concurring.
I would like to affirm Judge Eckert in all respects, but I must concur in the result reached by this Court. Perhaps our Supreme Court will see fit to bring the law regarding reciprocal negative easements and/or covenants running with the land into the late Twentieth Century. This ease disturbs me, because we are giving effect to land restrictions which are not within a chain of title, nor are they contained in an instrument which should necessarily be checked to insure a clear title.
Three Kentucky cases which have dealt with the problem and which have helped establish the law are Anderson v. Henslee, 226 Ky. 465, 11 S.W.2d 154 (1928); Harp v. Parker, 278 Ky. 78, 128 S.W.2d 211 (1939); and McLean v. Thurman, Ky., 273 S.W.2d 825 (1954). Each of the cases, if limited to its facts, could be distinguished from the case at bar, but the language of the opinions expresses the law in such a way that such restrictions are enforceable, if reasonable. Constructive notice was considered to be given, because the restrictions were recorded in a deed from a common grantor, although the deed was outside the chain of title of the party to be bound by the restrictions.
In Anderson, supra, the deed to Henslee contained no restriction against erecting an apartment building, but the deed to Hen-slee ⅛ grantor did make that conveyance “subject to existing restrictions against the land conveyed.” Anderson, 226 Ky., at 468, 11 S.W.2d 154. There were only a few deeds to be checked from the common grantor, and the phrase would have alerted Henslee to investigate what restrictions the deed referred to.
Harp, supra, is clearly distinguishable. The deed containing the restrictions was listed as an exception or off-conveyance in the source of title in Harp’s grantor’s deed. It was necessary to check the deed with the restrictions in order to know the description of the land that had been conveyed from the common grantor to determine what land remained to be conveyed by the new deed.
There was evidence of actual notice of the restrictions in McLean, supra, although the source of the information was an improperly-recorded contract. The contract was in the chain of title. The case was not decided on that point, however. It was decided on the basis of the constructive notice afforded by the restrictions contained in a collateral deed outside the chain of title. The McLean court concluded that the “chain of title” argument was settled in Harp, supra. McLean, supra, at 829.
Generally, the law is that reciprocal negative easements, which are enforceable against a grantor, are also enforceable against a subsequent purchaser of the common grantor’s restricted remaining property, if the purchaser has notice, actual or constructive. I find no fault with that general principle, but the problem comes in what constitutes constructive notice of such off-shoot restrictions.
In attempting to “settle” the chain of title argument in Harp, the court adopted a passage from 2 Tiffany on Real Property, (2d Ed.) p. 2188. The passage concludes:
And if, in conveying lot A the grantor enters into a restrictive agreement as to the improvement of lot B, retained by him, a subsequent purchaser of lot B would ordinarily be charged with notice of the agreement, by reason of its record as a part of the conveyance of lot A. Harp v. Parker, 278 Ky. 78, at 82, 128 S.W.2d 211.
*723Lot A is a conveyance from a common grantor with lot B, but the deed to lot A is outside the chain of title for lot B. The restrictive agreement is not in any conveyance to the common grantor.
It appears to me that the question of what is reasonable should not only apply to the nature of the restriction, but also to the manner of recording and what should constitute constructive notice. None of the three cited cases reach unreasonable results on the basis of their facts. However, to blindly apply Tiffany’s principle in today’s world is absurd. We are no longer dealing with a few conveyances or the examples of “blackacre” and “whiteacre.”
Today, we may find a subdivision of 1,000 acres divided into 2,000 lots. If the owner of the subdivision agreed with the buyer of the twenty-fifth lot to have a reciprocal negative easement against fences on the remainder of his land, is every lot sold thereafter to be bound solely from the restriction written in the twenty-fifth deed? If so, it means that the buyer of lot number 2,000 would have to examine all 1,999 preceding deeds.
Buyers and lenders already have legitimate complaints regarding costs of title examinations, but we have heard nothing compared to what we will hear, if such useless and unreasonable burdens are mandated. It would be far more reasonable to require the buyer of lot A or 25 to require the grantor to record a separate instrument putting the restrictions squarely on the common grantor and in all chains of title from him. If the buyer of lot A or 25 desires to have the restrictions run with the land, he could require that the necessary instrument be prepared and recorded.
There will be times when a proper title examination will reveal restrictions which are nevertheless outside the chain of title. Examples of these situations would be similar to Anderson, Harp, and McLean, supra. Actual knowledge may come from any source, but constructive notice should not be applied to any situation where reciprocal negative restrictions are recorded only outside the chain of title.