Shayler v Woolf

 Shayler v Woolf

LAND; Sale of Land, Other Land

CHANCERY DIVISION

ROXBURGH J

29, 30, 31 JANUARY, 1, 5, 6 FEBRUARY 1946

Waters and Watercourses – Sale of land – Contemporaneous agreement for supply of water – Vendor owner of adjacent land – Covenants by vendor to supply water from pump on vendor’s land for use of purchaser in connection with house on conveyed land and to keep pump in repair – Whether benefit of agreement assignable to subsequent purchaser – Whether covenants relating to land – Law of Property Act, 1925 (c 20), s 78.

By a contract dated 4 July 1938, Mrs W agreed to sell a piece of land adjacent to her own premises to Mrs P, who covenanted to build thereon a bungalow for which she required a water supply. The contract contained a clause that on completion the vendor should enter into a contract to supply water on certain terms. The property was conveyed on 30 July 1938, and on the same day an agreement was entered into between Mrs W and Mrs P, whereby Mrs W agreed to supply from a pump on her premises water for the use of Mrs P in connection with the bungalow to be erected on Mrs P’s premises. Cl 1 of this agreement provided: “[Mrs W] will henceforth supply to [Mrs P] from the aforesaid pump situate on the premises of [Mrs W] and so long as such pump shall continue to produce the same a regular and continuous supply of water for use in respect of all domestic purposes in connection with the said bungalow.” By cl 2, Mrs P was to pay 10s a year to Mrs W for the water supply. Cl 4 provided: “[Mrs W] hereby covenants with [Mrs P] for and with intent to bind so far as may be herself and her successors in title that she and they will henceforth maintain and keep the said pump and the pipes taps and apparatus thereto in good and proper working order and repair and so long as such pump shall continue to produce the same do all such things as may be necessary to insure a constant supply of water.” The agreement contained an arbitration clause and was determinable at the option of either party on 3 months’ notice in writing at any time after the expiration of 10 years from the date of the agreement. After the outbreak of the war, the bungalow was unoccupied and Mrs W turned off the water supply. When the agreement was made, in 1938, the pump was producing water but was not in a good state of repair. In 1942, owing to the need for repairs, the rising main of the installation got out of order. Since the necessary repairs would have been expensive at the time, it was considered more economical to construct a new pump. The old pump was, therefore, dismantled, a new bore-hold was sunk and a new pumping apparatus was installed. There would have been no difficulty in connecting the bungalow to the new installation, but this was not done. On 17 August 1944, Mrs P conveyed the property and the bungalow, together with the benefit so far as assignable of the water supply agreement, to S. S requested Mrs W to continue the supply of water to the bungalow, but she refused to do so. S thereupon brought an action for specific performance of the agreement. It was contended by Mrs W that the benefit of the covenants contained in the water supply agreement had not passed to S because (a) the covenants did not relate to land and therefore the Law of Property Act, 1925, s 78, did not apply to them; and (b) the agreement was one the benefit of which could not be assigned. It was further contended that, even if cl 1 related to land, no action lay because, on the facts of the case, there had been no breach thereof; and cl 4 related not to land but to an incorporeal hereditament (ie, the bundle or rights created by cl 1) and the benefit of a covenant could not run with an incorporeal hereditament:—

Held – (i) the covenant contained in cl 1 of the water supply agreement related to the land of the covenantee and the benefit of the covenant had passed to under the Law of Property Act, 1925, s 78.

(ii) the covenant to keep the pump in repair (cl 4 of the agreement) did not relate to an incorporeal hereditament; it was also for the benefit of the land, and ran with the land under sect 78.

(iii) properly construed, the words in cl 1, “so long as such pump shall continue to produce the same,” meant “so long as such pump shall continue to produce the same if kept in such repair as is required by cl 4.”

(iv) because of Mrs W’s failure to keep the pump in repair, there had been a breach of cl 4 of the agreement, and, upon the true construction of cl 1, there had also been a breach of cl 1.

(v) the burden of the agreement was not to supply the needs of Mrs P and her household but to supply the water required in the bungalow for domestic purposes; moreover, it was limited not with reference to Mrs P.’s occupation of the bungalow but to a fixed term of years. It was, therefore, immaterial to Mrs Was to who was in occupation of the bungalow and the fact that the agreement contained an arbitration clause did not alter the position. Accordingly, the agreement was one the benefit of which could be assigned and which had been assigned.

Notes

It is held that a covenant to pump water on to land of an adjoining owner, and a covenant to keep the pump in repair, are covenants running with the land is enjoying the benefit, within the meaning of the Law of Property Act, 1925, s 78. This is in accordance with the decision in Cooke v Chilcott where it was held that the benefit of a covenant to erect a pump and supply water ran with the land.

On the question of assignability at common law it is argued that if assignment of the contract, which contained an arbitration clause, is permitted it would throw an additional burden on the covenantor, since the arbitration clause would not be enforceable against the assignee. Roxburgh J, however, holds that an assignee claiming the benefit of the covenant could not refuse to comply with an arbitration clause, since to hold the contrary would mean that no contract containing an arbitration clause would ever be assignable.

As to Right to Enforce Covenants, see Halsbury, Hailsham Edn, Vol 29, pp 440–454, paras 646–660; and for Cases, see Digest, Vol 40, pp 302–306, Nos 2600–2626, and Vol 44, pp 9–11, Nos 24–32.

Cases referred to in judgment

Austerberry v Oldham Corpn (1885), 29 ChD 750, 40 Digest 305, 2618, 55 LJCh 633, 53 LT 543.

Cooke v Chilcott (1876), 3 ChD 694, 40 Digest 304, 2614, 34 LT 207.

Grant v Edmondson [1931] 1 Ch 1, Digest Supp, 100 LJCh 1, 143 LT 749.

Cottage Club Estates v Woodside Estates Co (Amersham) [1928] 2 KB 463, Digest Supp, 97 LJKB 72, 139 LT 353.

Aspell v Seymour [1929] WN 152, Digest Supp.

Bonnin v Neame [1910] 1 Ch 732, 2 Digest 365, 336, 79 LJCh 388, 102 LT 708.

Lurcott v Wakely & Wheeler [1911] 1 KB 905, 31 Digest 332, 4757, 80 LJKB 713, 104 LT 290.

Lister v Lane & Nesham [1893] 2 QB 212, 31 Digest 328, 4700, 62 LJQB 583, 69 LT 176.

Action

Action for specific performance of an agreement for the supply of water. The facts and the provisions of the agreement are fully set out in the judgment.

C L Fawell for the plaintiff.

M G Hewins for the defendant.

6 February 1946. The following judgment was delivered.

ROXBURGH J. In May, 1938, Arthur Peacock, who was a builder, took a fancy to a piece of land with a derelict building upon it, which belonged to the defendant, Mrs Dorothy Gladys Irene Woolf, of Shottenden Lodge, Herne Bay. After some negotiation, a contract was made on 4 July 1938, between the defendant of the one part and the wife of Peacock, namely, Iris Ethel Peacock, of the other part, for the sale to her of the said piece of land for £175. She covenanted to demolish the old building and to build a new bungalow, for which she required a water supply. Accordingly, cl 7 of that contract provided that on completion the vendor should enter into a contract to supply water on certain terms, which were subsequently embodied in an agreement which was then in contemplation.

On 30 July 1938, the property in question was conveyed to Mrs Peacock and was mortgaged by her to the vendor to secure the purchase money in manner stipulated for, and on the same date the contemplated water supply agreement was entered into. This is the document upon which this action founded, and it is as follows:

‘An agreement made on July 30, 1938, between [the defendant] of Shottenden Lodge … of the one part and Iris Ethel Peacock … of the other part Whereas the said [defendant] is the owner of the property known as Shottenden Lodge West End Herne Bay aforesaid and the said Iris Ethel Peacock is the owner of property adjacent thereto 􀂭 465􀀉 and the said [defendant] has agreed to supply from the pump on her said premises water for the use of the said Iris Ethel Peacock in connection with the bungalow now in course of erection upon her said premises which are known or intended to be known as [blank] subject to the terms and conditions of these presents [then it was agreed—and this agreement is under seal]: 1. The [defendant] will henceforth supply to the said Iris Ethel Peacock from the aforesaid pump situate on the premises of the [defendant] and so long as such pump shall continue to produce the same a regular and continuous supply of water of wholesome quality for use in respect of all domestic purposes in connection with the said bungalow known as [blank] now in course of erection upon the land of the said Iris Ethel Peacock such water to be conveyed from the said pump through mains or pipes to be constructed by the said Iris Ethel Peacock as hereinafter provided. 2. The said Iris Ethel Peacock shall pay to the said [defendant] a yearly sum of 10s payable yearly in advance the first of such payments to be made on July 3, 1938, for such water supply as aforesaid. 3.

The said Iris Ethel Peacock shall have full right ad liberty to lay mains and pipes so far as may be necessary for carrying and conducting the said water supply … in or under the adjoining property of the said [defendant] with the liberty and right of entering thereon from time to time for the sole purpose of inspecting maintaining cleansing and repairing renewing and enlarging such mains pipes valves manholes and surface boxes so far as aforesaid the said Iris Ethel Peacock doing as little damage as possible to the surface of the said adjoining property and the crops (if any) for the time being growing thereon and making good any damage done. 4. The said [defendant] hereby covenants with the said Iris Ethel Peacock for and with intent to bind so far as may be herself and her successors in title that she and they will henceforth maintain and keep the said pump and the pipes taps and apparatus thereto (but except the mains pipes or apparatus layed or fixed or to be layed or fixed for carrying and conducting the said water supply from the said pump to the property of the said Iris Ethel Peacock as aforesaid) in good and proper working order and repair and so long as such pump shall continue to produce the same do all such things as may be necessary to insure a constant supply of water of a quantity and quality hereinbefore mentioned and will from time to time comply with or enforce all statutory provisions for the time being in force for guarding against fouling of water and will not at any time during the continuance of this agreement do or suffer to be done upon the said adjoining land any act or thing which may in any way diminish interfere with or damage the purity or flow of water to or carried by the mains or pipes hereinbefore mentioned. 5. This agreement may be determined (without prejudice to the rights of either party for any antecedent breach thereof), at the option of either party

 (a) In the event of a main water supply being brought within such a distance of the said property of the said Iris Ethel Peacock as will enable her to connect up with the same at a reasonable cost or

(b) At the expiration of a period of 10 years from July 30, 1938. Such option shall be exercised by the party desiring so to do giving to the other three months’ notice in writing at any time after the happening of either of the said events and at the expiration of three months from the date of such notice this agreement shall save as aforesaid determine and cases in all respects. 6. On the determination of the said agreement the said Iris Ethel Peacock shall (if so required by the said [defendant] remove the said mains pipes valves manholes surface boxes and apparatus at her own cost doing as little damage as possible and making good any damage done. 7. Any dispute arising under or out of this agreement shall be referred to a single arbitrator to be appointed in default of agreement by the president for the time being of the Surveyors’ Institute.’

I have read the whole of that agreement because some argument has been addressed to me on, I think, every single clause which it contains. It is to be observed that nobody suggests that at the expiration of ten years from 30 July 1938, the agreement cannot be determined.

On 17 August 1944, Mrs Peacock, who by this time had become Mrs Lawton, conveyed the property and the new bungalow which by this time had been completed and was known as Peartree Cottage, together with the benefit so far as assignable of the said agreement dated 30 July 1938, to the plaintiff. It has been contended before me most strenuously that the benefit of this water supply agreement was incapable of assignment to the plaintiff. I have heard arguments both upon the general principles of assignability and upon the Law of Property Act, 1925, s 78. I will deal first with the Law of Property Act, 1925, s 78, which is as follows:

‘(1) A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and shall have effect as if such successors and other persons were expressed.’

Now, which, if any, of the covenants in the water supply agreement relate to land of the covenantee? The land, of course, is the land upon which the bungalow is built. In my judgment, both the first covenant and the fourth 􀂭 466􀀉 covenant so relate, and it is unnecessary to consider whether any other covenants do.

I have very considerable guidance here from what Cotton LJ said (29 Ch D 750, at p 778), in the Court of Appeal in Austerberry v Oldham Corpn:

‘The there is the case of Cooke v. Chilcott, which was before MALINS, V.-C., where he likewise expressed an opinion that the covenant ran with the land. He did not base his opinion on the cases I have mentioned, but the case was one in which there was very little, if any, difficulty as regards the

benefit of the covenant touching and relating to land of the plaintiff, because it was to erect a pump and pump water from the land of the defendant’s predecessor in title to the land of the plaintiff’s predecessor in title, and there was reference to the benefit of the land, which showed that that was the object of the covenant.’

I think counsel for the defendant was almost prepared to concede that, in the light of that statement, cl 1 of this water supply agreement must be one relating to the land of the plaintiff; but whether he conceded it or not, I so hold. As regards cl 4, counsel for the defendant has strenuously contended that it is not. His argument, as I understand it, is that cl 4 does not relate to the land of the plaintiff, but to the bundle of rights created by cl 1, which he says is an incorporeal hereditament. Having put forward that proposition, he proceeded to cite Grant v Edmondson, to which I will refer in a moment, and concluded his submission by saying that I am thereby precluded from holding that cl 4 of this agreement is one which relates to the land of the plaintiff. 

Grant v Edmondson is a decision of the Court of Appeal and, if I thought that it in any way governed the present case, I should follow it at once. But the only materiality of that decision, in my judgment, in the present case is that it held that the benefit of a covenant to pay a rent charge did not run with the rent charge, which is, of course, an incorporeal hereditament, and I have no intention of holding that this covenant runs with an incorporeal hereditament. What I propose to hold and do hold is that, just as the covenant to erect the pump and the covenant to pump water [in Cooke v Chilcott] was said in Austerberry v Oldham Corpn to be for the benefit of the land and to run with the land, so the benefit of the covenant to keep the said pump in repair runs with the land, ie, the land upon which the bungalow is built, and the bungalow on the said land.

If that conclusion is well founded, it becomes unnecessary to consider whether the benefit of the contract (ie, of the water supply agreement) was assignable according to the general principles of the law of contract governing assignability, but as that point been very fully argued before me I propose to express my view upon it.

The water supply agreement was one under which the owner of Shottenden Lodge agreed to supply water for the use of Mrs Peacock, in connection with the particular premises upon the land then being purchased by her from the owner of Shottenden Lodge. It seems to me that the very subject-matter of the agreement points to the possibility of assigning the benefit of it, more especially when the conveyance of the land to Mrs Peacock and the making of the water supply agreement were contemporaneous transactions. There was not anything which the assignee had to do in performance of the agreement during its subsistence beyond paying a small annual sum. Therefore there can be no question whether the assignee could substitute his personal service for somebody else’s personal service. Moreover, the parties in this case did consider the period for which the right was to continue, and they did not limit it by reference to the personal occupation or the ownership of Mrs Peacock, but by a fixed term of years which plainly might have elapsed before Mrs Peacock ceased personally to occupy the bungalow or ceased to own the bungalow. Nor do I think that it can be said that the assignment of the benefit can place any additional burden on the other party to the contract, namely, the defendant. The burden, as I understand it, is not to supply the needs of Mrs Peacock and her household at Peartree Cottage, but to supply the water required there for domestic purposes, and, if that is the burden of the contract, it is immaterial to the vendor who is actually in occupation of the premises. Nor can I accept the argument which has been submitted to me by counsel for the defendant by reference to the arbitration clause. This was that the assignment of the contract would place an additional burden on the defendant, because, whereas  she could enforce the provision for arbitration against Mrs Peacock, she could not enforce that provision against an assignee of Mrs Peacock, and that, therefore, she might be compelled to litigate in these courts instead of going to arbitration; but, in my judgment, Mrs Woolf could have compelled Mrs Peacock’s assignee to go to arbitration had she so desired.

In support of his argument, counsel for the defendant very naturally and properly referred me to Cottage Club Estates v Woodside Estates Co (Amersham), and also to Aspell v Seymour. In the Cottage Club case Wright J said ([1929] 2 KBD 463, at p 466), that the arbitration clause was a personal covenant and could not be transferred; but the facts of that case show, I think, that he meant that the rights under the arbitration clause could not be transferred from the assignor to the assignee without the concurrence of the other party to the contract, and he did not suggest that, if an assignee claimed to take the benefit of a contract under an assignment, he could escape the burden of an arbitration clause of that other party desired an arbitration. In my judgment, he could not. In Bonnin v Neame the question arose whether mortgagees of a share of a dissolved partnership were bound by an arbitration clause. The contention was advanced by Mr Micklem that the mortgagees of the share could not have any better right than their mortgagor. Counsel for the mortgagees countered that the mortgagees were not claiming an account under any right given to them by the partnership deed, but were claiming under the Partnership Act, 1890, s 31(2); and it was on that ground, as I understand it, and on that ground only, that they were held not to be bound by the arbitration clause. I cannot claim Bonnin v Neame as an authority decisive in favour of the view which I am expressing, but I derive comfort from that case because, in my judgment, if the mortgagees had been claiming under the partnership deed and had not been claiming by virtue of some independent statutory right, the decision would almost certainly have been the other way.

Counsel for the defendant referred me to Aspell v Seymour, which is a decision of the Court of Appeal, but I cannot find anything in that case which throws any light at all on the point which I am now deciding, and I am not prepared to hold, in the absence of any authority to that effect—and certainly none has been cited to me—that an assignee claiming the benefit of a contract could refuse to comply with an arbitration clause contained in the contract if the other party to the contract required him to do so. If the argument of counsel for the defendant is sound, I cannot see how any contract containing an arbitration clause, and not expressed in its very terms to be assignable, could ever be assignable, and counsel for the defendant did not point to any way of escape from this far-reaching conclusion. I accordingly reject that argument, and I hold that the benefit of this contract was assignable and was assigned.

I will now describe the pump and the pipes, taps and apparatus thereof, or such of them as appear to me to be material. A rising main had been inserted in a brick-lined well, and a complete sail-driven pump had been installed, part of which was below ground level and the remainder of which (which I will call the working head) was above ground level. At a subsequent date, a bore-hole had been driven downwards from the bottom of te well, no doubt to increase the accessibility of the water; this bore-hole had been lined and down the bore-hole had been passed a suction pipe. But the bore-hole was not driven immediately below the bottom of the rising main, and, accordingly, there was a piece of angular pipe connecting the top of the suction pipe with the bottom of the rising main. Such a method of construction necessarily involved the maintenance of the sides of the well, because otherwise there was no possible means of access to the suction pipe. It is quite true that access to the rising main could have been preserved if a lining to the rising main had been inserted in the well, but this would not have given access to the suction pipe, and there was at the bottom of the well this very sharp bend. Subsequently the brick lining of the well collapsed, and the well was filled up with earth. To anybody who thought about it, it must have been obvious that at some time or another it might be necessary to have access to the rising main or the suction pipe, or both of them, in order to effect repairs, and it must have been equally obvious that this would involve the removal of some, if not all, of the earth which had been put in the well. This was the position at the date of the water supply agreement in 1938. The pump was producing water, but, if at any time it become necessary to repair the rising main or the suction pipe, this could only be done by removing a very considerable quantity of earth and in some way sustaining the sides of the excavation made. Then came the war; Peartree Cottage became empty, and Mrs Woolf turned off the supply of water, which was controlled by a stopcock near by. Then, in 1942, the rising main got out of order.

Mr Hayden, a director of M Mullins Ltd water engineers, made it clear, in his evidence, that if labour had been available there would have been no technical difficulty in clearing the old well and relating it, so far as might be necessary, with concrete cylinders, and then withdrawing the rising main and repairing or renewing the defective part. But it would, undoubtedly, have been a most expensive course, and Mr Hayden advised the defendant that it would be much better and cheaper to drill a new bore-hole altogether. Accordingly, a new bore-hole, 100ft deep, was sunk some 30 yards away from the well that I have described, it was lined with a lining tube, and then a pumping apparatus was installed. The pumping apparatus consisted of the old working head, which was dismantled and removed to the site of the new bore, and a new rising main, plunger rod, suction pipe, and such other parts of the apparatus as functioned below ground level. The value of the old materials thus re-used was greater than the value of the new materials supplied. There would have been no difficulty in connecting Peartree Cottage to the new installation.

When the plaintiff bought Peartree Cottage, which was on 17 August 1944, he naturally wanted some water, but the defendant was not minded to let him have any, not even for the short period which remained before the water supply agreement would have expired according to its terms, if she had exercised her option to give notice thereunder. Accordingly, on 4 December 1944, the plaintiff’s solicitors wrote to the defendant’s solicitors in the following terms:

‘In May last, on behalf of our client, Mr. Shayler, who was then negotiating for the purchase of the above premises from Mrs. Peacock, we wrote you inquiring whether your client Mrs. Woolf was prepared to enter into an agreement with our client for the supply of water, in similar terms to an agreement between your client and Mrs. Peacock dated July 30, 1938. We are instructed that our client has been in correspondence with you client and yourselves in an endeavour to arrive at an amicable arrangement for the supply of water to our client’s premises, but your client has refused to either enter into a fresh agreement or to continue the supply provided for under the agreement of July 30, 1938. Since our letter of May 26, 1944, our client has completed the purchase of the above premises, and in the conveyance to him Mrs. Peacock has assigned the benefit (so far assignable) of the said agreement. We have now in our possession the counterpart agreement of July 30, 1938, and we are satisfied that quite apart from the benefit of the assignment, the supply of water to our client’s premises is an easement which pursuant to the Law of Property Act, 1925, s. 187, enures for the benefit of our client’s land. We have to give you notice that unless we hear from you by Dec. 15 that your client is prepared to continue the supply of water to our client’s premises, our client will take such steps as he may be advised, to enforce his rights.’

On 13 January 1945, the plaintiff’s solicitors again wrote to the defendant’s solicitors:

‘Not having received any reply to our letter to you of Dec. 4, we have, on behalf of Mr. Shayler, taken counsel’s advice, and are proceeding to issue a writ for specific performance of the agreement or damages in lieu thereof. We shall be glade to hear whether you will accept service on behalf of your client.’

On 17 January the defendant’s solicitors replied:

‘We are receipt of your letter of Jan. 13 upon which we are taking our client’s instructions; we will write you further as soon as we have done so.’

On 20 January the defendant’s solicitors wrote:

‘Further to our letter of Jan. 17, we have now seen our client and are instructed to accept service of proceedings on her behalf.’

Accordingly the writ was issued on 1 February 1945.

The allegation in para 6 of the statement of claim is as follows:

‘The supply to the said pump of water of wholesome quality has not failed but the defendant has refused or neglected to supply to the plaintiff from the said pump any water for use in respect of domestic purposes in connection with the said bungalow and to keep the said pump in good and proper working order and repair and to do all such things as may be necessary to ensure a constant supply of water and by reason of such refusal or neglect the plaintiff has suffered damage.’

And then the plaintiff claims (i) specific performance of the said agreement dated 30 July 1938; (ii) a mandatory injunction to compel the defendant to supply water to the plaintiff in accordance with the terms of the said agreement; (iii) damages in substitution for or in addition to the above relief; and (iv) costs.

Turning for a moment to the construction of the water supply agreement, and in particular to cl 1, in my judgment, the words “so long as such pump shall continue to produce the same” must be construed as meaning “shall continue to produce the same if kept in such repair as is required by cl 4”; otherwise the defendant could have relieved herself of that obligation by cutting the rising main, which obviously was not the intention of either party. Those words must, in my judgment, be inserted by necessary implication. This point is only material if I am wrong in holding that the Law of Property Act, 1925, s 78, applies to cl 4, and if I am wrong in holding that the benefit of the water supply agreement is assignable according to the general law of contract; otherwise it is immaterial whether those words are read into cl 1 or not, because, in my judgment, there has been a breach of cl 4, and therefore, except in the event that I have just indicated, it is immaterial whether there has been a breach of cl 1 or not, the measure of damage being the same in either case. In my judgment, however, there has, in fact, been a breach of both cl 1 and cl 4.

Now in treading further along my path, I take as my lantern a portion of the judgment of Cozens-Hardy MR in Lurcott v Wakely & Wheeler. After referring to Lister v Lane Cozens-Hardy MR said ([1911] 1 KBD 905, at pp 913, 914):

‘It was there held by the Court of Appeal, and I see no reason to quarrel with their decision, that the change of circumstances which had arisen could not have been in the contemplation of the parties and that it would not be reasonable to construe the covenant to repair as applicable to that change of circumstances … That being so, it seems to me that we are driven to ask in this particular case, and in every case of this kind, Is what has happened of such a nature that can fairly be said that the character of the subject-matter of the demise, or part of the demise, in question has been changed? Is it

something which goes to the whole, or substantially the whole, or is it simply an injury to a portion, a subsidiary portion, to use BUCKLEY, L.J.’s phrase, of the demised property? In this case the view taken by the official referee and the Divisional Court is the view which commends itself to me, that this portion of the wall, 24ft. in front, is merely a subsidiary portion of the demised premises, th restoration of this wall leaving the lest of the building, which goes back more than 100ft., untouched. The restoration of this wall will not change the character or nature of the building, and I am unable to say that the question differs in any way from that which we should have had to consider if by reason of the elements and lapse of time, say, some rafters in the roof had become rotten, and a corner of the roof gave way so that the water came in. It seems to me that we should be narrowing in a most dangerous way the limit and extent of these covenants if we did not hold that the defendants were liable under covenants framed as these are to make good the cost of repairing this wall in the only sense in which it can be repaired, namely, by rebuilding it according to the requirements of the county council.’

In my judgment, it must have been in the contemplation of the parties, if they thought about it at all, that at some time or another it would be necessary to have access to the rising main, and possibly also to the suction pipe, in order to repair it, and, if so, that the necessary excavations would have to be made. The whole difficulty in 1942 was to get access. Nobody knows what repair would have been needed. It might have been something quite trivial. There is no reason to suppose that the repairs needed would have been very expensive. The bulk of the labour and expense would have been due to excavating in order to get access and to supporting the sides of the excavation, which Mr Hayden thought should be done by inserting concrete cylinders. Therefore it seems to me that it could not be said in this case, as Cozens-Hardy MR said of Lister v Lane, that the change of circumstances which had arisen could not have been in the contemplation of the parties, and that it would not be reasonable to construe the covenant to repair as applicable to the change of circumstances. Again, there is no reason to suppose that the apparatus, after 􀂭 470􀀉 repair, would have been substantially different. The insertion of a concrete cylinder in the well, in lieu of the brick lining which had existed at some stage, though it had apparently collapsed before the date of the grant, would not enable me to say that the repair had changed the character or nature of the apparatus. The whole trouble was that it was plainly much more prudent and much more economical to bore a new hole, using for the new hole the greater part of the old apparatus, rather than to repair the old apparatus, because, and only because, of the difficulty of getting access to that portion of the old apparatus which was below ground level; and, in my judgment, it would be a novel doctrine to hold that such considerations as these should be accepted as a ground for excusing the defendant from performance of her covenant to repair, especially when it was quite simple for her to connect Peartree Cottage to the new bore-hole and the new installation but she declined to do so.

Looking at the facts of this case in the light of the passage which I have read, I hold that there was a breach of the covenant to repair, and if so, there was also a breach of cl 1, because if there are inserted in cl 1, the words which I have held must be inserted, the limitation “so long as such pump shall continue to produce the same” does not protect the defendant, because it only failed to produce the same by reason of her failure to comply with her obligations under cl 4.

Very many questions of law, some of them difficult, have been canvassed in this case, and in view of the small financial value of the subject-matter, these must, I fear, fall very heavily upon the party which is ultimately adjudged to be wrong; I hold that the defendant was wrong, and accordingly I award the plaintiff an inquiry as to damages, which in the result was all that he asked me for, and I order the defendant to pay the plaintiff’s costs.

Judgment for the plaintiff.

Solicitors: Bentley, Taylor & Co (for the plaintiff); Kingsford, Dorman & Co agents for Girling, Wilson & Bailey, Herne Bay (for the defendant).

B Ashkenazi Esq Barrister.

[1946] 1 All ER 471