of a house and the use of the furniture. Plea, non assump- CI f" •'■ "1* *** Alderson, B. In this case, we think both rules ought to be dis- charged. This was an action for the rent of a ready furnished house. The house had been mortgaged in fee, but the mortgagor had remained in possession, and had let the house as a ready furnished house to the de- fendant. After this the mortgagor became bankrupt, and then, by the assent of his assignees, let the house by the week to the defend- ant. After three weeks' occupation, the mortgagee gave notice to the tenant to pay the rent to him ; and it was paid. The present action was brought by the assignees of the bankrupt to recover the rent. At the trial the jury, by the direction of Lord Abinger, found a verdict for the plaintiff for i40, being, as was admitted, a proper verdict, if the assignees were entitled to any compensation in respect of the fur- niture which belonged to them. My brother Adams, on behalf of the defendant, applied for leave to enter a verdict for the defendant, on the ground that, under this letting, the mortgagee was entitled to the whole rent. On the other hand, Mr. Hill applied to increase the damages to £82, being tlie amount of the whole rent, which, as he contended, belonged to the assignees of the bankrupt. We think the verdict is right : for either the rent may be apportion- ed, according to the case of Dubytofte v. Curteene, Cro. Jac. 453, cited by Saunders, in his argument in the Dean and Chapter of Windsor v. Cover, 2 Saund. 303; or, if not, it is clear that, upon the entry of the mortgagee claiming the house, and having no interest in the furni- ture, a new agreement may be inferred by the jury to take the house at a reasonable rent from the mortgagee, and to pay a reasonable amount as a compensation for the use of the furniture to the assignees. If so, both rules are to be discharged, and both without costs. We mention this to prevent the costs of these rules being costs in the cause, which would not be just. Rules discharged.''^ 56Acc.: Buffum v. Deane, 4 Gray (Mass.) 385 (1855); Newton v. Speare Laundering Co., 19 R. I. 546, 37 Atl. 11 (1896). Contra: Fay v. HoUoran, 35 Barb. (N. Y.) 295 (1861). A. leased to X. a mill and a miller (a supposed slave); the slave had pre- viously been formally emancipated by A. and left X.'s service. Held, in an action by A. for the rent, X. is entitled to an apportionment. Newton v. Wilson. 3 Hen. & M. (Va.) 470 (1809). A. leased to X. a furnished house, reserving a rent. The house and furni- ture wore destroyed by fire without X.'s fault. Held, X. continues liable for the rent reserved. Bussman v. Ganster, 72 Pa. 285 (1872). Contra: Whi taker v. Hawley, 25 Kan. 074, 37 Am. Rep. 277 (1881). 636 BIGHTS IN THE LAND OF ANOTHER (Part 2 HANCOCK V. AUSTIN. (Court of Common Pleas, 1863. 14 C. B. [N. S.] 634.) This was an action for an illegal and excessive distress, with a count for tlie conversion of the plaintiff's goods, to wit, lace-machines. The cause was tried before Erie, C. J., at the last Summer Assizes at Derby. . The facts were as follows : The defendant was possessed of a factory consisting of several rooms in which he let "standings" for lace-machines, supplying the steam-power by which they were put in motion, and reserving to himself the right of entering the rooms for the purpose of oiling the bearings of the shafting, — portions of the same room being sometimes allotted to different persons. In or e of these rooms the plaintiff had hired standing for three lace-macl.ines, and power, for which he was to pay 12s. per week. The rent being in arrear, and the plaintiff having gone out and locked tlie door of the room where the machines were, the defendant placed a ladder to the window (which was fastened with an ordinary hasp), and his son, without breaking anything, opened the window and got into the room, whlen the plaintiff- entered by the door and distrained the machines, and afterwards sold them. * * * ErlE, C. J.**^ This is an action brought for the conversion of three lace-machines, of the value, as the jury have found, of £150., which were seized and sold by the defendant. The defendant had leave to move to reduce the verdict to i40. if the court should be of opinion that under the circumstances the defendant had a right to distrain ; inasmuch as in that case he would not be liable as a trespasser, but only to such damages as the plaintiff might have sustained from any illegality in the mode of taking or disposing of the distress. But, if the defendant had no right to distrain, he must pay the full value of the goods taken. * * * The first question is, whether there was any distrainable rent, there being no demise of the room, but only a bargain for standing for the plaintiff's machines. I am clearly of opinion that the stipulated sum of 12s. a week was not a rent issuing out of the realty, but only a payment for a privilege or easement. In no sense can it be called rent, or distrainable for as rent : but the own- er of the factory is put to his action to enforce payment of tlie agreed sum. * * * It follows, therefore, that the defendant has been guilty of a trespass, and must pay tlie value of the goods.*** 6 7 The statement of facts is abridged and part of the opinion of Erie, O. J., and the opinion of Williams, J., are omitted. 8A. demised to X. part of a specified room and power to drive lace- making machines, at a specified rent. Held, A. may distrain for rent in arrear. Selby v. Graves, L. R. 3 C. P. 594 (1868). A. leased land to X., with an easement of way over other lands of A. In an action by A.'s assignee ai^ainst X. for rent reserved under the lease, held, a plea that before the accrual of the said rent the plaintiff evicted and has since kept out the defendant from the way so demised is bad on demur- Ch. 6) BENTS 637 FIRST NAT. BANK OF SIOUX CITY v. FLYNN. (Supreme Court of Iowa, 1902. 117 Iowa, 493, 91 N. W. 784.) Action to recover rent alleged to be due under a lease, and to en- force a landlord's lien therefor against the L. Humbert Company. One Flynn, as trustee in bankruptcy of defendant company, sought to controvert plaintiff's right to a lien, and judgment was rendered for plaintiff establishing its lien as to a portion of the land claimed, from which judgment plaintiff and Flynn, trustee, prosecute separate appeals. Affirmed on plaintiff's appeal, and reversed on the appeal of the trustee. ' McClain, J."^^ * * * The trial court received, evidence tending to show that, while the lease was executed six months from June 1, 1899, at the agreed rental of $122.30 per month, as a matter of fact the amount of rent to be paid was determined by adding to the real rental value of the premises, which, under a previous lease, had been $50 a month, such additional sum as that the payment for the rent under the lease would satisfy not only the real rental value of the premises, but arrearages of rent to the amount of some $433 ; and the amount to be paid per month under the lease for each month was sim- ply one-sixth of a total amount agreed upon in satisfaction of indebt- edness for arrearage rent and rent for the six months for which the lease was executed. It is contended for plaintiff that parol evidence showing these facts was not admissible, on the ground that it was thereby attempted to vary the terms of a written instrument. But it is certainly competent in any case to show what the real consideration for a contract is, even though the contract is in writing and recites the consideration ; , and on the issue as to whether plaintiff was en- titled to a lien under this lease for $733 it was proper to admit evidence to show that the rent agreed to be paid by the terms of the lease was not the real rental for the use of the premises, but included additional indebtedness, for which plaintiff was attempting to secure a lien by means of the recitals of the lease. As between plaintiff and the trus- tee in bankruptcy, it was material only to determine for what amount plaintiff was entitled to a lien, and on that question the recitals of the lease could not be conclusive. It is well settled that a landlord can- not assert a lien for other indebtedness than that arising from the renting of the premises for tlie time covered by the lease, and that, if he attempts to do so in such way as to render it impracticable to determine what amount is due for the lease of the premises, he forfeits his entire lien. Smith v. Dayton, 94 Iowa, 102, 62 N. W. 650 ; Lad- ner v. Balsley, 103 Iowa, 674, 72 N. W. 787 ; In re Wolf (D. C.) 98 Fed. 74. rer. Williams v. Hayward. 1 E. & E. 1040 (1S59). See Buzzard v. Capel, 8 B. & C. 141 (1S28) : Tonilinson v. Day, 5 Moo. 558 (1821) ; Ca:rter v. Burr, 39 Barb. (N. T.) 59 (1862). 6 9 Part of the opiniOB is omitted. 638 RIGHTS IN THE LAND OF ANOTHER (Part 2 That is exactly what the plaintiff did in this case. Having a claim against the L. Humbert Company for $433, it attempted to lump that amount in with a charge for the rental of the premises for six months, and thereby secure a landlord's lien under the last lease for a much larger amount than that for which the premises were actually rented. The trial court assumed that the real rent charged for the premises under the last lease was $50 per month, the rate at which the prem- ises had been rented under the previous lease, and gave plaintiff a judgment under his landlord's attachment for that amount. But this, we think, was error. It does not appear that the parties agreed on a rental of $50 per month, but, rather, that they made a contract by which, if the tenant should pay $122.30 each month for six months, he would satisfy the claim of the plaintiff for delinquent rent under the previous lease, and have the use of the premises under the new lease. The representative of plaintiff who made the contract of lease testified as a witness that the premises, with slight repairs, might have been rented for $75 a month ; and whether or not it was the purpose of plaintiff to throw off a part of the claim which it held for delin- quent rent under the old lease, and charge a higher rental for the premises during the new lease, does not appear. It is enough to say that the plaintiff so managed the transaction that it was not agreed what the rental under the new lease actually was, and, as plaintiff is not entitled, as against the creditors of the bankrupt, to enforce its lien for more than the real rental, it should have been held to have for- feited its lien by this attempt to make a new lease cover the payment of antecedent indebtedness. The lower court erred, therefore, in rec- ognizing plaintiff's lien as to any portion of the proceeds of the at- tached property.^" , CO Ace, that failure to pay a contract debt cannot be distrained for as for a rent: Paxton v. Kennedy, 70 Miss. 865, 12 South. 546 (1893). See Smith V. Mapleback, 1 T. R. 441 (1786) ; Donellan v. Read, 3 B. «& Ad. 899 (1832) ; Miners' Bank of Pottsville v. Heilner, 47 Pa. 452 (1864). "It is said that the payment of taxes is part of the return made by the defendant to his landlord for the use of the property, and, therefore, prop- erly comes under the definition of rent. But in one sense the performance of every covenant on the part of the lessee is a return made by the tenant for the use of the land. Yet it would hardly be contended that money stip- ulated to be expended in repairs or for insurance, or in the way of improve- ments, was any portion of the rent. Taxes, being payable annually, ap- proach, it is true, to the idea and character of rent, which is a certain year- ly return reserved to the landlord in money, or kind, or service for the en- joyment of the freehold ; but they are distinguishable from rent in this, that they are uncertain both as to amount and time of payment, and are payable not to the landlord, but to the government, and are imposed for the benefit of the public, and the landlord may, by the terms of his agree- ment with the tenant, be relieved from their payment; taxes are not, on that account, any more rent than the expenditure of money for insurance under a covenant to that effect on the part of tlie lessee." Slossdn, J., in Garner v. Hannah, 13 N. Y. Super. Ct. 262, 2G6 (1857). Compare Neagle v. Kelly, 146 111. 460, 34 N. E. 947 (1893); Oedge v. Schoenberger, 83 Ky. 91 (188.5). See, also, Constautine v. Wake, 31 N. Y. Super. Ct. 239 (1869). Ch. 7) WASTE 639 CHAPTER VII WASTE SECTION 1.— GENERAL PRINCIPLES OF WASTE ST. 52 PIEN. Ill, ST. OF MARLBOROUGH .[MARLBRIDGE] (1267), c. 23, § 2: Also fermors, during their terms, shall not make waste, sale nor exile of house, woods, and men, nor of anything be- longing to the tenements that they have to ferm without special license had by writing of covenant, making mention that they may do it; which thing, if they do, and thereof be convict, they shall yield full damage, and shall be punished by amerciament grievously. ST. 6 EDW. I, ST. OF GLOUCESTER (1278), c. 5: It is pro- vided also that a man from henceforth shall have a writ of waste in the Chancery against him that holdeth by law of England, or other- wise for term of life, or for term of years, or a woman in dower; and he which shall be attainted of waste shall lose the thing that he hath wasted, and moreover shall recompence thrice so much as the waste shall be taxed at. COKE'S LITTLETON, 53a et seq. An action of wast doth lie against tenant by the curtesie, tenant in dower, tenant for life, for yeares, or halfe a yeare, or gardian in chivalry, by him that hath the immediate estate of inheritance, for wast or destruction in houses, gardens, woods, trees, or in lands, meadows, &c. or in exile of men to the disherison of him in the re- version or remainder. There be two kinds of waste, viz. voluntary or actuall, and permissive. Wast may be done in houses, by pulling or prostrating them down, or by suffering the same to be uncovered, whereby the spars or rafters, plaunchers, or other timber of the house are rotten. But if the house be uncovered when the tenant commeth in, it is no wast in the tenant to suffer the same to fall downe. But though the house be ruinous at the tenant's coming in, yet if he pull it downe, it is wast unlesse he reedifie it againe. Also if glasse windows (tho' glased by the tenant himselfe) be broken downe, or carried away, it is wast, for the glasse is part of his house. And so it is of wainscot, benches, doores, windowes, furnaces, and the like, annexed or fixed to the house either by him in the reversion, or the tenant. G40 RIGHTS IN THE LAND OF ANOTHER (Pail 2 Though there be no timber growing upon the ground, yet the tenant at his perill must keepe the houses from wasting. If the tenant doe qt suffer waste to be done in houses, yet if he repaire them before any action brought, there Heth no action of waste against him, but he cannot plead, quod non fecit vastum, but the speciall matter. A wall uncovered when the tenant commeth in, is no wast if it be suffered to decay. If the tenant cut downe or destroy any fruit trees growing in the garden or orchard, it is waste; but if such trees grow upon any of the ground which the tenant holdeth out of the garden or orchard, it is no waste. If the tenant build a new house, it is waste, and if he suffered it to be wasted, it is a new waste. If the house fall downe by tempest, or be burnt by lightning, or prostrated by enemies or the like, without a default of the tenant, or was ruinous at his comming in, and fall downe, the tenant may build the same againe with such materialls as remaines, and with other timber which he may take growing on the ground for his habitation, but he must not make the house larger then it was. If th,e house be discovered by tempest, the tenant must in convenient time repaire.it. If the tenant of a dove-house, warren, parke, vivary, estangues, or the like do take so many, as such sufficient store be not left as he found when he came in, this is waste ; and to suft'er the pale to decay, whereby the deere is dispersed, is waste. And it is to be observed, that there is wast, destruction and exile. Wast properly is in houses, gardens, (as is aforesaid) in timber trees, (viz. oak, ash, and elme, and these be timber trees in all places) either by cutting of them downe, or topping of them or doing any act where- by the timber may decay. Also in countries where timber is scant, and beeches or the like are converted to building for the habitation of man, or the like, tliey are all accounted timber. If the tenant cut down timber trees, or such as are accounted timber, as is aforesaid, this is wast; and if he suffer the young germins to be destroyed, this is destruction. So it is, if the tenant cut down underwood, (as he may by law) yet if he suffer the young germins to be destroyed, or if he stub up the same, this is destruction. Cutting down of willowes, beech, birch, aspe, maple, or the like, standing in the defence and safeguard of the house, is destruction. If there be a quickset fence of white thorne, if the tenant stub it up, or suffer it to be destroyed, this is destruction ; and for all these and the like destructions an action of wast lyeth. The cutting of dead wood, that is, "ubi arbores sunt aridae, mortuae, cavae, non existentes mare- mium, nee portantus fructus, hex folia in sestate," is no v/ast; but turning of trees to coles for fewell, when there is sufficient dead wood, is wast. If the tenant suffer the houses to be wasted, and then fell down tim- ber to repaire the same, this is a double wast. Digging for gravel, lime, clay, brick, earth, stone, or the like, or for mines of mettall, coale, Ch. 7) WASTE 641 or the like, hidden in the earth, and were not open when the tenant came in, is wast ; but the tenant may dig for gravell or clay for the reparation of the house, as well as he may -take convenient timber trees. It is wast to suffer a wall of tlie sea to be in decay so as by the flow- ing and reflowing of the sea, the meadow or marsh is surrounded, whereby the same becomes unprofitable ; but if it be surrounded, sud- denly by the rage or violence of the sea, occasioned by winds, tempest, or the like, without any default in the tenant, this is no wast punish- able. So it is, if thte tenant repaire not the bankes or walls against rivers, or other waters, whereby the meadows or marshes be sur- rounded, and become rushy and unprofitable. If tlie tenant convert arable land into wood, or e converso, or mead- ow into arable, it is waste, for it changeth not onely the course of his husbandry, but the proofe of his evidence. The tenant may take sufficient wood to repaire the walls, pales, fenc- es, hedges, and ditches, as he found them ; but he can make no new : and he may take also sufficient plowbote, firebote, and other housbote. The tenant cutteth downe trees for reparations and selleth them, and after buyeth them againe, and imploys them about necessary repara- tions, yet it is wast by the vendition : he cannot sell trees, and with the money cover the house: burning of the house by negligence or mis- chance is waste. * * * A prohibition of waste did lye against tenant by the curtesie, tenant in dower, and a gardian in chivalry, by the common law, but not against tenant for life or yeares, because they came in by their own act, and he might have provided that no waste should be done. * * * There is waste of a small value, as Bracton saith, "Nisi vastum ita modicum sit propter quod non sit inquisitio facienda." Yet trees ta the value of three shillings and foure pence hath beene adjudged wast, and many things together may make waste to a value. * * * In many cases a tenant for Hfe or years may fell down timber to make reparations albeit he be not compellable thereunto, and shall not be punished for the same in any action of waste. As if a house be ruinous at the time of the lease made, if the lessee suffer the house to fall down he is not punishable, for he is not bound by law to repaire the house in that case. And yet if he cut down timber upon the ground so letten, and repaire it, he may well justifie it; and the reason is, for that the law doth favour the supportation or maintenance of houses of habitation for mankind. * * * a man hath land in which there is a mine of coales, or of the like, and maketh a lease of the land (with- out mentioning any mines) for life or for yeares, the lessee for such mines as were open at the time of the lease made, may digge and take the profits thereof. But he cannot digge for any new mine that was not open at the time of the lease made, for that should be adjudged wastfe. And if there be open mines and the owner make a lease of Big. Rights — 41 642 * RIGHTS IN THE LAND OF ANOTHER (Part 2 the land, with the mines therein, this shall extend to the open mines onely, and not to any hidden mine : but if there be no open mine, and the lease is made of the land together with all mines therein, there the lessee may digge for mines, and enjoy the benefit thereof, otherwise those words should be void, I have been the more spacious concern- ing this learning of waste, for that it is most necessary to be knowne of all men. * * * COLE V. GREEN. (King's Bench and House of Lords, 1671. 1 Lev. 309.)i Waste in the Hustings London, on a Lease for Years of a Brew- House in London. The Defendant pleads no Waste, and Issue there- on ; and on the Evidence it appeared. That the Defendant took down the Brew-House, and erected several Houses in the Place, and im- proved the Rent from il20. to i200. per Annum; And by the Direc- »tion of Howel, Deputy Recorder, before whom the Cause was tried; for that thereby the Nature of the Thing, and the Evidence thereof was altered, the Jury found it Waste, and gave single Damages £200. which were trebled to -£600. But then Judgment was arrested, on Motion before Sir William Wilde, the Recorder himself, for the In- sufficiency of the Verdict. * * * Rule made for a new Trial ; whereupon the Jury, in respect of the Melioration, or Improvement, by the Direction of Sir William Wylde, before whom the new Trial was, gave a Verdict for the Defendant, and Judgment was thereupon given for the Defendant. On which Judgment Cole brought a Writ of Error before Vaughn Chief Justice of the Common Pleas, Hale Chief Baron, Turner, and Rainsford, and Moreton Justices. * * * And upon this all the Judges agreed, and reversed the Judgment, and gave Judgment for the Plaintiff on the first Verdict. On which Judgment of Reversal the Defendant brought a Writ of Error in the House of Peers. [The House of Lords affirmed the judgment and it was remanded for execution, whereupon the defendant sought an injunction to stay the execution.] In regard there had been one Verdict for the Plaintiff, and another for the Defendant, the Lord Keeper Bridgman, after all those Pro- ceedings, directed a new Trial at the King's Bench Bar, to try in a feigned Issue, Whether Waste of not ? And on the Trial before Hale, then Chief Justice, it was resolved to be Waste notwithstanding the melioration, by Reason of the Alteration of the Nature of the Thing, 1 The case Is also reported 2 Saimd. 252 (1671), where the lease is statod to have been for 51 years. Ch. 7) WASTE 643 and of the Evidence thereof; and the Jury gave their Verdict accord- ingly, and 100 Marks single Damages, which trebled, amounted to £200. which the Chancery compelled Cole to take. * * * KEEPERS AND GOVERNORS OF THE POSSESSIONS, ETC., OF HARROW SCHOOL v. ALDERTON. (Court of Common Pleas, ISOO. 2 Bos. & P. 86.) This was an action of waste on the statute of Gloucester, for plough- ing up three closes of meadow land, and converting the same into gar- den ground, and building thereupon, to the damage of the Plaintiffs £500. Plea, Not guilty. The cause was tried before Heath, J., at the Westminster sittings after last Trinity Term, when the jury found a verdict for the Plain- tiff with three farthings damages, being one farthing for each close. In the Michaelmas Term following, Cockell, Serjt., obtained a Rule, calling on the Plaintiff to shew c^use why the judgment should not be entered up for the Defendant, on account of the smallness of the damages recovered, on the principle that de minimis non curat lex ; and cited in support of the application Bro. Abr. tit. Waste, pi. 123, Co. Lit. 54, a. 2 Inst. 306. Cro. Car. 414. 452.' Finch's Law, lib. 1 cap. 3. s. 34. adopted 3 Black. Com. 228. Vin. Abr. tit. Waste N. and Buller's N. P. 120. Shepherd, Serjt., now shewed cause. There are two species of waste, that which consists in the abuse of the thing in which the waste is committed, and the consequent deterioration of its value,; and that which changes the nature of the thing itself. In waste of the first kind, if the damage be very small, it may be right that no action should lie, because the deterioration is the essence of the waste. But where the waste consists in the alteration of the property, that alteration is the essence of the waste. If then the amount of pecuniary damage be the criterion 6i this kirid of waste also, the distinction will no longer exist ; for it will then be the deterioration of value, and not the altera- tion of the property, which will constitute the waste. Lord Eldon, Ch. J. I confess, that when this application was first made, I was not aware, that under the circumstances of the case the Defendant was entitled to demand judgment: but my Brother Heath has satisfied me, that the application is supported by the current of authorities. I do not, indeed, see precisely on what ground those de- cisions have proceeded ; though I can easily conceive many cases in which it may be extremely unconscientious for a Plaintiff to take ad- vantage of his judgment, where such small damages have been recov- ered as in this case. As, if the owner of land suft'er his tenant to lay out money upon the premises, and then bring an action of waste to recover possession when the land may have been improved to ten times 644 niGHTS IN THE LAND OF ANOTHER (Part 2 the original value. The cases do not appear to authorize the distinc- tion contended for by my Brother Shepherd. Whether the waste com- mitted be by alteration of the property, or by deterioration, still the jury, in estimating the damages, take into consideration the injury which the Plaintiff has sustained; and in this case the jury have es- timated the damage which these Plaintiffs have sustained, by the al- teration of their property at three farthings only. The Courts of Common Law seem to have entertained a sort of equitable jurisdiction in cases of this kind. He;aTh, J. This doctrine prevailed as early as the time of Bracton, who wrote before the statute of Gloucester. With respect to the dis- tinction taken, there is no reason why pecuniary damages should not be assessed for the alteration of property as well as for the deteriora- tion. Thus, if a tenant convert a furze-brake in which game have bred into arable or pasture, by which its real value would be improved, but its value to the landlord depreciated, it would be the business of the jury to assess damages to the landlord thereon. RooKE, J. I am of the same opinion. Rule absolute.* OWEN v. HYDE. (Supreme- Court of Tennessee, 1834. 6 Yerg. [14 Tenn.] 334, 27 Am. Dec. 467.) This is an action for waste, prosecuted by the plaintiff, who is en- titled to the reversion of part of the dower estate of the defendant. The declaration alleges, that the waste was committed by removing the timber from fifteen acres of the dower estate. The proof shows that Henry Hyde died intestate, seized and pos- Sometimes the flow of rivers is broken by cataracts and falls, while in most of tlieir course, there is a smooth current, and they are of great utility in the transportation of property. Where such . obstruc- tions exist to so great extent, as to require the use of the shores, to carry property by them, though in those places they might not have a public character, yet for many miles above and below them, they might be capable of a beneficial use for trade and commerce, and thereby be public. These obstructions may occur at long or short intervals, leav- ing other portions of the streams clearly public. It is further contended by the defendant, that if the dam was an unlawful obstruction the plaintiff had no right to run his logs through the defendant's sluice, built on his land, and recover damages for re- pairing it, although such course would be less detrimental than the destruction of the dam, but that he should have cut away tlie defend- ant's dam. If a man has a right of way over another's land, unless tlie owner of the land is bound by prescription or his own grant to repair the way, he cannot justify going over the adjoining land, when the way is impassable by the overflowing of a river, but if public highways are out of repair or impassable, as by a flood, there is a temporary right of way over the adjoining land. 2 Black. Com. 36; 3 Kent's Com. 424. Those obstructions, which prevent a passage while they remain, are insurmountable. It is said by Buller, J., in Ball v. Herbert, "that if a river should hap- pen to be choked up by mud, thlat would not give the public a right to cut another passage through the adjoining lands " The right of ways is in the waters, and the defendant had no authority to prevent its exercise. He could, by law, erect and continue his dam and mills, but was bound to provide a way of passage fot the plain-tiff's logs. He obstructed the river improperly by his dam and logs. The plain- tiff must either have left his property and lost its whole value, car- ried it by the dam, repaired the sluice and run the logs through it, or have removed such portion of the dam, as would have afforded a pas- sage. He adopted that course, which was least injurious to the de- fendant. The plaintiff would have had the right to enter upon the defendant's land to remove tlie obstruction. Colburn v. Richards, 13 Mass. 420, 7 Am. Dec. 160; Inhabitants of Arundel v. McCulloch, 10 Mass. 70. The plaintiff might not be bound to repair the sluice, but having done so to obviate the difiiculty created by the defendant, there does not appear to be any reason, why he should be held to have taken BiG.RiGUTS — 45 706 RIGHTS IN THE LAND OF ANOTHER (Part 2 that course, which would have produced a greater injury to the de- fendant. Miller v. Mariner's Church, 7 Greenl. 51, 20 Am. Dec. 341. * * * Both the motion for a new trial and the exceptions are overruled, and there must be judgment on the verdict.* THUNDER BAY RIVER BOOMING CO. v. SPEECHLY et al. (Supreme Court of Michigan, 1S75. 31 Mich. 336, 18 Am. Kep. 184.) [The plaintiffs owned and operated a sawmill on Thunder Bay river. The mill was run by water power furnished by a dam on the river. The defendants owned a millsite and dam five miles higher up the river, but were chiefly engaged in floating lumber down the river. Between the defendants' and the plaintiffs' dams were shallows. After June the natural flow of the river was not sufficiently great to carry logs over these shallows. In order to get a sufficient head of water for this purpose the defendants had been in the habit of rais- ing the height of the dam by superstructures until they accumulated a large head of water and then letting it out suddenly. The result was that the plaintiff's mill was first deprived of a sufficient head of wa- ter to continue operations, and then so flooded with water that the 4 Ace: Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209 (1853); Smith v. Fonda, 64 Miss. 551, 1 South. 757 (1886) ; Commissioners of Burke Countv V. Catawba Lumber Co., 116 N. C. 731, 21 S. E. 941, 47 Am. St. Rep. 829 (1895). "The precise character of this stream is not stated, nor does it appear anywhere in the record. * * * We are led to infer, from what is stated, that it is an inconsiderable stream, nearly or wholly dry in the summer season, and carrying a volume of water sufficiently powerful to float logs or rafts only in seasons of freshets, and then for a few days or weeks only. "* * * The principle is distinctly asserted [in Brown v. Chadbourne] that the public have the right to the free use of all streams which are suscpptible of any valuable floatage. And to this extent is the claim of the defendant in error. Pie claims, if Big creek, which, from its mouth to its source, is private property, bought of the United States and paid for, and which may exhibit for the greater portion of the year but a dry bed of gravel and sand, and which has teen crossed by fences and bridges, and occupied by other structures reared by the owners, is, notwithstanding, -when a freshet occurs of one week's duration, subject to be entered upon by the public, and to be appropriated to floating logs, to the destruction of fences, bridges or other necessary structures, and in defiance of the proprietors of tlie same. We cannot sanction a doctrine fraught in its application with sucli conse- quences. However necessary it may be in the great lumbering states of Maine and Michigan, that private rights should yield to the prevailing in- terest, no such necessity exists in this state, and we shall be careful that the rights of its citizens shall not be wrongfully invaded upon such pre- tences as are set forth in this record, and sustained by such considerations as influenced the judgments of the courts whose opinions we have con.sid- ered." Breese, J., in Hubbard v. Bell, 54 111. 110, 114, 118, 5 Am. Rep. 98 (1870). See, also. Lewis v. Coffee County, 77 Ala. 190. 54 Am. Rep. 55 (1884); Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58 (1866). Ch. S) ^ " PUBLIC RIGHTS 70T wheels would not work, and the plaintiff was forced to close his mill. This action is brought to recover the damages so caused.] CooLEY, J.' .[after stating the" foregoing facts:] * * * This statement will be sufficient to show the bearing of the legal questions presented in the court below. That court was requested to charge the jury, that defendants had a right to use the water of the river to lloat logs, and if there was an insufficient supply to float logs during the months of June, July, and August, 1872. then defendants had a right to raise a head of water at the Trowbridge dam, to assist in run- ning the logs on the rapids, and if they detained the water no longer than was necessary for the proper enjoyment of that right, then plain- tiffs were not entitled to recover. This request was refused, and the court on the contrary instructed the jury, that the plaintiffs had a right as riparian proprietors, to have the water of the river flow into and through their pond in its usual and ordinary mode of flowing, and that any detention of water by defendants for the sole purpose of se- curing a flood, in such a manner that it could not be used by the plaintiffs in the operation of their mill, was unreasonable and unlaw- ful as to them, and entitled them to compensation for the resulting damages. The jury returned a verdict for the plaintiffs. The position taken by the defendants, and which they insist upon here, is, that Thunder Bay river is a public stream, navigable for the purpose of floating and booming logs, and that any rights of riparian proprietors are subservient to the right of the public to make use of the stream as a public highway ; that defendants had a right to detain the water in the Trowbridge dam to assist in running the logs jammed upon the rapids, and that they could not be liable for so doing, pro- vided they detained the water no longer than was needful for that purpose, and exercised their right reasonably, with a due regard to the rights of others. And it is this claim which presents the principal ques- tion for our consideration. That Thunder Bay river must be regarded as a public highway for the purpose of running logs, must be considered as determined by the previous adjudication of this court. Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec^ 209. But that case falls short of solving the difficulties presented by this, for, while that only determines that a stream may be public and navigable, which is capable of being used for floating logs for a considerable portion of the year, the question presented by this is, whether such a stream is to be considered navigable and sub- ject to the ptiblic easement at a time when, in its natural condition, it is entirely incapable of being made use of, even for the restricted navigation which was held to be of common right in the case referred to. There is obviously a very broad distinction between a stream be- ing held to be public and navigable while it is capable of being used by the public for any important purpose of carriage by water, and the 6 Part of the opiuiou is omitted. 708 RIGHTS IN THE LAND OF ANOTHER • . (Part 2 same stream being held to be so when the whole capacity for use is created by artificial means, and by abridging what, but for the re- sort to these artificial means, would be the unquestionable rights of riparian proprietors on the stream below. * * * The doctrine, then, which we derive from the cases is, that a- stream may be a public highway for floatage when it is capable in its ordinary and natural stage in the seasons of high water of valuable public use, The inference sought to be drawn from it is, that a navigable stream must, in contemplation of law, be navigable at all times, and under all circumstances ; that there can be no such thing as a highway which is only open to the public use periodically, but that when once the pub- lic character of the way is established, the right of the public to the easement is paramount to all private rights, and that nothing done to facilitate the public use can be the foundation of a right of action un- less in itself unreasonable, when the due subordination of private to public rights in the stream is considered and properly allowed for. But no such inference is warranted by the decisions. The highway they recognize is one sui generis, and in which the public rights spring from peculiar facts. It is a public highway by nature, but one which is such only periodically, and while the natural condition permits of a public use. During that time the public right of floatage and the private right of the riparian proprietors must each be exercised with due con- sideration for the other, and any injury which the latter receives in consequence of a proper use of the stream for floatage he must sub- mit to as incident to his situation upon navigable waters. Middleton V. Booming Co., 27 Mich. 533. But at periods when there is no highway at all, there is no ground for asserting a right to create a highway by means which appropriate or destroy private rights. The doctrine that this may be done without compensation to parties injured is at war with all our ideas of prop- erty and of constitutional rights. The most that can be said of this stream, during the seasons of low water, is, that it is capable of being made occasionally navigable by appropriating for the purpose the wat- er to the natural flow of which the riparian proprietors are entitled. It is highly probable, in view of the large interests which are concern- ed in the floatage, that the general public good would be subserved by so doing, but this fact can have no bearing upon the legal question. It is often the case that the public good would be subserved by forc- ing a public way through private possessions, but it neither should be nor can be done under any circumstances without observing the only condition on which it can be permitted in constitutional government, namely, that the private proprietor be compensated for the value which he surrenders to the public. We do not question the right of the legis- lature to provide for the taking of riparian rights for this purpose, but no attempt had been made in this case to resort to a legal appropria- tion, and the reliance of the booming company is exclusively upon a public right of navigation, though the capacity for navigation does not Ch. 8) ' PUBLIC BIGHTS 709 exist by nature, is only created by artificial means, and can neither be created nor enjoyed without appropriating to the use of the com- pany the valuable riparian rights which- the plaintiffs acquired by the purchase of lands over which the stream runs ; this appropriation without compensation is no more admissible than would be the taking of land for an ordinary highway or a railroad. As was remarked in Morgan v. King, 35 N. Y. 460, 91 Am. Dec. 58, the question of public right in a case like this is to be decided without reference to the effect which artificial improvements have had in the navigable capacity of the river ; in other words, the public right is measured by the capacity of the stream for valuable public use in its natural condition; and any attempt to create capacity at other times at the expense of private interests can be justified only on an assessment and payment of com- pensation. * * * The judgment must be affirmed, with costs.* Graves, C. J., and Campbell, J., concurred. Christiancy, J., did not sit in this case. COBB V. BENNETT. (Supreme Court of Pennsylvania, 1874. 75 Pa. 326, 15 Am. Rep. 752.) This was an action of trespass vi et armis brought June 20th, 1870, by David Bennett against David Cobb, master and agent for the own- ers of the schooner "Sarah." The cause of action was that the defendant wantonly ran his ves- sel into the fishing-net of the plaintiff and greatly injured it. The case was tried February 8th, 1872, before Lynd, J. The plaintiff testified that he was the lessee of a fishery on the New Jersey side of the river Delaware and duly licensed. He further tes- tified that on the 17th of May, 1870, he had his nets laid out about 3^2 o'clock a. m., with a boat with a light in it, lying about 200 feet from low-water mark ; he had about thirty or thirty-five men em- ployed. About that time the "Sarah" was seen approaching and when about 400 or 500 yards below the nets, his son rowed towards the ves- sel in which there was a light, he heard his son hail the vessel to go to the westward, plaintiff rowed down to the vessel and told the captain of the vessel, that if he would "go about" he would clear the nets; he did not go about, "he continued his course until he struck •A. erected a legal dam on a stream, leaving a sluiceway as wide and with as much water as the original channel. Held, although tbe river, because of the dam, has a greater carrying capacity, a person floating logs Is entitled to no more water at the dam than would naturally be there, had there been no dam. Pearson v. Rolfe, 76 Me. 3S0 (1884). Compare Volk v. Eldred, 23 Wis. 410 (1868). See, also, Koopman v. Blodgett, 70 Mich. 610, 38 N. W. 649, 14 Am. St. Rep. 627 (1888^ 710 RIGHTS IN THE LAND OF ANOTHER (Part 2 my net ; he damaged my net, tore my lines ; he let go his anchor in • side the net on the fishing grounds ; * * * he lay the first time at anchor half an hour. * * * j ^-qJ^j \^\y-^ ^q stand over towards Tin- icum Island ; he did so and then went about, came back and anchored on our grounds; * * * he remained four hours at anchor the sec- ond time." The plaintiff then testified as to the damage which he had sustained by reason of the vessel injuring his net. He also testified that the de- fendant without injury to himself might have avoided running into the net, if he had changed the course of his vessel after he had been notified'. * * * [The verdict was for the plaintiff and the defendant took out a writ of error.] Agnew, C. J.'' We discover no error in the portions of the charge assigned for error. They may all be comprised in the following in- struction: "I charge as a question of law he [the defendant] was bound to shorten his tack, if he could have thereby avoided the nets, without prejudice to the reasonable prosecution of his voyage." This was said in view of the facts in evidence on the part of the plaintiff, that the defendant was notified of the position of the net of the plain- tiff; pointed to the light which marked that position; and requested to change his course so as not to foul it, and that this could be done conveniently. The judge had already said: "But there is another right in the river, that of navigation, which is superior to the right of fishing, and when they interfere, that of fishing must give way to the right of navigation." He had also said: "Those exercising the rights of navigation will not be excused, if they are sufficiently warned, un- less they make a reasonable effort to avoid them." Now, surely, it is not error to say, that when the mariner is warned of his approach toward the net of the fisherman, he should change the course of his vessel, if he can do so without prejudice to the rea- sonable prosecution of his voyage. The entire point of the charge is contained in this qualification, and hence it was not doing full jus- tice to the charge to omit the qualifying words in the assignment. What would-be a reasonable prosecution of the voyage would depend on the attendant circumstances, and upon this a special instruction might have been called for. Without the qualification there would have been error, for we must agree that the mariner is not bound to shorten his tack, merely because a net is stretched across his course, A vessel is entitled to take her course in the navigation of the river, and to hold it without regard to the fisherman's net, provided the mas- ter act without wantonness or malice, and do no unnecessary damage. This is an obvious consequence of the superior right of navigation. But this, we think, was the very doctrine of the charge, and the ex- ception contained in the qualification in view of the facts in evidence. ^ The statement of facts is abridged. Ch. 8) PUBLIC RIGHTS 711 If the manner, warned of the position of the net and requested to chang-c his tack, may do so "without prejudice to the reasonable pros- ecution of his voyage," can we say he is exercising his superior right of navigation justly, and in the spirit of the maxim, "sic utere tuo ut alienum non lasdas," if, indifferent to the inferior right, he recklessly holds on his way and fouls and injures the fisherman's net? Cer- tainly we cannot say this, for in effect it would be to say a fisherman has no rights whatever; that being no right which another may dis- regard under all circumstances. In view of the legislation, both of Pennsylvania and New Jersey,' the usages of fishing, and the decisions in our own state, tliere is a right of fishing in the Delaware, though subordinate to the right of navigation, which cannot be unnecessarily impeded by it. . Fisheries attached to the riparian ownership are valuable, and command high rents. This subject will be found to be discussed at great length and with much research, by our brother Sharswood, in the case of Tini- cum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dec. 597. It therefore needs no further discussion here. The right of fishery is an acknowl- edged one, though it is entirely subordinate to those of navigation, and we intend in this opinion to lay down no principles which would burden commerce or restrict the navigator's rights, beyond that which his evident duty to others would justly require. Indeed, the question upon the charge comes down to this : Is it wantonness when a mari- ner, warned of the net, seeing the light marking its position, and re- quested to avoid it, yet, indift'erent to the interests of the fisherman, keeps on his course, when a reasonable pursuit of his voyage would not be prejudiced by avoiding the net? Wantonness is reckless sport, wilfully unrestrained action, running immoderately into excess. If a man will do an injury, when he may reasonably avoid doing so, with- out inconvenience to himself, can it be said he is blameless ? Is it not worse than wantonness, is it not rather malice, when he may, with- out prejudice to the reasonable enjoyment of his own right, desist from an injury to another, and yet will persist in committing it? Now, unless we deny this proposition we cannot reverse. If there were anything exceptional in the facts^or contradictions in the evi- dence, it was in the power of the defendant to ask specific instructions upon the precise state of the facts as appearing on either side. If by reason of the veering of the wind to the north-east, the running of the tide with the course of the vessel, the want of men on deck at the moment, or other sufficient cause, it would have been difficult, or even unreasonably inconvenient, to shorten the tack of the vessel, or change its course, the instruction might have been asked that in such a case the master was not bound to luff or to shorten tack. We agree with the counsel of the plaintiff in error, that the interests of naviga- tion are all-important to a port like that of Philadelphia, and are not required to give way to the minor and subordinate right of fishing. 712 EIGHTS IN THE LAND OF ANOTHER (Part 2 But in the absence of a call for instruction on the point so much in- sisted upon in the argument, we cannot say the court erred in the general instructions contained in the charge. There was evidence of malice sufficient to take the case to the jury, to whom it belonged, and not to the court, to say whether the language used, "to hell with your net," was a mere superfluity of maritime civility, or was indica- tive of malice. Judgment affirmed.® POLLOCK V. CLEVELAND SHIP BUILDING CO. (Supreme Court of Ohio, 1897. 56 Ohio St. 655, 47 N. E. 582.) [The plaintiff and defendant were adjoining riparian owners upon the Cuyahoga river, a navigable stream. The defendant built and re- paired boats and had a 700-foot dock running the length of its river frontage. The plaintiff made no use of his land, and it was unim- proved. In repairing vessels, and in putting tlie boilers and machin- ery in vessels that it built, the defendant made use of a derrick erect- ed so near to the line of the plaintiff's property that as the vessels 8A. contracted to cut and float to a specified point timber belonging to B. He began cutting operations in the fall. During the winter the defendant stored in a river several hundred thousand feet of logs of the preceding year's cut, so that they blocked the mouth of the tributary river down which A. expected to float the logs cut by him. As a consequence A. was unable to get out the logs. In an action by A. against the defendant for the dam- age so caused, the court said: "The defendants had as much right as the plaintiff to use Moose river for driving purposes. If they fairly occupied the river flrst with their logs, they could claim precedence, and the plaintiff would need wait, provided they used reasonable diligence and efforts to propel their drive. Tbey were under no obligation to hold up, and let the plaintiff put his logs in ahead, or even in the midst of their drive. If the plaintiff reached the river later than the defendants, he would be obliged to wait and his loss would be damnum absque injuria. If the defendants, in such case, used reasonable diligence and efforts, they would not be re- sponsible, even though they made temporary delays for purposes of boom- ing, etc. * * * Temporary delays and rests may be justiflable in the • driving of logs if they are not unreasonable in time or place. But when parties deliberately, and without compulsion by nature, select a particular portion of a river as a place for a season's storage of their logs and thus completely block up another's entrance into the common highway, we think they are exceeding this right, and are legally liable for damages thereby caused. Parties desiring to use any part of a river for such storage should select such peaces as will least obstruct others in tlieir use of the river. * * * In this case it is urged tbat there was no other place where the left-over logs could have been safely kept during the winter. It was per- haps the most convenient place, but the evidence does not satisfy us that it was the only safe place. We think the logs could, with some extra care and expense perhaps, have been safely stored where they would not have obstructed the Tom Fletcher stream." Emery, J., in McPheters v. Moose River Log Driving Co., 78 Me. 329, 33.3, 5 Atl. 270 (1886). See, fiu-ther, as to reasonableness in the use of the stream, Harold v. Jones, 86 Ala. 274, 5 South. 438, 3 L. R. A. 406 (1888); St. Cloud Water- Power & Mill Co. v. Mississippi & K. R. Boom Co., 43 Minn. 380, 45 N. W. 714 (1890). Ch. 8) PUBLIC RIGHTS 713 were moored it was frequently necessary to make them project 25 to 75 feet along the plaintiff's river frontage, and to carry lines from their projecting ends across the plaintiff's land to piles in the defendant's land. No actual damage was caused to the plaintiff by the defend- ant's acts. The plaintiff frequently requested the defendant to desist from these practices and after its repeated refusals brought suit for an injunction. The injunction was denied and the plaintiff appealed.] Spear, J.^ [after stating the facts]. The inquiry presents two ques- tions: (1) Were the acts of the company in moving vessels in front of plaintiff's land for the purpose of repairs to old vessels, and of put- ting in boilers, engines, and machinery in new vessels, trespasses? (2) Were its acts in carrying lines across the river bank of plaintiff tres- passes for which injunction will lie? The right of ownership to the center of the stream by one owning land abutting on a navigable river is not in dispute. It was declared by this court in Gavit v. Chambers, 3 Ohio, 497, that "he who owns the lands upon both banks owns the entire river, subject only to the easement of navigation; and he who owns the land upon one bank only owns to the middle of the river, subject to this same ease- ment." * * * We now inquire, was the mooring of boats by the company in the part of thte water of the river which is over plaintiff's land, for the pur- pose of repairing or completing such vessels, the pursuit of a strictly private manufacturing business thereon, as is claimed by plaintiff? Or was it but an incident of navigation and commerce, as claimed by defendant? If the latter, the judgment of the circuit court is right in this particular, and as to this should be affirmed. If the former, the judgment is wrong and should be reversed, for, whatever may be the rule elsewhere, in Ohio it is established that repeated acts of trespass, which in time would ripen into a prescriptive right, although the dam- age for each trespass is but nominal, will entitle the aggrieved party to an injunction. And it seems to be also established that the owner of the fee of a highway may have trespass, founded upon his possession, against a stranger, for any acts of trespass committed upon it, not justified or excused under the public right, and if he neglects to sue, but submits, adverse possession under claim of right would in time ripen into a prescriptive right. Having the exclusive seisin and possession of the soil of the highway, subject only to the easement of the public, he may lose his right of seisin and possession by being deprived and barred by the statute of limitations. Tootle v. Clifton, 22 Ohio St. 247, 10 Am. Rep. 732; Washb. Easem. 10; Read v. Leeds, 19 Conn. 182. This brings us to the inquiry as to what is fairly embraced with- in the meaning of the term "easement of navigation." One dictionary meaning of navigation is, "the science or art of conducting a ship from one place to another,'' and this definition is quoted by plaintiff's coun- » Part of the opinion is omitted. 714 RIGHTS IN THE LAND OF ANOTHER (Part 2 sel as applying here. Another definition is, "the science or art of ascertaining the position and directing the course of vessels, especial- ly at sea, by astronomical observations or calculations ; nautical science or art." Still another is, "shipping," which would embrace the conduct of ships generally. Clearly the term "easement of navigation" should not be construed in any narrow, scientific sense, but, having in mind that the reservation of the easement by the state is for the benefit of the public in its use of the high^yay, it should receive a construction in harmony with the nature of the uses of the water by the public, and the objects of a public nature to be accomplished by such uses. Those objects relate to trade and commerce, which is the interchange of goods or products between nations -or individuals by means of transportation, or, as applied to commerce on the water, by means of navigation. "Commerce,'- says Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, "is traffic, but it is something more; it is inter- course." Commerce, then, is the object; navigation, the instrument or incident. In other words, navigation is the means by which com- merce is accomplished, and it is for the purpose of aiding commerce that navigation is encouraged and protected. When the term "ease- ment of navigation" is used, therefore, it carries with it the idea of navigation for the purposes above expressed; so that whatever re- lates to commerce, or is iijcident to it, is embraced in the term. * * * Vessels cannot be operated or moved without getting out of re- pair, and hence stopping for repairs becomes one of the incidents of their use. It would not be reasonable, from the standpoint either of expense or convenience, to compel such vessels to seek a slip or a dry- dock on every occasion when repairs are needed, — at last, when such repairs can be made without interference with other craft plying the same waters, and without injury to riparian owners. It follows from the foregoing that the use made by defendant of the waters of the Cuyahoga river for the repair of vessels was an incident to the right of navigation and commerce, and hence a public use and a proper use. The question of the right to moor vessels in front of plaintiff's prop- erty, outside the dock line, while the machinery was being put in, pre- sents greater difficulties. The point is thought to turn upon whether or not an independent contract for putting in such machinery would be a maritime contract. "A ship," says Mr. Benedict in his work on Ad- miralty (section 215), "is a locomotive machine adapted to transporta- tion over rivers, seas, and oceans." In this sense, the vessels moored by defendant, awaiting engines and boilers, were ships. They were- machines upon the water, would float, and were capable of being mov- ed and propelled on the water, and were so floating on the water, and intended as aid to commerce. * * * Without taking space for general discussion, our conclusion is that the work of placing engine and boilers into the vessels of defendant, as they lay moored partly in front of plaintiff's land, whether done by an independent contractor or by the defendant itself, was a maritime Ch. 8) PUBLIC RIGHTS .735 purpose, — an incident to navigation and commerce, which the defend- ant, as one of the pubHc, had the right to pursue in the legitimate use of the highway, so long as such use did not unreasonably impede navi- gation. The mooring of vessels there, though they did overlap in front of plaintiff's land, did not constitute trespasses; and the plaintiff, un- der the facts found, has no standing in a court of equity to enjoin such use. There was therefore no error in the refusal of the circuit court to allow an injunction as to this, the main branch of the case. 2. The carrying of lines across the river bank of plaintiff presents ^ a wholly different question. Those acts invaded the real property of plaintiff, the title to which is not qualified by any right in the public. It is absolute. It was the judgment of the circuit court that such acts resulted in no real damage to plaintiff, and that, by reason of the rec- ord in this case, their repetition, no matter for what duration of time, could not ripen into a right by prescription, and hence plaintiff" was not entitled to any relief. We are unable to agree with this conclusion. The acts complained of were trespasses. It is by no means clear that they would not, if pursued long enough, grow into a prescriptive right. It is not necessary to ascertain this with positiveness. It is enough that, if there be any doubt, the risk should not be imposed upon the plaintiff. And it is no hardship upon defendant to say that, if it needs to use plaintiff's land, it can do as other people do in like circumstances, — obtain a right to such use by negotiation. The very fact that the trespasses are in themselves trifling, and the damage, if any, so small that suits at law to recover would be impracticable, affords an addition- al reason for granting an injunction. As to this ground of complaint the judgment oi tiie circuit court will be reversed, and judgment en- tered for plaintiff in error. Judgment reversed.^** 10 Ace: Tliat the mere projecting over the boundary line of a vessel moored for loading and unloading is not actionable: Original Hartlepool Co. V. Gibbs, L. R. 5 Ch. D. 713 (1877). Compare Harrington v. Edwards. 17 Wis. 5SG. 84 Am. Dec. 768 (1S6.3) ; Delaware River Steamboat Co. v. Burl- ington & B. Steam Ferry Co., 81 Pa. 10.3 (1876); The Wm. H. Brinsfleltl (D. C.) 39 Fed. 215 (1SS9). Ace: That there is no right of mooring to or landing on riparian land of a third person: Ensminger v. People ex rel. Trover. 47 111. 384. 95 Am. Dec. 495 (1868); Bainbridge v. Sherlock, 29 Ind. 3G4, 95 Am. Dec. 644 (1868). A. anchored coal barges in a navigable river opposite B.'s land and on B.'s side of the river, and kept them there for over two years. B.'s land was not in use. Held. B. has a right of action against A. Wall v. Pitts- burgh Harbor Co., 152 Pa. 427, 25 Atl. 647, 34 Am. St. Rep. 667 (1893). 716 RIGHTS IN THE LAND OF ANOTHER (Part 2 WILLOW RIVER CLUB v. WADE. (Supreme Court of Wisconsin, 1898. 100 Wis, 86, 76 N. W. 273, 42 L. R. A- 305.) Cassoday, C. J.^^ This is an action for trespass to recover $20 damages for taking- fish, commenced in justice court. The defendant answered to the effect that he had a right to take the fish, and that the title to land would come in question, and gave the requisite bond, and the case was thereupon transferred to the circuit court, where the cause was tried. * * * a^. ^^^ ^^q^^ Qf ^j^g evidence the court directed a verdict in favor of the defendant, and from the judgment entered thereon plaintiff brings this appeal. The precise question presented by the facts stated is whether the defendant, by stepping from a public highway into a boat upon the river, and while floating thereon, catching the fish in question from the river by hook and line, committed a trespass upon the premises of the plaintiff. The proper solution of the question depends upon the proper determination of one or more other questions discussed at the bar. Counsel for the plaintiff is undoubtedly correct in claiming that at common law the public right of fishery in rivers was confined to such portions of the rivers as were covered by the ebb and flow of the sea, and that the right of fishing in fresh-water rivers was ex- clusively in the abutting landowners. * * * This court has held from the beginning that the owners of the bank of a navigable stream by purchase from the United States, even when meandered, were presumed to be such owners to the middle of the stream in front of such purchase. * * * Upon the undisputed evidence and the adjudications mentioned, we must hold that the Willow river is a pubHc navigable stream, fitted for useful commerce and transportation of persons and property thereon. Being such, it necessarily follows, from the principles of law stated, that, notwithstanding the plaintiff has title to the bed of the river, nev- ertheless it holds the same in trust for the use of the public. The question recurs whether the public right of fishery is included in, or an incident of, such public right of navigation. In other words, has the plaintiff, as riparian owner, the exclusive right to take fish from the river? The plaintiff certainly has no property in the parti- cles of water flowing in the stream, any more than it has in the air that floats over its land. Its rights in that respect are confined to tlieir use and in preserving their purity while passing.. Lawson v. Mowry, 52 Wis. 234, 235, 9 N. W. 280. So, the fish in the stream were not the property of the plaintiff at common law, any more than the birds that flew over its land. State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199; Ang. Water Courses (7th Ed.) § 65a, and cases there cited; State v. Welch, 66 N. H. 178, 28 Atl. 21, 11 Parts of the opinions are omitted. Ch. 8) PUBLIC RIGHTS 717 As indicated, the public right of fishery in tidal rivers was main- tained, at common law, in England, before the use of steam, — when vessels could only be carried up the river by the flow of the sea, and down the river by the ebb of the sea, — and consequently when the ebb and flow of the tide practically measured the navigability of the stream. For the same reason, the public should have the right to fish in all the public navigable waters of the state, including all public navigable rivers and streams of the state. The supreme court of the United States, in a recent case, partially adopting the language of the New Hampshire case cited, has declared that, "at common law, the right of fishing in navigable waters was common to all. The taking and selling of certain kinds of fish and game at certain seasons of the year tended to the destruction of the privilege or right by the destruction conse- quent upon the unrestrained exercise of the right. This is regarded as injurious to the community, and therefore it is within the authority of the legislature to impose restriction and limitation upon the time and manner of taking fish and game considered valuable as articles of food or merchandise. For this purpose fish and game laws are en- acted. The power to enact such laws has long been exercised, and so beneficially for the public that it ought not now to be called into question." Lawton v. Steele, 152 U. S. 138, 139, 14 Sup. Ct. 501, 38 h. Ed. 385. In this state the legislature has expressly declared that "all fish in the public waters of the state of Wisconsin are hereby declared to be the property of tlie state and may be taken for the use of the individual and become his property at any time and in any manner not prohibited by the laws of this state." Laws ^1893, c. 307, § 20. Public naviga- ble streams are certainly "public waters," within the meaning of that act. Since the defendant kept within the banks of the river, — within the limits of the public highway, — his fishing was nothing more than the exercise of a right common to the public. We must hold that the Willow river was a public navigable stream, and the defendant was not guilty of trespass by going upon it, as he did, catching the fish in question. The judgment of the circuit court is affirmed.^* 12 "The idea is sometimes entertained that the right to pass along a pub- lic navigable river carries with it the right to fish in it, but so far as re- gards non-tidal rivers this is not so. No lawyer could take that view. Per- sons using a navigable highway no more acquire thereby a right to Osh there than persons passing along a public highway on land acquire a right to shoot upon it." North, J., in Smith v. Andrews, [1891] 2 Ch. 678, 695. Ace. : Adams v. Pease, 2 Conn. 481 (1818) ; Hooker v. Cummings, 20 Johns. (N. Y.) 90, 11 Am. Dec, 249 (1S22) ; Queen v. Robertson, 6 Can, S. C. 52 (18S2). There is no right of fishing upon rivers nonnavigable in fact. Beach v. Morgan, 67 N. H. 529, 41 Atl. 349, 68 Am. St. Rep. 692 (1893); Griffith v. Holman, 23 Wash. 347, 63 Pac. 239, 54 L. R. A. 178, 83 Am. St. Rep. 821 (1900). So as to lakes which are not connected with navigable waters and the beds of which are in private ownership. Albright v. Cortright, 64 N. J. Law, 330, 45 Atl. 634, 48 L. R. A. 616, 81 Am. St. Rep. 504 (1899); Lem- 718 RIGHTS IN THE LAND OP ANOTHER (Part 2 PlNN^Y, J., dissenting. Marshall, J. I concur with the decision of the court, but regard the opinion of the Chief Justice as being so framed as to lead to the beHef that the common right of fishing in navigable streams in this state is a mere incident to the right of navigation, and that defendant is not liable because he was navigating the stream in a boat at the time of the act complained of ; in short, that he was where he had a right to be in the exercise of the right of navigation, and therefore that he was not a trespasser upon the plaintiff's lands. In my judg- ment the right of fishing in navigable waters is common to all, and exercisable, so far as it can be done without trespass on the banks thereof, whether the person exercising such right be at the time nav- igating the stream in a boat or otherwise floating upon the surface of the water, or traveling upon the bed in the shallows, or anywhere in any manner, between the lines of ordinary high-water mark. That is, that the common-law doctrine of navigble waters, with all the inci- dents and characteristics of such waters, has been extended to in- clude all streams navigable in fact, through the location of the title to the beds of such streams in the state originally for that very pur- pose, and that though such title, by force of state policy, has passed from it to private ownership, such ownership is of such a qualified' character as not to in any way interfere with the character of the streams as public waters; not public in the sense of such rivers as at common law were merely subject to the right of passage, but public by the common-law test of navigability. * * * SECTION 2.— HIGHWAYS GOODTITLE ex dem. CHESTER v. ALKER & ELMES. (Court of King's Bench, 1757. 1 Burr. 138.) [The lessor of the plaintiff was the owner of a parcel of land over which there was a public highway. The defendant wrongfully erect- ed a fence that enclosed part of this land, and retained possession of this part. This action of ejectment was brought in respect of the strip so enclosed.] beck V. Nye, 47 Ohio St. 336, 24 N. E. 686, 8 L. R. A. 578, 21 Am. St. Rep. 828 (1890). Compare Beckman v. Kreamer, 43 111. 447, 92 Am. Dec. 146 (1867). As to the public right of fishing in the Great Lakes, see Lincoln V. Davis, 53 Mich. 375, 19 N. W. 103, 51 Am. St. Rep. 116 (1884) ; Sterling v. Jackson, 69 Mich. 488, 37 N. W. 845, 13 Am. St. Rep. 405 (1888); Sloan v. Biemiller, 34 Ohio St. 492 (1878). Ch. S) ~ PUBLIC RIGHTS * 719 Mansfield, C. J. * * * ^^ As to the Question "Whether an ejectment will lie, by the owner of the soil, for land which is subject to passage over it as the King's highway?" 1 Ro. Abr. 392. letter B. pi. 1, 2. is express— "That the King has nothing but the passage for himself and his people : but the freehold and all profits belong to the owner of the soil." So do all the trees upon it, and mines under it (which may be extremely valuable.) The owner may carry water in pipes under it. The owner may get his soil discharged of this servitude or easement of a way over it, by a writ of ad quod damnum. It is like the property in a market or fair. There is no reason why he should not have a right to all remedies for the freehold; subject still indeed to the servitude or easement. An assize would lie, if he should be disseised of it: an action of trespass would lie, for an injury done to it. I find by the case of Selman v. Courtney, Tr. 13, 14 G. 2. that a point which had been before the Court of Exchequer in the case of the Dutchess of- Marlborough v. Gray, M. 2 G. 2. is now settled ; viz. "That its being a highway cannot be given in evidence by the de- fendant, upon the general issue:" wdiich proves that the ownership of the soil is not in the King. I see no ground why the owner of the soil may not bring ejectment, as well as trespass. It would be very in- convenient, to say that in this case he should have no specific legal remedy: and that his only relief should be repeated actions of dam- ages, for trees and mines, salt springs, and other profits under ground, 'Tis true indeed that he must recover the land, subject to the way: but surely he ought to have a specific remedy, to recover the land it- self ; notwithstanding its being subject to an easement upon it. * * * [Foster and Denison, JJ., concurred.] Judgment for the plaintiff.^* STACKPOLE et al. v. HEALY. (Supreme Judicial Court of Massachusetts, 1819. 16 Mass. 33, 8 Am. Dec. 121.) Trespass for breaking and entering the close of the plaintiffs. The declaration contains two counts. The first alleges that the defendant on, &c. with force and arms broke and entered the close of the plain- tiffs in Waterville, bounded, &c. and with cows ate up consumed and depastured the grass and corn then and there growing, of the val- 13 Part of the opinion is omitted. i*Acc.: Postal Telegraph-Cable Co. v. Eaton, 170 111. 513, 49 N. E. 365, 39 L. R. A. 722, 62 Am. St. Rep. 390 (1897). Contra: Cincinnati v. White, 6 Pet. 431, 8 L. Ed. 452 (1832). A. went on a public highway, the fee of which was owned by B., and there hunted. Held, he may be indicted under a statute for committing "a tres- pass upon the land of" B. "by being thereon in the pursuit of game." Kex. v. Pratt, 4 El. & Bl. SCO (1855). 720 ' RIGHTS IN THE LAND OF ANOTHER (Part 2 ue, &c. The second count alleges a like trespass in that part of the same close, 'over which the publick highway runs. The defendant pleads not guilty as to the force, &c. and as to the residue of the trespass in the first count, he pleads in bar, that over and across the place in which, &c. there is, and at the said several times when, &c. and before and ever since has been a pubUck high- way, in and over every part of which he and all other the inhabitants of Waterville have, and ever since the same hath been a publick high- way, have had a right with their cows, to pass, repass and graze : and at the said several times when, &c. tlie said H. with his said cows were of right passing, repassing and grazing, in and upon the said highway. And as to the supposed trespasses upon that part of the said close not covered by the said highway, but which lay contiguous thereto, being the remaining part of the locus in quo, that just before the several times when, &c. his said cows, being of right on said high- way passing, repassing and grazing, without the consent of the de- fendant escaped therefrom into the said remaining part, through the fences of the plaintiffs, which they were bound to keep in good and sufficient repair, and which were not then in such repair, but alto- gether ruinous : and so said cows escaped through the default of the plaintiffs. And as to the second pount, he justifies as in that part of the former plea respecting the part of the close covered by the highway. The plaintiffs demur generally to both the pleas in bar, and the de- fendant joins in demurrer. Putnam, J.^'' The principal question intended to be presented in this case is, whether the people of this commonwealth have a right to use the lands for the purpose of grazing, which have been laid out as highways. I hold it to be clear that the publick have no other right, but that of passing and repassing; and that the title to the land, and all the profits to be derived from it, consistently with, and subject to, the right of way, remain in the owner of the soil. The owner may maintain trespass for any injury to tlie soil, which is not incidental to the right of passage acquired by the people. The land covered by a highway may be recovered in ejectment. Lord Mansfield, in de- hvering the opinion of the court in the case last referred to cites with approbation from 1 Roll. Abr. 392, that the king has nothing in an highway, but a passage for himself and his people ; but the freehold and all the profits belong to the owner of the soil. His Lordship adds, "so do all the trees upon it, and the mines under it, which may be ex- tremely valuable:" and Mr. Justice Foster observes, "the owner of the soil has all above and under ground, except only a right of pas- sage for the king and his people." This has been the settled law, certainly ever since, the time of Edw. 4. The only case, Avhich seemed to the contrary, was that of Sir IB Part of the opinion is omitted- Ch. 8) PUBLIC RIGHTS 721 Bouchier Wray, mentioned in the last cited case, which Lord Mans- field said was so loosely remembered, and so imperfectly reported, as to deserve no regard. The old authorities are cited by Viner, Chimin priv. B, and particularly 8 Edw. 4, 9, pi. 7, where this was held to be the law by all the justices. These principles have also been recognized in this court. In the case of Perley v. Chandler, 6 Mass. 454. 4 Am. Dec. 159, Chief Jus- tice Parsons states the opinion of the court, that every use to which the land may be applied, and all the profits which may be derived from it, consistently with the continuance of the easement, the owner can lawfully claim. And in a late case it was held, that one might re- cover the land, subject to the way, in a writ of entry. It is not lawful therefore for the publick to put their cattle into the highway to graze. For wherever one would justify taking the property of another, in virtue of a license or of a way, he must plead and prove that he pursued the authority, or used the way as a way, and not for any other purpose. So in 22 Edw. 4, 8, pi. 24, it was said by one of the court, that "if one drive a herd of cattle along the highway, where trees, or wheat or any other kind of corn is growing, if one of the beasts take a parcel of the corn, if it be against the will of the driver, he may well justify; for the law will intend that a man cannot govern them at all times as he would : but if he permitted them, or continued them &c. then it is otherwise." In the case at bar, the defendant put his cattle into the way to graze, and not merely to pass along the way. All the injury, which is necessarily done by the passing, all the involuntary damages done by the traveller, must be borne by the owner of the soil. But he is entitled to damages for the excess. * * * The statute of 1799, c. 61, allows the inhabitants of towns to order that neat cattle, horses or horse kind, mules or asses, shall not go at large, without a keeper, under a penalty &c. Hence it was argued, that the legislature admit, or take it as a settled custom or law, that horses may be suffered to go at large on the highways, and of course feed upon the grass there growing. We have seen how clear the common law is upon this subject, and that it has been adopted here. Now if the legislature intended such a material alteration as has been contended for, is it to be supposed that they would not have expressed themselves clearly, and not mere- ly by doubtful implication? But did they mean to touch rights pro- tected by the common law ? I may ask another question ; could they do so, if they were disposed, (which is a case never to be supposed,) without making compensation to the owner ? Take the case of a fruit tree standing in the road, but in a situation to afford a convenient shade to the traveller, an ornament and not a nuisance to the way, and yielding an annual profit to the owner of the soil. Now the leg- islature might, if they thought it expedient, provide by law that for Big. Rights — 40 722 RIGHTS IX THE LAND OF ANOTHER (Part 2 the future the soil of all highways that should be laid out should be vested in the publick, and compensate the owners accordingly. But what constitutional right would they have to devest the owners of the soil of rights remaining, in respect to ways theretofore laid out? Take the case of a mine under the way, which the owner of the soil may profitably and conveniently work, consistently with the free pass- age of the people over it. Clearly before the statutes referred to the property remained in the owner of the soil. Can he be divested with- out compensation? If the legislature can divest him of the trees and herbage, I see no reason why they may not do the same as to all prof- its, and rights, and property under the way. We do not believe that the legislature would do this, if they had the power. There is no in- ducement to it. The accommodation desired by the publick is to pass and repass with ease. So it is expressed in the colony law of 1639: "all country highways shall be such as may be most easy and safe for travellers." The pasturage never made any part of the inducement, or reason for laying out highways. And upon the discontinuance of a highway, it never was doubted that the soil belonged to the former owner or his heirs, discharged of the easement. Upon consideration of the whole matter, we are of opinion that the common law doctrine has been adopted in this commonwealth, and continues unaltered by statute. The defendant therefore cannot jus- tify turning his cattle into the highway for the purpose of grazing ; he having no other right there but of passage. The remaining question is, whether the owner of land, adjoining a highway, unfenced, may maintain trespass against one, who had put his cattle into the highway to graze, because the cattle escaped into the adjoining land, and there ate the plaintiff's grass. And we are of opinion, on the authority of the case of Dovaston v. Payne before cited, and the reason and law applicable to the case, that such action may well be maintained. In the case referred to, the defendant plead- ed that his cattle, being in the highway, escaped into the plaintiff's close for want of a sufficient fence. And it was held clearly a bad plea: for the defendant ought to plead and prove that they were passing the highway, and that the defendant was using the same as a highway, and not otherwise. So is the pleading in Heme 828. De- fendant said, "he was driving his cow along the highway, from which she escaped into the plaintiff's close for want of fence; and that the defendant followed her and drove her back : and that the cow casually and snatchingly, and against the will of the defendant, sparingly did bite the grass while returning," &c. In Dovaston v. Payne Justice Buller states the question, whether trespass or not, to depend on the fact whether the defendant was pass- ing or using the road as a highway, or whether the cattle were in the road as trespassers. This depends upon a rule of the common law well settled, that a man is not obliged to fence against any cattle, but such as may be right- Ch. 8) PUBLIC EIGHTS 723 fully on the adjoining close. The statutes of this commonwealth have not altered that rule; and closes, which are adjoining the highways, are left as at common law. Now the cattle of the defendant were not rightfully in the high- way for the purpose of grazing. If they had escaped from the owner, without any default on his part, he could well have justified. But in such case, he must plead that the beasts were in his view, and escaped, and that he made fresh pursuit. If a man will leave his land unfenced against the highway, he must submit himself to bear all the casual damages, which may arise involuntarily on the part of travellers. But those who use highways are not to convert the right of passing into a right to take the herbage, which belongs to the owner of the soil. Defendant's pleas in bar adjudged bad.^® BARBER v. PENLEY. (Chancery Division, 1893. [1893] 2 -Ch. 447.) This was a motion for an interlocutory injunction, treated as the trial of an action. The plaintiff had a lease for twenty-one years, granted in August, 1892, of premises known as Waterloo Chambers, Wych Street, Strand, which she used as a common lodging-house for men of the working classes. The only access to her premises was by a dobr adjoining the pit entrance to the Globe Theatre. The defendant was lessee of the Globe Theatre. Shortly before the issue of the writ, he had commenced the performance of a play called Charley's Aunt, which had become at once extremely popular. The doors of the theatre were opened for the evening performances at 7:30 p. m., and crowds of persons collected every evening in the street outside the pit entrance, previously to the opening of the doors. The crowd began to collect about 5 :30 p. m., and, as the Judge held on the evidence at the time of the issue of the writ, during the two hours previous to the opening of the doors, occupied the pavement 16 Ace: Woodruff v. Neal, 28 Coun. 165 (IS.jO). For other users of the highway thut constitute a violation of the rights of the owner of the soil, see Harrison v.' Rutland, [1S93] 1 Q. B. 142, loiter- ing on the highway to prevent the owner's use of his own laud ; Hickman v. Maisey, [1900J 1 Q. B. 752, using the highway as an observation post to spy upon the owner; Codman v. Evans, 5 Allen, 308, 81 Am. Dec. 748 (1862), building overhanging bay window ; Lewis v. Jones, 1 ta. 336, 44 Am. Dec. 138 (1845), stacking timber. See, also, People v. Foss, SO Mich. 559, 45 IS'. W. 480, 8 L. R. A. 472, 20 Am. St. Rep. 532 (1890) ; State v. Davis, SO N. U. 351, 30 Am. Rep. 86 (1879). The question as to how far or under what circumstances State or munic- ipal authorities may authorize the use of a street for purposes such as the laying of pipes, erection of electric light and other poles, laying of car tracks, etc. ; without compensating tlie abutting owner, who has title to the street is dealt with in Halls Cases on Constitutional Law, p. 757 et seq. 724 RIGHTS IN THE LAND OF ANOTHER (Part 2 in front of the plaintiff's premises in such way as to obstruct access to them, notwithstanding that poHcemen had been employed at the expense of the defendant to preserve order. The plaintiff complained that, by reason of such obstruction, her customers were impeded in getting to her house at the hour when, after their day's work, they were in the habit of seeking lodgings. The evidence shewed also that both parties had made representations to the police authorities, and that previously to the hearing of this mo- tion additional policemen had been employed, and the pavement in front of the premises was then kept entirely clear. The motion before the Court was for an injunction till trial, to restrain the defendant from carrying on the Globe Theatre, so as (by causing crowds to assemble or otherwise) to obstruct the access to or egress from tlie plaintiff's premises, Waterloo Chambers. North, J.^'^ stated the nature of the action, and continued: It was said that the plaintiff had taken these premises with the knowledge that there was the theatre next door, which is quite true, and that is a matter which is deserving of consideration. A person who deliberately goes next door to a theatre cannot expect to have precisely the same amenities in Wych Street that the lessee of a private house in a street occupied by private houses only in the West End would expect; but still such a lessee has a right to expect that no nuisance shall be committed to the prejudice of such person. The collection of playgoers in the street would to some extent be a pub- lic nuisance, if a nuisance at all ; but certainly it would be a private nuisance to the plaintiff, in respect of which, if proved, the plaintiff would have a right of action. , [After considering the evidence as to the obstruction, on which he considered, that when the writ was issued there was, previously to the opening of the door of the theatre, such obstruction as to render access to the plaintiff's premises very difficult, his Lordship continued :] * * * Then there is another case in the same volume — Rex v. Jones, 3 Camp. 230 — where it was held to be an indictable offense for a timber merchant to cut logs of timber in the street adjoining his timber-yard, and Lord Ellenborough said: "If an unreasonable time is occupied in the operation of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or waggon may be unloaded at a gateway; but this must be done with promptness." Then he gives other illustrations. Then at the end, speaking of the particular case before him, he says : "I cannot bring myself to doubt of the guilt of the present defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway into his timber-yard; and if the street be narrow, he must remove to a more commodious situation for carrying on his business." * * * Lord Justice Giffard says (Law Rep. 4 Ch. 397): "In 17 Part of the opinion is omitted. Ch. 8) PDBLIC EIGHTS 725 Inchbald v. Robinson the whole of the case made by the bill is, that the circus will draw together a great crowd of disorderly persons. The evidence in support of this allegation is insufficient, and if an injunction in such a case were to be granted and upheld, it would prevent the setting up near a dwelling-house of any exhibition likely to be attended by a large number of people." It was said that this was an authority to shew that the plaintiff would have no right to complain of the nuisance caused by persons coming to and going from the theatre ; but, in my opinion, that does not apply to the case I have to deal with. It is not here a coming to and going from that is complained of; it is the nuisance caused by those who intend ultimately to get into the theatre collecting in the street out- side the theatre and remaining there, which is quite a different thing from coming to or going from it. There is no complaint here of the use of the theatre, either as regards persons who come to it without having to stop in the street so as to be a nuisance to the plaintiff, nor is there any complaint made here of the persons who are going away from the theatre at the end of the performance. It was also said that there was a distinction between outdoor and indoor performances, that this case was an authority to that effect. That there may be a distinction in detail and result I can quite understand ; but I do not see where the distinction in principle is. If a defendant does within his premises what causes a nuisance outside, it does not matter wheth- er the nuisance is caused by what goes on inside being actually visible outside and so causing the crowd to collect, or whether, by reason of what is going on, or what is about to go on inside, he causes tlie crowd to collect. It seems to me the principle of both is the same, though the application is somewhat different. * * * Then it is said that the defendant could not prevent a crowd from gathering, and that it was a police matter. It does appear that the defendant did from the first tell the police that assistance would be necessary to regulate the crowds ; but I find that the plaintiff did that also, and, although that was done, no such interference took place as prevented the arising of the nuisance complained of. I think the defendant's own evidence confirms the plaintiff's evidence as to crowds , that collected, because he himself says that, although at half-past five there is no crowd to complain of, it is not until half-past six that a large number of persons then collect, and I take it that is an ad- mission that from that time onwards at any rate there were such per- sons. As regards the defendant's suggestion that he could not help it, if in point of fact the nuisance exists which is caused by him, not with an object to cause that nuisance, but by reason of the enter- tainment he carries on, a.nd to which he invites the public to come, it seems to me that it is a case in which either he must discontinue his performance or the nuisance must be prevented. In this case the police have taken the matter into their control, and it is clear from the affidavit of the plaintiff in reply that they can eft'ectually prevent 726 RIGHTS IN THE LAND OF ANOTHER (Part 2 the nuisance. The affidavit in reply says there has been no subject of complaint whatever since a recent date subsequent to the commence- ment of the action, and there it appears that the police have taken control and have prevented a nuisance arising. It is said the defend- ant ought to prevent this ; but he cannot do it — of course he has no control over the streets, he cannot put persons in the street to regu- late the crowds, and one of the first things the police would do would be to prevent the interference by other persons with the traffic of the street. Still, this nuisance did exist, and in my opinion the plaintiff is entitled to be relieved from it. But in this case I do not propose to grant any injunction. In the first place I do not think it necessary; no injunction is wanted now, because, as the plaintiff's own affidavit, to which I have just referred, says, the nuisance has been put a stop to. * * * If he [the de- fendant] had claimed a right to obstruct I certainly should have granted an injunction. As he does not claim that right, I do not think an injunction is necessary, and therefore I do not propose to grant it. Then there is another reason why I should not do so. As I have said, I have not the least doubt that the police will do all that is necessary; but, supposing that there was a great fire or a great demonstration or anything else that caused extraordinary and sudden demand upon the services of the police, and the police could not be there to prevent the crowd, and it did happen on some particular occasion that there was a nuisance, I do not intend to expose the defendant to a motion to commit by reason of such an accidental interference with the plain- tiff's rights. The result is, that I do not think it necessary to grant an injunc- tion, and I do not propose to do so ; but in my opinion the plaintiff was justified in bringing the action, and, therefore, the order will be: "It appearing from the plaintiff's affidavit in reply" (referring to it) "that the nuisance has been discontinued, the Court doth not think fit to make any order except that the plaintiff's costs of the action shall be taxed and paid by the defendant." ^* TUCKER et al. v. ELDRED et al. (Supreme Court of Rhode Island, 1860. 6 R. I. 404.) Trespass for breaking and entering the close of the plaintiffs in South Kingston, and cutting down the trees, wood, timber, and brush- wood of the plaintiffs, and burying the same under the ground. The case, which had been appealed from the court of common pleas, was tried, under the general issue in this court, at the February term 18 See Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536 (1857); Callanan V. Gilraan, 107 N. Y. 360, 14 N. E. 264, 1 Am. St. Rep. 831 (1887); Raymond V. Keseberg, 84 Wis. 302, 54 N. W. 612, 19 L. R. A. 643 (1893). Ch. 8) PUBLIC RIGHTS 727 for the County of Washington, 1860, with a jury, when it appeared, that tlie town of South Kingston, having laid out a highway through the farm of the plaintiffs, and having paid the damages assessed against them therefor, under the statute, the defendants, who were the town- sergeant and his assistants, in opening and making the same through a space of some thirty-nine rods long by three rods wide of wood- land, cut down the trees of the plaintiffs growing thereon, and used, as materials in building the road in the swampy places, the wood and brush so cut on the land of the plaintiffs taken for the road. The jury assessed the plaintiffs' damages at thirty dollars; the ver- dict being, by agreement, subject to the opinion of the court, upon the question of law : Whether trees and brushwood growing upon land condemned to the uses of a highway, are, under the statute, included in the condemnation and estimate of damages, or, when removed by the surveyor for the purpose of opening and building the new high- way, are to be left for the use of the owner of the land? Brayton, J. The question submitted to the determination of the court in this case, is whether a surveyor of highways is justified in law, not merely in cutting and removing timber standing or growing within the line of the highway newly laid out, and which straitens, hinders, or incommodes the public in traveling, but in using the tim- ber grown there in the construction of tlie way ? By the general rules of law, the public have but an easement upon the land lying within the lines of the highway. Notwithstanding the laying out of the highway and the condemnation of the land to the use of the public for travel, the title to the soil, and all the profits thereof consistent with the existence of the easement, remain in the original owner. He has a right to the freehold and to all the profits which may be derived from it, consistently with the right of passage of the public, — to all mines beneath the surface, to all trees, grass, and pasturage upon and above the surface. Goodtitle v. Aiken, 1 Burr. 133; Stevens v. Whistler, 11 East, 51; Doe v. Wilkinson, 3 B. & C. 413; Perley v. Chandler, 6 Mass. 454, 4 Am. Dec. 159; Jackson v. Hathaway, 15 Johns. (N. Y.) 447, 8 Am. Dec. 263; Gidney v. Earl, 12 Wend. (N. Y.) 98. Our statutes (ch. 43, § 8, ch. 44, § 17, of the Rev. Sts.) provide, that upon the laying out and establishment of a highway, everything upon the land which shall in any way straiten, hinder, or incommode the travel, may be removed therefrom ; as build- ings, fences, trees, or other thing whatsoever. This right the law would imply without the statute ; since upon the passing of the ease- ment to the public, everything reasonably necessary to its enjoyment passes with it. This power is necessarily vested in the surveyor of highways, who is appointed by law to keep the way in repair for the convenience of the public. He, therefore, may remove the trees, if they in any way in- terfere with the travel ; but the right to remove gives hun no property in them. 728 RIGHTS IN THE LAND OP ANOTHER (Part 2 There seems to be no difference in this respect, certainly no material difference, between a public and a private way. In the one case, the easement is for the benefit of the general public; in the other, for that of an individual; but in neither case does any property in the land, or its incidents, pass from the owner of the soil; ahd the in- dividual, in the one case, and the public in the other, are to make and maintain the way in proper condition for travel, at his or their own expense. If the way may be made cheaper with timber than with earth, it must be provided by them ; and if they will take that which is another's for this purpose, they do it at their peril. Ii is said, indeed, that in the assessment of damages for the laying out, the use of the wood is made an item of these damages. The dam- ages for which the statute provides, are, "the damages which the own- ers of the land shall sustain by means of such highway passing through their lands;" that is, the damages which they may suffer from the right of the public continually to pass over their lands, — the adaptation of the soil to that passage, — the removal of everything therefrom which may interfere with the travel, and the fact that they must, by such use, be deprived, to a great extent, of the profit of the soil ; the growth of timber thereon being one source of profit. These dam- ages are necessarily assessed before the land is entered upon for the purpose of making the way; and, therefore, cannot be for all the in- jury, necessary or unnecessary, which may be actually done by the surveyor or other person, in making the way, and opening it for travel. The assessment can only be for such damages as necessarily will be done to the owner of the land in order that the public might be enabled conveniently to pass over the land. The use of the timber in the con- struction of the way is certainly not reasonably necessary to the pas- sage of the public ; though the removal of it from the path may be, and would be. Until such necessity ,is shown, no reason is shown why the value of the timber should be an item of damages to be awarded to the owner of the land. The same reason is equally conclusive against the right of a sur- veyor of highways, in the course of repairing or amending the same, from doing more in relation to the timber growing within the lines of the highway, than to cut down and remove it, so that it shall not im- pede the travel. According to the agreement, therefore, judgment must be entered upon the verdict.^" 19 Compare Aurora v. Fox, 78 Ind. 1 (1881); Stretch v. Cassopolls, 125 Mich. 167, 84 N. W. 51, 51 L. R. A. 345, 84 Am. St. Rep. 567 (1900) ; Rich v. Minneapolis, 37 Minn. 423, 35 N. W. 2, 5 Am. St. Rep. 861 (1887); Cole v. Drew, 44 Vt. 49. 8 Am. Rep. 363 (1871). Ch. 8) PUBLIC RIGHTS 729 MOREY V. FITZGERALD. (Supreme Court of Vermont, 1884. 56 Vt. 487, 48 Am. Rep. 811.) RowELL, J. The evidence on the part of the plaintiff tended to show that for about six years next before the commencement of this suit, the defendant was in the habit of driving his horse and carriage outside of said pent-road on to plaintiff's meadow, thereby cutting up the soil thereof and trampling down the grass then and there growing ; but tlie particular times when said supposed trespasses were com- mitted were left wholly indefinite. The defendant justified, for that at the said several times when, etc., said road was dangerous and im- passable, wherefore he drove extra viam, as he lawfully might. The plaintiff's evidence being thus indefinite as to the said times when, it was competent, and indeed necessary, for the defendant to meet it with evidence as to the general bad condition of the road equally in- definite as to time. The exceptions state that "there was no evidence tending to show that the gate was on the plaintiff's land except as herein stated," but it is not therein stated that there was such evidence. In the charge the court say it does not conclusively appear that it was on plaintiff's land ; but this cannot be taken as showing that there was evidence tending to show that it was on his land. This remark of the court is made incidentally only, and by way of giving a reason for its ruling that plaintiff could not recover for the removal of the gate. Hence there was no apparent error in the court's refusal to comply with plaintiff's first request, nor in the charge on the subject-matter thereof. The court complied with the plaintiff's seventh request, but refused to comply with his second, third, fourth, fifth, and sixth requests ; and the main question arises on the exceptions to such refusal and to the charge in respect thereto. It is a maxim that private mischief shall be endured rather than a public inconvenience. That regard be had to the public welfare, is the highest law. Hence, if a public highway be out of repair and impassable, a traveller may lawfully go over the adjoining land, since it is for the public good that there should be at all times free passage along the highways for all the subjects of the State. In such case, an interference with private property is obviously dictated and justified summa necessitate, by the immediate urgency of the occasion, and a due regard to the public safety or convenience. Broom Leg. Max. 2 ; Lord Mansfield, C. J., in Taylor v. Whitehead, Dougl. 749; Lord Ellenborough, C. J., in Bullard v. Harrison, 4 M. & S. 393. But such obstruction must be from sudden and temporary causes, and of such a character as to render the road founderous and impracticable. The leading case in this country on the subject is Campbell v. Race, 7 Cush. 408, in which the highway was obstructed and rendered im- passable by snowdrifts. But such a right, having its origin in neces- 730 RIGHTS IN THE LAND OP ANOTHER (Part 2 sity, must be limited by the necessity that creates it, and does not exist from convenience merely, nor when, by the exercise of due care, after notice of obstructions, other ways may be used and traveling extra viam thereby avoided. It is to be confined to cases of necessity arising from sudden and recent causes that have occasioned temporary and impassable obstructions in the way. But it is said that the obstructions in this case were not sudden, un- foreseen, and temporary, but continuous, notorious, and permanent; and great stress is laid on the phrase, "unexpected and unforeseen occurrences," used by the court in Campbell v. Race. But the ob- struction in that case was of the same kind as one of the obstructions in this case, and of the same nature as to being unexpected and un- foreseen as the others.' Surely, the formation of ice or the occurrence of a washout in a highway is just as unexpected and unforeseen as a snowdrift, and in this latitude none of them are unexpected at cer- tain seasons of the year, or unforseen except in the sense that the precise time of their visitation cannot be foreknown. And although the defendant knew of the founderous condition of the road before he attempted to pass over it, he was not thereby de- prived of the right he otherwise would have had to travel it. One has a right to travel highways when he is not thereunto impelled by imperious necessity as well as when he is, provided always that he uses them for the purposes for which they are constructed and main- tained. But when one knows that a highway is so obstructed as to necessitate a divergence therefrom on to adjoining land in order to get past founderous portions thereof, it is his duty to the adjoining land-owner to go some other way if there be one reasonably available to him, rather than thus to deviate. But this case does not show that there was another way available to the defendant. All that is shown, is, that there was no evidence tending to show that defendant could not have gone some other way and thus have avoided going upon plaintiff's land. But this is not enough. Every reasonable intendment is to be made in'favor of the correctness of the judgment below ; and it is a cardinal principle, too often lost sight of by counsel, that error is not to be sought after, but must be made affirmatively to appear. The defendant's evidence tended to show that the obstructions were formidable though temporary in their character ; and the court charg- ed the jury that if they found them to be what the defendant's evi- dence tended to show them, and dangerous to pass over, the defendant was ' not bound to remove them ; and in this there was no error. If the obstruction is such that to remove it would materially delay the traveler in his journey, and impose upon him any considerable labor, no duty of removal is upon him. Besides, his right to cast quantities of earth and stones into a washout, or to cast and throw material out of the way, and perhaps on to adjoining land, may in many cases be fairly doubtful, to say the least. So unless the obstruction can be readi- ly and easily removed by the traveler, he is not bound to remove it, Ch. 8) PUBLIC RIGHTS 731 Lut may lawfully travel extra viam, doing as little damage as possi- ble. The obstacles that the defendant's testimony tended to show im- peded the way were obviously not of this character; but the jijry must have found them to have been dangerous. It is further objected that defendant should have taken measures to have the road repaired or have provided himself another way. But no such duty rested upon him. It was the duty of the town to keep the road in good and sufficient repair at all seasons of the year; and because it did not perform that duty, it did not devolve in any part upon the defendant, nor impose upon him the duty of providing him- self another way. The road was still a highway, and the defendant had a right to travel it as such, and in so doing he was in the exercise of a public right. It is further objected that these obstructions were too long in the way to be deemed temporary, but are fairly to be deemed permanent. i)Ut it is the nature and character of the obstruction rather tlian the time of its duration that is determinative in this respect. Snow and ice are temporary in their character, although often uncomfortably permanent in their duration. So washouts that impede and obstruct travel may justly be deemed to be temporary; for it is the duty of towns to make them so, and the common course that they are. The charge was justly applicable to the case as disclosed by the evi- dence, and we find no error in it nor in the refusal to charge as re- quested. Judgment affirmed.^" 20 In addition to the cases cited in the opinion, see Arnold v. Holbrook. L. R. 8 Q. B, 96 (1S73) ; State v. Brown, 109 N. C. 802, 13 S. E. 940 (1S91). INDEX [the figures refer to pages] AD VERTI SEMENTS, Right to affix to party walls, 236 note. ARTIFICIAL WATER COURSES, Rights in, 253 Wood, 256 Mason, 261 note, ASPHALT, Rights In, 54 note. ASSIGNEE, Liability of, for breaches of covenants in leases, 3S9 Mason, 391 note. Of lessee, at common law, 338 Brook, 338 Thursby, 339 Sugden. Of lessor, at common law, 338 Brook, 338 Thursby, 339 Sugden. Of part interest in lease, liability of, 395 Conghara, 395 Holford. Of part interest in reversion, rights of, 404 Attoe, 405 Twynam, 401 Demarest. Of unsealed instruments, liability of,' 410 Buckworth, 412 Hinsdale, 414 Standen, 489 Burbank, 490 Kennedy. Rights of, 419 note. When must be mentioned to make covenant run, 341 Spencer, 342 note, 343 Masury, 349 Purvis, 351 note, 442 Brown, 445 note. See Assignment. ASSIGNMENT, Covenant against, when broken, 358 Williams, 361 note. Covenantee's rights, effect of, on, 391 Mascal, 392 Stoddard, 393 Wills. Covenantor's liability, effect of, on, 383 Brett, 384 Wall, 384 Washington, 387 Jones, 388 note. Of covenantee's rights, 378 note, 423 note, 502 Randall. Of interests in leases not under seal, 416 Bickford, 418 Cobb, 419 note. Of lease, effect on rent, 549 Walker. Of reversion, effect on rent, 558 Harmer, 559 Damren, 559 note. Sublease, distinguished from, 395 Holford, 396 Earl, 398 McNeil, 404 note. ASYLUM. Right of, to use stream, 77 Filbert. BRANCHES PROJECTING, Right to remove, 3 note. BREACH, Continuing, right of action for, 391 Mascal, 392 Stoddard, 393 Wills. What Ls, 384 Washington, 387 Jones, 388 note. BUILDINGS, Altering, when waste, 653 Kile, 655 Melms. Damage to, right of reversioner to recover for, 143 Green. When recoverable, 36 RoUe. 40 Smith, 46 Foley, 49 Charless. Destruction of, as affecting rent, 575 White, 577 Wattles, 579 Graves. Prescriptive right to support of, 36 Bonomi, 39 note. CITY, Right of, to stream, for domestic user, 79 Canton, 82 note. COMPETITION, Agreements restraining, when run, 448 National, 506 Norcross, 510 note. BiQ. Rights (733) 734 INDEX [The figures refer to pages] COVENANTS, Assignee, of lease with, at common law, 338 Brook, 338 Thursby, 339 Sugden. Of reversion with, at common law, 338 Brook, 338 Thursby, 339 Sugden. Burden of, do not run, when, 458 Miller, 462 note, 462 Wiggins, 467 Farmers. Chattels, do not run with, 420 Allen, 422 note. Esse, in, things not, relating to, 341 Spencer, 342 note, 343 Masury, 349 Purvis, 351 note. Tee, conveyances in. Assigns, need not be mentioned, 442 Brown, 445 note. Privity, what constitutes, 429 Morse, 431 note, 432 Hurd, 435 Horn^ 438 note, 439 Burbank, What run, 427 Pakenham, 448 National, 452 Gilmer, 455 note, 455 Atlanta, 458 Miller, 462 note, 462 Wiggins, 464 Wooliscroft, 467 Farmers. Fence, to maintain, 270 Bronson. Lessee by, effect on, of eviction, 592 Carrell, 598 Smith. What run, 352 Cockson, 352 note, 353 Mayor, 355 note, 358 note, 358 Williams, 364 Vyvyan, 367 Gower, 369 Northern, 373 note. Who may enforce, 352 note, 355 Thruston, 358 note, 361 Vernon, 364 Vyvyan. Lessor, by, what run, 373 Jourdain, 374 Woodall, 376 Hollander, 379 Thomas, 379 note, 380 Dewar. Who may enforce, 373 note. 374 Woodall, 376 Hollander, 380 Dewar. Liability as on, in deed poll, 412 Hinsdale, 489 Burbank, 490 Kennedy. Party wall when run, 471 Gibson, 475 Conduitt, 479 Southworth, 482 Craw- ford, 486 Lincoln. Rent charge, to pay, 566 note. See Assignee, Assignments. CUSTOM, Easement acquirable by, 180 Abbott, 181 Graham. Profit not acquirable by, 176 Smith. DAM, Lower riparian's right to have maintained, 259 Matheson, 262 Kray. Upper riparian's right to maintain, 54 Embrey, 61 Dumont. DA3IAGES, Comparative, as element in granting injunction, 23 Hennessy, 29 Madison. Land, to, how estimated, 49 note. When recoverable by reversioner, 140 Baxter, 144 note. Nominal, disturbance of possession, in, 1 Pfeiffer. Nuisances, in, 32 Sturges, 35 note. Subsidence of land, in, 40 Smith, 41 note. DITCHES, Water in, as personal property, 266 note. DOMESTIC USER OF STREAM, 77 Filbert, 79 Canton, 82 note. DRAINAGE, Easement of, 209 Wood, 221 Durfee. License for, revocable, 304 Hewlins, 328 Wiseman. ' EASEMENTS, Affirmative, 268 Rider, 270 Bronson, 273 Castner. Appurtenant, not severable, 194 Cadwalader, 197 note. Continuance of, right of servient to, 253 Wood, 256 Mason, 259 Matheson 262 Kray. Contract to give, 316 Frogley. ^ Customary, 180 Abbott, 181 Graham. INDEX 735 (Tte figures refer to pages] BASEMENTS— Continued, Damage to, by servient, 221 Durfee, 222 note. Dominant estate, change in cliaiacter of, 207 White, 209 Wood. Drainage, 209 Wood, 221 Durfee. Exclusive, 280 note. Extinguishment of, see Extinguishment. Fencing, 270 Brouson, 273 Castner. Gross, In, 185 Aclcroyd, 187 Boatman, 190 Standard, lOr^ note. Interference witli, 222 Attorney General, 225 BitcUo, 227 note. Location of, 220 note. Nature of, 197 Hill. Prescriptive, extent of, 201 Williams, 203 Parks, 205 note. Repair of, 216 Edgett, 218 Dudgeon, 219 note, 268 Rider. Structures, in, 240 Shirley, 242 note, 243 Douglas. See Party Walls. User, change in as affecting, 207 White, 213 Gray, 215 note. Varieties of, 200 note. Water pipes, for, 213 Gray. Way, scope of, 201 Howell. 201 Williams, 203 note. 205 Watson, 207 White, 218 Dudgeon, 227 note, 228 Pittsburgh, 230 Atlantic Water courses, artificial, in, 253 Wood, 256 Mason. EJECTMENT, For overhanging wire, 3 Butler, EMBANKMENTS. Obstructing water, liability for, 102 note. EMINENT DOMAIN, Effect on rent of taking by, 585 Parks, 587 Biddle. EQUITABLE ENFORCEMENT OF AGREEMENTS RELATING TO LAND, Athrmative agreement, 496 Haywood, 498 Hall. Benefit, when runs, 511 Hansard, 513 note, 513 Renals, 517 Weil, 521 note, 521 Parker, 525 Clark, 528 note, 529 Wiufield, 531 Formby, 535 note, 535 Van Sant. Burden, when runs, 513 Renals, 517 Weil, 525 Clark, 538 Gollner. Dominant estate) need for, 531 Formby, 535 note, 535 Van Sant. Notice, 495 note. Privity, 496 note. Reason for, 494 Tulk, 496 Haywood. Suppressing competition, 506 Norcross, 510 note. When refused, 541 McClure, 545 Loud, 546 note, 547 note. ESSE, In, covenant relating to things not, when runs, 341 Spencer, 343 Masury, 349 Purvis. EVICTION, Constructive, when, 600 Pendleton, 606 Egerton, 610 Bass, 611 Stewart, 013 University. EXTINGUISHMENT OF EASEMENTS, Abandonment, by, 277 Moore, 280 note, 280 Crain, 286 Pratt, 291 note, 29s I'^tzpatrick. Acceptance of new easement, by. 298 Fitzpatrick, 299 note. Adverse user by servient, by, 293 Jennison, 295 note. Change in dominant estate, by, 277 Moore. Conduct of dominant incompatible with easement, by, 280 Crain, 2S2 Dillman. Estoppel, by, 295 Browne, 298 note. Excessive user, by, 287 McCullough. License, by, 290 Winter. Merger of estates, by, 299 Ritger. Ncinuser, by, 277 Moore, 286 Pratt. Obstruction by servient, by, 290 Winter, 291 Rogers, 293 Jennison. Parol, by, 282 note. 736 INDEX [The figures refer to pages] FEE, Covenfint to convey by lessor, whether runs, 374 Woodall, 376 Hollander. FENCE, Easement obligation to maintain, 270 Bronson, 273 Castner. Obstruction of way, by, 227 note. Equitable enforcement of obligation to, 505 Countryman. GAS, Escaping, illness caused by, when actionable, 12 note. Natural, rights in, 136 Hague, 139 note. HIGHWAYS, Deviation from, 729 Morey. i Obstruction of, 723 Barber. Ownership of, 718 Goodtitle, Pasturing cattle on, 719 Stackpole. Public use of, what is, 719 Staclipole, 723 note. Timber cut from, ownership of, 726 Tucker. HEAT, Failure to furnish, as constructive eviction, 610 Bass. INCORPOREAL INTERESTS, Leases of, 426 note, 636 Hancock, 636 note. INDEMNIFY, Covenant to, when runs, 369 Northern, 373 note. INJUNCTION, Discretion as to issuance of. 23 Hennessy,'29 Madison. Trespass, against, 8 Richards, INSURE, Covenant to, when runs, 343 Masury, 3&1 Vernon. INTEREST, License coupled with, when irrevocable, 316 note. IRRIGATION, Streams, use of, for, 54 Embrey, 64 Meng. LAND, Buildings on, how far entitled to support, 36 Rolls, 40 Smith, 46 Foley, 49 Charless. Care, degree of in excavating, 46 Foley, 49 Charless, 52 note. Damages to, how estimated, 46 Foley, 49 note. Recovery for, by reversioner, 140 Baxter. Neighboring, what is, 42 Birmingham. Riparian, what is, 71 Jones. Subsidence of, when actionable. 40 Smith, 41 note. Support of, nature of right to, 36 Bon5mi, 39 note, 42 Birmingham. LEASE, Assignment of, distinguished from sublease, 395 Holford, 396 Earl, 398 McNeil, 404 note. Part, assignment of, 395 Congham, 395 Holford. LEVANT ANT) COUCHANT, Defined, 164 Cole. LICENSE, Easement, to extinguish, when irrevocable, 290 Winter. Frauds, statute of, not within, 303 Wood. Interest, coupled with a, 316 note. Irrevocable, wben, 303 Wood, 31S Rerick, 322 note, 331 Hnrst I>ease. contrasted with, 313 note, 316 note. Nature of interest created by, ilOi Hewlins, 309 Wood, 318 Rerick, 328 Wiseman, 331 Hurst. INDEX 737 [Tie figures refer to pages] LICENSE— Continued, Kevocable, when, 304 Hewlins, 309 Wood, 313 Drake, 323 St. Louis, 32S Wiseman. Revocation of, by conveyance, 313 Drake. Riparian rigtit, to extinguish, irrevocable, 305 Liggins, Timber, for removal of, 313 Drake. LICENSEE, Right of action against third persons, 336 Miller. LOCOMOTIVE, Use of stream to supply, 68 Garwood. "MAKE OR SUFFER," 498 Hall, 501 note. MERGER, Right to rent lost by, oG6 Webb. .509 MoMurphy, 571 Smiley, 572 Real. Waste, action of, effect of, on, 6S2 Dickinson. MINES, Opening, when waste, 649 Gaines. MONEY, Running of covenant for, payment of, 464 Wooliscroft, 467 Farmers. NECESSITY, Way of, when ceases, 302 note. NEGLIGENCE, Buildings, in damage to. 46 Foley, 119 Fitzpatrick, 120 note. Fences, in damage to. 275 note. Land, in damage to. 49 Charless, 52 note. Nuisance, in, 29 note. Party walls, in raising, 235 note. Underground waters, in damage to, 129 note. 132 Kinnaird, 134 note. Waste, in, 659 Countess, 6G0 note, 667 Chalmers, 670 Earle, 672 Atlantic. NOTICE TO ADJACENT OWNER, ' When necessary in excavating, 49 Charless, 52 note. NUISANCE, Action for, by whom maintainable, 11 Kavanagh. Dust as, 21 note. Hospital as, 21 Stotler, 23 note. Injunction against, whether discretionary, 23 Heunessy, 29 Madison. Negligence, not an element in, 29 note. Neighborhood, character of, in determining, 13 Ross, 21 note. Noise as. 17 Romer, 21 note, 23 Hennessy. Pigpen as, 23 note. Prescriptive right to maintain, 32 Sturges, 35 note. Priority in location of, immaterial, 34 note. Property, damage to, as, 23 Hennessy, 29 note. Reversioner's right to sue with respect to, 141 Simpson, 145 Park, 14G note Saloon as, 23 note. Sanitarium as, 23 note. Smoke as, 13 Ross. Stallion, breeding place of, as, 23 note. VibrtTtion as, 23 Hennessy, 32 Sturges. OIL, Rights in, 140 note. PARTY WALLS, Advertisements, right to affix to, 236 note. Covenants relating to, 471 Gibson, 475 Conduitt, 479 Southworth, 482 Craw ford, 486 Lincoln. Destruction, effect of, on easement in, 242 note, 246 Sherred. BiG.RlGHTS — 47 rSS INDEX [The figures refer to pageaj PARTY WALLS— Continued, Easements in, 232 Brooks, 236 note. Quasi contractual right to recover for cost of, 246 Sherred, 249 Spaulding, 252 note, 485 note. Raise, when may, 232 Brooks, 235 note. Tear down, when may, 237 Putzel. Windows, insertion In, 236 note. PONDS. Rights in, 97 Schaefer, 99 note. POSSESSION, How given by sheriff, 3 Butler. Injunction to protect, 8 Richards. Violation of, actionable, 1 Pfeiffer. Ann projecting is, 3 note. Branches projecting are, 3 note. Caves projecting are, 2 Smith, Wire overhanging is, 3 Butler. POWER, Covenant to supply, when runs. 458 Miller, PRESCRIPTION, Air, none in, 33 Webb. Nuisance, right to, by, 32 Sturges, 34 note, 35 note. Streams, when right acquired in, by, 73 Messinger, 74 note, 86 note, 88 Stockport. Underground waters, none in, 124 note. PRIVITY, \Miat constttutes, 429 Morse, 431 note, 432 Hurd, 435 Horn, 438 note, 439 Burbank. PROFIT, Appurtenant, 167 Hall, 173 Huntington, 176 note. Assignment of, 153 Mountjoy, 155 Tottel. Customarj', none, 176 Smith. ' Division of, 163 Rotherham, 164 Cole, 167 Hall. Easement, distinguished from, 177 Race. Exclusive, 154 Dowglass, 155 Grubb. 157 note, 158 Caldwell. 162 note. Extent of, 153 Mountjoy, 154 Dowglass. .Extinction of, 163 Rotherham, 164 note, 164 Cole, 167 Hall. Grant of, 155 Tottel. Gross, in. 155 Grubb. 164 Drury, 176 note. Prescription for, 154 Dowglass, 154 note. Severance of, from dominant estate, 164 Drury, 164 note, 165 Phillips, 167 Hall. PROHIBITION STATUTE, Effect of, on rent of hotel, 589 Lawrence. PROPERTY, Damage to, as nuisance, 23 Hennessy, Real, defined, 3 Butler. QUASI CONTRACT, Right to recover for cost of party wall, in, 246 Sherred, 249 Spaulding, 252 note, 485 note. RAILROAD, . Liability of, for obstructing water, 102 note. Right of way, nature of, 228 Pittsburgh, 230 Atlantic Right to use water for locomotives, 68 Garwood. RENT, Actions for, 562 Har\'ey, 563 Wilston, 564 Loyd, 565 St. Geo. II, 565 Anon. Apportionment of, 575 White, 577 Wattles, 632 Anon., 632 Emmott, 633 Anderton, 635 Salmon. INDEX 739 tTbe figures refer to pages] RENT— Continued, Assignment of, 561 Ards, 562 note. Attornment, 552 St. 4 Anne. Chattels, payment for use of, not, 632 Eramott, 633 Anderton. Constructive eviction suspending, COO Pendleton, GOtJ Egerton, 610 Bass, 611 Stewart, 613 University. Contract debt not, 637 First, 638 note. Covenant to pay, when runs, 364 Vyvyan. Destruction of premises extinguishing, 575 White, 577 Wattles, 579 Graves, 581 note. Distraint for, 549 note, 565 Anon., 633 Anderton, 636 Hancock. Divided when, 561 Ards. Eminent domain, taking by, extinguishing. 585 Parks, 587 Biddle, 597 note. Exclusion from premises suspending, 596 Pridgeon. Extinguishment of, 566 Webb, 569 McMurphy, 571 Smiley, 579 Graves, 585 Parks, 587 Biddle. Guaranty of payment of, 420 Allen, 424 Walsh. Kinds of, distinguished, 549 note. Lessee, assignment by, 383 Brett, 384 Wall, 549 Walker. Lessor, eviction by, suspending, 591 Cibel, 502 Rolle, 592 Carrell. 593 Page, 593 Smith, 593 note, 598 Smith. Merger, loss of, by, 566 Webb, 509 McMurphy, 571 Smiley, 572 Beal. Not divisible in time, 552 Bank, 556 Rockingham, 558 note. Prior valid lease, effect of, on, 617 Neale, 622 Lawrence, 624 Friend, 627 Moore, 628 Smith. Prohibition statute, effect of, on rent of hotel, 589 Lawrence. Reserved on lease of lessor's entire interest, 562 Newcombe, 5G3 Wilston, .564 rx)yd, 565 Anon., 569 McMurphy, 571 Smiley. Reversion, assignment of, effect on, 55S Hnrmer, 5.~9 Damren, 559 note. Superior title, eviction by, suspends, 581 Fitchburg, 583 Seabrook. Suspension of, 581 Fitchburg, 583 Seabrook, 591 Cibel. 592 Rolle, 593 Page. 593 Smith, 596 Pridgeon, 600 Pendleton, 610 Barr, 613 University. Trespass by lessor, effect of, on, 594 Bennett. AVhen due, 552 Bank, 554 note. REPAIR, Covenant to, 3S0 Dewar, 383 Brett. i Easement obligation to, 268 Rider. • REVERSION, Assignment of part interest in, 404 Attop, 405 Twynam, 407 Demarest. Of unsealed lease, right of assignee of, 416 Bickford, 418 Cobb. REVERSIONER, Recovery by, for, damage to building, 143 Green. Damage to land, 140 Baxter. Diversion of water, 144 note. Nuisance, 141 Simpson, 145 Park, 146 note, 147 Miller, RIPARIAN LANT), What Is, 71 Jonea, SAW-MILL, When may discharge In stream, S3 Hayes, 86 note, 87 note. SEMIFLUID SUBSTANCES, Right of support in, 54 note, STREAMS, Abandonment of rights in, 259 Matheson, 262 Kray. Arid states, law in, relating to, 71 note. Covenant regulating use of, 432 Hurd, 435 Horn, 438 note. Dam, right to, 61 Dumont, Detention of, 61 Dumont, 63 note, 262 Kray. 740 INDEX [The figures refer to pages] STREAMS— Continued, Diversion of, 58 Webb, 68 Garwood, 69 Gillis, 71 note, 259 Matheson. Action by reversioner for, 144 note. Eight of lower riparian to liave continued, 256 Mason, 259 Matheson, 262 Kray. Docking, right to use for, 712 Pollock, 715 note. Domestic user of, 77 Filbert, 79 Canton, 82 note. Evaporation of, by user, 54 Embrey, 61 Dumont. Fisliing, public right of, in, 709 Cobb. 716 Willow, 717 note. Injunction, to prevent diversion of, 76 note. Irrigation, use of, for, 54 Embrey, 64 Meng. Locomotives, use of, for, 68 Garwood. Navigation in, public right of, 701 Brown, 706 Thunder, 706 note, 709 Cobb, 712 note. Nonriparian, use of, by, 68 Garwood, 69 Gillis, 71 note, 71 Jones, 88 Stock- port, 92 note. Pollution of, S3 Hayes, 86 note, 87 note. Prescriptive rights in, 73 Messinger, 74 note. Riparians, who entitled as, 71 Jones. 88 Stockport, 92 note. Right in, nature of, 54 Embrey, 58 Wpbb, 64 Meng, 75 New York, 76 note. Underground, rights in, 135 Hale, 136 note. SUBLEASE, Distinguished from assignment, 395 Holford, 3S6 Earl, 398 McNeil, 404 note. SURETY, For rent, liability of, 420 Allen, 424 Walsh. TAXES, Covenant to pay, when runs, 367 Gower, 369 note. Scope of, 3S9 Mason, 393 Wills. TICKET, As license, 309 Wood, 313 note. TIMBER, Cutting, when waste, 644 Owen, 646 Davis. 649 note, 678 Udal, 684 Scher- merhorn, 688 Bowles, 690 Rolle, 691 Clement, 693 note, 694 Lushingtpn. TRAINS, • Covenant to stop, when runs, 452 Gilmer. TRESPASS, Injunction to prevent, 8 Richards. To realty, what is, 1 Pfeiffer, 2 Smith, 3 note. WASTE, Altering buildings as, 653 Klie, 655 Melms. Cutting timber as, 644 Owen, 646 Davis, 649 note. Defined, 639 Coke. Equitable, what is, 688 Bowles, 690 Rolle, 691 Clement, 693 note. Injunction against, 678 Anon., 679 Perrot, 681 Klie, 682 note, 690 Rolle, 691 Clement, 693 note. Life tenant, when liable for, 661 Cartwright, 672 Atlantic, 691 Clement, 693 note. Meliorating, 642 Cole. Merger, as affecting liability for, 682 Dickinson. Mining as, 649 Gaines. Negligent, 659 Countess, 660 note, 667 Chalmers, 670 Earle, 672 Atlantic. Nominal, 643 Keepers, 644 note. Permissive, 059 Countess, 661 Cartwright, 662 Morris. Products of, right to, 678 Udal, 684 Schermerhorn, 687 Bateman, 694 Lushington, 697 note, 698 Barrington. Tail, tenant in, not liable for equitable, 688 Bowles. INDEX 741 [Tbe flgurea refer to pages] WASTE— Continued, Will, tenant at, liability for, 659 Countess, 660 note, 667 Chalmers. Years, tenant for, liability for, 662 Morris, 670 Earle, 672 note, 690 Eolle. WATER, Covenant to supply, when runs, 373 Jourdain. 455 Atlanta. Ditches, in, as personal property, 266 note. Divert, license to, when irrevocable, 305 Liggins. Flood, obstruction of, 102 note. . ' Rights in, 99 Thompson. Pipes, easement to use, 213 Gray. Right to, acquirable by custom, 177 Race. Surface, artificial structures affecting, 116 Hurdman, 119 Fitzpatrick. Concentration of, 109 Yeres, 111 note, 111 Manteufel, 113 note. Diversion of, 113 note, 114 Bowlsby. Flood, distinguished from, 99 Thompson. 102 note. Negligence in changing course of, 119 Fitzpatrick, 120 note. Obstructions of, 103 Barkeley, 107 Gormley. Ponds, not, 97 Schaefer, 99 note. Streams, distinguished from, 93 Eulrich, 95 note, 95 Macomber, 97 note. Underground, diversion of, 121 Acton, 124 note, 125 Meeker. Pollution of, 132 Kinnaird, 134 note. Reasonable use of, 125 Meeker, 129 note, 130 Merrick, 131 note. Streams, rights in, 135 Hale, 136 note. WAY, Easement of, departure from, 218 Dudgeon. Extent of. 201 Howell, 201 Williams, 205 Watson. 207 White. Interference with, by servient, 221 note, 222 Attorney General, 225 Bitello, 227 note. Railroad, 22S Pittsburgh, 230 Atlantic See Extinguishment of Easements. WINDOWS, In party walls, 236 note. WIRE, Overhanging, ejectment for, 3 Butler. ■VTtBT PUBLISHIMa CO., FBIMTXR8, BT. PAUIi, UHTK. D 000 322 457 3