Covenants & Successors
Land and Conveyancing Law Reform Act 2009
Freehold covenants
Interpretation
Chapter 4.
48.— In this Chapter, unless the context otherwise requires—
“developer” means the person who creates a scheme of development and that person’s successors in title;
“dominant land” means freehold land with the benefit of a covenant to which other freehold land is subject; and “dominant owner” shall be read accordingly and includes persons deriving title from or under that owner;
“freehold covenant” means a covenant attaching to dominant land and servient land which has been entered into after the commencement of this Chapter;
“persons deriving title” include—
(a) a person who has acquired title to the land by possession under the Act of 1957;
(b) a mortgagee, or receiver appointed by a mortgagee, in possession of the land;
“scheme of development” means a development of land under which—
(a) the land is, or is intended to be, subdivided into 2 or more parts for conveyance in fee simple to each owner of a part;
(b) there is an intention as between the developer and the owners of parts to create reciprocity of covenants in accordance with section 49 (3);
(c) that intention is expressed in each conveyance to the owners of parts or implied from the covenants in question as they relate to the parts and the proximity of the relationship between their owners;
“servient land” means freehold land which is subject to a covenant benefiting other freehold land; and “servient owner” shall be read accordingly and includes—
(a) persons deriving title from or under that owner, but not a tenant for a period less than 5 years,
(b) in the case of a covenant which is restrictive in substance, a licensee or other person in occupation of the land with or without the consent of that owner.
Enforceability of freehold covenants.
49.— (1) Subject to subsection (6), the rules of common law and equity (including the rule known as the rule in Tulk v. Moxhay) are abolished to the extent that they relate to the enforceability of a freehold covenant.
[CA 1881, ss. 58 and 59]
(2) Subject to subsections (3) to (6), any freehold covenant which imposes in respect of servient land an obligation to do or to refrain from doing any act or thing is enforceable—
(a) by—
(i) the dominant owner for the time being, or
(ii) a person who has ceased to be that owner but only in respect of any breach of covenant occurring during the period when that person was such owner,
(b) against—
(i) the servient owner for the time being in respect of any breach of covenant by that owner or which occurred before and continued unremedied after that person became the servient owner, or
(ii) a person who has ceased to be that owner, but only in respect of a breach of covenant which occurred during the period when that person was such owner.
(3) Where there is a scheme of development subsection (2) applies so as to render covenants which are capable of reciprocally benefiting and burdening the parts of land within the scheme enforceable by and against the owners for the time being of such parts or persons referred to in subsection (2)(a)(ii) and (2)(b)(ii).
(4) Where the servient land has been subdivided any obligations, whether to do or to refrain from doing any act or thing, relating to that land—
(a) are apportioned, as appropriate to the subdivided parts of the land, between those parts,
(b) are enforceable accordingly by or against the persons in whom the subdivided parts are vested,
as if those obligations had originally been entered into separately in respect only of each such part.
(5) Any dispute as to the application of subsection (4) to a particular case may be
referred to the court for determination and, on such application, the court may order such apportionment as it thinks fit.
(6) This section—
(a) does not affect—
(i) the enforceability of a covenant under the doctrine of privity of contract or a covenant for title under section 80, or
(ii) the application to a freehold covenant of the Act of 1957,
(b) takes effect subject to the terms of the covenant or the instrument containing it.
Discharge and modification.
50.— (1) A servient owner may apply to the court for an order discharging in whole or in part or modifying a freehold covenant (whether created before or after the commencement of this Chapter) on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land.
(2) In determining whether to make an order under subsection (1) and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard as appropriate to the following matters—
(a) the circumstances in which, and the purposes for which, the covenant was originally entered into and the time which has elapsed since then,
(b) any change in the character of the dominant land and servient land or their neighbourhood,
(c) the development plan for the area under the Act of 2000,
(d) planning permissions granted under that Act in respect of land in the vicinity of the dominant land and servient land or refusals to grant such permissions,
(e) whether the covenant secures any practical benefit to the dominant owner and, if so, the nature and extent of that benefit,
(f) where the covenant creates an obligation on the servient owner to execute any works or to do any thing, or to pay or contribute towards the cost of executing any works or doing any thing, whether compliance with that obligation has become unduly onerous compared with the benefit derived from such compliance,
(g) whether the dominant owner has agreed, expressly or impliedly, to the covenant being discharged or varied,
(h) any representations made by any person interested in the performance of the covenant,
(i) any other matter which the court considers relevant.
(3) Where the court is satisfied that compliance with an order under subsection (1) will result in a quantifiable loss to the dominant owner or other person adversely affected by the order, it may include as a condition in the order a requirement by the servient owner to pay the dominant owner or other person such compensation as the court thinks fit.
(4) An order under subsection (1) shall be registered in the Registry of Deeds or Land Registry, as appropriate.
Pre-2009 Legislation
Conveyancing Act, 1881
58. – (1) A covenant relating to land of inheritance, or devolving on the heir as special occupant, shall be deemed to be made with the covenantee, his heirs and assigns, and shall have effect as if heirs and assigns were expressed.
(2) A covenant relating to land not of inheritance, or not devolving on the heir as special occupant, shall be deemed to be made with the covenantee, his executors, administrators, and assigns, and shall have effect as if executors, administrators, and assigns were expressed.
(3) This section applies only to covenants made after the commencement of this
Act.
59. – (1) A covenant, and a contract under seal, and a bond or obligation under seal, though not expressed to bind the heirs, shall operate in law to bind the heirs and real estate, of the person making the same, as if heirs were expressed.
(2) This section extends to a covenant implied by virtue of this Act.
(3) This section applies only if and as far as a contrary intention is not expressed in the covenant, contract, bond, or obligation, and shall have effect subject to the terms of the covenant, contract, bond, or obligation, and to the provisions therein contained.
(4) This section applies only to a covenant, contract, bond, or obligation made or
implied after the commencement of this Act.
Cases
Craig v Greer
[1899] 1 I.R. 258 (Court of Appeal)
Chatterton V.–C.:
… But then it was said that these covenants do not run with the land, and that there was no privity of contract between the plaintiff and the defendants Braith waite and M’Cann. Of course there is direct privity of contract between her and the defendant Greer. But assuming that the covenants and restrictions do not run with the land, there is the equitable rule, that where a person purchases an interest in land with notice of covenants restricting the use of the land in a particular way, the covenant will be enforced against him, whether the covenant runs with the land or not. In the case of Tulk v. Moxhay (8 Q.B.D. 403); Lord Cottenham, C., laid down, or rather affirmed the important principle, that the Court of Chancery has jurisdiction to enforce a contract between the owner of land and his neighbours purchasing a part of it, that the latter should either use, not use, or abstain from using the land purchased in a particular way, and stated that he never knew it disputed. He held that the question was not whether the covenant ran with the land, but whether a party shall be permitted to use the land in a manner inconsis tent with the contract entered into by his vendor, and with notice of which he purchased. He observed that of course the price would be affected by the covenant, and that nothing could be 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 under taken. I may say that the present is an a fortiori case, for here the purchaser took expressly subject to the covenants and restrictions in the superior lease.
That case was considered by the Court of Appeal, in Haywood v. Brunswick Building Society (8 Q.B.D. 403), and was treated as the leading case on the subject and as deciding that an assignee, taking land subject to restrictive covenants, is bound by such covenants if he has had notice of them. The case before the Court was distinguished from Tulk v. Moxhay (2 Phill. 774), by the fact that the covenants there were not restrictive as in Tulk v. Moxhay (2 Phill. 774), but affirmative covenants binding the purchaser to expend money, which would not be enforced on an assignee of the land, with whom there was not privity of contract. The defend ants in that case were mortgagees. Lindley, L.J., says that it was not a case of landlord and tenant, which was a distinction never to be lost sight of.
In Hall v. Ewin (37 Ch. D. 74) the case of Tulk v. Moxhay (2 Phill. 774) was again under the consideration of the Court of Appeal. Cotton, L.J., says of that case: ‘There is no doubt that under the principle in Tulk v. Moxhay (2 Phill. 774), if a man had actually done anything in contravention of the covenants of which he had notice, the Court would grant an injunction.’ He adds that the principle there laid down was that if a man bought an underlease, although he was not bound at law by the restrictive covenants of the original lease, yet if he purchased with notice of these covenants, the Court of Chancery would not allow him to use the land in contravention of the covenants, and that that is a sound principle. The other Lords Justices agreed in this opinion. The case was decided on the authority of Haywood
v. The Brunswick Building Society (8 Q.B.D. 403), and was said to be distinguished from Tulk v. Moxhay (2 Phill. 774), on the ground that the injunction sought was in effect to compel the defendant to bring an action against his tenant to prevent him from doing the act complained of. In Austerberry v. Corporation of Oldham (29 Ch. D. 750) the Court of Appeal again considered this subject, and expressed their approval of the principle laid down in Tulk v. Moxhay (2 Phill. 774). The facts of that case, which was a proceeding to enforce a covenant to make and maintain a road, are so different from those here, that it is valuable only for the expression of the opinions of the Lords Justices as to the enforcing covenants not running with the land at law. The covenant was not restrictive, and Cotton, L.J., says, ‘Undoubtedly where there is a restrictive covenant, the burden and benefit of which do not run at law, Courts of Equity will restrain anyone who takes the property with notice of that covenant from using it in a way inconsistent with the covenant.’ In the judgments of Lindley and Fry, L.JJ., they, in considering thequestion of what covenants run with the land, carefully exclude cases of landlord and tenant from question.
The conclusion to be derived from these authorities is that the principle of Tulk
v. Moxhay (2 Phill. 774) is fully established, but that it is to be confined to restrictive covenants, and not applied to cases where the covenant is to do some act, such as repairing or improving the property, involving the expenditure of money. Therefore, even if the case of the plaintiff rested mere ly on the principle laid down in Tulk v. Moxhay (2 Phill. 774), I should have no hesitation in holding that the defendants, who had express notice of these restrictive covenants, when they respectively acquired their interestrs in the premises, are in equity bound by them, and that they should be restrained by injunction from using the demised premises contrary to them. But the plaintiff’s case does not rest there, for by the express terms of the leases of 1863 and 1896 the defendants took, subject to all the covenants, clauses, and restrictions contained in the lease of 1854. This, too, is a case between landlord and tenant which, as observed in the cases to which I have referred, is not subject to the same considerations as those where that relation does not subsist between the parties.
The defence chiefly relied on was that from the change in the character of the neighbourhood, which has undoubtedly taken place, it would be inequitable in the proprietor of the ground to claim the assistance of the Court to restrain such building as that now in the course of erection by tenants of Seville Lodge. Such relief has been refused in several cases. It is therefore necessary to consider these cases, and extract from them the general principles on which proceeded.
Before referring to them I must see what the facts are in the present case which are material to this part of the case.
It appears upon the evidence that when the lease of 1863 was granted, the district in which these lands are situated was chiefly occupied with villa residences, of which Seville Lodge was one. But the city of Belfast was gradually spreading, and especially within the last few years, since a tramway service was established, and what were once country roads are being turned into streets of dwelling-houses, in many of which shops were set up. This, of course, greatly enhanced the value of all ground available for building, and offered strong temptation to the owners of it to turn it into streets instead of continuing it as sites for villas. At the other side of Belmont-avenue, opposite the premises demised by the lease of 1854, there is a nearly continuous row of small houses and shops, but the ground in question is still chiefly occupied with villas, there being no less than ten villa residences still occupied as such on the premises demised by the lease of 1854. The only street upon it now consists of houses very recently erected by the plaintiff, and that is at the part furthest from Seville Lodge. The plaintiff herself resides in what appears to be a handsome villa immediately adjoining Seville Lodge. Seville Lodge fell into bad repair, and was for some years occupied as a ladies’ school, and since that was discontinued, it has been unoccupied. This change in the district was produced by causes altogether independent of any dealing with the premises by the plaintiff, for I cannot reasonably attribute it to the building of the houses at the far end of them by her, which was quite recent, and after the change in the character of the district had taken place. The place is only about half a mile from Belfast, and was until recently outside the municipal boundary, but that boundary was in the year 1894 extended to over a mile from the old limit. It was alleged that small houses have been lately built on a portion of the ground leased as Seville Lodge, but I think the evidence is that these were not new buildings but were the old offices and stables of Seville Lodge, formerly occupied by some of the servants, which are now, by whose act did not appear, occupied for other purposes. Until the commencement of the defendants’ building complained of there do not appear to have been any other houses existing on the grounds of Seville Lodge. There was for a great many years a publichouse at Gelston’s corner not upon the plaintiff’s lands, but at the opposite side of Belmont-avenue, and not in any way owned by the plaintiff.
The case of The Duke of Bedford v. The Trustees of the British Museum (2 Myl. & K. 552), is always referred to on this subject, where it was held that if the grantor’s deed contained a covenant in effect restricting the grantee to a particular use of the subject of the grant, but those deriving under him had so altered the character of his lands adjoining the subject of the grant that the restrictions in the covenant ceased to be applicable to the new character of the land conveyed, according to the true intent and spirit of the contract, a Court of Equity would not interfere to enforce the covenant, but would leave the grantor to his remedy at law. Lord Eldon impliedly, and Sir T. Plumer expressly, based their judgment on the fact that the acts were those of the grantor, thus creating a personal equity against him, and those deriving from him.
This case was relied on by the defendants, and so was also the case of Roper v.
Williams (T. & R. 18), also before Lord Eldon, where the owner of an estate suitable for building desired to sell it in suitable divisions, and had a general plan of it made, laying the ground out according to which purchasers were required to build, and they covenanted with the owner of the estate to build in conformity with the plan, and not otherwise. The owner, however, relaxed this obligation in favour of certain purchasers, and it was held that as the plan was intended for the general benefit of all, the vendor could not obtain an injunction against other purchasers from infringing their covenants, as he had prevented the general plan from continu ing. This was not a case of a change in the character of the neighbourhood, but was the direct act of the vendor alone.
In German v. Chapman (7 Ch. D. 271), which also was a case of a general scheme laid out for the letting of an estate for building purposes, it was held that a covenant to be entered into by all the purchasers not to use their houses otherwise than as private residences, was not waived by the vendor giving permission to carry on a school in one of the houses on the estate. The case of Roper v. Williams (T. &
R. 18), and also that of Peck v. Mathews (L.R. 3 Eq. 515) was there referred to and distinguished on the ground that the acts relied upon in those cases as amounting to a waiver were of such a nature as to render nugatory the general building schemes which were intended to be for the benefit of all the purchasers. The opening of a boarding school at a distant portion of the ground, and not interfering with the general design, was held not to amount to a waiver. There is no general building plan in the case before me, nor any covenants for the benefit of a class of purchasers, but a covenant entered into with the lessor alone for the benefit of herself, and the protection of her property.
I shall next refer to the case of Sayers v. Collyer (28 Ch. D. 103) before the Court
of Appeal which has an important bearing on the present. It was the case of a general building scheme laying out a building estate for sale in lots, and provided for covenants from each purchaser not to build a shop on his lot, or to use his house as a shop, or to carry on any trade therein. It was relied on that the covenant was waived by the fact that some of the houses so built had been used as shops; but it was held that the change in the character of the neighbourhood was not in itself a ground for refusing an injunction, because the change was not caused by the conduct of the plaintiff. Bowen, L.J., in his judgment says, that the case of The Duke of Bedford v. The Trustees of the British Museum (2 Myl. & K. 552) must not be misunderstood or misapplied; that it did not decide that contractural obligations disappeared as the circumstances changed; but that a person, who is entitled to thebenefit of a restrictive covenant, may by his conduct or omissions put himself in such an altered relation to the person bound by it, as makes it manifestly unjust for him to ask the Court to insist on its enforcement by injunction. He adds that they did not decide that a mere alteration in the character of the neighbourhood would be sufficient, because there was no evidence that such alteration was caused by the plaintiff. Fry, L.J., says, that the rule in The Duke of Bedford v. The Trustees of the British Museum (2 Myl. & K. 552) was not applicable to that case; that it applies where an alteration takes place through the acts or permission of the plaintiff or those under whom he claims, so that his enforcing his covenant becomes unreason able, but that he did not think that it applies to cases where the change which has taken place was beyond the control and independent of the action of the plaintiff. The case was decided on the ground of acquiescence by the plaintiff.
The last case which I shall refer to is Knight v. Simmonds ([1896] 2 Ch. 294), also in the Court of Appeal, which was one where there had been a sale of an estate in building lots with covenants not to allow any trade or business to be carried on upon the respective lots. It was held that the covenants did not run with the land, but the injunction was granted on the ground that the general scheme had not been materially departed from by permission of the vendor. The facts of that case, however, were so different from the present that I do not think it has a material bearing on the question. No consideration arose there like that in Sayers v. Collyer (28 Ch. D. 103) to which I have referred as to the change in the character of the neighbourhood.
The principle to be deduced from these authorities seems to me to be that in order to defeat the right of a person with whom a covenant has been entered into restricting the mode of user of lands sold or demised, it must be clearly established that there is a personal equity against him arising from his acts or conduct in sanctioning or knowingly permitting such a change in the character of the neigh bourhood as to render it unjust in him to seek to enforce his covenant by injunc tion: a change resulting from causes independent of him will not have such an operation. As I have already stated, I am of opinion that the general change which has occurred in this neighbourhood arose from causes entirely independent of the plaintiff and those from whom she derives, and upon ground in which she has no estate or interest, and over which she had no control. The building by the plaintiff of the small houses at a remote part of her land cannot in my opinion be deemed such conduct on her part as to disentitle her to obtain an injunction against a breach of contract entered into with her by her tenant on the execution of the lease of 1863. I fail to see any injustice to the defendants in her suing to prevent a breach of covenant confined expressly to the holding called Seville Lodge, because on another portion of her property, at some distance from it, she has built houses which her tenant is precluded by her contract from building on the portion leased to her.
It was contended that the defendant Arabella Greer stands in a better position in this case than her co-defendants, as she is not proved to have authorized or sanctioned the breaches of her own covenant by the others. I do not think that her position is better than theirs. That she has been aware of their intention to erect the building objected to I can have no doubt. If she were now coming forward to disown their acts, she could more plausible urge this contention, but so far from that being so, she has joined with them in resisting the plaintiff’s claims. The defences are substantially the same, and delivered by the same solicitor, and she appeared at this trial by the same counsel. In the case of Maunsell v. Hort (l L.R.1. 88), which has much resemblance to this, the immediate lessee was made a defendant with the sub-tenants, who actually committed the acts complained of, and sought to escape liability to costs, because he did not actively resist the plaintiff’s claim, but still the Master of the Rolls held him liable for costs jointly with his co-defendants. In the case of Lord Pembroke v. Warren ([1896] 1 I.R. 76) before me, Mr. Warren, the representative of the immediate lessee, was made a defendant with his sub-tenants, who alone were responsible for the acts complained of, and though he not only did not resist the decree sought for, but as far as he could, co-operated with the plaintiff in obtaining it, no one thought of raising the question as to his being made a co-defendant; and though in consequence of his disowning the acts of his tenants, I did not hold him liable to pay the plaintiff’s costs, I made him abide his own costs.
The case relied on to exempt Miss Greer from liability in the present suit is that
of Hall v. Ewin (l L.R.I. 88), but there the sole defendant was a person who was not assignee of the lease containing the covenant, but only of an underlease, and therefore there was no privity of contract as here. He had taken no part in, nor authorized, nor sanctioned the acts of the under-tenant, and alleged that he had done all in his power, saving bringing an action, to prevent the under-tenant’s acts. I am of opinion that this case does not support Miss Greer’s contention, and I further incline to think that if she had not been joined as co-defendant, it might have been a good objection to the frame of the suit….
Gaw v. Coras Iompair Eireann
[1953] IR 232
Dixon J.
A little over a hundred years ago, the Waterford, Wexford, Wicklow and Dublin Railway Company, which had been incorporated in 1846, contemplated the construction of a tunnel for the purposes of the portion of its undertaking connecting Dalkey and Killiney in the County of Dublin. As part of the preliminaries to that construction, the Company entered into an agreement, dated the 25th January, 1848, with one, Martin Burke, described as of Stephen’s Green in the City of Dublin. It is only necessary to summarise this agreement. It provided for the sale by Martin Burke to the Company of portion of the lands of Dalkey Commons for a sum which was “to cover all claim for damage by reason of severance or other injury to said lands and the house called Kyber Pass adjoining same by reason of the construction of the said railway and works.” After other provisions not material for present purposes, the agreement provided: “It is also agreed to give to Mr. Burke the right and facility of passage to the sea on the south side of said land.”
This agreement was followed by a conveyance, dated the 28th February, 1848, by Martin Burke to the Company of the lands which had been specified in the agreement to hold the same to the Company their successors and assigns for ever. Martin Burke was therein described as of Stephen’s Green in the City of Dublin, hotel keeper. This conveyance contained no reference to any passage to the sea.
There appears to have been some neglect or delay on the part of the Company in giving the right and facility of passage to the sea mentioned in the agreement, because the next record in the transaction is a decretal order made by the Lord Chancellor, on the 21st November, 1853, in the matter of Martin Burke, petitioner, and the Dublin and Wicklow Railway Company, respondents. As will be seen later, an Act of 1851 had altered the name of the Company. This order dealt first with a matter included in the agreement of the 25th January, 1848, viz., the conveyance to Martin Burke of such portions of adjoining lands acquired by the Company as might not be required by the Company for the purposes of their undertaking. This matter was referred to Edward Litton, the Master of the Court in rotation, to enquire and report. The order then proceeded: “And it is further ordered that the said Master do also enquire and report whether the respondents have in fact since the date of the said agreement of 25th January, 1848, given to the petitioner the right and facility of passage from the petitioner’s house called Kyber Pass to the sea on the south side of his land as provided by the said agreement and if the Master shall find that the said respondents have not given the same then His Lordship doth declare the respondents bound forthwith to make and at all times thereafter to maintain a convenient and sufficient passage for the purpose of giving such right and facility for the petitioner’s use and accommodation And it is further ordered that the parties be at liberty to apply to the Master from time to time in respect of the execution of this part of the decree And that the Master be at liberty if necessary to direct the proper mode of performance thereof.”
The Master did in fact report on the 20th May, 1856, but, before this date, there was a deed of grant by the Company to Martin Burke and the works contemplated would appear to have been executed. The deed is dated the 20th March, 1856, and most of it is of importance for the purposes of the present action. The first three recitals are as follows:
“Whereas the said Martin Burke (party hereto) is now and for several years hath been lawfully seised and possessed of certain lands and premises known as Kyber Pass and situate at Dalkey in the County of Dublin and in the immediate vicinity of the said sea and strand at Dalkey aforesaid and which possessed an ancient passage leading from the south side of the said lands and premises unto the said sea and strand and giving direct easy and convenient access thereto for the purposes of bathing boating fishing and otherwise
And whereas by the construction of the railway and works authorised by the said Acts and the several Acts incorporated therewith the said passage and the access and approach to the said sea and strand thereby given were interfered with and interrupted by the said railway and works
And whereas under and by virtue of an agreement in writing bearing date the 25th day of January, 1848, and made between the said Martin Burke and the said Company by their said original name and title and entered into between the said parties upon the occasion of and in relation to the purchase by the said Company from him the said Martin Burke of the portion of his said lands and premises required by them for the purposes of the said railway he the said Martin Burke was entitled and the said Company were bound as a part of the terms of the said sale to have the right and facility of passage to the said sea (on the south side of his lands) given and made good unto him the said Martin Burke his heirs under-tenants and assigns by and at the expense of the said Company.”
The deed then recited the institution of a suit in equity by Martin Burke for specific performance of the agreement and the order of the 21st November, 1853, already referred to, made therein; and it then proceeded:
“And whereas the reference directed by the said decretal order having been proceeded with the Master found and declared that the said Company had not given the right and facility of passage as provided by the said agreement as aforesaid and the said Master accordingly directed a convenient and sufficient passage for the purpose of giving such right and facility as aforesaid to be made and constructed by and at the expense of the said Company according to a certain plan and specification of and for the same prepared by and under the direction and superintendence of Joseph James Byrne Esquire the engineer appointed by the said Master for that purpose
And whereas in pursuance of the said decretal order and the said directions of the said Master thereunder and conformably with the said plan and specification the said footpath road or passage and the works thereof respectively have been made constructed and completed by the said Company from the said house lands and premises of Kyber Pass to the said sea and strand over through and upon a portion of the lands duly acquired by the said Company for the purposes of the said railway now in their possession and hereinafter described under the directions of the said Joseph James Byrne who certified to the said Master their completion.
And whereas in order to give full effect to the said decretal order and the said Master’s directions thereunder and according to a consent entered into between the said parties in the said suit dated the 9th day of August, 1855, the said Company agreed to execute unto the said Martin Burke a grant of the right of passage to the sea with plan and specification annexed over their said lands for the full enjoyment of the said passage in the manner hereinafter mentioned and to enter into such covenants for at all times hereafter maintaining the same in conformity with the said decretal order as are hereinafter contained.”
It will have been observed that, judged by modern practice, these recitals are somewhat prolix, and the grant of the right of passage which follows is even more elaborate. By it, the Company were expressed for themselves and their successors to “grant covenant and agree with and to the said Martin Burke his heirs and assigns that it shall be lawful for the said Martin Burke his heirs and assigns and his and their agents and servants and the tenants and occupiers for the time being of the said house lands and premises of Kyber Pass situate at Dalkey in the Barony of Rathdown in the County of Dublin aforesaid and of all and every other house or houses lands and premises of the said Martin Burke his heirs and assigns and all and every other person and persons for his and their respective sole use accommodation benefit and advantage or by his or their permission or authority from time to time and at all times for ever hereafter at his and their convenience and respective will and pleasure at all hours and for all purposes whatsoever to have and use the sole right and facility of passage and to go return pass and repass in through along over and upon all that footpath footway road and passage and strand at the foot thereof lately made constructed completed and cleared in upon over or through that part of the land belonging to and in the possession of the said Company on both sides of the road now called and known as the Vico Road situate at Dalkey in the Barony of Rathdown and County of Dublin aforesaid and formed fenced and railed off by the said Company from and out of other portions of their said lands and leading from the south side of the said house lands and premises of Kyber Pass aforesaid first unto and towards the said Vico Road on the south side thereof and then, after crossing the said road from the north side thereof along towards unto and upon the strand at foot thereof and thence unto the sea opposite or adjacent thereto and which said footpath road or passage and strand at foot thereof the convenient right and liberty of passage over and using which is hereby granted as aforesaid and the course and direction width length declivity and other particulars and works thereof as laid out constructed executed under the directions of the said Joseph James Byrne by the said Company are more particularly described in the map plan and specification thereof respectively hereunto annexed which said footpath footway road or passage and strand at foot thereof and the several works of the same respectively as described and detailed in the said map and specification respectively and so now made constructed executed and cleared by the said Company as aforesaid they the said Company are under the said decretal order bound henceforth for ever to maintain.”
There follows then, in the deed, a covenant for repair which need not be set out for the moment, as the nature of the grant intended and effected by the portion of the deed just quoted is put in question. The action is brought by the plaintiff as the successor in title of Martin Burke and she claims a declaration that she is entitled from time to time and at all times at all hours and for all purposes to have and use the sole right and facility of passage and to go return pass and repass along over and upon the said passage way and strand. She also alleges that the undertaking of the Dublin and Wicklow Railway Company and of the Dublin Wicklow and Wexford Railway Company is now vested in the defendants and she claims a declaration that they are at all times at their own costs and expenses bound to repair renew amend and maintain and keep repaired amended renewed and maintained in a proper sufficient and workmanlike manner the said passage way and strand; and she claims consequential relief in respect of alleged non-repair.
The defendants, in their defence, say that they “do not and never have questioned the plaintiff’s right to a passage way as claimed in this action, but as regards the plaintiff’s claim to have the said passage and works connected therewith maintained and repaired and to have a part of the foreshore cleaned and maintained as a bathing place or otherwise the defendants submit that the statement of claim discloses no cause of action against them.”
This plea would appear to admit the existence of a right of way vested in the plaintiff, but the defendants argued that its effect was not so extensive as it appears at first sight and that it left open the question of the nature of the right. Their contention was that the grant in the deed of the 20th March, 1856, was merely that of a personal licence and not of a right of way amounting to an easement. In support of their proposition they could point, with considerable plausibility, to the diffuse and somewhat inconsistent wording of the grant itself. In particular, it was pointed out that the limitation to Martin Burke his heirs and assigns was, so far as the assigns at least were concerned, to the assigns of the grant, not to the assigns of what should have been the dominant tenement, viz., the lands of Kyber Pass; that the grant extended to the tenants and occupiers of all and every house or houses lands and premises of the said Martin Burke, which might, of course, not be situated in Dalkey at all; that it also extended to any person permitted or authorised to use the passage by Martin Burke his heirs and assigns irrespective of any connection of such person with anything in the nature of a dominant tenement; and that the clear intention and meaning of the document as a whole was merely to grant, as was expressed, a “right and facility of passage.” In the latter connection, they point to the first recital in the deed as showing that the draftsman was well aware of a more accurate way of defining an easement and they also pointed out that the right is not limited to a way to and from the sea or strand but is a right to use both portions of the passage “for all purposes.”
These are serious difficulties in the construction of the grant and it cannot be said that the meaning is expressed very clearly. There is authority, if it were necessary, that there cannot be a right of way, in the sense of an easement as distinct from a licence merely personal, in gross, that is, without both a dominant and a servient tenement: see, e.g., Rangeley v. Midland Railway Company (1); Hawkins v.Rutter (2). If the right in this case is merely personal, the covenant to repair would necessarily be only a personal one and these circumstances would have a material bearing on the right of the plaintiff to take advantage of it and on the liability of the defendants to perform it.
On the other hand, it was argued on behalf of the plaintiff that the grant was one of an easement. The dominant and servient tenements are clearly indicated, it was said, as being, respectively, the lands of Kyber Pass and the lands belonging to the Company; the terminal points are also indicated, viz., those lands of Kyber Pass at one end and the sea or strand at the other; and the grant is recited as being for the purpose of making good to Martin Burke the”ancient passage” interrupted by the railway and which was clearly an easement. Further, counsel for the plaintiff pointed out that the actual way was physically well defined and set apart and attached or appurtenant to the lands of Kyber Pass; that the reference to other houses of Martin Burke may have been intended to be or should be limited to houses erected on the lands of Kyber Pass; and that, in any event, if this reference or the extension to persons permitted or authorised to use the way were too wide, the grant could be treated as severable. Finally, they suggested that a merely personal right could and would have been expressed in simpler and clearer language and without reference to the lands of Kyber Pass.
While, as is evident, the matter is not free from difficulty, I have formed the view that the grant, on a reading of the document as a whole, intended to, and did, create an easement. It is true that the phraseology might have been more precise and it is possible that the draftsman may have had some idea of combining the two ideas of an easement and a more extensive personal licence. It is clear that he intended the right to extend to the widest possible user and the widest possible class of persons. If, however, the wording is sufficiently apt as I think it is to amount to the grant of a right of way, I think it is immaterial, for present purposes, that something has been added or attempted to be added to it. The addition may be treated as surplusage or severable.
This view is not altered by a consideration of the case of Ackroyd v. Smith (1), which was strongly relied on by the defendants. This was an action of trespass in which the defendants sought to justify as assignees of an alleged right of way. Their assignor had been the grantee from the plaintiff of a certain close and of a right of passing and repassing “for all purposes” over a certain road. It was held, on demurrer, that the grant was not restricted to the use of the way for purposes connected with the occupation of the land conveyed; that the right in question was not one which inhered in the land, or which concerned the premises conveyed, or the mode of occupying and enjoying them, and therefore did not pass to the defendants by the assignment. The difficulty in the position of the defendants was put thus by Cresswell J., delivering the judgment of the Court (at p. 187): “If the right conferred by the deed set out, was only to use the road in question for purposes connected with the occupation and enjoyment of the land conveyed, it does not justify the acts confessed by the plea. But, if the grant was more ample, and extended to using the road for purposes unconnected with the enjoyment of the land, and this, we think, is the true construction of it, it becomes necessary to decide whether the assignee of the land and appurtenances would be entitled to it.” After referring to Keppell v. Bailey (1), he proceeded: “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. . . . If a way be granted in gross, it is personal only, and cannot be assigned.”
This would appear to be a decision that the true construction of the grant was that it was a right in gross, or, putting it another way, that there was no dominant tenement. This view is supported by the circumstance that the statement of the facts set out in the judgment and also the pleadings suggest that the road in question did not run to the plaintiff’s close but merely connected a turnpike road with “a certain lane called Legram’s Lane.” This consideration, although not specifically dealt with in the judgment of Cresswell J. may lend point to his observation (at p. 188) that “it would be a novel incident annexed to land, that the owner and occupier should, for purposes wholly unconnected with that land, and merely because he is owner and occupier, have a right of road over other land.”
This case was explained in a different way in the case of Thorpe v. Brumfitt (2), by Sir W. M. James L.J. (at p. 655). He there said: “The case of Ackroyd v. Smith (3) has been misapprehended. It was there in substance said to the defendants, ‘In any view of the case, you are wrong. If this was a right of way appurtenant to a particular property it could only be used for purposes connected with that property, and you have been using it for other purposes. If it was not, then it was a right in gross, and could not be assigned to you.’ The case involved no decision that the right of way was in gross.”
Sir G. Mellish L.J. did not agree with his colleague on this last point. He said (at p. 657): “In Ackroyd v.Smith (3), though it was not absolutely necessary to the decision to give any opinion whether the right of way was in gross or not, the Court gave an opinion that it was in gross. But in that case the close to which it was sought to make the way appendant was not at the end of the road . . .”;and he then quoted the observation of Cresswell J. last cited above.
Whatever be the true view of Ackroyd v. Smith (3), has not, in my opinion, any application to the present case. Here my view, as indicated, is that, on the true construction of the grant, the right is appurtenant to the lands of Kyber Pass; and there is no allegation or claim in respect of any user otherwise than in connection with the enjoyment and occupation of those lands. Further, I do not think Ackroyd v.Smith (1) is any authority for the proposition that if a right of way is expressed to be “for all purposes,” it is thereby prevented from being an easement; while Thorpe v.Brumfitt (2) is an authority to the contrary. Sir G. Mellish L.J. then concluded his judgment with the wards (at p. 658): “There is no authority for holding that the generality of this expression, ‘for all purposes,’ makes a right of way not appurtenant where it is expressed to be to or from a particular piece of land.”
Accordingly, if the plaintiff is the successor in title of Martin Burke, she is entitled to a right of way as granted by the deed of the 20th March, 1856. The substance of the action, however, is her claim to be entitled to enforce the covenant to repair the right of way against the defendants. It has been established by the, evidence that the actual passageway and the works originally constructed in connection therewith have been neglected for many years; in fact, there was no direct evidence of any repairs or maintenance at any time. As a result of this neglect, and of the combined effect of time and the elements, assisted, it may be inferred, to some extent, by deliberate acts of trespassers or others, it is common case that the right of way is seriously out of repair and that it would cost a considerable sum to restore it to its original condition. I am satisfied by the evidence that the actual user of it, and especially the portion between the public road and the strand, has become difficult and, towards the lower end of it, hazardous and dangerous except for a person both agile and careful.
The terms of the covenant relating to repair in the deed of 1856 are as follows: “And further that they the said Company their successors and assigns shall and will from time to time and at all times for ever hereafter at their own costs and expenses repair renew amend and maintain and keep repaired renewed amended and maintained in a proper sufficient substantial and workmanlike manner the said footpath footway road or passage and strand at foot thereof as shown and delineated on the said map or plan thereof hereto annexed the right of passage over and the right of using which is hereby granted as aforesaid and all and every the said works and conveniences of or belonging to the same as aforesaid.” The important question in this action is whether the defendants are liable to the plaintiff under that covenant.
So far as the position of the defendants is concerned, no question arises as to whether the covenant to repair is one the burden of which runs, as it is phrased, “with the land,” since the defendants are in a different position to that of the ordinary successor in title by purchase or by operation of law. The covenant entered into, in the grant of the 20th March, 1856, by the Dublin and Wicklow Railway Company, was clearly an obligation incurred by that Company; and there is a clearly-established chain of succession, either by change of name or by transfer, from that Company to the defendants, of the original undertaking and its liabilities. This is not really questioned by the defendants, but it may be of some advantage to set out briefly the steps involved.
The original undertaking was the Waterford, Wexford, Wicklow and Dublin Railway Company, which was incorporated, under that name, by 9 & 10 Vict., c. ccviii,in 1846. In 1851 the name was changed, by 14 & 15 Vict., c. cviii, to the Dublin and, Wicklow Railway Company. A further change of name to that of Dublin, Wicklow, and Wexford Railway Company was made in 1860 by 23 Vict., c. xlvii; and s. 9 of this Act provided that “notwithstanding the change of name of the company, all deeds . . . and contracts . . . made under the recited Acts . . . shall be as effectual to all intents for, against, and with respect to the company as if the name of the company had remained unchanged.” The recited Acts included those of 1846 and 1851. The next change of name occurred in 1906 when the new title of The Dublin and South Eastern Railway Company was given by 6 Edw. 7, c. lxxxi; and s. 23 provided that the change of name was subject to Part IV of the Companies Clauses Act, 1863. Under s. 39 of this Part, all deeds, instruments, purchases, sales, securities and contracts before the passing of the Special Act effecting the change, made under any other Act, or with reference to the purposes thereof, are to be as effectual to all intents in favour of, against, and with respect to the company as if the name of the company had remained unchanged.
The next step was of a different character and was effected by the Railways Act, 1924 (No. 29 of 1924) and the Great Southern Railways Amalgamation Scheme, 1925 (Stat. R. & Or., 1925, No. 1), made thereunder. The effect, for presen purposes, was that the Dublin and South Eastern Railway Company was one of the companies amalgamated to form the new undertaking to be known as the Great Southern Railway Company, and Part V of the Railway Clauses Act, 1863, was incorporated. This Part, which relates to amalgamation, contains in ss. 44 and 55 savings for conveyances, contracts, etc., and rights and claims of or against a dissolved company, and the subject-matter extends to covenants, agreements and contracts in force at the time of amalgamation, which are to be as valid and of as full force and effect against or in relation to the amalgamated company as if made by or in relation to that company by name.
A further amalgamation, to which Part V of the Act of 1863 was applied, was effected by the Transport Act of 1944 (No. 21 of 1944) and the name became Coras Iompair Eireann . The final change was made by the Transport Act of 1950 (No. 12 of 1950), which effected a further amalgamation and set up a new undertaking but with the same name. By s. 23, sub-s. 2, and s. 68 existing liabilities and contracts are continued as against the new body.
The effect of all this is that, if the original covenant is still otherwise enforceable, it is enforceable against the defendants by reason of a statutory transfer of liability to them. Such a transfer occurred and was recognised in the cases of Fortescue v. Lostwithiel and Fowey Railway Company (1) and Earl of Jersey v. Great Western Railway Company (2). In those cases it was not suggested there could not be an effective statutory transfer of the liability, the question in each case being whether the particular liability was within the terms of the transfer. It may be of importance to note that this statutory transfer of a liability is not necessarily related to, and may be independent of, any transfer of title or property.
It follows that, if there had been no devolution of the grantee’s interest, the covenant would still be enforceable against the defendants. The question, therefore, arises whether the plaintiff, as the present successor in title of the grantee, is entitled to the benefit of the covenant. The succession in title, so far as the lands of Kyber Pass are concerned, was proved satisfactorily from the Landed Estates Court conveyance of the 10th August, 1869, to James Milo Burke. That conveyance was made in the matter of the estate of John Hogan Burke and it does not appear how the interest of Martin Burke came to be in John Hogan Burke. At the same time, however, the conveyance granted the right of passage “in as full and ample a manner as the same was granted to the late Martin Burke by the Dublin and Wicklow Railway Company by indenture dated the 20th day of March, 1856.” The latter indenture recited that Martin Burke was then (1856) and for several years had been lawfully seised and possessed of certain lands and premises known as Kyber Pass and situate at Dalkey in the County of Dublin; while portion of the premises conveyed by the Landed Estates Court conveyance was “part of the lands of Dalkey otherwise Dalkey Commons situate in the Barony of Rathdown and County of Dublin with the house and premises thereon known as Kyber Pass.” Further, the estate maps of Martin Burke and John Hogan Burke (nos. 55 and 56, respectively, in the plaintiff’s affidavit of discovery) both include the same portion of land on which the dwelling, “Kyber Pass,” is shown. I think there is sufficient to establish the chain of title, so far as the lands are concerned, from Martin Burke to the plaintiff. If the matter turned solely on the right of passage, it is probable that the Landed Estates Court conveyance would be a sufficient commencement, in view of the established nature and effect of such a conveyance. It is, however, of importance to ascertain whether the plaintiff is the owner of the lands in conjunction with which the right of passage was granted and intended to be used; and I consider that the documents proved do establish this sufficiently.
All the documents of title, commencing with the Landed Estates Court conveyance, expressly mention and convey the right of passage, but none of them mentions the covenant to repair. The benefit of such a covenant may be separately assignable, either expressly or by operation of law: see Ives v. Brown (1); Chambers v. Randall (2), but that has not happened in the present case. The question, then, is whether the benefit of this covenant could come to the plaintiff without express assignment; that is, whether the benefit “runs with the land.” There is no doubt that the grant of a right of way imports no obligation on the grantor to repair it but the grantor may become so liable by prescription or by express stipulation: Pomfret v.Ricroft (3). I can find no evidence of any prescriptive liability in the present case, nor do I think this covenant could be regarded as part of the grant in the sense used in a rather obscure and unsatisfactory line of reasoning adopted in some of the authorities. Accordingly, the question reduces to that of covenants running with the land.
The leading authority on this branch of the law is, of course, Spencer’s, Case , as set out and annotated in Smith’s Leading Cases (13th ed., 1929), vol. 1, at p. 51. The covenant in question is of the class of covenants not between lessor and lessee dealt with at p. 72. The learned editors divide this class into the two sub-heads of 1, covenants made withthe owner of the land to which they relate, and 2, covenants made by the owner of the lands to which they relate.
Regarding the plaintiff, for the moment, as the owner of the land to which the covenant in question here relates, what is stated of such a covenant is this: “With respect to the former of these classes, viz., covenants made with the owner of the land to which they relate, there seems to be no doubt that the benefit, i.e. the right to sue on such covenants, runs with the land to each successive transferee of it, provided that such transferee be in of the same estate as the original covenantee was.” Illustrations are then given from decided cases, including a covenant to make further assurance: Middlemore v. Goodale (1); a covenant for title: Kingdon v.Nottle (2); a covenant for quiet enjoyment. Campbell v.Lewis (3); a covenant for distress by way of indemnity against distress on the grantee for more than the reserved services: Anon (4); a covenant to supply a close with pure water sufficient to supply the cattle thereon: Sharp v.Waterhouse (5).
Covenants of the character dealt with in this passage might be said to be in gross or personal, so far as the covenantor is concerned, since, as is pointed out in the text, the covenantor may be a stranger to the lands in question and his liability is independent of the possession or ownership of any lands of his own. Consequently, the question of the burden of the covenant running with any land does not arise and the original covenantor will remain primarily and, usually, solely, responsible. His responsibility may, of course, devolve on another, but, apart from operation of law, this would only be on a contractual basis or by statute. In the present case, whether the original obligation incurred by the Dublin and Wicklow Railway Company in 1856 was merely personal or something more, it has, in my view, been transferred to the defendants by the series of statutes already cited.
The question, however, immediately arises whether the plaintiff can be regarded as the owner of the lands to which the covenant relates. She is the owner in fee of the lands of Kyber Pass and of the right of way; but it is to the latter right and not to the lands of Kyber Pass that the covenant relates. I find it quite impossible to read the covenant as touching or concerning the lands of Kyber Pass, except in a very indirect and, for present purposes, inadmissible way. It does touch and concern the right of way and the proper enquiry seems to be whether such a covenant can run with an incorporeal right or, putting it another way, whether a right of way can be regarded as “land” within the proposition cited from Smith’s Leading Cases (13th ed., 1929), vol. 1, at p. 72. There are several decisions which require to be examined in this connection.
First, however, Gale on Easements (9th ed., 1916), may be referred to as to the nature of the right of way itself. It is there (at p. 10) pointed out that it is now properly described as an incorporeal hereditament and that, generally, an easement appears to fall within the words, “lands or hereditaments,” in s. 4 of the Statute of Frauds and within”land” in the Vendor and Purchaser Act, 1874, and the Settled Land Acts. The notes to Spencer’s Case deal (Sm. L. C., 13th ed., 1929, at p. 95 et seq.) with the question of the subject-matter with which a covenant may run. Having expressed the view that the principle probably does not extend to personalty and having dealt with the rather exceptional case of ships, Milnes v. Branch (1) is cited for the proposition that a covenant could not run with rent. This case, however, requires to be carefully considered, as it did not decide that a covenant could not run with a rent-charge, which would be a very different proposition. It is of importance because Brett L.J. in Haywood v. Brunswick Building Society (2), largely founded his decision on what would appear to be a misreading or misinterpretation of it. Both cases were similar to the extent that a covenant to erect, and keep in repair, buildings on the land, by way of security for rent reserved in respect of the land, was involved. What Brett L.J. said was: “I am clearly of opinion, both on principle and on the authority of Milnes v. Branch (1)that this action could not be maintained at common law. Milnes v. Branch (1) must be understood, as it always has been understood, and as Lord St. Leonard’s understood it, and it will be seen, on a reference to his book, that he considers the effect of it to be that a covenant to build does not run with the rent in the hands of an assignee.” Cotton L.J., in his judgment, did not refer to the case, but the third member of the Court, Lindley L.J., gave a more accurate account of it and indicated one clear ground of distinction. He said (at p. 410): “Neither Milnes v. Branch (1) nor Randall v. Rigby (1), however apply very closely. In Milnesv. Branch (2), the plaintiff was not assignee in fee of the rent, having only a leasehold interest in that rent.” It is true that he added: “There are dicta in the judgments, however, which favour the contention of the defendants in this case, and it is impossible not to see that the burdenof the covenant does not run with the land.” I have italicised the word, “burden,” in this passage as showing the context of the reference to “dicta in the judgments” and as showing also what I conceive to be the true ground and extent of the decision in Haywood v. Brunswick Building Society (3),viz., that the burden of the covenant did not affect an assignee of the lands even with notice. This was sufficient to dispose of the case and would bring it into line with the decisions that the burden of a positive covenant does not run with the land. I do not think the case decided that the benefit of such a covenant might not run with a rent-charge, provided it was sufficiently related to the rent-charge. The only member of the Court who seems to have decided this was Brett L.J. and he based it on Milnes v. Branch (2). As already pointed out, Lindley L.J. confined his judgment to the question of the burden of the covenant. Cotton L.J. commenced his with the words (at p. 408): “I am of the same opinion on both points. I think that a mere covenant that land shall be improved, does not run with the land within the rule in Spencer’s Case (4) so as to give the plaintiff a right to sue at law. I also think the plaintiff has no remedy in equity.” The two points he was concerned with, and dealt with, were clearly, therefore, the burden of the covenant and the effect of notice of the covenant. Further, as will be seen, the reference by Lord St. Leonard’s to Milnes v.Branch (2) by no means bears out the statement of Brett L.J. Finally, it may be noted that the decision in Haywoodv. Brunswick Building Society (3) does not appear to have been reserved.
It is evidently important, in view of the foregoing, to enquire what Milnes v. Branch (2) did decide. It has already been noted that Lindley L.J. pointed out that it was concerned with a plaintiff who had merely a leasehold interest in a rent which had been reserved in perpetuity, and, consequently, he would not have been in of the same estate as the covenantee. The case, however, is distinguishable on another ground clearly appearing from the judgments. The facts were that the owner in fee had conveyed the lands to the defendant and another to the use that he (the owner) his heirs and assigns might have a rent out of the premises, and, subject thereto, to the use of the defendant in fee; and the defendant covenanted with the owner, his heirs and assigns to pay the rent and within one year to build messuages on the premises for securing the rent and to keep them in repair. The ground of the decision was that the conveyance had not created a rent-charge. Thus Lord Ellenborough (at p. 417): “I do not see how the analogy, as it regards covenants which run with the land, is to be applied, unless it be shewn that this is land; it might as well be applied to any covenant respecting a matter merely personal. The statute, Hen. 8, recites that, at common law, such only as are parties or privies to any covenant can take advantage of it; here is neither privity of contract, nor privity of estate; the rent is reserved out of the original estate.” Bayley J. was even more explicit (at p. 417): “I am entirely of the same opinion. The argument for the plaintiffs loses sight of the conveyance by which this rent is created. It is incorrect to state it as a rent-charge granted by the owner of the fee; it being a conveyance in fee by Barnsley and Robinson to the defendant to certain uses, one of which is, that they shall receive the rent; so that the rent arises out of the estate of the feoffors. It is therefore not a grant by the owner of the fee, and the covenant is a covenant in gross.” Abbott J. concurred and Holroyd J. gave no judgment.
Randall v. Rigby (1) is also cited for the proposition that a covenant could not run with a rent, but its authority for any such proposition is suspect on two grounds. First, the proposition is only stated obiter and is based on the alleged authority of Milnes v. Branch (2). Thus, Parke B. (at p. 135): “No doubt this covenant is collateral or in gross in one sense, that it does not run with the land or rent; for that Milnes v. Branch (2) is an authority.” Secondly, as pointed out by Lindley L.J. in Haywood v. Brunswick Building Society (3) (at p. 410), the decision turned on the proper form of action. The action was brought in debt and it was held that covenant not debt was the proper form of remedy. Lord Abinger C.B. put it (at p. 134) that “the question here is not whether the defendant is liable, but whether he is liable in this form of action.”
These two cases Milnes v. Branch (2) and Randall v.Rigby (1) are summarised in Sugden on Vendor and Purchaser (14th ed.), at p. 590, and he then makes the short comment on them (at p. 591): “These cases depended upon the form of the conveyance. The covenants were held not to run with a rent not granted by the covenantor.”The italics for the word, “form” are Lord St. Leonard’s; and the edition is the one referred to by Brett L.J.
Most of the other cases cited in Smith’s Leading Cases are cases which either were, or could have been, decided by recourse to the statute, 32 Hen. 8, c. 34 (or the corresponding Irish statute, 10 Car. I, sess. 2, c. 4) relating to the benefit and burden of covenants as between lessors and lessees and their respective assigns. Consequently, they are more appropriate to the portion of the notes dealing with covenants between lessor and lessee rather than the portion under consideration which purports to deal with covenants not between lessor and lessee. Thus, in Bally v. Wells (1),there had been a demise of the tithes for six years and the question was whether the covenant not to let certain farmers have any part of the tithes bound the lessee’s assignee. The question was put in the judgment of the Court of Common Pleas (at p. 26) in the form whether there was “any difference between land and tithe, with regard to the covenant in this case?” The rather pertinent answer was given (at p. 30) that “if we can strip the mind of the idea of matter, there seems to be no difference between an inheritance in lands and an inheritance in tithes.” The statute was not there referred to, but the case is not necessarily an authority for more than the proposition that a lease of tithes was within the scope of 32 Hen. 8, c. 34.
Similarly, in Earl of Egremont v. Keene (2) there was a demise of the tolls of the market and the covenant to pay rent was held binding on the assignee of the lessee. The argument referred to 10 Car. I, sess. 2, c. 4, and Pennefather B. commenced his judgment (at p. 310) by saying: “The question turns upon the construction of the Statute.”
In Muskett v. Hill (3), a licence (for twenty-one years) to search for, raise and carry away minerals was held to pass an assignable interest, but the question whether the burden of the covenant, to keep six miners at work after notice to that effect, ran with it was not decided. Earl of Portmore v. Bunn (4) was equally inconclusive, it being held that the assignee of the grantee could not be bound by the covenants inasmuch as it appeared that the grantors had not any legal or equitable estate in the real hereditament which the deed set out in the declaration purported to grant.
Martyn v. Williams (1) was expressly decided on the basis that 32 Hen. 8, c. 34, extended to incorporeal hereditaments. Martin B. (at p. 826) observed that the question depended upon “the true construction of the statute . . . for it seems to be considered the better opinion that covenants do not run with the reversion at common law.” The latter remark, of course, must be considered as relating to leasehold interests.
Two other cases cited in Smith’s Leading Cases (13th ed., 1929) are distinguishable on the same ground of coming within the statute. In Norval v. Pascoe (2), there was a mining licence for twenty-one years and a covenant to pay compensation for surface damage was held to be one running with the subject-matter of the grant. In Hastings v. North Eastern Railway Company (3) it was held that the rent reserved, in respect of a way-leave for one thousand years, was payable to the owner of the reversion for the time being within 32 Hen. 8, c. 34. One further case mentioned on this topic is Butler v. Archer (4), where the Court was equally divided on the question whether a fee farm grantee could avail, against the assignee of the grantor, of a deduction which the grantor had covenanted to allow in respect of part of the cost of erection of a dwelling-house on the lands. Although one judgment was withdrawn pro forma to permit of a writ of error, the parties came to an arrangement and the case did not go further. In any event, as is clear, it was not concerned with a transfer of the benefit of the covenant but with the question whether the assignee of the grantor was affected with the burden of the covenant.
There is, thus, so far, no clear authority that the benefit of a covenant may run at law with an incorporeal hereditament. In fact, doubt is thrown on the possibility by the editors of Spencer’s Case (Sm. L. C. (13th ed., 1929), vol. 1, at p. 81) in these words: “It would probably be found somewhat difficult to contend that a covenant could run with such an easement as a watercourse.” The authorities, however, they cite in this connection are Milnes v. Branch (5)and Earl of Portmore v. Bunn (6) which, as already shown, may be discounted as not having any real bearing on the question; while, as a commentary on the case of Holmes v.Buckley (7), yet to be considered, it will be found not to be very just. The editors, themselves, immediately proceed to observe that “covenants like that to pay a rent-charge issuing out of the land have reference to an interest possessed by the covenantee independently of the covenant.” As to this statement, it may be observed that the independent interest is in the rent-charge, not in the lands, and that the owner of a watercourse or of a right of way may have, in the same way, an interest independent of a covenant to cleanse the watercourse or to keep the right of way in repair, as the case may be.
Before coming to the case of Holmes v. Buckley (1), just mentioned, it might be better to refer to Brewster v.Kitchin (2), as this case is referred to first in the notes to Spencer’s Case (Sm. L. C. (13th ed., 1929), vol. 1). The two reports of this case mentioned (there are other reports of it) conflict somewhat, but it is clear that the actual decision was that the plaintiff, who was the successor in title of the original grantee of a rent-charge, which had been covenanted or agreed to be paid without deduction, was entitled to recover it in full. The case mainly turned on the position of the defendant, who was not the original grantor nor shown to be his heir or assignee, and it, therefore, was concerned with the running of the burden. On this aspect, the judges were of opinion that the covenant bound the grantor and his heirs. Lord Holt C.J. then raised the difficulty (which, according to Lord Raymond’s report, did not appear to be understood by the other judges) that, the covenant being merely personal, while it might bind the heirs, did not bind an assignee or terretenant. The other judges got over this difficulty, whether they understood it or not, by holding (contrary to Lord Holt’s view) that the covenant might charge the land “being in the nature of a grant, or at least a declaration going along with the grant, showing in what manner the thing granted should be taken.”However questionable this part of the decision (which appears from the report in 12 Mod.) may based thought to be, there remains the fact that the benefit of the quasi-grant or declaration, or whatever it might be called, was not disputed to have passed to the plaintiff. On this question, the only expression of opinion (and not dissented from by the other judges) was on the part of Lord Holt who said that he made no doubt but that the assignee of the rent should have covenant against the grantor, because it was a covenant annexed to the thing granted: 12 Mod. 166 (at p. 170).
The next case to be cited on this topic has, if it is trustworthy, considerable analogy with the present case. It is Holmes v. Buckley (1). Although these reports are anonymous they appear to have had a considerable reputation as authoritative and accurate. In that case, there was a grant of a watercourse through the lands of the grantors and the deed contained a covenant by the grantors, for them, their heirs and assigns, to cleanse the same. It was heard in the Chancellor’s Court and the decision, put shortly, was that the plaintiff, to whom the watercourse had come by mesne assignments, was entitled to an order that the defendant, to whom the lands had come, should cleanse the watercourse, and notwithstanding that the plaintiff and those under whom he claimed had cleansed it for forty years at their own charges. Sugden (14th ed., at p. 593), notes the case very briefly and states the decision as that “this covenant was held to bind the land in the hands of an assignee, for it was a covenant that ran with the land.” This statement takes no note of the circumstance that the benefit of the covenant apparently ran with the watercourse. The notes to Spencer’s Case (1 Sm. L. C. (13th ed., 1929), vol. 1, at p. 51) take a different view of it, by concentrating on another aspect of the case. This was that, as stated in the report, the defendant had built upon the land and much heightened the ground that lay over the watercourse and made it much more inconvenient and chargeable to repair, and it was alleged (and in part proved) that the building had much obstructed the watercourse. The report states the opinion of the Court to have been that this was a covenant that ran with the land . . . and, though the plaintiff had cleansed the same at his own charge whilst it was easy to be done, and of little charge; yet, since the right was plain upon the deed, and the cleansing made chargeable by the building, it was reasonable the defendants should do it. The word,”chargeable,” seems clearly to have been used in the sense of expensive.
The notes in Smith’s Leading Cases (13th ed., 1929) vol. 1, rather seek to distinguish this ease either on the ground that it might be urged, as in Brewster v. Kitchin (1) that the covenant was, in fact, part of the grant a view which is even more difficult to follow or understand in the case in question or that, even if there had been no covenant, the defendant was guilty of a wrongful act when he obstructed and injured the plaintiff’s watercourse. This latter suggestion seems rather a strained interpretation in view of the statement of the Court that the right was plain upon the deed, that the obstruction was stated to have been only “in part” proved, that the reference to the cleansing being made chargeable by the building (and, therefore, its expense of more moment) was clearly an answer to the argument that the plaintiff and his predecessors in title had previously done it, and that the relief granted was not that appropriate to the obstruction of an easement. The editors of Smith’s Leading Cases (13th ed., 1929, vol. 1, go on at p. 81) to observe that “as both parties were assignees . . . it would, in order to support such an action of covenant, be necessary to hold, not merely that the burden of the covenant ran with the land, but that the benefit of it ran with the watercourse.” That seems to be exactly what the case did decide. As the covenant to cleanse the watercourse was positive in its nature, it is hardly now good law that the burden of it should run with the land, but this does not necessarily impair the authority of the case for the proposition that the benefit could run with the watercourse. This view seems to me more acceptable than the opinion of the editors already quoted and shown to be unsupported by the cases cited in connection with it that it would probably be found somewhat difficult to contend that a covenant could run with such an easement as a water-course. It also has regard to the sensible injunction of the Court in Bally v. Wells (1) to strip the mind of the idea of matter and to reflect that, as to the matter under consideration, there seems to be no difference between a corporeal hereditament and an incorporeal one.
It may be useful to cite here a contrary opinion to that in Smith’s Leading Cases (13th ed., 1929, vol. 1, at p. 81), from another standard authority, viz., Sugden, op. cit. In Milnes v. Branch (2), Lord Ellenborough had commented on the dictum already quoted from Lord Holt to the effect that the assignee of the rent might have covenant against the grantor, because it was a covenant annexed to the thing granted. Lord Ellenborough had said that he was inclined to think that the language of Lord Holt was extrajudicial. The comment of Sugden (14th ed., at p. 591, note II) is as follows: “There appears to be no foundation for shaking Holt’s opinion. The rent-charge is an incorporeal hereditament, and issues out of the land, and the land is bound by it; the covenant, therefore, may well run with the rent in the hands of an assignee; the nature of the subject, which savours of the realty, altogether distinguishes the case from a matter merely personal.” A little later in the same note, having referred to Bally v. Wells (1), he went on to say:”And although in this case, the question was as to an assignee of tithes being bound by a covenant entered into by the grantee thereof, yet the principle is the same as though the question were, whether the assignee could take advantage of a covenant entered into with the grantee: in each case the point turns upon the subject of the grant being such as a covenant may run with.”
“A different explanation of Holmes v. Buckley (1) was given by Cotton L.J. in a case which needs to be carefully considered, viz., Austerberry v. Corporation of Oldham (2). He there said (at p. 777): “. . . it is suggested that that decision really must not be looked upon as an authority that the benefit of the covenant would run with such an easement; but I should think myself that the watercourse must have been used to convey water to adjoining land of the plaintiff, and probably it was in respect of that land that the covenant was said to run with the land.” It will be seen that this explanation ignores the separate legal existence of the incorporeal right. Lindley L.J. dismisses the case (at p. 782) as one in which the plaintiff was entitled to an injunction of some sort to restrain the defendants from interrupting his watercourse and as being too loosely reported.”
This case of Austerberry v. Corporation of Oldham (2) is relied on by the defendants; but I cannot read it as an authority that the benefit of a covenant may not run with an incorporeal hereditament. The plaintiff was the successor in title of a landowner who had conveyed a piece of land as part of the site of an intended road and the defendants were the assignees of the original trustees who had made the road and covenanted with the landowner (as well as with other landowners) to keep it in repair and allow the use of it by the public subject to tolls. In these circumstances, it was held that the plaintiff could not enforce the covenant against the defendants, even though the latter had taken with notice of the covenant. The ground of the decision as to the effect of notice was that Tulk v. Moxhay (3) was not to be extended beyond restrictive covenants. The question of notice, of course, does not arise where the covenant does in fact run with the land. This limitation of the scope of Tulk v. Moxhay (3) combined with the view in line with the authorities that the burden of a covenant does not run with the land at law, except as between landlord and tenant, disposed of the plaintiff’s claim in Austerberry v.Corporation of Oldham (2). Not much was said on the question of the benefit running, and, on this aspect, the view was taken, which was sufficient to dispose of it, that the covenant did not touch and concern any land of the plaintiff. Thus, Cotton L.J. said (at p. 776): “In order that the benefit may run with the land, the covenant must be one which relates to or touches and concerns the land of the covenantee.
Here, undoubtedly, what was to be done was not to be done on the land of the covenantee at all, but simply on the land of the purchasers from him these trustees; and when we look at the particular form of covenant entered into with him it is clear that it was not pointedly with reference to his land that this covenant was entered into it was a covenant that this strip of land should be kept as a road for the use of the public. . . . Looking at the terms of the covenant, it is rather a covenant for the benefit of such of the public as might be willing to use this road, not a covenant having a direct reference to the land, or the enjoyment or the benefit of the land, of the covenantee, the predecessor in title of the plaintiff.” Lord Lindley L.J. (at p. 781) is somewhat to the same effect:”. . . there is no covenant whatever to do anything on the plaintiff’s land, and there is nothing pointing to the plaintiff’s land in particular. . . . 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.” Fry L.J. was rather more favourable to the plaintiff on this branch of the case. He said (at p. 784): “Upon that point my opinion is perhaps not quite as confident as that of my learned brothers. I am rather more inclined to think that the road connecting the land with the public highway was so far an incident to the use and occupation of the remainder of Mr. Elliott’s land that it might be conceivable that it came within the principles of covenants relating to things incident to the land; but, at the same time, I do not desire to express any difference of opinion upon that.”
The foregoing review does not purport to be exhaustive, but it is hoped that it has been sufficiently intense to show that, on the one hand, there is no clear authority against the proposition that the benefit of a covenant may run with an incorporeal hereditament in the same manner as it can run with a corporeal one; while, on the other hand, there is some authority which, rightly regarded, appears to support it. Again, on principle, I find it difficult to understand why the proposition should not be a sound one. From the point of view of legal character and incidents, the only substantial difference to-day between a corporeal hereditament and an incorporeal one seems to be that the latter lies only in grant and not also in livery, but livery has become somewhat outmoded. To take the view that there is a difference in the effectiveness of a covenant according to the character of the hereditament to which it relates would seem to me a retrograde step. It is necessary, of course, that the other conditions should be fulfilled, but I think they are here. Thus, the plaintiff is in of the same estate as the original grantee, she possesses an interest in the subject-matter of the covenant independent of the covenant, and the covenant touches and concerns that interest. It is true that the repair has to be carried out, in the physical sense, on the corporeal hereditament, but it is still a repair for the purposes of, and to make more effective, the right of way. It may also touch and concern the lands of Kyber Pass in the sense hinted at by Lord Justice Fry in the passage just quoted. Accordingly, I am of opinion that the covenant to repair is enforceable against the defendants at the instance of the plaintiff.
The same result might possibly have been arrived at in another way. All the conveyances subsequent to the Landed Estates Court conveyance were executed since the passing of the Conveyancing Act, 1881, and by s. 6 of that Act, would be effectual to pass all rights and advantages whatsoever appertaining to the land or any part thereof; and an easement is “land” within that Act. Accordingly, if the benefit of the covenant passed by the Landed Estates Court conveyance, the subsequent conveyances would have transferred it to each successive purchaser. If the Landed Estates Court conveyance had not that effect and the point is doubtful this gap in the chain might be supplied by the application of the principle of estoppel to the order of the Court of Common Pleas of the 13th June, 1873. That order recorded the consent and agreement of James Milo Burke and the Dublin, Wicklow and Wexford Railway Company that the latter were bound under the deeds of the 20th March, 1856, and the 10th August, 1869, to keep the strand cleared. It was, however, made on consent, and its effect as an estoppel is therefore a little doubtful, and it related only to the strand. Accordingly, I prefer to rest my decision on the other ground.
The next question to be determined is the form of relief to which the plaintiff is entitled in respect of non-repair. She claims an order in the nature of a mandatory injunction directing the defendants to carry out the necessary repairs, while the defendants contend that, if she is entitled to any relief, it should only be damages, and that, in the special circumstances of the case, the amount of the damages must be very limited. These circumstances are, mainly, the absence of any evidence of user or intended user of the right of way and the unlikelihood of any appreciable user. This unlikelihood arises from the present condition of the strand.
Whatever may have been its condition one hundred years ago and it may be recalled that a recital in the grant of 1856 referred to an ancient passage giving access to the sea and strand for the purposes of bathing boating fishing and otherwise the evidence suggests that the strand is now the least attractive or convenient of spots for any such purposes. It is now entirely covered, probably to a depth of two feet, by natural boulders or rocks, and all trace of sand or surface shingle seems to have disappeared. This condition, which seems to have subsisted now for some years, must be due to the action of the tides if the strand was originally sandy or shingly, and, while it is not inconceivable that the sea might some day restore it to something like the original condition, any such restoration would be necessarily impermanent and possibly short-lived. In its present condition, mere progression over the strand must be a matter of difficulty and some danger, bathing would require extreme enthusiasm and disregard of comfort, and boating similar qualities, apart from the risk of damage to the boat and the absence of any reasonable means of beaching or launching one. On the other hand, as the defendants point out, there are reasonable and more attractive facilities for any of these purposes within easy reach of Kyber Pass. For these reasons, they say, the cost of repair would be out of all proportion to the real value of the right of way to the plaintiff and the damages should be limited to whatever comparatively small addition the possession of the right would make to the market value of Kyber Pass.
The difficulty I see about accepting this view is that the effect of it would be really to compel the plaintiff to sell or surrender the right of way for a money payment, since, as I follow the evidence, it is nearly unusable at the moment and will, if not repaired, become completely so in the course of time. While, in practice, it is reasonable to suppose that the plaintiff will have little occasion or desire to use the right of way to any great extent, I cannot proceed on the basis that this is necessarily so. If, as I have found, she is entitled to the right of way, and if as I must presume from the fact of the action having been brought she requires the user of it restored or made good, I think I must attribute to her a genuine desire to have the user of it, however difficult it may be to conceive the utility or object of such user. Consequently, I think the net question is whether the defendants should be ordered to do the repairs or the plaintiff should be awarded damages equivalent to the cost of them.
Prima facie, the case belongs to a category in which the Court will not ordinarily decree specific performance, viz.,
a contract to build or do similar works. One reason is the difficulty of exercising supervision; another is that usually in such cases damages are an adequate remedy. Counsel for the plaintiff cited two cases, having some analogy to the present, in which agreements to execute works or to render acts of personal service were enforced specifically. In each case, the defendants were a railway company. The first case was Todd & Co. v. Midland Great Western Railway Company (1), where the defendants had removed a siding which they had previously provided for the plaintiffs under an agreement, but which the plaintiffs had not used. It was held that the plaintiffs were entitled to a decree to replace the siding and keep it in working order, the Court considering damages an insufficient remedy. On the question of damages, the Master of the Rolls relied on the difficulty of estimating the value to a trading concern of having their own siding, and the question was as between specific performance and damages, not as to who should build the siding. It was obviously peculiarly appropriate and convenient that, if the siding were to be built, the railway company should do it.
The other case was that of Fortescue v. Lostwithiel and Fowey Railway Company (2), already cited in another connection. There, covenants to make and maintain certain accommodation works and also to perform certain acts in the nature of personal service were enforced by an order for specific performance. Again, the execution of accommodation works is peculiarly within the competence and province of a railway company; and the personal services were only enforced as part of a larger contract that could be specifically enforced and as being very special.
The latter case is, however, important for the reason that Kekewich J. (at p. 638) based his decision on a passage in Fry on Specific Performance, on which the plaintiff here relies. The passage (which appears unaltered in the 6th ed., at p. 48) was as follows: “Whether the Court will, or will not, interfere to enforce all such contracts” that is, contracts for building and other works of that kind “when definite, it appears to be settled that it will assume jurisdiction where we have the following three circumstances: first, that the work to be done is defined; secondly, that the plaintiff has a material interest in its execution, which cannot adequately be compensated by damages; and thirdly, that the defendants have by the contract obtained from the plaintiff possession of the land on which the work is to be done.”
There is no difficulty, in the present case, as to the first of these circumstances, in view of the existence of a very precise and detailed specification for the original works. As regards the second, the plaintiff has a material interest in the execution of the works, but can it be said that it cannot adequately be compensated by damages? If the measure of damages is the cost of the repairs, I am satisfied by the evidence that the only satisfactory manner of estimating the cost would be on a time and material basis which means that the damages cannot be assessed in advance or independently of the work being executed. On this view, the question would simply be as to who should do the work; but, if the plaintiff is only entitled to damages, she cannot be compelled or required to do any repairs and must be left free to retain the damages if she chooses. Further, if she did no repairs or incomplete repairs, difficult questions might arise in the future as to the scope and effect of the covenant now in question. If the measure of damages were the value of the lost amenity or advantage, I should find it even more difficult to put a figure on it.
The third circumstance is not, in terms, fulfilled any more than the second, but, again, there is a considerable analogy. Kekewich J. (at p. 639) thought the third circumstance sufficiently fulfilled by the fact that the land had been acquired by the company by conveyance from the predecessors in title of the plaintiff. In the present case it is not clear that the land over which the right of way extends was formerly the property of Martin Burke or acquired from him by the Railway Company. On the other hand, the Company did acquire land from him on the Kyber Pass side of the public road and the “ancient passage” to the sea which he possessed and which was interfered with by the railway works must have included or extended over land on the sea side of that road. An element and, perhaps, the material one in this connection is the possession by the defendants of the lands on which the work is to be done. While I have no doubt that the plaintiff would be afforded every facility in carrying out repairs, the balance of convenience is obviously in favour of the persons in possession being required to execute the works. Another material consideration is that the defendants, by their nature, have equipment and facilities not readily available to the plaintiff or anyone employed by her for the work, and this should result in considerable economy.
There is no definite rule of equity that a covenant of the nature in question here will not be enforced specifically. The question is still one of judicial discretion, having regard to all the circumstances of the particular case; and the general tendency of modern decisions is rather towards granting the relief sought if possible. The difficulty as to supervision and enforcement, of course, remains. As to the latter, Kekewich J., dealing with the question of personal services, said (at p. 640) in Fortescue v. Lostwithiel and Fowey Railway Company (1): “I agree, I do not see how that can possibly be enforced, if the railway company are recalcitrant, otherwise than by a sequestration.” In the present case, the plaintiff might have less drastic remedies available to her. This matter, and that of supervision, are, however, probably, academic, as I cannot conceive that a responsible corporation like the defendants would fail to carry out what has been decided to be their legal duty, or that, in doing so, they would not act conscientiously and efficiently to the best of their ability. In Scotland, unlike England, the Court sometimes appoints some properly qualified person to supervise the work, and the Courts here might be free to adopt a similar practice if necessary; but, in the present case, I see no necessity for such a course in the first instance. Any difficulty or dispute that may arise as to carrying out the work will be sufficiently provided for by reserving liberty to apply to both parties.
Holding the view, therefore, that this covenant should be ordered to be specifically performed, the question remains as to the manner and extent of the performance that should be required. I think the plaintiff is entitled to have the right of way restored, so far as possible, to the condition provided for by the original specification; but this is subject to one general and two particular qualifications.
The general qualification is that it would be unreasonable to expect or require more than a substantial compliance with the specification, that is to say; minor differences, including the use of different or more modern materials or methods to those obtaining one hundred years ago, should not be regarded as non-compliance. This, of course, would be all the more so if the differences had been agreed between the parties or their engineers.
The first particular qualification arises from the fact that an alteration was made in the right of way as originally specified. It does not appear when or by whom the alteration was made, but it must be presumed to have been made since the original construction. It consists of a flight of steps of a steeper gradient than anything provided for in the specification between the points “N” and “O” on the plan, in which portion the specification did not provide for any steps. The steps do not extend completely from”N” to “O” and the rest of this portion was made level. Originally, there was, or should have been, a uniform slope from “N” to “O.” It must be presumed, in favour of the defendants, that this alteration was made by a predecessor in title of the plaintiff, and, therefore, the defendants should not be required to restore the original condition of this portion of the right of way or to do any work in relation thereto.
The second particular qualification relates to the strand. The position as to the strand is obscure. While it may not be accessible to the public, generally, it appears that there are other private ways to it, and, prima facie, the foreshore would be vested in the State. With the exception of three steps to be built to the strand, and another provision to be noted in a moment, the specification was silent as to the strand and the works specified ended with a platform at high water mark. It is true that the grant of 1856 purports to confer a right of way over the strand but the then Company are only stated to be in possession of the land over which the rest of the right of way lies. There was some evidence of works (not related to the right of way) by the defendants or their predecessors below high water level but, as evidence of ownership of the foreshore, I do not find it sufficiently unequivocal. The grant is, of course, sufficient as against the defendants for the purposes of a declaration of a right of way over the strand, but this does not conclude the question of repair so far as the idea of repair could be applied at all to the strand. The covenant to repair renew amend and maintain extends to the strand, but I would find it very difficult to give a meaning to this were it not for an indication in the specification and other documents of a special and limited meaning. The grant of 1856 uses the word, “cleared,”in a context and manner that may have particular reference to the strand, and the only work prescribed by the specification in relation to the strand, apart from the three steps descending to the strand, was that, at this point, “the strand is to be cleared from all large or rough rubble granite for a breadth of 20 feet.” Further light is thrown on this matter by portion of the Rulings of the Master, dated the 26th February, 1855, in the course of making the enquiries directed by the decretal order of the 21st November, 1853. The portion in question reads: “That the strand should be cleared of the large stones to such an extent as will allow a passage of twenty feet wide into the sea so as to leave the strand as it was for that twenty feet wide either by casting the stones at either side of this passage or by removing them.
Bathers can thus descend or boats be pushed up on the strand as before the obstruction was created and I think that twenty feet wide is an abundant space for such purpose.”
This strongly suggests that the stones referred to in the grant were something in the nature of debris that had come to be on the strand by reason of works executed by the railway company. This is supported to some extent by the next document which is a mandatory injunction, dated 26th August, 1856, issued by the then Lord Chancellor in the equity proceedings. It commanded and enjoined the railway company, under the penalty of £1,000 sterling, forthwith “to renew clear and repair the strand for the space of twenty feet in breadth from the point ‘P’ at the foot of the passage from Kyber Pass House in the map or working plan referred to in the said Master’s Report filed the 22nd day of May, 1856, mentioned, unto the sea at low water mark situate at Dalkey in the County of Dublin by clearing the said strand from all rough rubble granite.”
It will be noted that the obligation, whether under the specification or under the injunction, extended only to stones of a limited quality and character. The injunction cannot have been very effective, because the matter seems to have been still in dispute in 1860. This is suggested by an affidavit, sworn on the 25th October of that year, in the equity suit, by one, James Pugh. This affidavit relates how, on the direction of the railway company, James Pugh and his workman had, between the 11th and 19th October, cleared the strand to low water as far as the tide admitted for twenty feet in width at the point “P,” but that, on the Monday following the 19th, the stones had been thrown in again by the tide. The deponent then expressed his opinion that during the winter months it would be impossible to keep the works in the order shown on the plan, because the tide often dashed with great fury as high as the point “O,”throwing the stones about in all directions and covering the strand.
Whatever the purpose or effect of that affidavit was, the question had evidently not been finally solved in 1873. On the 13th June of that year there was a consent decree in the Court of Common Pleas in an action which had been taken by James Milo Burke against the Dublin Wicklow and Wexford Railway Company. The material portion provided that it was consented and agreed “that the defendants should under the deeds of 20th March, 1856, and 10th August, 1869, respectively, be bound to keep the strand referred to cleared pursuant to the provisions of the said deed for an average width of 20 feet and for a length of 39 feet measured seaward from the point ‘P’ . . . and that the aforesaid space to be cleared shall be deemed and taken to be the space so to be cleared and for ever kept cleared and maintained according to the true construction of the said deeds respectively.”
If this consent meant more than that the then defendants were to do more than clear and keep cleared the strand of the “large or rough rubble granite” or the “obstruction”that may be presumed to have been placed there by them or their predecessors, it was an extension of what I conceive to have been the scope, in this respect, of the covenant in the grant of 1856. In the absence of evidence as to what were the pleadings or issues in the action in which the consent was entered into, I am very doubtful how far I could hold the present defendants to be estopped or bound by the terms of the consent. Even more in their favour is the practical consideration, suggested by the affidavit of James Pugh, referred to above, and by evidence given before me, that the clearance of the strand would be a futile undertaking. To carry out now what was contemplated by the consent of 1873 and this is the most that the plaintiff could ask would mean that, out of a rock-covered piece of foreshore, perhaps three hundred yards wide, a passage or channel of twenty feet width should be cleared or created. I feel it is more than likely that the first storm, or, possibly, even the first high tide, would substantially undo any such work, and I think any order in respect of the strand would place an unreasonable and unpredictable burden on the defendants.
It is true that there are probably some stones and fragments of masonry, from the original works of the right of way, now on the strand. Apart, however, from the difficulty of precise identification and particularisation, I am satisfied by the evidence that their removal would not alleviate very materially the present inhospitable nature of the surface of the strand. While the defendants may well see fit to remove them, I do not think they should be ordered to do so. Consequently, in my view, any order on foot of the covenant should exclude the strand.
The result is that the plaintiff is entitled to the following relief:
1, A declaration that she is entitled from time to time and at all times and for all purposes to have and use the right and facility of passage and to go return pass and repass along over and upon the passage way and strand as set out in the deed of grant dated the 20th March, 1856, and made between the Dublin and Wicklow Railway Company, of the one part, and Martin Burke, of the other part, and as more particularly described in the map plan and specification thereto annexed.
2, A declaration that the defendants are at all times at their own costs and expenses bound to repair renew amend and maintain and keep repaired renewed amended and maintained in a proper sufficient substantial and workmanlike manner the said passage way other than the portion thereof between the points marked “N” and “O” on the said plan.
3, An order directing the defendants to repair renew and amend the said passage way in accordance, so far as may be, with the said specification, but not including any work on or to the said strand or on or to the said portion between the points “N” and “O.” To enable the defendants to choose their own time, having regard to weather and other conditions, I think they should be given six months from the perfecting of the order herein to comply with this direction.
There will be liberty to either party to apply and the plaintiff will be entitled to her costs against the defendants.