with the free enjoyment of a public easement or privilege, must put himself on the ground of prescription; unless he has a grant, or some valid authority, from the government; and a right by prescription does not exist in the present case. Inhabitants of Arundel v. McCulloch, 10 Mass. R. 70.

CHAPTER VII.

OF THE RIGHT TO THE USE OF THE WATER, AS DEPENDING UPON CONTRACTS AND AGREEMENTS IN WRITING.

1. The Use subject to Special Agreement.

2. Contracts and Agreements by Specialty, and which run with the Land. 3. Contracts Personal.

4. Arbitrament and Award.

1. The Use subject to Special Agreement.

§ 255. By means of a special contract or agreement in writing, water rights may be created of a very limited nature, and subservient to the more general right of the riparian proprietors; and the extent and mode of the use of the water may be affected and determined by any considerations, conditions, and modifications, which the assent of the parties interested, may impose.1 Instances are afforded, of covenants, intended to establish a limited property in a watercourse, and the rights and privileges appurtenant thereto, which have been the subjects of controversy, and of judicial investigation and decision. It may be premised, that the word "covenant," is not to be regarded as a word of art, and essential to the constitution of a covenant; and any words in the instrument, in whatever part found, from which the intent of the parties to enter into the engagement, can be collected, are regarded as effectual for that pur

1 Tyler v. Wilkinson, 4 Mason, (Cir. Co.) R. 397.

pose.1 With reference to the nature of the estate on which, and the parties on whom, they are binding, they have been divided into real and personal. A covenant personal, relates only to matters personal, as distinguished from real, and is binding on the covenantor, during his life, and on his personal representatives, after his decease, in respect of assets. A covenant may also be personal, in a sense where it is to be performed personally, by the covenantor only. Collateral covenants are such as concern some collateral thing that does in no way, or rather not so immediately, relate to the thing granted. They are not binding on assignees, though executors and administrators, in their representative capacity, are chargeable, in respect of a breach. A real covenant is one which has for its object something annexed to, or inherent in, or connected with land or other real property; and it is one which descends to the heir, and which is transferred to a purchaser. In other words, it is one which necessarily runs with the land.

2. Contracts and Agreements by Specialty, and which run with the Land.

§ 256. A real covenant bears, therefore, a strong resemblance to an easement. Upon a grant confirming the easement of diverting water, the successive owners of the dominant estate become entitled to the benefit

1 Bac. Abr. "Covenant."

2 Platt on Cov. 67; 2 Wm. Black, R. 856; Cro. Eliz. 552.

3 Platt. on Cov. 70; 5 B. & Ald. R. 7, 8, Opinion of Holroyd, J.

4 Cruise, Dig. tit. 32, c. 25, s. 22.

5 See Ante, § 141, 142, et seq.

of the right conferred, and may sue for a violation of it; and as a general rule, it may be considered, that all implied covenants run with the land. Thus, if a lessor demise and grant to his lessee a house or land, for a certain term, the law will imply a covenant on the part of the lessor, that the lessee, during the term, shall quietly enjoy the same, against all encumbrances;1 and if the assignee of the lessee be evicted, "he shall have a writ of covenant." 2 An express grant of a watercourse, implies a covenant on the part of the grantor, not to disturb the grantee, his heirs or assigns, in the enjoyment of it.3

§ 257. But whether a particular express covenant which touches or concerns land, is a real covenant, running with the land, is not unfrequently a question of difficulty. It has, however, been agreed, ever since Spencer's case, that to make an assignee of a covenantor liable to an action of covenant, there must be a privity of estate, or contract, between them; and it is said, there are three manner of privities, viz.: 1. Privity of estate only. 2. Privity in respect of contract only. 3. Privity in respect to estate and contract together. The first, viz. privity of estate only, is between the grantee of the lessor's reversion, and the lessee, or between the lessor and the assignee of the lessee, for no contract was made between them. The second, privity in respect of contract of only, which is personal privity,

1 Co. Litt. 384.

2 Spencer's Case, 3 Co. R. 16, and notes to same, in 1 Smith, Lead. Ca. (Amer. edit.) 96, 138.

34 Kent, Comm. 473.

4 Balley v. Wells, 3 Wils. R. 29.

5 Spencer's Case, ub. sup. See Webb v. Russell, 3 T. R. 402.

and extends only to the person of the lessor, and the person of the lessee, as between the lessor and the lessee after the latter has assigned over, for the privity of contract remains, although the privity of estate is destroyed; and yet this is between the lessor and lessee only, for in the very case, viz.: an assignment by the lessee, there is no privity of contract between the lessor and the assignee, but there is a privity of estate between them. The third, viz.: privity in respect of contract and estate together, as between the lessor and lessee himself.1 Suppose that A should demise, by indenture, certain land on a watercourse to B, and that B covenants for himself, his heirs, &c., to build certain works or houses on the land; that B should underlet to C, and should covenant for himself, his heirs and assigns, to observe and perform, or effectually indemnify C against the covenants in the first indenture, and afterwards assigns his reversion to D; then suppose that A enters and ejects B, by reason of the non-performance of the first mentioned covenant, B's covenant with C does not run with the land, and D is not liable to C.

§ 258. It is obvious, that a covenant to build a mill or dam, on the land of a third person, is a mere personal covenant; but a contract to build a mill or dam on the land demised, will run with the land and bind the assignee, on account of the privity of estate between the contracting parties. Where such privity exists between the covenantor and covenantee, and the covenantor assigns his estate, the privity thereby created between the assignor and the other contracting party, renders

12 Sugd. on Vend. 467; Walker's Case, 3 Rep. 23 a.