Citation. 22 Ill.233 N.C. 26, 62 S.E.2d 512 (1950)
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Owners of property (Plaintiffs) in a subdivision surrounding a town dump seek to have the dump abated as a private and public nuisance. When Defendant bought the property, the deed contained a covenant not to sue, which would run with the land and would be included in any of the remaining lots sold out of the remaining one hundred acres surrounding the dump.
Synopsis of Rule of Law.
A covenant or agreement may operate as a grant of an easement if it is necessary to give it that effect in order to carry out the manifest intention of the parties. 17 Am. Jur. Section: 27
Facts.
In 1938, Mr. and Mrs. Shipman sold a five-acre tract to the Town of Brevard (Defendant). These parties contemplated placing a dump on this tract. The five acre-tract and dump was located in the middle of a one hundred acre tract owned by the Shipmans. The conveyance from the Shipmans to Defendant stated that the land was to be used as a dump. The deed contained a covenant not to sue, which would run with the land and would be included in any of the remaining lots sold out of the remaining one hundred acres surrounding the dump. After Defendant began using the land as a dump, the Shipmans started selling other lots. Thirty-five to forty families now live in the surrounding lots of the dump. In 1939, Mr. and Mrs. Tinsley bought a lot from the Shipmans, which was about three hundred yards from the dump, and built a house. The Plaintiffs in this action are the surrounding landowners, like the Tinsleys, who seek to have the dump abated as a private and public nuisance. They also se
ek to recover special damages resulting from the operation of the dump, which began in 1946.
Issue.
May the Plaintiffs sue despite the original grantor’s covenant not to sue, which was included in the deed to Defendant?
Held.
No. Judgment affirmed.
The normal operation of a dump in a reasonably careful and prudent manner constitutes a nuisance. The Plaintiffs are therefore estopped from asserting any claim for damages or for other relief arising out of the Defendant’s operation of the dump.
A covenant or agreement may operate as a grant of an easement if it is necessary to give it that effect in order to carry out the manifest intention of the parties. 17 Am. Jur. Section: 27.
The grant and release or waiver contained in the deed from the Shipmans to the Defendant created a right in the nature of an easement in favor of the Defendant upon the remainder of the lands owned by the grantors. The release is binding upon the grantor, their heirs and assigns, including the Plaintiffs.
The Plaintiffs’ complaint did not allege any negligence in the operation of the dump. The complaint only stated that the dump as it was being operated constituted a nuisance. Therefore, the complaint must be dismissed.
Discussion.
The surrounding land was subdivided after Defendant began using the land as a dump. It could be said that Plaintiffs had constructive notice that the dump was nearby and would be a nuisance in its normal operation, although the Court did no so hold. Instead the court found that there was an easement in favor of the Defendant.
