104 Ill. 11 | Ill. | 1882
delivered the opinion of the Court:
By the agreement between Butler and Ullman the latter was authorized to build a party wall, the east half of which was to rest on Butler’s part of the lot, and the west half on Ullman’s, and it wTas expressly provided that when so built, Butler, upon payment of one-half the cost of its construction, should have the right to use the same, or such part of it as he might need, as a party wall for any building he might erect on his part of the lot. The legal effect of this agreement, upon its performance, was to give to each of the parties an easement on the other’s lot for the purpose of support of their respective buildings, which became appurtenant to their several estates, and as such would pass to their respective assignees by any mode of conveyance that would transfer the land itself. That such would have been the effect of the agreement had it been executed on the part of Butler, is not questioned. But it is .claimed that Boche, his assignee, occupies a better position with respect to the agreement than Butler, through whom he claims,—that while he may avail himself of all its benefits, he is relieved of all obligations to perform its burdens. If this be the correct view, it must be conceded it results solely from the fact the parties to the agreement had no power to impose its burdens as well as its benefits upon their assignees, for nothing can be clearer than it was their intention to do so, and it is equally clear the terms expressive of such intention are altogether appropriate and sufficient for that purpose, if, as matter of law, they had power to thus bind their assignees. The language of the agreement expressive of such intention is: “It is also further agreed, that all the covenants and agreements herein contained shall be binding upon each party, their heirs, executors, administrators and assigns, and grantees of the said parties of the first and second part, and shall be so construed as to run with the land. ” There can be no mistaking the object and purpose which the parties sought to accomplish by this provision, and appellant, having bought with constructive, and doubtless actual, notice of it, must be presumed to have intentionally assumed the burdens as well as the benefits of the agreement. The duty of paying for one-half the wall being a continuing liability resting upon the owner of the lot in his character of owner, and this not having been paid at the time of appellant’s purchase, it is to be presumed that in becoming a purchaser, and thus assuming the relation of owner himself, he paid less for the property by the amount of the incumbrance than he otherwise Would have done. Such being the ease, it would now be highly inequitable to permit him to enjoy the benefit of the wall without reimbursing Ullman for one-half its cost.
But outside of the equitable view here suggested, we think the law is with appellee on other grounds. While the authorities are not altogether harmonious with respect to the legal effect of covenants and agreements providing for the construction of party walls between adjacent proprietors, yet we think the decided weight of authority establishes the position that an agreement under the hands and seals of such parties, containing covenants and stipulations like those found in the instrument we are considering, will, when duly delivered and acted upon, as was done in this case, create cross-easements in the respective owners of the adjacent lots with which the covenants in the agreement will run, so as to bind all persons succeeding to the estates to which' such easements are appurtenant. This being so, it follows that Boche, in succeeding to the east half of the lot, whereby he acquired an easement in the west half, became bound for the performance of the covenant to pay one-half the cost of constructing the wall. We do not deem it necessary to enter upon a review of the "authorities upon this subject, but will content ourselves with a reference to the following cases, which are believed to sustain the conclusion reached: Keteltas v. Penfield, 4 E. D. Smith, (N. Y.) 122; Savage v. Mason, 3 Cush. (Mass.) 504; Mame v. Cumston, 98 Mass. 317; Standish v. Lawrence, id. 111; Dorsey v. St. Louis, Alton and Terre Haute R. R. Co. 58 Ill. 68; Sterling Hydraulic Co. v. Williams, 66 id. 397; Rindge v. Baker, 57 N. Y. 209; note to Spencer’s case, Smith’s Leading Cases, (6th Am. ed.) 211; Weyman’s Exrs. v. Ringold, 1 Bradf. 40; Giles v. Dugro, 1 Duer, 331.
The decision in Goodrich v. Lincoln, 93 Ill. 359, does not conflict with the conclusion reached in the present case.
We concede the general doctrine, as contended for by appellant’s counsel, that where the relation of landlord and tenant does not exist, only such covenants as are beneficial to the estate will run with the land, but we do not regard the doctrine as applicable to' cases where adjacent proprietors have, as in the present case, so contracted as to create mutual easements upon each other’s estates, and entered into covenants with respect to the same. The new relation thus created being of an intimate character, involving reciprocal duties with respect to each other’s estates, may be regarded as an equivalent for the absence of tenure, so as to give effect to all covenants without regard to whether they are beneficial or onerous. However this may be, it is cléar the rule contended for does not seem to be applied in this class of cases.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
