Stephenson, Ira G.

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University of Kentucky

Kentucky Law JournalVolume 32 | Issue 3 Article 71944Theories as to the Nature of Equitable ServitudesIra G. StephensonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Property Law and Real Estate CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationStephenson, Ira G. (1944) "Theories as to the Nature of Equitable Servitudes," Kentucky Law Journal: Vol. 32 : Iss. 3 , Article 7.Available at: https://uknowledge.uky.edu/klj/vol32/iss3/7STUDENT NOTEStime of delivery, but construed acceptance as being at the exactmoment the grantee actually consented to the transfer. The courtdeemed it essential for the purposes of justice that the actual time ofacceptance be considered as the beginning of ownership of the grantee.Probably this same result is reached in the majority-rule states'If the American rules were interpreted literally, injustice wouldresult in certain instances. However, the courts have shown a tendencyto integrate the two rulings in order to achieve justice in particularcases, e.g., the minority holds like the majority in infant cases, and,the majority holds like the minority where the rights of third partiesintervene. The two American views are sufficiently flexible to allowa broad interpretation when justice demands. It would thereforeappear that there is little difference in many jurisdictions in theapplication of these rules'JAMES COLLIERTHEORIES AS TO THE NATURE OF EQUITABLE SERVITUDESThe entire subject of equitable servitudes is somewhat con-fused, most of the confusion probably arising because of a failure tounderstand their nature. It is generally agreed that an equitableservitude is a restriction on the use of land enforceable in equitybetween contracting parties or their successors with notice. Theirdevelopment may be accredited to judicial legislation originating withthe English case of Tulk v. Moxhay.' The result in this case was ob-tamed on the theory that the covenant should be enforced in order toprevent unjust enrichment on the part of the purchaser who pre-sumably had paid less for the property because of the servitude. Thisrationalization has, however, been definitely repudiated.Several other theories have been advanced by courts of equityin enforcing such agreements. The two theories most often reliedupon by the courts are; first, such restrictions are enforceable as con-tracts concerning the land;' and second, they are enforceable sub-stantially as servitudes attached to the landl' Arnegaard v Arnegaard, 7 N.D. 475, 75 N. W 797, 41 L.R.A. 258(1898)" If the different jurisdictions are to reach the same results, factssimilar to those in the principal case would perhaps cause the greatestdifficulty2 Phillips 774, 41 Eng. Rep. 1143 (1848)CLARK, PRINCIPLES OF EQUITY (1937) 117-118; Royes v Hose-good, 2 Ch. 388 (1900)See 2 TIFFANY, REAL PROPERTY (2d ed. 1920) 1434-1438; Stone,The Equitable Rights and Liabilities of a Stranger to a Contract (1918)18 Col. L. Rev 291, Ames, Specific Performance for and AgainstStrangers to a Contract (1904) 17 Harv L. Rev 174; Giddings, Re-strictions Upon the Use of Land (1892) 5 Harv L. Rev 274.'PouND, PROGRESS OF THE LAW (1918-1919) Pound, EquitableServitudes (1920) 33 Harv L. Rev 813; CLARK, EQUITY (1919) 118-119; Keasbey, Restrictions Upon the Use of Land (1893) 6 Harv L. Rev280; POMEROY, EQUITY JURISPRUDENCE (4th ed. 1918) Secs. 1295, 1693.KENTUCKY n-AW JOURNALProponents of the contract theory have been influenced by thelanguage used- and the results obtained in Tulk v. Moxhay. In thiscase the court, thinking purely in terms of specific performance said,'. the question is not whether the covenant runs with the land,but whether a party shall be permitted to use the land in a mannerinconsistent with the contract entered into by his vendor, and withnotice of which he purchased." 5 This, together with the fact that equityusually gives specific performance to land contracts, has led manyjudges and writers to adopt the contract theory in totoY In WilsonCo. v. Gordon, involving the sale-of land in a restricted area, the courtsaid, " there is not here involved any grant of an actual interest,title, or direct easement in the land itself, of another, but strictly arestrictive covenant. '7 In many cases involving equitable servi-tudes it is possible and often convenient to use the contractual peg onwhich to hang the decision.The more persuasive and substantially more logical theory, how-ever, seems to be that these covenants run with and attach to theland in equity This theory has been advanced by Dean Pound andother learned writers!- In Withers v. Ward,' Ritz, J., said,"9 the right to have them enforced, so far as the plaintiff isconcerned, is one that is attached to his real estate. It is a partof his real estate, and when the owner of another lot in the sub-division attempts to violate one of these restrictions he is takingfrom all the other owners part of their estate. He is not merelycommitting a trespass upon it. He is destroying it, and equity willtake jurisdiction by injunctive process to prevent one from in-flicting permanent injury upon the real estate of another."New York has held such interests are property rights, in condem-nation proceedings." In Peters v. Buckner,. the Supreme Court ofMissouri held that the owner of a lot in a subdivision in winch all ofthe lots were restricted to residential use has a property interest meach of the other lots which could not be taken for public use withoutcompensation. The owner in that case was held to be entitled to awrit of mandamus compelling a school district to award him compensa-tion before it could build a school building on the lot across the streetfrom the plaintiff's land. Woodson, J., said, "The covenants andagreements in the deeds. , create and vest in them, as owners,a legal right of property which is an appurtenance to theirrespective lots."''Where land subject to an equitable servitude, is acquired byadverse possession the servitude is not destroyed even though the52 Phillips, op. cit. supra note 1, at 1145.'See note 3, supra.224 S.W 703 (Tex., 1920)S See note 4, supra.'86 W Va. 558, 104 S. E. 96 (1920)"Flynn v N. Y. W & B. Ry Co., 218 N. Y. 140, 112 N. E. 913 (1916)288 Mo. 618, 232 S. W 1024, 17 A. L. R. 543 (1921)Id. at - 232S. W at 1027.STUDENT NOTESacquirer had no notice of it It would, therefore, appear that thedoctrine of equitable servitudes operates as. an equitable appendixto the law of real propertyIt is believed, however, that it is not advisable to place equitableservitudes unequivocally in either of the aforementioned categories,since they possess certain characteristics inherent in both contract andproperty rights. It must be admitted that as between the covenantorand covenantee the restriction is contractual, and that all equitableservitudes have their origin in contracts. However, by no stretchof the imagination could it be said that the relation between theremote grantee of the covenantee and one who takes by adversepossession from the covenantor is contractual- Nevertheless, theequitable servitude can be enforced against one who takes by adversepossession since he is not a purchaser for value.'It may be concluded, then, that equitable, servitudes are bothcontractual and real (pertaining to realty) in their nature. Theresult in a particular case may be influenced, or even determined, bywhether the court is more persuaded by the contract phase of theservitude than by the property phase, or vice versa, at the time thedecision is made.IRA G STEPHENSONTORTS-LIABILITY OF ELECTRIC COMPANY FORCURRENT ESCAPING FROM POWER LINEIn Chase v. Washzngton Power Company,' two chicken hawks be-came engaged in an aerial battle in the course of which their talonsinterlocked, and they fell, so attached, between the defendant's powerline and guy wire. One touched the highly charged power line andthe other touched the guy wire, thereby establishing a connection.From the connection thus made, the current ran down the guy wireand escaped into a wire fence which had been allowed to sag againstthe guy wire. The current was transmitted through the wire fenceto the plaintiff's barn, to which the fence was attached. As a result,the plaintiff's barn was destroyed by fire and some other buildingswere damaged. The Supreme Court of Idaho, in affirming a judg-ment for the plaintiff, found that there was sufficient evidence for thejury to find negligence on the part of the defendant and reasonedthat since birds had, at other times, caused disturbances on the powerline, it was foreseeable that they might make such a connection asthe one made here.This case raises some interesting problems, as it may be questionedwhether there was really any negligence on the part of the power"In re Nisbet and Potts Contract, 1 Ch. 386 (1906)." See note 12, supra.111 P (2d) 872 (Idaho, 1941)

Theories as to the Nature of Equitable Servitudes

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