81 Va. 553 | Va. | 1886
Lead Opinion
delivered the opinion of the court.
The case is as follows: Tolbert conveyed to A. H. Tardy five and one-half acres of land, at the junction of the narrow gauge railroad, with the Washington City, Virginia Midland and Great Western Railroad, between Galveston and Ward’s Springs, with general warranty. The said Tolbert being seised of a tract of three hundred and sixty-eight acres around the said junction, covenanted in the deed with said Tardy, that he was to have the exclusive mercantile privilege, and all rights pertaining thereto, at, in, and around said junction, and agreed to forfeit five hundred dollars for any breach thereof by him. Subsequently, in 1879, Tolbert, by deed reciting that the aforesaid deed did not fully express the desire and intention of the said parties, and declaring an intention to perfect and carry into effect said desire and intention, conveyed, with general warranty to the said Tardy, “the exclusive right to sell wares, goods and merchandise; to keep houses of public entertainment or refreshment; to establish and erect warehouses, factories, foundries and shops on said tract of five and one-half acres, or on any lands or lots subsequently purchased by said Tardy, or that may hereafter be purchased, or on any part of the lands- now owned by said Tolbert at and adjoining said five and one-half-acre tract, which said lands
Tardy and wife conveyed one-half interest in their purchase to S. C. Tardy, Jr.; Tolbert and wife subsequently conveyed one acre of the 368 acre-tract to Roach, with general warranty» “restricting, however, the said Roach from any mercantile privileges, the same having been heretofore conveyed to A. H. Tardy.” Roach conveyed by deed, with general warranty, to the appellee, Creasy, the said one-acre parcel of land bought by him, without restriction. Creasy established a mercantile business on the land bought of Roach, having formed a copartnership with T. C. Creasy, under the name and style of T. C. Creasy & Co. A. H. Tardy and S. C. Tardy, Jr., filed their bill in the circuit court of Pittsylvania county, having for its object to restrain and enjoin T. C. Creasy & Go. from selling goods, wares, and merchandise on said parcel of one acre of land, or from otherwise trespassing on the alleged rights of A. H. and S. C. Tardy.
On the hearing, this bill was demurred to by Creasy & Co., “ 1. Because said bill is without equity on its face, and is not
The circuit court of Pittsylvania sustained the demurrer and dismissed the bill with costs, and the case is here upon appeal from that decree. The circuit court held that the undertakings of Tolbert in his said deeds were personal covenants merely, not extending to Creasy & Co., by which they were not bound; that the said covenants did not run with the land, but were collateral, and imposed no burden upon the said land annexed thereto as an easement or servitude.
The appellants contend that the covenants in the Tolbert deeds affixed an easement to the lands of Tolbert unsold, and the said covenants being attached to the said lands adhered to" them in the hands of all- holders forever, running therewith, parcel of the same, an interest in the land, passing with the land to 'which it is annexed to the assignees thereof.
We may define an easement to be “a privilege without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer, or refrain from doing something on his own tenement for the advantage of the former.” Stevenson v. Wallace, 27 Gratt. 87 Goddard on Easements, 2.
It has been defined to be “ a right which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over the estate of another.” Ritger v. Parker, 8 Cush. 147. “A charge or burden upon one estate, the servient, for the benefit of another, the dominant.” Marison v. Marquardt, 24 Iowa, 35. “A liberty, privilege, or advantage which one may have in the lands of another without profit.” Big Mountain Improvement Co.’s Appeal, 54 Penn. St. 361.
An easement is a right which is appurtenant to the domi
But there are many other easements which have been recognized, and some of them have been of a novel kind. And, although some novel right has been granted by a land-owner to another person which may be valid and binding upon him personally, so long as he continues owner of the quasi servient tenement, so that on disturbance he may be sued for breach of covenant, yet if such right be of such kind that the law does not recognize as capable of being annexed to the soil, that right, good against the covenantor, is void as against other persons than the grantor, and will not entitle the grantee to sue for the benefit in his own name, on the one hand, nor annex to his premises the burden on the other. As has been said, “a new species’ of incorporeal hereditament cannot be created at the will and pleasure of an individual owner of an estate; he must be contented to take the sort of estate, and the right to dispose of it, as he finds the law settled by decisions or controlled by act of parliament.” Pollock, C. B., in Hill v. Tupper, 2 Hurl. & Colt. 121, Eng. Ex. Rep.
In this case certain persons had formed themselves into a company for the establishment of a railroad, called the Trevie. The Keppells, who held the Beaufort Iron Works under a long lease, had covenanted with the proprietors of the railroad and their assigns, that the Keppells, their executors, administrators and assigns, would procure all the limestone wanted for the iron works from the Trevie quarry, and carry it along the railroad, paying a certain toll. The Keppells assigned their lease of the iron works to the defendants, who began to construct a railroad to other lime quarries, situated eastward of the Trevie quarry; and on a bill for an injunction to restrain them from using that or any other new road, it was, among
The objection that it tended to create a perpetuity was overruled. The objection that it was in restraint of trade was overruled; the covenant in that case being considered not in general restraint of trade, but only in partial restraint of trade and not void.
In regard to the main question, whether the covenant was capable of running with the Beaufort Iron Works, so as to bind the defendants as assignees thereof, the Lord Chancellor held that it was not, and after using the language cited above, remarked further: “That every close, every messuage, might thus be held in a different fashion, and it would be hardly possible to know what rights the acquisition of any parcel conferred, or what obligations it imposed. The right of way or of common is of a public, as well as of a simple character, and no one who sees the premises can be ignorant of what all the vicinage knows. But if one man may bind his messuage and land, to take lime from a particular kiln, another may bind his to take coals from a certain pit, while a third may load his with obligations to employ one blacksmith’s forge, or the-members of one corporate body, in various operations on the premises, besides many other restraints as infinite in variety as the imagination can conceive.” Ackroyd v. Smith, 10 C. B. 164; Hill v. Tupper, supra; The Duke of Bedford v. The Trustees of the British Museum, 2 Mylne & Keen, 552; Randall v. Rigby, 4 M. & W. 130; Spencer’s Case, (25 Eliz. Pasch.) 5 Coke, 16; 1 Smith’s Lead. Cases, 137, notes, and cases cited by Hare & Wallace.
In the case of Taylor v. Owen, decided by the Supreme Court of Indiana in 1830 (2 Blackford, 301), which was a case simi
In the case of Brewer v. Marshall & Cheeseman, decided in the court of chancery of New Jersey in 1867 (18 N. J. Rep. 337), Zabriskie, Chancellor, after reviewing Spencer’s case, supra (5 Coke, 16), said: “In this case the covenant, though not to be performed on the twelve-acre lot, is yet alleged to be
On appeal to the Court of Errors and Appeals, the chief justice delivered the opinion of the court affirming the decision of the chancellor in 1868, 19 N. J., 540, he said: “I quite agree that the covenant under consideration neither runs with the land, nor is it, in effect, the grant of an easement.” See the opinion of Beasley, C., J., and cases cited therein.
The covenants, by Tolbert, in his deeds to Tardy, which have already been recited in full, amount to a contract on the part of Tolbert that he will abstain from all sorts of business on the land owned by him, of three hundred and sixty-eight acres, in and around the junction, including the right to sell wares, goods, and merchandise; tp keep houses of public entertainment and refreshment; and to establish and erect warehouses, factories, foundries, and shops; and that the same should apply to his heirs or assigns, who should be deprived of these privileges, and should run with the lands of the said Tolbert to whomsoever hereafter devised or conveyed.
These covenants are in general restraint of trade, and are void as such, so far as they affect the land in the appellee’s hands, who is the vendee of Roach, who was the vendee of Tolbert. They cannot be held to be easements, as abundantly appears from what has gone before. They are not covenants which can be held to be' of such a nature as to impress themselves on the land burthened, for the benefit of some other property; they are covenants collateral to the land merely—personal covenants which cannot be annexed to the land. And this case must be distinguished from the cases of Tulk v. Moxhay, 2 Phil. 774; Whatman v. Gibson, 9 Sim. 196; Schreiber v Creed, 10 Sim. 35; Woodruff v. The Water Power Company, 2 Stockt. 505. They do not constitute an interest in the thing granted, nor do they attach an equity to the property.
The cases of Hill v. Miller, 3 Paige, 254; Watertown v. Corden, 4 Paige, 510; Barrow v. Richard, 8 Paige, 350, relied on here, are where the covenant created an easement either by reservation in the land granted, or by grant in othei' lands of the grantor.
The case of Stines v. Dorman, 25 Ohio St. Rep. 583, is not in conflict with the foregoing views, but proceeds upon different circumstances. That, White, J. says, was not a contract in general restraint of trade, but is limited in its application to a particular species of property, and forbids its use to a particular business. That case, I think, proceeds upon its own circumstances, and the decision is based solely thereon, the court waiving the main question, “whether the stipulation contained in the deed in question is to he regarded technically, as a covenant running with the land.” It can be regarded only as authority between the parties thereto, and is authority for that case only. It is not claimed that there is any legal remedy by which these covenants can be annexed to the land. If equity will enforce them, then there are, perhaps, no cases where it would be denied, and the owner of land may impress upon land any notion his caprice may suggest. And, as has been
Thus, incidents can be annexed to land as multiform and as innumerable as human caprice. The inconvenience of giving such latitude to the power of the owner of lands is forcibly put by Lord Brougham in Keppell v. Bailey, whose judgment in that case has been cited with approbation, and followed in many recent cases.
Although any burden of a new species which the owner thinks proper to impose on his land, is not an easement which can be made appurtenant to land, yet such an obligation is perfectly valid as between the grantor and grantee of the right; and if the grantee is disturbed in his enjoyment by the grantor, the law will afford him ample remedy by action on covenant for the injury; and in the event of his being disturbed by a stranger, he may sue for such disturbance in the name of the grantor. The covenant in that case failed to run with the land, because the rights and restrictions which it imposed on the one hand, or conferred on the other, went beyond the limits of any estate or interest in land known to the law, or which it will permit to be invested with the capacity of assignment or transfer; and sowid policy will not permit an end to be obtained by a covenant which cannot be directly affected by grant. Covenants should
We think the covenants upon which this case rests are collateral merely—purely personal—not touching the land; that they are void as in general restraint of trade, and are against public policy and not such as the law will recognize or enforce, and which are incapable of being annexed to the land. The appellee holds title to the land in question by deed without restriction, and he cannot be affected by the merely personal covenants between Tolbert and Greasy. The other grounds of demurrer are not necessary to be noticed—they are included within the foregoing.
We are of opinion that the demurrer to the bill was properly sustained by-the circuit court, and that there is no error in the decree appealed from, and the same must be affirmed.
Richardson, J., and Hinton, J., concurred.
Dissenting Opinion
dissenting, said:
I do not concur in the opinion of the court. I think the decree should be reversed.
There can be no doubt that the appellee purchased with notice of the covenant in question, because it is set -forth in previous deeds which were duly recorded, and which are links in the chain of his title. Burwell’s Administrator v. Fauber, 21 Gratt. 446; Lamar’s Executor v. Hale, 79 Va. 147. And being thus a purchaser with notice, he ought not to be permitted to use the property to the damage of the appellant, and inconsistently with the covenant of which he had notice.
The case in 2 Blackf. (Ind.), cited in the opinion, was decided before, and is in harmony with, the decision in Keppell v. Bai
I think the case is analogous in principle to Hill v. Miller, 3 Paige, 254, decided by Chancellor Walworth, and to Stines v. Dorman, 25 Ohio St. 580, decided in 1874. In other words, the covenant with the appellant ought, in my opinion, to be construed in equity as creating an easement on the unconveyed land, and appurtenant to the land conveyed. See notes to Spencer's Case, 1 Smith’s L. Cas. 145 et seq. (8th Am. Ed.); Goddard on Easements, 2; Stevenson v. Wallace, 27 Gratt. 87.
In Kerr on Injunctions, p. 530, it is said: “The jurisdiction of courts of equity over contracts and covenants is not confined to cases where an action at law can be maintained, but extends to cases where an action at law is not maintainable. It is in many cases a matter of much doubt whether a covenant with respect to the use and occupation of land runs with the land, so as to bind at law an assignee, although assigns be expressly named in the covenant; but covenants controlling the enjoyment of land, though not binding at law, will be enforced -in equity, provided the person into whose hands the land passes has taken it with notice of the covenants. ‘The question,’ said Lord Cottenham, ‘is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.” And on the next page the author says: “A contrary doctrine was laid down by Lord Brougham in Keppell v. Bailey, 2 M. & K. 517, but that case can be no longer considered as an authority.” See also Sugden on Vendors, App. 801, 803.
Fauntleroy, J., concurred in opinion of Lewis, P.
Decree aeeirmed.