(f) 1 Burr. 290.
"It is not necessary for me to consider the question as to whether a covenant could have been implied from the words of the deed, if there had been no express covenant. I proceed on the covenant, which I consider to be expressly created by the language of the parties. I think the appeal must be allowed, and the claim allowed also."
This rule has been so admirably illustrated by another very recent case, that I have inserted the most material facts and arguments used in it, in applying and limiting the rule. This is the case of Piggot v. Stratton, decided by the Court of Appeal in Chancery, and is as follows:-In 1845, Sir It. Simeon demised to William Stratton three pieces of land marked A., B., and C, Stratton covenanting not to build on the piece marked C, except in a certain manner, which would leave intervals giving a sea-view to houses built on the piece marked B. Stratton granted an underlease of part B. to one Harbour, and by the underlease covenanted to observe his own covenants in the original lease, and effectually to indemnify the underlessee, his executors, administrators, and assigns therefrom. Harbour sold and assigned his underlease to the plaintiff. Stratton afterwards surrendered the original lease, obtained another not containing the restrictive covenants, *and proceeded to build on C. in a manner which would exclude the houses on B. from the sea-view. The Lord Chancellor Campbell, sitting in the Full Court of Appeal, decided that the covenants in the underlease to observe those in the original lease, had the same effect as if they had been repeated in the underlease, notwithstanding that the lease was surrendered; and an injunction was granted to prevent Stratton from violating them (g).
"The first question," said Lord Campbell, "depends upon whether Stratton is to be considered, after surrendering to Sir Richard Simeon the lease of 1845, as under a covenant to Harbour not to build houses on the land marked C. in that lease, so as to obstruct the sea-view from houses built on the land marked B., and depends entirely upon the construction of the underlease of 1851 from Stratton to Harbour, regard being had to certain facts then existing. These facts are, that by the lease of 1845 Sir R. Simeon had demised for 999 years a part of his estate in the Isle of Wight, on the Solent, consisting of three plots marked A., B., and C, and Stratton had covenanted that he would not build houses on C. without a certain interval between them, which would have permitted a sea-view across C. from houses built on B.; that in the year 1851 Stratton proposed to underlet to Harbour *for 970 years a considerable portion of the plot marked B. for the purpose of building marine villas upon it; and that the value of such land depends materially upon the houses to be erected upon it having a view of the sea. Under these circumstances, the underlease of 1851 was executed, containing a covenant by Stratton with Harbour, by which, after a recital of the lease of 1845, Stratton, for himself, his heirs, executors, administrators, and assigns, covenanted with Harbour, his executors, administrators, and assigns, that he, Stratton, his executors, administrators, and assigns, would thenceforth observe the lessee's covenant contained in the same lease. The underlease does not repeat the words of the covenant in the lease as to the interval to be left between the houses to be built on C. But verba relata inesse videaniur; and according to the dictum of Parke, B., in Doughty v. Bowman (h), 'A covenant to perform the covenants of a lease has no other effect than if the former covenants had been inserted.' I conceive, therefore, that this covenant in the underlease was tantamount to a covenant by Stratton, for himself, his heirs, executors, administrators, and assigns, not to build houses on C. without leaving the stipulated interval between them. Is not this covenant still binding on Stratton? He admits that it was binding on him until he surrendered *the lease of 1845, and that until then an injunction might have been obtained by Harbour against his building houses on C. contrary to the covenant. He now relies upon the surrender. I entirely concur in the general maxim, that a covenant to perform the covenants of a lease, is only binding during the subsistence of the lease; but, look-ing to the covenant in this underlease, it is evident to me that the parties intended that, in as far as it conferred any benefit upon Harbour, it should remain in force during the currency of the underlease. Harbour acquired a material benefit by Stratton's covenant with him to perform the covenant in the lease from Sir R. Simeon as to the mode in which the houses were to be erected between B. and the margin of the Solent. It cannot properly be called an easement or servitude over C. But Harbour acquired a right to an immunity which materially enhanced the value of the land which was sub-let to him, and restrained the use of part of the land demised to Stratton. If there had been in the underlease a direct, express, or specific covenant by Stratton that, during the currency of the underlease, he would not build upon C. so as to injure the prospect from B., it was not contended that this covenant would have been affected by the surrender. But I conceive that the covenant to perform all the covenants in the lease which contained such a covenant, is exactly equivalent. When Stratton had sub-let B., at the same *time restraining the mode of enjoying C. during the currency of the underlease, he could not by any surrender derogate from the right which Harbour had acquired. Harbour was a stranger to the surrender, and could not be prejudiced by it,
"If Stratton, before the surrender of the lease of 1845, is supposed to have covenanted in the underlease to Harbour so as to give Harbour an interest in any part of the land devised by the lease of 1845, upon that interest the subsequent surrender could have no operation. That such was the intention of the parties when the underlease of 185.1 was executed, I cannot doubt, and I think that this intention is sufficiently manifested by the lan-ouage they have employed.