Munro v. Syracuse, Lake Shore & Northern Railroad

In May, 1899, the appellants, as executors, acting within the scope of their authority, entered into a written agreement with the Syracuse, Lakeside & Baldwinsville Railroad Company, a domestic street surface railway corporation, whereby they granted a right of way across the farm of their testator. In consideration of the grant the railway company agreed to perform certain obligations

This suit in equity is for the specific enforcement of said agreement, by requiring the defendant to issue passes in accordance with its terms. We think the action cannot be maintained. The parties themselves distinctly enumerate what covenants should run with the land. The contract contains this provision:

“It is agreed that the covenants and conditions above expressed shall be considered as conditions precedent to the enjoyment of the grant herein made, and as covenants running with the lands, so far as they relate to the erection and maintenance of the fences, gates, cattle passes, and cross-overs herein mentioned.” ,

The granting of passes, it will he observed, is excluded from the list. Even if the parties could change by agreement a distinctively personal covenant to one charged upon the land, and hence binding upon subsequent grantees, which I very much doubt (Wilmurt v. McGrane, 16 App. Div. 412 , 417, 45 N. Y. Supp. 32 ), yet, the contract by its terms having recited what are to be deemed covenants running with. the land, all others must be barred (Baker v. Ludlow, 2 Johns. Cas. 289 ; O’Neil v. Van Tassel, 137 N. Y. 297 , 33 N. E. 314 ). The pass privilege was a personal covenant, and ceased to be effective when the original grantee ceased to own and operate the railroad. Hasbrouck v. New Paltz, Highland & Pough. Tr. Co., 98 App. Div. 563 , 90 N. Y. Supp. 977 ; People v. R. W. & O. R. R. Co., 103 N. Y. 95 , 106, 8 N. E. 369 ; Dickey v. K. C. & I. R. T. R. R. Co., 122 Mo. 223 , 26 S. W. 685 .

A covenant, in order to run with the land, “must respect the thing granted or demised, and the act covenanted to be done or omitted must concern the land or estate conveyed.” 11 Cyc. p. 1080; Dolph v. White, 12 N. Y. 296 , 301. A covenant of this kind is annexed to the freehold, enhancing its value or benefiting it in some way. The covenant to build and maintain the cattle pass is attached to the land and adds to its enjoyment, and its maintenance will continue to add to the convenience and value of the farm as long as the railroad is operated. The incidental privilege of riding free on the cars passing over the road does not “touch or concern the land.” The covenants attached to the right of way, such as the maintenance of the cattle passes, must be performed by the defendant. It did not by purchase at the foreclosure sale become chargeable with the payment of the

It is claimed that by the terms of the judgment the defendant became liable to carry out the pass covenant. The judgment permitted the purchaser on the foreclosure sale, within 10 days after the premises were struck off, to disavow “any contract or lease, or the rights thereunder, which are recited herein as a part of the property to be sold under and pursuant to this judgment.” The immunity of the plaintiffs and their tenant from paying fare was not “a part of the property to be sold” and was not recited in the judgment. The permission to disavow did not relate to a personal privilege, like that claimed by the plaintiffs. Evidently something more substantial and of which the purchaser would have record notice was referred to.

We are not holding that the plaintiffs are remediless; only that the present action cannot be maintained. The judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur, except McLENNAN, P. J., not voting.