From several things about this case, and especially from the fact that a question of this importance to the community as well as to the parties, has been submitted to us upon brief written arguments, and we are thus asked to overrule a well considered judgment of the late Chancellor Walworth, affirming the decision of Vice Chancellor Me Conn, I am led to infer that this appeal is brought for the purpose of enabling the defendant to remove the case to the court of appeals, and that .the only importance attached to the judgment of this court is its necessity as a step in the progress which the appellant intends to make. I have therefore hesitated whether we ought not to content ourselves with pronouncing a judgment, without assigning any reasons for it. But perhaps it is due to the principles involved in the cause that they should receive a brief examination.
It may be conceded that no action at law could be maintained by the plaintiff against either the defendant or his grantors. Hot because the burden of this covenant does not run with the land and rest upon all subsequent grantees, for I am inclined to think it does. The difficulty in the way of such a remedy by these plaintiffs is that if their deed or that of their original grantors, the first conveyance by Brouwer & Mason of the lots now owned by the plaintiffs, was prior to the first deed by these original owners to Sands, the defendant’s grantor, as seems to be the case, then these plaintiffs cannot be said to be assignees of the covenant in question which is contained in this subsequent deed by Brouwer & Mason to Sands. But the jurisdiction of courts of equity in these cases is not confined by the limits, nor is it founded upon the principles, of the action of covenant in courts of law.
In Bleeker v. Bingham, (3 Paige, 246,) it was held that a court of equity can interfere and compel a full and effective execution of a covenant, although contained in an instrument between third parties, and to which the person for whose benefit it is made is not a party. In Hills v. Miller, (Id. 254,) Chancellor Walworth determined that a covenant or agreement by the grantors of lands with their grantee, then the owner of adjacent lots, not to build on a certain piece of ground, should be *161enforced by injunction in favor of a subsequent purchaser of these adjacent lands, and that notwithstanding the grantors with whom the, agreement or covenant was made had released it to the purchasers. This decision was placed on the reasonable and intelligent ground that the agreement created in the lands of which the use was thus restrained, an easement for the benefit of, and which vested in, these adjoining lots from the time of their sale with notice of this agreement ) and that this was an estate with which the grantor of the two parcels could not interfere.
This principle was again asserted and acted upon in the case of the Trustees of Watertown v. Cowen, (4 Paige, 510, 514;) and in Barrow v. Richard, (8 id. 351,) the true character and extent of the jurisdiction was declared, and the principle of acting upon the lands of a covenantor as a servient tenement, to restrain the violation of a covenant against "nuisances, in favor of the owners of adjacent lands, as the owners by virtue of this covenant, of an easement in these lands, distinctly laid down. I am unable to distinguish that case from the present. There the title of the plaintiffs was derived, as it is claimed to be here, through a deed prior to that by which the defendants took title. The objection was made that the plaintiffs did not stand in the position of assignees of the covenant and could not sue at law for its breach, and therefore ought not to be allowed to come into a court of equity. But the objection was met distinctly, and the point noticed, that the deed in which the covenant was contained was made after the plaintiff’s title had passed out of the covenantee. The covenant in that case was substantially and almost literally like that in the deed from Brouwer & Mason to Sands, in this case. In this case, as well as in that, the grantee was bound not to occupy the premises in any manner offensive to the neighboring inhabitants. This feature of the covenant was insisted upon by the chancellor, as showing that the covenants in the deeds of the lots were intended for the benefit of all the adjacent property, whether still held or previously conveyed by the grantor. And he says that although the complainant could not sue on the covenant at law in his own name, and could perhaps only recover *162nominal damages in the name of the grantor, yet a court of equity could give full effect to the covenant by a suit in the name of the party for whose protection the covenant was intended.
The object of the covenants inserted in the deeds of all the lots included in the tract of which the lots both of the plaintiffs and defendants are a part, was to protect the whole tract and every lot belonging to it, whether in the hands of the original owners or of any subsequent grantees, from nuisances or offensive and injurious erections or occupations.- Every conveyance from Brouwer & Mason contained such a covenant, and every lot conveyed by them had an easement in every other lot to forbid or restrain its use or occupation in any offensive way. And therefore I am unable to see in what respect the relative dates of the conveyances to the grantees of Brouwer & Mason can make any difference. Every such covenant, in every deed given by them, was intended not only for their benefit but also for that of all their prior as well as subsequent grantees, and created this easement in behalf of the whole property. This court may therefore very properly be asked to interpose in behalf of any of the owners of the lots, as being parties for whose benefit the covenants were made. The reasoning and the conclusions of Vice Chancellor McCoun and Chancellor Walworth, in the case of Barrow v. Richards, are perfectly satisfactory to me. I cannot distinguish the present case from that, taking the most favorable view of the facts here for the defendant. And I am not at all disposed to overrule so wise, well considered and beneficial a principle of equity as that which is asserted in these and similar cases in the courts of this country.
It is claimed by the defendant that some of the plaintiffs have not shown a title to their lots which will uphold their claims in this suit. One of the plaintiffs deduces his title through Sands, the defendant’s grantor, and the original covenantor in the covenant in question. I think this is wholly immaterial. Title to lands within the tract for the common benefit of which this easement was created is the only requisite, as I view this case, to support such an action as this to restrain any violation of this covenant by any proprietor. It is also said that others of the *163plaintiffs fail in making out a perfect title in fee to certain lots, in not proving that certain executors under whose deed they claim had a power to sell their testator’s lands. Even if this were so, and this particular plaintiff failed to show any title, it would not be cause for reversing this judgment in toto and dismissing the complaint. As to that plaintiff it might be proper to dismiss the suit, but the relief sought against the defendant is precisely the same in nature and extent, whether it be sought by one or twenty owners of these lands, and will alike enure to the benefit of all if granted in any case or at any instance. This objection would therefore only raise a question of costs, and this is not a case where a plaintiff should be punished with costs upon such an objection.
But Brouwer, the plaintiff referred to, is seised of a life estate in one third of certain of these lots by his purchase of a dower estate, and this is sufficient to sustain this action, admitting his title in fee not to be made out. Any owner- of any estate, as well as any occupant of the dominant tenement, in such a case, may invoke the aid of the court to enforce this easement in the servient tenement.
These are the only objections requiring notice, and these are manifestly, insufficient. The judgment should be affirmed with costs.
Brown, P. J., concurred.
S. B. Strong, J.The covenant in the deed to Sands, (under whom the defendant claims,) that neither the grantee nor his heirs or assigns would establish or carry on upon the premises conveyed, any manufactory, trade, business or calling whatever, which might be in any wise dangerous or noxious or offensive to the neighboring inhabitants, constituted a right in the grantors and those who might claim, under them, any part of the entire tract then held by them, upon the land conveyed, whether in the hands of the original grantee or his heirs or assigns. It is immaterial whether it is denominated an easement, a servitude, a privilege or a restriction. The nature of *164the covenant clearly evinced that it was designed to run with the land, and not to create and continue a mere personal obligation. In such cases it is well settled that it may be enforced by and against those who may subsequently become part owners. The expression 61 neighboring inhabitants” would clearly include all who might reside upon any part of the premises retained at the time of the conveyance, by the grantor, as the entire tract was in one vicinity; and if it would comprehend others, that would be mere surplusage, which would not vitiate the right.
The plaintiff Brouwer being the owner of a part of the premises retained at the time by the grantors, and subsequently conveyed by them to the person under whom he derived his title, has a right to maintain an action for the breach of the covenant in the deed to Sands. The plaintiff Bushnell claims under a deed from the same grantors, but of a prior date.' It does not appear positively when it was executed, acknowledged or delivered, nor whether it had a subscribing witness, but it was recorded simultaneously with the conveyance to Sands. The learned judge before whom this action was tried, seems to infer that the 'two deeds were executed about the same time; and he refers to the case of Elsey v. Metcalf, (1 Denio, 326,) altering the old rule that the date of a deed is prima facie evidence of the time of its delivery. That was limited to cases where the deed had not been acknowledged, or proved, and had no subscribing witness. It cannot be inferred in this case, simply from the late day when the deed was recorded, that it was not acknowledged or witnessed at the time of its date. The proof that Brouwer was entitled to the benefit of the covenant in the deed to Sands, should have been adduced by him, as he held the affirmative, and was bound to establish his right. The date of the deed must, in the absence of any proof as to whether its execution was acknowledged or there was a subscribing witness, as against any one claiming under it, be deemed to be the time when it was delivered. Brouwer has not established any right to the privilege secured by the covenant.
Philbrick, the other plaintiff; claims title under the deed to *165Sands. Both he and the defendant are subsequent grantees of the covenantor. In the conveyances to them, or under which they claim, there is no similar covenant as against either. The covenant from Sands did not create a public easement, nor a right which could vest in any one except the covenantees and those claiming, under them, any part of the portion of the tract then retained by them. Consequently Philbrick had no right of action under that covenant.
[Kings General Term, October 14, 1856.The judge, however, supposes that the three plaintiffs have a right of action on the ground that the operations of the defendant create a public nuisance peculiarly injurious to them. But the complaint does not allege any nuisance ; and if it might be amended so as to embrace a charge of that kind, still the special verdict, upon which alone we can act, would not sustain the charge. The jury find, and I think that the evidence authorized them to find, that the business carried on by the defendants was dangerous and offensive, but not noxious to the plaintiffs and the neighboring inhabitants. Now the combustion of pine shavings and light wood might cause great quantities of offensive smoke, and the fire might be dangerous, so as to cause a violation of rights of the plaintiffs, some or one of them, without creating an absolute nuisance. At any rate we cannot adjudge that the defendant has been guilty of so grave an offense as the creation of a nuisance, until it has been directly charged in the complaint, and the charge has been found to •be true, by the jury, and especially when the jury has found that the defendant’s business, in the manner in which it was conducted, was not noxious to the plaintiffs and their neighbors.
The code permits a judgment in favor of either plaintiff, where his rights are capable of a severance. They are clearly so in this instance. The judgment should be reversed, as far as it relates to the plaintiffs Bushnell and Philbrick, and modified as to the plaintiff Brouwer so as to make the injunction applicable to his interests alone. .
Judgment affirmed.
Brown, S. B. Strong and Emott, Justices.]