This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
14a. Post, Sec. 395, note 17.
15. See ante, Sec. 54(d).
16. Carr v. Lowry's Adm'x, 27 Pa. St. 257; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 23 L. R. A. 396, 46 Am. St. Rep. 545, 36 N. E. 672; Sexauer v. Wilson, 136 Iowa, 357, 14 L. R. A. (N. S.) 185, 15 A. & E. Ann. Cas. 54, 113 N. W. 941; Clark v. Devoe,
124 N. Y. 120, 21 Am. St. Rep. 652, 26 N. E. 275; Bolles v. Pecos Irrig. Co., - N. Mex. - , 167 Pac. 280.
16a. See cases cited post, Sec. 393, note 76.
17. Spence v. Mobile, & M. Ry. Co., 79 Ala. 576; H&zlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; Lyon v. Parker, 45 Me. 474; in connection with covenants, other than in leases, running with estates in fee simple, refers apparently to the relation between the grantor and grantee of such an estate at the time of the conveyance. In other words, in order that there be such privity of estate that the burden of a covenant may run, the covenant must be entered into at the time of the making of a conveyance by the covenantee to the covenantor, or vice versa.18 Accordingly, except perhaps in two or three states,19 the requisite privity exists in the case of a covenant by a grantor to do or not to do something on land retained by him, adjoining that conveyed, so that one to whom the former is subsequently conveyed by him may be bound by the covenant;20 and it also exists
Hurd v. Curtis, 19 Pick. (Mass.) 459; Morse v. Aldrich, 19 Pick. (Mass.) 449; Bronson v. Coffin, 108 Mass. 175, 118 Mass. 156, 11 Am. Rep. 254; Sharp v. Cheatham, 88 Mo. 498; Wheeler v Schad, 7 Nev. 204; Cole v. Hughes, 54 N. Y. 444; Nye v. Hoyle, 120 N. Y. 195, 24 N. E. 1; Easter v. Little Miami R. Co., 14 Ohio St. 48. Town of Middletown v. Newport Hospital, 16 R. I. 319, 15 Atl. 800; Hurxthal v. St. Lawrence etc., Co., 53 W. Va. 87, 97 Am. St. Rep. 954, 44 S. E. 520.
18. Gilmer v. Mobile, & M. R. Co., 79 Ala. 569; Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53; Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198; Indianapolis Water Co. v. Nulte, 126 Ind. 373, 26 N. E. 72; Louisville, H. & St. L. Ry. Co. v. Baskett, - Ky. -, 121 S. W. 957; Smith v. Kelley, 56 Me. 64; Burbank v. Pillsbury, 48 N. H. 475; Harsha v. Reid, 45 N. Y. 415; Lawrence v. Whitney,
115 N. Y. 410, 5 L. R. A. 417, 22 N. E. 174; Louisville & N. R Co v Webster, 106 Tenn. 586, 61 S. W. 1018.
19. Post, this section, note 2820. Fitch v. Johnson, 104 111. Ill; Scott v. Burton, 2 Ashm. (Pa.) 324; Crawford v. Witherbee, 77 Wis. 419, 9 L. R. A. 561, 46 N. W. 545; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335; Haz-lett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; Easter v. Little Miami R. Co., 14 Ohio St. 48,- the last three cases, however, involving covenants by the grantor to fence, which might be regarded as involving the grant of an easement. See ante, Sec. 357.
It is to be observed that the burden of the covenant does not necessarily pass with the land in connection with which the privity arises; that is, in the case referred to in the text, the privity arises in connection with the land first conveyed, while the burden of the covenant runs with that in the more ordinary case of a covenant by the grantee of land as to something to be done or not to be done by him on the land conveyed, so that his subsequent transferee may be bound thereby. On the other hand, an agreement by various mill owners as to the use of water will not bind their assigns, since there is no privity between them.21 And a covenant made after a conveyance, though between the parties thereto, has been held not to be supported by such privity of estate that the burden will run.22
The exact basis of this requirement that the parties to the covenant stand in the relation of grantor and grantee in order that the covenant may run, does not clearly appear .22a As before indicated, by some authorities, such a requirement exists in order that even the benefit of a covenant may run.23 In the case of a covenant in a lease, the running of the covenant is ordinarily, as we have before seen, closely associated with the existence of a privity of estate between the interested parties,24 and this may have last conveyed. See Brewer v. Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 537; Waterbury v. Head, 12 N. Y. St. Rep. 361; Clark v. Devoe, 124 N. Y. 120, 21 Am. St. Rep. 652, 26 N. E. 275, as explained in Dexter v. Beard, 130 N Y. 549, 29 N. E. 983.
21. Hurd v. Curtis, 19 Pick. (Mass.) 459; Lawrence v. Whitney, 115 N. Y. 410, 5 L. R. A. 417, 22 N. E. 174. In Pennsylvania it is held that the requirement of privity is subject to exceptions, and that, without any such privity, covenants by owners of separate tracts of riparian land as to the use of the water power will bind their assignees. Horn v. Miller, 136 Pa. 640, 9 L. R. A. 810, 20 Atl. 706. To the same effect, see Weill v. Baldwin, 64
Cal. 476, with which, however, Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53, does not appear to be in accord.
22. Inhabitants of Plymouth v. Carver, 16 Pick. (Mass.) 183; Smith v. Kelley, 56 Me. 64. Wheeler v. Schad, 7 Nev. 204. But if the covenant and conveyance are parts of the same transaction, the fact that they are in separate instruments is immaterial. Sims Covenants, 198; Hills v. Miller, 3 Paige (N. Y.) 254; Robbins v. Webb, 68 Ala. 393 (semble.)
22a. See a suggestive editorial note in 15 Columbia Law Rev. at p. 55.
23 See ante, Sec. 389, note 11.
24. Ante, Sec. 56.
Operated to suggest that in no case can the burden of a covenant run in the absence of such privity.25 Privity of estate, however, as between a grantor and grantee in fee simple has a meaning different from that which it has as between lessor and lessee, and their successors in interest. In the latter case, privity of estate means the simultaneous ownership by both parties of estates in the land, while in the former case it can mean merely succession in ownership. It was occasionally used in the latter sense by Coke,26 and perhaps other early authorities,27 particularly in connection with the law of warranty, and conceding the necessity of privity of estate in order that the burden of a covenant, not contained in a lease, may run with the land, it was reasonable to regard this requirement as satisfied by the succession in ownership which was included under this designation by the earlier writers. In at least two states the conveyance of an estate in the land, as distinguished from the grant of an easement therein,28 has been held not to furnish the privity of estate necessary to the creation of a covenant which will run with the land,20 the theory being, apparently, that a mere succession in interest is not sufficient for right of way,32 will bind a subsequent transferee of the land or of the easement. 33 And the grant of an easement as regards the. construction and utilization of a party wall will support the running of a covenant as to compensation for the use of the wall.34
25. In Hurd v. Curtis, 19 Pick. 459, in which the necessity of such privity is asserted in reference to a covenant by a fee simple owner, not in a lease, the court refers to Webb v. Russell, 3 Term. Rep. 402, which involved a covenant in a lease.
26. Co. Litt. 271a, 272b, 273, 352a, 385a. In Whittingham's Case, 8 Co. Rep. 84, it is said "there are three manner of privities, soil, privity in blood, privity in estate, and privity in law. * * * Privities in estate are, as joint tenants, husband and wife, donor and donee, lessor and lessee."
27. See the opinion of Holmes, C. J., in Norcross v. James, 140 Mass. 188, 2 N. E. 946, and Holmes, "The Common Law," 395-400.
28. Post, this section, note 30.
29. Los Angeles Terminal Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308; Berryman v. Hotel Savoy Co., 160 Cal. 559, 37 L. R. A. (N. S.) 5, 117 Pac. 677; Norcross v. James, 140 Mass. 188, 2 N. E. 946. In the latter case it is said by Holmes, J., in delivering the opinion of the court, that the statement that there must be "privity of estate between the covenantor and the covenantee, only means that the covenant this purpose, but that the simultaneous existence of two distinct interests in the land, in the covenantor and covenantee respectively, is necessary.29a
- Grant of easement. The requirement of privity of estate is satisfied if the covenant accompanies a grant by the owner of land of a mere easement therein, he retaining the land.30 Accordingly, it has been held that the burden of a covenant made upon the grant of a water privilege,31 or upon the grant of a railroad 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 quasi easement, or must be in aid of such a grant." This statement accords with the view of the subject elsewhere presented by this learned jurist, (see "The Common Law," at p. 388 et seq.), but does not accord with the ordinary judicial view. With this statement may be compared a statement emanating from the same court at a much earlier period. "The stipulations in the indenture cannot be construed 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 privity of estate between the parties." Per Wilde, J., in Hurd v. Curtis, 19 Pick. (Mass.) 459.
29a. In Morse v. Aldrich, 19 Pick. (Mass.) 449, above cited, in which the running of a covenant created in connection with the grant of an easement, was apparently first recognized, the decision appears to be based on the analogy of a lease, it being said that "privity exists between the grantor and grantee, where a grant is made of any subordinate 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."
30. Gilmer v. Mobile & M. Ry. Co. 79 Ala. 569; Sterling Hydraulic Co. v. Williams, 66 111. 393; Fitch v. Johnson, 104 111. 1ll; Bronson v. Coffin, 108 Mass. 156, 11 Am. Rep. 335; Lincoln v. Bur-rage, 177 Mass. 378, 52 L. R. A. 110, 59 N. E. 67; Crawford v. Witherbee, 77 Wis. 419, 9 L. R. A. 561, 46 N. W. 545. A covenant created in connection with an casement was held to run, even though not entered into till after the grant of the easement. Morse v. Aldrich, 19 Pick. (Mass.) 449. Contra, Smith v. Kelley, 56 Me. 64; Wheeler v. Schad, 7 Nev. 204. -04.
31. Farmers' High Line Canal & Reservoir Co. v. New Hampshire Real Estate Co., 40 Colo. 467, 92 Pac. 290 (semble); Fitch v. Johnson, 104 111. 111. Nye v.