Opinion,
Me. Justice Claek :
This action was brought to recover damages for the diversion of the water of Wills creek, from the channel through which the plaintiff supplied the wheel of his grist-mill, near Hyndman, in Bedford county. It appears that the waters of' Wills creek divide at a point about a mile above the plaintiff’s land, (whether from artificial or natural causes does not appear,) and thence proceed in two channels, one by the plaintiff’s mill, and one by the defendants’ mill, to a point a short distance below both mills, where a junction is again effected. It also appears that, in the year 1852, John Miller owned the land now owned by the defendants, and also the land adjoining, upon which the stream divides, now owned by Jacob Evans, and that Enoch Cade was the owner of some forty-two acres in two adjoining parcels, one containing thirty-two acres,more or less, partof the New Bridgeport tract; the other containing about nine acres, known as the Carpenter lot.
The appellant’s contention is, that the extent of his right is fixed by an agreement dated July 8,1852, between John Miller and Enoch Cade, who were thus the predecessors in title to the respective premises involved in this controversy. In the year 1852, an action was pending in the Court of Common Pleas of Bedford county, in which Enoch Cade was plaintiff and John Miller defendant. The action was brought to recover damages for the diversion by Miller of the waters of Wills creek to his saw-mill, on one channel of the stream, to the prejudice of the right of Cade, who was the owner of a mill-site, on the other channel. The matters in controversy in this suit were settled according to the terms of the agreement mentioned.
[653]*653By this agreement it is provided, in substance, as follows: Cade, “his heirs, executors, administrators or grantees,” were conceded the right to use and enjoy the “water right or power” for two wheels, of any capacity and size he or they might see proper to construct, on either of the lots mentioned as belonging to him, “without let, hindrance, or diversion by said Miller, his heirs, executors, administrators or grantees.” When there was any surplus water, “over and above what may be needed for the full, free, and uninterrupted enjoyment of the two wheels,” Miller was to have thereof what was sufficient for the full and free use of his saw-mill, “not requiring, using, or diverting more ” than was necessary for that purpose; the rest of the water of said creek, and there was to be no unnecessary waste of the water by either party, was to be used and enjoyed by Cade. The concluding clause of the contract is as follows: “ Said Miller is to have a flood-gate erected at the mouth of his head-race, and shut the same down tightly and securely when the said creek does not furnish more than enough for the said two wheels of said Cade, as aforesaid, and also at all times else when he is not using his own mill, and at all times is not to interfere in any way with said two wheels, as aforesaid, or the rest of said water, over and above his own, belonging to said Cade as aforesaid.”
There is no dispute as to the'proper construction of this agreement; there is no ambiguity of expression, or uncertainty of meaning alleged, but the legal effect of it is what is most in dispute. It is certainly clear that the suit pending in 1852 was for redress of injuries for an invasion of Cade’s right as a riparian owner. The agreement was made in adjustment of Cade’s right as such. Miller had no right, by artificial means, to withdraw the water from Cade’s use. He was restricted in his use and enjoyment of the water to the natural flow, and the foundation of the action was that the natural condition of the stream had been interfered with. The agreement was, virtually, a recognition of the superior claim of Cade; for his right was distinctly recognized and entitled to a preference, and was intended to be protected under the terms of the agreement. But the right which was thus protected was, nevertheless, his right as a riparian owner, the extent of which, in view of all the facts and circumstances, was declared and established [654]*654between the parties, their heirs, executors, administrators and assigns, in the terms of the contract.
The right to reasonable use of water in its natural flow, without any diversion of it from its ordinary channel by artificial means, is incidental to the ownership of the land through which it flows, and the extent to which it may be used and applied affects the use and consequent value of the land itself. These covenants, therefore, relate to the land of the respective parties, or to the enjoyment of the land which they had in possession in fee, and were to be performed upon and in connection with its use and enjoyment. The present parties litigant have, in part at least, the same lands respectively to which the agreement relates, also in fee. The covenants were by the covenantors for the mutual benefit of themselves, their heirs, executors, administrators or grantees, and the present owners, holding the land by conveyance from the covenantors respectively, under the law of this state are in privity of estate with them respectively. There was no privity of estate between the contracting parties, but the covenants, being in adjustment of their respective rights to the use of the water of Wills creek, must be construed as a mutual benefit to, and not as a burden upon, the lands of either.
We are of opinion, therefore, that the covenants in question run with the land, and define the rights, not only of the parties thereto, but of their respective heirs and assigns. To the general rule that between the covenantor and covenantee there must be such privity of estate as would formerly have given rise to the rule of tenure, there are in this state, and perhaps in some, of the other states, well-recognized exceptions. Covenants capable of running with an assignment of a present estate in land may, it seems, have that capacity in certain cases, although no estate passes between the covenantor and covenantee at the time of covenant made. The obligation of contracts is, in general, limited to the parties making them: where privity of contract is dispensed with, there must ordinarily be privity of estate; but justice sometimes even requires that the right to enjoy such contracts should extend to all who have a beneficial interest in their fulfilment, not to impose a burden upon an ignorant and innocent third person, but to enable purchasers of land to avail themselves of the benefit to which [655]*655they are in justice entitled. The character of a covenant of this kind must depend upon the effect of the entire agreement of which’ it is a part, and, where the benefit and the burden are so inseparably connected that each is necessary to the existence of the other, both must go together; the liability to the burden will be a necessary incident to the right to the benefit: See note to Spencer’s Case, 1 Sm. L. C. 174. It was upon this ground that, in Coleman v. Coleman, 19 Pa. 100, a covenant entered into by the owners of the estate that a part only should be divided, and a part “ remain together and undivided as a tenancy in common,” was held to run with the land, and to bind not only the contracting parties, but their heirs and assigns, although not named in the contract, and therefore to constitute a bar to an action of' partition upon the part undivided instituted by the heirs at law of one of the parties.
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Opinion,
Me. Justice Claek :
This action was brought to recover damages for the diversion of the water of Wills creek, from the channel through which the plaintiff supplied the wheel of his grist-mill, near Hyndman, in Bedford county. It appears that the waters of' Wills creek divide at a point about a mile above the plaintiff’s land, (whether from artificial or natural causes does not appear,) and thence proceed in two channels, one by the plaintiff’s mill, and one by the defendants’ mill, to a point a short distance below both mills, where a junction is again effected. It also appears that, in the year 1852, John Miller owned the land now owned by the defendants, and also the land adjoining, upon which the stream divides, now owned by Jacob Evans, and that Enoch Cade was the owner of some forty-two acres in two adjoining parcels, one containing thirty-two acres,more or less, partof the New Bridgeport tract; the other containing about nine acres, known as the Carpenter lot.
The appellant’s contention is, that the extent of his right is fixed by an agreement dated July 8,1852, between John Miller and Enoch Cade, who were thus the predecessors in title to the respective premises involved in this controversy. In the year 1852, an action was pending in the Court of Common Pleas of Bedford county, in which Enoch Cade was plaintiff and John Miller defendant. The action was brought to recover damages for the diversion by Miller of the waters of Wills creek to his saw-mill, on one channel of the stream, to the prejudice of the right of Cade, who was the owner of a mill-site, on the other channel. The matters in controversy in this suit were settled according to the terms of the agreement mentioned.
[653]*653By this agreement it is provided, in substance, as follows: Cade, “his heirs, executors, administrators or grantees,” were conceded the right to use and enjoy the “water right or power” for two wheels, of any capacity and size he or they might see proper to construct, on either of the lots mentioned as belonging to him, “without let, hindrance, or diversion by said Miller, his heirs, executors, administrators or grantees.” When there was any surplus water, “over and above what may be needed for the full, free, and uninterrupted enjoyment of the two wheels,” Miller was to have thereof what was sufficient for the full and free use of his saw-mill, “not requiring, using, or diverting more ” than was necessary for that purpose; the rest of the water of said creek, and there was to be no unnecessary waste of the water by either party, was to be used and enjoyed by Cade. The concluding clause of the contract is as follows: “ Said Miller is to have a flood-gate erected at the mouth of his head-race, and shut the same down tightly and securely when the said creek does not furnish more than enough for the said two wheels of said Cade, as aforesaid, and also at all times else when he is not using his own mill, and at all times is not to interfere in any way with said two wheels, as aforesaid, or the rest of said water, over and above his own, belonging to said Cade as aforesaid.”
There is no dispute as to the'proper construction of this agreement; there is no ambiguity of expression, or uncertainty of meaning alleged, but the legal effect of it is what is most in dispute. It is certainly clear that the suit pending in 1852 was for redress of injuries for an invasion of Cade’s right as a riparian owner. The agreement was made in adjustment of Cade’s right as such. Miller had no right, by artificial means, to withdraw the water from Cade’s use. He was restricted in his use and enjoyment of the water to the natural flow, and the foundation of the action was that the natural condition of the stream had been interfered with. The agreement was, virtually, a recognition of the superior claim of Cade; for his right was distinctly recognized and entitled to a preference, and was intended to be protected under the terms of the agreement. But the right which was thus protected was, nevertheless, his right as a riparian owner, the extent of which, in view of all the facts and circumstances, was declared and established [654]*654between the parties, their heirs, executors, administrators and assigns, in the terms of the contract.
The right to reasonable use of water in its natural flow, without any diversion of it from its ordinary channel by artificial means, is incidental to the ownership of the land through which it flows, and the extent to which it may be used and applied affects the use and consequent value of the land itself. These covenants, therefore, relate to the land of the respective parties, or to the enjoyment of the land which they had in possession in fee, and were to be performed upon and in connection with its use and enjoyment. The present parties litigant have, in part at least, the same lands respectively to which the agreement relates, also in fee. The covenants were by the covenantors for the mutual benefit of themselves, their heirs, executors, administrators or grantees, and the present owners, holding the land by conveyance from the covenantors respectively, under the law of this state are in privity of estate with them respectively. There was no privity of estate between the contracting parties, but the covenants, being in adjustment of their respective rights to the use of the water of Wills creek, must be construed as a mutual benefit to, and not as a burden upon, the lands of either.
We are of opinion, therefore, that the covenants in question run with the land, and define the rights, not only of the parties thereto, but of their respective heirs and assigns. To the general rule that between the covenantor and covenantee there must be such privity of estate as would formerly have given rise to the rule of tenure, there are in this state, and perhaps in some, of the other states, well-recognized exceptions. Covenants capable of running with an assignment of a present estate in land may, it seems, have that capacity in certain cases, although no estate passes between the covenantor and covenantee at the time of covenant made. The obligation of contracts is, in general, limited to the parties making them: where privity of contract is dispensed with, there must ordinarily be privity of estate; but justice sometimes even requires that the right to enjoy such contracts should extend to all who have a beneficial interest in their fulfilment, not to impose a burden upon an ignorant and innocent third person, but to enable purchasers of land to avail themselves of the benefit to which [655]*655they are in justice entitled. The character of a covenant of this kind must depend upon the effect of the entire agreement of which’ it is a part, and, where the benefit and the burden are so inseparably connected that each is necessary to the existence of the other, both must go together; the liability to the burden will be a necessary incident to the right to the benefit: See note to Spencer’s Case, 1 Sm. L. C. 174. It was upon this ground that, in Coleman v. Coleman, 19 Pa. 100, a covenant entered into by the owners of the estate that a part only should be divided, and a part “ remain together and undivided as a tenancy in common,” was held to run with the land, and to bind not only the contracting parties, but their heirs and assigns, although not named in the contract, and therefore to constitute a bar to an action of' partition upon the part undivided instituted by the heirs at law of one of the parties. Although there was not, in any proper sense, as to the undivided mine hills, a privity of estate between the tenants in common, yet, as the covenant pertained to and was attached to the realty, providing for the manner of its future enjoyment, it was styled a real covenant; and, being for the mutual benefit and advantage of all, it was held to run with the land.
In Carr v. Lowry, 27 Pa. 257, there was a grant of a mere easement, the right to cut and keep up a tail-race through Carr’s land for the benefit of the adjoining lands of Lowry, to which was annexed a covenant of Lowry, his heirs and assigns, to keep the race timbered, planked, and covered with earth, and to be held for damages, etc. The burden imposed was necessarily incident to the enjoyment of the benefit, and it was held that the contract defined the duties which ought to be performed by whoever should be the owner of the mill for the benefit of which the easement was created. “We cannot presume,” says Mr. Justice Lowrie, “that he (Lowry) intended to bind lfis personal representatives to such duties. In the natural order of affairs, they accompany the ownership of the property to which they relate, and therefore in the present case ought to be performed by the heirs or assigns of Lowry, if they claim under the title then acquired by him. The relation between Carr and Lowry on which the duty depends, was dissolved by Lowry’s death, if not before, and his administratrix can be charged to answer only -for a breach in his lifetime.”
[656]*656So also in Lindeman v. Lindsey, 69 Pa. 93, owners on opposite sides of the Gonodoquinet creek agreed jointly to erect a dam, each to have the use of half the water, with a covenant for themselves, their heirs and assigns, to repair and rebuild; and this covenant was held to run with the land, the dam having been constructed for the mutual benefit and advantage of the parties, with direct relation to the enjoyment and use of the land. “ When, therefore,’’says Mr. Justice Shaeswood, “ they enter into an agreement to erect such a dam, with a covenant for themselves, their heirs and assigns, to repair, or rebuild it if necessary, it is not a personal covenant merely, but runs with the lands of the respective proprietors, and the stipulations contained in such agreement, in respect to the enjoyment of the water power created by the dam, form the basis of their respective rights. It is sufficient to refer to Jamison v. McCredy, 5 W. & S. 129, as a case entirely parallel, if not in point. If the instrument contain the grant of an easement or privilege to either party in the land or the water, against such a grant there is no statute of limitations without actual, hostile, and adverse possession, and certainly no prescription or presumption from mere non-user. Nothing less than au absolute denial of the right, followed by an enjoyment inconsistent with its existence for a period of twenty-one years or more, can amount to an extinguishment of it.” The effect of the agreement of 1852 was therefore to adjust and fix the rights of the parties thereto, and of their heirs and assigns. It is of no consequence that in the deeds constituting the chain of title from Cade to Horn no mention of this agreement is made, or of the rights accruing therefrom. The right passed as appurtenant to the land. As the assignee of the land ffom Cade in fee, Horn has a right to enjoy the benefit of the contract which runs wfitli it.
This action is trespass upon the case, for diversion of the water to the prejudice of the plaintiff’s rights as a riparian owner, which, in view of the alleged previous artificial diversion of the waters of the stream, were fixed and determined by the agreement of 1852. Trespass was the proper remedy. The agreement of 1852 established the rights of the parties, and the covenants were to that effect merely. The agreement was equivalent to a grant; whatever may be conveyed by grant [657]*657may be secured by covenant in this form. No one has ever supposed before, as was said in Lindeman v. Lindsey, supra, that upon a grant by deed of an easement or privilege upon land, or land covered with water, by one man to another, the remedy for a disturbance of such easement or privilege was an action of covenant upon the deed.' Take a common case of the grant or reservation of a right of way. Surely an action on the case may be maintained by the grantee for the obstruction of it, as well against the grantor and those claiming under him as against strangers. The books are full of such cases, in which no such point was made; citing Watson v. Bioren, 1 S. & R. 227; Kirkham v. Sharp, 1 Wh. 333; Jamison v. McCredy, 5 W. & S. 129; Van Meter v. Hankinson, 6 Wh. 307; Ebner v. Stichter, 19 Pa. 19.
It is true that Horn is the assignee of part only of the forty-four acres held by Cade, to which this covenant is applied, but his rights as a riparian owner are in no way impaired by this. If, after the water leaves the tail-race of his mill, others avail themselves of its power, we cannot see how this can affect Miller. But non constat that any other wheel will be placed on any other part of Cade’s tract. One thing is certain, that the mere apprehension of this cannot excuse Miller for diverting the water of the stream, in violation of the contract. It will be time enough to provide for this contingency when it happens.
We are of the opinion that the learned judge of the court below erred in entering judgment for the defendant, non obstante veredicto.
The judgment is therefore reversed, and judgment is now entered on the verdict for the plaintiff for $52.