Moseley v. Bishop
470 N.E.2d 773, 1984 Ind. App. LEXIS 3048 (1984)
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Rule of Law:
An affirmative covenant to maintain a structure on one's land for the benefit of another's land will run with the land if the original parties intended it to, the covenant touches and concerns the affected lands, and there is privity of estate between the original covenantors and subsequent grantees.
Facts:
- In 1896, Henry Moseley and William Bohn owned adjoining farms.
- Moseley's land was drained by an existing open ditch that ran across Bohn's property.
- Bohn wished to convert the open ditch into a buried tile drain to gain more usable surface area on his farm.
- Moseley and Bohn entered into a written, recorded agreement where Moseley consented to the tiling and paid Bohn $40.
- In exchange, Bohn agreed to install and 'permanently maintain' a tile drain of sufficient capacity for Moseley's land.
- Over time, Edith Moseley succeeded Henry Moseley's ownership, and Merrill and Joanna Gates (among others) succeeded Bohn's ownership.
- Beginning in 1976, Moseley's farm began experiencing poor drainage, and by 1981, visible holes and standing water indicated the drain tile on the Gateses' property was broken or blocked.
- When requested to make repairs pursuant to the 1896 agreement, Mr. Gates refused to do so without Moseley's financial assistance.
Procedural Posture:
- Edith Moseley filed suit in an Indiana trial court against Merrill and Joanna Gates and sixteen other landowners.
- Moseley sought damages for crop losses and a declaration that defendants were liable for drain repair costs.
- Following a bench trial, the trial court entered judgment against Moseley.
- The trial court ruled that the 1896 contract was personal and did not run with the land, meaning it was not binding on the defendants.
- The trial court also found that Moseley had not proven her crop losses were caused by the defendants' failure to repair the drain.
- Moseley, as appellant, appealed the trial court's judgment to the Court of Appeals of Indiana, naming the Gateses and others as appellees.
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Issue:
Does a recorded agreement requiring a landowner to 'permanently maintain' a drain in exchange for an easement to install that drain constitute a covenant that runs with the land and binds the landowner's successors in interest?
Opinions:
Majority - Young, J.
Yes, the agreement constitutes a covenant that runs with the land and is binding on the Gateses. A covenant imposing an affirmative burden runs with the land if it meets a three-part test: (1) the original parties intended it to run, (2) the covenant touches and concerns the land, and (3) there is privity of estate. Here, the use of the word 'permanently' and the circumstances of the agreement demonstrate the parties' intent to bind their successors. The covenant touches and concerns both the burdened estate (the Gateses' land, where the drain is located) and the benefited estate (Moseley's land, which depends on the drain). Finally, privity of estate exists because Bohn's agreement to construct and maintain the drain created an easement appurtenant to Moseley's land, and the covenant was made in the context of this conveyance of a property interest, thereby satisfying the requirement of horizontal privity. Vertical privity is also present as the current parties are successors in title to the original covenantors.
Analysis:
This case provides a clear application of the traditional requirements for a real covenant to run with the land, particularly clarifying how horizontal privity can be established. The court's finding that the creation of an easement satisfies the horizontal privity requirement allows an affirmative maintenance obligation to bind successors. Importantly, the court's footnote signals a judicial skepticism towards the continuing relevance of the horizontal privity requirement, aligning with modern scholarly criticism and suggesting a potential evolution in Indiana property law. This decision reinforces that carefully drafted and recorded agreements concerning land use can have permanent, binding effects on future owners.
