Tardy v. Creasy

• Citation: 81 Va. 553
• Parties: TARDY v. CREASY.
• Decision Date: 25 March 1886
• Court: Supreme Court of Virginia

81 Va. 553

TARDY v. CREASY.

Supreme Court of Appeals of Virginia.

March 25, 1886

Appeal from decree of circuit court of Pittsylvania county, entered December 5, 1883, in a chancery suit wherein A. H. and S. C. Tardy were complainants, and T. C. and R. H. Creasy were defendants. The decree being adverse to the complainants they obtained an appeal to this court.

Opinion states the case.

John Gilmer and E. C. Burks, for the appellants.

Green & Miller, George T. Rison, and W. W Gordon, for the appellees.

OPINION

LACY, J.

The case is as follows: Tolbert conveyed to A. H. Tardy five and one-half acres of land, at the junction of the narrow gauge railroad, with the Washington City, Virginia Midland and Great Western Railroad, between Galveston and Ward's Springs, with general warranty. The said Tolbert being seised of a tract of three hundred and sixty-eight acres around the said junction, covenanted in the deed with said Tardy, that he was to have the exclusive mercantile privilege, and all rights pertaining thereto, at, in, and around said junction, and agreed to forfeit five hundred dollars for any breach thereof by him. Subsequently, in 1879, Tolbert, by deed reciting that the aforesaid deed did not fully express the desire and intention of the said parties, and declaring an intention to perfect and carry into effect said desire and intention, conveyed, with general warranty to the said Tardy, " the exclusive right to sell wares, goods and merchandise; to keep houses of public entertainment or refreshment; to establish and erect warehouses, factories, foundries and shops on said tract of five and one-half acres, or on any lands or lots subsequently purchased by said Tardy, or that may hereafter be purchased, or on any part of the lands now owned by said Tolbert at and adjoining said five and one-half-acre tract, which said lands embrace, by estimate, about 368 acres of land, and is that portion of the lands conveyed to him by E. H. Dillard and wife, which he, said Tolbert, has not hitherto sold. But this deed shall not authorize said Tardy, or his assigns, to erect any house, or to carry on any business on any of said lands, except such as he may have, or may hereafter purchase, although said Tolbert, his heirs or assigns, are hereby deprived of the privileges hereinbefore enumerated, this deed running with the lands of said Tolbert to whomsoever hereafter devised or conveyed. It is, however, agreed between said parties, that the said Tardy shall have right to convey any of the privileges herein enumerated on any of his lands purchased, or that may hereafter be purchased, to any person; and said Tardy and Tolbert, by joint deed, both agreeing thereto, convey said privileges on the balance of the lands of said Tolbert."

Tardy and wife conveyed one-half interest in their purchase to S. C. Tardy, Jr.; Tolbert and wife subsequently conveyed one acre of the 368 acre-tract to Roach, with general warranty, " restricting, however, the said Roach from any mercantile privileges, the same having been heretofore conveyed to A. H. Tardy." Roach conveyed by deed, with general warranty, to the appellee, Creasy, the said one-acre parcel of land bought by him, without restriction. Creasy established a mercantile business on the land bought of Roach, having formed a copartnership with T. C. Creasy, under the name and style of T. C. Creasy & Co. A. H. Tardy and S. C. Tardy, Jr., filed their bill in the circuit court of Pittsylvania county, having for its object to restrain and enjoin T. C. Creasy & Co. from selling goods, wares, and merchandise on said parcel of one acre of land, or from otherwise trespassing on the alleged rights of A. H. and S. C. Tardy.

On the hearing, this bill was demurred to by Creasy & Co., " 1. Because said bill is without equity on its face, and is not sufficient in law. 2. Because S. C. Tardy, Jr., was improperly joined as a co-complainant. 3. Because Tolbert was not made a party."

The circuit court of Pittsylvania sustained the demurrer and dismissed the bill with costs, and the case is here upon appeal from that decree. The circuit court held that the undertakings of Tolbert in his said deeds were personal covenants merely, not extending to Creasy & Co., by which they were not bound; that the said covenants did not run with the land, but were collateral, and imposed no burden upon the said land annexed thereto as an easement or servitude.

The appellants contend that the covenants in the Tolbert deeds affixed an easement to the lands of Tolbert unsold, and the said covenants being attached to the said lands adhered to them in the hands of all holders forever, running therewith, parcel of the same, an interest in the land, passing with the land to which it is annexed to the assignees thereof.

We may define an easement to be " a privilege without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer, or refrain from doing something on his own tenement for the advantage of the former. " Stevenson v. Wallace, 27 Gratt. 87?? Goddard on Easements, 2.

It has been defined to be " a right which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over the estate of another." Ritger v. Parker, 8 Cush. 147. " A charge or burden upon one estate, the servient, for the benefit of another, the dominant." Marison v. Marquardt, 24 Iowa 35. " A liberty, privilege, or advantage which one may have in the lands of another without profit." Big Mountain Improvement Co.'s Appeal, 54 Penn. St. 361.

An easement is a right which is appurtenant to the dominant tenement, and imposed upon the servient tenement; and it is important to mark that it is not imposed upon the person of the servient owner; therefore an obligation upon him to do something for the benefit of the dominant tenement is not an easement. Then an easement which a land owner may lawfully acquire, and which may be affixed to the land as a burden upon the servient and for the benefit of the dominant tenement, such as the well-known easements, a right to light, or a right of way, a right to support for land and buildings, rights relating to the flow of water, rights relating to purity of water, rights relating to the taking of water for use. Besides such well-known easements, attempts have been made to establish other easements, which the law does not recognize, and to annex them to land; but the law will not permit a land-owner to create easements of every novel character and attach them to the soil.

But there are many other easements which have been recognized, and some of them have been of a novel kind. And, although some novel right has been granted by a land-owner to another person which may be valid and binding upon him personally, so long as he continues owner of the quasi servient tenement, so that on disturbance he may be sued for breach of covenant, yet if such right be of such kind that the law does not recognize as capable of being annexed to the soil, that right, good against the covenantor, is void as against other persons than the grantor, and will not entitle the grantee to sue for the benefit in his own name, on the one hand, nor annex to his premises the burden on the other. As has been said, " a new species of incorporeal hereditament cannot be created at the will and pleasure of an individual owner of an estate; he must be contented to take the sort of estate, and the right to dispose of it, as he finds the law settled by decisions or controlled by act of parliament." Pollock, C. B., in Hill v. Tupper, 2 Hurl. & Colt. 121, Eng. Ex. Rep.

This rule is well stated in a noted English case. After speaking of the certain known incidents to property and its enjoyment, and the burdens wherewith it may be affected or rights which may be created and enjoyed over it by parties other than the owner, the chancellor said: " All these kinds of property, however, all these holdings, are well known to the law and familiarly dealt with by its principles; but it must not, therefore, be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner. It is clearly inconvenient, both to the science of the law and to the public weal, that such a latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves and their representatives--that is, their assets, real and personal--to answer in damages for breach of their obligations. This tends to no mischief, and is a reasonable liberty to bestow; but great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character which should follow them into all hands, however remote." 2 Mylne & Keen, page 535, case of Keppell v. Bailey.

In this case certain persons had formed themselves into a company for the establishment of a railroad, called the Trevie. The Keppells, who held the Beaufort Iron Works under a long lease, had covenanted with the proprietors of the railroad and their assigns, that the Keppells, their executors administrators and assigns, would procure all the limestone wanted for the iron works from the Trevie quarry, and carry it along the railroad, paying a certain toll. The Keppells assigned their lease of the iron works to the defendants, who began to construct a railroad to other lime quarries, situated eastward of the Trevie quarry; and on a bill for an injunction to restrain them from using that or any other new road, it was, among other points, objected to the covenant that it was void as tending to create a...