The court was asked whether the owner of land can burthen it in the hands of future owners by the creation of novel rights.
Held: Lord Brougham said: ‘It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy and caprice of any owner. It is clearly inconvenient both to the science of the law and the public weal that such a latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves . . to answer in damages for breach of their obligations . . but great detriment would arise and much confusion of rights if parties were allowed to invent new modes of holding and enjoying real property.’
As to the subject of covenants, he said: ‘The covenant (that is, such as will run with the land) must be of such a nature as ‘to inhere in the land,’ to use the language of some cases; or ‘it must concern the demised premises, and the mode of occupying them,’ as it is laid down in others: ‘it must be quodammodo annexed and appurtenant to them,’ as one authority has it; or, as another says, ‘it must both concern the thing demised, and tend to support it, and support the reversioner’s estate.’ Now, the privilege or right in question does not inhere in the land, does not concern the premises conveyed or the mode of occupying them: it is not appurtenant to them. A covenant, therefore, that such a right should be enjoyed, would not run with the land. Upon the same principle, it appears to us that such a right, unconnected with the enjoyment or occupation of the land, cannot be annexed as an incident to it: nor can a way appendant to a house or land be granted away, or made in gross; for, no one can have such a way but he who has the land to which it is appendant: Bro. Abr. Graunt, pl. 130 (citing, M. 5 H. 7, fo. 7, pl. 15). If a way be granted in gross, it is personal only, and cannot be assigned. So, common in gross sans nombre may he granted, but cannot be granted over: per Treby, C. J., in Weekly v. Wildman, 1 Lord Raym. 407. It is not in the power of a vendor to create any rights not connected with the use or enjoyment of the land, and annex them to it: nor can the owner of land render it subject to a new species of burthen, so as to bind it in the hands of an assignee.’
Judges:
Lord Brougham LC
Citations:
[1834] EWHC Ch J77, (1834) 2 My and K 517, [1834] 39 ER 1042, [1834] EngR 193, (1834) Coop T Br 298, (1834) 47 ER 106, [1834] EngR 448, (1834) 39 ER 1042
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Lists of cited by and citing cases may be incomplete.
Contract, Company
Updated: 30 June 2022; Ref: scu.245419
