dissenting.
The majority opinion concludes that the covenant in issue does not run with land and that therefore the plaintiffs must prevail. The basis for this conclusion is that the defendant State Highway Division (State) did not, as a result of the covenant, benefit in the use of the land (right-of-way) acquired by it. I cannot agree.
It is undisputed that the State in 1943 paid plaintiffs’ predecessors in interest $2,940 which included payment for
"* * * the cost of moving and reestablishing the residence located on the above described larger tract * * * 99
From the above language it would appear that the State paid plaintiffs’ predecessors in title not only for the right-of-way but for the expense of moving their house. Further, the deed provided that the house should be moved at least 35 feet from the right-of-way being acquired so that it would not have to be moved again in the event the highway had to be widened in the future. It appears from the record that the house was never moved from its original location.
The applicable rules for determining when a covenant of this type runs with the land are set forth in the majority opinion and include the following: The covenant runs with the land if the promisee would benefit in the use of the land possessed by it as a result of the performance of the promised act by the promisor (requirement (4)). Applying this rule to the facts at bar here, the promisee (State) would benefit in the use of land possessed by it (the existing highway) when it *586becomes necessary to widen the existing highway, if the promisors (here Robert and Lula May Brown and their successors in title) performed the promised act.
While my research has not revealed a case on all fours with the case at bar, L. &N.R. Co. v. Durbin, 178 Ky 363, 198 SW 908 (1917), involved a similar issue. There the railroad acquired a right-of-way through land for its rail line. The conditions of the deed required the property owner-grantor to maintain all necessary fencing and the railroad to maintain all proper crossings and cattle guards. The court held that the above covenants ran with the land and were binding both on a remote grantee and the railroad. Accord: New York Central & Hudson River R. R. v. Clarke, 228 Mass 274, 117 NE 322 (1917); The Midland Railway Company v. Fisher, 125 Ind 19, 24 NE 756, 8 LRA 604 (1890). As the Illinois court observed in Gibson v. Holden, 115 Ill 199, 3 NE 282, 56 AR 146 (1885), whether a covenant runs with the land does not so much depend on whether it is to be performed on the land itself as on whether it tends directly or necessarily to enhance its value, or render it more beneficial and convenient to those by whom it is owned or occupied. In the case at bar the challenged covenant certainly enhanced the value of the existing right-of-way and rendered its use more beneficial to the State.
As I view it, the case at bar meets all of the tests set out both in the authorities cited above and in the majority opinion, including requirement (4).
I would affirm.