Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 36 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 36 of 73)
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but it is ** such toll as may from time to time be demanded
from him, her, or them, pursuant to the table of tolls for the
time being authorized by the said company, to be demanded
and taken as aforesaid." So that this company, formed for
the profit of the individual shareholders — because the deed
of settlement shows that they contemplated realizing a profit



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AUSTERBERRY V. CORPORATION OF OLDHAM. 339

and making a dividend — are from time to time to charge such
tolls as they may think fit, not merely for the purpose of keep-
ing up the road, but for the purpose of keeping the road open,
as a source of profit to them, as well as a matter of conve-
nience to those members of the public who may be willing to
pay such tolls as they may from time to time fix. They might
increase the tolls from time to time, and there is no limit,
except their own interest, placed on the tolls; and though it
is true that, as. far as it was a footpath, there never has been
any toll, yet under the deed of settlement they were at liberty,
if they thought fit, to charge a toll on that footpath as well as
any other part of the road. However, down to the time
when the corporation got this road, they did not charge any-
thing on the footpath ; but there was nothing, as I say, to
prevent them from so doing. In my opinion there was no
such dedication to the public as to make this a public high-
way, and consequently it does not come within the exception
of section 150 of "a highway repairable by the inhabitants at
large."

Then comes this other point. Assuming that this corpora-
tion had the power to act under sec. 150, it was covknaot to
said that when the land, forming the portion of
the road about which this question arises, was
originally purchased from Mr. Elliot — he being one of those
over whose land the new road went — there was a covenant
by the trustees who bought on behalf of the joint stock com-
pany to preserve and maintain it as a road. The covenant
was by those trustees with John Elliott, his heirs and assigns,
that they should, within the space of three years, at their
own cost, make and form and fence off in a good and work-
manlike manner the road ; and then it goes on to prescribe
the mode of making the road, and " that the said line shall
from and immediately after the expiration of the said term of
three years (subject, nevertheless, to such toll for horses,
cattle, beasts, carts, and carriages passing thereon as may by
the said Joshua Milne, John Milne, and Samuel Lees — who
are the trustees — their heirs and assigns, from time to time be
fixed and determined upon) be used by the public, and shall
and will forever hereafter be kept open and used as and for
a road for the use of the public (subject as aforesaid), and
also that they, the said Joshua Milne, John Milne, and Samuel



MAINTAIN ROAD.
WHETHER BIND-
INO UPON ASSIGNS



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340 AUSTERBERRY V. CORPORATION OF OLDHAM.

Lees, their heirs and assigns, shall and will from time to time,
and at all times hereafter, keep and maintain the said road
and every part thereof in good repair, order, and condition/*
It is said that this covenant having been entered into by the
trustees, the corporation, as purchasers from them, are now
subject to that covenant. The corporation bought this road
under an Act of Parliament which was passed in the year
1880. I do not think it necessary, in the view I take of this
case, to go in detail into that Act of Parliamont, but sec. 63
gives the power of purchase. There had been a previous
act which had given them the right to enter into a contract
with the trustees for the purchase of this road ; they had not
done that, and then sec. 63, with respect to this road, which
is called Shaw Boad, gave them this power, that on their
paying to the trustees out of the borough funds, or the mon-
eys borrowed, the consideration money which they were to
pay, and, on a copy of the act being produced to' the Com-
missioners of Inland Revenue (duly stamped), " then, and in
that case, but not sooner or otherwise, all the rights, interests,
property, and things comprised in sec. 27 of the act of 1865**
(that was the previous act), "as subsisting at the time of the
vesting thereof under this section, and the soil of Shaw Road
shall by virtue of this section vest absolutely in the corpora-
tion and their successors for all the estate and interest there-
in" of the trustees.

It seems by the immediately preceding section that this
act contemplated that probably the corporation might have
power to exercise the rights g^ven by sec. 1 50, but in the
view which I take of this case I shall not enter minutely into
that question, or as to the general effect of this Act of Parlia-
ment with regard to the question in dispute. But it is said,
on behalf of the appellant, here is this covenant by the trus-
tees ; the corporation are their successors under that Act of
Parliament, taking all the estate and interest of the trustees
in Shaw Road, and, that being so, they must be bound by the
covenant : it is a covenant the burden and benefit of which
run at law, or at least in equity, they having taken with notice,
which undoubtedly they did ; and, if not enforceable at law,
it is a covenant which can be enforced in equity, and the con-
sequence must be that they cannot claim under the Public
Health Act, 1875, the expense of repairing this road, or, at



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AUSTERBERRY V. CORPORATION OF OLDHAM. 34 1

any rate, they cannot claim from the plaintiff the full amount,
but only such proportion as would meet the amount that
would have been required to put the road in the state of re-
pair required by the covenant with Mr. Elliott, through whom
the plaintiff claims. Now, as to enforcing this covenant in
equity, I will deal with that point first. In my opinion, if
this is not a covenant runninor at law, there can be

.... r • • • • • NATUBB0F8UCH

no relief m respect of it in equity ; it is not a re- ^^^Sf^' ^^'
strictive covenant ; it is not a covenant restraining
the corporation or the trustees from using the land in any
particular way, at least so far as this case is concerned. If
either the trustees or the corporation were intending to divert
this land from the purpose for which it was conveyed, that
is, from its being used as a road or street, that would be a
very different question; then one would have to consider
this — how far, having regard to the act of 1880, the equitable
right would travel ; because, undoubtedly, where there is a
restrictive covenant, the burden and benefit of which do not
run at law, Courts of Equity restrain any one who takes the
property with notice of that covenant from using it in a way
inconsistent with the covenant. But here the covenant which
is attempted to be insisted upon on this appeal is a covenant
to lay out money in doing certain work upon this land ; and,
that being so, in my opinion — and the Court of Appeal has
already expressed a similar opinion in a case which was be-
fore it — that is not a covenant which a Court of Equity will
enforce ; it will not enforce a covenant not running at law
when it is sought to enforce that covenant in such a way as
to require the successors in title of the covenantor, to spend
money, and in that way to undertake a burden upon them-
selves. The covenantor must not use the property for a pur-
pose inconsistent with the use for which it was originally
granted; but in my opinion a Court of Equity does not
and ought not to enforce a covenant binding only in equity
in such a way as to require the successors of the covenantor
himself, they having entered into no covenant, to expend
sums of money in accordance with what the original cove-
nantor bound himself to do. The case principally relied
upon by the appellant was one before Vice-Chancellor Malins.
That was the case of Cooke v. Chilcott, 3 Ch. D. 694. Now
undoubtedly the vice-chancellor did decide that case on the



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342 AUSTERBERRY V. CORPORATION OF OLDHAM.

equitable doctrine, and said that he would enforce the cove-
nant ; but that is an authorAy which in my opinion was not
right on that point. In the subsequent case of Haywood v,
Brunswick Permanent Benefit Building Society, 8 Q. B. D.
403 — both Lord Justice Lindley and myself were members
of the court which decided that case — we expressed our opin-
ion against Cooke v. Chilcott being a correct development of
the doctrine established by Tulk v. Moxhay, 2 Ph. 774, or for
which Tulk v. Moxhay was an authority.

Then there was another case, before the late Lord Romilly,
of Moreland v. Cook, Law Rep. 6 Eq. 252, which was relied
upon ; but that was really a case not turning upon that doc-
trine, because it was this : There was a deed of partition of
land all of which was below the sea level and was protected
by a river or sea wall, and a covenant was entered into by
the different parties to pay their proportion of the expense of
repairing the sea wall, whoever should do it; and that cove-
nant was enforced for and against the successors of those who
were parties to the deed. But in that case it appeared that
there was, according to the view of the Master of the Rolls,
a common law liability, independently of that covenant, to
repair the sea wall, so that it would be very diflFerent from
the case of creating a new liability : the covenant there was
framed in such a way as to create a grant by the different
persons who took, on partition, portions of the property, of a
rent-charge out of their lands in order to provide for the ex
pense. The covenant was in this form. The parties cove-
nanted for themselves, etc., "severally and respectively, in
manner following, that is to say, that the charges, damages,
and expenses of or attending the keeping and maintaining the
walls and gutts of or belonging to the said lands, fresh marsh
lands, hereditaments and premises hereby granted and re-
leased, or intended so to be, in good order and repair, shall be
borne and paid by them (naming them), their respective heirs
and assigns, out of the said lands and hereditaments hereby
divided in proportion, and by an acre-scot to be from time to
time for that purpose made thereon and payable thereout in
the same proportions in ready money." So, although in terms
it was a covenant, it was a covenant by these parties that the
expense should be paid out of their proportions of the land
by an acre-scot payable thereout in the same proportions in



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AUSTERBERRY V. CORPORATION OF OLDHAM. 343

ready money. That is, therefore, really a grant by each of
the parties of a rent-charge of so much money as would be
equivalent to his proportion of the total expense of repairing
the sea wall.

Those, I think, were the principal cases which were relied
upon. As to the case of Holmes v. Buckley, i Eq. C. Ab.
27, although that was a case which came from equity, yet I
apprehend it was not decided on the ground taken in Tulk v.
Moxhay, 2 Ph. 774 ; therefore I do not think it necessary on
this part of the case to refer to that decision. In my opinion,
therefore, if the plaintiff here cannot say he is entitled at law
to sue on the covenant, he cannot have any relief on the
equitable doctrine of Tulk v. Moxhay.

Then, is there here a covenant enforceable at law? For
this there are two things to be considered — the ^^tokb buch
burden of the covenant, and the benefit of the SS^SlEB^Yi
covenant; and unless the plaintiff can show, he ^^'
being an assign of the origin^ covenantee, that he is entitled
to the benefit of the covenant, and unless he can also show
that the corporation, being assigns of the original covenan-
tor, are subject to the burden- of the covenant, he cannot
establish in this court any covenant which can be enforced
at law. If the plaintiff fails in either of these two points, he
fails on this part of the case. As I think my learned brethren
will consider more particularly the question whether this
burden runs with the land, I do not propose to enter into
this part of the case. If I had to do so, I ought to give my
opinion upon the debated point whether the burden of a
covenant can properly run with the land ; and for that pur-
pose I should like, before giving any opinion on the subject,
to consider the authorities which are supposed to lay down
the proposition that it can ; but I in no way say that the
burden of a covenant can be so annexed to the land as to
run properly with the land. But does the benefit of the cov-
enant in the present case run with the land ? 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 cov-
enantee. 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



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344 AUSTERBERRY V, CORPORATION OF OLDHAM.

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. Of course that was insufficient to dedicate it as
a public highway so as to make it repairable by the parish,
for it was only a matter of covenant as between him and the
purchasers from him. 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. There was undoubtedly a reservation to the cov-
enantee which was for the benefit of his land and the occu-
piers of it in relation to his right to cross this road in respect
of and for agricultural purposes without paying tolls ; but it
is conceded that this right or easement, or whatever it was,
is gone, and here we are dealing with a covenant in which
the public is constantly referred to, not the owners and
assigns of the land. The words are, " shall and will forever
hereafter" (that is, the road) " be kept open and used as and
for a road for the use of the 'public." That shows this, that
although the covenantee thought it would benefit himself
and the other owners of the adjoining lands to have a road
which they as members of the public might use, this coven-
ant is not a covenant which was made and entered into in
such a way as that it relates to or touches and concerns the
land reserved by the covenantee. In my opinion, therefore,
the plaintiff fails to make out that the benefit of this coven-
ant can be said so to run with the land as to enable him, as
the assign of the covenantee, to maintain this action. This
being so, I think I need scarcely go through many of the
cases; but some of them, perhaps, one ought to mention.
Holmes v, Buckley, i Eq. C. Ab. 27, is one. . It is doubtful
whether that case was decided on the ground that the cov-
enant ran with the land, because there the land of the plain-
tiff was nothing but the easement of a watercourse ; and 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 adjoin-
ing land of the plaintiflF, and probably it was in respect of



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AUSTERBERRY V, CORPORATION OF OLDHAM. 345

that land that the covenant was said to run with the land.
However, I will not enter further into that case, because one
of my learned brethren will do so more fully ; but even if
that is an authority as to the burden or the benefit of a cov-
enant running with or against the land, one can see it has no
application to the point on which I decide this case, because
there the watercourse must undoubtedly have been for the
benefit of the adjoining land of the grantee.
• Then as to the other case of Morland v. Cook, Law Rep.
6 Eq. 252, I have explained what the case really is, and al-
though Lord Romilly did decide that the covenant Avould
run with the land, I do not think, having regard to the ex-
planation which I have given, one need consider that an
authority which ought to trouble one either as regards the
benefit to or burden of the covenant ; but, as regards benefit,
a covenant for the keeping up of a sea wall which would
prevent the land in question owned by the plaintiff from
being flooded was undoubtedly a covenant with reference to
the benefit to be enjoyed by the land by the keeping of the
sea out.

Then Western v, Macdermott, Law Rep. i Eq. 499, 2 Ch.
72, was another decision of Lord Romilly, and he did ex-
press his opinion that there the covenant ran with the land ;
but there the covenant was one which was much more point-
edly and directly for the benefit of the land of the plaintiff,
or the predecessor in title of the plaintiff, because it was a
covenant not to build on adjoining land, the evidence being
that it was not for the benefit of mere members of the public
other than the owner of the adjoining land, but to prevent
the adjoining land being made less commodious by the erec-
tion of buildings on the land of the covenantor.

Then there is the case of Cooke v. Chilcott, 3 Ch. D. 694,
which was before Malins, V.C., where he likewise expressed
an opinion that the covenant ran with the land. He did not
base his opinion on the cases I have mentioned, but the case
was one in which there was very little, if any, difficulty as
regards the benefit of the covenant touching and relating to
land of the plaintiff, because it was to erect a pump and
pump water from the land of the defendant's predecessor
in title to the land of the plaintiff's predecessor in title, and
there was reference to the benefit of the land, which showed



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346 AUSTERBERRY V. CORPORATION OF OLDHAM.

that that was the object of the covenant. As to whether it
was right to express any opinion as to the burden running
with the land I say nothing ; but there is no authority which
can in any way interfere, when fairly regarded, with the
opinion which I express, that the covenant in the present
case was neither in terms nor in its obvious sense such as to
be a covenant relating to, or touching and concerning, the
land of the plaintiff's predecessor in title. So, in my opinion,
this point that there is a covenant on which the plaintiff" can
sue the corporation at law is one which cannot be maintained^
and, so far as this case depends on that, in my opinion the
appeal fails. If one had been of opinion that either at equity
or at law the plaintiff could have relied on this covenant as
against the corporation, it would have been necessary to
consider what would have been the effect of the 268th section
of the Public Health Act, 1875, which points .out what is to
be done if a person charged considers that he has been
charged too much ; but as I decide this case on the other
point, that neither in equity nor law can the plaintiff success-
fully rely on this covenant, I think it is not necessary to
enter into the question as to how far that section would pre-
vent him from arguing the contention before us that what
he has been called upon to pay should be reduced by striking
off such proportion of this expense as is attributable to re-
pairs which ought to be done by the trustees under the deed
of covenant.

LiNDLEY, L. J. — The controversy in this case has arisen in
Facts. this way : There is a road called Shaw Road, in Old-

ham, and the defendants, who are the corporation of Oldham
have recently paved, flagged, sewered, and.repaired it. The
plaintiff has soipe land adjoining the road, and the corporation
have sought to charge him with what would be, under ordi-
nary circumstances, his share of so making the road, paving
and draining it. He says that the corporation have no right
to charge him with any of that expense ; and he says, if they
have, they have no right to charge him with the whole of it
Now, the first point, whether they have a right to charge him
with any of it, depends upon the question whether this Shaw
Road is or is not " a highway repairable by the inhabitants at
large** within the meaning of sec. 150 of the Public Health



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AUSTERBERRY V. CORPORATION OF OLDHAM. 347

Act. Mr. Austerberry maintains that it is a highway repair-
able by the inhabitants at larg^e. The Vice Chancellor has
expressed a doubt whether that expression in sec. 150 —
'* highway repairable by the inhabitants at large" — is synon-
ymous with all highways ; whether it does not mean high-
ways repairable by the inhabitants at large primarily, and
whether the turnpike roads, and so on, which are primarily
repairable by the public, though they may be repairable at
common law by the inhabitants at large, are within that ex-
pression. I think there is some doubt about that, but it is
unnecessary to decide the question for the reasons that have
been mentioned at length byi Lord Justice Cotton, and to
which I will very shortly refer.

I think it is very doubtful, but it is unnecessary to decide,
whether it is possible to dedicate to the public a dedicatioh of
highway subject to a toll. I do not say it is not, pSwjctoll.'^
but I am very far from saying that it is. But whatever
doubt there may be upon that point, which if we had to de-
cide it, I should like to investigate further, it appears to me
impossible to hold that a highway is dedicated to the public
subject to a toll which may fluctuate from day to day. This
highway was constituted under a trust deed giving the trustees
power to levy tolls if they liked, and to change them when-
ever they liked ; and it appears to me quite impossible not to
see that that is not a dedication to the public — it is liberty to
such of the public as choose to pay the toll to use the road —
that is all. I cannot come to the conclusion that the road
ever was dedicated to the public. That appears to me to be
the short answer (I need not go further into it) to the first
point; and in my opinion this road is within sec. 150 of the
Public Health Act, and upon the first point the corporation is
right

But then arises another and a totally different point. The
plaintiff says: "You, the corporation, have bought or ac-
quired this road under an act of Parliament which places you
in the position of, and in no better position than, those from
whom you got it ; you acquired it from certain trustees, and
those trustees covenanted with my predecessors in title to
keep this road open for the public, and to repair it: you are
bound by that covenant to repair, and I am in a position to
enforce against you that covenant." First, it seems to have



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348 AUSTERBERRY V. CORPORATION OF OLDHAM.

been thought that that covenant was so worded as to cover
everything which the corporation had done — I mean by
** everything" the metalling, and paving, and sewering ; but
when the covenant is looked at it is seen that it is not exten-
sive enough to cover that; and, therefore, whatever may be
the merits of the case, the corporation must be right as to a
great portion of the charges made against the plaintiflF. But
then there is the covenant which extends (to use a short
word) to repairing, and the plaintiff says that at all events to
the extent to which you, the corporation, have incurred ex-
pense in repairing the road, to that extent you are bound to
exonerate me by virtue of that covenant That gives rise to
one or two questions of law.

The first question which I will consider is whether that
covenant runs with the land, as it is called — whether covkhaiit
the benefit of it runs with the land held by the plain- JST^Sh m
tiff, and whether the burden of it runs with the ^'^^'
land held by the defendants ; because, if the covenant does
run at law, then the plaintiff, so far as I can see, would be
right as to this portion of his claim. Now, as regards the
benefit running with the plaintiff's land, the covenant is, so far
as the road goes, a covenant to repair the road ; what I mean
by that is, there is nothing in the deed which points particu-
larly to that portion of the road which abuts upon or fronts
the plaintiff's land — it is a covenant to repair the whole of the
road, no distinction being made between the portion of that



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 36 of 73)