Regardless of the express recital in a deed that a covenant will run with the land, a promise to do an affirmative act contained in a deed is generally not binding upon subsequent grantees of the promisor. For a covenant to run with the land, it must be shown that: (1) the original grantee and grantor intended that the covenant run with the land, (2) there exists "privity of estate" between the party claiming the right to enforce the covenant and the party upon whom the burden of the covenant is to be imposed, and (3) the covenant must "touch and concern" the land with which it runs. Even though the parties to the original deed expressly state in the instrument that the covenant will run with the land, such a recital is insufficient to render the covenant enforceable against subsequent grantees if the other requirements are not met.
Respondent purchased land under a deed containing a covenant whereby the owner of the land would purchase water from appellant. According to the stipulated facts, respondent refused to accept and pay for water offered by appellant since he has constructed his own well to service what is now a year-round dwelling. Appellant, therefore, instituted this action to collect the fee specified in the covenant (contained only in the original deed to the subdivision owner Baum) for the supply of water which, appellant contends, respondent is bound to accept. The action was styled as one "for goods sold and delivered" even though respondent did not utilize any of appellant's water. Two of the lower courts found that the covenant "ran" with the land and, hence, was binding upon respondent as successor to the Baums, but the Appellate Division reversed and held that the covenant could not be enforced against respondent. The Court of Appeals of New York affirmed the appellate court's dismissal of the complaint
Is the promise of the original grantees to accept and make payment for a seasonal water supply from the well of their grantor enforceable against subsequent grantees and may be said to "run with the land?"
The covenant for water supply did not sufficiently touch and concern the land to be enforceable. Even though the parties to the original deed expressly state in the instrument that the covenant will run with the land, such a recital is insufficient to render the covenant enforceable against subsequent grantees if the other requirements for the running of an affirmative covenant are not met.