Nye v. Hoyle — 30 N.Y. St. Rep. 571

Majority

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Charles F. Nye et al., App’lts, v. Timothy Hoyle et al., Resp’ts.^[1]

(Court of Appeals, Second Division,

Filed April 15, 1890.)

Headnote

1. Covenant—When it runs with the land.

Certain adjoining riparian owners, to secure a greater fall of water, entered into an agreement by which a new water privilege was to be created by means of a canal through their respective lands, so much of said lands, dams, etc., as was necessary to be attached to said privilege, and belong to the parties in certain proportions. The party of the first part covenanted to keep the dam in good repair, and rebuild it if necessary at the sole expense of himself, his heirs and assigns, and the parties of the second part covenanted to construct and keep the new canal in repair at their sole expense. Held, that these covenants ran with the land, because they were in terms between the parties, and their heirs and assigns, were connected with the subject of the grant, and entered into the value thereof, and that the grantees of the party of the first part could not recover of the grantee d of the parties of the second part for any portion of the expense of rebuilding said dam. '

'S. Deed—Mill property.

Where it is apparent that a grantor or testator intended to dispose oi the entire mill property, the use of the phrase “all my water privileges.” including the various mills, etc, connected therewith, without a description by metes and bounds, includes the dam and pond which are an essential part of the privileges.

Appeal from a judgment of the general term of the supreme ■court, in the third judicial department, affirming a judgment entered upon a decision of the court on trial at special term.

This was an action by one riparian owner against another to re■cover one-half the expense of rebuilding a dam that furnished water to both.

On the 13th of May, 1835, one Hoadiah Moore owned a water privilege on the Big Chazy river, near the village of Champlain, in the county of Clinton, and immediately below, on the same .side of the river, was another water privilege belonging to

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Pliny and Amasa G. Moore. Connected with each privilege were a dam, pond, mills and land belonging to the respective proprietors. The two pieces of property were so situated with reference to a bend in the river that water could be taken from the dam of Noadiah Moore at the upper end of the curve, aud carried by a canal across his lands, and the lands of Pliny and Amasa 0. Moore, to the lower end of the curve, and thus a greater fall or head of water could be secured than then belonged to the proprietor of either privilege. In order to accomplish this object, the owners entered into a written agreement, under seal, dated May 13, 1835, whereby it was covenanted and agreed between ¡Nbadiah Moore, as party of the first part, and Pliny and Amasa G. Moore, ■ as parties of the second part, and his and their heirs, executors, administrators and assigns, that “a new mill and water privilege shall be and by these presents is made and created on the river Chazy below the present mills of P. and A. C. Moore, opposite the little cove, * * * and the water is to be taken from the said mill pond of the said party of the first part through his present ditch or canal leading to his said mill under the logway attached to said saw mill and through the lands of the said parties as may be most convenient and useful to the top of the bank opposite said cove, and so much of the said lands, dam, ditch, canal aforesaid and the lands necessary for making, repairing and maintaining the new ditch or canal belonging to the parties of these presents, shall be attached to the mill and water privilege hereby created and belong to the parties as hereinafter mentioned. The dam of the party of the first part shall be kept and maintained tight and in good repair by the said party of the first part and the ditch or canal leading to the said saw mill is to be widened by the said party of the first part (so as to command and take at a low time the water of'the river in preference to any other outlet), and the said ditch to be so widened and afterwards maintained and the said dam to be maintained, repaired and rebuilt, if necessary, at the sole expense of the party of the first part, his heirs and assigns.” Then followed a provision that the new ditch, or extension of the canal, should be made through the lands of the parties and maintained and kept in repair at the sole expense of the second parties, their heirs and assigns. The first party was to have, own and use freely and fully, subject to certain restrictions, one-third part of the water privilege thus created, while the second parties were to -have, own and use freely and without any restriction, two-thirds of the same.

It was further provided that the first party, his heirs and assigns, should “ have, own and use ” a piece of land belonging to the; second party situate at the foot of the new canal and comprising two and one-half acres. Also that “ one-third of the water running in said canal shall so, as aforesaid, belong to the party of the first part and two-thirds to the parties of the second part and the old and former privileges of the respective parties shall be and remain and be used, occupied and possessed and enjoyed by the respective parties as heretofore, except that the new privilege

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hereby created is always to have a preference of water when there is not enough for all; and the land, hereditaments and appurtenances necessary for the creation and full enjoyment of the new privilege shall be owned, possessed and enjoyed as hereinbefore particularly mentioned.”

The agreement, which contained many other provisions not deemed material, was duly acknowledged September 11, 1837, and on the same day recorded in the proper county clerk’s office. The new water privilege thus created was soon put into actual operation in the manner provided by said agreement.

After work on the new privilege had been commenced and on January 1, 1836, Hoadiah Moore conveyed to Freeman and Bartlett Hye five acres of land west of and adjoining said mill pond and old canal, upon which were certain mills and a part of the new canal, as well as a portion of the land overflowed by the dam in question, subject to all the conditions in the agreement of May 13, 1835, and subject also to the proviso that the grantees, “ their heirs and assigns shall be charged with one-half of the repairs of the dam, to keep up the same and of enlarging.the present ditch, as contemplated in the contract with Pliny and Amasa Moore relating to the new privilege and as already begun.” This conveyance covered the use of part of the water belonging to the old privilege of the grantor and also one-half of his share of the water belonging to the new privilege. It was recorded February 18,1836. August 28,1851, Hoadiah Moore conveyed to the same grantees an undivided half of said two and one-half acres conveyed to him by the agreement of May 13, 1835, “ subject to all the terms, conditions, provisions, restrictions and reservations ” contained in said agreement and in said deed of January 1,1836. This deed was recorded May 22, 1883. By these conveyances the grantees became tenants in common with Hoadiah Moore of the old privilege and of his interest in the new privilege.

By the will of Hoadiah Moore, admitted to probate April 11, 1859, all his water privileges, together with all the land, shops and buildings connected therewith, were devised to Pliny H. and Samuel M. Moore. The interest of Pliny H. Moore in the new privilege passed under his will to one Pliny Moore and the defendant, Timothy Hoyle, and his interest in the old privilege to said Pliny Moore, and through him by an intermediate conveyance to Freeman Hye. By sheriff’s deed the interest of Samuel M. Moore in the new privilege was conveyed to said Pliny Moore and Timothy Hoyle and his interest in the old privilege to Freeman Hye, who thus became the owner, with Bartlett Hye, of all the old privilege, dam, pond and adjacent lands owned by Hoadiah Moore on May 13, 1835.

When this action was commenced, as the trial court found, the plaintiffs owned all “ the rights, interest and property ” acquired by Freeman and Bartlett Hye under the above conveyances, and at the same time the defendants owned all the “ rights, interest and property ” that Pliny and Amasa 0. Moore possessed or acquired under the agreement of May 13, 1835, and of all the

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interest in the new privilege that was devised by Moadiah Moore to Samuel M. Moore and Pliny 1ST. Moore.

The old dam of RToadiah Moore was carried away by a freshet in 1882, and a new dam was erected by the plaintiffs in the place thereof, pursuant to an agreement with the defendants that the ultimate expense should be borne in proper proportions by the parties upon whom the burden of maintaining the dam legally .rested.

Matthew Hale, for app’lts; Chester B. McLaughlin, for resp’ts.

By the agreement of May 13, 1835, a new water privilege was created, superior in fact and paramount in right, to either of the old privileges. The owners united their estates in ■order to form a new property to be owned by them in certain proportions, taking a part of each for the purpose, but leaving the ownership of the remainder undisturbed. The part contributed by Noadiah Moore was “the water * * * to be taken from ” his mill pond through his canal, and so much of his lands, dam, ditch, canal, hereditaments and appurtenances as was necessary for the creation and full enjoyment of the new privilege. The interest thus contributed was attached to the new privilege, and was to belong to the owners thereof. It necessarily included an interest in the dam and pond, as it embraced not only the right to take all the water therefrom when there was not enough for all, but also so much of the lands, •dam, etc., as was required.

The language used by the parties in their somewhat complicated agreement shows that it was the intention of each owner to convey to the other the same interest in his contribution ■to the common enterprise that he was to have in the new privilege when it was created. This appears from the recital" of an intention “ to constitute and create a new water privilege which will require a portion of the lands, pond, dam, ditch and river aforesaid, so belonging to all the parties to these presents,” as well as from the language used in creating the new privilege, attaching the lands, dam¡ etc., thereto, and providing that the parts thus annexed should belong to the parties in the proportions named. To repeat their words, “ so much of the said lands, dam, ditch, canal aforesaid, * * * belonging to the parties of these presents shall be attached to the mill and water privilege hereby created and belong to the parties as hereinafter mentioned. * * * And the said party of the first part shall have and own * * * •one-third part of the water privilege hereby created; and the said parties of the second part shall have (and) own * * * two-thirds of the said water privilege hereby created; * * * and the land, hereditaments and appurtenances, necessary for the creation and full enjoyment of the new privilege, shall he owned, possessed and enjoyed as hereinbefore particularly mentioned.”

Pliny and Amasa 0. Moore also made their contribution to the undertaking, to be owned by themselves and Hoadiah Moore, as proprietors of the new privilege, and as the latter had no land at the point where the power was to be utilized, they conveyed to'

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him two and one-half acres of their land, so situated that the buildings to be erected thereon could be supplied with water from the new canal. This land, so conveyed to Eoadiah Moore, was not a contribution to the joint enterprise, for he became the sole owner thereof, but was an inducement to him to enter into the agreement by which the new privilege was created.

Each owner in connection with the conveyance of an interest in. his contribution towards the new privilege, also covenanted, in behalf of himself, his heirs and assigns, to do certain things with reference to the subject of the grant, thereby adding to its value. Pliny and Amasa C. Moore covenanted to construct the new canal, to maintain it and keep it in repair at their sole expense, while Eoadiah Moore covenanted on his part, among other things, to keep and maintain tight and in good repair the dam in question, and to rebuild the same if necessary at the sole expense of himself, his heirs and assigns.

We think that these covenants ran with the land because they were in terms between the parties and their respective heirs and assigns, were connected with the subject of the grant and entered into the value thereof. As an interest in the land, to which the covenants were annexed, was transferred, there was privity of estate between the covenanting parties. Although the interest transferred was less than the entire title and the residue was reserved by the grantor, the covenants were in support of the grant and related to the beneficial enjoyment of the thing granted. The benefit of the covenants, therefore, passed, with the interest transferred, to the covenantee, while the burden rested upon the part reserved by the covenantor and became binding upon whomsoever should, at any time, own the same. Norman v. Wells, 17 Wend., 136 , 146, ana cases therein cited : Hart v. Lyon, 90 N. Y., 663 ; Phoenix Ins. Co. v. Cont. Ins. Co., 87 id., 400, 408; Trustees of Columbia College v. Lynch, 70 id., 440, 450; Wilbur v. Brown, 3 Denio, 356 ; Fitch v. Johnson, 104 Ill., 111 ; Manderbach v. Bethany Orphans' Home, 109 Pa.. 231 ; Cooke v. Chilcott, 18 Moak’s Eng. R., 760; Spencer's Case, 1 Smith’s Leading Cases, 175, 212; Morse v. Aldrich, 19 Pick., 449 ; Bronson v. Coffin, 108 Mass., 175 ; Devlin on Deeds, § 940; Grould on Waters, § 301.

These views do not conflict with Cole v. Hughes, 54 N. Y., 444 , or Scott v. McMillan, 76 id., 141, which hold that a covenant to contribute toward the construction of a party wall built by one owner, whenever the other owner should use it, did not run with the land, because neither received or granted any interest in land, In the former case the court said: “ He (the covenantor) simply assented that Dean might build one-half of the wall on his land, and then he agreed that in a certain contingency, which might or might not happen, he would compensate him. He did not convey to Dean any land upon which the wall was built. They continued to own the land, as before, in severalty.”

It is contended, however, that the plaintiffs are not the owners of the dam or of the land on which it stands, and that, therefore, they are not bound to maintain or rebuild the dam, even if the covenant of Eoadiah Moore runs with the land on which the dam stood.

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The trial court found that “ at the time of the commencement of this action plaintiffs were the owners of the old mill privilege, dam, pond and mills of Noadiah Moore and of his title as it was when the new mill privilege was created; also of one-half of the interest of said Noadiah Moore in the new mill privilege and one-half of the two and one-half acres acquired hy Noadiah Moore in connection with said new privilege; that when they became such ■owners they had knowledge of the provisions, conditions and covenants contained in the conveyances referred to in the above findings, and their title was taken subject to all the reservations, restrictions and limitations in ” the conveyances mentioned.

The several deeds and wills through which the plaintiffs ac•quired their title, although referred to, are not printed in the appeal book. The argument of the appellants in support of the position now under consideration is founded upon certain extracts from said deeds and wills, which describe, but whether as fully or not as the originals cannot be learned from the record before us, the premises conveyed or devised as “all my water privileges,” or “ all the water privileges,” * * * “including furnace, wagon, .shop and machinery, saw mills, mill privilege near Pliny Moore’s .grist mill and the privileges adjoining Whiteside’s linen mill, bark mill, etc., * * * and. all of the lands, shops and buildings connected therewith.” The extracts do not purport to give the complete descriptions and each includes the somewhat elastic phrase “and so forth.” In no case are the metes and bounds given. Assuming, however, that the question sought to be raised is before us, we think that where it is apparent that the grantor or testator intended to dispose of the entire “mill property,” the use of the phrase “ all my water privileges,” including the various mills and manufactories connected therewith, without a description by metes and bounds, includes the dam and pond which are an ■essential part of the privileges and property. Wetmore v. White, 2 Caines’ Cases, 87; Babcock v. Utter, 1 Keyes, 409; Le Roy v. Platt, 4 Paige, 77; Hills v. Dey, 14 Wend., 206 ; Jackson v. Buel, 9 Johns., 298 ; Moore v. Fletcher, 16 Me., 63 ; Morgan v. Mason, 20 Ohio, 401 ; New Ipswich Woolen Factory v. Batchelder, 3 N. H., 190 ; Grould on Waters, §§ 305-308, and cases cited.

Whether there was an equitable obligation on the part of the plaintiffs to rebuild the dam, because they took title with knowledge of the covenant in the deed from Noadiah Moore to Freeman and Bartlett Nye, dated January 1, 1836, we do not think it is necessary to consider, as the conclusions already reached lead to an affirmance of the judgment.

All concur, except Potter, J., not sitting.