Rhone v Stephens

Parliamentary Archives,
HL/PO/JU/18/254

Rhone (A.P.) and another (A.P.) (Appellants)

v.
Stephens (Executrix of Mrs M. Barnard, deceased) (Respondent)

JUDGMENT

Die Jovis 17° Martii 1994

Upon Report from the Appellate Committee to whom was
referred the Cause Rhone and another against Stephens (Executrix
of Mrs M. Barnard, deceased) , That the Committee had heard
Counsel as well on Monday the 7th as on Tuesday the 8th days of
February last upon the Petition and Appeal of Ronald John Rhone
and Hazel Grace Rhone of 1 Harbour View, Combwich, Bridgwater,
Somerset, praying that the matter of the Order set forth in the
Schedule thereto, namely an Order of Her Majesty's Court of
Appeal of the 15th day of January 1993, so far as stated therein
to be appealed against, might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Order so far
as aforesaid might be reversed, varied or altered or that the
Petitioners might have such other relief in the premises as to
Her Majesty the Queen in Her Court of Parliament might seem meet;
as upon the case of Jean Stephens (Executrix of Mrs M. Barnard,
deceased) lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side in
this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of Appeal
of the 15th day of January 1993 complained of in the said Appeal
be, and the same is hereby, Affirmed and that the said Petition
and Appeal be, and the same is hereby, dismissed this House: And
it is further Ordered. That the Costs incurred by the Respondent
in this House and in the Court of Appeal be paid out of the Legal
Aid Fund in accordance with section 18 of the Legal Aid Act 1988,
such order to be suspended for four weeks to allow the Legal Aid
Board to object if they wish: And it is also further Ordered.
That the Costs incurred by the Appellants in respect of the said
Appeal be taxed in accordance with the Legal Aid Act 1988.

Cler: Parliamentor:

Judgment: 17 March 1994

HOUSE OF LORDS

RHONE (A.P.) AND ANOTHER (A.P.)
(APPELLANTS)

v.

STEPHENS (EXECUTRIX OF MRS. M. BARNARD, DECEASED)

(RESPONDENT)

Lord Templeman
Lord Oliver of Aylmerton
Lord Woolf
Lord Lloyd
Lord Nolan

LORD TEMPLEMAN

My Lords,

This appeal raises the question of the enforceability of positive
covenants between owners of freehold estates and involves consideration of the
rule in Austerberry v. Oldham Corporation (1885) 29 Ch. D. 750 ("the
Austerberry Case").

The roof which covers Walford House also covers part of Walford
Cottage. Both properties were in common ownership until by a conveyance
dated 27 August 1960 Walford Cottage was sold. The conveyance contained
the following provisions:

"2 It is hereby agreed and declared between the Vendor and the
Purchasers that all easements…