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Moseley v. Bishop - 470 N.E.2d 773 (Ind. Ct. App. 1984)

Rule:

Generally, a covenant imposing an affirmative burden will run with the land if (1) the covenantors intend it to run, (2) the covenant touches and concerns the land, and (3) there is privity of estate between subsequent grantees of the original covenantor and covenantee.

Facts:

Edith Moseley brought suit against Merrill and Joanna Gates and several others (hereinafter defendants) seeking damages for the defendants' failure to maintain a tile drain that served Moseley's farm and ran across the Gateses' land. This suit was based upon a contract made in 1896 by Henry Moseley, who then owned what is now the plaintiff's farm, and William Bohn, the defendants' predecessor in interest. The trial court ruled that this contract, which required Bohn to "permanently maintain" the drain at issue, did not run with the land and thus, was not binding upon the defendants, Bohn's successors. The trial court also ruled that Moseley had not proven that the defendants' failure to repair the drain caused the losses of which she complained. Moseley appealed, claiming the trial court's judgment was contrary to law.

Issue:

Did the contract, which required a grantee to "permanently maintain" a drain, run with the land and thus was binding upon the defendants, the grantee's successors?

Answer:

Yes

Conclusion:

The appellate court reversed the trial court's judgment in part, holding that there was an intention in the original contract to bind later grantees of the burdened property and found that the covenant to maintain the tile drain was clearly connected to both pieces of property. Additionally, privity of estate requirements were met and the court found, therefore, that this was a covenant running with the land which could be enforced by the landowner against the adjoining landowner. However, there was evidence that the flooding on Moseley's farm, which caused these losses, was due to heavy rains, which flooded even well-drained property surrounding Moseley's farm; thus, the trial court's ruling that Moseley was entitled to no damages was not contrary to law, and that part of the trial court's judgment was affirmed because Moseley could not establish that damages were caused by the failure to maintain the tile drain.

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