Waldrop v. Town of Brevard
1950 N.C. LEXIS 649, 62 S.E.2d 512, 233 N.C. 26 (1950)
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Rule of Law:
A covenant not to sue for nuisance, contained within a duly recorded deed granting an easement for a specific use, runs with the land and binds subsequent grantees of the grantor's remaining property, even if their own deeds do not reference the covenant.
Facts:
- I. F. Shipman and his wife owned a large tract of land.
- The Shipmans conveyed a portion of their land to the Town of Brevard.
- The deed explicitly stated the property was to be used as a garbage dump for the Town of Brevard.
- In the same deed, the Shipmans, on behalf of themselves, their heirs, and assigns, waived any right to sue the Town for any nuisance, such as fumes, odors, or smoke, arising from the dump's operation.
- The deed stipulated that this waiver was a covenant running with the remainder of the Shipmans' land.
- The plaintiffs subsequently purchased the remaining portion of the land originally owned by the Shipmans.
- The plaintiffs experienced nuisance from the normal operation of the Town of Brevard's garbage dump.
Procedural Posture:
- The plaintiffs sued the Town of Brevard in a court of first instance, seeking damages and other relief for an alleged nuisance.
- The trial court entered a judgment of nonsuit against the plaintiffs, dismissing their case.
- The plaintiffs, as appellants, appealed the trial court's judgment to this court.
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Issue:
Does a covenant not to sue for nuisance, contained in a duly recorded deed granting land for use as a garbage dump, bind subsequent purchasers of the grantor's remaining land even when their chain of title does not contain or refer to the covenant?
Opinions:
Majority - DeNNV, J.
Yes. A covenant not to sue for nuisance contained in a duly recorded deed binds subsequent purchasers of the grantor's remaining land. The grant and waiver in the deed from the Shipmans to the Town of Brevard created a right in the nature of an easement in favor of the Town upon the remainder of the grantors' lands. The waiver of the right to sue for future damages constitutes a covenant not to sue that is binding on the grantors, their heirs, and assigns. Unlike restrictive covenants, grantees take title to lands subject to duly recorded easements granted by their predecessors in title, regardless of whether their own deed references the easement. The public recording of the deed provides constructive notice to all subsequent purchasers. Furthermore, the doctrine of changed conditions, which may apply to restrictive covenants, does not affect a duly recorded easement.
Analysis:
This decision reinforces the legal distinction between restrictive covenants and easements that include covenants. It underscores the power of the public recording system to provide constructive notice, binding subsequent landowners to encumbrances on their property even if those are not mentioned in their direct chain of title. The case serves as a critical reminder for prospective real estate purchasers of the necessity of a thorough title search that examines not only their own chain of title but also deeds related to adjacent properties that may have been severed from a common grantor. It solidifies the principle that a properly recorded easement is a robust property right, less susceptible to equitable defenses like 'changed conditions' than a restrictive covenant.
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