Dissenting.
In an action at law against the assignee and successor of a corporation covenantor brought by the covenantees in a deed conveying land for a right of way for a railroad and for a depot, &c., it is in effect alleged that in consideration of said grant and as an inducement therefor “said corporation covenanted and agreed in and by said deed and by the acceptance thereof that said depot should be maintained so long as its track over said right of way should be used and known as Terra Ceia Depot and that the company would receive and receipt for all freights to and from said depot on regular schedule time;” that the grantee accepted the grants and covenants, recorded said deed, entered upon and took possession of said right of way and depot site, built thereon in compliance with its covenant a railway station or depot, named the same Terra Ceia Depot, &c.; that thereafter the grantee corporation transferred and conveyed to the defendant corporation all its right, title and interest in and to all of said property, “and that said defendant received and accepted the same subject to the same duties and liabilities and under the same obligation toward said plaintiff by virtue of the covenants and agreements contained in the deed aforesaid as the same had theretofore been held by the” .original grantee; that thereafter “the regular use of the station aforesaid was abandoned,” &c. The pleader undertook to describe the deed of conveyance according to its legal effect as he understood it. Savage v. Ross, 59 Fla. 407, 52 South Rep. 16.
The deed of’ conveyance is to the grantee corporation and “its successors and assigns” and recites a nominal cash consideration for a right of way for the construction of” *140a line of railroad, through described lands of the grantors; “also sufficient amount of land for depot, said company agrees to receive and receipt for all freight to and -from said depot on regular schedule time. Said depot to be known as Terra Ceia Depot.”
The main opinion holds that the deed offered in evidence is variant from that alleged in the declaration and that the covenant here considered is not one running with the land conveyed.
The test whether a covenant runs with the land or is merely personal is whether the covenant concerns the thing granted and the occupation and enjoyment of it, or is a collateral'and personal covenant not immediately ■ concerning the thing granted. If a covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership, but to have that effect the covenant must respect the thing granted or demised, and the act to be done or permitted must concern the land or estate conveyed. I Williston on Contracts, p. 755; Purvis v. Shuman, 273 Ill. 286, 112 N. E. Rep. 769, L. R. A. 1917A 121. The grant being to the grantee “its successors and assigns forever” the facts of this case do not make it conflict with the decision in Spencer's Case, 5 Coke 16, 15 Eng. Ruling Cas. 233; 15 C. J. 1241; 7 R. C. L. 1100.
The conveyance was of a right of way “also sufficient amount of land for depot,” to the grantee corporation “its successors and assigns forever ’ ’ and contains the following: “Said company agrees to receive and receipt all freight to and from said depot on regular schedule time, said depot to be known as Terra Ceia Depot. ’ ’ This clearly is a covenant running with the land and is binding on the grantee corporation that accepted the conveyance and on “its successors and assigns.” Dunn v. Barton, 16 Fla. 765; Mobile *141& M. Ry. Co. v. Gilmer, 85 Ala. 522, 5 South. Rep. 138; Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569; Georgia Southern Railroad v. Reeves, 64 Ga. 492; Sexauer v. Wilson, 136 Iowa 357, 113 N. W. Rep. 941, 14 L. R. A. (N. S.) 185; Hagerty v. Lee, 54 N. J. L. 580, 25 Atl. Rep. 319; 7 R. C. L. 1109, 1123; 11 Cyc. 1080, 1092; Am. & Eng. Ency. Law. (2nd ed.) 134, 144; Lydick v. B. & O. R. Co., 17 W. Va. 427; 82 Am. St. Rep. Notes, P. 674; 15 C. J. 1240, 1252; 2 Devlin on Real Estate (3rd ed.) Sec. 940; Atlanta, K. & N. R. Co. v. McKinney, 124 Ga. 929, 53 S. E. Rep. 701, 6 L. R. A. (N. S.) 436; Scheller v. Tacoma Ry. & Power Co., 108 Wash. 348, 184 Pac. Rep. 344, 7 A. L. R. 810. See also Silver Springs, O. & G. R. Co. v. Van Ness, 45 Fla. 559, 34 South. Rep. 884; 15 C. J. 1240, 1252, 1262; Sexauer v. Wilson, 136 Iowa 357, 113 N. W. Rep. 941, 14 L. R. A. (N. S.) 185; Purvis v. Shuman, 273 Ill. 286, 112 N. E. Rep. 679, L. R. A. 1917A 121; Carnegie Realty Co. v Carolina, C. & O. R. Co., 136 Tenn. 300, 189 S. W. Rep. 371; Harper v. Virginia R. Co., 76 W. Va. 788, 86 S. E. Rep. 919, Ann Cas. 1918D 1081; 2 Elliott on Railroads (3rd ed.) Sec. 1167; Taylor v. Florida East Coast Ry. Co., 54 Fla. 635, 45 South. Rep. 574, 16 L. R. A. (N. S.) 307; 8 L. R. A. 604.
There appears to be no substantial variance between the deed of conveyance declared on and that offered in evidence.
Browne, J., concurs in this dissent.