MAULE INDUSTRIES, INC., A FLORIDA CORPORATION, APPELLANT,

v.

SHEFFIELD STEEL PRODUCTS, INC., A FLORIDA CORPORATION, APPELLEE

CARROLL, CHAS., Chief Judge.

Appellant, the defendant in the trial court, has appealed from a summary de- . cree which struck certain defenses and which granted specific performance. Reservation of jurisdiction for trial of certain ■issues relating to damages made the decree interlocutory rather than final.

Seminole Rock & Sand Company, owners of certain lands over which there ran a spur track connected to the Seaboard Air Line Railroad, conveyed to the plaintiff Sheffield Steel Products, Inc., a parcel traversed by the spur line.

The deed, a copy of which was attached '■to the complaint, contained certain covenants relating to maintenance by the grantor, its successors and assigns, of the railroad facilities for use by the grantee, and its successors and assigns.1

*800From the time of the conveyance in 1952 until April 1956, the plaintiff-grantee used the railroad facilities extending over the other lands owned by its grantor, and during such time these facilities were maintained and kept in good repair by the grantor.

In 1956, there was a foreclosure of a mortgage encumbering lands of the grantor, including those over which ran the spur line connecting with the spur line on grantee’s parcel. The defendant Maulé Industries, Inc., became the purchaser at the foreclosure sale. After acquiring those lands, Maulé continued to allow plaintiff to use the railroad facilities until March 1957, although Maulé disputed plaintiff’s claim that Maulé had maintained its tracks during that period.

In 1957, Maulé notified plaintiff of its position that plaintiff had only an easement over Maule's land for railroad purposes, and that Maulé was under no obligation to furnish and maintain such railroad facilities. Thereafter, this suit was commenced for specific performance of the covenant, and for damages.

Defendant relied on certain affirmative defenses, set out in the answer.2 The chancellor sustained a motion of plaintiff to strike those defenses, decreed specific performance of the covenant to furnish the railroad facilities and retained jurisdiction to ascertain the amount of plaintiff’s damages.

We deem it necessary to discuss three of the points raised under appellant’s sixteen assignments of error: Appellant’s contention (1) that the trial court misinterpreted the language of the covenant, (2) that the covenant in the deed was purely a personal obligation of plaintiff’s grantor and not a covenant running with the land, and (3) that appellant was a bona fide purchaser without notice, actual or constructive, of the covenant and, therefore, such an obligation could not be imposed upon it.

On the first point, appellant argues that the covenant can not be construed to require or provide for the furnishing and upkeep of the railway facilities across its land. In decreeing that appellant should “restore to an adequate condition for the carriage of railroad freight cars thereon” and to “thereafter maintain such facilities in an adequate condition”, the chancellor required no more than was essential to secure to the covenantee the benefit of the covenant calling for the cov-enantor to “keep open railroad facilities running over other lands of the” appellant, and the covenant that appellant should provide “adequate railroad facilities * * * at all times” to the covenantee. In arguing that the covenant should be interpreted only to mean that the covenantor, its successors and assigns, should allow the cove-nantee to use the' railroad facilities on and across the former’s lands but without obligation to maintain such facilities, the appellant urges upon us a construction which is not warranted under the language used and is inconsistent with the clear meaning and intent of the covenant.

*801We turn now to the question of whether the covenant was a covenant running with the land. A covenant running with the land differs from a merely personal covenant in that the former concerns the property conveyed and the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not immediately concerned with the property granted. If the performance of the covenant must touch and involve the land or some right or easement annexed and appurtenant thereto, and tends necessarily to enhance the value of the property or renders it more convenient and beneficial to the owner, it is a covenant running with the land. The covenant in question comes within the above stated rules and constitutes a covenant running with the land. See 7 Thompson on Real Property, Perm.Ed., § 3622, p. Ill; 3 Tiffany on Real Property, 3d Ed., § 854, pp. 455-462; and 14 Am.Jur., Covenants, Conditions and Restrictions, §§ 19, 20, pp. 495-498. As discussed in the last mentioned authority (§ 20, p. 496-497):

“The primary test whether the covenant runs with the land or is merely personal is whether it concerns the thing granted and the occupation or enjoyment thereof or is a collateral or a personal covenant not immediately concerning the thing granted. In order that a covenant may run with the land it must have relation to the land or the interest or estate conveyed, and the thing required to be done must be something which touches such land, interest, or estate and the occupation, use, or enjoyment thereof.

* * * * * *

“ * * * The question whether a covenant runs with the land does not depend upon its being performed upon the land itself; its performance must touch and concern the land or some right or easement annexed or appurtenant thereto and tend necessarily to enhance its value or render it more convenient and beneficial to the owner or occupant. * * * ”

There remains for consideration the question of notice. In disclaiming notice, appellant argues (1) that the deed containing the covenant was not in the chain of title, and (2) that notice which resulted from the existence of tracks crossing the lands of the parties must be limited to notice of an easement or right to use the railroad facilities on appellant’s lands, and could not constitute notice of an obligation to maintain such facilities. The appellee argues the contrary, that the covenant was in the grantor’s chain of title, relying on the proposition of law that the record is notice to a subsequent purchaser of matters affecting his title which could be discovered by an examination of recorded deeds of his grantor, citing 16 A.L. R. 1013, and McQuade v. Wilcox, 215 Mich. 302, 183 N.W. 771, 16 A.L.R. 997; Lowes v. Carter, 124 Md. 678, 93 A. 216, and a number of other authorities.

On the matter of the effect of notice from the existence of the tracks, ap-pellee argues that such knowledge of the easement compelled investigation and constructively gave notice of the user’s rights which due inquiry would divulge. We uphold this argument of appellee, which is well supported by authority. The cases are collected in annotations in 41 A.L.R. 1442, and 74 A.L.R. 1250. Moreover, when it is observed that the deed in question also contained an express reservation favoring the grantor, its successors and assigns, with similar rights for use of the railroad facilities over lands of the grantee, and required the grantee to maintain them,3 the *802appellant’s contention that the instrument did not affect or relate to the grantor’s chain of title is seen to be without merit.

Accordingly, the decree appealed from should be and hereby is

Affirmed.

HORTON and PEARSON, JJ., concur.