Johnson v. State ex rel. Highway DivisionJohnson v. State ex rel. Highway Division
Lead Opinion
Plаintiffs appeal from a declaratory judgment that a covenant given by their predecessor in interest runs with the land plaintiffs now own аnd is therefore binding upon plaintiffs.
In 1943, Robert and Lula May Brown conveyed to the State of Oregon in fee simple a 60-foot-wide strip of lаnd bordering Highway 58 in Pleasant Hill. The deed described the land conveyed and the larger tract of land of which the conveyed land was once a part, and contained a covenant which provided:
"The real property herein conveyed is a part of the above described larger tract. The consideration of $2,940.00 includes the cost of moving and reestablishing the residence located on the above described larger tract, which residence when moved must necessarily be moved at a date subsequent tо the execution and delivery of this deed and the payment of the said consideration. Said residence is now located within forty-eight feet of the right of way line of the highway as located prior to January, 1941. Should the state, by and through its Highway Commission, or the successors in intеrest of the Highway Commission, at any time subsequent to the date of this deed and prior to the removal of said residence from its presеnt site require additional right of way for the highway abutting on the above described larger tract, then the State shall not be required to pаy for the removal of said residence or for damage to the same if said residence at such time occupies an arеa within thirty-five feet of the right of way line of said highway as the same is now located * *
The Browns conveyed the larger tract by warranty deеd to one Rash in 1944, who in turn conveyed the land by warranty deed to plaintiff in 1946. Neither deed contained any reference to the 1943 covenant. In 1973 plaintiffs attempted to sell the remaining property, but were unable to do so because the prospective рurchaser’s bank loan application was refused due to the 1943 covenant. Plaintiffs then instituted this proceeding seeking a declаration that the covenant that the state will not at some future time be required
Before a covenant may be said to run with the land and be binding upon a promisor’s successors in interest, four rеquirements must be met: (1) there must be privity of the estate between the promisor and his successors; (2) the promisor and promisee must intend that the covenant run; (3) the covenant must touch and concern the land of the promisor; and (4) the promisee must benefit in the use of some land possessed by him as a result of the performance of the promise. Huff v. Duncan,
“* * * There is a social interest in the utilization of land. That social interest is adversely affected by burdens placed on the ownership of land. * * * Unless a burden has some compensating advantage which prevents it from being on the whole a detеrrent to land use and development, the running of the promise by which it was created is not permitted. * * *” 5 Restatement, Property (Servitudes) § 537 at 3219 (1944). See also Huff v. Duncan,263 Or 408 ,502 P2d 584 (1972).
Here the fourth requirement is not met. While the state as a whole is benefited by the operation of the covenant in that if the state should later need to expand and utilize its right-of-way along Highway 58 it would not be required to move plaintiffs’ house or to compensatе them for the destruction of their house, that benefit is in no way tied either to the land which the state purchased in 1943 from plaintiffs’ predecessor or to any other parcel of land now possessed by the state. It is tied rather to the parcel of land now owned by plaintiffs which the state may need to condemn at a
Reversed.
Notes
As plaintiffs’ complaint requested a declaratory judgment only as to whether thе 1943 covenant ran with the land, we need not consider now whether the 1943 deed created any other type of servitude upon plаintiffs’ land.
Dissenting Opinion
dissenting.
The majority opinion concludes that the covenant in issue does not run with land and that therefore the plaintiffs must prevail. The bаsis for this conclusion is that the defendant State Highway Division (State) did not, as a result of the covenant, benefit in the use of the land (right-of-way) acquired by it. I cannot agree.
It is undisputed that the State in 1943 paid plaintiffs’ predecessors in interest $2,940 which included payment for
"* * * the cоst of moving and reestablishing the residence located on the above described larger tract * * * 99
From the above language it would appear that the State paid plaintiffs’ predecessors in title not only for the right-of-way but for the expense of moving their hоuse. Further, the deed provided that the house should be moved at least 35 feet from the right-of-way being acquired so that it would not have tо be moved again in the event the highway had to be widened in the future. It appears from the record that the house was never movеd from its original location.
The applicable rules for determining when a covenant of this type runs with the land are set forth in the majority opinion and include the following: The covenant runs with the land if the promisee would benefit in the use of the land possessed by it as a rеsult of the performance of the promised act by the promisor (requirement (4)). Applying this rule to the facts at bar here, the promisee (State) would benefit in the use of land possessed by it (the existing highway) when it
While my research has not revealеd a case on all fours with the case at bar, L. &N.R. Co. v. Durbin, 178 Ky 363,
As I view it, the case at bar meets all of the tests set out both in the authorities cited above and in the majority opinion, including requirement (4).
I would affirm.