It alleges that the canal company constructed the canal through the land conveyed by the Rowland deed, and for the benefit of the land retained by Rowland constructed a basin, connecting with and opening into the canal, and that Rowland erected upon the land retained by him, and along the basin, a large warehouse and mill about the year 1835, and from that time until the grievances complained of "the said basin was used by the successive owners of said warehouse and mill as an outlet and highway for the shipping and receiving of 86 merchandise bought and sold in the business conducted at said warehouse and mill; for the transporting of coal and other fuel used in supplying said mill, and for such other useful and beneficial purposes incident to the business there carried on." It also alleges that the complainants became the owners of the warehouse and mill property by virtue of certain conveyances referred to. It does not show what interest Kelly Thomas had in the property, or what became of his interest, but in 1842 the real estate of Jonathan Rowland was sold by a trustee, including what was described as "Lot No. 1, being the warehouse and ground attached to Jacob Snively, for the sum of eight hundred and seventy-five dollars."

The appellee demurred to the bill and assigned a number of reasons therefor. Without stating them in full, the main grounds relied on are (a) that the Rowland deed did not contain a covenant which runs with the land, or which created an easement in favor of the adjoining land, which passed as an appurtenance thereto unto the appellants, and (b) that the alleged covenant was ultra vires of the canal company. It may be well to first dispose of some questions about which there can be no serious controversy in this state.

1. The acceptance of a deed poll cannot have the effect in this state of binding a grantee as a covenantor. It is said in 8 American and English Encyclopedia of Law, 65, in speaking of the exceptions made in New York and New Jersey to the general rule, that in order that a provision be binding as a covenant, it must be under the seal of the party by whom it is to be performed. "But this exception has been justly criticised as erroneous in principle, and will be found to be unsupported by the authority of any adjudged cases, except those rendered in the states above mentioned. which have adopted them. It may safely be stated as the general rule, that mutual covenants cannot arise out of a deed poll." As the canal company neither signed nor sealed this deed, there would seem to be no doubt that under the

authorities in this state there was no covenant by the canal company: 1 Poe, sec. 144; Stabler v. Cowman, 7 Gill & J. 284; Western Maryland R. R. Co. v. Orendorff, 37 Md. 328; State v. Humbird, 54 Md. 327.

87 2. In addition to what we have just said, it is clear there was no covenant running with the land. In Lynn v. Mt. Savage Iron Co., 34 Md. 603, this court adopted the first two resolutions in Spencer's Case, 5 Coke, 16, and the principles there announced are still accepted in this state as correct. What is spoken of by the appellants as "a covenant" in the Rowland deed referred to things not in esse, and there is nothing that could be construed either as a covenant with the grantors and their assigns or by the canal company for itself and its assigns. So whatever may be the rights of the appellants, they have no standing in court on the theory that this is a covenant running with the land, and as the Lynn case, in our judgment, conclusively disposes of that question, we will not further discuss it.

3. Before passing on what we regard as the most important questions in the case, we will briefly consider the grounds on demurrer which rely on the provision in the deed for a basin being ultra vires. It will be conceded that the appelHants have no right to some relief included in the prayers of their bill. For example, there is nothing in the deed which can be construed to bind the canal company to furnish the complainants with water for their mill and warehouse, or other improvements they have on their property adjoining the basin, but in passing on this subject, we must be careful not to confound the right to have the basin with the method of using it. We can see no reason why the company could not have bound itself to make a basin along the canal, just as a railroad company can bind itself to erect a depot at a particular place, and there would seem to be no doubt about the latter: See 26 Am. & Eng. Ency. of Law, 500; 10 Am. & Eng. Ency. of Law, 1079; 18 Am. & Eng. Ency. of Law, 567. A basin connected with a canal may be just as necessary and useful for loading and unloading boats as a station or siding is for a railroad. Unless the canal be wider at points where boats are to be loaded and unloaded than it ordinarily is, it might obstruct navigation to so use it. So, although it be conceded that some of the uses of the basin made by the complainants and those under whom they claim 88 cannot be sustained, we are of the opinion that it was not ultra vires for the canal company to contract or agree to construct a basin on part of the land acquired by it by

the Rowland deed, as a part of the consideration of the land purchased.

4. Having reached the conclusions above announced, are the complainants entitled to any relief sought by this bill? In passing on that question, we must determine not only whether the railroad company, as assignee of the canal company, could have been held to such responsibility to the grantors as the canal company could have been under the Rowland deed, but also whether the appellants, as present owners of what we will call the warehouse property, are entitled to relief, even if the railroad company would have been liable to the original grantors. We are of the opinion that the first inquiry must be answered in the affirmative, notwithstanding there was no covenant running with the land, on the principle alluded to in Lynn's case (34 Md. 603). After saying that the covenants then in question did not run with or adhere to the railroad of the Mt. Savage Iron Company, so as to bind it in the hands of the assignee, the court said: "It is true, if any attempt were made by the assignee of the Mt. Savage Iron Company to use and apply the wharves and other improvements on the land of the complainants, in a manner and to a purpose different from that intended, a court of equity would restrain such improper use and appropriation. In such case, the question would be, not whether the covenant ran with the land, but whether the party should be allowed to use and appropriate the land in a manner wholly at variance with the contract entered into by its assignor, and with notice of which it purchased. That is the principle of the case of Tulk v. Moxhay, 2 Phill. 774; but it is not involved in the present application.'

In Newbold v. Peabody Heights Co., 70 Md. 493, 17 Atl. 372, 3 L. R. A. 579, Judge Alvey quoted at length from Tulk v. Moxhay, 2 Phill. 774. After announcing the principle which is in substance stated in the Lynn case, Lord Chancellor Cottenham went on to say: "Of 89 course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken. That the question does not depend upon whether the covenant runs with the land is evident from this, that if there was a mere agreement and no covenant, this court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing

with notice of that equity can stand in a different situation from the party from whom he purchased." Judge Alvey, after quoting from Tulk v. Moxhay, added on page 502 of 70 Md. "The principle thus clearly stated has been applied in a great variety of cases of restrictive covenants and agreements, both in the English and American courts; and they all concur in holding that whoever purchases land upon which a former vendor or lessor has imposed an easement, charge or restriction in the manner of its use, such as would be enforced by a court of equity as against his vendee or lessee, the party purchasing the land with notice will take it subject to such easement, charge or restriction, however created."

Among other cases in this court reflecting more or less upon the question are Thruston v. Minke, 32 Md. 487; Halle v. Newbold, 69 Md. 265, 14 Atl. 662; Peabody Heights Co. v. Willson, 82 Md. 186, 32 Atl. 386, 1077, 36 L. R. A. 393; Summers v. Beeler, 90 Md. 474, 78 Am. St. Rep. 446, 45 Atl. 19, 48 L. R. A. 54; Safe Deposit & T. Co. v. Flaherty, 91 Md. 489, 46 Atl. 1009. In Thruston v. Minke, 32 Md. 487, this court quoted with approval from Whitney v. Union Ry. Co., 11 Gray, 359, 71 Am. Dec. 715, as follows: "When it appears, by a fair interpretation of the words of the grant, that it was the intent of the parties to create or reserve a right in the nature of a servitude or easement in the property granted, for the benefit of the other land owned by the grantor, and originally forming, with the land conveyed, one parcel, such right shall be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to and be binding on all subsequent 90 grantees of the respective parcels of land": See, also, 7 Am. & Eng. c. in Eq. 253, 254, where the question is discussed and many cases cited; 8 Am. & Eng. Ency. of Law, 140, and 11 Cyc. 1078, where many cases are cited-amongst others, DeMattos v. Gibson, 4 De Gex & J. 276, which has been cited with approval by this court.

Applying these principles to this case, it seems clear that the appellee would not be permitted to purchase the property from the canal company and destroy the use of the basin which that company agreed to make, construct and establish, as a part of the consideration to be paid for the property if it had notice, and the grantors were still the owners of the adjoining property. The Rowland deed shows on its face that the grantors had other land which would be benefited "by cutting the said canal through and creating the said work

upon the said land," and it was made upon condition that the canal company should make the basin within the limits of the land conveyed. The canal company did make the basin, which according to the allegations of the bill was maintained and used by Rowland and those claiming under him for seventy years until the appellee filled it up. The habendum clause of the Rowland deed shows that it was the intention of the parties that the use of the land conveyed was to continue as therein provided for. If the canal company could deprive their grantors of the right to use the basin, by conveying it to the appellee in 1905, why could it not have done so by a similar transfer the year after it was constructed? The appellee is making use of it "in a matter wholly at variance" with the condition of the deed under which the canal company acquired it.

5. But although we think a court of equity could undoubtedly give relief to the original grantors, under such circumstances as we have stated, it does not follow that these complainants are entitled to relief. As we have already intimated, they cannot require the appellee to restore the basin for some of the purposes set out in the bill. The original grantors did not by the terms of the deed have the right to use the basin 91 as a source of water supply for the mill and warehouse, and the canal company had no power to make such a contract as that, so far as we are informed by the record. Nor does the deed show any right in the grantors to build any part of their warehouse over the basin, as the advertisement of the trustee's sale of the Rowland property shows had been done. The most they could have claimed would have been the use of the basin for loading and unloading boats for shipment on the canal and such uses as were incident to that work.

But the real difficulty is that the grantors conveyed all their right, title, interest and estate in the parcel of land described, and the basin was constructed within the limits of the land so conveyed. They made no exception to any part of the land described, and did not in terms make any reservation of any part of it. The deed did not even expressly reserve the right to the grantors to use the basin, or make any provision as to where it should be constructed, excepting "within the limits of the land conveyed," although it may be implied they were to have the use of it-not, however, the exclusive use-and that it was intended to be so located as to give the grantors the benefit of it. There is nothing on the face of the deed to require the canal company to con