Muscogee Mfg. Co. v. Eagle & Phenix Mills

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN, J. (after stating the foregoing facts).
• Citation: Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210, 54 S.E. 1028 (Ga. 1906)
• Decision Date: 13 August 1906
• Parties: MUSCOGEE MFG. CO. v. EAGLE & PHENIX MILLS.

54 S.E. 1028

126 Ga. 210

MUSCOGEE MFG. CO.
v.
EAGLE & PHENIX MILLS.

Supreme Court of Georgia

August 13, 1906

Syllabus by the Court.

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. A covenant running with the land relates directly to the land and follows it into the hands of assignees. A personal covenant does not do so.

Where land abutting on a river and including its bed, in which river there was an undeveloped water power, was divided by a city into water lots which were respectively numbered, beginning with that lying furthest north, and the lots bearing even numbers were sold, and in the deed it was provided that the purchaser should build above or opposite lot No. 1 a dam with a canal or race of the character described, which canal or race should extend through the other lots, and where the deed also contained the covenant, "Said lots of even numbers and their improvements, and no other property whatsoever, to be forever liable for the payment of any damage which said city or person or persons or company of persons, to whom they may sell or convey any one or more of said lots of odd numbers may sustain by reason of the failure to complete said race or canal, or to keep the same and said dam in good repair"-- held, that the covenant quoted was one running with the land.

Grants by implication are not favored.

Where the Legislature authorized the city of Columbus to lay off water lots on the Chattahoochee river, and to dispose of them by sale or lease "for such times and on such terms as they deemed for the interest of the city," and where subsequently, all the water lots having been acquired by certain persons, the Legislature incorporated four persons and their associates and successors as the water lot company, conferring upon them in the charter full power "to have, hold, purchase, receive, possess, enjoy, and retain to them and their successors, lands, rents, tenements, hereditaments, goods, chattels, and effects, of whatsoever kind, nature, or quality the same may be, and the same to sell, grant, demise, alien, or dispose of," and provided that the "death of one or more of the directors, or parties in interest, shall at no time, or in any case, prevent or hinder or delay a sale or sales of the said lots, or any of them, or an interest therein, by the survivors, in the name of the corporation"-- held, that there was no legislative restriction which prevented a merger of rights running in favor of some of the lots for the benefit of others, when all became the property of one person, although before the incorporation.

Nor did the action of the Legislature so operate as to restrict the right of the owner of all the lots, or the corporation which it created, from making covenants or stipulations as to the rights which purchasers under them should have in regard to the amount of water or power to be used by them, respectively; nor so as to require that each purchaser from such common owner should be entitled to one-nineteenth part of the water afforded by the river (19 of the lots being involved in the present controversy).

As a general rule, a covenant in a deed of land restricting the mode of its use, and inserted for the benefit of adjoining land of the grantor, will be extinguished by the subsequent vesting in one person of the title to both tracts of land.

If two estates in the same property united in the same person in the same capacity, and it is contended that no merger took place, the person making such contention, if entitled so to do, must allege and prove facts negativing the existence of such merger.

One who grants a thing is deemed also to grant that within his ownership, without which the grant itself would be of no effect. But this rule applies only to such things as are incident to the grant and directly necessary to the enjoyment of the thing granted.

If the right to use power from a dam has been acquired and affixed to a particular mill or parcel of real estate, it will pass by a grant of the property, with appurtenances. But, if the power was not an appurtenance of the property at the time of the grant, it will not pass as such, although the grantor had a right to make use of the power at that time.

A grant of property will carry with it actual existing appurtenances, but will not create any appurtenances.

The allegations of the present petition fail to show such an existing appurtenance or necessary incident at the time of the grant under which the plaintiff claims as to bring the case within the rule stated above. Moreover, it seeks to determine what a person claiming to be a remote grantee from the holder of the entire title acquired, not so much by grants which the latter made as by those which he received.

Error from Superior Court, Muscogee County; Z. A. Littlejohn, Judge.

Action by the Eagle & Phenix Mills against the Muscogee Manufacturing Company. Judgment for plaintiff, and defendants bring error. Reversed.

The Legislature authorized a city to lay off water lots on a river and dispose of them by sale or lease. Thereafter all the water lots were acquired by certain persons, and the Legislature incorporated four persons and their associates as a water lot company, conferring on them power to hold and enjoy such lots and to sell and grant or dispose of the same, and that the death of any of the parties in interest should not prevent a sale of said lots, or any interest therein, by the survivors, in the name of the corporation. Held, that there was no legislative restriction which prevented a merger of rights running in favor of some of the lots for the benefit of others, when all became the property of one person, though before the incorporation.

The Eagle & Phenix Mills filed its petition against the Muscogee Manufacturing Company, alleging substantially as follows: The state of Georgia, being the original owner of all the land in the Coweta Reserve in Muscogee county, in the year 1828 set aside 1,200 acres for a town to be called Columbus, caused the tract to be divided into streets, lots, and commons, and offered lots for sale. The tract had for its western boundary the line indicated by high-water mark on the western bank of the Chattahoochee river, being the line that separates the states of Georgia and Alabama, so that the land set apart for the town embraced the entire river. See Dawson's Compilation, 132, 470, 474. At a point within the town for a length of four blocks there was a marked descent from the natural flow of the river, which was known as "Coweta [54 S.E. 1029] Falls." The land on the east bank of the river, not being available for either residence or business lots, was not divided into separate lots, until by the act of 1840 (Acts 1840, p. 187) the Legislature authorized the mayor and council of Columbus to define Bay street and to lay off water lots fronting on that street, to extend them across the river, and to sell or lease them on such terms as might be deemed best for the interest of the city. In 1841 the city council passed a resolution stating the terms on which the water lots were to be sold. In December of that year the city granted to John H. Howard and Josephus Echols, their heirs, executors, administrators, and assigns all the even-numbered lots beginning with No. 2 and ending with No. 36; each being 72 feet wide. The consideration recited in the deed was $1,000 and the performance on the part of the grantees "of the conditions hereinafter named, and for and in consideration of their bond made to said mayor and council of the city of Columbus bearing date the thirteenth day of June in the year aforesaid, requiring under a penalty the performance of said condition." The deed contained the following: "The said John H. Howard and Josephus Echols shall erect a suitable and sufficient and well-constructed dam across the Chattahoochee river, terminating in the eastern bank thereof, at any point on or above lot No. 1, in the aforesaid plan, plat, and survey designated, and below the north common lots, so that when said river is at its usual height five head of water may be obtained on said lot No. 1, and an increase had [the resolution of council says "an increased head"] on each of the lots below it (for the purpose of propelling machinery) by an almost level canal or race; and to construct and form a safe and well-constructed canal or race, extending from said dam through all of said lots; said dam to be so high, and said canal or race to be so capacious, that when said river falls to the lowest height at which it usually stands in very dry weather, all the water of said river may, as it runs down, pass through said canal or race; and keep said dam and race forever in good repair. Said lots of even numbers and their improvements, and no other property whatsoever, to be forever liable for the payment of any damage which said city or any person or persons or company of persons, to whom they may sell and convey any one or more of said lots of odd numbers, may sustain by reason of a failure to complete said race or canal, or to keep the same and said dam in good repair; and to commence in good faith and not evasively the erection of said dam and the construction of said race or canal within twelve months from the twenty-ninth day of June in the year aforesaid; and to have said dam completed and said canal or race so far completed that said five head of water may be obtained on said lot number one, and available for propelling machinery, within twenty-seven months from the date hereof; and to fully complete said canal or race within five years from the date and year last aforesaid; and in the event of a failure to erect said dam and said race within the time limited, said lots of even numbers shall revert to said mayor and council." In 1843 the city conveyed to John H. Howard...