140 Iowa 351 | Iowa | 1908
— The plaintiff was the owner of a tract of land lying east of the division line between the northeast quarter and the northwest quarter of the section. He also owned a one-acre lot adjoining the first-mentioned tract on the west side of said line, while defendant owned the larger tract from which the one-acre lot had been carved out. A private way had been opened for some distance along the line between the quarter sections, and on the west side of this way and about thirty-two feet from the east line of said lot plaintiff built and maintained a fence. Defendant was quite anxious to purchase this lot, and from time to time during a period of several years sought to open negotiation therefor. Plaintiff expressed a willingness to sell, but insisted as one of the conditions thereof that defendant should covenant or agree to leave the fence where it then stood, in order to preserve or make more convenient the entrance to his remaining land on the east side of the line. This, for a time at least, the defendant was not willing to concede. Finally, an agreement was reached, or supposed to have been reached, the agreed price was paid, and a deed bearing date November 28, 1902, was executed and delivered by plaintiff to the defendant. The deed is in the ordinary form, with the usual covenants of warranty, except a clause inserted therein following the description of the property, in the following words: “It is hereby agreed by the said Fred O. Heckman that he or his transferees are not to build any fence or other obstrue
But counsel say that, even if this issue be found against defendant, the covenant was one for the personal benefit of the grantor, and not for the benefit of the land on the east side of the line, and plaintiff’s remedy, if any, is at law for damages, and not in equity. Such is not our view of the law. The effect of the restriction was to create an easement or servitude upon the land conveyed, for the benefit of the remaining land owned by the defendant on the east side of the line, and we find no- authority, and none is cited by counsel, to the effect that, when he has obtained title to the land subject to such restriction or burden, the grantee may proceed at once to destroy the right thus reserved and remit the other party to a remedy in damages. Pomeroy’s Equity Jurisprudence, section 12. It is true that cases may be found where it is held that a change of circumstances destroying or nullifying the essential purpose sought to be subserved by the covenant will 'justify the court in refusing’ an injunction for its enforcement. Trustees of Columbia, College v. Thacher, 81 N. T. 311 (41 Am. Hep. 365). But no such change is shown in the present case.
It is not a question whether the appellee really needs the right or easement which he claims or whether he may discontinue its use without serious detriment to his remaining land. He reserved or excepted from the conveyance to appellant the right to thus use and occupy the strip in question, and the court will protect his right thereto without stopping to consider whether such right has any substantial money value.
The .decree rendered by the district court is right, and it is therefore affirmed.