Maryland & Pennsylvania R. v. Silver

Worthington, J., delivered the opinion of the Court, after making the forgoing statement of facts. The theory of the plaintiff’s case is, that, the first stipulation in the habendum of the deed of date March 21, 1884, being the one relied on by the plaintiff to sustain the action, created an easement in the land conveyed for the benefit of the land retained by the grantor; or at least that it is a covenant that runs with such land in favor of the plaintiff as assignee of the original grantor. We cannot agree, however, that a fair interpretation of the language of the stipulation in the deed warrants the inference that it wás the intention of the parties to create or reserve a right in the nature of an easement in the property granted for the especial benefit of the land retained. The station covenanted to be erected and maintained on the railroad’s right of way, was manifestly intended as a public station for the use of the public generally.

There are no words in the deed anywhere to show that it was to be made and maintained for the especial benefit of the grantor, or of the land retained by him. There was of course incidental benefit to the grantor, and also to his remaining land, but a similar benefit, less only in degree, was also conferred upon other adjoining property. ⁵¹⁶ A private easement implies, as an essential quality thereof, two distinct tenements; namely, the dominant, to which the right belongs, and the servient, upon which the obligation rests. Wolfe v. Frost, 4 Sand. Ch. 89 .

Here the public were to- have the use and benefit of the station and it could not with propriety be said that there was any dominant estate to which such right belonged. The right created by the stipulation in the deed cannot therefore be deemed an easement appurtenant to the land reserved so as to pass as part thereof to the assignee of the grantor, but rather it should be treated as a covenant by the railroad company to do and perform something on the granted land that while incidentally intended to benefit the grantor, was also manifestly intended for the use and benefit of the community generally. Assuming for the present,therefore, without deciding, that the original grantor bore such contractual relation to the rail road company as to entitle him, now, were he a party to these proceedings, to maintain an action on the covenant, does the covenant so run with the land retained by the grantor as to enure to the benefit of the plaintiff in this case ? A covenant in a deed, whether to be performed on or off' the land, must in order to run with the land, touch and concern the land so that the thing required to be done will tend to enhance its value or render it more convenient or beneficial to the owner, and if the covenant extends to something not then in esse, the covenant must be to one, “his heirs and assigns” by express words, else the assignee shall take no benefit of it.

Spencer’s Case, 1 Smith’s Leading Oases (9th ed.), page 174; Whalen’s Case, 108 Md. 11 . In the case at bar the covenant was made with reference to-something not then in esse, and there are no words of limitation to the heirs and assigns of the grantor. It is contended, however, that since the Act of 1856, Ch. 154 (Code, Art. 21, sec. 11), as words of inheritance are unnecessary to create a fee, the covenant in this case being in the nature of a recon ⁵¹⁷ veyance of an interest in the lands conveyed, such words are unnecessary here. In the case of Ross v. McGee, 98 Md. 389 , this Court held that the Act in question “was never intended to apply to reservations of privileges and the granting of an easement,” such as was claimed in that case.

There the reservation was of the right to use the water from a spring located on the land conveyed, and the Court held that the right did not enure to the benefit of an assignee of the grantor. Here the. right was not created by way of a reservation, but by way of a covenant, which though it may be said, in a sense, to touch and concern the land retained by the grantor, yet extended to something not in existence at the date of the deed and the words heirs and assigns are not expressed. Under the circumstances we do not think the Act of 1856 does away with the necessity for the use of these words in order to pass the right created by the covenant in question to an assignee of the grantor. Meither do we think the Act of