Moseley v. Bishop, 4-983

Citation470 N.E.2d 773
Case DateNovember 20, 1984
CourtCourt of Appeals of Indiana

Jeffry G. Price, Donald G. Fern, Fern & Criss, Peru, for appellant.

Russell T. Keith, Keith & Keith, Albert H. Cole, Cole, Haig, Roberts & Sims, Peru, for appellees.

YOUNG, Judge.

Edith Moseley brought suit against Merrill and Joanna Gates and sixteen others (hereinafter defendants) seeking damages for the defendants' failure to maintain a tile drain that served Moseley's farm and ran across the Gateses' land. This suit was based upon a contract made in 1896 by Henry Moseley, who then owned what is now the plaintiff's farm, and William Bohn, the defendants' predecessor in interest. The trial court ruled that this contract, which required Bohn to "permanently maintain" the drain at issue, did not run with the land and thus was not binding upon the defendants, Bohn's successors. The trial court also ruled that Moseley had not proved the defendants' failure to repair the drain caused the losses of which she complained. Moseley appeals, claiming the trial court's judgment was contrary to law.

We reverse.

In 1896, Henry Moseley and William Bohn owned adjoining farms in Miami County, Indiana. Moseley's land was drained by an open ditch across Bohn's land. In August, 1896, they entered into a contract (hereinafter termed the Moseley-Bohn agreement), which read in part as follows:

That Whereas; There exists an open public ditch known as the 'Moseley Ditch' in the West half of the East half of Section 23 in Township 26 North, of Range 4 East, which real estate is owned by said Bohn, and Whereas; said Moseley is the owner of real estate lying immediately South of and adjoining said real estate and which has the ditch above referred to for the out-let for its drainage, and Whereas said Moseley and divers other persons have heretofore been assessed for the construction and repair of said Moseley Ditch, and said Bohn is desirous of straightening and placing drain tile the entire length of said ditch; Now Therefore, in consideration that said Moseley will consent to such straightening and tiling of said ditch, and in the further consideration of the sum of Forty Dollars to be paid by said Moseley when the tiling through that portion of said ditch which has been assigned to him for repairs shall have been completed, said William C. Bohn hereby agrees that he will place through the entire length of said ditch and permanently maintain drain tile of sufficient capacity to furnish adequate out-let for drainage from a twelve inch tile at the North line of said Moseley's land, being the south line of said Section 23. Backwater at said point to be conclusive evidence of lack of said capacity. In consideration of the foregoing premises, said Moseley hereby consents to the straightening and tiling of said ditch and agrees to pay to said Bohn the sum of $40.00 on the terms above stated.

This contract was duly recorded in the Miami County Recorder's Office.

In the course of time, Henry Moseley's farm came into the hands of Edith Moseley, the plaintiff. Bohn's farm has had several subsequent owners, most recently the Gateses--who farm the land--and the other defendants, most of whom own small residential tracts. Beginning in 1976, Moseley's son Harold noticed that her farm seemed to lack good drainage. This condition worsened each year to the point that, in 1981, there was standing water on Moseley's farm. In 1981 and again in 1982 Harold walked along the course of the drain at issue, which ran exclusively across the Gateses' land. On both occasions he observed eroded holes in the ground, some filled with water, indicating that the drain tile was broken or blocked. Harold requested Mr. Gates to fulfill his obligation under the Moseley-Bohn agreement and repair the drain tile. Gates refused to do so without Moseley's help, and he petitioned the Miami County Drainage Board to repair the drain and assess the cost equally against all the affected landowners. Moseley then brought this suit against the defendants, based on the Moseley-Bohn agreement, seeking damages for losses caused by flooding on her farm and asking that the defendants be made to pay any repair charges assessed against Moseley by the drainage board. After a bench trial the court entered judgment against Moseley, and this appeal ensued.

Moseley contends the trial court's ruling that the defendants had no contractual duty to repair the ditch was contrary to law. The central issue here is whether the Moseley-Bohn agreement runs with the land, so as to bind the defendants to "permanently maintain" the drain tile on their land. Generally, a covenant imposing an affirmative burden will run with the land if (1) the covenantors intend it to run, (2) the covenant touches and concerns the land, and (3) there is privity of estate between subsequent grantees of the original covenantor and covenantee. Conduitt v. Ross, (1885) 102 Ind. 166, 26 N.E. 198; Brendonwood Common v. Franklin, (1980) Ind. App., 403 N.E.2d 1136; J. CRIBBET, PRINCIPLES of the LAW of PROPERTY 353 (2d ed. 1975). Because Moseley had the burden of establishing these elements, we may reverse the trial court's ruling against her only if the evidence is undisputed and shows that she is entitled to judgment as a matter of law. See American Shippers Supply Co. v. Campbell, (1983) Ind.App., 456 N.E.2d 1040.

The first element, the parties' intent that their covenant should run with the land, must be determined from the specific language used and from the situation of the parties when the covenant was made. Thiebaud v. Union Furniture Co., (1896) 143 Ind. 340, 42 N.E. 741; Conduitt, supra; CRIBBET, supra, at 354. Although a statement in the covenant that it is binding on the covenantor's heirs and assigns is strong evidence of intent that the covenant should run with the land, the omission of such language here, as the defendants concede, does not conclusively prove the covenant was not intended to run. Geyer v. Lietzan, (1952) 230 Ind. 404, 103 N.E.2d 199.

In the contract at issue, Bohn agreed to "permanently maintain" a tile drain across his property. This language indicates an intention to bind not only Bohn but later grantees of the burdened property as well. Also relevant are the facts surrounding the covenant. Even before the agreement, Moseley's land was drained by an open ditch across Bohn's property. Thus, the installation of buried drain tile benefitted only Bohn, whose property gained additional usable surface area. Moseley, on the other hand, incurred an increased risk that his property might not be adequately drained, since it is more difficult to remove obstructions from a buried drain than from an open ditch. Under these circumstances, the importance of Bohn's promise to "permanently maintain" the drain is clear. Given the importance of this drain to Moseley's land, it is improbable that the parties intended their agreement to be purely personal and not binding on subsequent grantees of the land. Faced with similar agreements relating to ditches and drains, courts in other jurisdictions have generally found an intent that the covenant run with the land. See 20 Am.Jur.2d Covenants, Conditions, and Restrictions Sec. 42 (1965). We find as a matter of law that the facts surrounding the written agreement and the language used in it show an intent to create a covenant running with the land.

Having proved this intent, Moseley was also required to show the covenant touched and concerned the land with which it was to run. This requirement ensures that one purchasing land will be bound by his grantor's contract only where the contract has some logical connection to his use and enjoyment of the land. Thus, a successor to the covenantor's interest in property may be bound by the covenant if it is logically connected to that property interest. Conversely, a successor to the covenantee's property interest may enforce the covenant if it is logically connected to his property. See C. CLARK, REAL COVENANTS AND OTHER INTERESTS WHICH "RUN WITH LAND" 97 (1947). The covenant to maintain the tile drain at issue here is logically connected both to the Gateses' property--in which the drain is buried--and to the plaintiff's land, which is served by the drain. Because the drain runs exclusively across the Gateses' land, however, the agreement to maintain it has no logical connection to the land held by the other defendants, who own residential tracts in the old Bohn farm. Thus, the "touch and concern" requirement is met as to Moseley, the plaintiff, and the Gateses, but not as to the other defendants.

Finally, to establish a covenant running with the land, Moseley was required to prove she was in privity of estate with the defendants. Where, as here, neither of the original covenators is a party to the suit, both "vertical privity" and "horizontal privity" must be proved. "Vertical privity" is established where the party seeking to enforce the covenant and the party against whom it is to be enforced are successors in title to the property of the covenantee and covenantor respectively. See CRIBBET, supra, at 354. Vertical privity clearly exists in this case.

The concept of "horizontal privity," however, is more difficult. "Horizontal privity" is generally established by evidence that the original parties to the covenant had some mutual or successive interest either in the land burdened by the covenant or the land benefitted by it. The requirement of horizontal privity may be met by proof that the coventee has a leasehold and the covenantor has the reversion in the affected land. E.g., National Manufacturing & Engineering Co. v. Farmers Trust & Savings Bank, (1933) 204 Ind. 535, 185 N.E. 146. Similarly, the parties are in privity where one has an easement in land owned by the other, so long as the covenant concerns...

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