Wiggins Ferry Co. v. Ohio & Mississippi Railway

Mr. Justice Scholfield delivered the opinion of the Court: It is not pertinent here to inquire whether appellant has a remedy in equity, or in some other form of action at law. The question is, simply, is it entitled to recover in this action? The suit is against one corporation averred to be the assignee of another, upon a covenant made by the alleged assignor. There is no express undertaking, averred in the declaration, by the assignee, to perform the covenant of the assignor, nor is there any averment therein from which such an undertaking can he held to be legally implied. The only ground upon which there can be any reasonable pretence to base an argument in favor of the right to recover is, that the covenant is one which, in legal contemplation, runs with the land; and it will, therefore, only be important to inquire whether this is such a covenant. It was said, in Dorsey v. St. Louis, Alton and Terre Haute Railroad Co. 58 Ill. 67: “A covenant is said to run with the land when either the liability for its performance or the right to enforce it passes to the assignee of the land itself. A covenant is said to run with the reversion when the liability to perform it or the right to enforce it passes to the assignee of the reversion.” “In order that a covenant may run Avith the laud,” says Taylor in his work on Landlord and Tenant, (2d ed.) 167, § 261, “its performance or non-performance must affect the nature, quality or value of the property demised, independent of collateral circumstances, or must affect the mode of enjoyment. It must not only concern the land, but there must also be a privity of estate between the contracting parties,—for if a party covenant with a stranger to pay a certain rent, in consideration of a benefit to be derived under a third person, it can not run with the land, not being made with the person having the legal estate.” It is said, in Bawle on Covenants for Title, p. 341, “When the statute of quia emptores abolished subinfeudation, privity of tenure and estate no longer existed upon conveyances Avhich passed the fee and left no reversion in the donor; and it became a rule that covenants which imposed any charge, burden or obligation upon the land, Avere held not to be incident to it, and therefore incapable of passing with it to an assignee; thus, if the owner of land granted it in fee, reserving to himself a rent which the grantee covenanted to pay, here, though the covenant was to be performed out of the land, yet the assignee of the covenantor would hold the land discharged from its liability. But, on the other hand, if the covenant were one intended to benefit the land, it was held to be incident to it, even if made by a stranger, and, therefore, whoever might become the owner of the land would also be entitled to the benefit of the covenant.” Where, however, the relation of tenure is created by a grant, all the covenants of the grantee for himself and his assignees, which affect the land granted, will be a charge upon it,- and bind every one to Avhom it may subsequently come by assignment. Notes to Spencer’s case, 1 Smith’s Leading Cases, (part 1) 7th Am. ed. 169. We are of opinion the conveyance by appellant to the Ohio and Mississippi Eailroad Company did not create the relation of landlord and tenant, and hence that the case should be considered divested of the element of tenure. That instrument conveys no land, but merely “ the right to construct, maintain and use, in, through, upon and over ” the grounds therein described, “ all such railroad tracks, depots, warehouses and other buildings and erections as the said party of the second part shall find to be necessary or convenient to be constructed, maintained or used for the purpose of transacting the business of the said party of the second part, and to keep thereon, without disturbance", all property of every description belonging to or which may be in the possession, charge or custody of the said party of the second part,” etc., etc. The tenendum is: “ To have and to hold the said several rights and easements in the said two several parcels of ground above described, unto the said party of the second -part, so long as the same shall be used and employed for the uses and purposes of the Ohio and Mississippi railroad as herein specified, and for no other purposes, even forever.” This is clearly but an easement. Washburne on Easements, p. 5; 3 Kent’s Com. (8th ed.) 512. It is not an estate for life, because neither expressly nor by implication is its duration made to depend upon the life of any one. 2 Blackstone’s Com. (Sharswood’s ed.) 119. It is not an estate for years, because there is no fixed period for the duration of the estate. 2 Blackstone’s Com. (Sharswood’s ed.) 140; Taylor on Landlord and Tenant, p. 32, § 54. It is not an estate at will, for there is no pretence that appellant reserved the right to terminate the use of the Ohio and Mississippi Railroad Company at its will. 2 Blackstone (Sharswood’s ed.) 144, 145. In our opinion the estate is a freehold of inheritance. Wash-burn e on Easements, pp. 9-10; 3 Kent’s Com. (8th ed.) 512. It is said in 2 Blackstone’s Com. 104, (Sharswood’s ed.): “ Taking * * fee * * in its secondary sense, as a state of inheritance, it is applicable to and may be had in any kind of hereditaments, either corporeal or incorporeal. But there is this distinction between the two species of hereditaments,—that, of a corporeal inheritance a man shall be said to be seized in his demesne, as of fee; of an incorporeal one, he shall only be said to be seized as of fee, and not in his demesne. For, as incorporeal hereditaments are in their nature collateral to and issue out of lands and houses, their owner hath no. property, dominieum, or demesne in the thing itself, but hath only something derived out of it, resembling the servitudes, or services, of the civil law. The dominieum or property is frequently in one man, while the appendage or service is in another. Thus, Caius may be seized as of fee of a way leading over the land of which Titius is seized in his demesne as of fee.” It is true, the estate here may not endure forever; it may be terminated by the failure to use and employ the rights and easements granted in the manner prescribed in the grant; but if they shall be so used and employed the grant is forever. And this seems to meet Blackstone’s definition of a qualified or base fee, which he thus defines and illustrates: “ A base or qualified fee is such a one as hath a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As, in the case of a grant to A and his heirs, tenants of the manor of Dale. In this instance, whenever the heirs of A cease to be tenants of that manor) the grant is entirely defeated. So, when Henry VI granted to John Talbot, lord of the manor of Kingston Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm by the title of barons of Lisle: here John Talbot had a base or qualified fee in that dignity, and the instant he or his heirs quitted the seignory of this manor, the dignity was at end. This estate is a fee, because by possibility it may endure forever in a man and his heirs; yet, as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee.” It remains, then, only to inquire, does the performance or non-performance of this covenant affect the nature, quality or value of the property demised, independent of. collateral circumstances, or the mode of its enjoyment? It is not shown that the two parcels of lands in which this easement is granted are any part of the ferry of appellant. For aught that appears, these properties are totally distinct and independent of each other, and we are authorized to assume that a sale and conveyance of the one would not necessarily affect the other. This covenant is not to do anything upon or .about the easement granted to the Ohio and Mississippi Bailroad Company, nor does it in anywise affect the parcels of land in which the easement is granted. Its language is: “The said party of the second part will always employ the said Wiggins Ferry Company, party of the first part, to transport for the said party of the second part across the said river all persons and property which may be taken across the said river, either way, by the said party of the second part to or from Bloody Island, either for the purpose of being transported on the railroad of said party of the second part, or having been brought to said river upon the said railroad, so that the said party of the first part, their legal representatives or assigns, oioners of the said Wiggins Ferry, shall have the profits of the transportation,” etc., etc. So, it is the owner of the ferry, and not the owner of the parcels of land, for whose benefit the covenant is made. Hence if appellant had conveyed its ferry to A, and its parcels of land to B, A alone would have been injured by a breach of the covenant. It is impossible to conceive how the owner of the parcels of land, merely as such, could be injured by a breach of the covenant. It adds nothing to the value of the parcels of land, and gives nothing to him claiming as owner, merely because he is owner. It is all for the benefit of the owners of the ferry, a totally separate and distinct property. It would be difficult to give a better illustration of a purely collateral covenant. It has been said, whether a covenant will or will not run with land does not, however, so much depend on whether it is to be performed on the land itself, as whether it tends directly or necessarily to enhance its value, or render it more beneficial and convenient to those by whom it is owned or occupied. Masary v. Southworth, 9 Ohio N. S. 340. Following this form of expression, the easement here granted is in the two parcels of land, not in the ferry, while the covenant relates to and affects the ferry only. Undoubtedly the covenant enhances the value of the ferry, or renders it more beneficial, but-this has nothing to do with the two parcels of land in which the easement is granted. See Webb v. Russell, 3 Term R. 393, 402; Bally v. Wells, 3 Wilson, 25-29; Hurd v. Curtis, 19 Pickering, 459; Brewer v. Marshall, 3 C. E. Greene, 337; 4 id. 537, 547; Spencer’s case, and notes, 1st part 1 Smith’s Leading Cases. It may be questionable whether this easement, under the allegations before us, legally passed to the assignee, the present appellee, at all, and of course, if it did not, no covenant could run against appellee as being a charge upon that easement. But upon this we express no opinion. We have assumed, Avithout examination, that the declaration sufficiently avers the assignment of the easement; and we have also assumed, as matter of law, (of the correctness of which, however, we do not apprehend there can be much doubt,) that the easement is one with which, under a different supposable state of facts, a covenant might run as a covenant running with the land. Our decision goes no further than the matters specially noticed. For the reasons given, we think the court below properly sustained the demurrer to the declaration. Its judgment is therefore affirmed. Judgment affirmed.