128 Ind. 385 | Ind. | 1891
The contention of appellees’ counsel that
The appellant’s complaint is founded upon a deed executed by the appellees to Joseph Harris and James G. Ackerman, in 1877. By successive conveyances the appellant became the owner of the real estate described in the deed. The deed of the appellees conveyed a flouring mill and appurtenances. At the time the deed was executed a dam five feet in height was appurtenant to the land, and created the pool from which the water that propelled the mill machinery was obtained. The dam caused the water to flow back upon the land of Julia Hubbell, and for the injury thus produced she brought an action against the appellant, and, after a contest, recovered judgment for damages, and also secured an order reducing the height of the dam to three feet. The appellees were notified to defend the action. To the complaint, which stated the facts of which we have given a synopsis, the appellees answered that they sold to John Anderson and Joseph Harris two-thirds interest in the land, mill and appurte
If the original parties, Harris, Anderson and Ackerman, were seeking to recover for a breach of, the covenants on the deed executed to them, there would be no difficulty in determining the controversy, for it is perfectly clear that they could not recover, inasmuch as the breach was the result of their own culpable wrong. If the appellant can recover, it must be for the reason that he occupies a better position than the persons from whom he derives his title. The general rule — and it is a rule of wide sweep with comparatively few exceptions — is that an assignee can take no higher or greater rights than his assignor possessed. The appellant must prove that the case constitutes an exception to the general rule, since one who asserts that his ease forms an exception must make good his assertion. It is necessary, therefore, to ascertain and decide whether the appellant does occupy a better position than his grantors.
It is tacitly assumed in the argument of the appellant that there is a covenant that the grantors had a right to maintain the dam at the height it was at the time the deed was made, and upon this assumption it is argued that, as this covenant runs with the land, there is vested in the appellant, as a remote grantee, the right to maintain an action for its breach. In our opinion the assumption is a valid one. Under a deed such as that through which the appellant claims
It is evident, from what has been said, that, upon the assumption made for argument’s sake, the right of the appellant to recover depends, as we have already suggested, upon whether his rights as a covenantee rise above the rights of the persons through whom his title as covenantee is'derived. We recognize the force of the reasoning in such cases as Suydam v. Jones, 10 Wend. 180 (25 Am. Dec. 552); Greenvault v. Davis, 4 Hill, 643 ; Kellogg v. Wood, 4 Paige Ch. 578, in so far as it proceeds upon the proposition that a covenant running with the land is protected against equities as fully as the title itself, but we perceive little force in the argument that a parol release is not valid because an instrument
Judgment affirmed.
Olds, J., did not participate in the decision of this case.