Waldrop v. Town of Brevard
| Decision Date | 13 December 1950 |
| Docket Number | No. 168,168 |
| Citation | 62 S.E.2d 512,233 N.C. 26 |
| Court | North Carolina Supreme Court |
| Parties | WALDROP et ux. v. TOWN OF BREVARD. |
Philip C. Cocke Jr., and William J. Cocke, Asheville, for plaintiffs.
Ramsey & Hill and Lewis P. Hamlin, all of Brevard, for defendant.
If it be conceded that the normal operation of the defendant's garbage dump in a reasonably careful and prudent manner constitutes a nuisance, in our opinion these plaintiffs are estopped from asserting any claim for damages or for other relief by reason thereof, in view of the grant and covenants contained in the conveyance from I. F. Shipman and wife to the Town of Brevard.
It was stated in the conveyance to the Town of Brevard, that the property was to be used as a garbage dump, and I. F. Shipman and wife expressly granted to it the right, without limit as to time and quantity, to use the premises conveyed as a dumping ground for the Town of Brevard, for garbage, waste, etc., and for themselves, their heirs and assigns, they released, discharged and waived any or all rights of action, either legal or equitable which they have or might have by reason of any action of the Town of Brevard in using the lands conveyed to it as a dumping ground for said town, or by reason of any fumes, odors, vapors, smoke or other discharges into the atmosphere by reason of the use of the premises as a garbage dumping ground. The parties further stipulated that the agreements and waiver set forth in the deed shall be covenants running with the remainder of the lands owned by the grantors and binding on them 'as the owners of said lands, and their heirs and assigns, and anyone claiming under them, as owners or occupants thereof.'
'A covenant or agreement may operate as a grant of an easement if it is necessary to give it that effect in order to carry out the manifest intention of the parties.' 17 Am.Jur., Sec. 27, p. 940.
The grant and release or waiver contained in the deed from I. F. Shipman and wife to the Town of Brevard, in our opinion, created a right in the nature of an easement in favor of the Town of Brevard, upon the remainder of the lands owned by the grantors. And the waiver or release of any right to make a future claim for damages or other relief, resulting from the use of the premises conveyed to the defendant as a garbage dump, constitutes a covenant not to sue and is binding on the grantors, their heirs and assigns. Consolidation Coal Co. v. Mann, 298 Ky. 28, 181 S.W.2d 394; Brush v. Lehigh Valley Coal Co., 290 Pa. 322, 138 P. 860; J. T. Donohue Realty Co. v. Wagner, 154 Md. 588, 141 A. 337; Mayor and Councilmen of City of Troy v. Coleman, 58 Ala. 570; Mayor and Councilmen of Town of Union Springs v. Jones, 58 Ala. 654; 13 C.J. § 399, p. 458; 17 C.J.S., Contracts, § 104, page 459. 'If the owner of property has charged it with a servitude as to the matter complained of, a subsequent grantee cannot recover damages therefor.' 29 Cyc. 1260.
The appellants contend they are not bound by the covenants in the deed from I. F. Shipman and wife to the Town of Brevard, because (1) the Town of Brevard is not plaintiffs' predecessor in title; (2) no deed in plaintiffs' chain of title contains or refers to the covenants contained in the defendant's deed; and (3) there has been such a change in the neighborhood it would be unconscionable and inequitable, and against public policy to enforce the covenants in the defendant's deed.
The plaintiffs are relying on the case of Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197, as authority for their position that since no deed in their chain of title contains or refers to the covenants set forth in the Shipman deed to the defendant, they are not bound thereby. This position might be well taken if we were dealing with restrictive covenants instead of an easement and a waiver and release of any and all claims for damages incident to the exercise of the easement granted. Grantees take...
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