Norcross v. James

• Decision Date: 23 October 1885
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James A. Norcross & another v. William James & another

140 Mass. 188

2 N.E. 946

James A. Norcross & another v. William James & another

Supreme Judicial Court of Massachusetts

October 23, 1885

Argued September 23, 1885

Hampden.

Bill dismissed.

J. G Dunning, for the plaintiff. 1. The covenant, as to quarrying contained in the deed of Kibbe to Flynt, is a covenant running with the land; and, as such, is binding on the heirs and assigns of the covenantor, in favor of the heirs and assigns of the covenantee. Bronson v. Coffin, 108 Mass. 175. Hills v. Miller, 3 Paige 254. Norman v. Wells, 17 Wend. 136, 147. Platt v Eggleston, 20 Ohio St. 414.

2. The effect of said covenant was to create an easement in the land to which it related. Although a covenant, when regarded as a contract, is binding only as between the original parties yet in order to give effect to their intention, it may be considered in equity as creating an incorporeal hereditament, in the nature of an easement, in the unconveyed estate, and rendering it appurtenant to the estate conveyed. Morse v. Aldrich, 19 Pick. 449. Savage v. Mason, 3 Cush. 500. O'Neil v. Holbrook, 121 Mass. 102. Roche v. Ullman, 104 Ill. 11. Fitch v. Johnson, 104 Ill. 111.

3. An easement may consist either in suffering something to be done, or in abstaining from doing something, upon the servient tenement. 3 Kent Com. (6th ed.) 419. Washburn on Easements, (2d ed.) 4, 5. Gale on Easements, (4th ed.) 5.

4. There is a privity of estate through the medium of the easement created by the covenant; and also through the medium of the easement of the right of way. Bronson v. Coffin, and Hills v. Miller, ubi supra.

5. So far as creating a privity of estate is concerned, it is immaterial whether the easement is already existing, or is created by the covenant. Bronson v. Coffin, ubi supra.

6. The operation of the covenant being confined by its terms to a particular place, the covenant is not open to objection as being in total restraint of business, or as creating a monopoly, but only in partial restraint of business, for which an ample consideration was given. The covenant was only a fair protection to the interests of the party in whose favor it was made, and is not so broad as to interfere with the rules of public policy. Mitchel v. Reynolds, 1 P. Wms. 181. Stearns v. Barrett, 1 Pick. 443. Palmer v. Stebbins, 3 Pick. 188. Pierce v. Woodward, 6 Pick. 206. Gilman v. Dwight, 13 Gray 356.

C. L. Long, for the defendant.

Field C. Allen, & Gardner, JJ., absent. Holmes, J.

OPINION

Holmes J.

One Kibbe conveyed to one Flynt a valuable quarry in Longmeadow, of six acres, bounded by other land of the grantor, with covenants as follows: "And I do for myself, my heirs, executors, and administrators, covenant with the said Flynt, his heirs and assigns, that I am lawfully seised in fee of the afore-granted premises, that they are free of all incumbrances, that I will not open or work, or allow any person or persons to open or work, any quarry or quarries on my farm or premises in said Longmeadow." By mesne conveyances the plaintiffs have become possessed of the quarry conveyed to Flynt, and the defendants of the surrounding land referred to in the covenant. The defendants are quarrying stone in their land, like that quarried by the plaintiffs; and the plaintiffs bring this bill in equity for an injunction.

The discussion of the question under what circumstances a landowner is entitled to rights created by way of covenant with a former owner of the land, has been much confused since the time of Lord Coke, by neglecting a distinction, which he stated with perfect clearness, between those rights which run only with the estate in the land and those which are said to be attached to the land itself: "So note a diversity between a use or warranty, and the like things annexed to the estate of the land in privity, and commons, advowsons, and other hereditaments annexed to the possession of the land." Chudleigh's case, 1 Rep. 120a 122b; S. C. nom. Dillon v. Fraine, Poph. 70, 71.

Rights of the class represented by the ancient warranty, and now by the usual covenants for title, are pure matters of contract, and from a very early date down to comparatively modern times lawyers have been perplexed with the question how an assignee could sue upon a contract to which he was not a party. West, Symboleog. I. sect. 35. Wingate's Maxims, 44, pl. 20, 55, pl. 10. Co. Lit. 117 a. Finch's case, 4 Inst. 85. But an heir could sue upon a warranty to his ancestor, because for that purpose he was eadem persona cum antecessore. See Y. B. 20 & 21 Ed. I. 232 (Rolls ed.); Overton v. Sydall, Poph. 120, 121; Oates v. Frith, Hob. 130; Bain v. Cooper, 1 Dowl. Pr. Cas. (N. S.) 11, 14. And this conception was gradually extended, in a qualified way, to assigns, where they were mentioned in the deed. Bract. fol. 17 b 67 a, 380 b 381. Fleta, III. c. 14, § 6. 1 Britton, (Nich. ed.) 255, 256. Y. B. 20 Ed. I. 232-234 (Rolls ed.). Fitz. Abr. Covenant, pl. 28. Vin. Abr. Voucher, N, p. 59. Y. B. 14 Hen. IV. 56; 20 Hen. VI. 34 b. Old Natura Brevium, Covenant, 67, B, C, in Rastell's Law Tracts, ed. 1534. Doct. & Stud. Dial. 1, c. 8. F. N. B. 145, C. Co. Lit. 384 b. Com. Dig. Covenant, B, 3. Middlemore v. Goodale, Cro. Car. 503; S. C. ib. 505; W. Jones, 406. Philpot v. Hoare, 2 Atk. 219.

But in order that an assignee should be so far identified in law with the original covenantee, he must have the same estate, that is, the same status or inheritance, and thus the same persona, quoad the contract. The privity of estate which is thus required is privity of estate with the original covenantee, not with the original covenantor; and this is the only privity of which there is anything said in the ancient books. See, further, Y. B. 21 & 22 Ed. I. 148 (Rolls ed.); 14 Hen. VIII. 4, pl. 5. Of course, we are not now speaking of cases of landlord and tenant, and it will be seen that the doctrine has no necessary connection with tenure. F. N. B. 134, E. We may add, that the burden of an ordinary warranty in fee did not fall upon assigns, although it might upon an heir, as representing the person of his ancestor. Y. B. 32 & 33 Ed. I. 516 (Rolls ed.).

On the other hand, if the rights in question were of the class to which commons belonged, and of which easements are the most conspicuous type, these rights, whether created by prescription, grant, or covenant, when once acquired, were attached to the land, and went with it, irrespective of privity, into all hands, even those of a disseisor. "So a disseisor, abator, intruder, or the lord by escheat, &c. shall have them as things annexed to the land." Chudleigh's case, ubi supra. See 1 Britton, (Nich. ed.) 361; Keilw. 145, 146, pl. 15; F. N. B. 180, N; Nevil's case, Plowd. 377, 381. In like manner, when, as was usual, although not invariable, the duty was regarded as falling upon land, the burden of the covenant, or grant, went with the servient land into all hands, and of course there was no need to mention assigns. See cases supra et infra. The phrase consecrated to cases where privity was not necessary was transit terra cum onere. Bract. fol. 382 a, b. Fleta, VI. c. 23, § 17. See Y. B. 20 Ed. 1. 360 (Rolls ed.); Keilw. 113, pl. 45. And it was said that "a covenant which runs and rests with the land lies for or against the assignee at the common law, quia transit terra cum onere, although the assignee be not named in the covenant." Hyde v. Dean of Windsor, Cro. Eliz. 552; S. C. ib. 457*; 5 Rep. 24 a; Moore, 399.

It is not necessary to consider whether possession of the land alone would have been sufficient to maintain the action of covenant: it is enough for our present purposes that it carried the right of property. Neither is it necessary to consider the difficulties that have sometimes arisen in distinguishing rights of this latter class from pure matters of contract, by reason of their having embraced active duties as well as those purely passive and negative ones which are plainly interests carved out of a servient estate and matters of grant. The most conspicuous example is Pakenham's case, Y. B. 42 Ed. III. 3, pl. 14, where the plaintiff recovered in covenant as terre-tenant, although not heir, upon a covenant or prescriptive duty to sing in the chapel of his manor. Spencer's case, 5 Rep. 16 a 17 b. Another, which has been recognized in this Commonwealth, is the quasi easement to have fences maintained. Bronson v. Coffin, 108 Mass. 175, 185; S. C. 118 Mass. 156. Repairs were dealt with on the same footing: they were likened to estovers and other rights of common. 5 Rep. 24 a, b. Hyde v. Dean of Windsor, ubi supra. See F. N. B. 127; Spencer's case, ubi supra; Ewre v. Strickland, Cro. Jac. 240; Brett v. Cumberland, 1 Roll. R. 359, 360; and other examples might be given. See Bract. 382 a, b; Fleta, VI. c. 23, § 17; Y. B. 20 Ed. I. 360; Keilw. 2 a, pl. 2; Y. B. 6 Hen. VII. 14 b, pl. 2; Co. Lit. 384 b 385 a; Cockson v. Cock, Cro. Jac. 125; Bush v. Cole, 12 Mod. 24; S. C. 1 Salk. 196; 1 Show. 388; Carth. 232; Sale v. Kitchingham, 10 Mod. 158. The cases are generally landlord and tenant cases, but that fact has nothing to do with the principles laid down.

When it is said that in this class of cases there must be a privity of estate between the covenantor and the covenantee, it only means that the covenant must impose such a burden on the land of the covenantor as to be in substance, or to carry with it a grant of an easement or quasi easement, or must be in aid of such a grant (Bronson v. Coffin, ubi supra); which is generally true, although, as has been shown, not invariably (Pakenham's case, ubi supra); and although not quite reconcilable with all the old cases except by somewhat hypothetical historical explanation. But the expression "privity...