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granted, was equivalent to a covenant running with the land, and created an incumbrance thereon. Kellogg v. Robinson, 6 Verm. 276 ; Burbank v. Pillsbury, 48 N. H. 475. But the present casc does not require us to consider the effect of such a stipulation when not under the seal of the promisor; nor whether, as suggested in Burbank v. Pillsbury, an obligation not amounting to a covenant or other charge upon the land, but which might be enforced by a court of chancery in its discretion, is an incumbrance, the effect of which can be assessed in damages by a jury in a court of common law.
In the deed now before us, the covenant to maintain a fence upon the line of division between the land granted to the railroad corporation and the lands retained on either side thereof is made by the grantor, and is in terms declared to bind his heirs and assigns and to be intended to be perpetual and obligatory upon him and all persons who shall become owners of the lands on each side of the railroad; and this obligation is imposed upon all of them only as owners and by virtue of their ownership. It would be difficult to express more clearly an intention that the duty of maintaining the fence should be a charge upon these lands into whose hands soever they should come. The manifest purpose was to regulate the mode of occupying the lands retained, for the purpose of securing to the grantees the full beneficial use of the land granted, by establishing a permanent barrier to prevent all persons and cattle from straying upon it. The necessary conclusion is, upon principle and authority, that the terms of Coffin's deed conveyed to his grantees an interest in the nature of an easement in his adjoining lands, and thus created a sufficient privity of estate between them and his assigns to support the covenant to maintain the fence as a covenant running with the lands adjoining; and that such easement and covenant constituted an incumbrance, which was a breach of the covenant against incumbrances in the subsequent deed to the plaintiff, upon which this action is brought. It was therefore rightly ruled at the trial that the clause in Coffin's deed did not create a merely personal obligation, but constituted an incumbrance upon his adjoining lands.
Questions have sometimes arisen upon the effect of a covenant, the burden of which runs with the land, as against an assignee of part of the land charged with the burden. Where the assignees are tenants in common, they have been held jointly liable upon the covenant. Morse V. Aldrich, 1 Met. 544; Merceron v. Dowson, 5 B. & C. 479 ; s. c. 8 D. & R. 264. Upon covenants to keep in repair, the assignee of part of the land has been held liable for not repairing his part. Shep. Touchst. 199; Ards v. Watkin, Cro. Eliz. 637, 651; Congham v. King, Cro. Car. 221; s. c. 1 Rol. Ab. 522; W. Jon. 245; Bally v. Wells, Wilmot, 341, 346 ; s. C. 3 Wils. 25, 29; Stevenson v. Lambard, 2 East, 575, 580 ; Com. Dig. Covenant, C. 3. And in Adams v. Van Alstyne, 25 N. Y. 232, 235, Chief Justice Denio was of opinion that every part of the premises charged with maintaining a fence was as much bound as the whole of the premises originally charged. But no
such question is presented by the case at bar. The land conveyed by the defendants to the plaintiff included the line upon which the fence was to be maintained ; and no point appears to have been made by the defendants at the trial, that, if the clause in Coffin's deed created any charge upon the plaintiff's land, it did not affect the whole of it.
The obligation to maintain the fence, being a continuing charge upon the land, was not impaired by the omission to perform it for more than twenty years, without any evidence of its having been released or extinguished. Arnold v. Stevens, 24 Pick. 106; Bannon v. Angier, 2 Allen, 128.
The covenant upon which this action is brought is the covenant against incumbrances in the deed to the plaintiff, dated May 24, 1866 ; the breach of this covenant and cause of this action arose at that date, and could not be affected by the Statute of Limitations until twenty years afterwards. Clark v. Swift, 3 Met. 390.1
After this decision the case was tried in the Superior Court before Bacon, Je who allowed a bill of exceptions in substance as follows:
The land in question is situated in New Bedford, and came to the defendants under the will of the late Timothy G. Coffin, and was a portion of his farm.
On April 6, 1839, the said Coffin conveyed a strip of land, fifty-five rods in length, and four and three tenths rods wide, running through the land in question, to the New Bedford and Taunton Railroad Company, by a deed which contained the following clause: “I the said T. G. Coffin hereby covenant that I and my heirs and assigns will make and maintain a sufficient fence through the whole length of that part of the railroad which runs through my farm, this covenant of maintaining the fence to be perpetual and obligatory upon me and all persons who shall become owners of the land on each side of said railroad.”
The land conveyed by the defendants was that portion of the farm which lay west of a street called Acushnet Avenue, wbich runs nearly parallel with the railroad and at a distance of about one hundred and four rods easterly therefroin. About thirty acres thereof lay between the avenue and the railroad, and about nine acres on the other or westerly side of the railroad.
The plaintiff contended that the incumbrance was a charge, and would continue so to be upon all the land conveyed to the plaintiff, and not merely upon the land adjoining the railroad, however the whole land might be divided into lots by the plaintiff or his assigns, and conveyed to different persons in severalty. To this construction of the covenant the defendants objected, and requested the judge to rule, as a proper construction thereof, that there being about thirty acres on the east side of the railroad, if the plaintiff or his assigns should divide twenty-five acres of the land nearest to Acushnet Avenue and most remote from the railroad into convenient lots of one acre each, leaving a lot of land of about five acres next to and adjoining the railroad, the western boundary of which should be the entire length of the easterly line of the railroad, and the eastern boundary line thereof parallel thereto and extending from the southern to the northern line of the plaintiff's land, and then should convey each of those one acre lots to different persons, making twenty-five several owners of one acre of land each, each separated from the railroad by the said five acre lot, the incumbrance would not be a charge upon either of these one acre lots, but would remain only as a charge upon the five acre lot, and the burden of fencing, under the covenant, would be upon whomsoever was or became the owner of that five acre lot.
i The rest of the opinion is omitted ; it relates to the kind of fence to be main. tained, and to the measure of damages for breach of the covenant. For error in the intriction given to the jury on this latter point, a new trial was ordered.
The judge refused so to rule ; but ruled that the incumbrance would be and remain a charge upon the whole of the land granted to the plaintiff, and, in whatever form it might hereafter be divided into lots of any size and conveyed to different grantees, the incumbrance would still be a charge upon each separate lot, however remote from the railroad, and the burden of fencing would continue to be a charge in common upon every lot, and upon each lot in common with all the other lots by whomsoever owned.
The defendants made a similar request for ruling in regard to the land lying on the west side of the railroad · which was refused. The defendants also asked the judge to rule that the covenant to maintain a fence on the west side of the railroad by the terms of Coffin's deed did not constitute an incumbrance on the land lying on the east side of the railroad. The judge refused so to rule, and ruled that it did constitute an incumbrance on all the plaintiff's land on the east side of the railroad as well as on the west side, however it might be divided and whoever became owners thereof.
The jury returned a verdict for the plaintiff, assessing the damages in the sum of $1,500; and the defendants alleged exceptions.
MORTON, J. At the trial the plaintiff contended that the burden of maintaining the fence “ was a charge and would continue so to be upon all the land conveyed to the plaintiff, and not merely upon the land adjoing the railroad, however the whole land might be divided into lots by the plaintiff or his assigns and conveyed to different persons in severalty.”
To meet this argument, the defendants requested the court to rule, in substance, that if the plaintiff should divide the land now owned by him into lots and should sell the lots remote from the railroad, leaving a lot intervening betweem them and the railroad, the burden of maintaining the fence would not attach to or be an incumbrance upon such remote lots. They also requested the court to rule that the covenant to maintain a fence on the west side of the railroad did not constitute an incumbrance upon the land on the east side.
The presiding judge refused these requests, and ruled that the incumbrance was a charge upon the whole of the land granted to the plaintiff, and if the land was divided into lots which were conveyed to different grantees, the burden of maintaining the fence would continue to be a charge upon each and every lot, however remote from the railroad.
This presents the question, adverted to but not decided in the former opinion in this case, as to the effect of a covenant which runs with the land, as against an assignee of part of the land charged with the burden; and we are of opinion that the instructions upon this question were erroneous. In cases of covenants running with land, the assignee of the covenantor is bound, not by reason of any privity of contract with the covenantee, but solely by reason of his privity of estate. As stated in the former opinion, "in order to make a covenant run with the land of the covenantor and bind his heirs and assigns, the covenantee must, according to all the authorities, have such an interest in that land as to amount to a privity of estate between the parties to the covenant.” 108 Mass. 180. And it was held that the terms of Coffin's deed conveyed to his grantees an interest in the nature of an easement in his adjoining lands, and thus created a sufficient privity of estate between them and his assigns to support the covenant to maintain the fence as a covenant running with the lands adjoining. The covenant runs with the adjoining land of the grantor, not because such land is regarded as a security for the performance of the covenant, but because he, exercising his rights as owner, has qualified and restricted the mode of occupying and enjoying the land retained and has imposed upon it a servitude for the benefit of his grantees. It runs with the land to which the servitude is attached, but no further. If the grantor or his assign should sell a portion of the whole lot, so situated that the casement or servitude, from its nature, would not attach to or affect it, we see no reason why the covenant should run with such portion..
Suppose, for instance, the owner of a large tract of land should sell a part of it and covenant that his grantee should enjoy a right of way, defined by metes and bounds, over the land retained by him, and should afterwards sell a lot remote from the way. The covenant is one which runs with the land ; but upon what principle can it run with such remote lot so as to bind the purchaser? The way does not touch this lot; it is not an incumbrance or easement upon it. There is no privity of estate between such purchaser and the original covenantee or his assigns. The easement which is the medium which creates the privity of estate does not attach to or affect his land.
• The same considerations apply to the case at bar. In the case supposed in the instructions given to the jury, the remote lot has no duty or obligation, inherent in or incident to it, as to the fence between the railroad and the intervening lot.
Under our laws, the owner is required to maintain one half of the division fence between his lot and the lot adjoining it; but whether a
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fence is maintained between such adjoining lot and the railroad, does not concern or affect his land. The easement, or servitude in the nature of an easement, which Coffin imposed upon his land adjoining the railroad, is in its nature such, that it does not reach or affect the remote lot after a division, and the covenant in support of it does not relate to the mode of occupying and enjoying such lot.
There is therefore no privity of estate between the owner and the original covenantee, and it follows that he cannot be held liable on the covenant.
It is true that this question did not properly arise at the trial. The plaintiff' owns all the land retained by Coffin on both sides of the railroad, and by reason of his ownership of the adjoining land is bound by the covenant to maintain all the fence. But the argument of counsel and the instructions of the court upon this point would naturally tend to mislead the jury and inflame the damages, and therefore we think there should be a new trial. As, however, the question of the defendants' liability has been fairly tried, the case should be opened only upon the question of damages.'
EXTINCTION OF EASEMENTS. LICENSES.
Note. — One mode, as will be seen, of extinguishing an easement, is by the owner of the dominant tenement granting to the owner of the servient tenement a license to create a state of things inconsistent with the existence of the easement, and by the owner of the servient tenement acting upon the license. In this place have been put the cases illustrating the revocability or irrevocability of licenses, although some of them relate to the creation and not to the extinction of rights ; for the development of the law on the subject has taken such a course that it is instructive, if not necessary, to bring the whole subject of licenses together.
FENTIMAN v. SMITH."
(Reported 4 East, 107.] In an action on the case for diverting a watercourse from the plaintiff's mill, the declaration stated that whereas the plaintiff on the 1st of January, 1803, and long before, was and still is lawfully possessed of
1 Part of the case, relating to another matter, is omitted. See Kennedy v. Owen, 136 Mass. 199.