
    Charles F. Nye et al., App’lts, v. Timothy Hoyle et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 19, 1887.)
    
    1. Easement—When attaches to servient estate.
    One Noadiah Moore owned the land through which a stream flowed and had erected a dam. thereon which supplied water power to his mill. Certain others, Pliny and Amasa C. Moore, owned land below, on which they too had a dam and mill. For the purpose of constructing a new mill privilege, Noadiah re opened the canal, which passed through his land to his mill; and Pliny and Amasa C. constructed through their land a new canal from the end of Noadiah’s canal to the lower point where the power was to be used, and certain land was conveyed to Noadiah near the end of the new canal. As to the maintenance as well as to the construction of these several parts needed for the new privilege, it was agreed that Noadiah and his heirs and assigns should maintain, repair and rebuild the dam and the old ditch which were on his land, and that Pliny and Amasa 0., their heirs and assigns, should maintain and keep in repair the new ditch, which was on their land. Meld, that the agreement that the dam should be repaired by Noadiah, his heirs and assigns, attached the burden of repairing upon the old privileges; that is, on the servient estate, and not on the new.
    '3. Same—When runs with the land oe servient estate.
    
      Meld, That an easement over Nodiah’s land was granted. That the covenant to repair and rebuild the things necessary for the enjoyment of that easement, was for the protection and support of that easement, and, therefore, ran with the land.
    Appeal from a judgment in favor of defendants.
    The complaint alleges that a certain dam had been destroyed; that a dispute arose between plaintiffs and defend.ants as to their-respective obligations to rebuild; that it was deemed best that the "dam should be rebuilt, without waiting for judicial determination of that question; that an agreement was made between the parties that Plffs should, rebuild, and that the defendants should repay one-half the expense; that the plaintiffs have rebuilt, and that defendants refuse to repay.
    The defendants for answer, among other things, set up the written contract as to rebuilding, and deny any liability on their part to rebuild, and claim that plaintiffs are bound to rebuild at their own expense. They set up various facts which, they claim, show plaintiffs’ liability.
    The written contract recites an agreement between the parties to submit, without action, the controversy as to the expense of rebuilding, and thereupon states that the plaintiffs have agreed to rebuild, each of the parties bearing one-half of the expense; and then that, on a judicial determination of the rights of the parties, if either has paid more than the proper share the excess shall be refunded; and also that, if the submission without action should fail, suit may be brought by either party against the others, and the determination thereof shall govern respecting the refunding-the expense" as aforesaid.
    On the trial it appeared that this contract had been duly executed, and that the plaintiffs had rebuilt the dam in question at the expense of $1,873.33. There is no dispute-about the facts. The only question is whether, on the facts, the defendants should contribute, and, if so, how much.
    The rights of the parties take their origin in a contract made May 13, 1835, between Noadiah Moore of the first-part, and Pliny Moore and Amasa Moore of the second part. It recites that Noadiah Moore is the owner of a certain water privilege, ditch, dam, pond and land; and Pliny Moore and Amasa C. Moore are the owners of the lands with the river and privileges thereto appertaining. It appears that the lands of Pliny and Amasa 0. are below those of Noadiah; both being on the Big Chazy.
    The contract recites that it is contemplated by the parties to constitute and create a new water privilege, which will require a portion of the property belongihg to the parties, and will have a preference over the present water privileges of the parties.
    The contract continues that it is, therefore, agreed that a new mill and water privilege shall be made and created below the mills of Pliny and Amasa 0., and the water is to be taken from the mill pond of Noadiah through his canal and through the lands of the parties, as may be most convenient and useful. And so much of the lands, dam, ditch, canal and lands as is necessary for making and repairing the new ditch or canal shall be attached to the water privilege hereby created and belong to the parties as thereinafter mentioned.
    It is further agreed therein that, “the dam of the said party of the first part shall be kept and maintained tight and in good repair by the party of the first part.” The ditch to the saw mill is to be widened by the party of the first part. “ And the ditch to be so widened and afterwards maintained, and the said dam to be maintained, repaired and rebuilt, if necessary, at the sole expense of the party of the first part, his heirs and assigns.”
    A new ditch from the ditch aforesaid to the top of the bank opposite the cove was to be made, maintained and kept in repair by the parties of the second part, their heirs and assigns.
    The party of the first part was to have and own a lot of land of two acres and one-half near the new water privilege.
    The party of the first part was to have one-third and the party of the second part two-thirds of the water privilege thus created.
    Noadiah Moore, in January, 1836, conveyed to Freeman Nye and Bartlett Nye a piece of land of five acres lying west of, and adjoining, the mill pond and old canal with certain water rights. No portion of the dam or pond is included within the metes and bounds of this land. The deed contains a covenant that the grantees, their heirs and assigns, shall be charged with one-half of the expense of the dam to keep up the same, and of enlarging the present ditch as contemplated in me contract, “ and as already begun.”
    Subsequently in 1851, Noadiah Moore conveyed to the same grantees an undivided one half of the two and one-half acre piece, and an equal one-half of all the rights in the new water privilege. This land and these rights now belong to plaintiffs.
    Noadiah Moore died February, 1859, and by devise, the other undivided half of the two and one-half acres, and of the rights of the new privilege went to his sons Pliny N. and Samuel M., and the same through mesne conveyance* were owned by defendant at the commencement of this action.
    He, also, devised to said Pliny N. and Samuel M. all his interest in the water privileges referred to in the agreement of May 13, 1835, as “the old and former privileges,” being the portion not conveyed to the Nyes in January, 1836. At the commencement of this action this right, through mesne conveyance, belonged to the plaintiffs. At the commencement of this action the defendants owned, through mesne conveyances, that portion of the new privilege which was by the agreement of 1836, acquired by Pliny and Amasa 0. Moore; being two-thirds.
    
      Palmer, Weed, Kellogg & Smith, for app’lts; Waldo, Grover & McLaughlin, for resp’t.
   Learned, P. J.

The meaning of the agreement of 1835 seems plain. Noadiah Moore owned the land through which the stream flowed and had erected a dam thereon, which supplied water power to his mill. Pliny and Amasa 0. Moore owned land below, on which they too had a dam and mill. All the parties desired to construct a mill privilege still further down, for the use of both; one-third to belong to Noadiah, two-thirds to Pliny and Amasa 0.; which new privilege should have preference over the old. For this purpose it was necessary that Noadiah should deepen the canal which passed through his land to his mill, and that Pliny and Amasa 0. should construct through their land a new canal, from the end of his, to the lower point, where the power was to be used. And as Noadiah had no land ■at that point, it was also necessary that they should convey him a piece near the end of the proposed new canal.

Then, as to the maintainance as well as to the construction of these several parts needed for the new privilege, it was agreed that Noadiah, his heirs and assigns, should maintain, repair and rebuild the dam and the old ditch which were on his land; and that Pliny and Amasa 0., their heirs and assigns, should maintain and keep in repair the new ditch which was on their land.

These obligations, which the parties to the agreement thus severally undertook, were clearly for the benefit of the new water privilege, in which each party had an interest, to the extent above mentioned; and so, for the benefit of the land which (after the agreement) they severally had, upon which the new water privilege could be used.

These obligations were intended to be perpetual, and to be a burden running with the land upon which the work was to be done and maintained. The heirs and assigns of Noadiah, mentioned in the agreement, are his heirs and assigns of the property, on which the work was to be done; that is of the property where the dam stood, and also of that where the old ditch had been.

That burden may have been modified and extended by the deed from Noadiah to Freeman and Bartlett Nye of" January, 1836. But that is not material here.

We might justly say that an easement was created on these lands of Noadiah, for the benefit of the owners of the water privilege below. One of these owners, it is true, was Noadiah himself. But the stream of water which formed the water privilege was one thing, although there were two parties who had several interests m it. And not only was an easement in the strict sense imposed, but an active obligation to repair and rebuild—an obligation such as has sometimes been called a spurious easement.

But the plaintiffs insist that the agreement that the dam should be repaired by Noadiah, “his heirs and assigns,” did not attach the burden of repair upon the old privileges, but upon the new. In this view, the “heirs and assigns” are those who have acquired Noadiah’s rights in the easement, not in the servient, estate. If, however, that had been the meaning of the parties, the agreement would have said that the respective owners of the new privilege should, in proportion to their ownership, forever keep in repair the dam, the old ditch and the new canal. Such is not the language of the agreement. On the contrary, it specifies just what easement is to be created over the several lands of the respective owners; and just what each owner is to do in the way of repair and reconstruction.

The plaintiffs further insist that this covenant of Noadiah does not run with his land, so as to impose the burden of repair on its present owners. It is usually said that covenants do not run with the land, unless there be a privity of estate between covenantor and covenantee. And it has been remarked that the meaning of " privity of estate ” is not easy to define. 2 Wash. Real Property, 285. But it is said in Bronson v. Coffin (108 Mass., 175), that an interest in the nature of an easement in the land is sufficient to make a covenant for the support and protection of that interest run with the land charged. See Cooke v. Chilcott (3 Ch. Div., 694); Lindeman v. Lindsey (69 Penn. St., 93); Noonan v. Orton (27 Wis., 300); Norman v. Wells (17 Wend., 136).

In the present case an easement over Noadiah’s land was granted, viz.: the right to take the water from his dam and through his old ditch. The covenant was for the protection and support of that easement, for it was to repair and rebuild the things necessary for the enjoyment of that easement. It ran, therefore, with the land.

And the obligation on the plaintiffs has the more equity, inasmuch as they took title chargeable with knowledge of the covenant. The conveyance of January, 1836, from Noadiah to Freeman and Bartlett Nye, is made subject to reservation, etc., mentioned in the agreement of 1835, and the grantees assume one half of the repairs as contemplated in that contract. This conveyance included (it seems by the map) a part of the old ditch and the old mills of Noadiah. And though the agreement therein, that the grantees ■assumed one-half the repairs, of itself, might be only personal, yet it gives abundant evidence of the knowledge by the grantees of the existence of the contract of 1835 and of its terms. Phœnix Ins. Co. v. Cont. Ins. Co., 87 N. Y., 400; Whitney v. Union R. W. Co., 11 Gray, 364.

We think the plaintiffs show no ground to recover against defendants. The judgment is affirmed, with costs.  