Warren v. Detlefsen

Supreme Court of Arkansas, 1984.

281 Ark. 196, 663 S.W.2d 710.

Johnson, pp. 688-691

Facts: Warren Construction developed three subdivisions.  They had built a number of single-family homes and were now starting to build two duplexes.  The residents sued to enjoin them to build the duplexes, claiming that they were promised that all the lots in the development would be built up with single family homes.  The trial court found that a restrictive covenant existed that restricted the use of the subdivisions for single family homes only.  Warren appealed.

Issue: Did the trial court rule correctly that a restrictive covenant was created such that Warren may not build duplexes?

Rule:

Analysis: Basically, the court finds two grounds for a negative covenant: the actual language of the deed, and the statements of the Warrens plus the reliance upon those statements by the residents.

Conclusion: The trial court’s judgment is affirmed.

Back to Servitudes

Back to Casebook Notes

Wheeler v. Schad

Supreme Court of Nevada, 1871.

7 Nev. 204.

Johnson, pp. 683-687

Facts: Some guys built a quartz mill.  They also agreed to chip in and build a dam and flume to provide water for the mill and to split the cost of maintaining the dam and flume.  Two of the shares of ownership in the mill passed to the plaintiff and the defendant: the plaintiff got his by grant, and the defendant bought his at foreclosure.  A few years later, the dam and flume were damaged and needed repairs.  The plaintiff and defendant both had ownership interests in the mill at the time of the damage. The plaintiff told the defendant what had happened and suggested that they split the cost of the repair.  The defendant agreed that the repairs should be made, and asked the plaintiff to take charge.  The repairs were made and they cost $3500.  The plaintiff sued the defendant for half of the cost of the repairs.  The trial court found for the defendant.

Issue: Is the promise to maintain the dam and flume a covenant that runs with the land?

Rule: To make a covenant run with the land, (1) the covenant must have something to do with the land, and (2) when the covenant imposes a burden on the land, there must be privity of estate between the parties making the covenant.

Analysis: The court finds that the plaintiff and defendant were not in privity of estate at the time that the covenant was created.  The defendant also didn’t have notice of any covenants running with the land when he bought the land at foreclosure.  Finally, the court finds that there is no binding contractual obligation on the defendants that would survive the statute of frauds.

Conclusion: The trial court’s judgment is affirmed and the plaintiff gets nothing.

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Back to Casebook Notes

ohnson, pp. 633-731: Servitudes

A.      Affirmative Rights to Use Property: Easements, Licenses, and Profits

1.        Definitions

2.        Creation

(a)     By Express Conveyance

(b)    By Implication from Pre-Existing Use or Necessity

(c)    By Prescription

Case: Plettner v. Sullivan

(a)     Irrevocable License

3.        Scope, Succession, and Protection

Case: Aztec Limited, Inc. v. Creekside Investment Company

4.        Termination of Easements

B.      Negative Rights and Affirmative Obligations: Covenants, Equitable Servitudes, Negative Easements

1.        Historical Development and Traditional Requirements

Case: Wheeler v. Schad

2.        Creation

(a)     Express Provision

(b)    By Implication

Case: Warren v. Detlefsen

(c)    By Prescription

3.        Validity, Interpretation, and Scope

(a)     Traditional Servitude Law

(i)       Horizontal Privity

(ii)     The Touch and Concern Requirement

(b)    Interpretation or Invalidation to Promote Public Policy

4.        Succession to Servitudes

(a)     The Running of Burdens

(i)       The Vertical Privity Requirement

(ii)     Notice

(b)    The Running of Benefits

C.      Termination

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Casebook Notes

Casebook: Property Law: Cases, Materials and Problems, Johnson, Salsich, Shaffer and Braunstein, 2^nd edition.

Chapter One.       Basic Property Concepts: Possession and Ownership

I.                   Who is the Owner?

II.                What Does it Mean to Be the Owner?

III.             Can “It” Be Owned?

Chapter Two.      Common Law Estates

I.                   Introduction

II.                Fee Simple Absolute and Life Estate

III.             Remainders and Reversions

IV.            The Defeasible Fees

V.               Executory Interests

VI.            Rules Furthering Marketability

Chapter Three.    Concurrent Ownership

Introduction: Property in Families

I.                   Forms of Concurrent Ownership

II.                Property Claims in Marriage

Chapter Four.     The Landlord-Tenant Relationship

I.                   Nonadversarial Dispute Resolution

II.                The Landlord-Tenant Concept

III.             Creation of the Relationship

IV.            Selection of Tenants

V.               Regulated Relationship

VI.            Special Procedural Rules

VII.         A Second Look at Dispute Resolution

Chapter Five.      Real Estate Transactions

Chapter Six.        The Law of Neighbors: Servitudes and Nuisances

I.                   Servitudes

II.                Neighborhood Governance

III.             Nuisance

IV.            Surface Water and Support

Chapter Seven.    Public Regulation of Land Use

I.                   The “Takings” Question

II.                Zoning—The Most Popular Form of Public Land Use Regulation

Back to Property

Westland Skating Center, Inc. v. Gus Machado Buick, Inc.

Supreme Court of Florida, 1989.

542 So.2d 959.

Johnson, pp. 795-801

Facts: A skating rink and a car dealer were located next to each other in what used to be a swamp.  Before the skating rink was there, there was a miniature golf course, and there was no problem with water flow.  But now the skating rink has a sloped roof that increased the flow towards the car dealer.  The roof is a steeper pitch than the natural grade of the land.  Cars got damaged!  So the car lot built a big ol’ wall to keep all the wall on the skating rink’s property.  The next time there was a flood, all the water stayed on the skating rink’s side and the rink was damaged. 

Issue:

Rule:

Analysis:

Conclusion:

Back to

Back to Casebook Notes

CLASS NOTES

1/7/04 – Overview of the course, the many roles of Braunstein, the many roles of us, six goals for the course

1/8/04 – Just compensation, public use or purpose, two kinds of takings, Hawaii Housing Authority et al. v. Midkiff et al., Poletown Neighborhood Council v. City of Detroit

1/9/04 – Loretto v. Teleprompter Manhattan CATV Corp. et al., the Loretto dissent, two kinds of “takings” analysis

1/13/04 – The State ex rel. Preschool Development, Ltd. v. City of Springboro, Pennsylvania Coal Company v. Mahon

1/14/04 – Finishing Pennsylvania Coal, the denominator problem, Penn Central Transportation v. City of New York, the constitutionality of the statute, the dissent in Penn Central

1/15/04 – Nollan v. California Coastal Commission, the nexus requirement, Dolan v. City of Tigard, Lucas v. South Carolina Coastal Council

1/16/04 – Back to Lucas, The State ex rel. R.T.G., Inc. et al. v. The State of Ohio et al., the denominator in the vertical plane, the denominator in the horizontal plane, wrapping up RTG

1/20/04 – Just compensation, fair market value, other compensation, factors which are excluded, Almota Farmers Elevator & Warehouse Co. v. United States, the “two-take” theory, United States v. 50 Acres of Land et al., what we’ve been talking about so far

1/21/04 – The law of capture, possession, externalities, external cost, external benefit, the Coase theorem, the tragedy of the commons

1/22/04 – Pierson v. Post, Texas American Energy Corporation v. Citizens Fidelity Bank & Trust Company

1/23/04 – A little more about Texas American, the Ahab problem, p. 21, finders – Armory v. Delamirie, bailments

1/27/04 – The problem on bailments, finders – the holding of Armory, Hannah v. Peel

1/28/04 – More on South Staffordshire and its application to Hannah, constructive possession

1/29/04 – Adverse possession, the elements of adverse possession, Teson v. Vasquez

1/30/04 – Color of title, more on Teson

2/3/04 – Problems on Teson, Charlton v. Crocker

2/4/04 – More on Charlton, claim of right, estates and future interests, terminology, estates

2/5/04 – Fee simple absolute, creation of the fee simple absolute, fee tail, life estate, creation of the life estate

2/6/04 – Adverse possession and estates, the defeasible fees, fee simple determinable, fee simple subject to a condition subsequent, reversionary interests

2/10/04 – Practice problems on 111, Black v. Black

2/11/04 – More on Black, the trust, creation of the trust

2/12/04 – Pigg v. Haley, Woodrick v. Wood

2/13/04 – Reversions, remainders, contingent remainders, vested remainders, practice problems

2/17/04 – More about the practice problems, more on the fee tail

2/18/04 – The fee tail in Ohio, problems on p. 135, the defeasible fees, creation of the defeasible fees, Mayor and City Council of Ocean City v. Taber

2/19/04 – More on Ocean City, Higbee Corporation v. Kennedy, Executor, more on the future interests of the defeasible fees, review problems

2/20/04 – More of the review problems

2/24/04 – Executory interests, the Statute of Uses, practice problems

2/25/04 – More practice problems, rules furthering marketability, destructibility

2/26/04 – More on destructibility of contingent remainders, the Rule in Shelley’s Case, Seymour v. Heubaum

3/2/04 – Problems on the Rule in Shelley’s Case, Doctrine of Worthier Title, the Rule Against Perpetuities, problems on the Rule Against Perpetuities

3/3/04 – More problems on the Rule Against Perpetuities

3/4/04 – More Rule Against Perpetuities problems, North Carolina National Bank v. Norris

3/5/04 – The doctrine of severability, the precocious toddler, Practice problems on the Rule Against Perpetuities

3/9/04 – More practice problems on the rules furthering marketability, judicial reform

3/10/04 – Statutory reform of the Rule Against Perpetuities, options and rights of first refusal, the Uniform Statutory Rule Against Perpetuities, the Illinois statute, practice problems revisited using Illinois and Ohio statutes, final review problems

3/11/04 – Final review problems continued

3/12/04 – More final review problems

3/30/04 – Concurrent ownership, Chosar Corporation v. Owens, the horse farm problem

3/31/04 – Secret severance, Harms v. Sprague, In re Estate of Thompson, Williams v. Studstill, the Michigan bar problem

4/1/04 – Tenancy by the entirety, Schwab v. Krauss, another Michigan bar exam problem, the landlord-tenant relationship – non-freehold estates

4/2/04 – Statutory tenancy, a periodic tenancy problem, Walls v. Giuliani, the lease

4/6/04 – Adrian v. Rabinowitz, Slater v. Pearle Vision Center, Inc., assignment and subleases, Davis v. Vidal, some problems

4/7/04 – Another problem, yet another problem, Julian v. Christopher, servitudes

4/8/04 – License, easement, creation of easements, Willard v. First Church of Christ, Scientist, Pacifica, Cordwell v. Smith

4/9/04 – More on Cordwell, easement by necessity, easements by prescription, Plettner v. Sullivan, irrevocable licenses – Camp v. Milam

4/12/04 – Aztec Limited, Inc. v. Creekside Investment Company, Tract Development Service, Inc. v. Kepler

4/13/04 – Real covenants and equitable servitudes, the requirements for real covenants, Wheeler v. Schad, creation of real covenants, Warren v. Detlefsen

4/14/04 – Implied covenants and the statute of frauds, implied reciprocal negative easements, the ancient lights problem

4/15/04 – Moseley v. Bishop, problems on horizontal privity, touch and concern, policy restrictions on servitudes

4/16/04 – Blevins v. Barry-Lawrence County Association for Retarded Citizens, equitable servitudes versus real covenants, Bishop v. Rueff, termination of servitudes

4/20/04 – El Di, Inc. v. Town of Bethany Beach, private nuisance

4/22/04 – More on nuisance, Blanks v. Rawson, Carpenter v. Double R Cattle Company, Inc.

4/23/04 – More on Carpenter v. Double R Cattle Company, Inc., coming to the nuisance, water, Westland Skating Center, Inc. v. Gus Machado Buick, Inc.

Back to Property

Property Class Notes 4/13/04

Real covenants and equitable servitudes

Let’s say A and B are neighbors and they mutually want to limit the use of their land to residential purposes only.  They make a contract to do so.  For example, A might sell his land to C.  Say B threatens to build a gas station.  Can C enforce the covenant?  Does the benefit of the covenant run to C?  C will say that he’s the successor of interest to A and the beneficiary of B’s promise to only use his land for residential purposes.

On the other hand, suppose A keeps his land and B sells his land to D, who wants to build a gas station.  Can A enforce the covenant?  Does the burden of the covenant run to D?  In other words, is D bound to respect the covenant and use his land only for the stated purpose?

What if both A and B sell their land and the parties are C and D?  Let’s say D is still the one who wants to build the gas station.  Does the benefit of the covenant run to C?  Does the burden run to D?

The answer is that yes, the benefit runs and the burden runs if the requirements for a real covenant are satisfied.

The court in Wheeler refers to real covenants as “parasites” that attach to the land.  That’s not the most complimentary description.  The court intimates that it’s easier for the benefit to run than the burden.  Courts used to be concerned that these covenants reduced the alienability of land.  But Braunstein disagrees, pointing out that these covenants are very, very popular.  If developers are acting rationally to maximize their profit then they think the land is worth more with the covenants than without them.  But courts were concerned that any crazy thing you could contract for could become a real covenant and restrict the use of land.

So why are courts more likely to enforce the benefit than the burden?  Courts would say that benefits increase the alienability of land but burdens decrease the alienability of land.  But the benefit is the reciprocal of the burden.  The benefit is not worth much if there is no one to enforce it against.  These are often reciprocal promises, so we’ll often have to look at how the litigation comes up to find out whether it’s the benefit or the burden that’s running.

The requirements for real covenants

1.     There must be intent on the part of the parties to have the covenant be binding on successors and assigns.  If the subject of the covenant doesn’t exist at the time of the creation of the covenant, the intent must be laid out expressly.

2.     The covenant much “touch and concern” land.

3.     There must be privity of estate.

4.     The statute of frauds must be satisfied.

The most difficult concept here has to do with privity of estate.  There are two kinds of privity of estate: “horizontal” and “vertical”.  These terms are based solely on how law professors diagram these kinds of cases.  Horizontal privity of estate exists between the original covenanting parties.  Vertical privity of estate exists between one of the original parties and an assignee or successor.

The first form of horizontal privity of estate is tenurial, or in other words the relationship of landlord and tenant.  The second form is mutual.  That’s the situation where two people own an interest in the same land at the same time.  They are said to be in privity of estate.  The third form is simultaneous or successive privity of estate, where privity is entered into as a result of a transfer of an interest in land.  So with the neighbors A and B mentioned above, there is no privity of estate and therefore no real covenant is created.  Horizontal privity of estate has been largely eliminated in the United States; notice largely substitutes for it.

Vertical privity of estate means that the successors have the same estate or at least an estate of the same duration.  When you talk about same duration, we’re usually talking about the same estate.  This is the same thing we saw in landlord-tenant law: there was privity of estate between the tenant and the assignee for promises to the landlord that the assignee didn’t himself make.

Wheeler v. Schad

The Hurd group transfers a portion of the mill site to the Doescher group.  Six days later, the parties enter into an agreement whereby they agree to share the cost of constructing an aqueduct that will convey water to their respective mill sites.  They also agree for the future that they will both be responsible for half the cost of maintaining the aqueduct if it needs maintenance or repairs.  That contract is perfectly enforceable between the two parties.

The Hurd group sells to Wheeler, and Schad becomes the successor to the Doescher group by way of mortgage foreclosure.  So is the covenant enforceable by Wheeler against Schad?  Neither of them are original covenanting parties.  Neither Wheeler nor Schad agreed to pay half the price of fixing the aqueduct.  It turns out that the covenant does not run with the land.

The first argument that is made is that the two agreements were really one because they were only made six days apart.  What’s the purpose of that argument?  If this argument were accepted, the plaintiff would be able to say that they were in simultaneous privity of estate.  The court says, however, that at the time of the sale it hasn’t entered anyone’s mind to enter into this covenant.  If they had intended at the time of the sale to enter into this covenant, that perhaps could have satisfied the successive privity of estate requirement.  What’s the issue here?  Is it the benefit that is running here, or is it the burden?  It seems to be the benefit to Wheeler of having help in fixing up the mill.  What if only the benefit was running?  Would Wheeler have been able to enforce the agreement against Doescher’s group?  Doescher hadn’t agreed with Wheeler to maintain the dam!  You must have horizontal privity of estate in order for either the benefit or the burden to run, according to the court.  It is said that even without privity of estate, benefit might run in cases where the burden doesn’t run.  But the court says that we don’t need to get to that issue.

What about the Coke example regarding the “chappell”?  There is privity of estate because D has given a freehold estate to the church.  The chapel is a portion of the manor, and the court says that’s fine because it’s an example of mutual privity of estate because they both own an interest in the estate at the same time.  But that has nothing to do with the relationship between Wheeler and Schad in this case.  That’s what mutual privity of estate is all about.  But the most likely privity of estate to exist is simultaneous or successive.  What purpose does horizontal privity of estate serve?  If we assume that if they had done the agreement five or six days earlier that it would have run, then all we’re left with is that successive privity of estate is basically a roadblock set up by courts to keep covenants from running because the courts distrusted them.

It turns out that Wheeler pays the whole cost of repairing the aqueduct.  It benefits Schad, but Schad doesn’t have to pay anything!

Creation of real covenants

You can create these by express agreement if all of the requirements are present.  They are subject to the statute of frauds (with an exception).  Usually, when you have real covenants affecting large parcels of land, they are creating by recording a plat of a subdivision that divides up land into parcels.  Attached to the plat is a description of all of the restrictions on the land.  If you buy the land, then you take subject to the restrictions.  Another way to do this would be to transfer all the land to a straw and have the straw reconvey it with a deed containing all the restrictions and covenants.  The third, and least reliable way to do it is to insert the restrictions in every deed.  But the problem is that people forget!  The restrictions may be in some deeds, but not in others.  This is what happens in…

Warren v. Detlefsen

We have a sloppy situation here.  There are a substantial number of unrestricted deeds in the subdivision!  What was the restriction?  The restriction seems to have been “for residential purposes only”.  Who was restricted?  The deeds contain covenants restricting the use of the land that is being sold to residential purposes only.  The deeds do not restrict what the builder can do with his property.  If we did, we would just have a contract between the builder and the residents and it would be enforced. The developer wants to use some of his land, which is not subject to an express restriction, for the purpose of building duplexes.  The developer says that business conditions have changed.  Some of the purchasers in the area are upset and sue the owner to stop him from doing that.

There are two issues: (1) Was there a common plan or scheme for the development of this land?  The court says yes and bases its answer entirely on parol evidence.  Such parol evidence can’t be used to modify the written covenants, but it can be used to show a common plan or scheme.  (2) When there is such a common plan or scheme, the restrictions upon the lot holders to the benefit of the developer, that restriction becomes reciprocal by implication.  The developer’s use of his land is restricted too!

Back to Class Notes

Privity of Estate

Resource type: Glossary Item

Status: Maintained

Jurisdiction: USA

Also known as privity of title or privity in estate. In a real estate context, it is the legal relationship between parties whose estates constitute one estate in law. Privity of estate exists when two or more parties hold an interest in the same real property.

In a leasing context, a lease agreement is both a conveyance of an interest in real property and a contract. The landlord and tenant have both privity of estate and privity of contractunder a lease agreement. If the tenant assigns its interest in the lease to an assignee, and then the assignee assumes the tenant's obligations under the lease, as of the effective date of the assignment:

• The original tenant no longer has privity of estate with the landlord and it cannot occupy the premises any more.
• The original tenant most likely retains its privity of contract with the landlord and remains liable for the tenant's obligations under the lease, unless:
  • the landlord expressly releases the original tenant; or
  • there are state or local laws that establish the tenant's privity of contract terminated when the tenant's privity of estate terminated.
• The assignee and the landlord will have privity of estate and privity of contract as of the effective date of the assignment and assumption of the lease.

If, however, the tenant subleases all, or a portion, of its leased premises to a subtenant, then as of the effective date of the sublease:

• The original tenant retains its privity of estate and privity of contract with the landlord.
• The subtenant does not have privity of estate or privity of contract with the landlord.
• The subtenant has privity of estate and privity of contract with the original tenant.

See also privity.

Privity of Estate

Privity of Estate

One of the concepts in our Property class which seems to confuse people is called privity of estate. Essentially, two parties have privity of estate when they can trace their land back to a common parcel. However, the analysis taught in our casebook and in the literature (I think even going back before Llewellyn) uses a two part process: first look for "vertical privity" on each side, back in time to a party who has "horizontal privity" with a common vendor.
Well, there's no reason why the terms "horizontal" and "vertical" make any sense in this context. Our casebook authors suggest that professors have, from time immemorial, drawn the analysis on a chalk board, and have put the original vendor and vendees in a horizontal line, and then drew subsequent conveyances in a vertical line (in some imperfect fashion representing time). I think people get confused because the adjectives "horizontal" and "vertical" have no other specialized meaning in this area of law.
As long as we're making terms up, I'd like to suggest some more descriptive phrases for what's occurring in these transactions. Perhaps the term "horizontal privity" would be better described as privity of estate following partition, privity of covenant (if there is an enforceable covenant), shortened to perhaps "partition privity" or "covenant privity" (a related concept is "contract privity"). A vendor who partitions their parcel and sells part of it to a vendee is in "covenant privity" (or "horizontal privity") with the buyer. Then you could have privity of estate in the wholeor privity of assignment, which might contract to "transfer privity", "conveyance privity", "whole privity", "assignment privity", or something similar. This describes "vertical privity" in which the vendor conveys an entire parcel (without partition) to a vendee.
Any takers? Does these make more sense than "horizontal" and "vertical" privity?

Sec. 391. Privity of estate

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Description

This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .

Sec. 391. Privity of estate

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
14a. Post, Sec. 395, note 17.
15. See ante, Sec. 54(d).
16. Carr v. Lowry's Adm'x, 27 Pa. St. 257; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 23 L. R. A. 396, 46 Am. St. Rep. 545, 36 N. E. 672; Sexauer v. Wilson, 136 Iowa, 357, 14 L. R. A. (N. S.) 185, 15 A. & E. Ann. Cas. 54, 113 N. W. 941; Clark v. Devoe,
124 N. Y. 120, 21 Am. St. Rep. 652, 26 N. E. 275; Bolles v. Pecos Irrig. Co., - N. Mex. - , 167 Pac. 280.
16a. See cases cited post, Sec. 393, note 76.
17. Spence v. Mobile, & M. Ry. Co., 79 Ala. 576; H&zlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; Lyon v. Parker, 45 Me. 474; in connection with covenants, other than in leases, 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 Accordingly, except perhaps in two or three states,19 the requisite privity exists in the case of 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 may be bound by the covenant;20 and it also exists
Hurd v. Curtis, 19 Pick. (Mass.) 459; Morse v. Aldrich, 19 Pick. (Mass.) 449; Bronson v. Coffin, 108 Mass. 175, 118 Mass. 156, 11 Am. Rep. 254; Sharp v. Cheatham, 88 Mo. 498; Wheeler v Schad, 7 Nev. 204; Cole v. Hughes, 54 N. Y. 444; Nye v. Hoyle, 120 N. Y. 195, 24 N. E. 1; Easter v. Little Miami R. Co., 14 Ohio St. 48. Town of Middletown v. Newport Hospital, 16 R. I. 319, 15 Atl. 800; Hurxthal v. St. Lawrence etc., Co., 53 W. Va. 87, 97 Am. St. Rep. 954, 44 S. E. 520.
18. Gilmer v. Mobile, & M. R. Co., 79 Ala. 569; Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53; Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198; Indianapolis Water Co. v. Nulte, 126 Ind. 373, 26 N. E. 72; Louisville, H. & St. L. Ry. Co. v. Baskett, - Ky. -, 121 S. W. 957; Smith v. Kelley, 56 Me. 64; Burbank v. Pillsbury, 48 N. H. 475; Harsha v. Reid, 45 N. Y. 415; Lawrence v. Whitney,
115 N. Y. 410, 5 L. R. A. 417, 22 N. E. 174; Louisville & N. R Co v Webster, 106 Tenn. 586, 61 S. W. 1018.
19. Post, this section, note 2820. Fitch v. Johnson, 104 111. Ill; Scott v. Burton, 2 Ashm. (Pa.) 324; Crawford v. Witherbee, 77 Wis. 419, 9 L. R. A. 561, 46 N. W. 545; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335; Haz-lett 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 might be regarded as involving the grant of an easement. See ante, Sec. 357.
It is to be observed that the burden of the covenant does not necessarily pass with the land inconnection with which the privity arises; that is, in the case referred to in the text, the privity arises inconnection with the land first conveyed, while the burden of the covenant runs with that in the more ordinary case of a covenant by the grantee of land as to something to be done or not to be done by him on the land conveyed, so that his subsequent transferee may 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.21 And a covenant made after a conveyance, though between the parties thereto, has been held not to be supported by such privity of estate that the burden will run.22
The exact basis of this requirement that the parties to the covenant stand in the relation of grantor and grantee in order that the covenant may run, does not clearly appear .22a As before indicated, by some authorities, such a requirement exists in order that even the benefit of a covenant may run.23 In the case of a covenant in a lease, the running of the covenant is ordinarily, as we have before seen, closely associated with the existence of a privity of estate between the interested parties,24 and this may have 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, 21 Am. St. Rep. 652, 26 N. E. 275, as explained in Dexter v. Beard, 130 N Y. 549, 29 N. E. 983.
21. Hurd v. Curtis, 19 Pick. (Mass.) 459; Lawrence v. Whitney, 115 N. Y. 410, 5 L. R. A. 417, 22 N. E. 174. In Pennsylvania it is held that the requirement of privity is subject to exceptions, and that, without any such privity, covenants by owners of separate tracts of riparian land as to the use of the waterpower will bind their assignees. Horn v. Miller, 136 Pa. 640, 9 L. R. A. 810, 20 Atl. 706. To the sameeffect, see Weill v. Baldwin, 64
Cal. 476, with which, however, Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53, does not appear to be in accord.
22. 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 Covenants, 198; Hills v. Miller, 3 Paige (N. Y.) 254; Robbins v. Webb, 68 Ala. 393 (semble.)
22a. See a suggestive editorial note in 15 Columbia Law Rev. at p. 55.
23 See ante, Sec. 389, note 11.
24. Ante, Sec. 56.
Operated to suggest that in no case can the burden of a covenant run in the absence of such privity.25 Privity of estate, however, as between a grantor and grantee in fee simple has a meaning different from that which it has as between lessor and lessee, and their successors in interest. In the latter case, privity of estate means the simultaneous ownership by both parties of estates in the land, while in the former case it can mean merely succession in ownership. It was occasionally used in the latter sense by Coke,26 and perhaps other early authorities,27 particularly in connection with the law of warranty, and conceding the necessity of privity of estate in order that the burden of a covenant, not contained in a lease, may run with the land, it was reasonable to regard this requirement as satisfied by the succession in ownership which was included under this designation by the earlier writers. In at least two states the conveyance of an estate in the land, as distinguished from the grant of an easement therein,28 has been held not to furnish the privity of estate necessary to the creation of a covenant which will run with the land,20 the theory being, apparently, that a mere succession in interest is not sufficient for right of way,32 will bind a subsequent transferee of the land or of the easement. 33 And the grant of an easement as regards the. construction and utilization of a party wall will support the running of a covenant as to compensation for the use of the wall.34
25. In Hurd v. Curtis, 19 Pick. 459, in which the necessity of such privity is asserted in reference to a covenant by a fee simple owner, not in a lease, the court refers to Webb v. Russell, 3 Term. Rep. 402, which involved a covenant in a lease.
26. Co. Litt. 271a, 272b, 273, 352a, 385a. In Whittingham's Case, 8 Co. Rep. 84, it is said "there are three manner of privities, soil, privity in blood, privity in estate, and privity in law. * * * Privities in estate are, as joint tenants, husband and wife, donor and donee, lessor and lessee."
27. See the opinion of Holmes, C. J., in Norcross v. James, 140 Mass. 188, 2 N. E. 946, and Holmes, "The Common Law," 395-400.
28. Post, this section, note 30.
29. Los Angeles Terminal Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308; Berryman v. Hotel Savoy Co., 160 Cal. 559, 37 L. R. A. (N. S.) 5, 117 Pac. 677; Norcross v. James, 140 Mass. 188, 2 N. E. 946. In the latter case it is said by Holmes, J., in delivering the opinion of the court, that the statement that there must be "privity of estate between the covenantor and the covenantee, only means that the covenantthis purpose, but that the simultaneous existence of two distinct interests in the land, in the covenantor and covenantee respectively, is necessary.29a
- 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.30 Accordingly, it has been held that the burden of a covenant made upon the grant of a water privilege,31 or upon the grant of a railroad must impose such a 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 accords with the view of the subject elsewhere presented by this learned jurist, (see "The Common Law," at p. 388 et seq.), but does not accord with the ordinary judicial view. With this statement may be compared a statement emanating from the same court at a much earlier period. "The stipulations in the indenture cannot be construed as grants and covenants at the same time. If they were grants, then an action of covenant is not the proper remedy for the violation of them; and if covenants, the assignee is not bound for want of privity of estate between the parties." Per Wilde, J., in Hurd v. Curtis, 19 Pick. (Mass.) 459.
29a. In Morse v. Aldrich, 19 Pick. (Mass.) 449, above cited, in which the running of a covenant created in connection with the grant of an easement, was apparently first recognized, the decision appears to be based on the analogy of a lease, it being said that "privity exists between the grantor and grantee, where a grant is made of any subordinate interest in land; the reversion or residue of the estate being reserved by the grantor, all covenants in support of the grant or in relation to the beneficial enjoyment of it, are real covenants and will bind the assignee."
30. Gilmer v. Mobile & M. Ry. Co. 79 Ala. 569; Sterling Hydraulic Co. v. Williams, 66 111. 393; Fitch v. Johnson, 104 111. 1ll; Bronson v. Coffin, 108 Mass. 156, 11 Am. Rep. 335; Lincoln v. Bur-rage, 177 Mass. 378, 52 L. R. A. 110, 59 N. E. 67; Crawford v. Witherbee, 77 Wis. 419, 9 L. R. A. 561, 46 N. W. 545. A covenant created in connection with an casement was held to run, even though not entered into till after the grant of the easement. Morse v. Aldrich, 19 Pick. (Mass.) 449. Contra, Smith v. Kelley, 56 Me. 64; Wheeler v. Schad, 7 Nev. 204. -04.
31. Farmers' High Line Canal & Reservoir Co. v. New Hampshire Real Estate Co., 40 Colo. 467, 92 Pac. 290 (semble); Fitch v. Johnson, 104 111. 111. Nye v.

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