Austerberry v Corporation of Oldham, [1885] 29 ChD 750

A., by deed, conveyed for value to trustees in fee a piece of land as part of the site of a road intended to be made and maintained by the trustees under the provisions of a contemporaneous trust deed (being a deed of settlement for the benefit of a joint stock company established to raise the necessary capital for making the road); and in the conveyance the trustees covenanted with A., his heirs and assigns, that they, the trustees, their heirs and assigns, would make the road and at all times keep it in repair, and allow the use of it by the public subject to tolls. The piece of land so conveyed was bounded on both sides by other lands belonging to A. The trustees duly made the road, which afforded the necessary access to A.’s adjoining lands. A. afterwards sold his adjoining lands to the Plaintiff (Austerberry), and the trustees sold the road to the Defendants [Corporation of Oldham], both parties taking with notice of the covenant to repair.

Lindley, L.J.:— #

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The first question which I will consider is whether that covenant runs with the land, as it is called — whether the benefit of it runs with the land held by the Plaintiff, and whether the burden of it runs with the land held by the Defendants; because, if the covenant does run at law, then the Plaintiff, so far as I can see, would be right as to this portion of his claim. Now, as regards the benefit running with the Plaintiff’s land, the covenant is, so far as the road goes, a covenant to repair the road; what I mean by that is, there is nothing in the deed which points particularly to that portion of the road which abuts upon or fronts the Plaintiff’s land — it is a covenant to repair the whole of the road, no distinction being made between the portion of that road which joins or abuts upon his land and the rest of the road; in other words, it is a covenant simply to make and maintain this road as a public highway; there is no covenant to do anything whatever on the Plaintiff’s land, and there is nothing pointing to the Plaintiff’s land in particular. Now it appears to me to be going a long way to say that the benefit of that covenant runs with the Plaintiff’s land. I do not overlook the fact that the Plaintiff as a frontager has certain rights of getting on to the road; and if this covenant had been so worded as to shew that there had been an intention to grant him some particular benefit in respect of that particular part of his land, possibly we might have said that the benefit of the covenant did run with this land; but when you look at the covenant it is a mere covenant with him, as with all adjoining owners, to make this road, a small portion of which only abuts on his land, and there is nothing specially relating to his land at all. I cannot see myself how any benefit of this covenant runs with his land.

But it strikes me, I confess, that there is a still more formidable objection as regards the burden. Does the burden of this covenant run with the land so as to bind the Defendants? The Defendants have acquired the road under the trustees, and they are bound by such covenant as runs with the land. Now we come to face the difficulty; does a covenant to repair all this road run with the land — that is, does the burden of it descend upon those to whom the road may be assigned in future? We are not dealing here with a case of landlord and tenant. The authorities which refer to that class of cases have little, if any, bearing upon the case which we have to consider, and I am not prepared to say that any covenant which imposes a burden upon land does run with the land, unless the covenant does, upon the true construction of the deed containing the covenant, amount to either a grant of an easement, or a rent-charge, or some estate or interest in the land. A mere covenant to repair, or to do something of that kind, does not seem to me, I confess, to run with the land in such a way as to bind those who may acquire it.

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Cotton, L.J.:- #

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Now, as to enforcing this covenant in equity, I will deal with that point first. 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, at least so far as this case is concerned. 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 be a very different question; then one would have to consider this — how far, having regard to the Act of 1880, the equitable right would travel; because, undoubtedly, where there is a restrictive covenant, the burden and benefit of which do not run at law, Courts of Equity restrain anyone who takes the property with notice of that covenant from using it in a way inconsistent with the covenant. But here the covenant which is attempted to be insisted upon on this appeal is a covenant to lay out money in doing certain work upon this land; and, that being so, in my opinion — and the Court of Appeal has already expressed a similar opinion in a case which was before it — that 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 undertake 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 in my opinion 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 case principally relied upon by the Appellant was one before Vice-Chancellor Malins. That was the case of Cooke v. Chilcott. Now undoubtedly the Vice-Chancellor did decide that case on the equitable doctrine, and said that he would enforce the covenant; but that is an authority which in my opinion was not right on that point. In the subsequent case of Haywood v. Brunswick Permanent Benefit Building Society — both Lord Justice Lindley and myself were members of the Court which decided that case — we expressed our opinion against Cooke v. Chilcott being a correct development of the doctrine established by Tulk v. Moxhay, or for which Tulk v. Moxhay was an authority.

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Appeal dismissed.