Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-03

on whether il tends directly OF nee
lessarily to enhance its value or rem
der it more beneficial and conven-
] lent to those by whom it is owned
or occupied, for if this be the case,
every successive assignee of the
land will be entitled to enforce the
covenant.
"A covenant which may run with
the land can do so only when there
is a subsisting privity Of estate be-
tween the covenantor and the cove
nantee, that is, when the land itself,
or some estate or interest therein,
even though less than the entire
title, to which the covenant may at
tach as its vehicle of conveyance, is
transferred; if there is no privity of
estate between the contracting par
ties, the assignee will not be bound
| by, nor have the benefit Of, any cove
nants between the contracting par
ties, although they may relate to the
land he takes by assignment or pur-
chase from one of the parties to the
contract. In such a case the cove
nants are personal and collateral to
the land. On the other hand if there
is a privity of estate, a covenant
which may run with the land will
pass as an incident to a subsequent
conveyance. But if any estate
passes, so as to create privity, it is
sufficient to carry the covenants, and
the decided weight of authority is to
the effect that covenants run with
incorporeal as we'll as corporeal her
editaments." IL Cyc, 1880, 1888.
See also Gilmer v. Mobile & NJ. Ry.
Co., 70 Ala, 569, 572; Taylor V.
Florida E. c. Ry. Co., 54 Fla, 635.
1t is said in Duffy V. New York &
Fl. R. R. Co., Hit, 1876, quoted from
by Mr.. Justice Moore in Brown v
Southern Pacific Co., SO Or, 12S,
But this nice distinction, originat-
ing at time when it was necessary
to use the word heirs, or other
words of inheritance, in a convey
ance, in order to grant or convey an
estate in fee, cannot be now said to
exist, as in Norman V. Wells, II
Wend, 1856, it was determined that
those covenants run with the land,
which are made touching or concern
ing it, and affect its value, and are
not confined to those which relate to
some physical act or omission upon
1t. AS said by Mr.. Justice Moore in
that case, the word heirs" is not
now necessary to create or convey
an estate in fee simple. All of the
grantor's estate passes by his deed
unless the intent to convey less es-
tate appears by express terms, or is
necessarily implied from the Ian
guage of the deed. L. o. L., Sec
71O3. See also Ruhnke v. Aubert
ll3 Pac., 3S, in which Mr.. Justice Nc
Bride, in constituting the reservation
in the deed of right of way for an
irrigating ditch, says: "In determin-
ing whether a right granted is ap-
purtenant or in gross, courts must
consider the terms of the grant, the
nature of the right, and the sur
rounding circumstances, giving eff
tect, as far as possible, to the legal
ly ascertained intention of the par
ties, but favoring always the con-
struction of the grant as of an ease
ment appurtenant rather than of a
right in gross. Getting 10 A. & E.
e., 4O5; Wash. on Ease, ed, As;
Stovall " Coggins Granite Co., 116
Ga, 976, AZ S. E., 1881 And the rule
that the rights of parties to a deed
must be ascertained from it's words
is in cases of this kind subject to
the modification that surrounding
circumstances may be taken into
consideration in order to ascertain
the intention of the parties" Getting
Jones on Ease, Sec. 8S; Jones on
Real Prop, Sec 344)"
The covenant in question is in the
nature of a reservation, providing
for a means of travel to and from
the land mentioned and over the
right of way granted to the railroad
company. Tested by the rules laid
down in the foregoing authorities,
and many others to the same effect
which might be cited, it is clear that
If by the covenant the right for a
footpath or bridlepath had been re-
served for the use of the owner or
people occupying this farm along the
right of way mentioned, there would
be no question but that such a cove
nant would run with the land The
/ covenant is for the benefit of the
other person. 1t has been held that
the covenant to furnish gas for light
ing and fuel to be used in buildings
upon certain lands, would run with
the land. Ind, Nat Gas. Co. V. Hin
ton l59 Ind, S9S. See also a cove
nant to furnish water to be used
/ upon land Stanislous w 70 y,
Baehman, SO Pac., (Cal) S5S;
Ruhnke V. Aubert, supra; Tone Y