WALDROP et ux.
v.
TOWN OF BREVARD.
No. 168.
Supreme Court of North Carolina.
December 13, 1950.*513 Philip C. Cocke Jr., and William J. Cocke, Asheville, for plaintiffs.
Ramsey & Hill and Lewis P. Hamlin, all of Brevard, for defendant.
*514 DENNY, Justice.
If it be conceded that the normal operation of the defendant's garbage dump in a reasonably careful and prudent manner constitutes a nuisance, in our opinion these plaintiffs are estopped from asserting any claim for damages or for other relief by reason thereof, in view of the grant and covenants contained in the conveyance from I. F. Shipman and wife to the Town of Brevard.
It was stated in the conveyance to the Town of Brevard, that the property was to be used as a garbage dump, and I. F. Shipman and wife expressly granted to it the right, without limit as to time and quantity, to use the premises conveyed as a dumping ground for the Town of Brevard, for garbage, waste, etc., and for themselves, their heirs and assigns, they released, discharged and waived any or all rights of action, either legal or equitable which they have or might have by reason of any action of the Town of Brevard in using the lands conveyed to it as a dumping ground for said town, or by reason of any fumes, odors, vapors, smoke or other discharges into the atmosphere by reason of the use of the premises as a garbage dumping ground. The parties further stipulated that the agreements and waiver set forth in the deed shall be covenants running with the remainder of the lands owned by the grantors and binding on them "as the owners of said lands, and their heirs and assigns, and anyone claiming under them, as owners or occupants thereof."
"A covenant or agreement may operate as a grant of an easement if it is necessary to give it that effect in order to carry out the manifest intention of the parties." 17 Am.Jur., Sec. 27, p. 940.
The grant and release or waiver contained in the deed from I. F. Shipman and wife to the Town of Brevard, in our opinion, created a right in the nature of an easement in favor of the Town of Brevard, upon the remainder of the lands owned by the grantors. And the waiver or release of any right to make a future claim for damages or other relief, resulting from the use of the premises conveyed to the defendant as a garbage dump, constitutes a covenant not to sue and is binding on the grantors, their heirs and assigns. Consolidation Coal Co. v. Mann, 298 Ky. 28, 181 S.W.2d 394; Brush v. Lehigh Valley Coal Co., 290 Pa. 322, 138 P. 860; J. T. Donohue Realty Co. v. Wagner, 154 Md. 588, 141 A. 337; Mayor and Councilmen of City of Troy v. Coleman, 58 Ala. 570; Mayor and Councilmen of Town of Union Springs v. Jones, 58 Ala. 654; 13 C.J. § 399, p. 458; 17 C.J.S., Contracts, § 104, page 459. "If the owner of property has charged it with a servitude as to the matter complained of, a subsequent grantee cannot recover damages therefor." 29 Cyc. 1260.
The appellants contend they are not bound by the covenants in the deed from I. F. Shipman and wife to the Town of Brevard, because (1) the Town of Brevard is not plaintiffs' predecessor in title; (2) no deed in plaintiffs' chain of title contains or refers to the covenants contained in the defendant's deed; and (3) there has been such a change in the neighborhood it would be unconscionable and inequitable, and against public policy to enforce the covenants in the defendant's deed.
The plaintiffs are relying on the case of Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197, as authority for their position that since no deed in their chain of title contains or refers to the covenants set forth in the Shipman deed to the defendant, they are not bound thereby. This position might be well taken if we were dealing with restrictive covenants instead of an easement and a waiver and release of any and all claims for damages incident to the exercise of the easement granted. Grantees take title to lands subject to duly recorded easements which have been granted by their predecessors in title. G.S. § 47-27; Walker v. Phelps, 202 N.C. 344, 162 S.E. 727; Norfleet v. Cromwell, 64 N.C. 1; Burgas v. Stoutz, 174 La. 586, 141 So. 67; J. T. Donohue Realty Co. v. Wagner, supra; 28 C.J.S., Easements, § 24, page 676, et seq.
In the case of Walker v. Phelps, supra, the Virginia-Carolina Joint Stock Land Bank owned some 1200 acres of land, known as the Alexander Farm. It conveyed *515 600 acres of the land to the plaintiff Walker and others, and granted the right of ingress and egress over certain areas of the remaining 600 acres of land retained by the grantor, including certain drainage rights, and stipulated that the expense of keeping open a canal through the lands sold and those retained should be borne by the owners of the respective tracts of land in proportion to the acreage drainage into the canal. The deed to Walker and others was duly recorded on July 24, 1930. Theretofore, on January 27, 1930, the grantor had entered into a contract for the sale of the other 600 acres of the Alexander Farm to the defendant Phelps. This contract was not recorded prior to the recording of the Walker deed. Phelps contended he was not bound by the covenants and stipulations contained in the Walker deed. Connor, J., in speaking for the Court, said: "The stipulations contained in the deed from the Virginia-Carolina Joint Stock Land Bank to the plaintiffs, with respect to the Mountain Canal, are covenants which run with the land conveyed by said deed. Norfleet v. Cromwell, 64 N.C. 1. The plaintiffs, as grantees in said deed, have the right to use the Mountain Canal for the purpose of draining their land, and further have the right to require their grantor and all persons claiming title to the remainder of the Alexander farm, subsequent to the registration of their deed, to contribute to the expense of maintaining said canal, as provided in said deed. This right is in the nature of an easement with respect to that part of the Alexander farm which was not conveyed to plaintiffs. It is enforceable as provided in the deed against the grantor therein, and against all persons claiming title thereto under said grantor subsequent to the registration of the deed to the plaintiffs. [202 N.C. 344, 162 S.E. 729.]"
The plaintiffs' contention that conditions have changed to such an extent, in the neighborhood adjacent to the defendant's garbage dump, that the covenants in the defendant's deed should not be enforced, is without merit. Changed conditions may, under certain circumstances, justify the non-enforcement of restrictive covenants, but a change, such as that suggested by the plaintiffs here, will not in any manner affect a duly recorded easement previously granted.
We do not construe the plaintiffs' complaint to allege that the nuisance complained of was the result of negligent conduct on the part of the defendant, its agents or employees. Therefore, in view of the interpretation we have given to the provisions contained in the defendant's conveyance from I. F. Shipman and wife, plaintiffs' predecessors in title, the judgment as of nonsuit entered below should be upheld.
Affirmed.