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[1971] 1 QB 77 (CA). The claimant bought a plot of farmland, in respect of which the vendor had previously entered into an agreement to maintain fences next to the adjoining moorland. The defendant kept sheep on the moorland, which strayed onto the defendant's land, through holes in the fences which she (the defendant) had failed to maintain, and caused damage. The claimant was awarded damages by the county court, but the CourtOfAppeal found for the defendant. The question at issue was whether the claimant was in breach of a duty to maintain the fence, which would make her actions, and not those of the defendant, the legal cause of the damage. She argued that the obligation to maintain the fence was not a RestrictiveCovenant, because it imposed expenditure on her. As a positive convenant, it was not capable of running with the land and being enforceable against her. The court of appeal decided that the obligation was not a covenant at all, it was an easement.
This is a rather odd decision, because easements are generally held not to be enforceable against successor in title if they impose positive obligations. However, keeping fences in good order is an essential part of getting along with one's neighbours; after all, everyone's land adjoins someone else's land. Nevertheless, the right to have a fence maintained remains one of the few positive obligations that are capable of running with the land.
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