¹ Megarry & Wade, Law of Real Property, 5th ed., p. 839. See also Cheshire and Burn, The Modern Law of Real Property, 13th ed., p. 496.

² The Times Law Report, 13 October 1983; (1985) 49 P.& C.R. 65; reversed but upheld on this point by the Court of Appeal, The Times Law Report, 27 February 1985; (1985) 50 P. & C.R. 9. The writer has kindly been supplied with transcripts of both decisions by Messrs. Freshfields.

³ Holdsworth, History of English Law, Vol. VII, p. 334.

⁴ The assize of nuisance is a species of the assize of novel disseisin which was brought where the wrongful act was done upon the defendant's land. See Fifoot, History and Sources of the Common Law, p. 9 and J. H. Baker, An Introduction to English Legal History, 2nd ed., p. 352.

⁵ Bracton (Woodbine ed.), Vol. HI, p. 190. Thome’s translation reads: “To a right of way…repair is appurtenant, just as the right of scouring is appurtenant to a right to conduct water.”

⁶ Y.B. 9 Ed. IV Mich., pl. 10, p. 35.

⁷ (1669) 1 Wms. Saund. 321; 85 E.R. 454.

⁸ E.g. J. H. Baker, An Introduction to English Legal History, 2nd ed., pp. 352–353.

⁹ Bracton f. 232; Bracton (Woodbine ed.), vol. Ill, p. 191 (translated by Thorne); repeated by Fleta, Book IV, chap. 27, Selden Society vol. 89, p. 112, Blackstone, Commentaries, vol. III, chap. 13, Nuisance; Ehrlich’s Blackstone, 582. The passage from Bracton quoted above appears in a section entitled “Of nuisances and the appurtenances of appurtenances.” Although this appears to relate primarily to rights appurtenant to easements, there seems to be no juristic distinction between positive obligations which are themselves easements and positive obligations which are ancillary to easements.

¹⁰ Fifoot, History and Sources of the Common Law, p. 20, n.62.

¹¹ Both rights under the general law and servitudes were remediable by the assize of nuisance, so they were placed in the same category. See A. W. B. Simpson, An Introduction to the History of Land Law, p. 101.

¹² Glanville Williams, Liability for Animals, p. 216, and (1938) 54 L.Q.R. 405; Year Book 11 Richard II (1387–8) (Ames Foundation) pp. XI–XIII; Holdsworth, op.cit., Vol. Ill, p. 28.

¹³ S. F. C. Milsom, “Trespass from Henry III to Edward III” (1958) 74 L.Q.R. 195, 407, 561 at 430–434.

¹⁴ For this development see J. H. Baker, An Introduction to English Legal History, 2nd ed., 352–354; D. W. Sutherland, The Assize of Novel Disseisin, chap. V; Milsom [1954] C.L.J. 105 at 108, and (1958) 74 L.Q.R. 195, 407, 561.

¹⁵ Y.B. (1342) 16 Edw. III Vol. I. (R.S. ed.), p. 257; Kiralfy, The Action on the Case, pp. 36, 208–9; Kiralfy, Source Book of English Law, pp. 141–143.

¹⁶ Y.B. (1344) 18 Edw. III T. pl. 6, f. 23; Kiralfy, The Action on the Case, pp. 60,209–210; Kiralfy, Source Book of English Law, pp. 141–143.

¹⁷ Y.B. 7 Hen. IV, H. pl. 10, f. 8; Kiralfy, The Action on the Case, p. 60.

¹⁸ Y.B. 11 Hen. IV, T. pl. 28, f. 82; Kiralfy, The Action on the Case, p. 60.

¹⁹ See generally Kiralfy, The Action on the Case, pp. 59–61. And see Anon. (1372) Y.B. Trin. 45 Edw. III f. 17 pl. 6, where a Prior brought un briefe de Trespass compernant tiel matter against D, whose failure to keep the banks of a stream in repair had caused flooding to P’s land. The writ was quashed on account of its particular wording, but otherwise its use in that context was not questioned: C. H. S. Fifoot, History and Sources of the Common Law, p. 93.

²⁰ See generally Glanville Williams, Liability for Animals, pp. 203–231.

²¹ By Willmer L.J. in Jones v. Price [1965) 2 Q.B. 618 at 631.

²² Gale on Easements, 2nd ed. (1849), p. 277, the earliest edition which I have been able to consult.

²³ See Milsom (1958) 74 L.O.R. 430–434. M. A. Peel (1964) 28 Conv. (N.S.) 450, 451–453, while recognising these obligations, considers that they are not true easements. However, historically there seems no justification for this view, as no distinction was made between these positive obligations and other easements. It is worth noting the opinion of Lord Denning M.R. in Crow v. Wood [1971] 1 Q.B. 77 at 84–85 that “a right to have your neighbour keep up the fences is a right in the nature of an easement.” For a view similar to Peel’s see Goddard, Law of Easements, 1st ed. (1871), pp. 281–282.

²⁴ E.g. Bernardstone v. Heighlyng (1342) Y.B. Pas. Ed. III (Rolls ser.) vol. I, p. 257; Rooke’s case (1597) 5 Co. Rep. 99; 77 E.R. 209 (held that the repairing of river walls by the occupiers of adjacent land was insufficient to establish prescriptive liability because the act of other occupiers could not bind the fee simple owner); Keighley’s case (1609) 10 Co. Rep. 139; 77 E.R. 1136 (held that there was no breach of a prescriptive obligation to repair a sea-wall which was in good repair but which was broken “by sudden and unusual increase of water”); R.. v. Leigh (1839) 10 Ad. & El. 398; 113 E.R. 152 (held that a landowner might by prescription be liable to maintain a sea-wall not only against ordinary weather and tides, but also against extraordinary tempests); Hudson v. Tabor (1877) 2 Q.B.D. 290 deals with the evidence required to establish prescriptive liability. The Court of Appeal held that the mere act of repairing a sea-wall was insufficient to establish a prescriptive obligation on the part of an adjacent owner, since the work may be done for his own protection; see also L. & N.W. Ry v. Commissioners of Sewers for Fobbing Levels (1897) 66 L.J. Q.B. 127. And see J. Williams, Rights of Common and Other Prescriptive Rights (1880), pp. 363–364. Milsom gives examples of a writ of reparari facias of 1352 and of a writ of trespass on the case, dated 1371, for failure to repair a gutter where the alleged servient owner was under a prescriptive duty to do so: (1958) 74 L.Q.R. 407 at 434. Bracton’s examples of stopping up and closing, scouring and repairing have already been noted. Milsom states that the duty to repair river-walls was public and not owed particularly to the plaintiff: (1958) 74 L.Q.R. 407 at 434. However, the public element in the obligation to repair river or sea walls need not detract from its nature as an easement. Each servient owner was under an obligation to all his neighbours who might be affected by flooding. There is nothing in principle which prevents an obligation in the nature of an easement from being owed to a plurality of dominant owners. There is a modern analogy with restrictive covenants under a scheme of development. Further, these “public” rights could be created in the same way as the other positive obligations. It is clear from the cases that the obligation to repair sea-walls could arise by prescription. See also the cases referred to in notes 17–19 and the text thereto.

²⁵ Bracton f. 232; Bracton (Woodbine ed.), vol. III p. 191 (translated by Thorne).

²⁶ See post, note 60 and text thereto.

²⁷ Gale, op. cit., p. 318. The same passage appears in later editions: 3rd ed. 1862 (W. H. Willes), p. 439; 4th ed. 1868 (D. Gibbons), p. 488; 6th ed. 1888 (G. Cave), p. 476; 7th ed. 1899 (G. Cave), p. 460; 8th ed. 1908 (R. Roope Reeve), p. 487; 9th ed. 1916 (T. H. Carson), p. 420; 10th ed. 1925 (W. J. Byrne) p. 427, 11th ed. 1932 (G. Graham Glover) p. 444; 12th ed. 1950, (D. H. McMullen) p. 422. I have not seen the 5th edition but there is no reason to suppose that it differs markedly from the editions referred to. This passage has disappeared from the latest (i.e. 13th and 14th) editions. This crucial omission is discussed post. The passage quoted appears in a chapter entitled “Incidents of Easements.” The same comment applies to this as to the earlier quotation from Bracton—see note 9.

²⁸ Gale, op. cit., p. 319.

²⁹ Gale, ibid.

³⁰ (1781) 2 Doug K.B. 745, 749.

³¹ (1669) 1 Wms. Saund. 321.

³² Ibid., 322 note 3. See also the dictum to similar effect by Parker J. in Jones v. Pritchard [ 1908] 1 Ch. 630 at 637. However, there is no obligation on the servient owner to repair imposed by the general law. Pomfret v. Ricroft (1669) I Wms. Saund. 321; Taylor v. Whitehead (1781) 2 Doug K.B. 745; Colebeck v. Girdlers Company (1876) 1 Q.B.D. 234, 243; Jones v. Pritchard (1908) l Ch. 630, 637; Bond v. Nottingham Corporation [1940] Ch. 429, 438; Urich v. Local Health Authorities for St. Andrew-St David (1964) 7 W.I.R. 482; Kelly v. Dea (1965) 100 I.L.T.R. 1; Parkinson v. Reid (1966) 56 D.L.R. (2d) 315, 319. See also dicta to the effect that if a dominant owner wishes a right of way to be repaired, he must do the work himself: Osborn v. Wise (1837) 7 C. & P. 761, 764 N.P.; Duncan v. Louch (1845) 6 OB. 904. 910; Ingram v. Morecroft (1863) 33 Beav. 49, 51; Newcomen v. Coulson (1877) 5 Ch.D. 133, 143.

³³ (1790) 3 T.R. 766.

³⁴ “The court upheld on general demurrer a claim based upon a prescriptive obligation upon the servient ‘owner’ to repair a private way over the servient tenement. The point of law actually at issue in the case was the validity of a declaration purporting to charge the defendant on the ground only of his possession of the servient tenement, but since the issue arose for determination on a general demurrer to the declaration, the case is nevertheless authority for the proposition based upon it”; A. W. B. Simpson [1965] Annual Survey of Commonwealth Law 313.

³⁵ The earlier reported cases which have been examined are founded on prescription. Throughout most of the medieval period the basis of prescription was that if a person enjoyed a right from “time immemorial,” that right could not be questioned. The reason was that no evidence could be adduced from before the time of legal memory to show that the user was wrongful. The claimant could show in effect that a special law applied to his case. “There was no principle that easements existed as a legal entity obtainable both by express grant and by prescription. Some rights could be prescribed for, some granted. There was an overlap but it was not total.” (S. Anderson (1975) 39 M.L.R. 641 at 642.) Before the end of the medieval period the theory changed. As the rights which could be prescribed for were usually created by grant, prescription came to be based on a presumption of a grant made before the time of legal memory. -Holdsworth, H.E.L., III, pp. 166–171. In some of the early cases liability was founded on tenure or custom.

³⁶ See note 35.

³⁷ In Crow v. Wood [1971] 1 Q.B. 77 at 84–85, Lord Denning MR. held that “it seems to me that it is now sufficiently established—or at any rate, if not established hitherto, we should now declare—that a right to have your neighbour keep up the fences is a right in the nature of an easement which is capable of being granted by law so as to run with the land and to be binding on successors. It is a right which lies in grant and is of such a nature that it can pass under section 62 of the Law of Property Act 1925.” Earlier Diplock L.J. had been more cautious in Jones v. Price [1965] 2 Q.B. 618 at 639: “the rationalisation [of the easement of fencing] is that it can arise by prescription at common law, from which it must follow that, in theory, it is capable of being created by covenant or grant.” However, he also said, “it is by no means clear whether such an obligation can today be newly created so as to run with the land, except by Act of Parliament.”

³⁸ See note 27 and the text thereto.

³⁹ (1691) Prec. Ch. 39; 1 Eq. C. Ab. 27.

⁴⁰ (1885) 29 Ch.D. 750 at 782. Lindley L.J. had two observations to make on Holmes v. Buckley: “In the first place it is quite plain that there the plaintiff had a cause of action; he was entitled to an injunction of some sort to restrain the defendants from interrupting his watercourse. The right of the plaintiff to enforce specifically the covenant to repair, or rather to cleanse the watercourse, is obscure, and we have not got the decree which was pronounced; and I confess that having only that short note of it which is to be found in ‘Equity Cases Abridged,’ I fail to understand the exact grounds of that decision, specifically enforcing that covenant to cleanse. I doubt whether it was a decision to that effect; but the case is too loosely reported to be a guide on the point.” As to the first point, although on the facts it does appear that there was some obstruction of the watercourse, the prime reason given by the court was “that this was a covenant that run with the land.” It appears from the report that the obstruction was, if anything, merely an additional ground why it was reasonable to specifically enforce the covenant. In any event the obstruction was only part proved and so cannot have been heavily relied on by the court. If the real complaint is that the watercourse has been obstructed then an action lies in nuisance. That has no bearing on the question of whether the covenant to cleanse and repair the watercourse would bind successors in title of the original covenantor. When understood thus the decision is clear. Lindley L.J.’s complaint as to its obscurity is hard to support. The difficulties posed by the actual decision in Austerberry will be dealt with post.

⁴¹ (1827) 6 B. & C. 329 at 338, 108 E.R. 473 at 477: “If by any clause in that deed [X] became bound to repair the fence, it would be conclusive in favour of the plaintiffs right to recover [damages]…Such a right to have fences repaired by the owner of adjoining lands is in the nature of a grant of a distinct easement, affecting the land of the grantor”: per Bayley J.

⁴² G. Williams, Liability for Animals, p. 208.

⁴³ This development can be traced through the cases. In Austye v. Fawkener (1595) Cro. Eliz. 446, Walmsley J. held that a pleading alleging a prescriptive right to have a fence maintained was bad because it was too general. “True it is, the prescription is not good: for this inclosure is a charge upon the land; and they who are only occupiers, as a disseisor, tenant at will, or sufferance, cannot charge the land therewith; but it ought to have been, that he and all they whose estate etc.” Rooke’s Case (1597) 5 Co. Rep. 99 is to similar effect with regard to the repair of river walls. This view was repeated by two out of three judges in Holbach v. Warner (1622/) Cro. Jac. 665, but in R. v. Bucknall (1702) 2 Ld. Raym. 804 it was held sufficient to allege that every occupier ought to repair because the plaintiff would not know which estate owner of the servient tenement was responsible for repairs. This was applied in Star v. Rookesby (1710) 1 Salk. 335 and Rider v. Smith (1790) 3 T.R. 766. In Cheelham v. Hampson (1791) 4 T.R. 318, the Court of King’s Bench held that an owner out of possession was not responsible for repairs but that the duty fell on the occupier.

⁴⁴ Re Nisbet and Potts’ Contract [1905] 1 Ch. 391, (1906) 1 Ch., 386; and see s. 79(2) Law of Property Act 1925.

⁴⁵ Megarry & Wade, op.cit., p. 839; see also Cheshire & Burn, op. cit., p. 496.

⁴⁶ The Times Law Report, 13 October 1983; (1985) 49 P. & C.R. 65.

⁴⁷ [1956] 2 O.B. 612.

⁴⁸ Ibid, at 627, per Jenkins L.J. (with whom Hodson L.J. and Lord Evershed M.R. agreed).

⁴⁹ P. Jackson, The Law of Easements and Profits (1978), pp. 93–94.

⁵⁰ According to Jowitt’s definition, “a personal contract is one which depends upon the existence, or the personal qualities, skill or services of one of the parties such as contract of marriage, or a contract to paint a picture. It follows from the nature of a personal contract that it cannot be assigned, and that it is discharged by the death of the party on whose personality it is founded.”

⁵¹ In Shayler v. Woolf [1946] 2 All E.R. 54 (C.A.) it was held that the benefit of a covenant to supply water from a pump on the covenantor's land was assignable, since it did not relate to personal services and there would be no increase in the burden of the contract if it were assigned.

⁵² [1956] 2 Q. B. 612. That case concerned the question of whether the standard rent could be raised under the provisions of ss.2(l)(b) and 3 of the Rent and Mortgage Interest (Restrictions) Act 1920.

⁵³ See Shayler v. Woolf, supra.

⁵⁴ G. Williams, Liability for Animals, p. 214. In Cooker v. Willcocks [1911] 2 K.B. 124, an obligation to fence against moorland cattle, including sheep, was held not to extend to an obligation to fence against a type of sheep that were of a peculiarly active and wandering nature.

⁵⁵ [1956] 2 Q.B.D. 612.

⁵⁶ (1669) 1 Wms. Saund. 321; 85 E.R. 454.

⁵⁷ Y.B. 9 Ed. IV Mich., pl. 10, p. 35.

⁵⁸ Holdsworth, H.E.L., VII, p. 334. See text to note 6, ante.

⁵⁹ Gale on Easements, 1st ed. (1839); 2nd ed. (1849).

⁶⁰ In the preface to the first edition of his work Gale states, “As in many other branches of the law of England, the earlier authorities upon the law of Easements appear to be based upon the Civil Law, modified, in some degree probably by a recognition of customs which existed among our Norman ancestors.... In the majority of cases both ancient and modern, probably from a consideration of this being the origin of the law, recourse has been had for assistance to the Civil Law.” In the preface to the second edition. Gale writes: “The introduction of the Civil Law ‘the collective wisdom of ages’ into this Treatise, has, it is believed, been found extremely useful; and, indeed, on this branch of our law the opinions of the civilians seem to be now almost adopted as authority.” For an example of an importation from French Law see A. W. B. Simpson (1967) 83 L.Q.R. 240.

⁶¹ W. W. Buckland, A Text–Book of Roman Law, 3rd ed. (P. Stein), p. 259.

⁶² Buckland, op. cit. p. 259. Buckland explains: “But it can hardly have been part of the servitude, for it was not available against all: a third party could not be made to repair the w a l l. “ This is the same argument as that advanced by Williams—(see text to note 42), and has been dealt with above.

⁶³ Gale, op. cit., 2nd ed., p. 312c.

⁶⁴ Gale, op. cit., p. 6.

⁶⁵ Gale, op. cit., p. 306.

⁶⁶ Gale, op. cit., p. 318—see text to note 27.

⁶⁷ Gale, op. cit., pp. 297–298.

⁶⁸ E.g. Coddard on Easements 1st ed (1871), pp. 12–13; 2nd ed. (1877), pp. 16–17; 3rd ed. (1884), pp. 21–22; 4th ed. (1891), pp. 21–22; 5th ed. (1896), pp. 20–21; 6th ed. (1904), pp. 22–23. (Goddard takes the view that positive obligations may be imposed but that “such rights are not casements but depend on entirely different principles of law”: 6th cd., p. 23. I have tried to show above that historically this view is unjustified.) Stroud, Law of Easements (1934), p. 15; Newcombe, Law of Easements (1951), p. 183; Radcliffe, Real Property Law (1933), p. 132. However, the new rule is not referred to in early editions of Cheshire's Modern Law of Real Property (e.g. 4th ed. (1937), pp. 224–235).

⁶⁹ See the line of statutes from 1427, 6 Hen. 6, c.5 to the Land Drainage Act 1976: Wisdom, The Law of Rivers and Watercourses, pp. 36–42. However, the new statutory powers under the Land Drainage Act 1976 do not release any person from any prescriptive obligation to which he was subject before the Act. The drainage authority can recover any expenses incurred in the exercise of its powers from any person liable to repair: s. 24.

⁷⁰ By Michael Bowles.

⁷¹ Gale, op. cit., 13th ed., p. 33; repeated 14th ed., p. 37.

⁷² Gale, op. cit., 13th ed., p. 34; repeated 14th ed., p. 38.

⁷³ Gale, op. cit., 13th ed., p. 42; repeated 14th ed., p. 47.

⁷⁴ Gale, op. cit., 13th ed., pp. 33–34; repeated 14th ed., pp. 37–38.

⁷⁵ [1965] 2 Q.B. 618 at 631.

⁷⁶ ibid.

⁷⁷ The Times Law Report, 13 October 1983; (1985) 49 P. & C.R. 65.

⁷⁸ (1985) 49 P. & C.R. 65, 69–70.

⁷⁹ The Times Law Report, 27 February 1985; (1985) 50 P. & C.R. 9.

⁸⁰ (1985) 50 P. & C.R. 9, 13.

⁸¹ P. Jackson, The Law of Easements and Profits, p. 22, n.2.

⁸² (1885)29Ch.D. 750. The facts were that E conveyed to trustees a piece of land as part of the site of a road, intended to be made and maintained by the trustees. The trustees covenanted with E, his heirs and assigns, that they and their heirs and assigns would make the road and at all times keep it in repair. The questions were whether the benefit of the covenant had passed to E's successors in title and whether the burden had passed to the trustees' successors. The Court of Appeal answered both questions in the negative.

⁸³ Following Haywood v. Brunswick Permanent Benefit Building Society (1881) 8 Q.B.D. 403.

⁸⁴ (1848) 2 Ph. 774.

⁸⁵ “I am not prepared to say that any covenant which imposes a burden upon land does run with the land, unless the covenant does, upon the true construction of the deed containing the covenant, amount to either a grant of an easement…or some estate or interest in land”: (1885) 29 Ch.D. 750 at 781. See also Holmes v. Sellar (1692) 3 Lev. 305. This point was ignored by Diplock L.J. in Jones v. Price [1965] 2 Q.B. 618 at 639 who took the view that the assumption in Boyle v. Tamlin (1827) 3 B. & C. 329 at 338 (that the easement of fencing could be created by covenant) could not survive the decision in Austerberry. F. R. Crane commented that “if the right to have a fence maintained subsists qua easement, then it ought not to be affected by a decision concerned with the burden of positive covenants and it may be necessary to determine whether a covenant operates as a grant or a covenant simply”: (1965) 29 Conv. (N.S.) 404.

⁸⁶ (1691) Prec. Ch. 39; 1 Eq. C. Ab. 27.

⁸⁷ (1698) 12 Mod. 166. The rule in this case appears to be accepted as justification for Holmes v. Buckley by the learned editors of Smith's Leading Cases (13th ed.), p. 81 in their notes on Spencer's case.

⁸⁸ [1920] N.Z.L.R. 155.

⁸⁹ Gale on Easements, 9th ed., p. 420, repeating Gale, 2nd ed., p. 318; see note 27 and text thereto.

⁹⁰ Goddard on Easements, 7th ed., pp. 119–120. “The law will not permit a landowner to create easements of a novel character and annex them to the soil so as to bind it in the hands of future owners; and, though any such right which he may confer upon another person may be valid against him personally so long as he continues owner of the quasi-servient tenement, and even perhaps against his successors, yet it will be a right resting on covenant only, so that on disturbance he or they may be sued for breach of covenant.”

⁹¹ (1691) Prec. Ch. 39; 1 Eq.C.Ab. 27.

⁹² (1698) 12 Mod. 166.

⁹³ [1920] N.Z.L.R. 155, at 163–164.

⁹⁴ Herdman J. also considered that it might be argued successfully that the covenant ran with the land on the basis of the decision in Martyn v. Williams (1857) 1 H. & N. 817, 156 E.R. 1430. However, that case hardly seems a good foundation for such an argument. It is only authority for the proposition that the benefit of a covenant entered into by a person with a limited interest will run with the reversionary interest.

⁹⁵ [1968] 91 W.N. (N.S.W.) 730.

⁹⁶ (1965) 47 D.L.R. (2d) 28.

⁹⁷ Kelly J. A. relied on Gale on Easements (12th ed.), p. 522; Pomfret v. Ricroft (1669) 1 Wms. Saund. 321 (presumably the reference is to the notes by Mr. Serjeant Williams—see notes 31 and 32 and the text thereto); Rider v. Smith (1790) 3 T.R. 766. Other arguments adduced by the Court of Appeal which are not material to this article are not dealt with here.

⁹⁸ (1965) 47 D.L.R. (2d) 28 at 34. Kelly J.A relied on Broom's Legal Maxims (10th ed.) p. 482: “The covenant to repair which extends to the support of the thing demised, is quodammodo appertinent to it and goes with i t.”

⁹⁹ (1966) 56 D.L.R. (2d) 315. The single dissent by Spence J. was on the application of the law to the facts. As to the former, he agreed with the conclusions of Cartwright J.

¹ (1966) 56 D.L.R. (2d) 315 at 319. The passage from Broom's Legal Maxims (see note 98) was dismissed as relating to leases where there is privity of estate.

² Holmes v. Sellar (1692) 3 Lev. 305; Austerberry v. Oldham Corporation (1885) 29 Ch. D. 750 at 782.

³ Professor Paul Jackson [1985] Conv. 66 has suggested that the facts in Reid v. Parkinson “can be distinguished from those of the traditional right of way in that in the latter case the dominant owner can, if he wishes, repair a path or road across the servient land. The replacement of a staircase might, on the other hand, involve interference with the rights of other inhabitants of a building which no individual grantee had the right to effect.” With respect, such a distinction seems unnecessary. It appears to confuse the issue of whether courts should recognise a positive obligation on a servient owner which forms part of an easement with the separate (but related) issue of whether such an obligation should be implied if not expressed. The latter issue is dealt with in the landlord and tenant cases discussed post.

⁴ E.g. Miller v. Hancock [1983] 2 O.B. 177; Huggett v. Miers [1908] 2 K.B. 278.

⁵ [1977] A.C. 239.

⁶ E.g. Stokes v. Mixconcrete (Holdings) Ltd. (1978) 38 P. & C.R. 488; Duke of Westminster v. Guild [1985] Q.B. 688; P. Jackson [1985x005D; Conv. 66.

⁷ Under this section the burden of covenants which have reference to the subject-matter of the lease runs with the reversion.

⁸ (1781) 2 Doug. K.B. 745 at 749.

⁹ Referred to in Miller v. Hancock (1893) 2 O.B. 177 at 181 and Huggett v. Miers (1908) 2 K.B. 278 at 283.

¹⁰ Law Comm. No. 127 (1984). paras. 3.58–3.64. 4.21–4.22.

¹¹ Law Comm. No. 127 (1984); (1984) 47 M.L.R. 566 (P. Polden).

¹² Ibid., Part VIII.

¹³ Ibid., paras. 11.8–11.13.

¹⁴ Ibid., para. 4.17.

¹⁵ Cheeiham v. Hampson (1791) 4 Term. Rep. 318.