Opinion
November 11, 1908.
Donald F. McLennan, for the appellants.
William Nottingham, for the respondent.
In May, 1899, the appellants, as executors, acting within the scope of their authority, entered into a written agreement with the Syracuse, Lakeside and Baldwinsville Railroad Company, a domestic street surface railway corporation, whereby they granted a right of way across the farm of their testator. In consideration of the grant the railroad company agreed to perform certain obligations, which are unimportant in this case; and further agreed to issue annually to the parties of the first part during their several lives a pass over its railway, and also another annual pass to the tenant on the said farm, to be continued during the ownership of the plaintiffs. The agreement also provided that if the railroad company should "fail to keep and perform the conditions" expressed therein "the rights and privileges hereby conferred shall revert to the parties of the first part, their successors, heirs and assigns."
The grantee constructed its railway and performed its undertakings and furnished the passes while it operated said railway. In September, 1905, the defendant, a railway corporation, acquired title to the railroad and franchises and rights of said original grantee by purchase at a mortgage foreclosure sale and has since been operating the said railway, and refused to honor the passes held by said plaintiffs or their tenant on said farm.
This suit in equity is for the specific enforcement of said agreement by requiring the defendant to issue passes in accordance with its terms. We think the action cannot be maintained.
The parties themselves distinctly enumerate what covenants should run with the land. The contract contains this provision: "It is agreed that the covenants and conditions above expressed shall be considered as conditions precedent to the enjoyments of the grant herein made, and as covenants running with the lands so far as they relate to the erection and maintenance of the fences, gates, cattle passes and crossovers herein mentioned." The granting of passes, it will be observed, is excluded from the list. Even if the parties could change by agreement a distinctively personal covenant to one charged upon the land and hence binding upon subsequent grantees, which I very much doubt ( Wilmurt v. McGrane, 16 App. Div. 412, 417), yet the contract by its terms having recited what are to be deemed covenants running with the land, all others must be barred. ( Baker v. Ludlow, 2 Johns. Cas. 289; O'Neil v. Van Tassel, 137 N.Y. 297. )
The pass privilege was a personal covenant and ceased to be effective when the original grantees ceased to own and operate the railroad. ( Hasbrouck v. New Paltz, etc., Traction Co., 98 App. Div. 563; People v. Rome, W. O.R.R. Co., 103 N.Y. 95, 106; Dickey v. K.C. I.R.T.R.R. Co., 122 Mo. 223.)
A covenant in order to run with the land "must respect the thing granted or demised, and the act covenanted to be done or omitted must concern the land or estate conveyed." (11 Cyc. 1080; Dolph v. White, 12 N.Y. 296, 301.)
A covenant of this kind is annexed to the freehold, enhancing its value or benefiting it in some way. The covenant to build and maintain the cattle pass is attached to the land and adds to its enjoyment, and its maintenance will continue to add to the convenience and value of the farm as long as the railroad is operated. The incidental privilege of riding free on the cars passing over the road does not "touch or concern the land."
The covenants attached to the right of way, such as the maintenance of the cattle passes, must be performed by the defendant. It did not by purchase at the foreclosure sale become chargeable with the payment of the debts of the mortgagor or obliged to assume its personal obligations. ( Hoard v. C. O. Railway, 123 U.S. 222.)
It is claimed that by the terms of the judgment the defendant became liable to carry out the pass covenant. The judgment permitted the purchaser on the foreclosure sale within ten days after the premises were struck off to disavow "any contract or lease, or the rights thereunder, which are recited herein as a part of the property to be sold under and pursuant to this judgment." The immunity of the plaintiffs and their tenant from paying fare was not "a part of the property to be sold" and was not recited in the judgment. The permission to disavow did not relate to a personal privilege like that claimed by the plaintiffs. Evidently something more substantial and of which the purchaser would have record notice was referred to.
We are not holding that the plaintiffs are remediless, only that the present action cannot be maintained.
The judgment should be affirmed, with costs.
All concurred, except McLENNAN, P.J., not voting.
Judgment affirmed, with costs.