Although it
might sometimes seem that the test of the first was whether the
service was of a nature capable of grant, so that if it rested
purely in covenant it would not follow the land, /1/ yet if this
test were accepted, it has already been shown that, apart from
tradition, some services which do follow the land could only be
matter of covenant. The grant of light and air, a well-
established easement, is called a covenant not to build on the
servient land to the injury of the light, by Baron Parke. /2/ And
although this might be doubted, /3/ it has been seen that at
least one well-established easement, that of fencing, cannot be
considered as a right granted out of the servient land with any
more propriety than a hundred other services which would be only
matter of contract if the law allowed them to be annexed to land
in like manner. The duty to repair exists only by way of
covenant, yet the reasoning of the leading cases is drawn from
the law of easement. On the other hand, a covenant by a lessee to
build a wall upon the leased premises was held, in Spencer's
Case, not to bind assigns unless mentioned; /4/ but Lord Coke
says that it would have bound them if it had purported to. The
analogy of warranty makes its appearance, and throws a doubt on
the fundamental principle of the case.
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