106 Tenn. 586 | Tenn. | 1901
This suit was commenced before a Justice of the Peace to recover damages for the wrongful killing of plaintiff’s mule by the railroad company. The trial in the Circuit Court before Hon. Lytton Taylor, Special Judge, and a jury resulted in a verdict and judgment in favor of the plaintiff for the sum of one hundred dollars. .The company appealed, and has assigned errors. On the trial below there was evidence tending to show that the defendant company had not kept its track fenced in the manner prescribed by law, and the animal having escaped from its owner’s premises strayed upon the track and was killed by a passing train. Linder the statute the failure of the company to keep its track fenced and in repair makes its liability absolute for the killing of stock. In this view it is not seriously denied that the proof makes out a case.
The real controversy, however, arises upon the action of the trial Judge in excluding two written instruments offered in evidence. The object of this evidence was to show that plaintiff’s grantor had entered into, a covenant, running with the land, with the defendant company by which the company was to be exempt from liability for.
“This contract, entered into this ninth day of January, 1892, between Dr. J. 11. Harris, of the county of Greene, State of Ohio, of the first part, and the Louisville & Nashville Railroad Company, of the second part, witnesseth: That whereas, the said Dr. J. If. Harris, the first party, is the owner of certain lands fronting 4,574 lineal feet, more or less, on said second party’s line of railroad* on mile 295 of Henderson Division, and desires to build a fence along his line next to said railroad fifty feet from the center of track. Therefore, in consideration of the second party furnishing at the depot at Green-brier, Tennessee, station, the wire and the staples sufficient to construct a fence of seven strands, the said first t party hereby agrees, for himself, heirs, and vendees, that he and they will furnish the balance of the material, erect and perpetually
“It is further agreed that repairs to' said fence shall be made on same basis, the railroad company furnishing the wire and staples, and the party of the first part furnishing the balance of the material and doing the work. Said immunity from claims or' liability for damages for killing or injuring such stock or cattle shall be 'a perpetual charge upon said land, not only as against its present owners, but also as against all persons who may hereafter own said land.
“In testimony whereof, we have hereunto set our hands and seals, the day and year herein written. J. M. Habéis.,
“Louisville & Nashville JR. B. Co.
“By J. G-. Metcalf, Oen’l Mgr.
“Witness:
“CrEORGE COOPER,
“Charles S. JohiysoN.”
In . connection with the deed and contract the defendant company offered to prove that the Dr. -J. M. Harris who executed the deed to the plaintiff was the same person who executed the contract-; and the land described and conveyed in the deed is the same land mentioned in the
It is insisted on behalf of plaintiff that the action of the Court in excluding the contract between I)r. J. Al. Harris and defendant company was correct upon two grounds: (1) That it contains no description of the land; (2) that it is merely a personal covenant between Dr. Harris and defendant company, and does not run with the land so as to bind the successors in title of Harris.
It is insisted on behalf of plaintiff that the description and location of the land is not sufficient to give actual or constructive notice of what particular land was referred to in the contract; that it does not recite in what State, county, or civil district the land is situated, and that an inspection of the record would not have put a purchaser upon inquiry. The only description given in the contract is that “the party of the first-part is the owner of certain lands fronting 4,514 lineal feet on said second party’s line of railroad, on mile 295 of. Henderson Division.”
It is insisted, however, that parol proof is admissible to show what particular land was intended, and in that view defendant company offered, to prove that the land described and conveyed in the deed from Dr. J. II. Harris to the plaintiff is the same land mentioned in the contract. The Court, however, excluded this offer of evidence.
In Johnson v. Kellogg, 7 Heis., 265, it is said “if the contract be for the sale of a tract of land well known by some name given to it in the contract, in such case no doubt that would be a sufficient description, and, if necessary, parol proof might be heard to show where the property is. In such case,” continues the Court, “it will be observed that the parol proof thus resorted to is not to introduce any additional evidence as to the terms or stipulations of the contract,
The latest case on this, subject is Wood v. Zeigler, 15 Pickle, 515. In that case it was held that a memorandum of a sale of land, which describes the land sold as the "‘Baldwin Place,” without giving the name of the State or county where located, or the name of the owner, is void. So that in our opinion if this contract between Dr. Harris and defendant company be viewed as conveying an interest in land, it is void for insufficient - description. But the important inquiry remains whether this instrument does in point of fact convey, or attempt to convey, any interest in land.
Touching the latter proposition Mr. Jones, in his work on Conveyancing, .Yol. 1, Sec. J88, says: “Though a covenant be made by one for. himself and his assigns, yet if it does not concern the land, his assignee is pot bound by it. The covenant in such case is merely collateral.”
It is conceded by counsel for the company that in order to create a covenant running with the land so as to bind successors . in title, two' things must concur, namely: Eirst, the- covenant to be done or performed must touch and concern the land, and not a thing collateral to the land conveyed. Second, there must be between the original covenantor and covenantee the conveyance of an estate to which the covenant is pertinent, or the creation of an easement equivalent to an estate'. It is not insisted by counsel that there was any transfer of title in this case from one party to the other, but the insistence is that there was the
It is contended that this contract between Dr. J. M. Harris and the defendant company creates both an easement in his land in favor of the defendant company and a servitude which attaches to the possession of it. The argument is that since the fence must rest equally on the land of both Harris and defendant company, this fact gives the company an easement in the land of Harris.
It was held in Sanders v. Martin, 2 Lea, 215, that “if two adjoining owners build a wall partly on each lot, and by agreement or continuous user for twenty years treat it as a party wall, each has an easement of support for his half.”
The position of counsel is that we have here an agreement between Dr. Harris and the railroad company, two adjacent landowners, lo build and perpetually maintain a fence on, their adjoining lands. How, in answer to this contention, it is only necessary to refer to the contract, and wc find it recited that Dr. Harris desires to build a fence along his (Harris’) line, next to said railroad, fiifty feet from the center of the track. It does not appear that any part of this fence was to lie on defendant’s land, but it was to be built on Harris’ line. Hence defendant company thereby acquired no interest or easement ir. plaintiff’s land. .In order to create a cove
“If the covenant is not of a nature that the law permits to be attached to the estate as a covenant running with tfce land, it cannot be made such by agreement of the parties. Where the agreement is nothing more than a simple contract, which in law has no greater force than-a license, there is no privity of contract or estate which will authorize a recovery upon it in an action at law. The contract is, in such case, personal or not assignable at law, and the right to enforce it and the liability upon it rests with the parties alone.” Jones ■ on Easements, Secs. 670-674. “If one taking such covenant neither, parts with nor receives any interest in the land as a part of the covenant, this is at best merely personal, and does not bind the grantee.” Jones on Easements, Sec. 676.
Whether I)r. Harris, the original owner, might not have been bound by this contract by way of an estoppel, we need express no opinion. The question presented upon this record is whether a purchaser of the land is bound by said contract, and we hold he is not so bound, for the reason that the exemption from liability was merely a personal contract between the original parties, and not a covenant running with the land. The result is the judgment of the Circuit Court is affirmed.