dissenting.
While I agree with the majority that changed economic circumstances do not make the covenant in issue unenforceable, I disagree with the conclusion that the failure to incorporate the recorded covenants in the deeds to the initial grantees rendered them “personal” and unenforceable either as a matter of fact or law. If the majority’s conclusion is a matter of fact, it violates the rule that the trial judge should make factual determinations in the first instance. That the covenants were stated to run with the land and to continue until terminated by unanimous consent of the subsequent owners coupled with the comprehensive nature of the covenants would surely permit a trier to find that the covenants were not personal. If the conclusion is a matter of law, I think it wrong. Nothing in the O’Malley language concerning “mutual covenants between the owners of adjoining lands, in which the restrictions placed upon each produce a corresponding benefit to the other” suggests that any contracting party could deed his lands free of the restrictions to a purchaser taking with notice. Indeed that result is foreclosed by the further language that “either party or his assigns may invoke equitable aid to restrain a violation of the covenant.”
The majority seeks to avoid this result by reliance on older California cases. To the extent those cases can be read as implying the right to deed land free of restrictions of record, I believe them misguided. They can also be distinguished. All involve some variation of the common grantor situation. In such cases, the reason for requiring reference to the restrictions in the deeds of the original grantees in order to make them enforceable amongst all subsequent grantees is because, “ ‘[s]o long as a tract remains in one ownership, there can be no dominant and servient tenements as between different portions, and the owner may rearrange the quality of any possible servitude.’ ” Gardner v. Maffitt, 335 Mo. 959, 965, 74 S.W.2d 604, 606-07 (1934), quoting 19 C.J. § 156 at 945 n. 60. In other words, even though a declaration of covenants and restrictions may be recorded, until it is made part and parcel of the mutual obligations which form the basis for the conveyance of a portion of the land, it is merely the unilateral act of the grant- or. Once having been made part of a con*257veyance of a portion of the land and therefore binding on the grantor, every subsequent conveyance is subject, to the covenants and restrictions, even though not contained in the subsequent deeds.
The situation is markedly different where the recorded covenants result from an agreement between adjoining landowners. Assuming that the agreement is otherwise valid, the covenants are immediately enforceable upon execution as between the parties. Neither party may change or rescind the covenants without the consent of the other. Assuming further that the agreement is recorded and that the covenants were intended by the parties to run with the land, there is no reason to require that they be referred to in any subsequent conveyances in order to be enforceable by the grantees of the original parties to the agreement. While the fact that the covenants in the present case were not incorporated in the initial conveyances is relevant to the question of whether they were intended to be personal rather than running with the land, it is not alone conclusive. The nature of the covenants must be determined by looking to the intent of the parties as evidenced by the language of their agreement and the surrounding circumstances, as well as their subsequent conduct.
I would remand to the trial court for a determination of that issue, along with the defenses raised as to the present enforceability of the covenants, after such further hearings, if any, the court thinks necessary.