Wheeler v. Schad

Supreme Court of Nevada, 1871.

7 Nev. 204.

Johnson, pp. 683-687


Facts: Some guys built a quartz mill.They also agreed to chip in and build a dam and flume to provide water for the mill and to split the cost of maintaining the dam and flume.Two of the shares of ownership in the mill passed to the plaintiff and the defendant: the plaintiff got his by grant, and the defendant bought his at foreclosure.A few years later, the dam and flume were damaged and needed repairs.The plaintiff and defendant both had ownership interests in the mill at the time of the damage.The plaintiff told the defendant what had happened and suggested that they split the cost of the repair.The defendant agreed that the repairs should be made, and asked the plaintiff to take charge.The repairs were made and they cost $3500.The plaintiff sued the defendant for half of the cost of the repairs.The trial court found for the defendant.


Issue: Is the promise to maintain the dam and flume a covenant that runs with the land?


Rule: To make a covenant run with the land, (1) the covenant must have something to do with the land, and (2) when the covenant imposes a burden on the land, there must be privity of estate between the parties making the covenant.


Analysis: The court finds that the plaintiff and defendant were not in privity of estate at the time that the covenant was created.The defendant also didnít have notice of any covenants running with the land when he bought the land at foreclosure.Finally, the court finds that there is no binding contractual obligation on the defendants that would survive the statute of frauds.


Conclusion: The trial courtís judgment is affirmed and the plaintiff gets nothing.


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