Miller v. Clary

• Decision Date: 30 December 1913
• Citation: 210 N.Y. 127,103 N.E. 1114
• Parties: MILLER v. CLARY et al.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 127

103 N.E. 1114

MILLER

v.CLARY et al.

Court of Appeals of New York.

Dec. 30, 1913.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Josiah T. Miller against Thomas J. Clary and others. From a judgment of the Appellate Division (147 App. Div. 255,131 N. Y. Supp. 1129), unanimously affirming a judgment of the Special Term for plaintiff, the defendant named and Patrick S. Clary appeal. Affirmed as modified.

This is an action to construe a deed granting an easement, and to enforce certain covenants relating to the easement. In and prior to the year 1872, the Phoenix Mills was seised in fee and possessed of certain lands on the Seneca river in the village of Seneca Falls. There was erected on such lands a flouring mill operated by water drawn from the river. The land to the east of the mill property and lower down the river was also owned by the Phoenix Mills. This land, in the year 1872, the mill company divided into four lots, and on May 18th of that year conveyed the easterly lot, which was taken off the easterly end of the land, to one Zalinski. The deed, after describing the property conveyed, continued as follows: ‘Together with sufficient power (subject to the elements) from a wheel in the Old Stone Mills or Jewett Building to turn a shaft and propel machinery in the basement of any building to be erected on the premises hereby conveyed not requiring more than fifteen horse power, provided, however, that such machinery shall be confined to the basement stories of such building and shall not be used elsewhere nor shall said shaft ever be used for any other purpose than operating machinery in said basement; and provided also that said shaft shall be put up at the sole expense of said party of the second part and shall be properly connected with the shaft running from said mill and shall be made and put up in a manner to be approved by the said party of the first part, and said shaft and machinery shall at all times be kept in good condition by said party of the second part and shall be operated in a proper and economical manner, and said power is to be used in common with all other persons who shall be entitled to power from said wheel.’ Following the clause quoted, the deed contained certain exceptions and reservations, and then the following covenant on the part of the grantor: ‘Said party of the first part shall keep said wheel in said mill in good condition, and operate the same economically, and construct and maintain said shaft of proper dimensions to the west line of said lot, affording said party of the second part a good connection therewith at his west line.’ Subsequently, in the same year, the Phoenix Mills conveyed to different individuals the two lots to the west of the Zalinski lot, and the deed in each instance contained practically the same provisions as the Zalinski deed, except that the grantee agreed to construct and maintain the shaft to transmit power over the land conveyed to him to the adjoining lots on the east thereof. Still later, in the same year, the Phoenix Mills conveyed the fourth lot, which adjoins the mill property, to a fourth person by deed which contained practically the same clauses as the Zalinski deed. Thereafter the Phoenix Mills for a time transmitted power under the provisions of its deeds aforesaid to lots 1, 2, and 3. No power was transmitted to the fourth lot. Since about the year 1890 no power has been transmitted to any of the lots, and the appliances for conveying the power have been destroyed by the elements or otherwise. In 1873 the Phoenix Mills conveyed the mill property by deed, ‘excepting and reserving, however, all such rights and privileges as have been conveyed by the party of the first part to‘ Zalinski and the other grantees aforesaid. Subsequently the property was conveyed to the defendants Clary by deed, containing the same exceptions and reservations. The plaintiff is, and for several years has been, the owner of all four lots to the east of the mill property conveyed to Zalinski et al. There is now upon the mill property an electric power plant operated by the defendant the Geneva-Seneca Electric Company under lease from the owners. There are several wheels in the power plant which are run by water from the Seneca river. The object of this action is to secure a construction of the covenants and stipulations in the deeds to Zalinski and others, to compel the defendants Clary to keep and observe such covenants and stipulations, and to require said defendants to furnish ‘power at the plaintiff's buildings and convey such power at their own cost and expense, and by their own appliances, to the plaintiff's buildings.’ The judgment was in favor of the plaintiff on all points. There are many other facts found by the court below, but the foregoing is a sufficient statement for present purposes.William S. MacDonald, of Seneca, for appellants.

Charles A. Hawley, of Seneca Falls, for respondent.

CUDDEBACK, J. (after stating the facts as above).

[1] There can be no question but that the words, ‘together with sufficient power (subject to the elements) from a wheel in the Old Stone Mills or Jewett Building to turn a shaft and propel machinery’ on the grantee's premises, contained in the deeds from the Phoenix Mills to Zalinski and others, constituted the grant of an easement, nor any doubt but that the privilege granted was for the benefit of the land conveyed, and an easement that ran with the land. Nye v. Hoyle, 120 N. Y. 195, 24 N. E. 1.

The question arises on the subsequent covenant to transmit the power, contained in the following provision: ‘Said party of the first part shall keep said wheel in said mill in good condition and operate the same economically and construct and maintain said shaft of proper dimensions to the west line of said lot, affording said party of the second part a good connection therewith at his west line.’

There is now a wheel operated in the defendants' power plant which answers to the language of the deeds, and, therefore, we are not concerned here with the covenant of the grantor to keep the wheel in good condition and operate the same.

[2] But there is no shaft or other contrivance to carry power from the wheel to the lands conveyed. By the judgment appealed from it is decreed that the covenants in the deed of the Phoenix Mills to the plaintiff's predecessors in title, whereby the grantor undertook to ‘construct and maintain a shaft of proper dimensions to the west line of’ the plaintiff's land, is a covenant binding on the defendants, and the judgment orders them to comply with and fulfill such covenant.

The covenant to construct and maintain the shaft is known in the law as an affirmative or positive covenant. It compels the covenantor to submit, not merely to some restriction in the use of his property, but compels him to do an act thereon for the benefit of the owner of the dominant estate.

[3] It is the established rule in England that such a covenant does not run with the land, and cannot be enforced against a subsequent owner of the servient estate, either at law or in equity. Haywood v. Brunswick Bldg. Society, 8 Q. B. Div. 403; London & S. W. Ry. Co. v. Gomm, 20 Ch. Div. 562; Austerberry v. Corp. of Oldham, 29 Ch. Div. 750; Halsbury, Laws of England, vol. 11, pp. 237, 248. There are, however, certain exceptions to this rule, as covenants to repair fences on boundary lines; to repair private ways, and covenants in leases. Id.

Some of the courts of this country have taken a different view, notably the ...