Gibbs v. Gale

Le Grand, C. J., delivered the opinion of this court. The bill in this case stales, substantially, that a certain George B. Stewart being seized in fee of a large tract of land lying on West River, leased five acres of it to the firm of Crouch and Randall, to be used as a landing for steamboats and ⁸⁴ other vessels, and for the transaction of commercial business; .that besides paying a large rent, the lessees covenanted therein to make improvements, and that the lessor covenanted on his part, during the continuance of the lease, not to rent any other landing on his tract of land as a steamboat landing; that the lease was to continue five years, renewable every five years, for the period of twenty-five years; that since the lease, Stewart sold the whole tract of land in fee to the appellee, Gale, including the reversion of the part leased to Crouch and Randall. The bill then states that Gale had knowledge of the demise to Crouch and Randall, but regardless of the covenants contained in the lease, has built a wharf on this land, immediately adjoining this leasehold, and rented it to tbe appellee, Stranberg, as a public landing for the steamboat Champion, and avows his determination to do so. The bill prays an injunction to restrain the appellee, Gale, from renting any part of his tract of land to be used as a steamboat landing, and to restrain Stranberg from using any part of it as such.

The appellant is the assignee of Crouch and Randall. To the bill, Gale, in his answer, replied, that the covenant contained in the lease from his grantor, Stewart, was, and in fact was intended to be, nothing more that a personal covenant, binding only Stewart and not his assigns. After the coming in of the testimony which had been ordered to be taken, tbe court dissolved the injunction that had been granted on the filing of the bill. It is from this order of dissolution the appeal has been taken.

The covenant in the lease which gave rise to this controversy is as follows: “The said George B. Stewart on his part promises and agrees, that he will not rent or lease any other landing on his said tract of land as a public landing to any steamboat company whatsoever.” It was to the true interpretation and legal meaning of (his covenant, the respective counsel of the parties addressed their ability and learning. On the part of the complainant it was contended:—1st, that it is a covenant running with the whole tract of land possessed by Stewart, of which the demised premises are a part, and as such binding on his assigns; and ⁸⁵ 2nd, that if the covenant be not of such character, still it would he a fraud, of winch a court of equity would take cognizance, to allow the appellee, Gale, to build, or to authorise to be built, another steamboat wharf on the tract, he having become the owner of the whole tract, including the demised premises, with full knowledge of the equities existing between Stewart and his original lessees and their assignees. These propositions were denied by the appellees. In the view we have of the effect of the evidence, it is not important we should indicate what would be our opinion of the character of the contract,per se, between the parties, and the obligations which it legally and equitably devolved on them.

The testimony in the cause was introduced on the part of the defendant without exception to its admissibility or competency, and this brings us to the inquiry as to its effect on the interpretation which we are to place on the contract in this case, because of the provisions of the act of 1832, chapter 302. It is not essential that we should review all the evidence, and we shall therefore confine ourselves to that part of it which bears directly on the question of the interpretation of the covenant. Thomas M. Grouch, one of the original lessees, testifies, '' that a paper shown to him was intended for the lease, 'but not executed for certain reasons;’ that one of the principal reasons will show itself on the bottom of the paper. He required Stewart to put a covenant in it binding himself \ his heirs and assigns, to give himself and his partner the exclusive steamboat privilege for the whole land during the term of the lease.

That was the reason why it was not executed. Stewart afterwards agreed to insert the said covenant for himself, provided deponent would give a bond for the keeping in order of the road from the Quaker burying-ground to the landing, which deponent, thinks is in the deed as executed. Stewart stated as a reason why he would not do so, was, that in case he should sell his property, which he then had no intention of doing, it would depreciate this property and be considered as an incumbrance.'” George B. Stewart, testifies, that he had seen the paper, (the original draft of the lease, and referred to in the testimony of ⁸⁶ Crouch,) and that it “was submitted to witness by Mr. Crouch.