Wheeler v. Schad
Supreme
Court of
7
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 didn’t 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 court’s judgment
is affirmed and the plaintiff gets nothing.