Page:Harvard Law Review Volume 5.djvu/295

279 RESTRICTIONS UPON THE USE OF LAND. 279 enforces contracts of giving, because performance is a simple matter ; but a restriction, from the nature of the case, rarely falls within this class. The only case is Morland v. Cook, 1 where the agreement was to contribute toward the maintenance of a sea wall. Equity will always take jurisdiction over negative contracts, for the remedy is simple, — an injunction restraining the forbidden act, or a mandatory injunction to undo what has been done in breach of the agreement. Practically all restrictions belong to this class. Equity will not decree specific performance of affirma- tive contracts that call for the exercise of skill, discretion, or good faith; but when the required acts are of a simple nature it seems that the court will take jurisdiction. It has enforced contracts to keep in repair the stop-gate of a canal, 2 to construct an archway, 3 to lay a railway track over certain land, 4 and to maintain a switch. 5 In Cooke v. Chilcoat 6 a covenant to supply adjacent land with water was enforced, although it necessitated laying pipes and erecting machinery. This undoubtedly goes too far, and has since been overruled. In some cases where the intention of the parties can be sub- stantially carried out, a contract to do affirmative acts will be held to imply an agreement not to do certain acts inconsistent with the main agreement, and the doing of these acts will be restrained by injunction. 7 Thus a contract to lay out land as a garden has been enforced by enjoining the erection of houses, 8 and where there was a covenant to buy beer of the covenantee for use in a public house a subsequent purchaser of the house was enjoined from buying of any one else. 9 Restrictions are also subject to the general rule that equity will not enforce a contract where it would work hardship or injustice. A plaintiff has no standing in court unless he has been diligent in pressing his claim. He is held to have waived his right if he has allowed the defendant to make expenditures in breach of the restriction without objection, 10 or if he has acquiesced in a breach 1 L. R. 6 Eq. 252. * Lane v. Newdigate, 10 Ves. 192. 6 Lydick v. B. & O. R. Co., 17 W. Va. 427. « 3 Chan. Div. 694. 7 Lumley v. Wagner, 1 De G., M. & G. 616. 8 Rankin v. Huskisson, 4 Sim. 12; Tulk v. Moxhay, 2 Phil. 774. 9 Luke v. Dennis, 7 Chan. Div. 227; Colt v. Tourle, L. R. 4 Chan. 654. 10 Eastwood v. Lever, 4 De G., J. & S. 118.
 * Storer v. G. W. Ry. Co., 2 Y. & C. C. 48.
 * Wilson v. Furness Ry. Co., L. R. 9 Eq. 25.