In 1934 there was created by deed passed before the Royal Court a covenant prohibiting any building whatsoever on a six foot strip along the whole of the eastern part of the land now owned by the Company parallel to the boundary between the two pieces of land. That servitude was created in favour of the land now owned by the Trustees and against the land now owned by the Company.

    During 1973 and 1974 the Company erected on its land a building comprising two shops and dwelling accommodation (hereinafter called “the building”) which extends eastwards across the whole width of the six foot strip except for some three inches. Prior to the erection of the building no deed extinguishing the restriction had been passed before the Royal Court, and the position remains that no such deed has since been passed.

    At the time of the erection of the building, the Company believed that it had obtained the verbal consent of the Trustees to the removal of the restriction, and further believed, relying upon the conduct of the agent of the Trustees, that they had shown that they were prepared to pass the necessary deed to remove the restriction. The Trustees subsequently denied that any consent had ever been given to the removal or that there had been any such conduct as alleged, and refused to pass a deed of arrangement for that purpose, except on terms unacceptable to the Company.

    Unable to sell the building because of the uncertainty of the legal position in respect of the building restriction, the Company brought a representation to the Court containing two alternative requests:

1.    that the Court should declare that the building restriction had been extinguished, on the ground that it was designed for a particular purpose which never came into existence;

2.    that the Court should, in all the circumstances, apply the doctrine of proprietary estoppel and declare that the Trustees were estopped from enforcing the restriction as regards the building.

    The Trustees opposed both the Company’s requests. Furthermore, they asked the Court to order that that part of the building which had been constructed on the strip in breach of the restriction should be removed.

    That action came before the Court as at present constituted in November 1977, and by consent confined itself at that time to a consideration only of the two requests of the Company.

    In a judgment delivered on 26th January, 1978, this Court rejected both requests. As regards the second, and principal request, the Court held, firstly, that the doctrine of proprietary estoppel was not part of the law of Jersey and so could not be applied, and secondly, that even if the doctrine was part of the law of Jersey the Court would not, on the facts, have applied it to the circumstances of this case. We therefore ordered that the hearing should proceed on the request of the Trustees to order the Company to remove that part of the building which had been built on the strip.

    At the resumed hearing, to which this judgment relates, counsel for the Trustees maintained their request for an order for removal of that part of the building which had been built on the strip, but counsel for the Company submitted that notwithstanding that the Court had held that the doctrine

    Having heard arguments on the first question, namely, whether the Court had power to award damages as an alternative to the grant of an injunction to demolish, we went on to hear evidence and arguments on the second question, on the assumption, which we made for the purposes of the hearing of this case, that the answer to the first question was in the affirmative.

    We now deal with the first question, and we begin by repeating certain considerations to which we referred in our earlier judgment. We are concerned here with a servitude “réelle ou prédiale”, owed by the property of the Company to the property of the Trustees. The law of Jersey applies the well-known maxim: “Nul servitude sans titre” to all servitudes, except those which are “légales” or “naturelles”. The case of Nicolle v. Starck (1858), which is reported in Le Gros, Droit Coutumier de Jersey (1943), at 17, demonstrates the application of that maxim, and the well-established rule: “promesse à héritage ne vaut”. There, the plaintiff sought to charge the defendant’s property with a servitude by causing to be registered in the rolls of the Royal Court a signed agreement to grant a servitude. The defendant resisted on the following grounds (inter alia):

“Que l’objet dudit accord est de grever le fonds appartenant au défendeur d’une servitude ce qui ne peut se faire au moyen d’une pièce sous seing privé mais seulement par un contrat régulier passé devant justice. Que par la loi et coutume de ce pays une personne ne peut être contrainte à donner effet à une promesse ou un

The Court dismissed the action on the grounds:

“Considérant que l’accord dont il s’agit contient des conventions qui affectent l’héritage; que conséquemment le défendeur ne peut être contraint de consentir à l’entérinement demandé”.

    A servitude can, of course, be created or extinguished other than by an express agreement between the parties. It can, for example, be created by implication (see Le Feuvre v. Mathew, 1973 J.J. 2461), and, as stated by Le Gros, at 21, it can be extinguished by “confusion”, by “renonciation”, by expropriation, and by non-user for forty years, to which we may add, by destruction.

    What, however, is clear from the authorities is that, although the Royal Court is a court of equity, it cannot order the creation or extinguishment of an interest in land arising out of an agreement; in other words, an agreement to create or extinguish an interest in land is not specifically enforceable. The authorities on this matter were fully discussed in the judgment in Symes v. Couch, 1978 J.J. 119, and we do not think it necessary to repeat them. The only course open to the Court in such a case is, where the circumstances so warrant, to order the recalcitrant promisor to pay damages, and this the Court can undoubtedly do even where the agreement does not include a penalty clause. These observations apply to an agreement to create or extinguish a servitude, which is an interest in land.

    It must follow, it seems to us, that if the Court cannot specifically enforce an agreement to create or extinguish a servitude where one of the parties to the agreement refuses to pass the necessary deed in due

    Counsel for the Company argued, however, that he was asking the Court to declare, not that it had the power to extinguish the servitude, but that it had the power to award damages as an alternative to enforcing the covenant not to build.

    The effect of the exercise of such a power would be to create or extinguish a servitude by order of the Court against the wishes of the owner of the land thus affected. Counsel for the Company argued that in this case he was not asking the Court to extinguish the servitude which prohibits any building on the six foot strip, but only to legalise the continued existence in perpetuity of that part of the building which at present is in breach of the covenant, and therefore the servitude on the rest of the strip which has not been built upon would remain in force. We do not accept the distinction which counsel sought to draw. If the building had extended along the whole length of the strip, then the Company’s request to legalise the position by an award of damages instead of the enforcement of the covenant would, in practical terms, have been nothing more nor less than a request to order the extinguishment of the whole of the servitude, against the wishes of the Trustees, upon payment of damages. That is the principle which we are being asked to adopt, and the fact that in this particular case, if we were to accede to counsel’s argument, a part of the servitude would remain does not alter the principle.

    We are being asked to legalise the breach of a servitude. If we acceded to that request, we would, it seems to us, be exercising a power to vary the conditions of the servitude against the wishes of the Trustees. We can see no difference between that and the exercise of the power to create or extinguish a servitude, for the power to vary implies the power to create or extinguish.

    The argument that the Court has the power, in an appropriate case, to legalise a breach of proprietary rights by ordering the payment of damages instead of requiring the breach to be remedied is attractive. It is easy to envisage a case where a property owner by mistake builds a house which very slightly extends beyond his boundary. The prejudice to his neighbour may be minimal, but the cost of rectifying the breach may be high. In Corbin v. Lee (1934), 12 C.R. 348, the plaintiff complained (inter alia) that his neighbour’s house and its foundations “seriously” encroached on his land and asked the Court to order the demolition and removal of that part of the building which was on his land. The Court found that the house and foundations did encroach, but instead of granting the prayer of the plaintiff ordered the parties to pass a contract of rectification at the expense of the defendant, and further ordered the defendant to pay fifty pounds by way of compensation. There is nothing to suggest in the Order of the Court that it was made with the plaintiff’s consent, although in the subsequent deed of rectification passed before the Royal Court it was stated that the parties “sont convenus”, following the judgment of the Court and in consideration of the sum specified, that the gable of the house, and the gutters and pipes, would be permitted to remain as originally constructed. If the Order of the Court was made with the consent of the plaintiff, then the case is of no significance. If it was made without his agreement, then it is a precedent of some significance.

    Counsel for the Company naturally relied upon this precedent, as he was fully entitled to do, as support for his contention that the Court had the power to order the payment of damages in substitution for the removal of the offending part of the building. Unfortunately, the Court in that case gave no reasons for its decision (and, as we have said, it may have been arrived at with the consent of the parties) nor was counsel able to cite any other similar precedent.

    There are, on the other hand, a number of cases where the Court has insisted on a breach of proprietary rights being remedied. For example, in Gavey v. Mauger (1720), reported in Le Gros at page 262, the defendant, who had constructed a wall near his boundary with the plaintiff’s property without leaving the required relief, was ordered to set the wall back to its correct position. In Tostevin v. Lobb (1959), 252 Ex. 127, 220, the defendant who had built a garage in breach of a restriction that nothing should be built which was more than four feet high was ordered to demolish that part of the garage which was in breach of that restriction.

    Counsel entirely accepted those precedents, for he agreed that the normal remedy where something had been done in breach of a restriction was the removal of the offending building or obstruction. He argued, however, that, as in England so in Jersey, the Court had a power to apply the equitable remedy of damages instead of the strict legal remedy, where there were exceptional circumstances, that is to say, where it would be inequitable to apply the strict law, as for example where the plaintiff had by his own conduct contributed to the breach, as was claimed had occurred in the present case.

    As we have said, apart from the case of Corbin v. Lee, where no reasons were given for the decision, we have not been able to discover any case where the Court awarded damages instead of the strict remedy, nor indeed any case where it appears from the record that the present argument of counsel has even been raised as a defence. We can only assume, therefore, that Corbin v. Lee is an isolated case, and in our view the decision there runs counter to the fundamental principles of Jersey law to which we have already referred as to the manner in which a servitude can be created, varied or extinguished, and there is no power in the Court to create, vary or extinguish a servitude against the wishes of the owner of the land thus affected. It follows that whatever may

    Our view is entirely consistent with the finding in our previous judgment that the doctrine of proprietary estoppel is not part of the law of Jersey, but nevertheless we have come to our view with some regret, because, as we have said, it is possible to visualise exceptional circumstances where a strict legal enforcement of the law would create injustice. However that may be, the law of Jersey relating to interests in land has developed as it has for valid historical reasons, and is now so well entrenched that it is not open to the Courts to change the fundamental principles.

    We therefore find, on full consideration and for the reasons we have given, that we have no power to award damages in substitution for ordering the removal of that part of the building which is in breach of the covenant.

    Having reached this conclusion, we have gone on to consider whether it is desirable that we should examine in detail in this judgment the law of England on the matter, so as to enable us to express a view as to whether, if the law of Jersey had been the same (which we have found not to be the case), we would have regarded the present case as one where damages should be awarded in substitution for the strict enforcement of the breach of the restriction. We have decided that such detailed examination is not necessary, but as we heard considerable argument on the matter we think it desirable to review the position briefly.

    In England the normal remedy for the breach of an express negative stipulation is an injunction restraining acts in breach of it. That position was clearly set out by Lord Cairns in Doherty v. Allman (1878), 3 App. Cas. 709, at page 719. But, as stated in Preston & Newsom’s Restrictive Covenants affecting Freehold Land, 5th ed., at page 140:

“. . . the doctrine of Doherty v. Allman does not apply to mandatory injunctions in its full width; it is tempered into a judicial discretion based upon whether granting the injunction would produce a fair result”.

    In Osborne v. Bradley, [1903] 2 Ch. 446, Farwell, J. at page 450 explained the exercise of this discretion:

“Where there are negative covenants which are binding on the defendant the Court has, speaking generally, no discretion to consider the balance of convenience or matters of that nature but is bound to give effect to the contract between the parties unless the plaintiff has by his own conduct . . . become disentitled to sue. Contractual obligations do not disappear as circumstances change, but a person who is entitled to the benefit of a covenant may, by his conduct or omission, put himself in such an altered relation to the person bound by it, as makes it manifestly unjust for him to ask a Court to insist on its enforcement by injunction.”

In Lindsay Petroleum Co. v. Hurd (1874), LR 5 PC 221, Sir Barnes Peacock, referring to the doctrine of “laches”, described at page 239, the test to be applied:

“Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct or neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material.”

    We have applied these principles to the findings to which we came in our previous judgment as to the conduct of those respectively representing the two parties, and our conclusion is that to grant the remedy sought by the Trustees would produce a

    To order a defendant to demolish that part of a building which has been erected in breach of a restriction in circumstances where no complaint was made by or on behalf of the plaintiff at the time of construction is a weighty matter, but every such case must depend upon all the special circumstances and even if we had had a discretion, we would still have decided that the circumstances in this case required the demolition of the offending part of the building if a fair result were to be achieved.

    We therefore order that that part of the Company’s building which has been built on the strip of land in breach of the covenant shall be removed. We will wish to hear the parties as to the date by which the work is to be completed.