The opinon of the court was delivered, by
Lowrie, C. J.In 1814, Drosddorf and Roberts bought the corner lot from Alexander Henry subject to a perpetual rent, and with the condition written in this deed, that they, their heirs *297and assigns, should not erect any building on the hack part of it higher than ten feet; Henry being then the owner of the lot adjoining on the south. The corner lot afterwards passed successively to five different owners, the last of whom is the defendant Martin, and in all the deeds the same condition is repeated; so that Martin himself in 1858 purchased on these express terms. Of the adjoining lot, Alexander Henry died seised, and in 1851, his testamentary trustee conveyed it to the plaintiff Clark ; and the rent reserved on the corner lot by Henry was purchased by Martin in 1860. Our question is, has Clark as owner of the adjoining lot, any such right to the condition or terms imposed upon Martin’s title as entitles him to claim in equity that Martin shall he compelled to observe them ? We think he has.
In a proceeding in the common law form it would be necessary to inquire into the form in which the right is reserved, in order to decide whether it should be sued for as a condition, or a covenant, or as a simple contract; but in the equity form of proceeding we inquire only into its substantial elements; what duty does it assure, and to whom ?
Here the duty of the defendant is so plain that one may read it running ; it is clearly inscribed on every link of the chain of his title to the lot. He took his title expressly on the terms already briefly mentioned. He was not to erect on the back part of his lot any building higher than ten feet, afterwards changed to eleven. To whom then does he owe the duty ? No one doubts that it is to the grantor who reserved or imposed the duty, and to his heirs and assigns.
But did the grantor reserve this duty to himself, his heirs and assigns, as a mere personal duty, and thus retain in himself, or them, the vain right of saying that lot is not mine, but the owner is subject to my pleasure in the mode of building upon it ?
Common sense forbids this, and the law would not allow itself to be troubled with such vain engagements. It is not pretended that this restriction was intended for the benefit of the ground-rent reserved by Henry. And such a pretence would be entirely unreasonable ; for a restriction that diminishes the value of the lot and of the houses that may be erected on it, cannot increase the security of the rent issuing out of it.
We have no other resource, therefore, than to attribute the restriction to the purpose of benefiting the adjoining lot, then owned by Henry.
Common sense cannot doubt its purpose, and thus it becomes plain that the duty created by the condition and restriction is a duty to the owner of the adjoining lot, whoever he might be.
Very plainly, also, it is a duty that admits the right of the owner of the adjoining lot to have the privilege or appurtenance of light and air over the defendant’s lot, and that admits this to *298be so far subject or servient to that, that the buildings on this must, for the benefit of that, be so limited in height, according to the condition in the deeds. :
So such stipulations are always regarded when a form of remedy is selected and allowed, which can admit of treating the case according to the very substance of the contract. '
The remedy asked for here is just such a one, under the law authorizing the courts in equity form, to prevent or restrain “the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.” And so abundant are the instances in the administration of equity wherein this very duty has been specifically enforced, that a reference to the cases may very well stand instead of a discussion of' the question: 2 Ashmead 221, 335; 2 Harris 186; 3 Paige 246, 254; 2 Phillips 774; 15 Simons 377; 7 Jurist (1861, Rolls Court), 11; 2 Mylne & K. 552; 11 Paige 414; 8 Id. 351; 2 Duer 614-23; 23 Barb. 153; 23 Law Reporter 401 (Whitney v. Union Railway Co. 1860, Superior Court of Mass.); 23 Eng. L. & Eq. R. 584 ; 9 Simons 196.
It wasjobjected at the argument that this remedy applies only as a means of compelling an observance of the 'terms involved in a general-plan of lots;' and this element actually exists in about half of the cases1 just cited ; yet they are not decided on that’ consideration; ■ It .is not because a plan is deranged that the court interferes, but because rights are invaded, or about to be; and this fact may exist in a plan of two'lots, as well as in one of two hundred. The plan often furnishes the proof of the terms on which sales were made; but the fact of the alleged terms is as effective when proved by a single deed as when proved by a plan.
It is objected, also, that the restriction relied on here, is in the form of a condition, and that it was released by the release of part of it. But this, if true, in such a case, would apply only where a forfeiture of the defendant’s estate for a breach of the condition is-demanded; Equity does not so treat the case where mere obedience is demanded. And here, at the very time when part of the right Avas released, the right to the remainder was expressly continued or renewed. The right is very clearly defined,"and it is no more inconsistent with the grant of the fee simple than any other right of easement is, and the plaintiff is entitled to a decree in his favour. The breach of the contract and the amount of iniury done are plainly sufficient for this: 12 Harris 159.
It appears by the evidence that, since this suit was brought, the defendant, in disregard of the suit, has gone on and erected the building. This was very Avrong, and puts the court into a very painful position. Our decree in equity is not so severe as *299a judgment at law would be in ejectment for a breach of a valid condition in such a case, for it does not forfeit, the house and lot: 8 Pick. 284. But the abatement of part of a house is so unusual, and so seldom ■ that persons put themselves into such a position as to make such a decree necessary, that we have great reluctance in so decreeing, and have hopes that the parties may come to some reasonable terms. However, our duty is very plain,- and the defendant, by disregard of his contract, and by recklessness building, pending the suit, has brought the evil on himself. Under the general relief clause, the plaintiff can have a decree of abatement, without any amendment to his bill, by reciting the fact of the erection pending the action.
Let the decree be drawn in favour of the plaintiff, with costs.
Read, J., dissented.