Atlanta v. Mckinney

• Decision Date: 19 February 1906
• Citation: 124 Ga. 929,53 S.E. 701
• Court: Georgia Supreme Court
• Parties: ATLANTA, K. & N. RY. CO. v. McKINNEY.

53 S.E. 701

(124 Ga. 929)

ATLANTA, K. & N. RY. CO.

v.McKINNEY.

Supreme Court of Georgia.

Feb. 19, 1906.

1. Covenants—Covenant to Supply Water —Construction.

The purchaser of the water rights upon a parcel of land covenanted with the vendor, who was the owner of an adjacent lot, to "carry and convey sufficient water to the residence [of the covenantee] for the ample use and accommodation of said residence and its occupants." Held, that the covenant to supply the residence with water ran with the land, and bound the sucessor in title of the covenantor.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Covenants, § 65.]

2. Covenants—Creation—Persons Bound-Grantee in Deed.

Where lands are conveyed by indenture to a person who does not sign the deed, yet if he enter upon the land and accept the deed in other matters, he will be bound by covenants contained in it.

[Ed. Note.—For cases in point, see vol. 19, Cent Dig. Covenants, §§ 69, 70.]

3. Same—Construction.

Covenants are to be so construed as to carry into effect the intention of the parties, which is to be collected from the whole instrument, and the circumstances surrounding its execution.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Covenants, § 20.]

4. Same.

Applying this rule of construction to the instrument in the present case, the covenant was that the water to be supplied by the covenantor was to be water derived from the water rights which were the subject-matter of the agreement between the parties.

5. Deed—Requisites—Seal.

Under the provisions of Civ. Code 1895, § 3599, a seal is not an essential requisite to a deed.

[Ed. Note.—For Cases in point, see vol. 16, Cent. Dig. Deeds, §§ 99, 103.]

6. Covenants—Seal.

The instrument containing a covenant need not be under seal.

7. Limitation of Actions—Period—Action on Covenant.

A right of action by the covenantee against the successor in title of the covenantor, upon a covenant running with the land, which is contained in a deed not signed by the covenantor, is barred in six years from its breach.

8. Same.

The petition set forth a cause of action for the breach of a continuing covenant, but upon the trial the plaintiff will not be allowed to recover for a period exceeding six years preceding the filing of the suit

(Syllabus by the Court.)

Error from Superior Court, Fannin County; Geo. F. Gober, Judge.

Action by M. McKinney against the Atlanta, Knoxvllle & Northern Railway Company. A general demurrer to the petition was overruled, and defendant brings error. Affirmed.

McKinney brought suit against the Atlanta, Knoxville & Northern Railway Company, and alleged: On September 13, 1886, Andrew W. Green conveyed to petitioner the exclusive right to the use and control of all the springs and branches upon a described lot of land in Fannin county, for the purpose of being used on an adjacent lot of land. On November 12, 1888, petitioner conveyed to the Marietta & North Georgia Railroad Company the right to the use of water from the branches and springs on the said lot of land, for the purpose of supplying its water tank at Blue Ridge, Ga., "in consideration of the fact that said Marietta & North Georgia Railroad Company shall carry and convey sufficient water to the residence of said McKinney for the ample use and accommodation of said residence and its occupants." It is further alleged that the Atlanta, Knoxville & Northern Railway Company purchased all the property, rights, and franchises of the Marietta & North Georgia Railroad Company at a receiver's sale, and became thereby bound by all the conditions of the above-described deed, and that for more than four years and ever since the purchase of the Marietta & North Georgia Railroad the defendant has been continuously using the water conveyed in the above-described deed, and that neither the defendant nor its assignor ever carried water to the residence of petitioner. Petitioner claimed, as damages for the breach of the covenant, $500 as the cost of conveying the water to his residence as contemplated in the deed, and the value of the use of the water at the rate of $25 per year since November 12, 1888, the date of the covenant. The defendant demurred generally to the petition, and specially to that portion seeking damages for the cost of conveying the water to the petitioner's residence. The special demurrer was sustained, and the general demurrer overruled. To the judgment overruling the general demurrer the defendant excepted.

Clay & Blair and Wm. Butt, for plaintiff in error.

J. Z. Foster, O. R. Dupree, and Thos. A. Brown, for defendant in error.

COBB, P. J. (after stating the foregoing facts). The right of action of the petitioner depends upon whether or not the covenant to convey water to his residence is a covenant running with the land. If it is a real covenant, he may recover for its breach against the assignee of the covenantor. If it is only a collateral or personal covenant, he has no cause of action. The determination of a question of this character is usually one of some difficulty. "All covenants are either real or personal. Those so closely connected with the realty that their benefit or burden passes with the realty are construed to be covenants real; all others are personal." 11 Cyc. 1052. "Whether a covenant will or will not run with the land does not, however, so much depend on whether it is to be performed on the land itself, as on whether it tends directly or necessarily to enhance its value or render it more beneficial and convenient to those by whom it is owned or occupied." Id. 1081. "Covenants, in order to run with the land, must, however, relate to the interest or estate, so that their performance or nonperformance will effect the quality, value, or mode of enjoyment of the estate." 8 Am. & Eng. Enc. L. 139. These definitions are founded directly upon Spencer's Case, 5 Coke, 16, 1 Smith's Leading Cases (9th Ed.) 174, or upon authorities derived therefrom. The rule as there laid down is as follows: "When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodam-modo annexed and appurtenant to the thing demised, and shall go with the land and shall bind the assignee although he be not bound by express words; but when the covenant extends to a thing which is not in being at the time the demise is made, it cannot be appurtenant or annexed to the thing which hath no being." In the case of Atlanta Con. St. Ry. v. Jackson, 108 Ga. 638, 34 S. E. 184, Mr. Chief Justice Simmons said: "To constitute a covenant running with the land, the covenant 'must have relation to the interest or estate granted, and the act to be done must concern the interest created or conveyed.' 1 Ballard, Real Prop. § 491. In 2 Kerr on Real Prop. § 1218, it is said: 'Of the covenants in a lease, some run with the land, while others are binding only upon the person. * * * In order that it may run with the land, its performance or nonperformance must affect the nature, quality, or value of the property demised, independent of collateral circumstances, or it must affect the mode of enjoyment, and there must be a privity between the contracting parties.'" In the present case the thing demised was the right to the use of water from springs and branches upon a certain lot of land for the purpose of supplying a water tank. The covenant, the breach of which is alleged, was the agreement to convey a part of the water to the residence of the plaintiff. Under the rules above laid down, we think it is clear that this Is a covenant running with the land. It measures up to every test suggested. It not only relates to the interest or estate conveyed; it is inseparably annexed to and a part of it, a charge upon it. It affects the nature, quality, and value of the thing demised. It qualifies its mode of enjoyment; it restricts its use. It is inextricably woven into the manner in which the grantee shall enjoy the thing demised. "A covenant by a lessor to supply houses with water at a rate therein mentioned for each house also runs with the land, and for a breach of it the assignee of the lessee may maintain an action against the reversioner." 1 Taylor's Land. & Tenant, 330, citing Jourdain v. Wilson, 4 B. & A. 266. See, generally, upon covenants, the following authorities: Notes to Gibson v. Holden (111.) 56 Am. Rep. 151; notes to to Geiszler v. De Graaf (N. Y.) 82 Am. St Rep. 664; Bronson v. Coffin (Mass.) 11 Am. Rep. 335; Winfield v. Henning, 21 N. J. Eq. 188; Kellogg v. Robinson (Vt) 27 Am. Dec. 550; Gilmore v. Mobile & Montgomery Ry. Co. (Ala.) 58 Am. Rep. 627; Perkins Mfg. Co. v. Williams, 98 Ga. 391, 25 S. E. 556; Ga. So. Ry. v. Reeves, 64 Ga. 492; Howard Mfg. Co. v. Water Lot Co., 53 Ga. 689. In the case of Cooke v. Chilcott, L. R. 3 Ch. Div. 694, it is said: "A purchaser of a piece of land with a well or spring upon it covenanted with the vendor, who retained land adjoining in-tended to be disposed of for building sites, to erect pump or reservoir, and to supply water from the well to all houses built on the vendor's land. Held, that both the benefit and burden of the covenant ran with the land, and that the case was not within the second resolution of Spencer's Case." See, also, Shaber v. St. Paul Water Co., 30 Minn. 179, 14 N. W. 874.

The second rule in Spencer's Case is stated: "But when the convenant extends to a thing which is not in being at the time the demise is made, it cannot be appurtenant or annexed to the thing which hath no being, " and this rule was urged as a sufficient reason for holding that the covenant in the present case was not one running with the land. This rule has been severely criticised by various courts of this country and of England. See American notes to Spencer's Case, 1 Smith's Leading Cases (9th Ed.) 186 et seq.; Aikin v. Albany, Vermont & Canada R. Co., 26 Barb. (N. Y.) 294; Masury v. Southworth, 9 Ohio St. 350. And see, also, Willcox v. Kehoe, 124 Ga. 484, 52 S. E. 896....