house were parties to an indenture whereby it was covenanted, among other things, that the land in front of the petitioner's lot and just across the street should not be built upon beyond a certain line on what is now Pemberton Square, and should be subject to some other similar negative restrictions. This land the city has taken free of these restrictions. If the plaintiff has an easement, the city must pay for it.

The right to have land not built upon, for the benefit of the light, air, etc., of neighboring land, may be made an easement, within reasonable limits, by deed: Brooks v. Reynolds, 106 Mass. 31. And such an easement may be created by words of covenant, as well as by words of grant: Hogan v. Barry, 143 Mass. 538. 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 conveyed, if the purport of the deed is to create an easement for the benefit of the dominant estate: Louisville and Nashville R. R. Co. v. Koelle, 104 Ill. 455; Wetherell v. Brobst, 23 Iowa, 586, 591; Gale on Easements, 6th ed., 59. Of course it does not matter that by the same deed numerous parties grant similar or reciprocal easements over, or in favor of, many parcels of land: Tobey v. Moore, 130 Mass. 448; Beals v. Case, 138 Mass. 138, 140. Neither is it material that the indenture provides that a majority of three fourths of the owners of the lots concerned may terminate the rights which it creates.

If, then, we are to assume that at the time of the indenture the owner of the petitioner's lot was a different person from the owner of the opposite lot taken by the city, we have a plain case of a grant of easements to have certain parts of the latter not built upon, or not built upon above a certain height. Such would seem to have been the fact from the plan, referred to in the petition, which was exhibited to us at the argument, and from the petition itself, which states that the petitioner's right acquired under the indenture was an easement.

It follows that we need not consider the argument for the city, that owners of purely equitable restrictions are not entitled to maintain a petition of this nature.

Motion overruled.

COVENANTS RESTRICTING THE USE OF LAND. - Among the numerous attempts at a comprehensive statement of the legal doctrine on this subject, we may quote that of Professor Washburn: "It is now generally held that when land is divided up by the owner into numerous lots, and sold, and in every deed

a condition or restriction is inserted, which is shown, either by its nature, or position of the property, or words of the deed, or other evidence, to be inserted for the benefit of the other lots, there is created a perpetual servitude upon the land in favor of the other lots": Washburn on Easements, 4th ed., 115. The following statement of the rule was made by Mr. Justice Soule, in a case in Massachusetts: "It often happens that owners of land, which they design to put into the market in lots for dwelling-houses, insert in the deeds of the several lots a uniform set of restrictions as to the purposes for which the land may be used, and as to the portions of it which may be covered by buildings. So far as these restrictions are reasonable in their character, they are upheld and enforced by courts of equity in favor of the original owner, so long as he continues to own any part of the tract for the benefit of which the restrictions were created, as well as in favor of the owner of any one of the lots into which the tract was divided, and against the owner of any of the lots who attempts to set the restrictions at naught": Sanborn v. Rice, 129 Mass. 387, 396. "That such a purpose is a legitimate one, and may be carried out consistently with the rules of law, by reasonable and proper covenants, conditions, or restrictions cannot be doubted. Every owner of real property has the right so to deal with it as to restrain its use by his grantees within such limits as to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment of the land which he retains. The only restriction on this right is, that it shall be exercised reasonably, with due regard to public policy, and without creating any unlawful restraint of trade ": Whitney v. Union R'y Co., 11 Gray, 353; 71 Am. Dec. 715. Nor can there be any doubt that in whatever form a restraint is placed on real estate by the terms of the grant, whether it is in the technical form of a condition or covenant, or of a reservation or exception in the deed, or by words which give to the acceptance of the deed by the grantee the force and effect of a parol agreement, it is binding, as between the grantor and the immediate grantee, and can be enforced against him by suitable process, both at law and equity: Whitney v. Union R’y Co., 11 Gray, 359; 71 Am. Dec. 715.

The fact that the deed contains a condition of forfeiture of the estate and reverter of title for a violation of the covenant does not oust the remedy of the covenantee in equity. On the contrary, the remedy in equity, being less severe to the vendor, is more reasonable, and hence to be preferred: Watrous v. Allen, 57 Mich. 362; 58 Am. Rep. 363. That the fact that a penalty or forfeiture is imposed for doing a prohibited act affords no objec tion to the interposition of equity to enjoin the doing of the act, see Coles v. Sims, Kay, 56; Barrett v. Blagrave, 5 Ves. 555; Hardy v. Martin, 1 Cox, 26. On analogous grounds, specific performance will be decreed, notwithstanding the contract liquidates the damages: Fox v. Scard, 33 Beav. 327; Howard v. Woodward, 10 Jur., N. S., 1123. Equity will not enforce the condition of forfeiture, because equity does not decree forfeitures; that condition is enforceable only in the legal forum: Watrous v. Allen, 57 Mich. 362; 58 Am. Rep. 363. That equity will not enforce forfeitures, see Crane v. Dwyer, 9 Mich. 350; 80 Am. Dec. 87; White v. Port Huron etc. R. R. Co., 13 Mich. 356; Wing v. Railey, 14 Mich. 83; Horsburg v. Baker, 1 Pet. 232; Livingstone v. Tompkins, 4 Johns. Ch. 415; 8 Am. Dec. 598; Smith v. Jewett, 40 N. H. 530; Warner v. Bennett, 31 Conn. 468.

If the covenant of reservation is one which the parties have the right to make, the original covenantee will be entitled to the aid of a court of equity to restrain its violation as long as he lives and remains the owner of

the property, although it may be a covenant personal to him and not running with the land: Parker v. Nightingale, 6 Allen, 341; 83 Am. Dec. 632; Whitney v. Union R'y Co., 11 Gray, 359; 71 Am. Dec. 715; Badger v. Board man, 16 Gray, 559; Peck v. Conway, 119 Mass. 546.

There is, of course, no doubt that as between the covenantor and the covenantee the latter may maintain an action for damages for a breach of the covenant; and it is equally clear that he may have an injunction to restrain its breach without showing actual damage: German v. Chapman, 7 Ch. Div. 271; Richards v. Revitt, 7 Ch. Div. 226; Hall v. Wesster, 7 Mo. App. 56, 62. And where there has been a sale of a large tract of land laid off into lots upon the condition of certain restrictions in the use of every one of the lots, which restrictions are inserted in every one of the deeds, one of the vendees, it has been held, is equally entitled to an injunction against another of the vendees to restrain him from violating the restrictions, irrespective of the question of actual damages: Hall v. Wesster, 7 Mo. App. 56, 62.

Where land is sold subject to such a restrictive covenant, and the language of the deed and the situation of the land with reference to other land of the grantor retained are such as to make it clear that the restriction in the deed upon the use of the land sold was intended for the benefit of the land retained, this is held to create a negative easement, or, as the courts sometimes say, an equity in the land sold for the benefit of the land retained, such as binds all the successors in title of the land subject to the easement, provided they have notice thereof, express or constructive: Tulk v. Moxhay, 2 Phill. Ch. 774; Whatman v. Gibson, 9 Sim. 196, 207; Mann v. Stephens, 15 Sim. 377; Coles v. Sims, Kay, 56, 69; Child v. Douglas, Kay, 560, 571; Jeffries v. Jeffries, 117 Mass. 185; Sanborn v. Rice, 129 Mass. 396; Parker v. Nightingale, 6 Allen, 341; 83 Am. Dec 632; Peck v. Conway, 119 Mass. 546, 549; Whitney v. Union R'y Co., 11 Gray, 359, 364; 71 Am. Dec. 715; Renals v. Cowli shaw, 9 Ch. Div. 125, 129; affirmed, 11 Ch. Div. 866; Clark v. Martin, 49 Pa. St. 289; Western v. McDermott, L. R. 1 Eq., 499, 504; affirmed, L. R. 2 Ch. 72; Hills v. Miller, 3 Paige, 254; 24 Am. Dec. 218; Barrow v. Richard, 8 Paige, 354; Brouwer v. Jones, 23 Barb. 153; Linzee v. Mixer, 101 Mass. 512; Gilbert v. Peteler, 38 N. Y. 165; 97 Am. Dec. 785; Atlantic Dock Co. v. Leav itt, 54 N. Y. 35; Watrous v. Allen, 57 Mich. 362; 58 Am. Rep. 363. This doctrine is variously expressed in judicial opinions. Such a restriction has been held to be in the nature of a servitude, the benefit of which would become attached to the other estates retained or contemporaneously or subsequently conveyed by the grantor as a legal right or easement, and would pass with them as appurtenant: Jeffries v. Jeffries, 117 Mass. 185. To the same effect are Peck v. Conway, 119 Mass. 546, 549; Whitney v. Union Ry Co., 11 Gray, 359, 364; 71 Am. Dec. 715. The doctrine has been expressed with great clearness by Bigelow, J., in the case last cited, which may perhaps be regarded as the leading American case on the question. The doctrine was thus expressed by Vice-Chancellor Hall, after reviewing the previous decisions in the English courts of chancery on the subject: “Any one who has acquired land, being one of several lots laid out for sale or building plats, where the court is satisfied it was the intention that each one of the several purchasers should be bound by, and should as against the others have the benefit of, the covenants entered into by each of the purchasers, is entitled to the benefit of the covenant; and this right, that is, the benefit of the covenant, inures to the assign of the first purchaser, -in other words, runs with the land of such purchaser..... This right," continued he, "exists not only where the several parties execute

a mutual covenant, but wherever the mutual contract can be sufficiently established. A purchaser may also be entitled to the benefit of a restrictive covenant entered into with his vendor, upon their heirs, where his vendor has contracted with him that he shall be the assign of it; that is, of the benefit of the covenant. And such a covenant need not be expressed, but may be collected from the transaction of sale and purchase. In considering this, the expressed or otherwise apparent purpose or object of the covenant, in reference to its being intended to be annexed to other property, or to its being only obtained to enable the covenantee more advanta geously to deal with his property, is important to be attended to. Whether the purchaser is the purchaser of all the land retained by his vendor when the covenant was entered into is also important. If he is not, it may be im. portant to take into consideration whether his vendor has sold off part of the land so retained, and if he has done so, whether or not he has so sold subject to a similar covenant; whether the purchaser claiming the benefit of the coverant has entered into a similar covenant may not be so important": Renals ▼. Cowlishaw, 9 Ch. Div. 125, 129. This decision was affirmed on appeal, and one of the lords justices (Baggallay) went so far as to adopt entirely the language of Vice-Chancellor Hall, above quoted.

It is not to be supposed from the foregoing that it is at all necessary, in order to have such a covenant enforced for the benefit of adjoining or adjacent land, that it should be, in a technical sense, a covenant running with the land conveyed by the deed which contains the covenant. "The precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land. A personal covenant or agreement will be held valid and binding in equity on a purchaser taking the estate with notice. It is not binding on him merely because he stands as an assignee of the party who made the agreement, but because he has taken the estate with notice of a valid agreement concerning it, which he cannot equitably refuse to perform": Whitney v. Union R'y Co., 11 Gray, 359, 364; 71 Am. Dec. 715, 718; opinion by Bigelow, J. In the leading English case in which the principle upon which courts of equity grant relief was formulated and applied by Lord-Chancellor Cottenham, that eminent judge said: "That this court has jurisdiction to enforce a contract between the owner of land and his neighbor purchasing a part of it, that the latter shall either use or abstain from using the land in a particular way, is what I never knew disputed. Besides that, the covenant being one which does not run with the land, this court cannot enforce it. But the case is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by the vendor, and with notice of which he purchased. Of course the price will be affected by the covenant." And again he said: "That the question does not depend upon whether the covenant runs with the land is evident from this, that if there was a mere agreement, and no covenant, this court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased ": Tulk Moxhay, 1 Phill. Ch. 774, 777; quoted in Keates v. Lyon, L. R. 4 Ch. 222, and recognized in Child v. Douglas, Kay, 560. Quoting this language, it has been added by Lord Justice Selwyn: "The questions which have arisen with respect to the devolution of the benefit of covenants of this kind have been decided upon similar principles, and equally without reference to any technical objections depending upon the covenants running or not running with

the land": Keates v. Lyon, L. R. 4 Ch. 223. So in a later case, it is said by Vice-Chancellor Hall: "It is now well settled that the burden of a covenant entered into by a grantee, in fee, for himself, his heirs and assigns, although not running with the land, at law, so as to give a legal remedy against the owner thereof for the time being, is binding upon the owner of it for the time being, in equity, he having notice thereof": Renals v. Cowlishaw, 9 Ch. Div. 125, 129. It may be suggested, though not with absolute confidence, that the only distinction under this head is this: if the covenant is one which tech nically runs with the laud, it may bind the successors in title of the original covenantor, irrespective of the question of notice; for they would be held to take the land subject to any burdens attaching to it under the strict rules of law, whether they had notice of such burdens or not; whereas if the covenant does not run with the land, they must have notice of it, actual or construc tive; otherwise they occupy in respect of it the attitude of bona fide purchasers without notice, and it cannot be enforced against them in a court of equity. Where the covenants are mutual, there is no difficulty whatever in dealing with this question. Thus where the owner of a particular piece of land, on which a row of houses was intended to be built, executed a deed reciting that it had been laid out, and was intended to be dealt with in a particular manner, and declared that it should be a general and indispensable condition of the sale of all or any part of that land that the several proprietors, for the time being, should observe and abide by the several restrictions and stipula tions therein contained, and that he himself would at all times observe the like restrictions and stipulations, and these restrictions and stipulations were also enforced by mutual covenants, although the question afterwards arose between subsequent purchasers of different portions of this piece of land, — it was held the owner was bound by, and that the other was entitled to enforce, the covenants: Whatman v. Gibson, 9 Sim. 196; decision by Vice-Chancellor Shadwell. But while, in the absence of special circumstances rendering the enforcement of such a covenant inequitable, which will be spoken of here. after, the fact that the grantor entered into similar covenants on his part in respect of the land retained places the right of a successor in title of such land to equitable relief in the form of an enforcement of the covenant or of an injunction to restrain its violation, entirely beyond question, yet it is not to be inferred from this that it is at all necessary, in order to such equitable relief, that there should be a mutuality of covenants. This is made very clear by the opinion of Sir W. Page-Wood (afterwards Lord Hatherley). Hə ruled that the objection to a motion for a restraining order that there were no reciprocal covenants was "no real objection." "It only amounts to this," said he, "that the defendant, Douglas, has covenanted with the vendor not to perform certain acts, and has not thought fit to make the vendor enter into a covenant with him to take similar covenants from the future purchasers of the remaining land. The reciprocal advantage he reobtained by Douglas is really the conveyance of the land; and it cannot be said that for the want of a reciprocal benefit which he did not stipulate for he cannot be compelled to perform that which he has expressly covenanted to do." Further on, he Baid: "I have felt some difficulty throughout in seeing how reciprocity could have anything to do with the question. Where a part of the remaining property of the vendor has been sold to another person, who must be said to have bought the benefit of the former purchaser's covenant, and more especially when the subsequent purchaser has entered into a similar covenant on his own part, he must be said to have done this in consideration of those bene. fits, and even whether he actually knew or was ignorant that this covenant