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
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.
(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?
(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.
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