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only a good written contract for an easement, which does not happen to satisfy the local law as an instrument of grant, there is created in lieu of a legal easement, what is called an equitable easement, differing little from a legal easement in the layman's view. There is another class of equitable easements which have characteristics as to validity and enforcement similar to those of the class just mentioned, with the exception that they cannot be converted into legal easements through a decree perfecting the legal title. It is this class of equitable easements that will next be discussed.

§ 70. Equitable restrictions on use of land. In selling land in the better residence districts of a city, and especially in opening a new subdivision for sale as residence property of high class, it is generally found advisable to put stipulations in the deeds of conveyance concerning the use of the different lots in some particulars. For instance, a very common provision is that there shall be no building within a certain distance of the street line. Another common restriction is that no trade shall be prosecuted on the premises. Frequently it is stipulated that the buildings erected on the lot shall be of a certain minimum value. Of course all these restrictions have the common purpose of creating and maintaining conditions which make land very desirable for residences. They do not give rise to legal easements, no matter how formal the instrument of creation may be, because they do not provide for rights to use another's land, but contemplate primarily only restriction of the use by others. However, such restrictions will be enforced in equity not only

against the promisor and his successors in interest, but against the world in general, excepting purchasers for value without actual or constructive notice. The consequent equitable rights belong in the same large group of non-possessory rights in land as legal easements.

§ 71. Reasonable restrictions on use are enforceable as equitable easements. It is not merely restrictions in aid of maintaining the residential character of land that will be enforced in this way. Generally any reasonable limitation of use, not against public policy, may be raised as an equitable easement through agreement with the possessor of the servient land. However, the courts of some jurisdictions are not as liberal in permitting them as others. In particular some courts have refused to enforce as equitable easements agreements excluding certain businesses from land, made not for the purpose of promoting the residential desirability of adjoining lots, but to prevent competition with the promisee and his assigns.

One Owen owned all the land in a little town called New Harmony, Ind. He sold a mercantile business to one Taylor and leased him buildings in which to carry it on, agreeing in the lease that Taylor should have the exclusive right for ten years to keep a store in the town. Afterwards Owen leased another house and lot to one Rogers, who underlet to Moffat. Moffat opened a store on this lot and Taylor sued to restrain him. It was held that, whether or not the agreement between Owen and Taylor was a valid contract, Taylor had no equitable rights in the lot leased to Moffat; and therefore could not

get a decree against him (20). The weight of authority, however, sustains the enforceability of similar restrictions as equitable easements, provided the agreement raising them is not void between the parties to it because in unreasonable restraint of trade or in some other respect against public policy (21).

§ 72. Contracts to act affirmatively do not raise equitable easements. It is to be carefully noted that these equitable easements do not include rights to compel a land-possessor to perform some act. They are merely restrictive of the servient owner's user. Rights burdening a possessor of land in that capacity with the duty of some action are not rights good against the world in general, and therefore fall, not in this chapter, but in Chapter III. For example, a covenant to keep a way in repair, made with the owner of the easement by the owner of the servient land for himself, "his heirs and assigns" would bind the promisor and subsequent possessors of the servient land claiming under him, but it would not lay a duty to repair on such other persons as, for instance, an adverse possessor of the servient land.

§ 73. Restrictive agreements limited to bind particular persons only do not raise equitable easements. Nor is a right to restrict the use of particular persons only, as for instance, the promisor and his successors in interest, an equitable easement. Nevertheless, the terms of an agreement which include expressly only certain specified persons, may be construed and enforced as intended to

(20) Taylor v. Owen, 2 Blackf. (Ind.) 301. (21) Hodge v. Sloan, 107 N. Y. 244.

raise a restriction against the world in general. Thus, a stipulation in a lease that the lessee, "his representatives and assigns" shall not sell intoxicating liquors on the premises, ordinarily would be enforced as an equitable restriction against an underlessee or any other occupier who took with actual or constructive notice or did not give value for possession of the land, because evidently such a restriction is intended absolutely to prevent the prohibited use.

§ 74. Duration of equitable easements. A restriction may be limited to a certain duration or to the accomplishment of certain purposes, or may be imposed indefinitely. Of course, however, if the promisor has less than a fee in the servient land, he cannot, without special authority, extend the burden beyond the duration of his estate. Whenever the purposes for which a restriction was imposed upon a lot or tract cannot be accomplished and the enforcement of it will work a great deal of hardship without any considerable benefit resulting to the plaintiff, the courts will no longer exact specific compliance with its terms, but will give damages to the plaintiff for the loss he suffers in lieu of a decree for specific enforcement (22). For instance, if restrictions are imposed with the end of maintaining the residential character of a district, and later the neighborhood becomes permanently devoted to business, with the result that little good can be accomplished by enforcing the restrictions specifically, the courts will not do so, but will allow only money damages for whatever detriment may be shown.

(22) Jackson v. Stevenson, 156 Mass. 496.

§ 75. Equitable easements may be appurtenant or in gross. The benefit of an equitable easement may be secured to a person independently of his possession of any particular land, or it may be intended as an enhancement of the possessory enjoyment of one or more certain lots. In the first case, the right is an equitable easement in gross. In the second case it is an equitable easement or easements appurtenant, and follows the possession of the lots to which it is attached as the benefit of a legal easement appurtenant follows the possession of its dominant tenement. In order, however, that an equitable right of this sort may be appurtenant to a certain lot, it must have a tendency to promote or aid in some way the possessory use of that lot, and there is a conflict of authority as to whether a benefit to a certain business which is carried on upon the lot, by excluding competition on the adjoining lot, is sufficient (23).

§ 76. Creation of equitable easements. No special formality is required to create an equitable easement. The requisites of a valid contract must exist and it is best to put the agreement in writing to escape any difficulty with the statutes of frauds, although some courts hold these agreements not within this statute (24).

SECTION 4. LICENSES.

§ 77. Nature of licenses. With respect to all easements it must be remembered that the acts done are

(23) Held not sufficient in Norcross v. James, 140 Mass. 188. Contra: McMahon v. Williams, 79 Ala. 288.

(24) Trustees v. Lynch, 70 N. Y. 440, 447; Hall v. Solomon, 61 Conn. 476.

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