The case thirdly held in that context, a somewhat uncertain description of lands which was capable of being rendered certain by extrinsic evidence was sufficient to enforce the covenant.

In 1940 Mrs S, one of the covenantees, sold her land ("Low Meadows") to Smith, which incorporated Snipes Hall Farm Ltd in 1944 as his agricultural tenant.

In Autumn 1946 the Eller Brook burst its banks and flooded Smith and Snipes Hall Farm land.

Because the covenant ran with the land, under section 78 Law of Property Act 1925 it could be enforced by the covenantee and successors in title.

There is in Lancashire a river called Eller Brook, which is liable to overflow its banks and flood the adjoining land.

It follows, therefore, that if the original landowner with whom the agreement was made had himself cultivated the fields, and suffered damage by the breach, he could recover from the board.

The damage has been suffered partly by the man who purchased the land, but principally by the tenants, and the question is whether they can sue on the contract.

I mean the principle that a man who makes a deliberate promise which is intended to be binding, that is to say, under seal or for good consideration, must keep his promise; and the court will hold him to it, not only at the suit of the party who gave the consideration, but also at the suit of one who was not a party to the contract, provided that it was made for his benefit and that he has a sufficient interest to entitle him to enforce it, subject always, of course, to any defences that may be open on the merits.

that the courts, ever since 1368, have held that a covenant made with the owner of land for its benefit can be enforced against the covenantor, not only by the original party, but also by his successors in title.

that the Courts of Common Law in the seventeenth and eighteenth centuries repeatedly enforced promises expressly made in favour of an interested person; (See Dutton v Poole,[4] approved by Lord Mansfield in Martyn v Hind[5]); (iii.)

[8]) But this is an elusive test which does not explain all the cases, and it involves the trustee being made a nominal party to the action either as plaintiff or defendant, unless that formality is dispensed with, as it was in Les Affréteurs Réunis Société Anonyme v Leopold Walford Ltd.[9] The truth is that the principle is not so limited.

Whilst it does not include the maintenance of prices to the public disadvantage, it does cover the protection of the legitimate property, rights and interests of the third person, although no agency or trust for him can be inferred.

In re Schebsman[11]); or the right of a man's servants and guests to claim on an insurance policy, taken out by him against loss by burglary which is expressed to cover them; cf Prudential Staff Union v Hall.

If a successor in title were not allowed to sue it would mean that the covenantor could break his contract with impunity, for it is clear that the original owner, after he has parted with the land, could recover no more than nominal damages for any breach that occurred thereafter.

It was always held, however, at common law that, in order that a successor in title should be entitled to sue, he must be of the same estate as the original owner.

This limitation, however, was, as is pointed out in Smith's Leading Cases, capable of being "productive of very serious and disagreeable consequences," and it has been removed by s. 78 of the Law of Property Act 1925, which provides that a covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title, "and the persons deriving title under him or them" and shall have effect as if such successors "and other persons" were expressed.

That section is no doubt, as Lord Greene has said, confined to cases when the person seeking to take advantage of it is a person "within the benefit" of the covenant or agreement; (See White v Bijou Mansions[14]); but, subject to that limitation, there is no reason why the section should not be given its full scope, just as Lord Dunedin was prepared to give full scope to its narrower predecessor, s. 5 of the Real Property Act 1845.

It is true that the agreement did not describe the lands by metes and bounds, but it did give a description of them which was capable of being rendered certain by extrinsic evidence; and that is sufficient.

The decision of the House of Lords, in the East Suffolk case,[18] shows that, in the absence of a contract, a catchment board is under no duty to exercise its powers with efficiency or dispatch or at all; but it also shows that if it does exercise its powers it must use reasonable care not to injure persons likely to be affected by its operations.

The decision of the House of Lords does show, however, that, in considering whether the board broke its duty in tort, it is material to inquire into the expense of the works which it is said they ought to have constructed.

An adjacent landowner must not be too critical if the board prefers thrift to efficiency, I suppose on the principle that he should not look a gift horse in the mouth and must be prepared to take it with some faults.