dissenting, said:
I do not concur in the opinion of the court. I think the decree should be reversed.
There can be no doubt that the appellee purchased with notice of the covenant in question, because it is set -forth in previous deeds which were duly recorded, and which are links in the chain of his title. Burwell’s Administrator v. Fauber, 21 Gratt. 446; Lamar’s Executor v. Hale, 79 Va. 147. And being thus a purchaser with notice, he ought not to be permitted to use the property to the damage of the appellant, and inconsistently with the covenant of which he had notice.
The case in 2 Blackf. (Ind.), cited in the opinion, was decided before, and is in harmony with, the decision in Keppell v. Bai*566ley, and the New Jersey case, also much relied on, follows that decision. But the case of Keppell v. Bailey is no longer regarded as authority even in England, at least so far as it relates to the effect of notice of a covenant like the one in question. Such is the language of Fry, J., in the recent case of Luker v. Dennis, 7 L. R., Chy. Div., and see all DeMattos v. Gibson, 4 De G. & J. 282; Catt v. Tourle, L. R., 4 Chy. 674.
I think the case is analogous in principle to Hill v. Miller, 3 Paige, 254, decided by Chancellor Walworth, and to Stines v. Dorman, 25 Ohio St. 580, decided in 1874. In other words, the covenant with the appellant ought, in my opinion, to be construed in equity as creating an easement on the unconveyed land, and appurtenant to the land conveyed. See notes to Spencer's Case, 1 Smith’s L. Cas. 145 et seq. (8th Am. Ed.); Goddard on Easements, 2; Stevenson v. Wallace, 27 Gratt. 87.
In Kerr on Injunctions, p. 530, it is said: “The jurisdiction of courts of equity over contracts and covenants is not confined to cases where an action at law can be maintained, but extends to cases where an action at law is not maintainable. It is in many cases a matter of much doubt whether a covenant with respect to the use and occupation of land runs with the land, so as to bind at law an assignee, although assigns be expressly named in the covenant; but covenants controlling the enjoyment of land, though not binding at law, will be enforced -in equity, provided the person into whose hands the land passes has taken it with notice of the covenants. ‘The question,’ said Lord Cottenham, ‘is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.” And on the next page the author says: “A contrary doctrine was laid down by Lord Brougham in Keppell v. Bailey, 2 M. & K. 517, but that case can be no longer considered as an authority.” See also Sugden on Vendors, App. 801, 803.
*567I do not think the covenant is illegal on the ground that it is in restraint of trade. The restraint is not general, but relates to certain enumerated privileges, on a particular parcel of land, and is, in my opinion, reasonable. I do not think the rights of owners of property to deal with it as was done in the present case ought to be fettered and restricted as is done by the judgment in this case. Without, however, entering into any discussion of the question, I content myself with simply referring to Oregon Steam Navigation Co. v. Winsor, 20 Wall. 64; Cowell v. Springs Co., 100 U. S. 57; Stines v. Dorman, supra; and the notes to Mitchell v. Reynolds, 1 Smith’s L. Cas. 756, where the cases are collected.
Fauntleroy, J., concurred in opinion of Lewis, P.
Decree aeeirmed.