## Facts

- M. S. Hurd and Ferdinand Dunker, along with Peter Bossell, owned a quartz millsite.
- They conveyed a portion of the millsite to Charles Doscher and his associates.
- A few days after the conveyance, Doscher and his associates entered into a separate written agreement with Hurd and his associates to construct a dam and flume to supply water to their milling operations.
- The agreement provided that the parties would “equally contribute” to the cost of repairing the dam and flume.
- Cyrus Wheeler later succeeded to Bossell’s interest in the remaining mill property and the agreement.
- Several years later, repairs to the dam and flume became necessary; Hurd, Dunker, and Wheeler paid the full cost themselves.
- In the same year the repairs were made, Doscher’s and his associates’ property was foreclosed upon.
- Charles Schad purchased the foreclosed property and became Doscher’s successor in title.
- Hurd, Dunker, and Wheeler sued Schad to recover one-half of the repair costs, claiming Schad was bound as successor to Doscher under the repair-sharing agreement.
- The trial court entered judgment for Schad, and the plaintiffs appealed.

## Issues

1. Does an agreement to share future repair costs for a dam and flume, executed after a conveyance and outside the deed, create a covenant whose burden runs with the land and binds a later purchaser at foreclosure?
2. Is the required privity of estate between the original covenanting parties present when the repair-cost promise is made after the covenantor has already conveyed the land sought to be charged?

## Decision

- The Nevada Supreme Court affirmed the judgment for Schad.
- The court held the repair-cost provision did not run with the land so as to bind Schad as a successor.
- Because the agreement was made after Doscher had taken title, the arrangement lacked the necessary privity of estate to impose the burden on later holders of Doscher’s tract.
- Schad, as a foreclosure purchaser and not a party to the agreement, could not be made liable on what the court treated as a personal obligation of the original contracting parties.

## Legal Principles

- For the burden of a covenant to run with land and bind successors, common-law doctrine requires privity of estate between the original covenanting parties in the land to be charged at the time the covenant is created.
- A promise to pay money for future maintenance or repairs may “concern” land in a practical sense, but it will not bind successors as a real covenant if the privity requirement is missing.
- An agreement made after a conveyance, separate from the deed, is strong evidence that the parties did not create a covenant tied to the estate conveyed; instead, it is generally treated as a personal contract unless the requirements for a running covenant are satisfied.
- A purchaser at foreclosure takes the debtor’s property interest but is not bound by the debtor’s personal contractual duties unless those duties are attached to the land as a running covenant or similar property-based obligation.

## Conclusion

Wheeler v. Schad holds that a post-conveyance agreement requiring adjoining mill owners to split repair costs for a shared dam and flume did not create a covenant running with the land. Because the agreement lacked the privity of estate needed to make the burden run, Schad—who acquired Doscher’s property through foreclosure—was not liable for one-half of the repair expenses paid by Hurd, Dunker, and Wheeler.


Wheeler v. Schad, 7 Nev. 204 (1871)