Land subject to restrictive covenants.

Statutory restriction

(o) Above, pp. 167, 195 -197.

(p) Bird v. Eggleton, 29 Ch. D. 1012; Re Ponsford and Newport School Board, 1894, 1 Ch. 454; lie Bostworth and Gravesend Corpn., 1905, 1 K. B. 403, 2 K. B. 420.

(q) The law is the same where the adjoining landowner is the covenantor's lessee; Brigg v. Thornton, 1904, 1 Ch. 386; Ricketts v. Enfield Churchwardens, 1909, 1 Ch. 544.

(r) See Powell v. Hemsley, 1909, 1 Ch. 680, 2 Ch. 252, where it was considered that a covenant to submit plans before commencing any building implied an obligation not to build without first submitting plans. Restrictive covenants are however construed strictly, and not so as to create a wider obligation than is imported by the words actually used; Brigg v. Thornton, 1904

1 Ch. 886. '

(s) See Formby v. Barker, 1903, 2 Ch. 539; Reid v. Biekerstaff, 1909, 2 Ch. 305, 320, 325 - 328.

(0 Tu!k v. Moxhay, 2 Ph. 774;

Renals v. Cowlishaw, 9 Ch. D.

Formby v. Barker.

125, 11 Ch. D. 866; Austerberry v. Oldham, 29 Ch. D. 750; Spicer v. Martin, 14 App. Cas. 12; Mackenzie v. Childers, 43 Ch. D. 265; Rogers v. Hoseqood, 1900, 2 Ch. 388. In Re Nisbet and Potts' Contract, 1905, 1 Ch. 391, 1906, 1 Ch. 386. it was held that the burthen of restrictive covenants is incumbent on a person, who has wrongfully ejected the covenantor or his successor in estate bound by the covenants. This decision is however inconsistent with the rule laid down in Finch's Case, 4 Inst. 85 (which was not cited to the Court), that a disseisor is not bound by a trust incumbent on the disseisee; and it is respectfully submitted that the case of Re Nisbet and Potts was decided on erroneous principles; see the writer's criticism in 51 Sol. J. 141, 155; Wms. Real Prop. 181 - 183, 21st ed.

(u) Carter v. Williams, L. R. 9 Eq. 678: London & South Western Rail. Co. v. Gomm, 20 Ch. D. 562. 583; Nottingham, etc. Co. v. Butler, 16 Q. B. D. 778, 787, 788; Rowell v. Satchell, 1903, 2 Ch. 212, 221. Notice may, of course, be either actual or constructive: Wilson v. Hart, L. R. 1 Ch. 463: Patman v. Harland, 17 Ch. D. 353; above, pp. 246 sq. Where land subject to the burthen of restrictive covenants is taken under the Lands Clauses Act, 1845 (stat. 8 & 9 Vict. c. 18), and the parties entitled to the benefit of the covenants receive compensation, the burthen is extinguished. If however such parties be not compensated, the burthen of the covenants continues to affect the land; although, so long as the land is used in accordance with the statutory powers, under which it was taken, the rights given by those powers are paramount to the obligation of the covenants; Kirby v. Harroqate School Board, 1896, 1 Ch. 437; Long Eaton, etc. Co. v. Midland Ry., 1902, 2 K. B. 574. But if the land be sold or disposed of as superfluous, the burthen (if not extinguished by payment of compensation) will revive; Ellis v. Rogers, 29 Ch. D. 661; Bird v. Eggleton, ib. 1012. "With respect to the powers of a corporation, which has been authorised by statute to acquire land for some special purpose, to enter into covenants restrictive of its use, see Re South Eastern Ry. Co. and Wiffin's Contract, 1907, 2 Ch. 366; Stourcliffe Estates Co. Ltd. v. Bournemouth Corpn., 1910, 2 Ch. 12; below, Chap. XVI.

How restrictions on the use of land may be created.

(x) Formby v. Barker, 1903, 2 Ch. 539.

(y) Haywood v. Brunswick, etc. Society, 8 Q. B. D. 403; Auster-berry v. Oldham, 29 Ch. D. 760: Holford v. Acton, etc, 1898, 2 Ch. 240. Formby v. Barker, ubi sup. The personal liability to damages at law for breach of a restricts covenant exists equally where the covenant was expressly made for the benefit of some particular land: but the covenantor is under no greater liability at law for the acts of his assigns than he has assumed by the terms of the covenant, and he is not so liable for breaches of covenant committed by his assigns without his assent, unless he has expressly undertaken such liability: see v. De Crespigny, L.. R 4 Q B. 180, 186, 187; Hall v. Ewen, 37 Ch. D. 74, 82 Powell v. Hemsley, 1909, 1 Ch.

680, 688, 689, 2 Ch. 252, 256 - 268.

(z) Talk v. Moxhay, 2 Ph. 774. 77s; Carter v. Williams, L. R.9. Eq. 678,

(a) See Renals v. Cowlishaw, 9 Ch. D. 125, 11 Ch. D. 866; Spicer v. Martin, 14 App. Cas. 12; Mackenzie v. Childers, 4 3 Ch. D. 265; Re Birmingham, etc, Co. and Allday, 1893, 1 Ch. 342; Holford v. Acton, etc, 1898, 2 Ch. 240, 246; Rowell v. Satchell, 1903, 2 Ch. 212; Elliston v. Reacher, 1908, 2 Ch. 374, 665; cf. Tucker v. Vowles, 1893, 1 Ch. 195; Reid v. Bickerstaff, 1909, 2 Ch. 305; Wille v. St. John, 1910, 1 Ch. 84, 325.

(b) Spicer v. Martin, 14 App. Cas.' 12.

(c) Stat. 29 Car. II. c. 3, s. 4; above, p. 3.

(d) Above, pp. 12, 13; Piggott v. Stratton, 1 De G. F. & J. 33, 49; and see Lord Macnaghten's judgment in Spicer v. Martin, 14 App.

Cas. 12, '20 - 25, where he considered that though the appellant might not have incurred any contractual liability on the construction of the correspondence between the parties and had not made any false representation which he was estopped from disputing, as to an existing fact, he had nevertheless " invited the public to come in and take a portion of an estate which was bound by one general law." This invitation or offer, however, could only be established by admitting evidence, outside the written memorandum of the con-trad for letting, of the circumstances under which the appellant had bought and subsequently let the lands in question.

(c) See 1 Davidson, Prec. Conv. 712, 4th ed.; 576, 6th ed.; Davidson's Concise Precedents. 123, 124, 18th ed.; Osborne v. Bradley, 1903, 2 Ch. 446: Whitehouse v. Hugh, 1906, 2 Ch. 283, where power was reserved on a Bale of allowing a variation of the plans and conditions: and cf. Elliston v Reacher, 1908, 2 Ch. 374, 665.

(f) Above, p. 491.

Nottingham, etc Co. v. Butler, 16 Q. B. D. 778.

(h) Freer v. Hesse, 4 De G. M

& G. 495; Re Handman and Wil-.

Cox's Contract, 1902, 1 Ch. 599.

With respect to the devolution of the benefit of a covenant or contract restrictive of the use of the land and entered into by a tenant in fee with a vendor or an adjoining landowner, the question to be considered is whether the parties to the contract intended that the benefit thereof should enure to the person originally entitled to enforce the obligation in his capacity of owner of some neighbouring land and should be annexed to the ownership of that land (i). If this be the case the benefit of the contract will pass, without express mention, by a conveyance of that land, in the same manner as an easement appurtenant thereto will pass therewith at law (k); and any assign, whether in fee or for any less estate (l), of the neighbouring land will be entitled in equity to enforce the restrictions (m). And for this purpose it is not necessary that the assign should be in of the same estate as the original contractor had (n). If the restrictions be created by covenant, it appears that the benefit of the covenant will run at law with the land, for the advantage of which the restrictions were imposed; but that an assignee of the land could not sue on the covenant at law unless he took the original covenantor's estate therein (o). On the other hand, an assign of the person, in whose favour the covenant or contract was made, will have no right to enforce the restrictions if he cannot prove either (1) that he is an express assignee of the benefit of the covenant, or (2) that the covenant was made for the benefit of some particular land, to which the benefit of the covenant was thus annexed and of which he is the assign, or (3) that there was a building or similar scheme annexing restrictions on certain pieces of land for the benefit of all purchasers or lessees thereof (p), and he derives title to one of those pieces of land as or through such a purchaser or lessee (q). When the benefit of such a covenant or contract has passed to an assign of the land, for the advantage of which the restriction was created, the burthen of the contract cannot, of course, be effectually released by any act or any deed of the person originally entitled to enforce the agreement (r). If a landowner entitled to the benefit of a contract restricting the use of adjoining land make or permit such use of his own land that it would be unreasonable for him to insist any longer on the observance of the restrictions with respect to the adjoining land, he will lose his equitable right to enforce such restrictions specifically by action for an injunction (s). Such a landowner may also lose this equitable right by acquiescence in breach of the restrictions or delay in asserting the right (t). These facts will not, however, deprive him of any right he may have to enforce the contract at law, although they may be taken into consideration in assessing the amount of damages recoverable (u). But after long acquiescence by the covenantee in a breach of the covenant, a waiver of the covenant will be presumed (x). If land be sold together with the benefit of any covenant or contract restricting the use of any adjoining land, the vendor must, of course, prove his title to this advantage, as in the case of his selling any easement or other legal right exercisable over any land of which he is not the owner. And if a man sell land together with the advantage of some restriction to be newly created as to the use of other land of his own, he must show a good title to the latter piece of land as well as the former (y).

Devolution of the benefit of restrictive covenants.

(i) See Elliston v. Reacher, 1908, 2 Ch. 374, 384, 665; Reid v. Bickerstaff, 1909, 2 Ch. 30.5, 319, 320 sq,; Willi v. St. John, 1910, 1 Ch. 84. 325; and other cases cited above, pp. 491, nn. (s), (t), 494, n. (a).

(k] Child v. Douglas, Kay, 560, 568; Rogers v. Hosegood, 1900, 2 Ch. 388; Elliston v. Reacher, ubi sup.

(i) Taite v. Gosling, 11 Ch. D. 273.

(m) Whatman v. Gibson, 9 Sim. 196: Mann v. Stephens, 15 Sim. 377; Coles v. Sims, 5 De G. M. & G. 1; and cases cited in the two preceding notes.

(n) See note (k), above.

(o) Rogers v. Hosegood, 1900, 2 Ch, 388, 404,

(p) See above, pp. 193, 494.

(q) Elliston v. Reacher, 1908, 2 Ch. 374, 384, 665; Reid v. Beckerstaff, 1909, 2 Ch. 305, 319, 320 sq.; Willi v. St. John, 1910,

1 Ch. 84, 325

(r) Sogers v. Hosegood, 1900,

2 Ch. 388.

(s) Bedford v. Trustees of British Museum, 2 My. & K. 552. Bee Osborne v. Bradley, 1903, 2 Ch. 446, but note that the ground on which that decision is founded (viz., that the restriction was created for the benefit of the vendor, but not as the owner of any particular property) appears to bo taken away by the decision in Formby v. Barker, above, p. 492; Elliston v. Reacher, 1908, 2 Ch. 374, 393, 665.

(t) Roper v. Williams, T. & R. 18; Peek v. Matthews, L. R. 3 Eq. 515; Gaskin v. Balls, 13 Ch. D. 324; Bayers v. Collyer, 28 Ch. D. 103; see German v. Chapman, 7 Ch. D. 271: Knight v. Simmonds, 1896, 2 Ch. 294; Rowell v. Satchell, 1903, 2 Ch. 212; Osborne v. Bradley, 1903, 2Ch. 446; Elliston v. Reacher, 1908, 2 Ch. 374, 392, 665.

W

Title to benefit of restrictive covenant.