a. all subsequent possessors are bound by the servitude, just as they bound by an easement. However, for a person other than the original covenantee to enforce the benefit, in some jurisdictiions the beneficiary must show that he acquired title to his land from the covenantee, either before or after the covenant was made. In this sense, vertical privity may be required for enforcement of the benefit in equity
5. Burdens the land and not the estate
a. in this respect it is like an easement
6. Property or contract?
a. most modern courts and writers see them as property rights which has been helped along by courts calling them negative easements
b. Property theory facilitates the holding that, after the original promisor has conveyed the burdened land, the promisor canot be sued on the convenant
c. Concomitantly, the original promisor may not enforce restrictions after he has conveyed the benefited land
e. Property theory also supports the holding that, if the govt condemns the burdened land, the govt must pay the benefitted owner damages for loss of the servitude
a. the remedy for a breach of a real covenant is damages in a suit at law. The remedy for a breach of an equitable servitude is an injunction or enforcement of a lien in a suit in equity
b. If, in the US, a court acting in equity were to grant damages for breach of a covenant in any case where an injunction could have been awarded, even though damages would not be allowed at law, the real covenant would disappear -- what does this mean?
i. use of land harming another in the use and enjoyment of their land, and
a) negligence (unintentional) or
b) intentional and unreasonable
c. What is unreasonable?
i. Efficiency approach -- gravity of harm from activity outweighs its utility -- this is the R2d position -- see below
ii. threshold analysis
a) when the harm gets too big it will be a nuisance -- but what is too big?
d. R2d position?
i. it's a nuisance if the gravity of the harm is greater than the utility or if harm to the individual is serious and the financial burden of compensation would not make continuation of the business unfeasible
a) if you can compensate without going out of business then it is a nuisance
e. When is an act intentional?
i. intentional in the law of private nuisance when the person whose conduct is in question as a basis for liability acts for the purpose od causing it, or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct
a) creates or maintains
f. court found an intentional nuisance so it did not have to deal with negligence
g. the court here appears to be using a threshold analysis