Norfleet v. Cromwell

• Decision Date: 31 January 1870
• Court: North Carolina Supreme Court
• Parties: JOHN NORFLEET, Adm'r. of DAVID COBB, dec'd., and others, v. ELISHA CROMWELL.

64 N.C. 1

JOHN NORFLEET, Adm'r. of DAVID COBB, dec'd., and others,

v.ELISHA CROMWELL.

Supreme Court of North Carolina.

January Term, 1870.

Covenants creating easements, run with the land, even as against assignees in fee, where the intent to create them is clear, the easements themselves apparent, and the covenants consistent with public policy, and so qualifying or regulating the mode of enjoying the easements, as, that, if disregarded, the latter will be substantially different from what is intended:

Therefore, a covenant to repair a canal dug for the purpose of draining the lands of the parties to the covenant, runs with such lands, and binds a subsequent purchaser in fee.

A party thus bound, is entitled to notice of a call to contribute, after the repairs have been done; and the want of such notice, even where, previously to the making of the repairs, he had disclaimed liability therefor, is fatal to an action against him.

Covenants are the proper mode of creating such servitudes as consist in acts to be done by the owner of the servient land.

( Blount v. Harvey, 6 Jon. 186; Sikes v. Quick, 7 Jon. 19, cited and approved.)

NOTE.--See Cobb v. Cromwell, Phil. Eq., 18.

COVENANT, tried upon demurrer, by Jones, J., at Spring Term 1869 of EDGECOMBE Court.

The action had been brought to Spring term 1867.

As the question involved is an important one, and the contract which gave rise to it seems to have been drawn with care, and as the record which presents it was settled by learned counsel, the Reporter submits the declaration (filed, in the form of a complaint, at Spring Term 1869,) in full:

IN THE SUPERIOR COURT OF EDGECOMBE COUNTY.

John Norfleet, Administrator of David Cobb, Jesse Harrell,

George Harris and William T. Cobb, Plaintiffs,

Against

Elisha Cromwell, Defendant.

The Plaintiffs above named complaining of the Defendant allege:

I. That on the 20th day of January, A. D., 1855, Eaton Cobb and the Plaintiff Jesse Harrell, were the owners or proprietors of a canal, in proportion of two-thirds to the said Eaton and one-third to the said Jesse, situate in the said County and heading or beginning on the then lands of Amariah B. Cobb, and emptying into the mill stream of Mrs. Mary Gregory, passing through the lands of David Cobb, the said Eaton Cobb and Elisha Cromwell, the Defendant; and on said day, the said Eaton Cobb, the plaintiff Jesse Harrell, David Cobb the intestate of the plaintiff John Norfleet, James Thigpen, Amariah B. Cobb, and the plaintiff Geo. Harris entered into a writing obligatory, under their hands and seals (which writing has been duly proved and registered in the Register's Office of said County) in which the said parties set forth the facts following, and made the following covenants in relation to said Canal:

1. That the said Amariah B. Cobb, David Cobb, James Thigpen and George Harris desire the use or privilege of the said canal, for the purpose of draining all or a portion of the lands of which they are respectively seized and possessed, and have applied for such use or privilege, and all the said parties have come to a full understanding and agreement, one with another, in reference to the said canal, which said understanding or agreement the said parties wish and intend shall be binding, not only upon themselves, but upon their heirs and assigns respectively, quoad the lands specified in said covenant.

2. That the said Eaton Cobb, his heirs and assigns, shall not use the said canal for the purpose of draining any other lands than the tract or parcel of which he was then seized or possessed, adjoining the lands of the said David Cobb and others, containing 314 acres, more or less.

3. That the said Jesse Harrell, his heirs and assigns, shall not in any event, use the said canal for the purpose of draining any other lands than the two tracts or parcels of which he was then seized and possessed, called the David Harrell land, one containing 46 acres, more or less, the other containing 126 acres, more or less.

4. That the said Amariah B. Cobb, David Cobb, James Thigpen and George Harris, their heirs and assigns respectively, shall have, possess and enjoy the right and privilege of using the said canal, for the purpose of draining all the lands of which they were then severally seized and possessed.

5. That any one or more of the said parties, shall have the right to determine what work is necessary to be done, for the purpose of enlarging, deepening, cleaning out or repairing the said canal, or bridging the same where a public road crosses it, and he or they shall be fully empowered to do the said work, or have the same done, and the said parties shall bear and pay the reasonable expenses and the burden of said work, in the following proportions, to-wit: one eighteenth to the said Jesse Harrell, his heirs and assigns; one-eighteenth, to the said George Harris, his heirs and assigns; one-twelfth to the said Jas. Thigpen, his heirs and assigns; one-tenth to the said Amariah Cobb, his heirs and assigns, and the balance or residue equally to the said Eaton Cobb and David Cobb, their heirs and assigns respectively.

6. That no person or persons shall be permitted to use the said canal for the purpose of draining his, her or their lands without the consent in writing of a majority of the said parties, and all moneys which may be paid for the privilege of using the said canal, shall go and belong to the said Eaton Cobb and Jesse Harrell, their heirs and assigns respectively, in the proportion of two-thirds to the former, and one-third to the latter.

7. That the said David Cobb, his heirs and assigns, upon cutting a ditch into said canal which shall begin or head in, or pass through any part or portion of such part, or portion of the tract of land to be purchased of the heirs of Solomon Pender, as lies on the North side of the public road leading from Tarborough to Little Creek Meeting House, shall pay to the said Jesse Harrell, his heirs and assigns, the sum of fifty dollars.

8. That the said Jesse Harrell did not then contemplate or expect thereafter to use the said canal for the purpose of draining the larger tract of land hereinbefore mentioned as belonging to him or any part thereof, but in case that the said canal shall be so used by the said Jesse Harrell, his heirs or assigns, then from the time it shall be so used thenceforward, the proportions of the said parties in the expense and burden of the work, which may be done in and upon the said canal as hereinbefore set forth, shall cease, and they shall be as follows, viz: one-twentieth to the said Geo. Harris, his heirs and assigns; one-thirteenth to the said James Thigpen, his heirs and assigns; one-eleventh to the said Amariah B. Cobb, his heirs and assigns; one-sixth to the said Jesse Harrell, his heirs and assigns; and the balance or residue equally to the said Eaton Cobb and David Cobb, their heirs and assigns, respectively.

II. That on the 29th day of July, A. D., 1858, the said Eaton Cobb, David Cobb, Jesse Harrell, James Thigpen and Geo. Harris, with Henry V. Lloyd, entered into a writing obligatory, under their hands and seals (which writing has been duly proved and registered in the Register's Office of said County) in which the parties set forth the following facts, and made the following covenants in relation to the said canal.

1. That with the consent of all the parties to the agreement or covenant dated as aforesaid on the 20th day of January, A. D., 1855, the said Henry S. Lloyd had then recently purchased of the said Eaton Cobb and Jesse Harrell, proprietors of the said canal, the right or privilege of using the said canal for the purpose of draining certain lands hereinafter mentioned, in the manner and upon the terms hereinafter set forth.

2. That David Cobb had purchased the lands of the said Amariah B. Cobb to which the said agreement applied, and thereby acquired all the rights and privileges, and became subject to all the burdens and duties of the said Amariah.

3. That the said Henry S. Lloyd, his heirs and assigns, shall have and possess the privilege and use of the said canal, for the purpose of draining the whole or any part of the piece or parcel of land known as the Newsom Cromwell tract, adjoining the lands of David M. Cobb, Jordan Knight, Elisha Cromwell, and the said David Cobb, containing about five hundred acres, also the part or portion of the Larkey Booths lands, adjoining the lands of Elisha Cromwell, which is known as the Bearskin Swash or Swamp, the quantity thereof being about fifty acres; in draining the said Bearskin Swash or Swamp, the said canal is not to be cut into or entered, at more than one point or place.

4. That all the rights, privileges and powers, and all the burdens and duties conferred and imposed in the said articles of agreement, of 20th January, 1855, (being numbered in said articles as sections 4th and 5th, but in the clauses above numbers 5 and 6) upon the parties thereto, shall be enjoyed and borne by the parties to this agreement (29th July, 1858) with the following additions and alterations, to-wit: Besides the kind of work specified in section 4 of the agreement of 20th January, 1855, that of removing the earth or dirt which has been or may thereafter be thrown out of the said canal, to a suitable and proper distance from its banks, to prevent them from caving or falling in, is provided for in addition, and the proportions of the work or expenses to be done and incurred by the respective parties to this agreement, shall be as follows: one twenty-sixth part by the said Jesse Harrell, his heirs and assigns; the same by the said George Harris, his heirs and assigns; one-seventeenth by the said James Thigpen, his heirs and assigns; one-fourth by the said Eaton Cobb, his heirs and assigns; and the balance by the said David Cobb and Henry S. Lloyd, their respective heirs and assigns equally.

5. That the said Jesse Harrell, his heirs and assigns, shall be exempt...