a street laid out by them, and having annexed to the conveyance of each lot a restrictive use similar to that of every other, the legal inference, in the absence of evidence to the contrary, is that the intention was to secure to each estate the benefit of the restrictions; and the effect is to confer on each owner a right in the nature of an easement or servitude in all the lots on the same street, or which were conveyed subject to the same restriction. The earlier case of Whitney v. Union Ry. Co., 1 often cited as authority for the proposition that any purchaser may maintain a bill against any other, was only the ordinary case of a bill filed by the original covenantee against the assigns of the covenantor. In Linzee v. Mixer 2 both parties claimed under contemporaneous deeds from the Commonwealth of lots on the Back Bay in Boston, all of which were sold subject to restrictions as to the location of the houses, these restrictions having been publicly advertised as a part of the plan for the improvement of the property. It was held that a bill for injunction would lie. On the other hand, in Dana v. Wentworth, it was held that the grantor could not maintain an action against one purchaser for the benefit of others, because there was nothing in the case to show that the restrictions in the deed were a part of a general plan for the benefit of the land conveyed and other estates on the same street. In Tobey v. Moore there was evidence tending to show a general scheme of improvement, and Gray, J., said that the deed under which both parties claimed, "by applying the same restrictions to many lots on various streets, supplied the evidence (which was wanting in Dana v. Wentworth) of a general scheme for the improvement and benefit of all the lands included in a large tract, which a grantee of any part of the land may enforce against his neighbor." In Beals v. Case 5 one purchaser was not allowed to have an injunction against another to enforce the covenant contained in both their deeds that the building should not in any event be used as a stable. It appeared that the grantor had intended to except private stables, and that in other deeds the covenant contained that exception; and the court said one purchaser has a remedy against another, "But it is always a question of the intention of the parties; and, in order to make this rule applicable, it must appear from the terms of the grant or from the surrounding circumstances that it was the intention of the grantor in inserting

the restriction to create a servitude or right which should inure to the benefit of the plaintiff's land, and should be annexed to it as an appurtenance." In Payson v. Burnham1 there were mutual covenants between the owners of the Mill-Dam and the adjoining flats in Boston with reference to the location of houses, and the grantee of one party was allowed to maintain a bill against the grantee of another to restrain the erection of a bay window. In Hamlen v. Werner 2 it was shown that the restrictions were inserted in pursuance of a general plan for building upon all the lots for the improvement of the neighborhood and for the benefit of all purchasers; and it was held that one who derived title from the vendor after the conveyance under which the defendant claimed might maintain a bill to enforce the covenant contained in the defendant's deed.

In these cases in Massachusetts the general plan, and not the covenant itself, is made the basis of the liability; and yet the court, in some of the cases, at least, considers the obligation as a sort of easement appurtenant to the land, instead of an equitable obligation arising out of the purchase of the property with notice of the purpose to which it has been devoted. The well-known Columbia College cases 3 in New York suggest that relief is granted upon the theory that there is an easement upon the land of a grantee in favor of the land of any other; but in these cases also there is the general plan in an agreement between the owners of two tracts of land to devote their lands to a certain purpose, and to exclude all other uses.

It would take too long to follow down the lines of cases in other States, nor is it worth while in a discussion of this kind, on a subject on which so much has been written, to attempt to refer to the cases in the various States. There is a recent decision in New Jersey in which the question arose whether a prior purchaser could maintain a bill against a later purchaser to restrain the violation of a covenant contained in both their deeds. There was evidence of a general plan or purpose in the laying out of the land and imposing restrictions upon the purchasers.1

Vice-Chancellor Green, after reviewing the cases, said:

"The right of the owner of a lot of land to enforce a covenant restrictive of the use of another tract, which covenant has been entered

1 141 Mass. 547 (1886).

2 144 Mass. 396 (1887).

8 Trustees of Columbia College v. Lynch, 70 N. Y. 440 (1877); Trustees v Thacher, 87 N. Y. 311 (1881).

De Gray v. Monmouth Beach Club House Co., 24 Atl. Rep. 388 (1892).

into by an owner of such other tract with the former owner of both, but has not been expressly assigned, depends primarily upon the covenant having been made for the benefit of land embracing said lot. If it has been so made, the benefit of the covenant inures to subsequent purchasers of the land: Coudert v. Sayre, Mann v. Stephens, Western v. MacDermott. [This rule, however, he says,] gives no right of action to a prior against a subsequent purchaser, and some other reason must exist for that class of cases which hold that purchasers and their assigns are entitled to enforce as between themselves a restrictive covenant entered into by first purchasers with a common vendor without reference to priority of title.

...

"The class of cases in which equity has given such relief embraces those involving restrictive covenants entered into with the original owner or owners of a tract, in pursuance of a general plan for the development and improvement of the property, by laying it out in streets, avenues, and lots, adopting some uniform or settled building scheme, regulating the number, location, size or style of houses, or the uses to which the buildings or property may be put.

"The action is held not to be maintainable between purchasers not parties to the original covenant in cases in which, —

"1. It does not appear that the covenant was entered into to carry out some general scheme or plan for the improvement or development of the property which the act of defendant disregards in some particular. Sheppard v. Gilmore, 57 L. J. Rep. N. s. Ch. 6; Dana v. Wentworth, 111 Mass. 391; Beals v. Case, 138 Mass. 140.

"2. It does not appear that the covenant was entered into for the benefit of the land of which complainant has become the owner. Sharp v. Ropes, 110 Mass. 381; Keates v. Lyon, L. R. 4 Ch. App. 418; Jewell v. Lee, 14 Allen, 145; Renals v. Cowlishaw, 11 Ch. D. 866.

66 3. It appears that the covenant was not entered into for the benefit of subsequent purchasers, but only for the benefit of the original covenantee and his next of kin. Master v. Hansard, 4 Ch. D. 718. See Nottingham Brick Co. v. Butler, 15 Q. B. D. 261; Collins v. Castle, 36 Ch. D. 243; Renals v. Cowlishaw, 9 Ch. D. 125.

'4. It appears that the covenant has not entered into the consideration of the complainant's purchase. Renals v. Cowlishaw, 9 Ch. Div. 125, s. c. 11 Ch. Div. 866; Master v. Hansard, supra; Keates v. Lyon, supra. "5. It appears that the original plan has been abandoned without dissent, or the character of the neighborhood has so changed as to defeat the purpose of the covenant, and to thus render its enforcement unreasonable. Duke of Bedford v. Trustees, 2 Myl. & K. 552; Sayers v. Collyer, 28 Ch. D. 103; Trustees v. Thacher, 87 N. Y. 311; Ammerman v. Deane, N. Y. Ct. App. 30 N. E. Rep. 741; Page v. Murray, 46 N. J. Eq. 325; Roper v. Williams, Turn. & R. 18; Peek v. Matthews, L. R. 3 Eq. 515. See German v. Chapman, 7 Ch. D. 271.”

Quoting the cases we have already cited, the Vice-Chancellor

says:

"The law deducible from these principles and the authorities applicable to this case is, that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues, and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to, and to have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.

"The right of action from this would seem to be dependent as much on the fact of the general scheme as on the covenant, a very important consideration in a case in which the question arises whether certain threatened acts are in violation of the covenant, if any ambiguity exists as to its scope and meaning."

This, we think, will be found to be a true statement of the law relating to this subject, and one which sums up the results to be gathered from the previous cases. It calls attention to the fact that the principle of assignment of covenant is not applicable to prior purchases, and shows that it is only in cases where there is a general plan that the rights and liabilities are conferred upon all purchasers alike. The decision also shows that the right of action is based upon the agreement expressed or implied in the plan rather than upon the covenants in the deeds, and makes the nature and purpose of the scheme important in determining the meaning of the contract.

The idea of a general plan will also throw light upon the question whether when a man has sold a number of lots subject to restrictions he is at liberty to sell others without restrictions, or to use the remainder of the property himself in a manner incon sistent with the restrictions. Supposing the vendor to make no covenant with respect to the land he retains, is he free to use that as he pleases while all the land he sells is subject to restrictions? Have the various purchasers a remedy against one another, and none against the vendor? If the vendor has a right as against previous purchasers to sell a lot free of restrictions, how is it that

if he sell it subject to restrictions the previous purchaser acquires a right to enforce the covenant? And if there is such a right against a purchaser, why not against the vendor? It is not as easy to answer all these questions as to ask them; but it would seem that in the absence of an express contract the obligation of the vendor, as well as that of the purchasers, depends on the existence of a general plan made known to purchasers, and entering into the consideration of the purchases. It is certainly not true that the mere sale of lots subject to restrictions binds the vendor to keep or convey the remaining lots subject to the same restrictions. It may well be that he places the restriction upon the use of land sold for the very purpose of giving to his own lot the exclusive right with respect to that use, as, for example, the use for the purposes of an hotel, or it may be that it is intended that only a part of the tract shall be devoted to such uses as make the restrictions desirable. In the absence of a contract, the vendor cannot be held to have bound himself to observe the same restrictions unless it appears that by the adoption of some plan or scheme with reference to the whole tract he has devoted it all to the same purpose, and purchases have been made upon the faith that such purpose would be carried out. It is always a question of fact whether it was the intention of the vendor to make the covenant appurtenant to the land, and give the purchasers a remedy against one another;1 and if it appears as a fact that the lots were sold pursuant to a plan made known to the purchasers, by which the whole tract was to be subject to the same restrictions, then the vendor will not be at liberty to sell any part of it free of the restrictions. It would seem from the language of the court in the case last cited that unless all the land is put up for sale at once it will require strong proof to subject the remaining land to the restrictions. "If," the court says, "the owner sells all the land, it is evidence of an intention to benefit the purchasers; if he reserves part of it, there may be a question as to that part. If all the lots are put up for sale, it is no matter if they are not sold the first time. There are two lines of cases, those where there has been only a sale of part of the property; and those where the whole has been put under a building scheme. It is a question of fact, and very material, whether the owner reserves a part for himself."

1 Spicer v. Martin, 14 Ch. App. 12; Nottingham Patent Brick & Tile Co. v. Butler, 16 Q. B. D. 778.