Horn v. Miller

Citations

• 136 Pa. 640
• 20 A. 706
• 1890 Pa. LEXIS 1057

Syllabus

<p>(a) Cade and Miller, owning respectively adjoining lands on a stream, made an agreement, in settlement of an action by Cade against Miller for diverting water from one channel to the other, which provided that Cade, his heirs and assigns, should enjoya “ water right or power ” for two wheels on any part of his land, and Miller, his heirs and assigns, should enjoy water for his mill only when there was a surplus:</p> <p>1. The superior right, recognized in the agreement as being in Cade, was a right as a riparian owner; therefore, as the covenants in the agreement related to the lands of the respective parties, and were to be performed thereon and in connection with the use and enjoyment thereof, they ran with the land and regulated the mutu'al rights of the heirs and assigns of the parties, respectively.</p> <p>2. While privity of estate is ordinarily necessary to a covenant running with the land to which it relates, justice will require that the right to enjoy such contracts should extend to all who have a beneficial interest in their fulfilment; and, when the benefit and the burden of covenants securing mutual rights are so inseparably connected that each is necessary to the existence of the other, both must go together.</p> <p>3. When the land of one of the parties to such an agreement as the above has been conveyed by him, it is of no consequence that the deed may make no mention of the agreement or of the rights accruing therefrom; the right of such party as a riparian owner, recognized and defined by the agreement, will pass as appurtenant to the land, and it is unnecessary to mention it in the deed.</p> <p>4. The assignee of a part only of such land, who is the owner of the only mill-seat on the original tract, may sue for a diversion of water made by the successor of the party who covenanted with his assignor; that mills may be built on other parts of the land, which will use the water after it leaves his mill, cannot affect the servient tenement, or, if