the dominant tenement, the common may be apportioned to the several parts of the dominant tenement upon its severance, the burden on the servient tenement not being increased thereby. Such is the case where there is a right to pasture such cattle as may be kept on the dominant tenement, or to take such herbage as may be used thereon, and the alienee of a part of the dominant tenement is entitled to a right of common proportioned to the extent of his grant. A right of profit a prendre is extinguished by a release of the right to the owner of the servient tenement.80 If the titles to the dominant and servient tenements become united in one person, he having an equal estate in both, the right of common or profit is extinguished, since a man cannot have a right of profit in his own land." And the same result no doubt follows if the owner of a right of profit in gross acquires a feesimple estate in the servient tenement.

Even though a right of profit or common is apportionable, if separate parts of the land subject thereto are held by differ ent tenants, the right is extinguished in case the owner of the dominant tenement releases a part of such land from the burden of the profit,88 or if the dominant tenement and a part of the servient land become the property of one man,39 since, otherwise, the burden upon the other parts would be increased.

85 Co. Litt. 122a; Tyrringham's Case, 4 Coke, 87a, 2 Gray's Cas. 4; Wild's Case, 8 Coke, 78b; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715, 2 Gray's Cas. 21; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639, Finch's Cas. 475.

86 Litt. § 480; Co. Litt. 280a; 2 Leake, 355.

87 Tyrringham's Case, 4 Coke, 38a; Bradshaw v. Eyre, Cro. Eliz. 570, 3 Gray's Cas. 465; Rex v. Inhabitants of Hermitage, Carth. 239; Saundeys v. Oliff, Moore, 467, 3 Gray's Cas. 465; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715, 2 Gray's Cas. 21.

88 Rotherham v. Green, Cro. Eliz. 593; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715, 2 Gray's Cas. 21; Johnson v. Barnes, L. R. 7 C. P. 592, 600.

Kimpton v. Bellamyes, 1 Leon. 43; 16 Johns. (N. Y.) 14, 8 Am. Dec. 287;

Livingston v. Ten Broeck,
Hall v. Lawrence, 2 R. I.

218, 57 Am. Dec. 715, 2 Gray's Cas. 21; Bell v. Ohio & P. R. Co., 25 Pa. St. 161, 64 Am. Dec. 687.

The benefit of a covenant as to the use of land will usually pass to a transferee of the land. So, the burden or obligation of such a covenant, made, upon the conveyance of land, by the grantor or grantee, will in some, but not in all, jurisdictions, pass to and bind a subsequent transferee of the land affected thereby. The benefit or burden of a covenant will likewise pass to the grantee of an easement.

342. General considerations.

Covenants with the owner of land, which are calculated to render its enjoyment more beneficial, may in some, if not all, cases, be enforced by a subsequent owner of the land; and, on the other hand, covenants made by the owner of land, restricting in some mode the freedom of its enjoyment, may, by some authorities, be enforced against a subsequent owner of the land. Covenants the benefit or burden of which may thus pass to subsequent owners of the land are said to "run with the land." Rights of action thereon in favor of or against transferees of the land are strictly in personam, and not in rem; but as incidents of the land, following it into the hands of subsequent owners, they are somewhat similar in effect to proprietary rights in another's land such as have

been previously discussed, and accordingly call for consideration in this connection.

That covenants run in favor of or against the owner of an estate for life or for years, or of the reversion expectant on such estate, is determined, or at least confirmed, by the provisions of the statute of 32 Hen. VIII, c. 34. The terms and effect of this statute having been already considered,1 the running of covenants made by or with the owner of land in fee simple will alone be here discussed.

These questions of the assignment of contractual benefits or liabilities by the transfer of land have always been considered in connection with "covenants," strictly so called,that is, contracts under seal; it being assumed, apparently without any judicial determination of the question, that a contract not under seal could not run with the land. The reason for this no doubt lies in the fact that formerly all written instruments were under seal; and even at the present day, owing to the necessity which exists in most jurisdictions that conveyances of land be under seal,2 and to the fact that agreements in regard to the use or enjoyment of land are rarely found except in such conveyances, questions as to the running of agreements not under seal are not likely to arise.

In the case of a deed poll,—that is, an instrument sealed by one only of the parties thereto,-a stipulation therein on the part of the person not sealing it is, by the weight of authority, regarded as the covenant of such person by reason of his acceptance of the conveyance, though there are well-con

That a contract not under seal will not run with the land, see Martin v. Drinan, 128 Mass. 515; Kennedy v. Owen, 136 Mass. 199; Poage v. Wabash, St. L. & P. Ry. Co., 24 Mo. App. 199. But see Burbank v. Pillsbury, 48 N. H. 475.

4 Co. Litt. 230b, Butler's note; Sheppard's Touchstone, 177; Finley v. Simpson, 22 N. J. Law, 311, 53 Am. Dec. 252; Hagerty v. Lee,

6

sidered opinions to the contrary. In order to create a covenant, neither the word "covenant," nor any other particular word, is necessary, and words of condition are frequently, as before stated, construed as words of covenant.7 Moreover, words of covenant have been sometimes construed as creating, not a covenant, but an easement, or a charge on the land in the nature of a lien.9

343. The running of benefits.

8

That the right to sue upon a covenant relating to land will pass to subsequent owners of the land, claiming under the covenantee, is generally conceded.10 Such a covenant is usu

54 N. J. Law, 580; Midland Ry. Co. v. Fisher, 125 Ind. 19, 21 Am. St. Rep. 189; Bowen v. Beck, 94 N. Y. 86, 46 Am. Rep. 124; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556; Burnett v.. Lynch, 5 Barn. & C. 596; Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154 (semble); Poage v. Wabash, St. L. & P. Ry. Co., 24 Mo. App. 199; Maynard v. Moore, 76 N. C. 158 (semble); Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 46 Am. St. Rep. 545. And see cases cited in Sims, Covenants, 190-194.

Platt, Covenants, 10; Maine v. Cumston, 98 Mass. 317, 2 Gray's Cas. 459; Parish v. Whitney, 3 Gray (Mass.) 516; Martin v. Drinan, 128 Mass. 515; Kennedy v. Owen, 136 Mass. 199; Maule v. Weaver, 7 Pa. St. 329; Hinsdale v. Humphrey, 15 Conn. 431; Trustees v. Spencer, 7 Ohio, 493; Johnston v. Muzzey, 45 Vt. 419, 12 Am. Rep. 214.

• Platt, Covenants, 28; Hartung v. Witte, 59 Wis. 285; Midgett v. Brooks, 34 N. C. 145, 55 Am. Dec. 405; Taylor v. Preston, 79 Pa. St. 436; Trull v. Eastman, 3 Metc. (Mass.) 121; Electric City Land & Improvement Co. v. West Ridge Coal Co., 187 Pa. St. 500.

7 See ante, § 68.

8 See ante, § 315.

• Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112; Howard Mfg. Co. v. Water Lot Co., 53 Ga. 689; Martin v. Martin, 44 Kan. 295; Goudy v. Goudy, Wright (Ohio) 410.

10 Pollock, Contracts (6th Ed.) 224; Sims, Covenants, 136; Sterling Hydraulic Co. v. Williams, 66 Ill. 393; Raby v. Reeves, 112 N. C. 688; Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 328, 5 Am. St Rep. 680; National Union Bank at Dover v. Segur, 39 N. J. Law, 173, 2 Gray's Cas. 468; Gaines' Adm'x v. Poor, 3 Metc. (Ky.) 503, 79 Am. Dec. 559; St. Louis, I. M. & S. Ry. Co. v. O'Baugh, 49 Ark. 418.

ally made by the grantor or grantee of land as an incident of the conveyance, that is, by one who has some relation to the title. The question has, however, occasionally arisen whether one who is neither a grantor nor grantee of the land may make a covenant with the owner thereof, the benefit of which will pass to a subsequent owner of the land,—that is, whether the benefit of a covenant may run, though there is no "privity of estate" between the covenantor and covenantee. The authorities are about equally divided upon the question.11

§ 344. The running of burdens.

In England it is apparently the law that the burden of a covenant by the owner of land in fee simple, made with one other than his lessee, will not run so as to be enforceable against a transferee of the land.12 In this country, on the other hand, there are a number of decisions to the effect that covenants by the owner of land will bind transferees of the land,13

11 That the benefit will pass with the land in such case, see Pollock, Contracts (6th Ed.) 224, note; Holmes, The Common Law, 405; Shaber v. St. Paul Water Co., 30 Minn. 179; Dickinson v. Hoomes' Adm'r, 8 Grat. (Va.) 353 (dictum); Gaines' Adm'x v. Poor, 3 Metc. (Ky.) 503, 79 Am. Dec. 559; Rawle, Covenants, § 203, note. The contrary view is taken in Sims, Covenants Running with the Land, 196; Sugden, Vendors (14th Ed.) 581 et seq.; Mygatt v. Coe, 124 N. Y. 212, 147 N. Y. 456; Lyon v. Parker, 45 Me. 474, 2 Gray's Cas. 457; Hurd v. Curtis, 19 Pick. (Mass.) 459 (dictum). Packenham's Case, Y. B. 42 Edw. III. 3, pl. 14 (translated in 2 Gray's Cas. 439), is cited on both sides of the discussion,-a not unnatural result of the obscurity of the report.

12 Pollock, Contracts (6th Ed.) 225; 1 Smith, Lead. Cas. Eq. (10th Ed.) 75-85. See Brewster v. Kidgill, 12 Mod. 166; Brewster ▼. Kitchin, 1 Ld. Raym. 317; Keppel v. Bailey, 2 Mylne & K. 517; Austerberry v. Corporation of Oldham, 29 Ch. Div. 750, 2 Gray's Cas. 441, note.

18 Georgia Southern R. Co. v. Reeves, 64 Ga. 492; Robbins v. Webb, 68 Ala. 393; Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569; Hottell ▼. Farmers' Protective Ass'n, 25 Colo. 67: Dorsey v. St. Louis, A.