It has already been
observed that an easement of fencing may be annexed to land, and
it was then asked what was the difference in kind between a right
to have another person build such structures, and a right to have
him repair structures already built. Evidence is not wanting to
show that the likeness was perceived. Only, as such covenants are
rarely, if ever, made, except in leases, there is always privity
to the original parties. For the lease could not, and the
reversion would not be likely to, go by disseisin.
The Dean of Windsor's Case decides that such a covenant binds an
assignee of the term, although not named. It is reported in two
books of the highest authority, one of the reporters being Lord
Coke, the other Croke, who was also a judge. Croke gives the
reason thus: "For a covenant which runs and rests with the land
lies for or against the assignee at the common law, quia transit
terra cum onere, although the assignees be not named in the
covenant." /1/ This is the reason which governed easements, and
the very phrase which was used to account for all possessors
being bound by a covenant binding a parcel of land to warranty.
Coke says, "For such covenant which extends to the support of the
thing demised is quodammodo appurtenant to it, and goes with it.
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