15 Wis. 198 | Wis. | 1862
By the Court,
It appears to ns that this suit was properly brought in tbe name of tbe plaintiff. He was employed to do tbe work and make tbe repairs on behalf of tbe proprietors of tbe water power; and although there was no formal assignment of tbe account against tbe defendants for repairs, still it was in fact given to bim with directions to collect and apply tbe money to tbe payment of bis claim, so that really be is tbe party in interest. So that tbe case may be considered as resting substantially on tbe same grounds and controlled by tbe same principles of law, as though the proprietors bad done the work, and made tbe assessment for repairs, and brought their suit for a ratable compensation. If tbe action could be sustained in tbe latter case, we cannot see why it cannot now. Could then tbe proprietors of tbe water power recover contribution for tbe repairs, by virtue of tbe covenants in tbe deed, and if so, upon what principle should tbe assessment be made ? Tbe solution of this question involves a construction of tbe meaning and effect of tbe covenant in respect to repairs, which is common to tbe various deeds mentioned in tbe case, and which is in substance as follows: “ And tbe said party of tbe second part hereby covenants and agrees, in consideration of tbe premises and of one dollar to bim in band paid, that be will pay bis ratable share of tbe expenses of keeping in repair tbe aforesaid dam and raceway, in proportion to tbe number of square inches of water by bim owned or-used; and that tbe parties of tbe first part, and their representatives and assigns, shall at all times, on a failure of tbe parties of tbe second part to make such payment, have tbe right to enter upon said lot, or any other lot upon which said water may be used, and into any building erected thereon, to shut off from tbe premises where such water may be used, all of tbe water afore
An examination of these authorities will clearly show that where a privity of estate exists between the parties, and the covenant is one about or affecting the land devised or granted, and tends directly and necessarily to enhance its value or render it more beneficial to those by whom it is owned or occupied, the covenant is said to be incident to the land and binding upon those in whom it subsequently vests.
Some of the authorities state the proposition much more broadly, but I have found no case which holds that a covenant which comes within all these conditions was not one real and necessarily running with the land. And within this rule there can be no doubt that the covenant in this case runs with the land. A privity of estate exists between the parties ; the covenant concerns or relates to the property granted; it tends to enhance its value ; the benefit of the repairs must directly enure to all interested in the preservation and secu^ rity of the water power which the defendants own in common with others. For it is very apparent that to enable the defendants to enjoy their property, the mill dam and raceway must be kept in good condition. If the water power is destroyed — and it is evident it would be unless the dam and raceway are preserved — the value of the defendants’ mill is depreciated, if not destroyed, too. Nor can it, with any justness, be said, that the covenant relates to matters foreign to the property granted. It is directly connected with it. The subject of the grant is a mill site, and an interest in a water power; and a covenant to contribute to the expense of pre
The circuit court further decided, that by the covenant, the defendants were bound to pay a pro rata share of the expenses of repairs only in the proportion which their share of the water granted bears to the whole volume of available power in Rock River. But we do not thus understand the covenant. In our opinion the proper ratio of contribution is as found by the referee, that the defendants pay in the proportion which the water they own or use bears to the whole amount of water used from the power by the proprietors and their several grantees and lessees.
It appears that this was the contemporaneous construction of the covenant, and we think it the most rational and correct. The defendants are bound to pay their ratable share of the expenses of keeping the dam and raceway in repair. And what was to be the rule of contribution ? Is it probable that the parties contracting had in view the entire water power in Rock River as the measure of contribution? Or must they be presumed to have had in view only the water power which was available and in use, for adjusting the rule or standard of contribution ?
It seem to us that the parties contemplated the latter rule, and we think it more rational and reasonable to give the covenant this construction. This furnishes a definite, certain rule for ascertaining the proportion the parties should contribute towards the expenses of making the repairs, and we are disposed to adopt it.
It follows from these views that so much of the order oi the circuit court as was herein appealed from, must be reversed, and the cause remanded for further proceedings in accordance with this opinion.