
    Clark v. Devoe.
    
      (Supreme Count, General Term, First Department.
    
    May 18, 1888.)
    Covenants—Running with the Land—Agreement not to Build on Adjacent Lot.
    A covenant in a deed by which the grantor, being also the owner of the adjacent lot, covenants “ for himself, his heirs, executors, administrators, and assigns, that he will not erect, nor cause to be erected, ” on said adj acent lot, any building which shall be a nuisance, is not a covenant which could be enforced against a subsequent grantee of the adjacent lot, and the grantor is therefore not personally liable for damages for a nuisance erected on the adjacent lot by such grantee.
    Appeal from circuit court, Yew York county.
    Action on covenant, by Sarah Charlotte Clark against Moses Devoe. Verdict and judgment for plaintiff, and defendant appeals.
    Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.
    
      Freling H. Smith and A. II. Stoiber, for appellant. • A. /. Dittenhoefer, for respondent.
   Van Brunt, P. J.

The facts, so far as it is necessary to state them in the disposition of this appeal, appear to be as follows: In 1857 the defendant was the owner of two plats of ground in this city, with the buildings thereon, called “Nos. 22 and 24 Tenth Street,” and in that year conveyed one of said lots, with the building thereon, (No. 24) to one Bobert Clark, by a deed containing the following covenant: “And the said Moses Devoe, being also the owner of the adjoining lot, known and distinguished as ‘ Number 22 Tenth Street,’ for himself, his heirs, executors, administrators, and assigns, does hereby covenant to and with the said party of the second part, his heirs, executors, administrators, and assigns, that he will not erect, or cause to be erected, on said lot number 22 Tenth street, any building which shall be regarded as a nuisance, or which shall be occupied for any purpose which may render it a nuisance.” The plaintiff acquired title to said house and lot from a grantee of Robert Clark in December, 1881. In June, 1863, the defendant sold and conveyed the other lot and building, Mo. 22 Tenth street, to James Boarman Johnston, who immediately thereafter commenced the erection of the stable now on said lot mentioned in said deed to Clark as No. 22 Tenth street. This stable, it is claimed by the plaintiff, is, and has been almost ever since its construction, used in such a manner as to render it a nuisance, and she further alleges that she has been greatly damaged in the use of the premises occupied by her, and that the defendant is liable to her for such damages because of the covenant in his deed to Clark above mentioned. The learned judge in the court below held that the maintenance of a nuisance upon lot Mo. 22 by Johnston, the grantee of the defendant, was a breach of the covenant contained in the deed to Clark, and that the defendant was liable in damages in an action at law therefor. It is to be observed that the language of the covenant is that “he will not erect, or cause to be erected, on said lot number twenty-two Tenth street, any building which shall be regarded as a nuisance, or which shall be occupied for any purpose which may render it a nuisance. ” It is conceded that he (the covenantor) has not violated the covenant; but it is claimed, as he covenanted for himself, his heirs and assigns, that he would not erect, or cause to be erected, that he must have intended to covenant that neither he nor they would do the thing covenanted against. It is to be observed that the covenant is contained in the grant of lot Mo. 24, and that the grantee of lot Mo. 24 has made no covenant whatever in respect to the use of lot Mo. 24; and thus, if the plaintiff’s construction of this covenant is to prevail, the defendant, the owner of two lots, upon the conveyance of one, intended to make the lot of which he remained the owner subservient forever to the lot conveyed in respect to erections and uses, and has exacted no protection in respect to his own lot from erections or uses to which the lot conveyed might be devoted. Under the facts of this case, can the plaintiff maintain an action, because of the breach of the covenant contained in the deed in question, against the present owner of lot Mo. 22 ?

If, by the covenant, the covenantor covenanted, not only against his own acts, but against these of his heirs and assigns, the covenant was one running with the land, and could be enforced against the present owner of lot No. 22, (Hills v. Miller, 3 Paige, 254; Trustees v. Cowen, 4 Paige, 514,) and lot Mo. 22 has been rendered subservient to this covenant; and, as the deed creating the right was recorded before the recording of the deed to the grantee of Mo. 22, such grantee has had constructive notice of this subjection of the lot conveyed to him to lot Mo. 24. It is no answer to this suggestion to say that the covenant is simply against a nuisance, and that without any covenant an action might be brought against the present owner for maintaining a nuisance by any person injured, because this action is founded strictly upon a breach of the covenant contained in the deed from Devoe to Clark, and is to be treated as though the covenant restricted the doing upon lot No. 22 of that which otherwise would have been a perfectly legal act. If this covenant had been against the erection of a tenement house upon lot Mo. 22, we do not think that the court would have entertained for a moment a bill to restrain a subsequent grantee of lot Mo. 22 from the erection of a tenement house thereon, because it would have held that the grantee of Mo. 22, upon reading the covenant contained in the deed in question, would have had the right to conclude that the covenant was merely personal, and that there was no intention to make lot Mo. 22 forever subservient to lot Mo. 24. If an action would not lie against the owner of lot Mo. 22 for a breach of the covenant, then no action will be against the defendant. The position of the plaintiff requires, and such is the claim made on his behalf, the covenant to be construed as one upon the part, not only of the defendant, but upon the part of his grantees, to which each grantee became a party upon his receipt of a conveyance of the servient tenement. This would be giving a scope to the covenant which carries its effect far beyond what the language used requires, and beyond what the gantees of lot No. 22 had a right to-assume in accepting a conveyance of that lot,—an incumbrance affecting lot No. 22 for the sole benefit of lot No. 24; and in a conveyance of lot No. 24, into which a purchaser would hardly look for incumbrances upon lot No. 22, will not be inferred by a forced construction of the covenant, or an amplification of its language beyond its natural meaning.

The learned counsel for the respondent calls our attention to the case of Railway Co. v. Bull, 47 Law T. 413, which appears to conflict with the foregoing conclusion, but the facts of the cases are so different that the ordinary rules of construction would require a different interpretation, although the words used in the covenant are remarkable for their similarity. The railway company conveyed certain lands to one Q., who covenanted for himself, his heirs, executors, administrators, and assigns, that he, the said Q., will not erect or build any erection or building of any kind whatsoever within 10 feet of the railway or viaduct of the plaintiff, without their permission in writing first had and obtained. Q. conveyed the premises without changing these conditions, and his grantee violated the covenant by building within the prohibited 10 feet. The railway company commenced an action to compel the pulling down of the buildings erected in violation of the covenant, and to restrain the further violation thereof. The court held that as to that covenant, that he (the covenantor) meant to pledge his assigns equally with himself not to commit the breach. No reason is given for this conclusion, but it is obvious that this was a correct interpretation of the covenant in that case. The covenantees were the grantors of the very land to which the covenant related. The covenantors were the grantees of that land. It was evidently their intention to make a covenant running with the land, which should in some respects restrict the use of a portion of the land conveyed adjacent to the railway of thegrantors, and this restriction was embraced in the very source of the title of the violator of the covenant. There was the evident intent to make 10 feet of the land conveyed subservient to the adjacent railway, for the benefit of such railway. This intent was plain and unmistakable; and, being contained in the very source- of title, there was no hardship in its enforcement. In the case at bar the position of the parties is very different, and it should require a very clear case to make the owner of lot No. 22 liable for the violation of a covenant contained in lot No. 24, of which he could have no actual notice, but of which he had constructive notice by the record of the deed of lot No. 24.

We are of the opinion, therefore, that no violation of the covenant in question was established, and that the judgment must be reversed, and a new trial ordered, with costs to the appellant, to abide the event.

Macomber and Bartlett, JJ., concur.  