though in a few states the English view appears to have been adopted.14 The fact that the burden of a covenant passes to the transferee should not, it would seem, relieve the original covenantor from liability thereon, the same principle be

T. H. R. Co., 58 Ill. 65; Fitch v. Johnson, 104 Ill. 111; Conduit v. Ross, 102 Ind. 166, 2 Gray's Cas. 474; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; De Logny's Heirs v. Mercer, 43 La. Ann. 205 (semble); Sutton v. Head, 86 Ky. 156; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40 (dictum); Huston v. Cincinnati & Z. R. Co., 21 Ohio St. 236; Easter v. Little Miami R. Co., 14 Ohio St. 48 (dictum); Pittsburg, C. & St. L. Ry. Co. v. Bosworth, 46 Ohio St. 81 (dictum); Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400 (dictum); Dey v. Prentice, 90 Hun (N. Y.) 27; Dexter v. Beard, 130 N. Y. 549; Denman v. Prince, 40 Barb. (N. Y.) 213; St. Andrew's Church's Appeals, 67 Pa. St. 512; Electric City Land & Improvement Co. v. West Ridge Coal Co., 187 Pa. St. 500; Landell v. Hamilton, 175 Pa. St. 327; Wooliscroft v. Norton, 15 Wis. 198; Crawford v. Witherbee, 77 Wis. 419. See, also, the decisions in notes 25-29, infra, to the effect that the burden will run when the covenant is made in connection with the grant of an easement.

14 West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 W. Va. 600; Brewer v. Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 537 (dictum); Tardy v. Creasy, 81 Va. 553, 59 Am. Rep. 676; Costigan v. Pennsylvania R. Co., 54 N. J. Law, 233; Lynn v. Mount Savage Iron Co., 34 Md. 603 (semble).

In Massachusetts, apart from the cases of landlord and tenant, the burden of a covenant will not run with the land, as a general rule, unless "the covenant either creates a servitude or a restriction in the nature of a servitude in favor of a neighboring parcel, or else is in some way incident to and inseparable from such a servitude; or, if attached to the dominant estate, appears to be the quid pro quo for the easement enjoyed." Holmes, C. J., in Lincoln v. Burrage, 177 Mass. 378. Compare Norcross v. James, 140 Mass. 188, 2 Gray's Cas. 511, Morse v. Aldrich, 19 Pick. (Mass.) 449, 2 Gray's Cas. 446, and Bronson v. Coffin, 108 Mass. 175, 118 Mass. 156, 11 Am. Rep. 335, 2 Gray's Cas. 328, which seem to favor the running of the burden. The later decisions in this state upon this subject, especially those in which the opinion of the court is delivered by Holmes, C. J., are generally in accord with the views expounded by that learned jurist in his work on The Common Law, pp. 392-406.

(753)

ing applicable as in the case of landlord and tenant. 15 ferent view has, however, occasionally been taken.16

345. Privity of estate.

A dif

In order that the burden of a covenant run with the land, there must be, it is generally stated, a "privity of estate" between the covenantor and covenantee.17 This expression, as used in connection with covenants running with estates in fee simple, refers apparently to the relation between the grantor and grantee of such an estate at the time of the conveyance. In other words, in order that there be such privity of estate that the burden of a covenant may run, the covenant must be entered into at the time of the making of a conveyance by the covenantee to the covenantor, or vice versa.18 Privity exists accordingly, it seems, in the case of

15 See ante, § 46.

10 Carr v. Lowry's Adm'x, 27 Pa. St. 257; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40.

17 Cole v. Hughes, 54 N. Y. 444, 2 Gray's Cas. 465; Nye v. Hoyle, 120 N. Y. 195; Lyon v. Parker, 45 Me. 474, 2 Gray's Cas. 457; Sharp v. Cheatham, 88 Mo. 498; Town of Middletown v. Newport Hospital, 16 R. I. 319; Spence v. Mobile & M. Ry. Co., 79 Ala. 576; Wheeler v. Schad, 7 Nev. 204; Easter v. Little Miami R. Co., 14 Ohio St. 48; Hurd v. Curtis, 19 Pick. (Mass.) 459, 2 Gray's Cas. 449; Morse v. Aldrich, 19 Pick. (Mass.) 449; Bronson v. Coffin, 108 Mass. 175, 118 Mass. 156, 11 Am. Rep. 335, 2 Gray's Cas. 328; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; Webb v. Russell, 3 Term R. 402.

18 Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569; Denman v. Prince. 40 Barb. (N. Y.) 213; Harsha v. Reid, 45 N. Y. 415; Lawrence v. Whitney, 115 N. Y. 410; Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112; Binbank v. Pillsbury, 48 N. H. 475; Indianapolis Water Co. v. Nulte, 126 Ind. 373; Conduitt v. Ross, 102 Ind. 166, 2 Gray's Cas. 474; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254 (semble); Smith v. Kelley, 56 Me. 64.

In Norcross v. James, 140 Mass. 188, 2 Gray's Cas. 511, it is said by Holmes, J., in delivering the opinion of the court, that the state ment that there must be "privity of estate between the covenantor and the covenantee, only means that the covenant must impose such a

a covenant by a grantor to do or not to do something on land retained by him, adjoining that conveyed, so that one to whom the former is subsequently conveyed by him will be bound;19 and it also exists in the more ordinary case of a covenant by the grantee of land as to things to be done by him on the land conveyed, so that his subsequent transferees will be bound thereby. On the other hand, an agreement by various mill owners as to the use of water will not bind their assigns, since there is no privity between them.20 And a covenant made after a conveyance, though between the parties

burden on the land of the covenantor as to be in substance, or to carry with it, a grant of an easement or quasi easement, or must be in aid of such a grant.” This statement, however true in Massachusetts, where a covenant runs with the land, according to the later cases, apparently, only when an easement or quasi easement is created, is not supported by the decisions in other states, as cited above, nor, perhaps, by the earlier decisions in that state.

19 Fitch v. Johnson, 104 Ill. 111; Scott v. Burton, 2 Ashm. (Pa.) 324; Crawford v. Witherbee, 77 Wis. 419; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335, 2 Gray's Cas. 328; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; Easter v. Little Miami R. Co., 14 Ohio St. 48, the last three cases, however, involving covenants by the grantor to fence, which may be regarded as the grant of an easement.

It is to be observed that the burden of the covenant does not necessarily pass with the land in connection with which the privity arises; that is, in the case referred to in the text, the privity arises in connection with the land first conveyed, while the burden of the covenant runs with that last conveyed. See Brewer v. Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 537; Waterbury v. Head, 12 N. Y. St. Rep. 361; Clark v. Devoe, 124 N. Y. 120, as explained in Dexter v. Beard, 130 N. Y. 549.

20 Hurd v. Curtis, 19 Pick. (Mass.) 459, 2 Gray's Cas. 449; Lawrence v. Whitney, 115 N. Y. 410. In Pennsylvania It is held that the requirement of privity is subject to exceptions, and that consequently covenants by owners of separate tracts of riparian land as to the use of the water power will bind their assignees. Horn v. Miller, 136 Pa. St. 640. To the same effect, see Weill v. Baldwin, 64 Cal. 476, with which, however, Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, does not appear to be in accord.

thereto, has been held not to be supported by such privity of estate that the burden will run. 21

Grant of easement.

The requirement of privity of estate is satisfied if the covenant accompanies a grant by the owner of land of a mere easement therein, he retaining the land.22 Accordingly, it has been held that the burden of a covenant made upon the grant of a water privilege, 23, or upon the grant of a railroad right of way, 24 will bind subsequent transferees of the land or of the easement.25

21 Inhabitants of Plymouth v. Carver, 16 Pick. (Mass.) 183; Smith v. Kelley, 56 Me. 64; Wheeler v. Schad, 7 Nev. 204. But if the covenant and conveyance are parts of the same transaction, the fact that they are in separate instruments is immaterial. Sims, Cove nants, 198; Hills v. Miller, 3 Paige (N. Y.) 254; Robbins v. Webb, 68 Ala. 393 (semble).

23 Bronson v. Coffin, 108 Mass. 175, 118 Mass. 156, 11 Am. Rep. 335, 2 Gray's Cas. 328; Morse v. Aldrich, 19 Pick. (Mass.) 449, 2 Gray's Cas. 446; Lincoln v. Burrage, 177 Mass. 378; Sterling Hy. draulic Co. v. Williams, 66 Ill. 393; Fitch v. Johnson, 104 Ill. 111; Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569.

23 Nye v. Hoyle, 120 N. Y. 195; Fitch v. Johnson, 104 Ill. 111; Norfleet v. Cromwell, 64 N. C. 1; Noonan v. Orton, 4 Wis. 335.

24 St. Louis, I. M. & S. Ry. Co. v. O'Baugh, 49 Ark. 418; Lydick v. Baltimore & O. R. Co., 17 W. Va. 427; Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154; Midland Ry. Co. v. Fisher, 125 Ind. 19, 21 Am. St. Rep. 189; Dorsey v. St. Louis, A. & T. H. R. Co., 58 Ill. 65; Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 328; Sims, Covenants, 201.

25 Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 328; Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154; Midland Ry. Co. v. Fisher, 125 Ind. 19, 21 Am. St. Rep. 189; Dorsey v. St. Louis, A. & T. H. R. Co., 58 Ill. 65; Lydick v. Baltimore & O. R. Co., 17 W. Va. 427; Fitch v. Johnson, 104 Ill. 111. So the benefit may pass with a subsequent grant of the water power. Sterling Hydraulic Co. v. Williams, 66 Ill. 393.

A covenant created in connection with an easement has been held to run, even though not entered into till after the grant of the easement. Morse v. Aldrich, 19 Pick. (Mass.) 449, 2 Gray's Cas, 446.

346. The nature of the covenant.

27

The nature of covenants which can be regarded as concerning the land to such an extent as to run therewith was considered in connection with the running of covenants as between landlord and tenant.26 It has been held that a covenant to give free transportation to the covenantee,2 or by the vendor to pay taxes on the land sold, 28 is of such a personal nature as not to run. Nor will the burden run if the covenant was intended to cover acts on the part of the covenantor alone.29 And, generally, covenants which are intended merely to restrain competition in trade do not, it would seem, concern the land so that the benefit or burden thereof will pass.30

Among the covenants which have been most frequently considered as passing with the grant of a fee-simple estate are those to repair a dam or canal,31 and to fence or to repair a fence, 32

26 See ante, § 49.

27 Morse v. Garner, 1 Strob. (S. C.) 514, 47 Am. Dec. 565; Dickey v. Kansas City & I. R. T. Ry. Co., 122 Mo. 223; Duddick v. St. Louis, K. & N. W. Ry. Co., 116 Mo. 25, 38 Am. St. Rep. 570. So, in the case of a covenant by the grantee of an easement to give its transportation business to the grantor, a ferry company, it was held that the covenant would not run, since it did not affect the enjoyment of the easement, or of the land in which the easement was granted, but was purely for the benefit of the owner of the ferry. Wiggins Ferry Co. v. Ohio & M. Ry. Co., 94 Ill. 83.

28 Graber v. Duncan, 79 Ind. 565.

29 Clark v. Devoe, 124 N. Y. 120, 21 Am. St. Rep. 652. So, the benefit will not run if the covenant was intended only for the benefit of the covenantee. Maryland Coal Co. v. Cumberland & P. R. Co., 41 Md. 343.

30 Taylor v. Owen, 2 Blackf. (Ind.) 301; Kettle River R. Co. v. Eastern Ry. Co., 41 Minn. 461. And see post, § 349. Contra, Robbins v. Webb, 68 Ala. 393; National Union Bank at Dover v. Segur, 39 N. J. Law, 173, 2 Gray's Cas. 468.

81 Nye v. Hoyle, 120 N. Y. 195; Denman v. Prince, 40 Barb. (N. Y.) 213; Howard Mfg. Co. v. Water Lot Co., 53 Ga. 689; Norfleet ▼.