Northwestern Improvement Co. v. Lowry , 104 Mont. 289 ( 1937 )

The condition and covenant in the deed in question prohibiting the use of the property conveyed for the sale of liquors by the grantee or his successors in interest is valid. (Cowell v.Colorado Springs Co., 100 U.S. 55, 25 L. Ed. 547; Jetter v.Lyon, 70 Neb. 429, 97 N.W. 596; Fete v. Foerstel,159 Mo. App. 75, 139 S.W. 820; Whealkate Min. Co. v. Mulari,152 Mich. 607, 116 N.W. 360, 18 L.R.A. (n.s.) 147; O'Brien v. Wetherell,14 Kan. 616; Sioux City St. P. Ry. Co. v. Singer, 49 Minn. 301,51 N.W. 905, 32 Am. St. Rep. 554, 15 L.R.A. 751; Hatcher v. Andrews, 5 Bush. (68 Ky.) 561; Chippewa Lbr. Co. v.Tremper, 75 Mich. 36, 42 N.W. 532, 13 Am. St. Rep. 420, 4 L.R.A. 373; Fusha v. Dacono Townsite Co., 60 Colo. 315,153 P. 226, Ann. Cas. 1917C, p. 108, and note; Burdell v.Grandi, 152 Cal. 376, 92 P. 1022, 125 Am. St. Rep. 61, 14 L.R.A. (n.s.) 909; 18 C.J., p. 361, secs. 376, 377.)

The grantee or his successors in interest may be restrained by injunction from the breach of such a condition in the deed. (Watrous v. Allen, 57 Mich. 362, 24 N.W. 104, 58 Am. Rep. 363, a leading case; Southern P. Ry. Co. v. Blaisdell,33 Cal. App. 239, 164 P. 804; Robinson v. Edgell, 57 W. Va. 157,49 S.E. 1027; Columbia College v. Lynch, 70 N.Y. 440,448, 26 Am. Rep. 615, 622; Fort Worth Driving Club v. FortWorth Fair Assn., 103 Tex. 24, 122 S.W. 254, Ann. Cas. 1912d 67; DeLima v. Mitchell, 49 Misc. 171, 98 N.Y. Supp. 811;Post v. Weil, 115 N.Y. 361, 22 N.E. 145, 12 Am. St. Rep. 809, 5 L.R.A. 422; Star Brewery Co. v. Primas, 163 Ill. 652,45 N.E. 145; Sutton v. Head, 86 Ky. 156, 5 S.W. 410, 9 Am. St. Rep. 274; High on Injunctions, secs. 1153 and 1158; Pomeroy Eq. Jur., sec. 1342; 32 C.J., p. 215, sec. 333.)

The fact that forfeiture is prescribed as a penalty for the breach of such condition in a deed is no objection to the granting of an injunction to restrain such breach. (Watrous v.Allen, supra; Edwards v. West Woodridge Theater Co.,55 F.2d 524; Richards v. Burdsall, 10 Atl. (N.J.) 274;Guyer v. Auers, 132 Ill. App. 520; Joseph Schlitz Brew. Co. v. Nielsen, 77 Neb. 868, 110 N.W. 746, 8 L.R.A. (n.s.) 494;Star Brewery Co. v. Primas, supra; Goodrich v. Brubaker, (Tex.Civ.App.) 80 S.W.2d 1047; Torrey v. Wolfes,6 Fed. 2d 702, 56 App. D.C. 4; Greer v. Bornstein, 246 Ky. 286,54 S.W.2d 927; McKee v. Club-View Heights, 230 Ala. 652,162 So. 671; High on Injunction, 4th ed., sec. 1138; 35 C.J., p. 215, sec. 333)

The injunction may be issued against the lessee of the grantee, or sublessee, or grantee of the grantee. (Fort WorthDriving Club v. Fort Worth Fair Assn., supra; Maddox v.White, 4 Md. 72, 59 Am. Dec. 67; Wertheimer v. Wayne,Circuit Judge, 83 Mich. 56, 47 N.W. 47; Stees v. Kranz,32 Minn. 313, 20 N.W. 241; High on Injunction, 4th ed., sec. 1154; 36 C.J., p. 94, sec. 730.)

Counsel for defendant contended in his brief below that, under the provisions of section 2215, Revised Codes, 1921 (amended by Chapter 85, Laws of 1927), as construed by this court, the tax deed wiped out such covenants and conditions in the deed from plaintiff. It will be noted that section 2215 states that it is only "encumbrances" that the tax title will be free from. It makes no mention of "easements." Neither one of the cases ofState ex rel. City of Great Falls v. Jeffries, 83 Mont. 111,270 P. 638, State ex rel. Malott v. Board of CountyCommissioners, 89 Mont. 37, 296 P. 1, and State ex rel. Cityof Billings v. Osten, 91 Mont. 76, 5 P.2d 562, in which the above section was considered, involved the question of what effect a tax deed has upon an easement against the property created by covenants and conditions like those contained in the deed under which this lot was acquired from the plaintiff by a purchaser who later allowed it to be sold for taxes. In 3 Cooley on Taxation, section 1494, it is said: "Ordinarily, a tax sale does not divest easements charged on the property sold. Thus, private easements of light, air and access of adjoining owners over the land sold are not extinguished by the tax-sale." This statement shows that Cooley recognizes a clear distinction between "encumbrances, liens and interests" in land and an "easement," which is a separate estate reserved and owned by a third party distinct from ownership of the land burdened by such easement, defined as the "servient tenement." (Sec. 6751, Rev. Codes.)

A tax deed to land does not affect easements thereon. (Blenis v. Utica Knitting Co., 73 Misc. 61,130 N.Y. Supp. 740, affirmed in 210 N.Y. 614, 104 N.E. 1127; Jackson v.Smith, 153 A.D. 724, 138 N.Y. Supp. 654, affirmed in 213 N.Y. 630,107 N.E. 1079; Ehren Realty Co. v. Magna C. Building L.Assn., 120 N.J. Eq. 136, 184 A. 203; Tide-Water Pipe Co. v.Bell, 280 Pa. 104, 124 A. 351, 40 A.L.R. 1516, and note;Winnipiseogee Lake C. W. Mfg. Co. v. Town of Gilford,64 N.H. 337, 10 A. 849; Stansell v. American Radiator Co.,163 Mich. 528, 128 N.W. 789.) When the plaintiff herein sold lot 13, the reservations contained in the deed were "privileges appertaining" to the dominant estate created by such deed, and, if assessed, could be assessed only to the owner of such dominant estate, as was held in the above case from Michigan. (Mannix v.Powell County, 60 Mont. 510, 199 P. 914; Smith v.Denniff, 24 Mont. 20, 60 P. 398, 81 Am. St. Rep. 408, 50 L.R.A. 741; Cooley on Taxation, 4th ed., sec. 1494.) The easement or "negative easement," as often designated, is not assessed to the grantee of the lot, who takes the same subject to such negative easement, as the easement belongs to the dominant tenement. (Northern P. Ry. Co. v. Musselshell County,74 Mont. 81, 238 P. 872; Ferguson v. Standley, 89 Mont. 489,300 P. 245.) If an easement is not "taxable separate and apart" from the dominant estate, how can it be wiped out by an assessment on and sale of the servient estate? (Bernstein v.Dodik, 129 Cal. App. 454, 18 P.2d 983; Smith v. Smith,21 Cal. App. 378, 131 P. 890). In the case at bar, all that could be assessed against lot 13 was the "naked legal title" and that title was all that was conveyed by the tax deed. Plaintiff's easement was not involved. (See, also, Crawford v. Senosky,128 Or. 229, 274 P. 306, 19 C.J., p. 947, sec. 162; 3 Cooley on Taxation, 4th ed., sec. 1154.)

Building restrictions in a deed defining the kind or location or use to be made of buildings to be erected on the land conveyed have been defined by the courts to be "in the nature of a negative easement." (Martin v. Holm, 197 Cal. 733,242 P. 718, 719, par. 4; Sackett v. Los Angeles City School Dist.,118 Cal. App. 254, 5 P.2d 23; Davis v. Robinson,189 N.C. 589, 127 S.E. 697; Burgess v. Magarian, 214 Iowa, 694,243 N.W. 356; Chesebro v. Moers, 233 N.Y. 75, 134 N.E. 842, 21 A.L.R. 1270, and note at p. 1324; Putnam v. Ernst,232 Mich. 682, 206 N.W. 527, par. 5; Bernero v. McFarland Real Estate Co.,134 Mo. App. 290, 114 S.W. 531; 19 C.J., p. 869, sec. 8.)

The restriction contained in the deeds from the Northwestern Improvement Company is a negative easement or equitable servitude, and it is not wiped out or invalidated by a tax deed for the servient tenement — that is, by a tax deed for the land sold that is subject to such restriction or easement. Here the plaintiff owns something that was not sold to Linden, the original purchaser — the right or easement reserved by it in the original deed. That right or easement was not assessed, not sold for taxes, not covered by the tax deed and was never acquired by defendant. So, plaintiff is entitled to enjoin defendant from interfering therewith.

In Alamogordo Improvement Co. v. Hennessee, 40 N.M. 162,56 P.2d 1127, cited and relied upon by respondent, the court evidently assumed that the assessment of a servient estate that was subject to an easement owned by the owner of the dominant estate and appurtenant to the dominant estate, was also an assessment of such easement and that the easement was sold for taxes when the servient estate was assessed and sold for taxes. As already shown in this brief, no such assumption can be made under our statutes and decisions of this court, for, as said inFerguson v. Standley, supra, an "easement is appurtenant to the dominant estate and is not taxable separate and apart from it." The real and only question involved in this action is what kind of a title does one acquire under a tax deed in this state? What does section 2215, Revised Codes, mean by saying: "The deed conveys to the grantee the absolute title to the land," etc. "Absolute" means unrestricted, as an unconditional conveyance; an estate without condition or qualification. (In re Bedford'sEstate, Commercial Nat. Bank v. Bedford, 34 Utah, 24,95 P. 518, 16 Ann. Cas. 118, 16 L.R.A. (n.s.) 728.) Our contention is that under the decisions of this court, a tax deed is not derivative, but creates a new title in the nature of an independent grant from the sovereignty, extinguishing all former titles and liens, not expressly exempted from its operation, and this view is upheld and expressed in the case of State ex rel.City of Great Falls v. Jeffries, County Treasurer, 83 Mont. 111,270 P. 638.

A new title, an absolute title, an independent grant from the sovereignty, these expressions certainly have a well defined meaning, and they surely do not mean that the title acquired under a tax deed in this state, is one subject to restrictions and encumbrances and easements.

In the annotation contained on page 1523, of 40 A.L.R., it is stated, "The cases are not agreed upon the question whether an easement or servitude upon land that is sold for taxes is extinguished by such sale. The solution of this question should depend upon the nature of the tax levy. If the tax is levied upon the real estate without regard to the various interests that may have been carved out of it, then in principle a sale of the land for taxes should pass a fee simple to the purchaser relieved of all easements. If, on the other hand, the tax is levied merely on the servient estate, then a sale of the land for taxes should pass merely the servient estate; that is, the land subject to the easement. The better considered cases adhere to this theory. Others, however, do not consider the nature of the tax levy, but deny that the easement is extinguished solely on the ground that the person taxed had no title to the easement, and, therefore, the sale could not pass title thereto. This theory, of course, makes the tax an assessment against the particular estate rather than against the land itself." Under our statutes relative to assessment, the land is assessed.

In the case of Cates v. Western Union Tel. Co.,151 N.C. 497, 66 S.E. 592, 24 L.R.A. (n.s.) 1286, the court said: "If valid, it [the tax deed] is a breaking up of all other titles, and is antagonistic to all other claims to the land." (See, also,Hefner v. Northwestern Mutual L. Ins. Co., 123 U.S. 747,8 Sup. Ct. 337, 31 L. Ed. 309; Hussman v. Durham, 165 U.S. 144, 17 Sup. Ct. 253, 41 L. Ed. 664; Atkins v. Hinman, 7 Ill. 437;Gwynne v. Niswanger, 20 Ohio, 556; McFadden v. Goff,32 Kan. 415, 4 P. 841; Henrylyn Irr. District v. Patterson,65 Colo. 385, 176 P. 493; Baird v. Stubbins, 58 N.D. 351,226 N.W. 529, 65 A.L.R. 1009, 1013; Jones v. Devore, 8 Ohio St. 430;Brown v. Austin, 41 Vt. 262; State v. Mathews,68 W. Va. 89, 69 S.E. 644; Utah Oil Ref. Co. v. MillardCounty, etc., (Utah) 50 P.2d 774; Moe v. Brumfield,182 Wash. 608, 47 P.2d 847; Swan v. Kuehner, 157 Okla. 37,10 P.2d 707; Windom v. Schuppel, 39 Minn. 35, 38 N.W. 757;Smith v. Williams, 44 Mich. 240, 6 N.W. 662; Taylor v.Lawrence, 176 Okla. 75, 54 P.2d 634; Blackwell on Tax Titles, p. 630; 61 C.J. 1310.)

The case of Alamogorodo Improvement Co. v. Hennessee,40 N.M. 162, 56 P.2d 1127, is an exact counterpart of the case now before this court. The court said: "The sole question is whether the right of forfeiture and reversion contained in the deed survived the sale of the property under the proceedings foreclosing the tax liens. The sale of the land under foreclosure of a tax lien created a new and paramount title cutting off all prior lien, incumbrances and interests of every character. * * * Whether or not appellant's reservation in the deed was an interest in real estate, it existed by virtue of a deed, the effect of which has been utterly destroyed along with every present, future or possible interest that existed in any person, prior to the sale of the land for taxes; for the effect of the tax deed was to vest in appellee, a new and paramount title in fee simple, good against the world, except the state and the United States."

It seems to us that this decision covers the issue involved in the present case, and in every respect supports our contention that the title of the defendant is free from the restriction contained in the conveyance made by the Northwestern Improvement Company.

Counsel for appellant in referring to the cases we have cited, say: "not one of which involves `easements' or the assessment or sale thereof." We might state in this connection that we are fully aware of the fact that many of the cases we have cited do not directly pass upon the question as to whether or not a tax deed conveys title free from an easement such as contained in the deed set forth in appellant's complaint in this action, however each and every one of the cases cited does specifically hold that a tax deed created a new title in the nature of an independent grant from the sovereignty, and as stated in the case of Taylor v. Lawrence, supra, "A virgin title, comparable to a patent from the government, unaffected, either for good or ill, by anything pertaining to the former chain of title."

Counsel for appellant refer to the restriction contained in the Linden deed as "a negative easement," but is it not more what might be termed as a "condition subsequent" which is defined in Webster's dictionary as "where the effect of its fulfillment is to defeat or modify a previously vested estate or accrued obligation." As defined in 12 C.J., page 410: "A condition which operates upon an estate already created and vested, and renders it liable to be defeated." A restriction such as contained in the deed from the Northwestern Improvement Co., to Linden is not what can be termed even a "negative easement." It does not constitute such property right or interest as to be assessable against what is called the dominant estate. As stated in the case ofUpington v. Corrigan, 151 N.Y. 143, 45 N.E. 359, 37 L.R.A. 794: "There is simply a possibility of reverter, but that is no estate. There is not even a possibility coupled with an interest, but a bare possibility alone. It is a condition subsequent, and upon its breach the company had a right to treat the estate as having reverted to it, and bring ejectment for the premises." (Lewiston Water Power Co. v. Brown, 42 Wash. 555,85 P. 47.) A similar restrictive clause in a conveyance was termed and defined as a condition subsequent in the case of Sioux City St. Paul R. Co. v. Singer, 49 Minn. 301, 51 N.W. 905, 32 Am. St. Rep. 554, 15 L.R.A. 751.

If, as this court has held, an "absolute title is passed by a tax deed," then a restrictive clause in a prior conveyance which under the law is termed as nothing more nor less than "a bare possibility alone" is wiped out by such a tax deed, and the restrictive clause cannot be enforced either by forfeiture or injunction. This action was brought to secure an injunction against the defendant from using a certain lot in the town of Paradise, and the buildings thereon, as a place for the sale of vinous, spirituous, or fermented liquors as a beverage. After the case was at issue it was submitted to the trial court for judgment and decision upon an agreed statement of facts.

The plaintiff corporation was duly authorized to transact business within the state. In the year 1907 it acquired title in fee and the possession of certain lands which it purchased for the purpose of platting into a townsite and establishing a town on the line of the Northern Pacific Railway Company, where the selling of vinous, spirituous, and fermented liquors would not be permitted. These lands were acquired for the additional purpose of establishing a tie-treating plant on the lands where the sale of these liquors would not be allowed. In June, 1908, plaintiff platted a part of the lands described in the complaint and agreed statement of facts as a townsite and divided the same into blocks, lots, streets, and alleys. This plat was filed for record in the office of the county clerk and recorder of Sanders county on June 13, 1908. Since the platting and recording of the townsite the plaintiff has sold a large number of lots to various persons, giving them deeds for the lands sold; however, plaintiff still owns in fee and has possession of a large number of lots in the town which are not sold, and has possession of other portions of the land thus acquired which are not embraced in the townsite. The Northern Pacific Railway Company has established a division point at Paradise and a large number of its employees reside in the town of Paradise, and the tie-treating plant has been established and a large number of men are there employed. Many persons who have purchased lots have erected dwellings and business buildings thereon and are now occupying the same.

In each deed and conveyance executed and delivered by the plaintiff to purchasers for lots in the townsite and for the lands not embraced within the townsite the plaintiff inserted the following covenant and condition: "The grantor has made and recorded a plat of the townsite of Paradise, which contains the premises in question and proposes to deed other premises in the plat to other purchasers. It inserts in all the conveyances of lots therein the covenant and condition following, which is also made a part of this conveyance, viz.: It is agreed that the premises conveyed shall not be used as a place for the sale of vinous, spirituous or fermented liquors as a beverage, nor for gambling, nor for any immoral purpose. The observance of this covenant is made a condition and if at any time the grantee, his assigns, heirs, or legal representatives, shall use the premises contrary to the terms of this covenant, then this conveyance shall be void, the premises immediately revert to the grantor, and the grantor may forthwith enter upon and take possession of the same."

In March, 1910, the plaintiff for a valuable consideration executed and delivered a deed to one Louis M. Linden for lot No. 13, in block 2, of the townsite of Paradise, which was recorded on December 28, 1911. This deed contained the covenant quoted supra. In December, 1935, and in January, 1936, the defendant completed the construction of a building on this lot and is now using the building for the sale of fermented liquor as a beverage — namely, beer — and has continued, since January 15, 1936, to sell fermented liquor without the consent of the plaintiff. Prior to the erection of the building on the lot of the defendant, he had knowledge of the covenants and conditions contained in the deed executed by the plaintiff, and prior to the erection thereof defendant was notified that plaintiff would not waive any of the conditions and covenants in the deed relating to the sale of liquor in Paradise, and would not grant the defendant permission to operate a beer parlor on this lot or in the town. The defendant refused to stop selling beer as a beverage in the building erected on his lot.

In the year 1925 Sanders county, through its proper officers, made a legal assessment and levy for state, county, school, and other taxes upon this lot. Due notification was made of the assessment and levy upon the owner of the lot. In November of that year these taxes became delinquent. The lot was sold for delinquent taxes and, after due and legal notice, on September 30, 1929, a tax deed was regularly issued by the treasurer of Sanders county to the county for the lot. Thereafter, on May 6, 1930, the county, as the owner of the lot, sold and conveyed it to one John F. Hauge; he thereafter sold it to the defendant, who has since December 10, 1935, been, and now is, in actual and exclusive possession.

The court found as conclusions of law that the conditions and covenants set forth in the deed were not binding upon the defendant, and therefore plaintiff could not enforce the same and that defendant was entitled to a decree of court dismissing the action upon the merits. Thereafter judgment of dismissal was entered in conformity with these conclusions. The appeal is from the judgment. Error is assigned upon the making of the conclusions of law, and the rendering and entering of the judgment.

The agreed statement of facts discloses that the levy of the tax and all proceedings leading up to the tax deed were in all respects regular and binding. The primary question for solution in this case is whether, as the result of the issuance of the tax deed, the restrictive covenants contained in the deed from the plaintiff to the original purchaser of this lot are thereby rendered of no force and effect as against the defendant.

In the case of State ex rel. City of Great Falls v.[1] Jeffries, 83 Mont. 111, 270 P. 638, 640, this court said: "However, `the legislature has power to provide either that a tax sale shall create a new title, cutting off all prior liens, incumbrances and interests, or to provide that the tax purchaser shall acquire the interest only of the person in whose name the land was assessed or of the real owner.' (3 Cooley on Taxation, 4th ed., 2930, sec. 1492.) By the enactment of section 2215, Revised Codes 1921, providing that a tax deed conveys absolute title `free from all incumbrances, except the lien for taxes which may have attached subsequent to the sale,' our legislature adopted the first course. The tax deed mentioned is not derivative, but creates a new title in the nature of an independent grant from the sovereignty, extinguishing all former titles and liens not expressly exempted from its operation." The court adhered to its pronouncement in the Jeffries Case in the case of Richardson v. Lloyd, 90 Mont. 127, 300 P. 254.

It will be observed that in this case no attempt is made to assert the right by the plaintiff as contained in the covenant, to claim title to the property in question. Such right was a possibility of reverter. (1 Tiffany on Real Property, 2d ed., 473.) The possibility of reverter, under the decisions cited supra, was annihilated by the tax deed proceeding. Still the[2-4] question remains as to whether plaintiff may secure injunctive relief. Section 6749, Revised Codes, provides: "The following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements: * * * 6. The right of transacting business upon land." Easements are sometimes divided into affirmative and negative. An "affirmative easement" is one which authorizes the doing of acts which, if no easement existed, would give rise to a right of action. A "negative easement" is one the effect of which is not to authorize the doing of an act by the person entitled to the easement, but merely to preclude the owner of the land subject to the easement from doing that which, if no easement existed, he would be entitled to do. (2 Tiffany on Real Property, 2d ed., 1179-1199.) The common illustration of an affirmative easement is a right of way over the land of another. The common illustrations of negative easements are the right to have light passing to one's building over another's land, and the right to have one's building supported by such land. The nature of easements is well explained in an article in 27 Yale Law Journal, pp. 71, 72.

The lands to which an easement is attached is called the "dominant tenement"; the land upon which the burden or servitude is laid is called the "servient tenement." (Sec. 6751, Rev. Codes.) An easement may be appurtenant to land although the servient tenement is not adjacent to the land of the dominant tenement. (Jones v. Stevens, 276 Mass. 318, 177 N.E. 91, 76 A.L.R. 591; 19 C.J. 864; Lindenmuth v. Safe Harbor Water PowerCorp., 309 Pa. 58, 163 A. 159, 89 A.L.R. 1181; 9 R.C.L. 738.)

By the covenant contained in the original deed from the[5] plaintiff to the first purchaser of the lot in question, a negative easement appurtenant to the remaining lands owned by plaintiff was created; the lands of the plaintiff being the dominant tenement, and the lot mentioned the servient tenement. In 3 Cooley on Taxation, fourth edition, section 1494, it is declared: "Ordinarily, a tax sale does not divest easements charged on the property sold. Thus, private easements of light, air and access of adjoining owners over the lands sold are not extinguished by the tax sale." The question arises: How is an easement assessed?

In Hale v. County of Jefferson, 39 Mont. 137, 101 P.[6] 973, 975, this court gave consideration to the above question. There it was attempted by the county to assess a ditch leading to a placer mining claim together with a water right used in connection with the operation of the claim. It was there said: "Viewed as independent property rights, ditches and the right to use the water conveyed by them are property subject to taxation; but, when made appurtenant to lands, they have no independent use. So situated and used, the value of this species of property enters as an element into the value of the corpus or principal estate to which it is attached or appurtenant, and bears its proportionate burden of taxation by the added taxable value which it gives to the principal estate. * * * To illustrate: A ditch and water right, attached to agricultural lands, add a large element of value to them, by contributing to their productiveness, which, in turn, determines their actual value. They are taxed when the lands are taxed upon their value thus increased. * * * The plaintiff's interest is a mere right of way, an easement in the land over which the ditch passes, which is attached to the plaintiff's mining lands." (See, also,Stetson v. Youngquist, 76 Mont. 600, 248 P. 196; Ferguson v. Standley, 89 Mont. 489, 300 P. 245.)

It is possible under our law to carve out of the same land[7] separate estates which are separately assessed for the purpose of taxation. (Superior Coal Co. v. MusselshellCounty, 98 Mont. 501, 41 P.2d 14; British-American OilProducing Co. v. State Board of Equalization, 101 Mont. 293,54 P.2d 129, affirmed by the Supreme Court of the United States particularly upon this point, December 7, 1936, 299 U.S. 159, 57[8] Sup. Ct. 132, 81 L.Ed. ____.) It is generally held in jurisdictions where the rule is in force as declared by this court in State ex rel. City of Great Falls v. Jeffries, supra, that the foreclosure of a tax lien does not cut off easements that have been carved out of one property for the benefit of another. (Crawford v. Senosky, 128 Or. 229, 274 P. 306; TaxLien Co. v. Schultze, 213 N.Y. 9, 106 N.E. 751, 752, Ann. Cas. 1916C, 636, L.R.A. 1915D, 1115; Jackson v. Smith, 153 A.D. 724,138 N.Y. Supp. 654, 656; Blenis v. Utica Knitting Co.,73 Misc. 61, 130 N.Y. Supp. 740; Tide Water Pipe Co. v. Bell,280 Pa. 104, 124 A. 351, 40 A.L.R. 1516, and note, 40 A.L.R. 1523.)

In the case of Tax Lien Co. v. Schultze, supra, it was said: "The assessment of the lot described in the judgment did not include the easements appurtenant to the adjoining real property. The assessment of the servient estate was subject to the easements included in the assessments of the dominant estate. As a necessary consequence it has been held that, on the foreclosure of a tax lien and a sale of the premises pursuant to sections 1035-1039 of the Greater New York Charter [Laws 1901, C. 466, as amended by Laws 1908, C. 490, and Laws 1911, C. 65], private easements of light, air, and access of adjoining owners over the land sold are not extinguished. If property rights, which are excluded from an assessment, are sold or extinguished by a tax sale, there would be a taking of property without due process of law."

In the case of Jackson v. Smith, supra, it was written: "An easement is a servitude upon, and differs from an interest in, or lien upon, the land. It is not a part of, but is so much carved out of the estate in, the land, and is as much a thing apart from that estate as a parcel of the land itself conveyed from it. If the principle contended for by the respondent is sound, the owner of the dominant estate, who pays taxes upon a valuation which includes the value of his easements, must also, to protect his easements, pay taxes assessed on another's property, although the value of the easements is necessarily excluded from the assessed valuation thereof.

"It is unnecessary to determine the precise nature of a tax title. It doubtless is in the nature of a new and independent grant from the sovereign authority. (Hefner v. NorthwesternMut. Life Ins. Co., 123 U.S. 747, 8 Sup. Ct. 337, 31 L. Ed. 309); but the assessment is the basis of it. The property assessed and the property conveyed upon the tax sale must be the same. If the assessment is only of the servient estate, only that can be conveyed on a tax sale; and, vice versa, if the conveyance on the tax sale, or on the foreclosure of a tax lien, is of all the estate or interests in the land, freed from servitude as well as liens thereon, then the assessment must be based upon the land as land, regardless of servitude as well as liens. As has been shown, in making the assessment a deduction must be made for easements, whereas none is made for liens and the like interests."

Counsel for the defendant relies strongly upon the case ofAlamogordo Improvement Co. v. Hennessee, 40 N.M. 162, 56 P.2d 1127. The case involved a restrictive covenant very similar to the one in question. The land had gone to tax deed, as here. The regularity of the tax proceeding was not in issue, but the sole question was whether the right of forfeiture and reversion contained in the deed survived the sale of the property under the tax deed proceedings. It was held that the right of forfeiture in reversion or possibility of reverter did not survive. We have no quarrel with the conclusion in that case, but the question there is not the question here, and therefore the case is not controlling.

Another case which is relied upon is that of Hanson v.Carr, 66 Wash. 81, 118 P. 927. The statute in Washington under consideration there was much broader than is our section 2215, which declares that the tax deed conveys absolute title free from all encumbrances except the lien for taxes which has attached subsequent to the sale. The Washington statute (Rem. Bal. Code, sec. 9230) declared the lien "shall have priority to * * * any recognizance, mortgage, judgment, debt, obligation or responsibility to or with which said real estate may become charged or liable."

The negative easement here was appurtenant to the other lands owned by the plaintiff and was taxable as such, and when plaintiff's lands were so taxed, the taxes on the negative easement were extinguished so far as the easement was concerned. The trial court was in error in concluding that the restriction was obliterated by the tax deed proceedings. Restrictions of this[9] character are valid. (Cowell v. Colorado Springs Co.,100 U.S. 55, 25 L. Ed. 547.)

In this case the remedy by injunction is proper. In 4[10] Pomeroy's Equity Jurisprudence, section 1693, it is said: "Injunctions are frequently allowed to restrain the violation of covenants restricting the use of the land. `When the owner of land enters into a covenant concerning it, when in a deed the grantor or the grantee covenants, or in a lease the lessor or the lessee covenants, concerning the land, concerning its use, restricting certain specified uses, stipulating for certain specified uses, subjecting it to easements or servitudes, and the like, and the land is afterwards conveyed, or sold, or passes to one who has actual or constructive notice of the covenant, the grantee or purchaser will take the premises bound by the covenant, and will be compelled in equity either to specifically execute it, or will be restrained from violating it, at the suit of the original covenantee or of any other person who has a sufficient equitable interest in such performance.'" (See, also, Watrous v. Allen,57 Mich. 362, 24 N.W. 104, 58 Am. Rep. 363; Richards v.Burdsall, (N.J. Ch.) 10 A. 274.)

The judgment is reversed, and the cause remanded to the district court of Sanders county, with directions to vacate and set aside the judgment and conclusions of law heretofore made and filed, and to make conclusions of law in conformity with the views herein expressed, and to enter judgment granting the plaintiff an injunction in accordance with plaintiff's complaint.

MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES STEWART, MORRIS and ANGSTMAN concur.