Shaber v. St. Paul Water Co.
| Citation | 30 Minn. 179,14 N.W. 874 |
| Parties | SHABER, ADM'X ETC., v ST. PAUL WATER CO. |
| Decision Date | 06 February 1883 |
| Court | Supreme Court of Minnesota (US) |
OPINION TEXT STARTS HERE
Appeal from order overruling demurrer, district court, county of Ramsey.
John B. & W. H. Sanborn, for respondent.
C. K. Davis, for appellant.
In January, 1869, John R. Irvine and Nancy Irvine owned certain land, (in the city of St. Paul,) through which ran Phalen creek, affording a valuable mill privilege thereon. Leonard Schiegee, as the lessee of the Irvines, had constructed a dam and race upon the land, by which the mill privilege was utilized in the running of a flour mill, which he had also erected thereon and was operating. By sundry subsequent conveyances the land, with the race, dam, mill, and privilege, came to Henry Shaber, the plaintiff's intestate, and the same are now part of his estate. The defendant corporation, the St. Paul Water Company, was formed to supply the city of St. Paul with water. In January, 1869, the company, in carrying out this purpose of its creation, was about to tap Lake Phalen and lay pipes by which to divert and draw off the water thereof. Phalen creek flows from Lake Phalen, which is the last and lowest of a chain or series of lakes, constituting a local water system. The Irvines and Schiegee objected to the proposed diversion of water, refused to permit it, and threatened to enjoin it, because, unless provision was made for bringing into Lake Phalen, from other sources and by artificial means, as much water over and above what naturally flowed into the same as the company should at any time draw out, the level of the lake would be lowered, the quantity of water flowing into the creek diminished, and the mill privilege impaired and destroyed.
To remove the opposition and to induce them to refrain from enjoining its proceedings, the company entered into a written agreement, by which, “for a good and valuable consideration,” it covenanted and agreed with the Irvines and Schiegee, “their heirs and assigns, severally and separately,” that it would make certain specified “improvements,” such as dams, gates, canals, and channels, all within one year from the eighth day of February, 1869; that it would at all times thereafter keep and maintain the same in a “good, strong, and substantial manner,” and that it would do and refrain from doing certain other things, all having reference to maintaining the supply of water in the creek; and further, that the volume of water flowing out of Lake Phalen through Phalen's creek should never at any time be diminished or rendered less available for the purpose of the water-power mill privilege before mentionedby any work or operation of the company than it had been before it commenced its operations; that it would never draw or take out of the lake at any time any more water than such quantity as it should introduce into the same by its said improvements and by artificial means over and above the quantity which naturally flowed into the same; and that it would, by its said improvements and by artificial means, introduce and lead into the lake at all times as large a volume of water as it should draw out, in addition to what flowed into the lake through natural channels. The plaintiff alleges that defendant has failed to make the specified “improvements,” and that it has broken its covenants in reference to maintaining the stage and quantity of water in the creek, and that in consequence of said failure and breaches the flow of water in the creek has been diminished by the drawing and diverting of water by defendant from Lake Phalen, and thereby the said Shaber, in his life-time, and his estate since his decease, has been greatly damaged (as particularly set forth) in respect to the mill water privilege, and the use and operation of the same, and that he and his estate have been subjected to great expense and loss on account thereof. This appeal is taken from an order overruling defendant's general demurrer to the complaint.
Our examination of the case has brought us to the conclusion that the appeal presents a single question viz.: Whether any of the covenants entered into by defendant run with the land of the covenantees to Shaber and his estate. This is a pure common-law question, to be decided upon the authorities. We think the following propositions embody the rules of law applicable...
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Pelser v. Gingold
...to its use or enjoyment, are found in cases involving covenants to maintain water in a lake at a certain stage, Shaber v. St. Paul Water Co., 30 Minn. 179, 14 N.W. 874, and covenants relating to party walls, National Life Ins. Co. v. Lee, 75 Minn. 157, 77 N.W. 794. An example of a collatera......
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165 Broadway Building v. City Investing Co.
...to be rejected altogether, it is not applicable in any event to the running of the benefit of covenants, as here. Shaber v. St. Paul Water Co., 30 Minn. 179, 14 N.W. 874; Lingle Water Users Ass'n v. Occidental Bldg. & Loan Ass'n, 43 Wyo. 41, 50, 297 P. 385; Murphy v. Kerr, supra; Restatemen......
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Federated Retail Holdings, Inc. v. Cnty. of Ramsey, No. A11–2093.
...471–72, 43 N.W. 469, 473–74 (1889) (conducting a de novo review of whether a covenant runs with the land); Shaber v. St. Paul Water Co., 30 Minn. 179, 183, 14 N.W. 874, 875 (1883) (concluding after a de novo review that a covenant to maintain water in a lake at a certain stage ran with the ......
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Clement v. Willett
...to the assignee. Kettle River R. Co. v. Eastern Ry. Co., 41 Minn. 461, 43 N. W. 469,6 L. R. A. 111. See, also, Shaber v. St. Paul Walter Co., 30 Minn. 179, 14 N. W. 874. ‘If the covenant does not extend to or affect the quality, value, or mode of enjoying the land conveyed, and is merely co......