Page:Harvard Law Review Volume 5.djvu/299

'RESTRICTIONS UPON THE USE OF LAND. 283 appurtenant to neighboring land the burden may be indefinitely increased. When the intention is collected from extrinsic evidence, it must appear with extreme clearness just what land is to have the benefit. At one time it was felt that the land seeking to en- force a restriction must itself be subject to a reciprocal cove- nant in favor of the other lot ; but this is no longer necessary. 1 The language of a late opinion 2 would lay down the rule that a prior purchaser can sue a subsequent purchaser of part of a building estate only when there had been, from plans, representa- tions, or mode of salej an implied agreement by the common ven- dor with the earlier purchaser that any restriction subsequently imposed shall inure to his benefit — that is, the vendor cannot give the benefit of the restriction away, but may sell it. It is hardly to be supposed that any such limitation will be kept. The true rule probably is that there must be some very strong evidence, like the existence of a building scheme, mutual cove- nants, or express statements by the vendor as to the subsequent restrictions, before the court will construe the restriction as ap- purtenant of the lots previously sold. But when the intention is manifest in the writing itself, there is no objection to giving effect to it. 8 It has been suggested that these cases might be explained upon other grounds. The vendor, it is said, who puts up lots for sale according to a building scheme impliedly covenants with the purchaser of the first lot that all the remaining lots shall be subject to the restrictions noted in the scheme, and that this cove- nant is binding upon subsequent purchasers of lots. There are three objections to this. We have seen that a court is extremely reluctant to imply restrictions from such transactions; the re- strictions, if implied, would rest upon acts of which subsequent purchasers would probably have no notice ; moreover, the cases do not state whether the purchasers had notice, and the opinions contain no inquiry upon this point. The court in each case pro- fesses to enforce the express covenant of the subsequent purchaser, and not the implied covenant (if any) of the vendor. Both benefit and burden of a restriction may be apportioned. When land to which a restriction is appurtenant is divided the 1 Collins v. Castle, 36 Chan. Div. 243. 2 Hall, V. C, in Renals v. Cowlinshaw, 9 Chan. Div., at 129. 8 Barrows v. Richards, 8 Paige, 351.