Page:Harvard Law Review Volume 5.djvu/290

274 274 HAR YARD LA W RE VIE W. RESTRICTIONS UPON THE USE OF LAND. A RESTRICTION may be defined as an agreement concern- ing the use of land by its owner which runs with the land in equity. Strictly speaking, restrictions did not exist till about 1840, for not till that time was the distinctive quality, that of running with the land, recognized. Long before this, however, covenants that to-day would be called restrictions had been en- forced in equity ; but the suits, being between the contracting parties, had raised only the ordinary questions of specific per- formance of contracts. 1 When first suit was brought against a purchaser of the land from the covenantor, the question was still treated as one of specific performance. 2 The inquiry was made whether the covenant ran with the land at law. If it ran, then the purchaser was subject to. a legal obligation, which equity might specifically enforce. If not, then there was no obligation, either at law or in equity. In neither of the two cases referred to were these points fairly in issue. As dicta, the opinions were unfavorably received by the profession, 3 and shortly afterwards discredited by actual de- cisions. In Whatman v. Gibson 4 a covenant against certain trades was enforced by injunction against a purchaser of the land with notice of the covenant, the court merely remarking that it "saw no difficulty" in so doing. In Mann v. Stephens 5 a cove- nant against building was enforced under similar circumstances, and with equal brevity. Tulk v. Moxhay 6 contains the first dis- cussion of the principle upon which the court proceeds. That was a case upon a covenant by a former owner of land to main- tain a garden. An injunction was granted against the erection of houses. Cottenham, L. C, says: "That this court has jurisdic- tion to enforce a contract between the owner of land and his neighbor purchasing part of it, that the latter shall either use or 1 Barrett. Blagreave, 5 Ves. 555; Macher v. Foundling Hospital, 1 Ves.& B. 188; Rankin v. Huskiston, 4 Sim. 12; Old Steyne's Case, 2 Sugd. Vend. (10th ed.) 500. 2 Duke of Bedford v. British Museum, 2 M. & K. 552; Keppel v. Bailey, 2 M. & K. 517. 8 Sugden, Vend. (loth ed.) 492.
 * 9 Sim. 196. 6 15 Sim. 379. 6 2 Phill. 774.