55 S.W.2d 63 | Ark. | 1932
On the 12th day of July, 1916, John Emrich and Katie E. Emrich conveyed to the appellant's predecessor in title a right-of-way across 240 acres of land to be used for the laying and maintenance of pipe lines for the transportation of oil and gas, and the privilege of erecting and maintaining telegraph and telephone lines, if necessary. Reservation was made by the grantors for the use of the premises, except for the purposes specified in the grant, that they might recover damages arising to the crops and fences if the same were injured by the grantees in the exercise of the easement. The consideration named in the deed for the grant of the right-of-way *574 was the sum of $1 "and the further consideration of all gas used by grantors for domestic use free of charge, to be paid when such grant shall be used or occupied."
After the execution of the conveyance the way for a pipe line was located and laid across the property of the grantors, some two or three hundred feet distant from a residence then occupied by Mr. And Mrs. Emrich. Emrich made connection with the pipe line, and laid a pipe from it to his home, and he and Mrs. Emrich used the gas for domestic purposes until they died some years later. After they died the residence was in charge of a caretaker for a time, who only used the basement. The lands were devised to a granddaughter, who, in August, 1931, conveyed five acres out of the tract, and on which the Emrich residence was located, to the appellees, no part of which was on the right-of-way. Shortly after this, a gas meter was installed by the appellants and a charge made for the use of the gas as was made to other customers in the city of Fort Smith. This resulted in the bringing of this action by the appellees to restrain the appellants from discontinuing the furnishing of natural gas for domestic purposes to the appellees in the Emrich dwelling, and for a mandatory injunction requiring them to furnish said gas free of charge.
The chancellor heard the case on the pleadings and testimony and found that the right to the use of gas free of charge was a covenant running with the land and became annexed and appurtenant to the dwelling house on the tract of land purchased by the appellees, and therefore they were entitled under their deed to the use of gas free of charge. The appellants seek a reversal of the decree on three grounds: first, that there was no covenant in the conveyance by Emrich of the right-of-way running with the land; second, that there could be no specific performance of the contract; and, third, that the contract is void as against public policy. We need consider only the first contention as our view of that is determinative of this litigation. *575
It is our opinion that the stipulation in the conveyance quoted, supra, was personal to the grantors and not a covenant real as is insisted by the appellees. We have examined with care all of the authorities cited in the splendid brief of counsel for the appellees which he contends support the view that the use of gas for domestic purposes mentioned in the conveyance of the right-of-way was a covenant running with the land and appurtenant to the Emrich residence. To sustain the view that a covenant to furnish gas is one to run with the land, counsel cite Indiana Natural Gas Co. v. Harper,
The cases of Johnson v. American Gas Co.,
In the Alderson case, supra, the grant was the right of laying a gas pipe across the real estate of the grantor, and as part of the consideration therefor the grantee agreed to furnish gas "for use on the premises" at a *576 certain rate. Construing the language of the contract, the court said: "The only reasonable construction of the contract is that gas was to be furnished on the premises leased for use in the buildings thereon by whoever might be the owner thereof at any time in the future, so long as the land is occupied by the pipe lines of the defendant."
Murphy v. Kerr,
In Southern Pac. Ry. Co. v. Spring Valley Water Co.,
The facts in Toothe v. Bryce,
It is the contention of the appellants that the agreement to furnish the gas free of charge in consideration of the conveyance of the right-of-way was a personal right to the grantor, and to this view we assent. The consideration named in the conveyance was "all gas used by grantors for domestic use." It does not limit the use of gas to the grantor in his residence, or at any other place, but makes it personal to him to be used where and when it may be convenient, so long as its use is applied for domestic purposes. We are of the opinion, with the appellants, that the case of Field v. Morris,
It is argued that words of inheritance in connection with the covenant are not a prerequisite to a covenant running with the land, and that, by the terms of 1498 of the Digest, such words are not necessary to convey an estate in fee simple; all this may be, but here the covenant is not real but personal, and there was no attempt by any one to convey Mr. and Mrs. Emrich an estate in fee, and the statute can have no application.
Reliance is placed by appellee on several cases of this court to sustain his contention that the covenant in the conveyance from Emrich is one which will inure to his successors in title, to-wit, Railway Co. v. O'Baugh,
In the instant case, as in Field v. Morris, supra, no mention is made in the deed of heirs, assigns or successors, or words of similar import used. The language used in the grant under consideration interprets itself. No premises or places are mentioned where the gas was to be used, nor are any words used indicating that it was for the benefit of any one but the grantors alone. Therefore, it was personal to the Emrichs and died with them. It makes little difference what the value of the right-of-way really was, or whether Emrich received more or less than its value in his lifetime, and the evidence on this issue we deem immaterial and unnecessary to set out, as we think that the language of the instrument itself must govern.
It follows from the views expressed that the trial court erred, and its decree must be reversed, and the cause remanded with directions to dismiss the complaint of the appellees for want of equity. It is so ordered. *580