Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500; [1949] 2 All ER 179
Court of Appeal, 3 June 1949 — land covenants, successors in title and contractual liability for drainage works.
A drainage board promised landowners that it would improve and maintain flood defences. When defective banks later failed, a subsequent owner and his tenant could enforce the covenant. The benefit concerned the land itself and extended to people deriving title from the original owner under section 78 of the Law of Property Act 1925.
The agreement and the flooding
In April 1938, Mrs Ellen Smith and ten other landowners entered into a deed with the River Douglas Catchment Board. Their land lay near Eller Brook in Lancashire and was liable to flooding. In return for financial contributions, the board agreed to replace an inadequate outfall, widen and deepen the brook, make good its banks and maintain the works for all time.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Smith acquired Mrs Smith’s land in April 1940. The conveyance expressly included the benefit of the 1938 agreement. Snipes Hall Farm Ltd subsequently occupied the land as his yearly tenant and used it for farming.
The works were substantially completed in 1940, but sections of the banks were inadequate in height and strength. There had been earlier failures, and a serious breach in September 1946 flooded the land to a depth of more than five feet. The company suffered crop damage, while Smith claimed for loss of rent.
Both brought proceedings against the board in contract and tort. Morris J dismissed their claims. They appealed, arguing that the board’s contractual promise was enforceable by them even though they had not been parties to the original deed.
What did the covenant protect?
The central question was whether the covenant benefited Mrs Smith personally or benefited her land in a way that allowed successors to enforce it. Tucker LJ treated the covenant as one touching and concerning the land: successful drainage affected its occupation, use and value by making land previously exposed to flooding suitable for agriculture.
The promise to maintain the works indefinitely also pointed away from a merely personal benefit. Its purpose extended beyond the ownership of the people who signed in 1938. The benefited land did not have to be described with absolute precision in the deed itself, provided its identity could be established by evidence.
Nor did enforcement depend on the board owning adjoining land. The claim sought to enforce the original board’s promise, not to impose a new liability on a later owner of land belonging to it.
Why both the owner and tenant could sue
Section 78(1) of the Law of Property Act 1925 treated a covenant relating to the covenantee’s land as made with the covenantee, successors in title and persons deriving title under them. Smith had acquired the land with the benefit of the agreement, and the company held its tenancy under him. The statutory wording allowed each to enforce the covenant in respect of the loss affecting their own interest.
The company’s position mattered because it held a tenancy rather than the same estate as the original landowner. The reference to persons deriving title under the covenantee covered that situation. The benefit was therefore not confined to successive freehold owners.
Somervell LJ also explained that the drainage scheme operated as a whole. A landowner could benefit from work on banks elsewhere along the brook; the promise was not restricted to the particular stretch immediately beside that owner’s land.
Denning LJ discussed wider principles concerning promises intended to benefit third parties, including section 56 of the 1925 Act. Those observations should be distinguished from the Court’s conclusion that these claimants could enforce a covenant benefiting their land. The decision did not establish that every intended third-party beneficiary could sue on a contract.
Breach and the Court’s order
The board’s contract required reasonable care and skill in carrying out and maintaining the works. The evidence showed that the banks were not adequately constructed and that the deficiencies caused the flooding. The board could not answer its contractual obligation merely by relying on the limits of its statutory duties or on a shortage of funds.
The Court of Appeal allowed the appeal and held the board liable in contract. Assessment of the claimants’ damages was referred to an official referee, and they received their costs in both courts. The Court did not fix a damages figure in this judgment. Because the contractual claim succeeded, it was unnecessary to decide the separate claim in tort.
The distinction the case illustrates
The case concerns the transmission of the benefit of a covenant: the right to enforce the board’s undertaking passed with the benefited land. The board remained the original party owing the obligation. It is therefore not authority that the burden of a positive covenant automatically binds subsequent landowners.
Source: Original Court of Appeal report, [1949] 2 All ER 179–190.
