Huyck v. Andrews

• Decision Date: 12 March 1889
• Citation: 20 N.E. 581,113 N.Y. 81
• Parties: HUYCK v. ANDREWS.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 81

20 N.E. 581

HUYCK

v.ANDREWS.¹

Court of Appeals of New York.

March 12, 1889.

Appeal from supreme court, general term, Third department.

Action for breach of covenant, brought by Andrew T. Huyck, administrator, against Thomas M. Andrews. Judgment for plaintiff, and defendant now appeals to this court.

N. C. Moak, for appellant.

Eugene Burlingame, for respondent.

EARL, J.

In March, 1880, the defendant conveyed to Maria W. Huyck, plaintiff's intestate, by what is commonly known as a ‘full-covenant deed,’ certain land situate in the town of Coeymans, in the county of Albany, which, as described in the deed, contained the whole of Hawneycroix creek within its boundaries. Prior thereto Amos Briggs had received a deed of adjoining land on the east side of the creek, which conveyed to him with the land an easement as follows: ‘The right to the use of the whole of the waters of the said Hawneycroix kill or creek; also the right to erect and maintain a dam across said creek, and to connect same to the opposite bank thereof, at such place as the dam now is, and to extend the same by an embankment or otherwise from the bank at the water's edge to the high bank or hill west thereof; and the right also, from time to time, to go onto and upon the land on the opposite side of said creek, for the purpose of erecting and maintaining said dam or dams, and of using thereof the land for that purpose.’ Upon the land thus conveyed to Briggs there was a paper-mill, and there had been erected a dam across the creek, to the westerly side thereof, and he and those under whom he held had used the waters of the creek for the purposes of that mill for many years. Subsequently to the conveyance to Mrs. Huyck, Briggs entered upon the land, and built an embankment westerly from the edge of the creek to the high bank upon her land. Afterwards she brought this action for the breach of the covenants contained in her deed by the existence and use of the easement which Briggs had in the land conveyed to her. She recovered, and the defendant has appealed to reverse her judgment. He claims that the easement owned by Briggs was open, visible, and well known to Mrs. Huyck at the time she took her deed, and that, therefore, the covenants in the deed do not protect her against it. It is true that she knew that the paper-mill and dam across the creek were there, and that the waters of the creek had been used for many years for the purposes of the mill. But it does not appear that she knew the full extent of Brigg's easement, or that she had any knowledge whatever that he had any paramount right to the exclusive use of the waters of the creek, or to maintain his dam where it was located as high as he wished. But, even if she had such knowledge, that fact furnished no defense to this action.

The deed entitled her to a perfect title to all the land which it purported to convey, free from any incumbrance thereon, and it is no defense to her action that at the time she took it she knew of some incumbrance or some defect in the title. Proof of such knowledge would be quite important in an action brought by her grantor to reform the deed, but, as a defense to an action upon the covenants contained in the deed, it is of no importance whatever. That the covenant against incumbrances is broken by an outstanding easement of any kind is perfectly well established by the authorities in this state, and there is no hint in any of them that knowledge by the grantee of the existence of the easement at the time of the conveyance makes any difference. An ‘easement’ is an interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another. An ‘incumbrance,’ within the terms of the covenant against incumbrances, is said to be ‘every right to or interest in the land, to the diminution of the value of the land, but consistent with the passage of the fee by the conveyance,’ (Prescott v. Trueman, 4 Mass. 628;) and the breach of such a covenant takes place at the instant the conveyance is made.

There is in this state one exception to the rule that the existence of an easement constitutes a breach of the covenant against incumbrances, and that is in the case of a highway. It was held in Whitbeck v. Cook, 15 Johns. 483, that it is not a breach of the covenants that the grantor was lawful owner of the land, was well seised, and had full power to convey; that part of the land was a public highway, and was used as such; and that decision has ever since been regarded as the law in this state. It was based upon the peculiar nature of highway easements, and the general understanding with reference to them. SPENCER, J., writing the opinion, said: ‘It must strike the mind with surprise that a person who purchases a farm through which a public road runs at the time of purchase, and had so run long before, who must be presumed to have known of the existence of the road, and who chooses to have it included in his purchase, shall turn around on his grantor and complain that the general covenants in the deed have been broken by the existence of what he saw when he purchased, and what must have enhanced the value of the farm. It is hazarding little to say that such an attempt is unjust and inequitable, and contrary to the universal understanding of both vendors and purchasers. If it could succeed, a flood-gate of litigation would be opened, and for many years to come this kind of action would abound. These are serious considerations, and this court ought, if it can consistently with law, to check the attempt in the bud.’ These reasons are not applicable to other easements, and the rule of that case has not been applied to any other. While there was not in the deed there under consideration any covenant against incumbrances, yet the ratio decidendi is equally applicable to such a covenant, and since that decision it has always been understood in this state that such a covenant is not broken by the existence of a highway.

In McMullin v. Wooley, 2 Lans. 394, it was held that the right to take water by means of a pipe laid beneath the ground, from a spring on the premises conveyed, constituted a breach of the covenant against incumbrances.

In Roberts v. Levy, 3 Abb. Pr. (N. S.) 311, it was held that a covenant entered into between owners of adjoining city lots, for themselves and all claiming under them, to the effect that all buildings erected upon the lots should be set back a specified distance from the street on which the lots fronted, constituted an incumbrance upon the lots to which it applied, and, if subsequentlyconveyed by deed containing the usual covenants against incumbrances, a breach of the latter covenant arises the instant the deed is executed.

In Rea v. Minkler, 5 Lans. 196, it was held that the existence and use of a private right of way over the granted premises was a breach of warranty; and Blake v. Everett, 1 Allen, 248;Russ v. steele, 40 Vt. 310; and Wetherbee v. Bennett, 2 Allen, 428,-are to the same effect.

In Scriver v. Smith, 100 N. Y. 471, 3 N. E. Rep. 675, where the owner of land upon a stream conveyed the same with a covenant of quiet enjoyment, and subsequently an owner below, under and by virtue of a paramount right, raised the height of a dam upon his land, and thereby flooded the land conveyed, it was held that there was substantially an eviction and a breach of the covenant.

In Mitchell v. Warner, 5 Conn. 497, it was held that a pre-existing right in a third person to take water from the land conveyed is a breach of a covenant against incumbrances.

In Morgan v. Smith, 11 Ill. 194, it was held that an easement authorizing one to dam up and use the water of a branch running over the land conveyed, and to use the water of a spring upon it, is a breach of the covenant against incumbrances.

In Medler v. Hiatt, 8 Ind. 171, there was a conveyance of land with covenants against incumbrances, through which there was a stream of water, and at the time of the conveyance there was across the creek, a short distance below the land conveyed, a dam which backed the stream up so as to overflow a large quantity thereof. The action was brought upon promissory notes given for the purchase price of the land. The defense set up was breach of covenant against incumbrances. To this defense the plaintiff replied, interalia, that the defendant when he purchased the land knew of the existence of the dam, and of the right to flow back the water, and to this reply the defendant demurred. The demurrer was overruled, and upon appeal the judgment upon the demurrer was reversed. The court said: ‘It is conceded that the action of the court in overruling the demurrer...