Peto v. Korach

• Decision Date: 16 January 1969
• Docket Number: No. 29178,29178
• Citation: 17 Ohio App.2d 20,244 N.E.2d 502
• Parties: , 46 O.O.2d 29 PETO et al., Appellees, v. KORACH, Appellant, et al.
• Court: Ohio Court of Appeals

Page 20

17 Ohio App.2d 20

244 N.E.2d 502, 46 O.O.2d 29

PETO et al., Appellees, v. KORACH, Appellant, et al.

No. 29178.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 16, 1969.

Syllabus by the Court

1. A covenant to pay money to maintain an easement appurtenant in which the covenantor has rights of user may run with the land.

2. In the absence of express agreement to the contrary, the liability of the original covenantor in a real covenant includes only such liability as arises before the covenantor is divested of his interest in the estate with which the burden of the covenant runs. (Hickey v. Lake Shore & M. S. Railway Co., 51 Ohio St. 40, 36 N.E. 672, 23 L.R.A. 396; Hughes v. Cincinnati, 175 Ohio St. 381, 195 N.E.2d 552, followed.)

3. In the case of a real covenant, the assignee of the covenantor stands in the place of the latter, as to all liability under the covenant arising after the assignment.

Miller, Folk & Schutz, Cleveland, for appellees.

Burke, Haber & Berick, Cleveland, for appellant.

SILBERT, Judge.

This is an appeal on questions of law from a judgment for plaintiffs in the Municipal Court of Cleveland. Trial was had on the following stipulation of facts:

'Prior to May 7, 1948, the defendant, Ernest Korach (appellant herein), was the owner of sub lot No. 201 fronting on Tillman Avenue in Cleveland, Ohio, which sub lot was improved by two residences; the one on the front (SOUTHERLY PORTION) OF THE LOT BEING THEN AND now known as 5116 tillman avenue, and the one at the rear (northerly portion) of the lot being then and now known as 5114 Tillman Avenue.' The defendant-appellant divided the parcel into two portions, each of them containing a residence, and conveyed the portions, by separate deeds, both dated May 7, 1948, to different grantees.

The front, or southerly portion, which we shall designate as parcel No. 1, was eventually conveyed by Korach's grantee to Alex E. Peto and Donna Peto, plaintiffs, appellees herein. The deed by which Korach had conveyed this portion referred to the other (retained) portion (hereinafter designated parcel No. 2) in a clause reserving an easement over parcel No. 1. The language of such clause is as follows:

'* * * reserving unto the grantor, his heirs and assigns, the right and easement to use in common with the grantees herein, their heirs and assigns, the water lines and sewer as now established, and connecting with the main water line and public or main sewer in Tillman Avenue, and the right and easement to lay, maintain, operate, repair and remove over and through the premises above conveyed from premises of grantor adjoining premises above conveyed on the northerly line thereof, a sewer and water line to said Tillman Avenue, at any and all times, at the option of the grantor herein, his heirs and assigns, and grantor, his heirs and assigns, agrees to share one-third of the cost of the upkeep and maintenance of the sewer and water facilities and agree (sic) to share one-third of the cost of the use of the sewer and water facilities, * * *.' (Emphasis added.)

Defendant then conveyed the northerly portion (parcel No. 2), which, through a subsequent series of conveyances, passed to Isabelle Chessler, Frank Gallo and Mary Gallo, who were the co-owners of that portion prior to and during October and November, 1964, during which period arose the issues involved herein. During this same period, defendant Carol Pless was in possession of parcel No. 2. The nature of her interest, if any, is not clear, but it is certain that she was not one of the record owners of the realty.

In October 1964, the sewer line serving both parcels became blocked, and repairs were needed. The plaintiffs, who owned parcel No. 1, contracted for repairs.

Before the sewer repair work was commenced, defendant Carol Pless was notified. When the work was concluded, all the defendants received demands from the plaintiffs for payment of one-third of the cost.

Ultimately, plaintiffs sued Isabelle Chessler, Frank Gallo and Mary Gallo, who, at the time of the repairs, were co-owners of parcel No. 2; Carol Pless, who at that time was in possession of that parcel, but who was not an owner of record; and Ernest Korach, the original grantor of both parcels, who had long since divested himself of any interest in either parcel.

The petition alleged the above facts, and prayed for judgment in an amount equal to one-third of the cost of the sewer repairs together with interest. The trial court found for the plaintiffs against all of the defendants. Defendant Korach brings this appeal.

We are confronted with a problem which can be summed up in one lengthy question, as follows: Where a grant of realty reserves to the grantor, his heirs and assigns, an easement in the land granted, which easement pertains to serving an adjacent parcel of realty retained by the grantor, and where such grantor covenants for himself, his heirs and assigns in the deed of conveyance to share in the cost of upkeep and maintenance of the part of the granted parcel to which the easement applies, is such a covenant enforceable against such grantor in perpetuum, or is his liability under the covenant ended when he divests himself of ownership in the dominant (retained) estate?

The resolution of this problem is contingent mainly upon the question whether the covenant involved herein is a real covenant, which runs with the land, or whether it is a personal covenant establishing continuing liability in the original covenantor.

'The common-law test of a covenant running with the land requires that its performance or nonperformance must affect the nature, quality, value, or mode of enjoyment of the estate demised to which it must relate.' 21 C.J.S. Covenants, § 54, p. 923. The generally-prescribed requisites for a covenant to run with the land are as follows: (1) The intent of the original grantor and grantee must have been that the covenant run with the land; (2) the covenant must either 'affect' or 'touch and concern' the land in question; (3) there must be privity of estate between the party claiming the benefit of the covenant and the party who is called upon to fulfill it. 21 C.J.S. Covenants § 54, p. 923; 20 American Jurisprudence 2d 600, 601, Covenants, Section 30; 15 Ohio Jurisprudence 2d 19-22, Covenants, Sections 16-19.

The basic requirement of intent of the parties was set forth by the Ohio Supreme Court in 1859:

'* * * whether it (a covenant) does so inhere (in the land) as to give a right and create an obligation in the case of assignees, we must look at the intent of the parties creating the estate. The law must say that it may inhere and the parties must say that it shall inhere.' Masury v. Southworth, 9 Ohio St. 340, 348.

It is well-settled that a covenant may run with land even where the original covenant does not use the words 'heirs,' 'assigns,' or 'successors.' Masury v. Southworth, 9 Ohio St. 351-352; Johnson v. American Gas Co. (1917), 8 Ohio App. 124 (paragraph one of the syllabus); Berardi v. Ohio Turnpike Commission (1965), 1 Ohio App.2d 365, 369, 205 N.E.2d 23. However, while the use of such words is not essential to enable a covenant to run, the use of those words 'does clearly reflect upon and is indicative of the intention of the grantor at the time of the conveyance.' Siferd v. Stambor (1966), 5 Ohio App.2d 79, 86-87, 214 N.E.2d 106, 111. Here, we have the explicit use of the phrase, 'heirs and assigns' in the covenant in question. Although the use of the words is not determinative of whether it was the intent of the parties that the covenant run, the existence of the words is properly considered.

A factor relating both to the intent of the parties and to the question whether the covenant touches and concerns the land is the fact that the easement involved herein merely permitted sewer pipes across the covenantee's land (parcel No. 1) to connect the retained estate (parcel No. 2) with Tillman Avenue. It hardly seems likely that the parties to the conveyance of the first parcel contemplated that the grantor would continue using those sewer pipes if he should later dispose of the second parcel. The nature of the easement and the purpose for which it was established are both indicative of an intention that the easement, and the covenant to share in the maintenance of such easement, should run, and not that they should create personal rights and liabilities. The same fact, of course, shows that the covenant directly touches and concerns the land, particularly since its obvious purpose was to share in the maintenance of an easement which yielded benefits only to whoever should own or possess the dominant estate.

In order for the benefit of a covenant to run, the promisee's legal relations in respect to the land in question must be increased; in order for the burden of a covenant to run, the promisor's legal interest in the land must be decreased. Clark, Real Covenants and Other Interests Which 'Run With Land' 97 (2d Ed., 1947). Both requirements are met by the facts in this case, and the covenant thus 'touches and concerns' both parcels.

It is manifest that there was also the requisite privity of estate. Privity existed between the original covenantor (appellant herein) and the original covenantee. Appellee herein, being the ultimate vendee and assignee of the servient estate (parcel No. 1) under the easement, is in privity with the ultimate vendees of the dominant estate (parcel No. 2), who owned such parcel at the time of the repairs, and who have the duty of sharing expenses under the covenant made by appellant in the original conveyance of parcel No. 1.

The original grantor's (appellant's) promise to pay a share of the cost of upkeep, maintenance and use is as capable of classification as a covenant running with the land as would have been a promise by the grantee to improve the sewer system.

'A promise to pay for something to be done in connection with the...