JUDGMENT
1. There is no controversy between the parties as to the circumstances antecedent to the litigation, which has culminated in the present appeal. Monohar Sen and Kala Chand Sen were the owners of a parcel of land in the suburbs of this city. On the 13th November, 1887, they transferred one cotta out of this parcel to the plaintiffs. The conveyance recited that the land was purchased for building purposes. It further contained mutual covenants to the effect that, when the purchaser would erect a building thereon, it would not be competent for him to keep any windows on the north side on which the vendor had his land ; and that the vendor would not interfere, in any way, with windows, corridors and doors, which might be kept on the eastern side of the building,– on which side also, the vendor had his land,– provided the Windows were kept at a height of five feet from the floor so as not to interfere with the privacy of the houses of the tenants towards the east., The position, in substance, therefore, was that the vendor transferred the south-western corner of his land to the purchaser; the southern boundary of this portion was a lane, and the western boundary was a public road ; to the north and the east, were the lands of the vendor which he retained; and the mutual agreement was that windows would not be allowed on the northern side of the building, but would be permitted on the eastern side, if they were kept at a specified height. Immediately after the purchase, the plaintiff commenced to build on the land, and the evidence indicates that the building was completed during the years 1888 and 1889. There were no windows kept on the northern side, but several doors and windows were opened on the eastern side. On the 3rd May, 1893, the owners transferred to the defendant the eastern parcel, which has ever since continued in the latter’s occupation.
2. On the 22nd May, 1906, the defendant began to erect a wall on the western boundary of his parcel, so as to shut put completely light and air from the building of the plaintiffs. The latter protested; but, as their objection was not heeded, on the 25th May, 1906, they commenced the present action for a perpetual injunction to restrain the defendant from obstructing light and air. The defendant resisted the claim substantially on the ground that he had no notice of the covenant; that he was, as transferee, bound in no way thereby, and was entitled to erect a wall to obstruct light and air from the eastern windows in the building of the plaintiffs, as otherwise the latter would acquire a prescriptive right by user for the statutory period. The Courts below have concurrently found that the defendant was not aware of the covenant in the conveyance of the plaintiffs, at the time when be made his purchase; but they have also held that as the windows were in existence at the time, if the defendant had made any enquiry, he might easily have discovered what right the plaintiffs claimed. The Courts below have, further, held that the covenant amounted to the grant of an easement, and was consequently binding upon the assignee of the original owner. In this view, they have made a decree in favour of the plaintiffs, and as the defendant had, during the pendency of the suit, completed the wall, they have further directed him to take it down. The defendant has appealed to this Court, and on his behalf the decision of the District Judge has been assailed substantially on two grounds, namely, first, that the covenant in question was purely personal, consequently did not bind the assignee of the vendor; and, secondly, that it was not in the nature of a grant of a right of easement, because at the time the covenant was made, there was no building in existence for the benefit of which an easement of air and light might be granted. In support of these contentions, reference has been made to the cases of Allen v. Taylar (1880) 16 Ch. D. 355 : 50 L.J. Ch. 178, Palmer v. Fletcher (1675) I Lev. 122 : 1 Sid. 167 at p. 227 : 83 E.R. 329, Wheeldon v Burrows (1879) 12 Ch. D. 31 at p. 49 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196. Glave v. Harding (1858) 27 L.J. Ex. 287, Blanchard v. Bridges (1835) 4 A. & E. 176 : 53 R.R. 208 : 5 N. & M 567 : 1 H. & W. 630 : 5 L.J.K.B. 78, Robson v. Edwards (1893) 2 Ch. 146 : 62 L.J. Ch. 378 : 3 R. 336 : 68 L.T. 195 : 41 W.R. 569, Allen v. Seckham (1879) 11 Ch. D. 790 : 48 L.J. Ch. 611 : 41 L.T. 260 : 28 W.R. 26, Beddington v. Atlee (1879) 12 Ch. D. 31 at p. 49 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196 and Wille v. St. John (1910) 1 Ch. 84 at p. 525 : 79 L.J. Ch. 239. In answer to these arguments, it has been contended by the learned Vakil for the plaintiffs-respondents, that the covenant was really in the nature of a grant of an easement; that, as the land was transferred with a view to be used as a building site, and as it was contemplated by the parties that windows would be needed for the beneficial use of the house to be erected, as soon as the house was erected, the agreement ripened into a complete grant, and consequently the , defendant, when he acquired title to the property, took it subject to the grant in favour of the plaintiffs. In support of this proposition, reliance has been placed upon the principle deducible from the cases of Collyer v. Isaacs (1881) 19 Ch. D. 342 at p. 351 : 51 L.J. Ch. 14 : 45 L.T. 567 : 30 W.R. 70 and Holroyd v. Marshall (1861) 10 H.L.C. 191 : 33 L.J. Ch. 193 : 9 Jur. (N.S.) 213 : 7 L.T. 172 : 11 W R. 171. After careful consideration of the arguments which have been addressed to us, we are of opinion that the view, taken by the Courts below, is well founded on principle and is amply supported by the authorities.
3. In the first place, as pointed out by Sir George Jessel, M.K. in Allen v. Taylor (1880) 16 Ch. D. 355 : 50 L.J. Ch. 178, where a man grants a house in which there are windows, neither he nor anybody claiming under him, can stop up the windows or destroy the lights. This has been the settled law in England ever since the decision in Palmer v. Fletcher (1675) I Lev. 122 : 1 Sid. 167 at p. 227 : 83 E.R. 329. The rule is based on the perfectly intelligible principle that a man shall not derogate from his own grant, and it makes no difference whether he grants the house simply as a house, or whether he grants the house with the windows or the light thereto belonging; in both cases, he grants with the apparent easement or quasi-easement. Sir George Jessel then states two other propositions as equally well settled. If a man who has a house and land, grants the land first, reserving the house, the purchaser of the land can block up the windows of the house ; again, if the owner of the land and the house sells the house and the land at the same moment, and if he expressly sells the house with the lights, the purchaser of, the land is not entitled to block up the lights, where it is assumed that both purchasers were aware of the simultaneous conveyances. Swansborough v. Coventry (1832) 9 Bing. 305 : 35 R.R. 660 : 2 M. & Scott 362 : 2 L.J.C.P. 11. The learned Vakil forthe appellants has not disputed these propositions, but he has argued that they have no application to the case before us, because at time the transfer in favour of the plaintiffs was made, there was no building on the land, and consequently no grant of an easement of air and light could possibly be made. In our opinion, this contention is fallacious and is based upon an inaccurate apprehension of the true rule on this subject. No doubt, a covenant which imposes a burden, does not ordinarily pass with the land so as to bind a subsequent owner; but the position is otherwise where there is privity of estate and the covenant is connected with or concerns the land or estate conveyed. If these conditions are fulfilled, the covenant will run with the land as readily as one conferring a benefit. It has, further, to be remembered that when it is said that, in this class of cases, there must be a privity of estate between the covenantor and covenantee, it only means that the covenant must impose such a burden on the land of the covenantor, as to be in substance or to carry with it, a grant of an easement or quasi-easement or to be in aid of such a grant. The principle, thus enunciated is deducible from a series of English decisions of the highest authority which will be found collected in the judgment of Mr. Justice Holmes in Norcross v. James (1885) 140 Mass. 138 at p. 191 : 11 N.E. 946, and had been previously scrutinised by him in his classical treatise on the Common Law (pages 393 to 409). The learned Judge, upon a review of the authorities, deduces three propositions as applicable to covenants running with the land:
(1) Where, either by tradition or good sense, the burden of the obligation would be said, elliptically, to fall on the land of the covenantor, the creation of such a burden is, in theory, a grant or transfer of a partial interest in that land to the covenantee; as the right of property, so created, can be asserted against every possessor of the land, it would not be extravagant or absurd to allow it to be asserted by the action of covenant.
(2) Where such a right is granted to the owner of a neighbouring piece of land for the benefit of that land, the right will be attached to the land, and go with it into all hands ; the action of covenant would be allowed to assignees not named, and it would not be absurd to give it to disseizors.
(3) There is one case, [Pakenham’s Case (1367) Y.B. 42 : Edw. III : 3 P1. 14], of a service, the burden of which does not fall upon land even in theory, but the benefit of which might go at common law with land which it benefited; this is the case of singing and the like by a convent; it will be observed that the service, although not falling on land, is to be performed by a corporation permanently situated in the neighbourhood.
4. The first of these three principles is sufficient to sustain the claim of the plaintiffs in the case before us. If a right in the nature of an easement can be attached to land by prescription, it can equally be attached by grant. If it goes with the land in the one case it ought to go with it in the other, because no satisfactory distinction can be based on the mode of acquisition, and no dividing line can be found between the competing principles of transfer,–possession of dominant land on the one side and succession on the other. Consequently, the rule is not limited only to cases in which a right of easement is actually granted; it covers also cases in which the grant is of a quasi-easement, or the covenant is in aid of a grant of an easement or guasi-easement. This view has been indicated with great clearness in the case of Bronson v. Coffin (1871) 108 Mass 175 : 11 Am. R. 335 and Brewer v. Marshal (1868) 19 N.J. Eq. 537 : 97 Am. Dec. 679. In the first of these cases, the owner of a farm conveyed to a Railroad Company a strip of his land by a deed, and covenanted to maintain a division fence between the land granted and the adjoining lands of the grantor. No fence was in existence, at the date of the transfer, and the question was raised whether the covenant was purely personal or whether it was in the nature of a grant of an easement and consequently operative against the transferee. Mr. Justice Gray stated the principle in the following terms:
In order to make a covenant run with the land of the covenantor and bind his heirs and assigns, the covenantee must have such an interest in that land as to amount to a privity of estate between the parties to the covenant. It is not necessary that their relation should be that of landlord and tenant; but an interest in the nature of an easement in the land which the covenant purports to bind, whether already existing or created by the very deed which contains the covenant, constitutes a sufficient privity of estate to make the burden of a covenant to do certain acts upon that land, for the support and protection of that interest, and the beneficial use and enjoyment of the land granted, run with the land charged. An obligation, duly expressed, that the structures upon one parcel of land shall, for ever, be of a certain character for the benefit of an adjoining parcel, is equally a charge upon the first parcel, whether the obligation is affirmative, or merely restrictive, and whether the arffirmative acts, necessary to carry the obligation into effect, are to be done by the owner of the one or the owner of the other.
5. There are other illustrations, to be found in the books, of cases in which a covenant was construed to be in the nature of a grant of an easement or qwasi-easement, to be in aid of such a grant, although at the time when the covenant was made, the easement was not in actual existence. Thus in Savage v. Mason (1649) 3 Cushing 500, upon a partition, the owners agreed that the centre of party walls of every brick or stone building might be placed upon the line dividing the lots from contiguous lots and that the owner of such contiguous lots, whenever he should make use of the same in any building, should pay for one-half of the wall by him so used. It was ruled that, although the buildings were not in existence at the date when the covenant was made the liability to perform and the right to take advantage of the covenant, both passed to the heir or assignee of the land to which the covenant was attached, and that the covenant could, by no means, be construed as merely personal, collateral and detached from the land, because there was a privity of estate between the covenanting parties in the land to which the covenant was annexed; it had direct and immediate reference to the land; it related to the mode of occupying and enjoying the land; it was beneficial to the owner as owner, and to no other person; it was, in truth, inherent in and attached to the land, and necessarily went with the land into the hands of the heir or assignee. Further illustrations of the application of the same principle are to be found in the cases of Hutchinson v. Ulrich (1833) 145 III. 336 : 34 N.E. 556 : 21 L.R.A. 391 and Halle v. New-bold (1833) 69 Maryland 265 : 14 Atlantic 662. We may add that it was pointed out by Mr. Justice Holmes, in Ladd v. Boston (1893) 151 Mass. 585 : 21 Am. St. R. 481, that, in order to attach the easement to the dominant estate it is not necessary that it should be created at the moment when either the dominant or the servient estate is created, if the purport of the deed is to create an easement for the benefit of the dominant estate. The position, therefore, is that a restrictive covenant runs with the land — if created for the benefit of the land conveyed or of that of which the grantor remains the owner, and is intended to be annexed to such land; in other words, when by the construction of grant it appears that it was the intention of the parties to create or reserve a right in the nature of a servitude in the land granted, for the benefit of other land owned by the grantor,no matter in what form the intention may be expressed, such right, if not against public policy, will be held to be appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burden, thus created and imposed, will pass with the land to all subsequent grantees. The converse proposition also holds, because a grantor may impose restrictions for the benefit of the land already sold as of that remaining in his hands which he proposes to sell, Collins v. Castle (1887) 36 Ch. D. 243 : 57 L.J. Ch. 76 : 57 L.T. 764 : 33 W.R. 300, Spicer v. Martin (1888) 14 A. C. 12 : 58 L.J. Ch. 300 : 60 L.T. 546 : 37 W.R. 689 : 53 J.P. 516, Nottingham, Patent Brick and Tile Go. v. Butler (1886) 16 Q. B. D. 778 : 55 L.J.Q.B. 280 : 54 L.T. 444 : 34 W.R. 405, Standen v. Chrismas (1847) 10 Q.B. 135 : 74 R.R. 224 : 16 L.J.Q.B. 265 : 11 Jur. 694, Morland v. Cooke (1888) L.R. 6 Eq. 252; Austerberry v. Oldham (1835) 29 Ch. D. 750 : 53 L.T. 543 : 33 W.R. 807, 49 J. P. 532, Richards v. Harper (1860) L.R. 1 Ex. 169 : 4 N.C. 55 : 35 L.J. Eq. 130 : 12 Jur. (N.S.) 770 : 14 W.R. 643 : 4 H. & C. 55, and Leech v. Schweder (1874) L.R. 9 Ch. App. 463 : 43 L.J. Ch. 487 : 30 L.T. 586 : 22 W.R. 633. The position is stronger when, as here, there are mutual covenants. Renals v. Gowlishow (1879) 9 Ch. D. 129 : 11 Ch. D. 866, Whitney v. Union Railway (1858) 11 Gray. 359 : 71 Am. Dec. 715, Whatman v. Gibson (1838) 9 Sim 196 : 47 R.R. 214 : 59 E.R. 333 : 7 L.J. Ch. 160 : 2 Jur. 373, Child v. Douglas (1854) Kay 560 : 101 R.R. 736 : 69 E.R. 237 : 2 Jur. (N.S.) 950 : 5 G.M. & G. 739 : 2 W.R. 701 and notes to Ladd v. Boston (1893) 151 Mass. 585 : 21 Am. St. R. 481. The conclusion, therefore, is irresistible that the defendant, in the case before us, does not occupy any better position than his vendor, even if it be assumed that he had not notice of the terms of the grant in favour of the plaintiffs.
6. The same conclusion may be supported from another point of view. It has been found concurrently by the Courts below, that, if the wall erected by the defendant, is permitted to be retained, the house of the plaintiffs will become uninhabitable, it is clear, therefore, that, if the grantor had erected this wall, he might have been compelled to pull it down, because as he had granted the land to be used for a particular purpose, he was under an obligation to abstain from doing anything on the adjoining property belonging to him, which would prevent the land granted from being used for the purpose for which the grant was made. Siddons v. Short (1877) 2 C.P.D. 572 : 46 L.J.C.P. 795 : 37 L.T. 230. It is clear, further, that this obligation extends to an assignee of the reversion and adjoining land. Aldin v. Latimer (1894) 2 Ch. 427 : 8 R. 352 : 71 L.T. 119 : 42 W.R. 453 : 63 L.J. Ch. 601, Wilson v. Queen’s Club (1891) 3 Ch. 522 : 60 L.J. Ch. 698 : 65 L.T. 42 : 40 W.R. 172, Hall v. Lund (1863) 1 H. & C. 676 : 32 L.J. Ex. 113 : 9 Jur. (N.S.) 205 : 70 L.T. 692 : 11 W.R. 271, North Eastern Railway Company v. Elliott (1860) 1 J. & H. 145 : 70 E.R. 697, and Caledonian Railway Company v. Sprott (1856) 2 Macqueen 449 : 2 Jur. (N.S.) 623 : 4 W.B. 659. From this point of view also, the plaintiffs are entitled to succeed; but it is clear, in our opinion, that they are also entitled to succeed on the strength of the express covenant in their conveyance.
7. The result, therefore, is that the decree, made by the Court below, must be confirmed, and this appeal dismissed with costs.
