CASES IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. HURXTHAL v. BOOM COMPANY. COVENANTS. A Covenant is Said to Run with the Land When either the liability to perform it or the right to enforce it passes to an assignee of the land. (p. 959.) COVENANTS.-To Create a Covenant Real There must be Privity Between the Parties. Otherwise it is simply a personal obligation, neither binding nor benefiting the land in the hands of heirs, devisees, or assigns. (p. 959.) COVENANTS.-A Covenant does not Run with the Land Unless contained in some grant thereof or of some estate therein (p. 959.) COVENANTS REAL Mere Words of Description cannot Create. If a covenant is not in its nature and kind a real covenant, the mere declaration of the parties that it shall run with the land cannot make a real covenant, though so stated in the document. 959.) (p. COVENANT Binding the Land-Right of Assignee of Grantee to Recover upon.-Where, in a contract between the owner of lands and another, the latter agrees to maintain and keep in good condition certain dams for a consideration specified, and the contract declares that it shall continue in force for five years, and at the option of the land owner, his heirs, representatives, and assigns exercise within five years, the agreement shall continue in force for ten years from its date, the grantee or other successor to the title of such land owner may maintain an action against the other party to the contract for a breach thereof. (p. 960.) COVENANTS Assignee of, Who is.-Where an agreement with a land owner stipulates for the maintenance and repair of certain dams for the benefit of his land, and purports to be in his favor and that of his heirs, representatives, and assigns, one who, after his death, purchases such lands at a judicial sale is entitled to sue upon the agreement as "assignee." (p. 960.) RES ADJUDICATA-Decree Allowing a Claim Against an Estate. If a bill is brought to convene the creditors of a decedent, and states that a person named claims a debt against the decedent, which was not conceded by him, and such person appears in such proceeding and presents such claim, which is for maintaining and keeping in repair certain dams according to the terms of a written agreement, and evidence is taken to sustain and to repel the claim, and a decree results allowing it, this is conclusive upon the administrator and successor in interest of the decedent's title to the lands. benefited by the agreement that the claimant had not committed any breach of it, and if such lands are subsequently sold to pay the debts of such decedent, the purchaser cannot maintain an action against such claimant for a breach of the agreement alleged to have occurred during the time for which the claim was allowed. (p. 962.) RES JUDICATA-Time and Parties to Which Applies.-A decree establishing a claim against the estate of a decedent for acts claimed to be done in the performance of a covenant for the benefit of his land, while conclusive of such performance during his lifetime, is not conclusive that a breach of the covenant was not committed after his death, and does not prevent one who has acquired title to such land under a decree directing its sale for the payment of decedent's debts from maintaining an action for the breach of such covenant alleged to have been committed during the plaintiff's ownership. (p. 962.) DAMAGES, Entire and Permanent, When Recoverable and When not. If a cause of injury is in nature permanent, and the recovery for such injury would confer a license on the defendant to continue it, entire damages may be recovered in a single action; but where the cause is not permanent in character, but such that it may be supposed that the defendant would remove it rather than suffer at once a heavy recovery for entire, permanent, and lasting damages, including the future, damages canot be recovered in a single action, but actions may be maintained repeatedly as long as the cause of injury continues to inflict damages. (pp. 963, 965.) COVENANT-When a Breach does not Support a Recovery as for a Total Breach.-One suing for the breach of a contract to maintain a dam at a specified height for a designated number of years, and establishing such breach at a time anterior to the commencement of the action, is not entitled to treat the contract as abrogated, and to recover, in addition to the damages sustained up to the present time, also all future damages which the jury believe must necessarily result from such total breach down to the end of the contract. (p. 964.) Such NEGLIGENCE, Contributory as a Bar to Actions of Contract. In an action to recover damages for the breach of a contract, the contributory negligence of the plaintiff ordinarily does not preclude his recovery, as would be in the case of an action of tort. negligence rarely releases the defendant from the obligation to perform his contract, but is always to be considered in fixing the amount of the damages, i. e., so much of the damage as is attributable to the plaintiff's negligence should be excluded from the recovery. (p. 967.) DAMAGES Allowable for the Breach of a Contract must not go beyond fair compensation for the total loss sustained and must be such as are the reasonable and probable consequences of the act. complained of. (p. 968.) DAMAGES-Punitive Damages cannot be Allowed in Actions on the Case. (p. 968.) A. M. Prichard and S. S. Greene, for the plaintiff in error. Flournoy, Price & Smith and A. B. Littlepage, for the defendant in error. 89 BRANNON, J. Josie M. Hurxthal brought an action of covenant against St. Lawrence Boom and Manufacturing Company in the circuit court of Greenbrier county and received a verdict and judgment for four thousand dollars, and the company sued out this writ of error. Ben Hurxthal owned a flour and grist-mill on Greenbrier river, which was supplied with water by a race fed by a dam in the river near the head of the race. The said company owned a sawmill which was also fed by said mill-race at a point some distance above the Hurxthal mill. The said company had booms in the river above the mill-race for catching logs. The logs sawed on the company's sawmill were floated down the river to the head of the mill-race and then down the mill-race to a point a little above the sawmill, at which point the logs left the mill-race and were floated to the mill on a lateral channel leading from the mill-race to the river. Near the point where this channel entered the river the channel was divided into two parts by an island and across the two mouths of this channel, which channel is called a log pond, there were two small dams erected to prevent the water which flowed into the mill-race at its head from going into the river through the log pond, not only to keep the pond from being too shallow but, also to keep it from being lost from the grist-mill farther on down. 90 These dams had been erected by the Boom Company. On the thirteenth day of June, 1894, said Boom Company and Ben Hurxthal entered into an agreement, under seal, by which the eaid company bound itself to "maintain and keep in good repair the said dam in Greenbrier river" and the two small dams at the foot of the log pond for a period of five years. The said river dam was to be maintained at the height which should give the same head of water as if erected at the site of an old dam which stood just below the head of said mill-race, and had been built at the latter point seven feet high from the surface of the water at low stage-the object being to make the dam equivalent to a seven foot dam on the old site. The agreement further bound the company to maintain in good repair the two dams at the foot of the log pond at such height as should prevent the water in the mill-race from being drawn off through the channels closed by the said two small dams. The agree ment gave the right to the company to maintain the trestle that crossed the race leading to the said grist-mill at the point where the trestle then stood, and also to maintain the bridge across the race which then stood across it, and to use said trestle and bridge, and bound the company to keep the trestle and bridge free from such trash as might impede the flow of water through the race to said grist-mill. For maintaining said dams the agreement bound Ben Hurxthal to pay the company seventyfive dollars per year, and said "the obligation to pay the same shall, in addition to being a personal one, be a covenant running with the land and binding upon said Ronceverte Flour Mills,. mill-race and water-power into whosesoever hands they may pass." The agreement contained the language: "This agree-ment shall continue in force for the period of five years next ensuing the date thereof, and at the option of the said party of the second part, his heirs, representatives or assigns, to beexercised by notice in writing to said party of the first part given within the said five years, shall continue in force ten years from date thereof." Several years after the date of the agreement Ben Hurxthal died and Josie M. Hurxthal, as his administratrix, brought a chancery suit to convene all the creditors of said decedent's estate, ascertain their debts and sell his real estate, including said grist-mill property, to pay such debts, and under a decree in that case the 91 said grist-mill was sold on March 16, 1899, and purchased by Josie M. Hurxthal, the plaintiff in the action of covenant. On the 13th of June, 1899, Josie M. Hurxthal gave a written notice to the said company that she would' extend the operation of the said agreement for the additional period of five years as provided therein. She paid seventy-five dollars to said company for the maintenance of said dams for one year after the 13th of June, 1899. In her bill in the said chancery suit brought by Mrs. Hurxthal as her husband's administratrix to convene her husband's creditors she specified various debts against her husband's estate and its lands as stated that "the St. Lawrence Boom and Manufacturing Company claims a debt against said Ben Hurxthal, which was contested by him." The said company presented its claim in that. suit before the commissioner for three hundred dollars against Hurxthal's estate for compensation under said agreement for the maintenance of said dans for four years during the life time of the said Hurxthal. The estate of Hurxthal contested this demand of the company and took evidence to repel it and the company took evidence to sustain it. The commissioner disallowed the claim. Then the company filed its answer to the bill, setting up the said agreement and claiming the said three hundred dollars for keeping up the said dams for the said four years, the said company having been made a formal party defendant to the bill filed by said administratrix. The case was referred back to the commissioner to report the debts of said estate, and before him both sides took evidence to sustain and repel such demand, and the result was that the commissioner again rejected said demand as a claim against the estate; but upon an exception to his report by the company the court allowed the said demand and decreed it as a debt against Hurxthal's estate, but only as a general debt, and not as a lien on the grist-mill property. Then the company appealed the case to this court because of the refusal of the circuit court to decree its debt as a lien under said agreement, and accord to it its proper preference over other debts, and this court declared it such lien, as will be seen in Hurxthal v. Hurxthal, 45 W. Va. 584, 32 S. E. 237. Afterward, as first above stated, Josie M. Hursthal brought said action of covenant against said company, claiming that the company had not kept the covenant contained in said agreement of the 13th of June, 1894, but had broken the same in failing to maintain the said 92 dam across Greenbrier river and said two dams at the foot of said log pond at the height stipulated by said agreement, and in suffering and permitting debris to accumulate in the mill-race at the points where the company's bridge and trestle crossed said race, thereby preventing the flow of a sufficient quantity of water to the plaintiff's grist-mill to operate the same. A question going to the very root of the case, because involving the very right of the plaintiff to sue upon the agreement on which her suit is based, arises upon the plaintiff's first instruction saying, that if she, before the 13th of June, 1899, gave the company written notice that she elected to extend the agreement of the 13th of June, 1894, for five years after the 13th of June, 1899, then the plaintiff had succeeded to the rights of Ben Hurxthal under that agreement. This involves the question whether the covenants in said agreement binding the company to maintain the dams as therein provided, and not to suffer or permit the accumulation of trash in the millrace, are covenants real running with the grist-mill property and inuring to the benefit of the plaintiff as its owner derivately from Ben Hurxthal, and thus entitling her to sue for an |