Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-03
CASE OF FORD AGAINST 0. E.
TURNS ON NICE POINT OF LAW
is AGAINST PUBLIC POLICY
OREGON SUPREME COURT DECISIONS

Text Published BY Courtesy Of p A. Turner, Reporter Of the
Supreme Court

4 ONANA oNoNlOh III NAAAo NANAhANy
consume additional time, and delay
the freight and passenger traffic on
the line; that the income to be de-
rived from such station would not
equal the actual expense of stopping
and starting the trains, and that such
requirement would work a hard
ship and injustice to defendant. That
the consideration of $500 paid for the
land for the right of way was the
full value thereof. 1t is further con-
tended on the part of defendant that
the Necessities and convenience" of
plaintiff, and all the inhabitants in
the vicinity Of his land, have, since
the operation of the railroads, ade-
quately been served by the stations
of Chemawa and Quinaby; that at no
time has there been enough passen-
ger or freight business to warrant
the establishment of any more sta
tions on this part of the line.
1t appears that Tilmon Ford was
for many years and up to the time of
his death, the owner in fee of the
lands described in the deed, through
which the right of way extends. He
died March l, 1908, and since his
death by his devise the plaintiff,
Frank Ford, has been the owner and
in possession of the lands; that such
lands are in sparsely settled COM
munity; that the private roadway on
the premises leads to a county road,
which in turn leads to Chemawa and
Quinaby stations, and that except by
this private road the crossing re-
ferred to is inaccessible.
Bean, ]. We deem it better to con-
slider the facts alleged in the COM
plant, combined with the evidence in
the case. 1t is argued upon the part
of defendant that, as the land was
devised to plaintiff by Tilmon Ford,
the covenantee, the covenant is
merely personal to Tilmon Ford;
that the covenant extends to a thing
not in esse, and does not run with
the land, and for this reason the
plaintiff cannot maintain this suit,
citing authorities based upon Spen-
GERS Case, 5 Coke, 16 a, 1 Smith
Lead. Cas-, TIA, Mote II Cyc., 1OSO,
from which we quote as follows:
Spencer demised a house and lot to
S. for years. s. covenanted for him
self, his executors and administra-
tors, that he, his executors, admins
traitors, or assigns, would build
brick wall on part of the land dem
ised S. assigned the term to j. and
j. to Clark. Spencer sued Clark for
breach of the covenant to build the
wall. The court by the first resolve
held that a covenant only bound the
assignee when it was concerning
thing in esse, parcel of the demise,
not when it related to wall to be
built. By the second resolve, they
| held that if the covenant had bound
the assigns" by express words, it
would have bound the assignee, al
though it was for a thing to be new
ly made, as it was to be upon the
thing demised; but that if the cove
nant was for a thing to be done col
lateral to the land, and did not touch
or concern the thing demised, in any
sort, as if it were to build a house
upon other lands of the lessor, the
assignee should not be charged, al
though the covenant was for the COW
enantor and his assigns The two
principles thus settled have always
been acknowledged as law that the
assignee when not named is not
bound by a covenant, except it re-
lates to a thing in esse at the time;
and that when named, he is not
bound by a covenant collateral to
the land but only for things to be
done on or concerning the land
In Akin V. Albany V. & c. R. R.
Co.. 26 Barb, IN. ", 2S9, 293, it is
said "A covenant which is beneficial
to, or binding on, the owner, as own
er, and on or to no other person,
runs with the land, Getting
Barn & Adol. II; 2 Kern, 1922
Yet it is also held that
where the thing covenanted for,
though not in esse touches or con-
Germs the thing demised, the cove
nant does run with the land" (Cit-
ing DEMO, 2S5)
Covenants are to be regarded as
! affecting the land, though not direct
| ly to be performed upon it, provided
they tend to increase or diminish
its value in the hands of a holder"
IL eye, 1851, citing Van Rensselaer,
V, Smith, 81 Barb, 1O4,
In order that covenant may run
with the land, that is. that its bene-
ht or obligation may pass with the
ownership, it must respect the thing
granted or demised, and the act COW
enanted to be done or omitted must
concern the land or estate conveyed.
Whether a covenant will or will not