JOHN L. PAVKOVICH, Appellant, v. SOUTHERN PACIFIC RAILROAD COMPANY et al., Respondents, 150 Cal. 39

BEATTY, C. J. Upon a careful reconsideration of this case after rehearing ordered, we find no occasion to modify our original opinion. Nor do we deem it necessary to undertake a discussion of the proper construction of our code provisions relating to covenants running with the land. Our conclusions are not rested upon those provisions, and they contain nothing inconsistent with what we have decided.

Conceding that there is here no covenant running with the land in a strict legal sense, we still hold that the plaintiff, as the owner of a contingent future estate in the land, is entitled in equity to enjoin a threatened destruction Of that estate by the tenant in possession, whether such threatened destruction be total or partial.

When land is conveyed subject to a condition, breach of which will work a forfeiture of the estate granted, the grantor retains an interest in the land, the value of which will be impaired by the pulling down of houses, the cutting of timber, or the quarrying and removal of stone or any other valuable material contained in the soil, and it would be strange if the law afforded him no means of protecting his interest.

It may be that there is a presumption in such case that there will be no breach of the condition subsequent, and that there is a probability that the estate will never be forfeited, but in dealing with the rights of the grantor a court is bound to assume, as the parties by their deed have assumed, that there may be a breach of the condition, and to hold that the grantee has no right in the mean time to make way with the very substance of the estate.

If in such case the deed contained no express provision restraining the removal of the- soil, or cutting of timber, or other destructive use of the land, we are clearly of the opinion that a court of equity would enjoin a threatened injury of the magnitude alleged in this case.

But here the deed expressly limits the purposes for which the stone may be taken, and this imposes a practical limit to the quantity that will be taken, and the right of the grantor, or his successor, to enjoin the transgression of that limit is even clearer than the right to an injunction would have been in the absence of such express provision. Of course, there are exceptional cases to which the doctrine here asserted does not apply. One of them is defined in

section 819 of the Civil Code— the lease of a going mine or quarry. But such exceptions only fortify the general doctrine. As to the objection so strongly urged that the stipulation in question is not binding upon the successors of the Pacific Improvement Company, and does not inure to the successor of the grantors, our opinion remains unchanged, and ought not to be misunderstood. The assigns of the grantee are expressly named in the deed, and whatever right the grantors had to protect their interest in the land passed by their conveyance of the land to their grantee.

Their estate was alienable, and the right to sell an estate "includes the right to transfer the means of protecting it. Our decision rests, of course, upon the case as presented in the record before us. If there are other facts or circumstances proof of which would have a legitimate bearing upon the true construction of the deed to the Pacific Improvement Company, nothing we have said will prevent the defendant from alleging and proving such facts. The judgment of the superior court is reversed.