Austerberry v Corporation of Oldham (1885) 29 Ch D 750 (CA)

Facts

• The case involved the enforceability of a positive covenant to construct and maintain a road included in an initial land conveyance, with the right to impose tolls.
• The plaintiffs, successors to the original landowner, sought to enforce the covenant against the defendants, who acquired the land with notice of the covenant.
• The defendants had declared the road a public street under Section 150 of the Public Health Act 1875, arguing the road should be repairable at public expense.
• Plaintiffs contended the road was private, always maintained by its owners per the original covenant, and not a public highway due to the collection of tolls.
• The core dispute addressed whether the burden of the positive covenant to maintain the road bound subsequent owners, and whether charging tolls prevented the road’s dedication to the public.

Issues

1. Whether a positive covenant to repair in a land conveyance runs with the land and binds successors in title.
2. Whether the imposition of tolls on a road prevents it from being considered dedicated to the public and repairable by public authorities.
3. Whether public use of a road (despite tolls) is sufficient to create a public highway maintained at public expense.

Decision

• The court held that the burden of a positive covenant, such as a covenant to repair, does not run with freehold land and therefore cannot bind successors in title.
• Only negative covenants, which restrict uses of land rather than require positive acts, may be enforced in equity against subsequent owners.
• The imposition of tolls was considered incompatible with the dedication of the road to public use; a road charging tolls is not considered dedicated to the public.
• As a result, the responsibility for maintenance remained with the private owners and not the local authority.
• The court clarified that neither knowledge of the positive covenant nor statutory provisions altered its non-enforceability against successors.

Legal Principles

• Positive covenants requiring specific actions (such as repairs) are personal to the original contracting parties and do not bind successors in title.
• Negative covenants, which restrict the use of property, may run with the land and be enforced against future owners in equity.
• The imposition of tolls precludes the possibility of dedication of a road to the public; public highways require free, unrestricted public access.
• Mere public usage of a private road does not dedicate it as a highway; intention and continued private control are determinative.
• Legislative changes, such as Section 79 of the Law of Property Act 1925, do not render positive covenants enforceable against successors.

Conclusion

Austerberry v Corporation of Oldham (1885) 29 Ch D 750 established that positive covenants do not run with land and clarified that roads charging tolls cannot be considered dedicated to the public. This decision set clear limits on the enforceability of contractual obligations tied to land ownership and provided foundational guidance on the requirements for road dedication and public highway status.