Van Rensselaer v. Albany & West Stockbridge Railroad

Boardman, J.

If the instrument executed by plaintiff’s father bars the plaintiff’s right of action, it will not become necessary to consider the question of negligence raised upon the hearing. It can scarcely be denied that such a burden as that contemplated in the contract can be imposed by grant upon one’s realty. It is very like a grant of the right of drip from eaves, or the right to flood lands, or to discharge water with or without refuse matter upon lands of another (Bushnell v. Proprietors, etc., 31 Conn. 150), or of the right of support to the soil or buildings of one party by the property of another, or the right to change the course, impede the flow, or increase or dimmish the quantity of water in a stream through adjoining lands. All these are familiar cases of easements known and recognized by the law. The right to maintain such embankment to the detriment or danger of adjacent land, was.a right which plaintiff’s father could convey to defendant, and by such conveyance deprive himself and his heir of any recovery for damages contemplated by the parties. Such a grant would have created an easement upon plaintiff’s land in favor of the defendant. It relates directly to the land; the right is a burden upon it. The owner may thereby be deprived of the full use. The land may be incumbered in a manner inconsistent with the general right of ownership in the plaintiff. Nor is it in this view inconsistent with the case of Keppell v. Bailey, 2 Myl. & K. 517. In that case the covenant was held to be personal, not running with the land nor binding assignees. That case has not been overruled as a decision of the question before the court. But certain dicta of the Lord Chancellor have been condemned and rejected. The subject is very fully considered in Spencer’s Case and the notes thereto. 1 Sm. Lead. Cases, part 1, 115; Rowbotham v. Wilson, 8 Ell. & Bl. 123 (92 Eng. C. L. R. 122) ; Gibert v. Peteler, 38 Barb. 488 ; S. C. (affirmed after new trial in court of appeals), 38 N. Y. 165.

It results from the cases that the owner in fee of land may impose upon it any burden however injurious or destructive not inconsistent with his general right of ownership, if such burden is not in violation of public policy and does not injuriously affect the rights or property of others. But the instrument under consideration is not in terms a grant or conveyance, but rather an agreement or covenant not to sue for any damages thereafter occurring, in effect giving to defendant the right to the use of plaintiff’s land as and when it should become necessary by reason of defects in the building up and sustaining of their track and embankment. Upon such a construction of the contract no reason is apparent why the burden should not be imposed by the covenant, since by its nature it could, have been given by a grant. Carr v. Lowry, 3 Casey, 257; Barrow v. Richard, 8 Paige, 351; Gibert v. Peteler and Rowbotham v. Wilson, ante; 1 Sm. Lead. Cases, 144, 165-6, 178-9, and cases there cited.

If we are right in holding that such a servitude can be imposed upon land and that when the nature of the charge is such that it might have been imposed by grant it is equally imposed by covenant, it follows that the covenant of plaintiffs father runs with the land and subjects the same in the hands of his son to all the consequences that would exist against the father. Such would be the case even against an assignee. Holmes v. Buckley, 1 Eq. Cases Abr. 27; Norman v. Wells, 17 Wend. 136.

The idea of a perpetuity in a vested right to maintain a negligent structure is well answered by the Lord Chancellor in Keppel v. Bailey, ante, wherein he shows that the principle of a perpetuity is not involved in the case.

Nor is there any thing in the novelty of such an easement, as suggested in the opinion of the referees, which should lead to its rejection. That such charges upon land have hitherto been unknown to .the law or unnecessary in experience cannot destroy the power of creation. The arts and sciences are constantly developing new industries and new necessities for subjecting realty and population to strange burdens of a novel character. It is the province of the law to adapt itself to such wants. In this particular case it may be, and probably is, a necessity that defendant’s roadway should pass along that .side-hill, that the formation of such hill is such that an embankment cannot be built except at extravagant expense which shall be free from the chance of sliding down upon the lower land, that thus the defendant needed to own such lower lands or else the right to subject them to the possible injury from land slides from said embankment. What more reasonable than that defendant should desire to acquire such right, thus preventing plaintiff or his ancestor from making valuable improvements upon the lands liable to injury. What more natural than that the plaintiffs father should be willing to accept of a compensation for such risk, agreed upon between the parties, and still own and enjoy the ordinary use and profits to be derived therefrom. Such seems to have been the conduct of the parties. Though it may have become an unfortunate contract for the plaintiff, it cannot alter the result. The extent of the injury may be due to an indiscreet use and improvement of the lands, in view of their exposure, a use not contemplated when the contract was made.

Entertaining such views after a careful examination and study of the law applicable to the case, it is unnecessary to discuss the subject of negligence as developed by the evidence. It is not claimed that such negligence, if it existed, was willful or permitted with any hostile or offensive purpose. It could not, therefore, furnish a ground for action in spite of and notwithstanding the covenant.

If the view taken of this contract be not correct the result must follow that the defendant acquired thereby nothing but a release and discharge arising from the damages caused in 1859. Such a construction would be a plain contradiction of the language and apparent intent of the parties to the agreement. It would leave to plaintiff the same right to recover for ordinary neglect that he would have had in the absence of the agreement. The defendant by the agreement and the consideration paid has acquired no right which the law did not give it without such an agreement.

Believing that this contract had a purpose beyond the mere settlement of the damages of 1859, and that such purpose is justified in the law as proper and legal, and that the effect of such contract is to exempt the defendant from liability for ordinary or casual negligence, I am of the opinion the judgment should be reversed and a new trial granted, costs to abide the event.