Supreme Court of Rhode Island, 1862

Thayer v. Smith

Supreme Court of Rhode Island · Decided March 6, 1862 · Ames

7 R.I. 164

Counsel

Markland, for the plaintiff: I. The land, by the agreement and award, is to be divided between the plaintiff and defendant, according to their rights and interests, which is in fee simple, as tenants in common. The award directs that each is to convey his several part to the other in fee; which means an absolute fee and not a conditional one. II. A covenant by the plaintiff, that he will build and maintain the fence, will run with the land. Savage and others v. Mason, 3 Cush. 500, 505; Kellogg v. Robinson, 6 Vermont, 276; Scott v. Burton, 2 Ashm. 324; Coleman v. Coleman, 7 Harris, (Penn.) 100. III. However this may be, Rev. St. Ch. 91, § 9, binds the successive owners of the plaintiff's land to maintain the fence, in case of such a covenant. IV. It was never intended by the agreement, that the obligation to build and maintain this fence should be secured by a condition, or a mortgage or charge upon the plaintiff's part of the land; either of which would imply a forfeiture. James Tillinghast, for the respondent: — I. The maintenance of the fence is, in part, the consideration of a grant to the plaintiff of a perpetual easement of flowage in the defendant's part of the land, and should not be secured by a personal covenant only, which, if it run with the land, will depend for its efficiency upon the solvency of the successive owners of it. II. There being no privity of estate between the plaintiff and his grantee of the land, the burden of the proposed covenant will not run with it. 1 Smith's Leading Cases, notes to Spencer's Case, 99, top paging and onwards; Inhabitants of Plymouth v. Carver, 16 Pick. 183. III. It follows, that to secure the performance of the obligation to build and maintain the fence which the agreement and award impose upon the plaintiff, it must be done by a condition, or by a mortgage or charge upon the land itself.

Opinion of the Court

Ames, C. J.

The question here is,, how did the parties, by their agreement, and the referees, in then’ award based upon it, intend that the plaintiff should secure to the defendant the perpetual obligation imposed upon him, to build and maintain the partition fence ? Since no special mode is provided, the answer must be, in the usual mode, which is, by agreement or covenant recorded.

The 91st chapter of the Eevised Statutes provides for the erection and maintenance of partition fences, and by its 9th section, that “ where the same may be hereafter erected by the agreement of the parties in interest or other lawful manner, the proprietors of the fences in either of said cases erected, their heirs and assigns, shall hold and improve the same without molestation ; and shall be forever afterwards excused from making other fence on such dividing line in all cases whatever, except by the special agreement of such parties to the contraryall agreements .which shall be made relating to such partition fences shall be registered in the town clerk’s office in the town where such lands shall lie.” This section recognizes the binding force of ,an agreement with regard to partition fences, to vary the general obligation, not only of the parties to the agreement, but of their heirs and assigns; and the agreement is to be registered, in order that the grantees of the parties may have, at least, constructive notice of it. In our judgment, this renders it unnecessary to consider, whether,' as a general question, the burden of such a covenant runs with the land of the covenantor, except when there is a privity of contract or estate between him and the party who sues upon the covenant. A covenant in the partition^leed, executed by indenture, imposing the obligation to maintain the partition fence upon the plaintiff, his heirs and assigns, will, if recorded, be sufficient to carry out the intent of the parties to "the agreement and award, and is all the security which the defendant is entitled to demand for its performance. Neither the agreement nor the award warrants the notion, that the plaintiff was to-take an estate in severalty in his part of the land divided, defeasible upon his not building or maintaining the partition fence; or, in other words, that his *167 estate in the same was to be other than in the common land, an absolute estate in fee simple.

Let a decree be entered, enforcing the specific execution of the award set forth in the pleadings ; and if the parties cannot agree upon the form of the deed or deeds of partition, after this expression of the opinion of the court, let a master be appointed to arrange the form, and superintend the execution, of the deeds.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.