347. Party-wall agreements (1) Running of the burden.

Agreements between owners of adjoining pieces of land that, in case of the erection of a party wall upon the division line, a part on each tract, the other will, if he subsequently use such wall, pay his share of the cost, have been quite frequently before the courts, and have generally been held to bind a subsequent transferee of either owner for a part of the cost upon his user of such a wall previously erected by the owner of the other property,33 though there are some states in which such liability on the part of the transferee is denied.34 In some cases it has been held that the

Cromwell, 64 N. C. 1; Wooliscroft v. Norton, 15 Wis. 198; Carr v. Lowry's Adm'x, 27 Pa. St. 257; Sterling Hydraulic Co. v. Williams, 66 Ill. 393; Batavia Mfg. Co. v. Newton Wagon Co., 91 Ill. 230.

32 Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335, 118 Mass. 156, 2 Gray's Cas 328; Lake Erie & W. Ry. Co. v. Priest, 131 Ind. 413; Dorsey v. St. Louis, A. & T. H. R. Co., 58 Ill. 65; Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154; Midland Ry. Co. v. Fisher, 125 Ind. 19, 21 Am. St. Rep. 189; Huston v. Cincinnati & Z. R. Co., 21 Ohio St. 236; Countryman v. Deck, 13 Abb. N. C. (N. Y.) 110; Dey v. Prentice, 90 Hun (N. Y.) 27; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 46 Am. St. Rep. 545; Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 550.

In Hartung v. Witte, 59 Wis. 285, and Gulf, C. & S. F. Ry. Co. v. Smith, 72 Tex. 122, it was held that a covenant to build a fence, as concerning a thing not in esse, did not run, in the absence of the word "assigns." See ante, § 49.

38 Conduitt v. Ross, 102 Ind. 166, 2 Gray's Cas. 474; Savage v. Mason, 3 Cush. (Mass.) 500, 2 Gray's Cas. 453; Richardson v. Tobey, 121 Mass. 457; Standish v. Lawrence, 111 Mass. 111, 2 Gray's Cas. 461; King v. Wight, 155 Mass. 444; Mackin v. Haven, 187 Ill. 480; Tomblin v. Fish, 18 Ill. App. 439; Roche v. Ullman, 104 Ill. 11; Gibson v. Holden, 115 Ill. 199; Pillsbury v. Morris, 54 Minn. 492; National Life Ins. Co. of Montpelier v. Lee, 75 Minn. 157; Hall ▼.' Geyer, 14 Ohio Cir. Ct. R. 229, 7 Ohio Dec. 436; Garmire v. Willy, 36 Neb. 340.

84 Sharp v. Cheatham, 88 Mo. 498; Nalle v. Paggi (Tex.) 9 S. W. 205.

In New York it is held that the covenant to pay part of the cost does not run with the land unless an intention to that effect is

covenant creates an equitable easement or charge upon the land, which binds a purchaser with notice.35

These decisions sustaining the liability of the subsequent transferees of one parcel of land for part of the cost of the wall may, it seems, be most properly based on the theory that the covenant runs by reason of the privity of estate created by the grant to one owner of the easement of entering and building on the other's land,36 or of the cross easements of support created by the agreement.87

In England, where the burden of a covenant does not run with the land, the liability of a subsequent purchaser of one tract to reimburse the owner of the other has been based on the theory of a contract by him to that effect implied from his user of the wall.38

clearly shown, and it seems that such an intention will more readily be presumed when the agreement is general, without reference to any present intention of building a wall, than when there is a specific agreement that, if the party named build the wall, the other party shall pay part of the cost thereof upon using it. Sebald v. Mulholland, 155 N. Y. 455, explaining Mott v. Oppenheimer, 135 N. Y. 372; Cole v. Hughes, 54 N. Y. 444, 2 Gray's Cas. 465; Scott v. McMillan, 76 N. Y. 141.

35 Stehr v. Raben, 33 Neb. 437; Sharp v. Cheatham, 88 Mo. 498; Parsons v. Baltimore Building & Loan Ass'n, 44 W. Va. 335, 67 Am. St. Rep. 769. See, as to such equitable easements, post, c. 15. 36 Conduitt v. Ross, 102 Ind. 166. 2 Gray's Cas. 474; King v. Wight, 155 Mass. 444.

37 Roche v. Ullman, 104 Ill. 1; King v. Wight, 155 Mass. 444.

In order that the transferee of the land be able to recover upon such an agreement, the latter must, it has been held in Massachusetts, be under the seal of the other party, as otherwise he would acquire, not an easement, but a mere license to build on the other land, and no privity would exist to support the running of the covenant. Joy v. Boston Penny Sav. Bank, 115 Mass. 60, 2 Gray's Cas. 463. But even if the agreement is not under seal, the transferee of one tract, by accepting a conveyance binding him to pay a part of the cost of the wall, becomes liable accordingly. Maine v. Cum. ston, 98 Mass. 317, 2 Gray's Cas. 459.

38 Irving v. Turnbull [1900] 2 Q. B. 129. See the criticisms of this case in 14 Harv. Law Rev. 297, 1 Columbia Law Rev. 257.

Although an agreement of this character exists, the builder of the wall, or the person to whom he transfers the land, is regarded as retaining the ownership of the whole wall until the other landowner reimburses him, and, accordingly, he is alone liable for injuries resulting from defects in the wall.39

Such an agreement is, it seems, prima facie construed as providing for reimbursement by the person alone who uses the wall for the construction of a building; and consequently the original covenantor, if he does not use the wall, is not liable on his covenant, 40 nor is a transferee of the land after it has been built on by his grantor so liable."1

(2) Running of the benefit.

The right to compensation under the agreement for the use of the wall is by some cases considered to appertain to the land, and to pass to a transferee of the proprietor who built the wall, while by others it is regarded as personal to such proprietor, so as not to pass to his transferee. The right

* Mickel v. York, 175 Ill. 62; Gorham v. Gross, 125 Mass. 232; Glover v. Mersman, 4 Mo. App. 90; Mason's Appeal, 70 Pa. St. 26; Goldschmid v. Starring, 5 Mackey (D. C.) 582; Sullivan v. Graffort, 35 Iowa, 531.

40 Standish v. Lawrence, 111 Mass. 111, 2 Gray's Cas. 461; Jordan v. Kraft, 33 Neb. 844.

41 Pfeiffer v. Matthews, 161 Mass. 487.

42 Savage v. Mason, 3 Cush. (Mass.) 500, 2 Gray's Cas. 453; King v. Wight, 155 Mass. 444; Kimm v. Griffin, 67 Minn. 25, 64 Am. St. Rep. 385; Eberly v. Behrend, 20 D. C. 215; Platt v. Eggleston, 20 Ohio St. 414. See the remarks by Holmes, C. J., in Lincoln v. Burrage, 177 Mass. 378, adverse to the view that, while the burden of such a covenant runs with the land, the benefit thereof can be regarded as "in gross" or personal to the covenantee.

48 Cole v. Hughes, 54 N. Y. 444, 2 Gray's Cas. 465; Parsons v. Baltimore Building & Loan Ass'n, 44 W. Va. 335, 67 Am. St. Rep. 769; Bloch v. Isham, 28 Ind. 37; Crater v. McCormick, 4 Colo. 197; Lea's Appeal, 9 Pa. St. 504; Todd v. Stokes, 10 Pa. St. 155. In New York it seems, however, by a later case, that the right to compen

to compensation has been considered to be personal to the builder, not passing with the land, when the ownership of half the wall, by the express terms of the agreement, vests immediately on its construction, contrary to the general rule, in the owner of the other land, though he cannot use it till he pays his share.“

sation passes with the land if the covenant can be regarded as intended to "run with the land." Mott v. Oppenheimer, 135 N. Y. 312. The party building the wall may, it has been held, upon the grant of his parcel, reserve the right to the compensation for the wall, instead of allowing it to pass with the land. Conduitt v. Ross, 102 Ind. 166, 2 Gray's Cas. 474; Pillsbury v. Morris, 54 Minn. 492.

44 Gibson v. Holden, 115 Ill. 199; McChesney v. Davis, 86 Ill. App. 380. See Pillsbury v. Morris, 54 Minn. 492; Tomblin v. Fish, 18 Ill. App. 439; Mickel v. York, 175 Ill. 62.

In some jurisdictions an agreement by the owner of land that he will not use it in a certain way will be enforced in equity, by injunction, against one purchasing or occupying the land with notice of the agreement, without reference to the doctrine of covenants running with the land. This principle is most frequently applied in favor of and against purchasers of neighboring lots, which are laid off and sold by a common vendor, subject to uniform restrictions as to their future improvement and use.

348. General considerations.

Even in some of the jurisdictions where, as in England, the burden of a covenant does not run with the land, an agree ment as to the use of land may, under certain circumstances, affect a subsequent purchaser of the land who takes with notice of the agreement, equity in such case enjoining a use of the land in violation of such agreement. As stated in the leading case on the subject,' "the question is not whether the

1 Tulk v. Moxhay, 2 Phillips, 774, 2 Gray's Cas. 478. See, to the same effect, Luker v. Dennis, 7 Ch. Div. 227; Whitney v. Union Ry. Co., 11 Gray (Mass.) 359, 71 Am. Dec. 715; Tallmadge v. East River Bank, 26 N. Y. 105, 2 Gray's Cas. 497; Hayes v. Waverly & P. Ry.