72. There are, the real property commissioners observe, some other covenants sometimes entered into by owners of land; such as covenants entered into by the owners of particular land with the owners of other neighboring or adjoining land, that the former shall not be built upon or planted, or so as to impose other restrictions upon the mode of enjoyment of land in favor of *persons taking no property in such land. The commissioners (a) state two doubts which have arisen upon such covenants; first, whether they would run with the land so as to bind all successive owners of it? Judged by the usual rule (and supposing the rule to be applicable), they add, perhaps this doubt may be thought to be unfounded, for they relate directly and immediately to the land. They state that they are not aware of any instance in which an action at law upon such a covenant has been brought against an assignee of the land. In a few cases, they add, the subject has been brought before courts of equity by suit against an assignee of the land; in some of those cases the Court has refused to interfere by way of injunction, but the validity of the covenant, or its binding the assignee, has never been negatived by decision. This, I may observe, is stating the case too negatively; for in such cases as I have known arise, the right to equitable relief has never been doubted, but the question has been only, whether the plaintiff has, by his own conduct, prevented his claim to relief: the right to equitable relief, at least, is clear; for, assuming the contract to be a valid one, it binds the land in the view of a court of equity, and a specific performance of it will be enforced, or, what amounts to the same thing, the owner of the land will be enjoined from committing a breach of the covenant.

73. The other doubt adverted to by the commissioners is, whether covenants of this description (and still more, trusts for the same purpose) are not open to the objection of creating a perpetuity?

The argument is, that the doctrine of perpetuity is not confined to a restriction or alienation, but that it applies to every provision or engagement the effect of which may be to impede the free circulation of property in land; and they contend, that in order to secure that freedom of alienation, land ought not to be capable of being subjected to any burthen or interest which the owner of the fee cannot discharge it from within the period of perpetuity, except rents, rights of way, light, and water, and other easements now acknowledged by the law. They observe, that they are not aware that this subject has ever been discussed in any court.

VOL. II.

(a) Third Report, 54.
24

[*782]

But there have been many cases in which the objection might have been raised, although it was not, which is an argument against it. The law of perpetuity has never been so propounded as to go beyond the power of alienation. There is no objection, in point of law, to the owner of an area surrounded by houses, contracting that it shall never be built upon; it does not affect the *power of alienation, nor the right of enjoyment; the former wholly prevails, and so does the latter, in the several parties, according to the contract. Rights of way, for example, show that the law allows one man's land to be perpetually burdened with an easement in favor of another, so that he never can build upon the spot, or do any act which will interfere with the right of way. It is begging the question to say that this and the like cases are exceptions. They are authorized by the law, and the privileges under discussion are of a like nature; so little, indeed, is the supposed doctrine recognized by the law, that the law itself, independently of contract, prevents a man from altering his house, for example, where it would obscure the light which his neighbor has for a given period enjoyed.

74. In a late case (6), in which this question was raised, the opinion of the Court was against it. The Lord Chancellor considered that where the restraint is made in favor of a person who may release it, there is no tendency towards perpetuity. Thus admitting that the owners of an estate could no more be restrained perpetually from cultivating it by supplies derived from any but one market, or from selling its produce at any but that market, than they could be restrained from selling the estate; and admitting that the one would be as much a breach of the rule against perpetuity as the other, it would be no such violation, nor would it in any way defraud that rule, if the owner of the estate were restrained from buying and selling at any market save that belonging to a certain party entitled by grant or by covenant to the privilege, and which he might at his pleasure vary or extinguish. And the legal existence of rights of way and other easements and rents was relied upon.

75. Where a man leased part of his estate for years, and covenanted that if he, his heirs, or assigns should, during the term, have an advantageous offer for an adjoining piece of freehold land, he would give the lessee, his executors, administrators, or as

(b) Keppell v. Bailey, 2 Myl. & Kec. 517.

RESTRICTIONS AGAINST BUILDING ENFORCED IN EQUITY. 187

signs a right of pre-emption, it was said arguendo by the counsel of the lessor, and the purchaser under him, that it might be admitted, that although the assignee of the lessor was named, it did not run with the land demised, according to the case of the Mayor of Congleton v. Patteson (I), because it was to do a thing collateral to the *demised premises; and the reporter adds, " acc. per curiam" (II). This is not accurate, for what must have been intended to be said was, that although the assignee of the lessor was named, it did not run with the land not demised, so as to bind his assignee; it was not necessary to decide the point, nor was it argued, but the opinion of the Court appears to be correct (c).

76. So, if the case had been reversed, and the lessee had covenanted to give pre-emption of other lands to the lessor, it follows that the assignee of the lessée, although also owner of the other land, would not have been bound by the covenant (d).

77. An agreement by owners of land to contribute to the expense of a suit for establishing a modus is, of course, not a covenant which runs with the land, and therefore, if they sell their estates, the liability would not fall upon the purchaser (e).

78. In Collins. Plumb (f), where the vendor was possessed of some water-works, and was seised of a freehold house with a well, and conveyed the house and well to a purchaser in fee, who covenanted for himself, his heirs, and assigns, not to sell the water from the well to the injury of the proprietors of the water-works, their heirs, executors, administrators, and assigns, Lord Eldon, without giving any opinion whether the covenant ran with the land, refused to interfere to uphold the covenant, because, in every instance, the question would be for a jury, whether the act was done to the injury of the water-works; as therefore the seller had thought proper not to reserve the well, but to rest upon the covenant, there was the covenant, and the parties must make what they could of it.

(c) Collison v. Lettsom, 6 Taunt. 224. (d) Per Lord Brougham, C. 2 Myl. & Kee. 544.

(e) Stone v. Yea, Jac. 434.
(f) 16 Ves. jun. 454.

(I) 10 East, 130; the covenant there in a lease was not to hire any persons to work in the mill which the lessee was at liberty to build, who were settled in other parishes, without a parish certificate.

(II) This is represented as a decision in Keppell v. Bailey, and the counsel of the plaintiff is said to have abandoned the ground that the covenant ran with the land, 2 Myl. & Kee. 544, but this is not correct.

79. In the British Museum case (g), where the Duke of Bedford sought to restrain the Museum trustees from building northwards to the British Museum, it appeared that in a conveyance by Lady Rachael Russel, and her trustees to Ralph Montagu, of upwards of seven acres of ground upon part of which Montagu House was afterwards built, and which was next to Southampton House, belonging also to Lady Rachael, and afterwards called Bedford House, a rent of 51. was reserved to Lady Rachael (who had only *the equitable estate) in fee; and there was a covenant by Ralph Montagu, not with the trustees who had conveyed the legal estate to him, but with Lady Rachael, who had the equitable estate, her heirs and assigns, that he would only erect a mansion with offices on the land conveyed to him, and would not erect any building on the outermost wall of the ground northward, next to a field there, and a rent of 3l. a day was reserved to Lady Rachael, her heirs and assigns, in case Ralph Montagu, his heirs or assigns, should erect any buildings on the north end of the ground which should extend northward beyond the range and building of Southampton House, except a summer-house, &c. The Duke of Bedford was entitled to the rent, and Southampton (Bedford) House by purchase. The Vice-Chancellor said, that the policy of the law of England does not allow that the owner of land, when he thinks fit to part with it, is to impose any captious restraint upon the lawful enjoyment of the land, and those who seek to enforce a covenant which affects to restrain a particular lawful use and enjoyment of land must, according to the acknowledged principle of the law of England, show that they have some interest in that restraint, and that it is not for a captious and arbitrary purpose. The covenant was in terms made with Lady Rachael Russell, and her heirs and assigns simply. In terms therefore, it was a mere personal covenant. The learned Judge then proceeded to inquire whether the Duke of Bedford, who was then entitled to the rent of 51. a year, and to the adjoining estate, would be damnified by the buildings proposed to be built, observing, that if he was entitled to an action at law for damages, he was necessarily entitled to the injunction of the Court to restrain the breach of the covenant. He then observed, that it was said that the covenant was not intended to further secure the rent of 5l., but for the purpose of preventing such a use of this land as should tend to

(9) App. No. 19; the case before the L. C. is reported, 2 Myl. & Kee. 552 ;

see Schreiber v. Creed, 10 Sim. 9; Bristow . Wood, 1 Coll. N. C. 480.

diminish either the valuable or pleasurable enjoyment of the adjoining estate, and that the law will permit those restraints, so that I, who am possessed of a particular property of which I have the personal enjoyment, have a right so to deal with land which belonged to me, and is contiguous to mine, so as to restrain any use which may tend either to diminish the pleasure or the profit of the land which I retain. The learned Judge expressed his opinion, that if the deed did afford evidence of such an intention, there was a clear remedy at law against the act which was then sought to be enforced, and, as he before observed, a clear remedy in a court of equity by way of injunction to restrain the commission of that act. That, therefore, was the question. If a court of law declared that the deed afforded no evidence of such *an agreement, equity could not collect such an intention. A court of equity in the construction of such an agreement must follow the law. He therefore determined to send the case to law, to determine what the intention really was; but he woud relieve the parties from any disability or obstruction they might receive in a court of law in respect of the form of the covenant.

80. It was said in arguing the appeal, that the Vice-Chancellor was of opinion that the covenant did not run with the land, which was not granted to Montagu. But he does not appear to have expressed any opinion upon the abstract point. His judgment, which no doubt is imperfectly given, is not very distinct. Two things were clear; the one, that the parties intended the covenant to secure not the rent, but the enjoyment of the open space by the owners of the adjoining estate,—this appeared on the face of the instrument; the other, a point of law, that the covenant could not run with the land, because it was entered into with a stranger to the land, that is, with the cestui que trust, and not with the legal owners, the trustees. But the V. C. was of opinion, that if the intention was established, the covenant was a legal binding one, and could be enforced at law and in equity; and he considered it indifferent in equity, as in truth it was, that the covenant did not run with the land at law, and he meant so to shape the case as to show a legal remedy if the intention were established. This seems rather to prove, that in his opinion the covenant would have run with the land if it had been entered into with the trustees of the legal fee. 81. The case came before Lord Eldon upon appeal, and he called to his assistance the Master of the Rolls (h), and they,

(h) 2 Myl. & Kee. 552.