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THE
AMERICAN LAW REGISTER.
FEBRUARY, 1890.
EQUITABLE EASEMENTS.
The term "equitable easements " indicates a class of prop- erty rights, analogous to legal easements, but by reason of either informality in their creation, or the absence of privity of contract or estate, not enforceable in a court of law. In considering the distinction between legal and equitable easements, it is to be observed that, in most cases, particularly those which relate to real property, courts of equity have generally endeavored that their decisions should bear the strictest possible analogy to the decisions of courts of law in cases of a similar or corresponding impression. In relation to estates and rights in lands, there (^) scarcely is a rule of law or equity of a more ancient origin, or which admits of fewer ex- ceptions, than the rule that equity follows the law, Co. Lit. L. 3, C. 8, sec. 504, n. 16; Cushing v. Blake, (879), 3 Stew. Eq.
(N. J.), 695.
An easement is a right without profit, in the land of another. A profit a prendre, is a right to take or sever something valu- able from the land of another; and this distinguishes it from easements, which are rights merely to use, or interfere with the enjoyment of another's property. In the case of an easement there must be both a dominant and a servient tenement. The benefit must be private, irrevocable, and unattended with direct tangible profit. The burden must be imposed upon corporeal property, not upon the person of the owner, and must be either positively, or cnsequentially, injurious to its enjoyment. Incident to its existence, are the right of the owner of the
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servient tenement to use the locus in quo, in every respect not interfering with the easement, and the duty of^ the^ owner^ of the dominant tenement to repair and amend. Such easements are acquired by grant, by^ prescription,^ and^ in^ rare^ cases^ of necessity, by implication of law. In the case of easements created by covenant, or reserva- tion, the distinction between^ legal and^ equitable^ easements^ is not always observed. To constitute a grant of an easement at law, it is not necessary that the word " grant" should be used in the deed; it is sufficient if the intention to grant be^ mani- fested. An easement cannot strictly be made the^ subject^ either of exception or^ reservation^ in^ a deed^ of^ conveyance^ of^ land, for it is neither parcel of the land granted,^ nor^ does^ it^ issue out of the land. If, therefore, an easement be incorrectly reserved to the grantor, or excepted from the land conveyed, the reservation or exception operates as a grant of^ a^ newly created easement by the grantee of the land to the grantor. Godd. Eas'mt. io8. So, an agreement under^ seal,^ for^ the^ use of a way, or of the water of a stream for the purposes of^ irri- gation, will be construed as a grant of an easement, and^ not merely as a covenant: Lord MVoun Joy's case (1584), Moo. 174; HJolns v.^ Seller^ (1692),^3 Lev.^305 ;^ Northan^ v.^ Hurley^ (853),
I E.^ & B.^ 665;^ S. c.^22 L.^ J.^ Q.^ B.^ 183.^ This^ subject^ is^ dis-
cussed in a recent case in Massachusetts,^ Hogan^ v.^ Barry (1887), 143 Mass. 538. It was an action of tort, for^ interfering with an easement, which the plaintiff claimed by virtue of the following words, inserted after the description, and^ before^ the Ihabendumz, in the conveyance^ to^ him: "And said grantors agree that no^ building shall^ be^ erected on^ said^ lot next^ east of said granted premises, nearer to the wvest line of said lot than four^ feet^ being the east line of the premises hereby conveyed."
The grantor owned the^ adjoining land^ referred^ to^ and sub- sequently conveyed it^ to the^ defendant.^ The^ learned^ judge said : "If the seeming covenant is for a present enjoyment of a nature recognized by the law as capable of being conveyed^ and^ made^ an^ easement^ ;-capable,^ that^ is^ to say, of being treated as ajus in rem, and as not merely the subject of a personal undertaking;-and if the deed discloses that the covenant is for the benefit of adjoining land conveyed at the same time, the covenant^ must^ be^ construed^ as^ a
359; Rolls v. Miller (1884), L. R. 27 Ch. D. 71; Richards v. Revitt (1877), L. R. 7 Ch. D. 224; Portman v. Home Hospital Ass'n M. R. Dec. I, 1879, 27 Ch. D. 8I n; or even against nuisances in general: Barrow v. Riclard(184o), 8 Paige, (N. Y.)
- In short, the doctrine has been laid down, that any restriction in the manner of using land granted, beneficial to adjacent land of the grantor, not contrary to public policy, may be enforced in equity against the grantee, or his assigns with notice: Whilney v. Union Ry. Co. (^) (1858), II Gray, (Mass.)
- In the absence of a legal* remedy, relief is granted in equity, to give effect to the intention of the parties to (^) the agreement. METHODS OF CREATING EQUITABLE EASEMENTS. The principal difference between a legal and an equitable easement, is in the method of its creation, and the circum- stances under which the right can be enforced. Equitable (^) easements are in general created upon the divis- ion and conveyances in severalty of an entire tract to different grantees, and may be by reservation, by condition annexed to the grant, by covenant or by informal agreement: Trustees of Columbia College v. Lynck (1877), 70 N. Y. 445. By Covenant or Reservation.-The enforcement in equity, of ,easements created by covenant, or reservation, extends to cases where the covenant does not run with the land so as to be en- forceable at law. This has been settled only after some con- flict of authority. (^) In Keppell v. Bailey (1834), 2 M. & K. 517, -certain land owners and owners of iron works, and among others, the lessees of the Beaufort Iron Works, formed a joint stock company, and under the provisions of the Monmouth- shire Canal Act, constructed a railroad connecting a lime -quarry with the several iron works. In the partnership deed of the railroad company, the lessees of the Beaufort (^) Iron Works covenanted for themselves and their successors in inter- est, to procure all the limestone used in their works from the said quarry, and (^) to convey all such limestone, and also all the iron stone, from the mines to the said works along the said railroad, at a certain designated toll. A bill was filed by the share holders of the railroad to enforce this covenant against
a purchaser of the Beaufort Iron Works with notice of the partnership deed. The injunction was denied, on the ground that the covenant did not run with the land. Lord Chancellor BROUGHAM said- " It appears to me very clearly that the covenant does not run with the land, and therefore is not binding upon the assignees of the [covenantors] * * * * * Between the estates of the occupiers of the three iron works, and the estates or the persons of their associates in the railway speculation, with whom they cove- nant, there is no privity, no connection whatever, of which the law can take notice * * *. There can be no harm in allowing the fullest latitude to men in binding themselves and their representatives, that is, their assets, real and per- sonal, to answer in damages for breach of their obligations. This tends to no. mischief, and is a reasonable liberty to bestow; but great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote. Every close, every messuage, might thus be held in a several fashion; and it would hardly be possible to know what rights the acquisition of any parcel conferred, or what obligations it imposed."
Keppell v. Bailey has been overruled by. Tulk v. .Moxhay
(i848), 2 Phil. 774, where the rule as now accepted, was first
established. In Tulk v. Moxzay, the plaintiff,being the owner
in fee of a vacant piece of ground in Leicester Square, as well as of several of the houses forming the square, sold the vacant lot to one Ems in fee, taking in the deed of conveyance a covenant from Ems for himself, his heirs and assigns, with the plaintiff, his heirs, executors and administrators, that the said piece of ground should be kept and maintained in sufficient and proper repair as a pleasure ground, in an open state, un- covered by any buildings, in neat and ornamental order. In granting an injunction to enforce the covenant against a pur- chaser with notice, Lord Chancellor, COTTENHAM used this language-
"It is said that, the covenant being one which does not run with the land, this Court cann6t enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner in- consistent with the contract entered into by his vendor, and with notice of which he purchased. Of course, the price would be affected by the covenant, and noth- ing couldbe more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken. That the question does not depend upon whether the covenant runs with the land, is
Improvement Act, the defendant purchased the said road, gave notice to the plaintiff to repair the portion on which his prop- erty fronted, and upon refusal, proceeded to^ make^ the^ repairs itself An attempt was made to collect the expenses from the plaintiff, who filed a bill praying inter alia, an injunction re- straining the defendants from further prosecution. The in- junction was refused. Lord Justice COTTON said-
"In my opinion, if this is not a^ covenant^ running at^ law,^ there^ can^ be^ no relief in respect of it in equity; it is not a restrictive covenant; it is not a covenant restraining the corporation, or the trustees, from using the land in any particular -way. If either the trustees or the corporation were intending to divert this land from the purpose for which it was conveyed, that is, from its being used as a road ,or street, that would he a very different question. *** * *** But here the covenant, -which is attempted to be insisted upon, *** *** is a covenant to lay out money in .doing certain work upon this land; and, that being so, *** * *** it is not a covenant ,which a court of equity will enforce; it will not enforce a covenant not running at law, when it is sought to enforce that covenant in such a way as to require the successors in title of the covenantor, to spend money, and in that way to under- (take a burden upon themselves. The covenantor must not use the property for a purpose inconsistent with the^ use^ for^ which^ it^ was^ originally^ granted;^ but,^ *****^ ^ *** a* court of equity does not and ought not to enforce a covenant, binding only in equity, in such a way as to require the successors of the covenantor himself,-they "having entered into no covenant-to expend^ sums^ of^ money^ in^ accordance^ with -what the original covenantor bound himself to do."
The rule is now firmly established, that the court will not ,enforce, against the grantee of the covenantor, who has him- self entered into no covenant, any covenant of his grantor in relation to the premises conveyed, which does not run with the land and which requires the expenditure of money: More-' land v. Cook (I868), L. R. 6 Eq.^252 ;^ Haywood^ v.^ Brunswick Building Society (I88I), 8 Q. B. D. 403 ; London & Souzwest-
irn Railway^ Companyv.^ Gomm^ (i88i),^ L.^ R.^^20 Ch.^ D.^ 562..
Huling v. Chester (1885), 19 Mo. App. 607, though an action ;at law, illustrates the distinction between covenants creating easements and covenants which can only be enforced where there is privity of contract. Huling and W. R. Chester, being the owners of adjoining lots,. by agreement under seal, pro- vided for the erection of a line wall by Huling, and for pay- ment for half of such wall by Chester, within six months from the date of the agreement, or at his option, by himself or his grantees, when he or they built upon the premises using the
part of the wall standing thereon. Prior to^ his^ death,^ Huling- placed the^ line^ wall^ as^ agreed,^ one^ half^ on^ the^ W.^ R.^ Chester lot. C. M. Chester, the defendant, purchased^ the^ lot^ from^ W. R. Chester, with notice of the contract, and erected a building on the lot, using the party wall. This action was brought by the heirs of Huling to recover the cost of^ one^ half^ of^ the^ wall. The court held that the plaintiffs could^ maintain^ an action^ for any interference with their enjoyment of the easement in the party wall, but could not,^ as owners^ of the^ Huling^ lot,^ main- tain an action for the compensation which was^ to^ be^ paid^ to Huling personally. The right being personal to Huling, upon his death went to his personal^ representatives. There is a class of^ cases^ in^ which^ equity^ grants^ relief^ by compelling the expenditure of money in the performance of the covenant, but^ in^ these^ cases^ the^ remedy^ is^ sought^ against the original covenantor, and relief is granted by way of specific. performance, and is regulated by principles affecting that branch of equitable jurisdiction. Of^ this^ class^ of^ cases,^ Randall^ v. Latlzam (1869),^36 Conn.^ 48,^ is^ an^ example.^ In^ that^ case,^ the complainant claimed, a right, under one Thomas, to the water from a raceway. Thomas and the respondent, Latham, who was the original covenantor, were respectively the owners of mills on the same stream. Thomas conveyed to Latham a tract of land adjoining the mill of the latter. The^ deed^ con- tained a reservation that the grantor should have the privilege of drawing water from the ditch of Latham's mill, and that Latham and his successors should^ keep^ a spout^ ten^ inches square in the inside at the bottom of the ditch, to which the grantor should at all times have access' for the purpose of drawing water. The ditch was never owned^ by^ Thomas,^ and he had no interest in it, beyond that acquired by this provision in his deed to Latham. The Court sustained the^ complainant's. bill, saying- "The deed purports to require the respondent to put in the spout upon land not conveyed, and the question is whether a couit of equity can compel him to do it under the circumstances of the case. That the respondent, by accepting the deed. containing the provision, thereby agreed to perform this duty, there can be no doubt. This duty was a part of the consideration of his deed. The respondent has received full^ compensation,^ and^ it^ is^ difficult^ to^ see^ why^ he^ is^ not^ bound^ to perform it."
their occupation. An injunction was granted to restrain a subsequent purchaser of one of the lots, with constructive notice of the facts, from building upon the eight feet adjoining the street. The Court said- /
"From the facts found by the judge at special term, it appears *** * *** that the strips of eight feet in width on both sides of the street should not' be built upon, but kept open. It is to be presumed that they [the purchasers] would not have bought and paid their money except upon this assurance. It is to be presumed that, relying upon this assurance, they paid a larger price for the lots than other- wise they would have paid. Selling and conveying the lots (^) under such circum- stances and with (^) such assurances, though verbal, bound Davis [the vendor] in equity and good conscience to use and dispose of all the remaining lots, so that the assurances upon which Maxwell [a purchaser and one of the plaintiffs in the suit] and others had bought their lots, would be kept or fulfilled. This equity (^) attached to the remaining lots, so that any one subsequently purchasing from Davis any one or more of the remaining lots, with notice of the equity as between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis, but would be bound by that equity."
To the same effect, Parker v. N'g-htingale (1863), 6 Allen (Mass.) 341 ; Newman v. Nelis (1884) 97 N. Y. 285 ; Lenning v. The Ocean City Ass'n (1886), 14 Stew. Eq. (N. J.) 6o6. The mere exhibition, however, of a plan, with proposed streets and buildings marked upon it, or representing the land as laid out in a particular manner, will not create a contract, in the ab- sence of any stipulation affecting the course of improvements: Squire v. Campbell (1836), I Myl. & Cr. 458. The apparent conflict between these cases is explained by difference (^) in the "facts involved. (^) In the New York case, the facts found by the judge at special term, and the facts admitted by the pleadings, showed that the lots were bought (^) upon the assurance or agree- ment of Davis that all the houses on the pln, as shown (^) in the map, were to be set (^) back eight feet from the street In the English case, the plan was exhibited upon the treaty for a lease. The lease as executed, contained (^) on the margin another plan which did not extend to include that part of the property on which the injunction, (^) if granted, would operate. In the for- mer case, the evidence established a parol contract collateral to the grant; in the latter, the affidavits presented tended to vary the extent and form of the plan as embodied in the lease, and, in that respect, to alter the terms of the written (^) contract.
WHEN, IN FAVOR OF, AND AGAINST WHOM, AN EQUITABLE EASEMENT WILL BE ENFORCED. The restriction on the use of the property must not amount to a general restraint of trade; for the law will not permit any one to restrain a person from doing what his own interest and the public welfare require that he should do. Any deed, there- fore, by which a person binds himself not to employ his talents, his industry br his capital, in any useful undertaking in the kingdom, would be void: Homer v. Ashford (1825), 3 Bing. 326; Brewer v. Marshall (1868), 4 C. E. Green (N. J.) 537. The rule as to what will constitute an illegal contract, as laid down in the leading case of Mitchellv. Reynolds (1711), I P. Wms. 18 1, is that where the restraint is not general, but partial, and is founded on a valuable consideration, it cannot be said to be an unreasonable restraint; and a restraint preventing a per- son from carrying on trade within a certain limit of space, though unlimited as to time, may be good, and the limit of space may be according to the nature of the trade: Cat v. Tourle (1869), L. R. 4 Ch. App. 654; Trustees, etc., v. Lynch
(1877), 70 N. Y. 440; Hodge v. Sloan (887), 107 Id. 244;
Wilson v. Hart (1866), L_ R. I Ch. App. 463 ; Luker v. Dennis (1877), L. R. 7 Ch. D. 227. Cliange in Characterof Property.-A court of equity will not enforce a covenant of the character under consideration, where the complainant has caused or permitted a material change in the property, for the benefit of which the scheme of restriction was adopted, nor where, by reason of the altered condition of the property, it would be oppressive to give effect to the cove- nant or agreement. This question arises in three classes of cases: first, where the complainant has himself altered the condition of the property with respect to which the scheme of improvement was devised; second, where he has permitted breaches by other covenantors; and, third, where the condition of things has been altered by changes referable to the acts of others. Thus, in Duke of Bedford v. Trustees of the British
Afuseum, often cited as the British Museum case, (1822), 2 M.
& K. 552, the Duke of Bedford, being the owner of all the property in the neighborhood of the British Museum, for the protection of a large part of that property, took a covenant
"Every relaxation which the plaintiff has permitted, in allowing houses to be built in violation of the covenant, amounts pro tanto to a dispensation of the obli- gation intended to be contracted by it. Very little, in cases of this nature, is suffi- cient to show acquiescence; and courts of equity will not interfere unless the m6st active diligence has been exerted^ throughout^ the^ whole^ proceeding.^ *****^ *****^ *^ *****^ In every case of this sort, the party injured is bound to make immediate application to the court in the first instance; and cannot permit money to be expended by a per- son, even though he has notice^ of^ the^ covenant,^ and^ then^ apply^ for^ an^ injunction. Taking all the circumstances together, the permission to build contrary to the cove- nant, and the laying by, four or five months, before filing the bill, this is not a case in which a court of equity ought to interfere by injunction, but the plaintiff must be left to his remedy at law."
So, also, Peek v. Afatthews (1867), L. R. 3 Eq. 515 ; Gaskin v. Balls (1879), L. R.^ i3^ Ch.^ Div.^ 324;^ Eastwood^ v.^ Lever (1863), 4 DeG. J. & S. 114; Child v. Douglass (i854), 5 DeG. M. & G. 739- The waiver relied upon, must be in respect of a material vio- lation of the covenant. In German v. Chapman (1877), L. R. 7 Ch. Div. 271, the law is recognized to be, as stated in Roper v. Williams, that- "If there is^ a^ general^ scheme^ for^ the^ benefit^ of^ a^ great^ number of^ persons,^ and then, either by permission or acquiescence, or by a long chain of things, the prop- erty has been either entirely, or so substantially changed, as that the whole char- acter of the place or neighborhood has been altered, so that the whole object for which the covenant was originally entered into, must be considered to be at an end, then the covenantee is not allowed to come into the court for the purpose merely of harassing and annoying some particular man, where the^ court^ could^ see he was not doing it bonafide, for the purpose of effecting the object for which the covenant was originally entered into." The Court (in German v. Chapman) then proceeded- "That is very different from the case we have before us, where the plaintiff says that in one particular spot, far away from this place, and not interfering at all with the general scheme, he has, uider particular circumstances, allowed a waiver of the covenant. I think it would be a monstrous thing to say that nobody could do an act of kindness, or that any vendor of an estate, who had taken covenants of this kind from several persons, could not do an act of kindness, or from any motive whatever, relax in any single instance any of these covenants, without destroying the whole effect of the^ stipulations^ which other^ people^ had^ entered^ into with^ him. For instance, in this very case, application was made to the plaintiff for a waiver. It would be monstrous to suppose, if he had acceded to^ that^ application,^ that^ there- fore he was, by the mere^ act^ of^ kindness^ to^ the^ defendants themselves,^ destroying the whole benefit of the covenants as to all the rest of the estate."
The same ruling in Western v. Macdermott (1866), L. R.^ I Eq. 499, s. c. affirmed on appeal (1866), L. R. 2 Ch. App. 72;
Kentv. Sober (i85i), i Sim. N. S 517.
Where a contingency has happened, not within the con- templation of the parties, which imposes upon the property a condition frustrating the scheme dvised by them, and defeat- ing the object of the covenant, thus rendering its enforcement oppressive and inequitable, a court of equity will not decree such enforcement. (^) In Tntstees of Columbia College v. Thatcher (1881), 87 N. Y. 311, the covenant was not to erect, establish or carry on in any manner, on any part of the said lands, any stable, school-house, engine house, tenement or community house, or any kind of manufactory, trade or business whatso- ever, or erect or build, or commence to erect or build, any building or edifice with intent to use the same, or any part thereof, for any of the purposes aforesaid. The breaches relied on by the plaintiff were that the defendant permitted the use of the several rooms in the houses upon the premises by his tenants, for the business of a tailor, milliner, insurance agent, newspaper dealer, tobacconist and two express carriers. It also appeared that the general current of business had reached and passed the premises, and that during the pendency of the action, an elevated railroad was built with a station in front of such premises, which the trial court found affected them injuriously, and rendered them less -profitable for the purpose of a dwelling house, but did not render their use for business purposes indispensable. The evidence also disclosed that the station covered a portion of the street, its platform occupied half the width of the sidewalk in front of defendant's premises, and from it persons could look directly into the windows, and that this, with the noise of the trains, rendered privacy and quiet impossible, so that large depreciations in rents and frequent vacations followed the construction of the road. Mr. Justice DANFORTH, speaking for the Court, said:
"It is now claimed by the appellant that there has been such an entire (^) change in the character of the neighborhood of the premises, as to defeat the object and purpose of the agreement, and that it would be inequitable to deprive the defendant of the privileges of conforming his property to that character, so that he could use it to his greater advantage, and in no respect to the detriment of the plaintiff. The agreement before us recites, that the object which the parties to the covenant haa. in view was 'to provide for the better improvement of the lands, and to secure their permanent value.' It certainly is not the doctrine of courts of equity to enforce, by its peculiar mandate, every contract, in all cases, even where specific
(1878), L. R. 9 Ch. D. 125, the former owners in fee of a resi- dential estate and adjoining lands, (^) sold part of the adjoining lands to the defendant's (^) predecessors in title, who entered into a covenant to build upon the land thereby conveyed, within (^) a certain distance from a particular road; that the (^) garden walls - or palisades to be (^) set up along the sides of the said road should stand back a certain distance from the centre of the road; that any house to be built upon the land adjoining (^) the road, should be of a certain value, (^) and of an elevation at least equal to that of the houses on a particular road; (^) and that no trade or business should be carried on in any of such houses or buildings, but that the same (^) should be used as private dwelling houses only. The conveyance (^) did not state that this covenant was (^) for the protection of the residential property, or in reference to the adjoining (^) pieces of land, or make any state- ment or reference (^) thereto. Other pieces of the adjoining lands were subsequently sold, and the conveyance (^) to the pur- chaser in each case contained (^) restrictive covenants similar to that above mentioned. The same vendors afterwards (^) sold the residential estate to the plaintiffs' predecessors in title. The conveyances contained no reference (^) to the restrictive cove- nants, nor was there any contract or representation that the purchasers of the residential estate were to have the (^) benefit of them; there (^) was, moreover, in the conveyance to the plain- tiffs, a covenant not to build a public house or carry on offen- sive (^) trades upon a particular portion of the property conveyed, thus limiting their use (^) of the purchased property, but not co- extensively with those covenants first given. Vice Chancellor HALL dismissed a bill to restrain the defendants (^) from building in (^) contravention of the first mentioned covenants. In his judgment he said:
"' (^) From the cases *** * *** it may, I think, be considered as determined, that any one who has acquired land, being one of several lots laid out for sale (^) as building plots, where the court is satisfied that it was (^) the intention that each one of the several (^) purchasers should be bound by, and should, as against the others, have the benefit of the covenants entered into by each of the purchasers, is entitled to the benefit of (^) the covenant; and that the right, that is, the benefit of the covenant, enures to the assign of the first purchaser, in other words, runs with (^) the land of such purchaser. This right exists not only where the (^) several parties execute a mutual deed of covenant, but (^) where a mutual contract can be sufficiently estab-
lished. A purchaser may also be entitled to the beneft of a restrictive covenant entered into with his vendor by another or others where his vendor has contracted with him that he shall be the assign of it, that is, have the benefit of the covenant. And such^ covenant^ need^ not^ be^ express,^ but^ may^ be^ collected^ from^ the^ transac- tion of sale and purchase. In considering this, the expressed or otherwise appa- rent purpose or object of the covenant, in reference to its being intended to be .annexed to other property, or to its being only obtained to enable the covenantee more advantageously to deal with his property, is important to be attended to. *Whether the purchaser is the purchaser of all the land retained by his vendor -when the covenant was entered into, is also important. If he is not, it may be important to take into consideration whether his vendor has sold off part of the land so retained, and if he has done so, whether or not he has so sold subject to a -similar covenant; whether the purchaser claiming the benefit of the covenant has .entered into a similar covenant may not be so important."
The Vice Chancellor, being satisfied that the restrictive covenant was not inserted for the benefit of the particular pro- perty, but to enable the vendors to make the most of the prop- erty they retained, refused to order an injunction. This ,decision was affirmed by the Court of Appeals in (1879), L. R. [I Ch. Div. 866, and cited with emphatic approval in Spicerv. a1artin (1888), (^) L. R. 14 App. Cas. 12; Master v. Hansard '(1876), L. R. 4 Ch. Div. 718 ; Badger v. Boardman (I86o), I Gray (Mass.) 559; Tobey v. Moore (i88i), 130 Mass. 448; Thurston v. Mike (1870), 32 Md. 487. And where the re- strictions are made for the benefit of the property, and enure in favor of the persons who become the respective owners of it, the original covenantee cannot by release discharge any part •of it except such as he still retains: Raynor v. (^) Lyon (1887), 46 Hun. (N. Y.) 227. Title to land within the tract, for the common .benefit of which the easement is created, is the only other requisite to sup- port a prayer for an injunction to restrain a violation of the cove- nant by any proprietor. As restrictions of this nature are in- tended for the mutual protection of all the proprietors, neither privity of contract nor privity of estate is essential, and a prior may have a remedy against a subsequent purchaser of part of the same tract, even when a parol representation of a uniform building plan is the sole evidence of the contract: Tobey v. .Afoore (I8i), 130 Mass., 448; Talmadge v. The East River Bank (1862) 26 N. Y. 1O5 ; Gibert v. Peteler (1868), 38 Id. 165; Green v. Creighton (186 ), 7 R. I. I.
Coles v. Sims (1854), 5 DeG. M. & G. I ; The Phwnix Ins. Ca. v. The ContinentalIns. Co. (1882), 87 N. Y. 4oo; The Diamond Malch Co. v. Roeber (1887), io6 Id. 473; Natonal Provin- cial Bank of Englandv. Marshall (I888), L. R. 40 Ch. D. 112. Nor is it necessary to show that any damage has been done. A covenantee has the right to have the actual enjoyment of the property, nodo et forma, as stipulated for by him. The mere fact that a breach of the covenant is intended, is a suffi- cient ground for the interference of the court by injunction: Zirkpatrick v. Peshine (1873), 9 C. E. Green (N. J.) 206. The usual and proper equitable remedy for a breach of a negative covenant or agreement, is an injunction. This will be awarded as of course, upon proof of the complainant's right and its violation by the defendant. In some cases, the court will import a negative quality into the covenant, and enforce the right by injunction: Kerr's Injunctions in Equity, 521; Vewman v. Nellis (884), 97 N. Y. 285. Thus, in the English brewers' leases, covenants are usually inserted (^) stipu- lating for the purchase from the lessor of all the beer con- sumed at the public house demised. Such rights will be pro- tected by injunction, against assignees with notice, even where they extend to other public houses held by the same lessees under other landlords : Luker v.Dennis (1877), L. R. 7 Ch. Div. 227; Catt v. Tourle (1869), L. R. 4 Ch. App. 654. The ground of decision is, that the grant of an exclusive right of this description, contained in a covenant, is equivalent to a negative covenant, and -the cases are thus brought under the operation of the rule in Lumley v. Wagner (1852), I D. M. & G. 604, that wherever a court of equity has not proper jurisdiction to en- force specific performance, it operates to bind men's consciences, so far as they can be bound, to a true and literal performance of their agreements, and will not suffer them to depart from their contracts at their pleasure, leaving the party with whom they have contracted to the mere chance of any damages which a jury.may give. By thus importing a negative quality into an affirmative covenant, the courts have assumed to enforce agreements of which specific performance could not be decreed: Cooke v. Chilcott (1876), L. R. 3 Ch. Div. 694. The propriety
and extent (^) of this exercise of jurisdiction it is not within the scope of the present article to examine. Where (^) interference (^) with the (^) easement (^) is merely threatened,
the preventative remedy by injunction is always adequate to the exigencies of the (^) case; but if there has been an actual in- terference, a mandatory injunction may become necessary to supplement the usual remedy. (^) The power of the court to grant such relief, though once questioned, is now admitted beyond doubt. In Rankin v. Huskisson (830), 4 Sim. (^) 13, the agreement was that no buildings should be erected on the plot of ground, south of the demised premises. The complainants built thereon, and afterwards the (^) defendants began to erect stables on the adjoining land. Vice-Chancellor SHADWELL awarded an injunction (^) restraining the defendants, not only from continuing the projected buildings, or commencing any other buildings whatever, on the plot of ground described in the pleadings, or any part thereof, but also from permitting such part of said building as had been already erected to (^) remain thereon. See note (i) to Rankin v. Huskisson; Kerr on In- junc., 231. The extreme limit of this jurisdiction, however, is the restoration of the property to its condition at the time the wrongful act or neglect began. As has been said, specific performance of a proper covenant to perform positive acts, will be decreed, if the covenant is one which runs with the land, or (^) if the bill is filed against the original covenantor. What are proper covenants under this head of equitable jurisdiction is a question to be determined solely under (^) the rules regulating the granting of that kind of relief. It is unnecessary to discuss its limitations here. SHERRERD DEPUE. Newark, New Jersey.
