Austerberry v Corporation of Oldham (1885) 29 Ch.D. 750
COVENANT TO REPAIR, DEDICATION TO THE PUBLIC, TOLLS, TURNPIKE ROAD, HIGHWAY REPAIRABLE BY THE INHABITANTS AT LARGE, STREET
Facts
A conveyed to some trustees a piece of land as part of the site of a road intended to be made and maintained by the trustees. In the conveyance, there was a covenant that the trustees would make the road, keep it in good repair and allow access to it subject to tolls. The piece of land conveyed was bounded on both sides by lands belonging to A. The trustees made the road, which afforded the necessary access to A’s adjoining lands. A then sold his adjoining lands to the plaintiff and the trustees sold the road to the defendants. Both parties had taken with notice the covenant of repair. The defendants declared the road a street which under s. 150 Public Health Act 1875 rendered it repairable by the inhabitants at large. The plaintiff resisted this declaration alleging that the road was and had always been a road repairable by its owners.
Issues
(1) Could the plaintiff enforce the covenant against the defendants?
(2) Was the road dedicated to the public and thus, repairable by the inhabitants at large?
Decision/Outcome
(1) The plaintiff could not enforce the covenant against the defendants because, although equity could prevent or punish the breach of negative covenants which restricted the user of freehold land, it could not compel an owner to comply with positive covenants entered into by his predecessors in title.
(2) An individual cannot, without a legislative authority, dedicate a road to the public if he charges tolls for the user.
(3) The mere fact that a number of persons grouped in a company for making and maintaining the road, erected bars and charged tolls, did not make the road a “turnpike road” which as such was dedicated to the public.
Thus, despite the fact that the covenant was unenforceable, the road was not repairable by the public at large within the meaning of s. 150 Public Health Act 1875, but by its owners.
Updated 21 March 2026
This article accurately summarises the facts, issues, and outcome of Austerberry v Corporation of Oldham (1885) 29 Ch D 750. The core common law rule established by this case — that positive covenants do not run with freehold land at law and cannot be enforced against successors in title — remains good law in England and Wales. The rule was confirmed by the House of Lords in Rhone v Stephens [1994] 2 AC 310, which explicitly declined to overrule Austerberry and affirmed that only negative covenants can run in equity under the Tulk v Moxhay principle.
Readers should be aware that reform of this area has been under active consideration for some time. The Law Commission recommended abolition of the rule in its 2011 report Making Land Work: Easements, Covenants and Profits à Prendre (Law Com No 327), proposing a new statutory scheme of ‘land obligations’ to replace the existing rules on restrictive and positive covenants. As of the date of this note, no legislation implementing those recommendations has been enacted, and Austerberry therefore continues to represent the law. Students should note that various judicial and statutory workarounds exist in practice (such as chains of indemnity covenants, the use of leasehold structures, and rights under the Contracts (Rights of Third Parties) Act 1999), but these do not alter the underlying rule. The points in this article concerning dedication of roads to the public and the Public Health Act 1875 are of historical interest only and are not directly relevant to modern highway law, which is now governed principally by the Highways Act 1980.
