Woodruff v. Trenton Water Power Co.

10 N.J. Eq. 489

• Court: Supreme Court of New Jersey
• Decided: March 15, 1856
• Status: Published

Opinion

Williamson, C.

The complainants are before the court-as the devisees of George Woodruff, deceased. They allege, in their bill, that George Woodruff was seized and possessed in fee simple of a valuable farm, of about one hundred and eighty acres, situated on the river Delaware, with an extensive front along that river running down to low water mark, and affording at all points an easy and convenient access to the river, which was much resorted to and used by George Woodruff and his family, and by persons occupying the farm under him, for the purpose of bathing, boating, fishing, watering cattle and procuring ice in winter, and for other purposes of business and plea ■ sure; and that the value of the farm, both as a desirable residence and for the purposes of cultivation, was much enhanced by its situation upon the river, and the ease and convenience with which the advantages thereof could be used and enjoyed; that the Trenton Delaware Falls Company was incorporated by the legislature of this state, with power and authority to cut a raceway for the purpose of creating a water power from the head of Wells’ falls, in the Delaware river, in and along and near the banks of said river, to a point below the city of Trenton; that the company located their main raceway across that part of the farm of the said George Woodruff which lay next the river, so that it was necessary for the company to have a portion of the farm upon which to construct their work; that in pursuance of an agreement made between the said George Woodruff and the company, the said Woodruff and wife, on the twenty-sixth of January, 1832, did, in and by a certain deed of conveyance made between the said George Woodruff and his wife, of the first part, and the said the Trenton Delaware Falls Company, of the second part, in consideration of the sum of three hundred dollars to them, the said grantors, paid, and of the covenants and agreements in said deed contained, grant and convey unto the said company, their successors and assigns, in fee simple, the following described portion of said farm, being all that part thereof which lay adjoining and next to the river Delaware, to wit: beginning at low water mark of the river Delaware, «fee., containing two acres and sixty-three hundredths of an acre, subject nevertheless to the following proviso and covenants, contained in said deed and therein set forth, as follows, to wit: “ subject nevertheless to the following proviso, that if the said main raceway shall not be made on said premises in conformity to the act incorporating said company, the said lands and premises shall revert to the said George Woodruff, his heirs and assigns. And also, that the said party of "the second part shall erect, maintain, and keep in good repair a safe, convenient, and substantial bridge across said main raceway, at a place to be designated by the said George Woodruff; and also cause to be made and kept in order a convenient landing place on the side next the river Delaware, so that wagons may at all times safely pass over thereon, and shall also erect and maintain all necessary fences across the said main raceway, together with fences across the said premises. and shall also permit the said party of the first part to use the said raceway to give drink to his cattle, and also to take ice therefrom to fill his ice-house.”

The bill alleges that the grantees cut the main raceway, and that it has been, and is now used as such, and that it came into the possession of the defendants, as assignees of the grantees, by virtue of several acts of the legislature of the state; that by reason of the contracts and covenants contained in the deed aforesaid, the grantees therein named were bound to erect, maintain, and keep in good repair a safe, convenient, and substantial bridge across said main raceway, and a landing place, and to erect and maintain the fences, and that the defendants, as holding under them,, are bound to perform their covenants and agreements; that although frequently applied to by the said Woodruff, in his lifetime, and by these complainants since his decease, both the said grantees and these defendants have always refused to perform their said covenants and agreements. The bill prays for a specific performance, and also compensation for the injury sustained by reason of the failure to perform and keep the covenants in time past.

The defendants answered the bill, and some evidence has been taken on both sides; but the case, as I have stated it from the bill, presents the points upon which I shall decide the case.

If the matters mentioned in the proviso of the deed could be legally regarded as covenants, and as such be enforced at law, I should have no difficulty in declaring them to be covenants relating to the realty and running with the land, and that both the liability to perform them and the right to take advantage of them, passed to the assignee of the land and of the reversion. It appears to me that such a construction would not conflict with the principles established. I use the word established because those principles have ruled and regulated all subsequent authorities in Spencer’s case. 5 Coke’s Rep. 17.

It is argued that the word assigns, being omitted in reference to the things to be performed by the grantees, and the things to be done not being in esse and parcel of the premises, the defendants, as the assignees of the Trenton Delaware Ealls Company, are not bound; that it is directly within Spencer’s case, and of the first resolution, as there laid down.

And it also insisted that, by the principle laid down in the second resolution in Spencer’s case, the defendants are not bound, because the thing to be done is collateral to the land.

It was resolved (by the second resolution), that in this case (Spencer’s ease) if the lessee had covenanted for him and his assigns, that they would make a new wall upon some part of the thing demised, that forasmuch as it is to be done upon the land demised, that it should bind the assignee; for although the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words. Bni although the covenant be .for him and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and his assigns to build a house upon the land of the lessor which is no parcel of the demise, or to pay any collateral sum to the lessor or to a stranger, it shall not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing that was demised or that is assigned over; and therefore in Mich case the assignee of the thing demised cannot be charged with it no more than any other stranger.

In the present case there was nothing to be done collateral to the land conveyed. The grantor reserved to himself a right of way on the main raceway, and also a convenient landing place at the river. This right of way, as well as landing place, was an interest in the thing granted, and would pass as appurtenant to the grantor’s farm. The thing to be done upon the land was the medium which created the privity of estate between the grantor and the grantee. It was an incident to the land conveyed, enuring to the benefit of the grantor as the owner in fee of the adjacent soil. It is not like a mere personal covenant which does not affect or concern the premises conveyed, as to build a house or wall upon the laird of the grantor, which is not parcel of the thing granted, or merely to pay a sum of money to the grantor or to a stranger.

In Bally v. Wells (Wilmot's opinion, 341, 3 Wils. 25), Lord Chief Justice Wilmot says, “the reason why the assignees, though named, are not bound, is because the thing covenanted to be done has not the least reference to the thing demised. It is a substantive independent agreement, not guodmn modo but rmllo modo, annexed or appurtenant to the thing leased.” But although this is a covenant running with the land, yet, according to the first resolution in Spencer’s case, it does not bind the assignee not expressly named, if the covenant does not extend to a thing in esse at the time of the covenant. The principle is well settled; the only question is as to its application. It does not extend to repairs. In Cockson v. Cook (Cro. Jac. 125), it was decided that covenant lies against the assignee on a covenant not to plough, although assignees are not named in the deed, for it runs with the land, but not on a collateral act, as to build de novo. And in the Dean and Chapter of Windsor’s case (5 R. 24), it was resolved that the assignee is bound to repair, though not mentioned in the lease. To apply the principle properly, it is necessary that we should look at the character of the thing covenanted to be done; its connection with the land; the mode of its enjoyment; and for whose benefit it is intended. At the time of the conveyance of this land, it constituted the grantor’s mode of access to the river, and also a landing place, both of which convemcnees were necessary to the grantor’s beneficial enjoyment of his property. That way and landing place were to be kept good by the grantees. (I am assuming that the stipulation named in the proviso constituted covenants on the part of the grantee.) By digging the raceway, the grantees destroyed the grantor’s access to the river. The reconstruction of the way and landing place was not like doing a thing de novo, but a reparation of that which had been destroyed. The particular manner in which the way was to be reconstructed does not alter its legal character in this respect. A. covenants in a lease to repair; the building is destroyed by fire; the covenant can be fulfilled only by erecting a new building. Suppose there had been a covenant in this deed by which the grantor was always to have access to the river by a right of way over the land in as convenient a manner as it existed at the time of the grant, there cannot be a doubt but that the assignee of the grantor would have been entitled to the benefit of the covenant, although not named in it. Is the covenant impaired or limited in its extent because it specified that this right of way shall be in the shape of a bridge to be erected by tlie covenantor ?

But it is unnecessary to pursue this investigation any further. There is another point in the case of less difficulty, which, I think, must determine the rights of the parties in this court. There are no covenants contained in this deed on the part of the grantees. They did not sign the deed. It is true this is not necessary always. The acceptance of the conveyance and the land granted will in some cases bind the grantees to the performance of the covenants; but it cannot bind them to covenants which do not exist. I have already recited all that part of the deed in which it is said the covenant exists. There is a proviso by which it is declared, that unless the grantees perform certain things specifically stipulated, the said lands and premises shall revert to the said G-eorge Woodruff. A Gondiúon is quite distinct from a covenant. The language in this deed is appropriate to create a condition, and, as if to avoid any doubt, the legal consequences of a breach or violation of the condition is inserted. Upon covenants^ the legal responsibility of their nonfulfilment is, that the party violating them must respond in damages. The consequence of the nonfulfilment of a condition is a forfeiture of the estate. The grantor may re-enter at his will, and possess himself of his former estate. The grantees were to make the raceway in conformity to their act of incorporation; they were to erect, maintain, and keep in good repair a safe and substantial bridge over the raceway ; they were to make a landing place on the river Delaware, and to make and maintain the fences. But they entered into no covenants to do these things. They were to enjoy the land, provided they did perform these stipulations; and they accepted the deed, and entered upon the land upon the condition, that if they did not perform them, they should forfeit all the benefits of the grant. Unless these are conditions, then there exists no distinction between a condition and a covenant. Nicoll v. The New York and Erie Railroad Co., 12 Barb. S. C. Rep. 460; Coke upon Litt., by Thomas, 4; Com. Dig., Condition 1, A. 2; Co. Litt. 216 C., Hamilton v. Elliott, 5 Serg & Rawle 375; Platt on Cov. 36, 37; Bouv. Law Dict., title Proviso.

It appears to me there can be no question as to the proper legal construction of the deed. The only question then is, can this court enforce the specific performance in a deed, the nonperformance of which works a forfeiture of the estate ? This was not contended on the argument. I cannot see upon what principle the court can exercise this branch of its jurisdiction in such a case. The grantor has fixed his own remedy, and can forfeit the estate at his pleasure. There is no agreement upon which the party can maintain a suit at law for damages. I admit that this is not a criterion universally applicable. But it is one test. It has many exceptions, but this is not one of them. if any authority can be furnished by counsel, I am willing to hear the counsel further upon the point. My impression is none can be found.

In the case of Stuyvesant v. The Mayor, &c., of New York, 11 Paige 414, there was a condition in the grant upon which the title of the corporation to the land depended ; but there was other - and additional language in the deed which the Chancellor said amounted to a covenant on the part of the corporation to perform such condition. The deed, too, was executed by the defendants under their corporate seal.

The defendant further insisted that this was not such a case as to justify the court in the exercise of its peculiar jurisdiction of decreeing a specific performance. The great delay in applying to this court for relief; the fact that George Woodruff never pointed out the place, as the deed provided, where the bridge and landing place should be made; the change of the original parties to the contract ; the death of the original grantor; and the transmission of the property by the authority of the legislature to others than the original grantees; the character by which the complainants now hold, some by purchase and others by descent, these constitute serious objections to the action of this court. But I am satisfied to decide the cause upon the other ground.

The appeal was argued Hovember term, 1855, and decided March term, 1856.

The decision of the Chancellor was affirmed by the following vote:

For affirmance — Chief Justice, Judges Arrowsmith, Elmer, Haines, Ogden, Risley, Valentine, Cornelison, Huyler, Potts, Ryerson, Vredenburgh, Wills.

For reversal — Hone.