Scriver v. Smith

• Citation: 3 N.E. 675,100 N.Y. 471
• Parties: SCRIVER and others v. SMITH.
• Decision Date: 24 November 1885
• Court: New York Court of Appeals

100 N.Y. 471

3 N.E. 675

SCRIVER and others

v.SMITH.¹

Court of Appeals of New York.

Filed November 24, 1885.

W. P. Cantwell, for appellant, Eli B. Smith.

Edward C. James, for respondents, William W. Scriver and others.

EARL, J.

On the twenty-fifth day of March, 1875, the defendant conveyed to the plaintiffs a parcel of land situate in Franklin county, described in the deed as follows:

‘Commencing at a point forty rods south and forty rods east from the northwest corner of said lot No. 44, in the east line of a forty-acre lot formerly owned by Philip Bryant, and at the south-west corner of land formerly owned by George W. Douglass, running from thence south, in the east line of the Bryant lot, to the land leased or owned by the Northern Railroad Company; thence east, in the north line of said railroad, to the west bounds of land formerly owned by John Mitchell and now owned by Henry Mitchell; thence northerly, in said Mitchell's line, to the bridge or highway; thence westerly, in the center of the highway, until it strikes the line dividing the land of C. J. Morgan from that of the party of the first part; thence westerly, along said line, to the place of beginning,-being all of the land owned by the party of the first part south of the highway, and up to the north line of the railroad, excepting and reserving the old house now standing on said land in the sand-bank west of the river, with the appurtenances, and all the estate, title, and interest therein, of the said parties of the first part.’

And the deed contained a covenant in the following language:

‘And the said Eli B. Smith does hereby covenant and agree to and with the said parties of the second part, their heirs and assigns, that the premises thus conveyed, in the quiet and peaceable possession of the said parties of the second part, their heirs and assigns, he will forever warrant and defend against any party whomsoever lawfully claiming the same or any part thereof.’

It is alleged in the complaint that the parcel of land described contained a grist and flouring mill, with the water-power and mill privileges appurtenant; that it was known as the John Burk Grist & Flouring Mill property, and had been used, in connection with the water-power afforded by the river mentioned in the deed, as a grist and flouring mill for many years; that its value consisted almost wholly in its use for that purpose; that the plaintiffs have not been permitted peaceably to occupy and enjoy the premises or the mill property, privileges, and water-power; but that, on the contrary, one Douglass, at the time of the conveyance, was the lawful owner of a certain mill-dam in the river below the premises conveyed to the plaintiffs, and of the right to raise the height of such dam eight and one-half inches above the height at which it was maintained at the time of the conveyance to the plaintiffs; and that, having such right, he did raise his dam to such height, and did thereby cause the water of the river to set back upon the premises conveyed to the plaintiffs, and to flood a portion thereof, and to impede the discharge of water from their wheel-pit and raceway, and the operation of their mill, and did thus evict them from a portion of their premises, deprive them of the use and enjoyment thereof, and cause them other damage; and it is also alleged that, after due notice to the defendant, and with his approval, in order to test the right of Douglass so to raise his dam, the plaintiffs brought an action against him, in which he established his right so to raise and maintain the dam. By his demurrer to the complaint the defendant admitted all these allegations of fact; and the sole question for our determination is whether the facts alleged showed a breach of the covenant contained in defendant's deed; his contention being that the facts failed to show such an eviction from the premises conveyed, or some portion thereof, as was absolutely essential to the maintenance of the action.

There can be no dispute that the covenant for quiet enjoyment can be broken only by an eviction, actual or constructive, from the premises conveyed, or some portion thereof. This is not a mere technical rule having no foundation in principle or justice; but it has its foundation in the reason that the covenantee who has obtained possession should not be permitted to recover for breach of the covenant for a mere failure or defect of title so long as he is left in possession, as he may never be disturbed, and thus may never suffer damage. The covenantor should therefore be held liable, not only in all cases coming technically within the letter of the rule, but also in all cases falling really within its reason. It has therefore been held that where the covenantee has not been able to obtain the possession of the premises conveyed on account of a paramount outstanding title, and thus has in fact never been ousted from the possession, he may yet maintain an action for the breach of the covenant. Shattuck v. Lamb, 65 N. Y. 499. It has also been held that where there is an outstanding title to an easement in the premises conveyed which mateially premises conveyed which materially and interferes with the use and possession of some portion thereof, the covenant is broken, although there is not a technical, physical ouster from the actual possession of any portion thereof. Bouv. Law Dict. 543; Rea v. Minkler, 5 Lans. 196; Adams v. Conover, 87 N. Y. 422;Clark v. Estate of Convoe, 38 Vt. 469;Russ v. Steele, 40 Vt. 310;Lamb v. Danforth, 59 Me. 322.

In this case Douglass had a paramount right to an easement to set back the water of the river and to flood the land conveyed, and in the exercise of that right he did cause a portion of the land conveyed to be flooded and covered with water, and of such land the plaintiff was deprived of the use and, really and practically, of the possession, and thus there was substantially an eviction. Suppose Douglass, in the exercise of an easement owned by him, had flooded the whole of plaintiffs' land to the depth of one foot or ten feet, thus destroying the water-power, and depriving the plaintiffs of any beneficial use or possession of the land, could it be maintained that there had been no eviction, and therefore no breach of the covenant for quiet enjoyment. To hold that it could, would be to disregard the reason of the rule, and to sacrifice substance for the mere form of words in which the rule is generally expressed. So far as one permanently floods the land of another, there is a physical invasion of the land and a practical ouster of the possession thereof; and, in a real sense, such land is taken from the owner; and it has been held. Pumpelly v. Green Bay Co., 13 Wall. 166;Eaton v. Railroad Co., 51 N. H. 504,Story v. New York Elevated R. Co., 90 N. Y. 185.

Our argument may receive some re-enforcement also from the history of real estate law. Anciently, by the feudal constitution, if the vassal's title to the fee which he had received at the hands of his lord, and for which he was to render certain duties, failed, he had the right to call upon his lord, in a proper form of action, for other land of equal value. The modern personal covenants contained in deeds, which are not more than 200 years old, are a substitute for this his covenants, damages for the other lands, the grantee recovers, upon his covenants, damaages for the land from which he is ousted, or to which...