Nye v. . Hoyle

*202 Vann, J. By the agreement of May 13, 1835, a new water privilege was created, superior in fact and paramount in right to either of the old privileges. The owners united their estates in order to form a new property, to he owned by them in certain proportions, taking a part of each for the purpose, but leaving the ownership of the remainder undisturbed. The part contributed by Ifoadiah Moore was “the water * * * to be taken from” his mill-pond through his canal, and so much of his lands, dam, ditch, canal, hereditaments and appurtenances as was necessary for the creation and full enjoyment of the new privilege. The interest thus contributed was attached to the new privilege and was to belong to the owner’s thereof. It necessarily included an interest in the dam and pond, as it embraced not only the right to take all the water therefrom when there was not enough for all, but also so much of the lands, dam, etc., as was required. The language used by the parties in their somewhat complicated agreement, shows that it was the intention of each owner to convey to the other the same interest in his contribution to the common enterprise that he was to have in the new privilege when it was created. This appears from the recital of an intention “ to constitute and create a new water privilege which will require a portion of the lands, pond, dam, ditch and river aforesaid, so belonging to all the parties to these presents,” as well as from the language used in creating the new privilege, attaching the lands, dam, etc., thereto, and providing that the parts thus annexed should belong to the parties in the proportions named. To repeat their words, “so much of the said lands, dam, ditch, canal aforesaid * * * belonging to the parties of these presents, shall be attached to the mill and water privilege hereby created, and belong to the parties as hereinafter mentioned. * * * And the said party of the first part shall have and own * * * one-third part of the water privilege hereby created, and the said parties of the second part shall have (and) own * * * two-thirds of the said water privilege hereby created. * * * And the land, hereditaments and appurtenances necessary for the creation and full *203 enjoyment of the new privilege shall he owned, possessed and enjoyed as hereinbefore particularly mentioned.” Pliny and Amasa 0. Moore also made their contribution to-the undertaking, to be owned by themselves and Hoadiah Moore, as proprietors of the new privilege, and as the latter had no land at the point where the power was to be utilized,, they conveyed to him two and one-half acres of then* land, so-situated that the buildings to be erected thereon could be supplied with water from the new canal. This land, so conveyed to Hoadiah Moore, was not a contribution to the joint enterprise, for he became the sole owner thereof, but was an inducement to him to enter into the agreement by which the new privilege was created. Each owner in connection with the conveyance of an interest in his contribution toward the new privilege, also covenanted, in behalf of himself, his heirs and assigns, to do certain things with reference to the subject of the grant, thereby adding to its value. Pliny and Amasa 0. Moore covenanted to construct the new canal, to maintain it and keep it in repair at their sole expense, while Hoadiah Moore covenanted on his part, among other things, to keep and maintain tight and in good repair the dam in question, and to rebuild the same, if necessary, at the sole expense of himself, his heirs and assigns. We think that these covenants ran with the land because they were in terms between the parties and their respective heirs and assigns, were connected with the subject of the grant and entered into the value thereof. As an interest in the land, to which the covenants were annexed, was transferred, there was privity of estate between the covenanting parties: Although the interest transferred was less than the entire title and the residue was reserved by the grantor, the covenants were in support of the grant and related to the beneficial enjoyment of the thing granted. The benefit of the covenants^ therefore, passed with the interest transferred to the covenantee, while the burden rested upon the part reserved by the covenantor, and became binding upon whomsoever should at any time own the same. (Norman v. Wells, 17 Wend. 136-, 146 7 *204 Hart v. Lyon, 90 N. Y. 663; P. Ins. Co. v. C. Ins. Co., 87 id. 400, 408; Trustees v. Lynch, 70 id. 440, 450; Wilbur v. Brown, 3 Den. 356; Fitch v. Johnson, 104 Ill. 111; Manderbach v. B. O. Home, 109 Penn. 231; Cooke v. Chilcott, 18 Moak, 760; Spencer’s Case, 1 Smith’s L. C. 175, 212; Morse v. Aldrich, 19 Pick. 449; Bronson v. Coffin, 108 Mass. 175; Devlin on Deeds, § 940 ; Gould on Waters, § 301.) These views do not conflict with Cole v. Hughes (54 N. Y. 444), or Scott v. McMillan (76 id. 141), which hold that a •covenant to contribute toward the construction of a party-wall built by one owner, whenever the other owner should use it, did not run with the land, because neither received or granted any interest in land. In the former case the court said: “ He (the covenantor) simply assented that Dean might build one-half of the wall on his land and then he agreed that in a certain contingency, which might or might not happen, he would compensate him. He did not convey to Dean any land upon which the wall was built. They continued to own the land, as before, in severalty.” It is contended, however, that the plaintiffs are not the owners of the dam or of the land on which it stands, and that, therefore, they are not bound to maintain or rebuild the dam, even if the covenant of Hoadiah Moore runs with the land on which the dam stood. The trial court found that “ at the time of the commencement of this action plaintiffs were the owners of the old mill privilege, dam, pond and mills of Moadiah Moore and of his title as it was when the new mill privilege was created ; also, of one-half of the interest of said Hoadiah Moore in the new mill privilege, and one-half of the two and one-half acres acquired by Hoadiah Moore in connection with said new privilege; that when they became such owners they had knowledge of the provisions, conditions and covenants contained in the conveyances referred to in the above findings, and their title was taken subject to all the reservations, restrictions and limitations in ” the conveyances mentioned. The several deeds and wills through which the plaintiffs *205 acquired their title, although referred to are not printed in the-appeal book. The argument of the appellants in support of the position now under consideration is founded upon certain extracts from said deeds and wills, which describe, but: whether as fully or not as the originals cannot be learned, from the record before us, the premises conveyed or devised as “ all my water privileges,” or “ all the water privileges,”' * * * “ including furnace, wagon, shop and machinery, saw-mills, mill privilege near Pliny Moore’s grist-mill and the. privileges adjoining Whiteside’s linen mill, bark-mill, etc., * * * and all of the lands, shops and buildings connected therewith.” The extracts do not purport to give the complete descriptions and each includes the somewhat elastic-phrase “ and so forth.” In no case are the metes and bounds given. Assuming, however, that the question sought to be raised is before us, we think that where it is apparent that the grantor or testator intended to dispose of the entire “ mill property,” the use of the phrase “ all my water privileges,” including the various mills and manufactories connected therewith, without a description by metes and bounds, includes the dam and pond, which are an essential part of the privileges and property. (Wetmore v. White, 2 Caine’s Cases, 87; Babcock v. Utter, 1 Keyes, 409; LeRoy v. Platt, 4 Paige, 77 Hills v. Dey, 14 Wend. 206; Jackson v. Buel, 9 Johns. 298; Moore v. Fletcher, 16 Me. 63 ; Morgan v. Mason, 20 Ohio, 401; N. I. W. Factory v. Batchelder, 3.. N. H. 190; Gould on Waters, §§ 305-308.) Whether there was an equitable obligation on the part of the plaintiffs to rebuild the dam, because they took title with knowledge of the covenant in the deed from IToadiali Moore to Freeman and Bartlett Nye,.. dated January 1, 1836, we do not think it is necessary to consider, as the conclusions already-reached lead to an affirmance of the judgment. All concur, except Potter, J., not sitting. Judgment affirmed.