
    Andrew T. Huyck, as Administrator, etc., Resp’t, v. Thomas M. Andrews, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 12, 1889.)
    
    Í. Deed—Covenant against incumbrances—How broken.
    The covenant against incumbrances contained in a deed is broken by an outstanding incumbrance of any kind, except the existence of a highway. Knowledge by the grantee of the existence of the easement at the time of the conveyance does not afiect his right of action.
    2. Same—Incumbrance defined.
    An incumbrance within the terms of the covenant against incumbrances is, 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.
    3. Same—When covenant broken.
    The breach of such a covenant takes place at the instant the conveyance is made.
    4. Same—Easement defined.
    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.
    5. Same—Effect of covenants in deed.
    The covenants in a deed protect the grantee against every adverse right, interest or dominion over the land, and he may rely upon them for his security.
    6. Same—Evidence as to damage—Admissibility of.
    The defendant was sued for breach of the covenant of seizin and warranty contained in a conveyance of real property made to the plaintiff. Defendant tried to have the deed reformed by inserting the reservation of' certain water rights theretofore conveyed to one Briggs, on the ground of mistake. The said Briggs, who owned the water-rights constituting the alleged breach of covenant, was called as a witness, and in reply to the following question by defendant’s counsel: “ What is the fair value of your dam in connection with your mill?” answered, “It is worth $10,000— the dam and water privilege." The plaintiff’s counsel moved to strikeout this answer as “incompetetent and not the proper basis of damages,” thereupon defendant’s counsel stated that his “object in offering the evidence was to show that if this dam and stream was worth $10,000, that defendant was a fool and plaintiff was a knave in paying $4,000 for this water privilege together with fifteen acres of land." Held, that the evidence was properly stricken out.
    
      Appeal from a judgment of the supreme court, general term, third department, affirming a judgment in favor of the plaintiff entered on the verdict of a jury rendered at a-circuit.
    
      N. G. Moak, for app’lt; Eugene Burlingame, for resp’t.
    
      
       Affirming 1 N. Y. State Rep., 597.
    
   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 water 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 on to 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. Afterward 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. Truman (41 Mass., 620); and the breach of such a cove..nant 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 John., 483) that it is not a breach of the covenants that the grantor was lawful owner of the land, was well seized, 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 incumbi’ances.

In Roberts v. Levy (3 Abb. Pr. [N. S.], 311) it was held, that a covenant entered into betweezi owners of adjoining city lots for themselves azid all claiminguzzder 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, cozzstituted an izicumbrance upon the lots to which it applied, and if subsequently conveyed by deed contaizzing the usual covenazzts against incumbrances, a breach of the-latter covenant azises the instant the deed is executed.

In Rea v. Minkler (5 Lan., 196) it was held that the ex-istezzce azzd 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. Steel (40 Vt., 310), and Wetherbee v. Bennett (2 Allen, 428), are to the same effect.

In Scriver v. Smith (100 N. Y., 471), whez'e 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 paz-amount 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 iizcumbrances.

In Morgan v. Smith (11 Ill., 194) it was held that an-easement authorizing one to dam up and izse 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 inter alla, 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, raises the main question in the case. And in support of that ruling it is insisted that as the appellant received a deed for the lands with full notice of the dam, and the right to continue it, the law presumes that he took the conveyance subject to the incumbrance. The rule of decision on this subject as evinced by various authorities is, to some extent, unsettled. None of the authorities, however, sustain the position that mere notice ho the vendee, at the time he receives his deed, of an existing incumbrance, excludes it from the operation of an express covenant against incumbrances. * * " * The plaintiff’s reply contains nothing from which a contract lelative to the easement can be inferred. It is true the defendant knew of the incumbrance, but mere notice of it floes not indicate even an intent to relinquish any remedy he might have under the covenants in his deed.”

In Hovey v. Newton (7 Pick., 29), the action was covenant upon a lease of water works and buildings, with the whole control of the water in the pond, except the right which one Bangs had to take water in logs to his garden, and a similar right reserved to the lessor; and the court "held that paroi evidence was not admissible to prove that in the intention of the parties to the lease, there was likewise an -exception of the right which the county of Worcester had •exercised for more than twenty years of occasionally diverting part of the water for the purpose of cleansing the •county gaol, and which diversion was well known to the parties at the time of • making the lease.

In Mohr v. Parmelee (43 Supr. Ct. [J. & S.], 320), a party wall was wholly on one of two contiguous lots of land yet subject to appropriation and use, for all the purposes of a party wall, by the proprietor of the other, by reason of a prior grant, and it was held that it constituted an incumbrance upon the land on which it stood; that when a title is incumbered by such an easement, a right of action immediately accrues, and that whether the covenantee had or .had not knowledge or notice of its existence is immaterial, both as regards his right of action and the question of damages.

■ In 2 G-reenleaf on Evidence, section 242, it is said, “A public highway oyer the land, a claim of dower, a private right of way, a lien by judgment or by mortgage or any other outstanding elder and better title is an incumbrance, the existence of which is a breach of this covenant. In these and the like cases, it- is the existence of the incumbrance which constitutes the right of action, irrespective of any knowledge on the part of the grantee, or of any eviction of him.”

In 2 Dart on Vendors and Purchasers (6 ed., 886), the following language is used: “Although the fact of the purchaser having notice of defect, cannot prevent the covenants for title from extending to it, since extrinsic evidence is inadmissible for the purpose of construing a deed, yet in an action to rectify the covenant, that fact may be used as the basis of an inference that it could not have been the intention of the parties that the covenant should include a defect, of which both parties were equally aware.” To the same effect are the following authorities: Beach v. Miller, 51 Ill., 207; Barlow v. McKinley, 24 Iowa, 70; Gerald v. Elley, 45 id., 322; Butt v. Riffe, 78 Ky., 352; Burk v. Hill, 48 Ind., 52; Kellogg v. Malin, 50 Mo., 496.

In Mott v. Palmer (1 N. Y., 564), the action was to recover damages for breach of the covenant of seisin because the grantor did not, at the time of the coveyance, own certain fence rails constituting part of a fence, and Bronson, J., writing one of the opinions said, “That paroi evidence was inadmissible to control the legal effect and operation of the deed, is too plain a proposition to be disputed. If the plaintiff had been told at the time, that Brown owned the rails, and more, if the rails had been expressly excepted by paroi from the operation of the grant and covenant, it would have been no answer to the action. A deed cannot be contradicted in its legal effect, any more than it can in its terms.”

To support the contention of the appellant, his counsel has placed much reliance upon the cases of Kutz v. McCune (22 Wis., 628) and Memmert v. McKeen (112 Penn. St. R., 315. In Kutz v. McCune it was held that an easement obviously and notoriously affecting the physical condition of the land at the time of its sale, is not embraced in the general covenant against incumbrances. ■ In Memmert v. McKeen it was held that incumbrances are of two kinds: First, such as affect the title; and second, such as affect only the physical condition of the property; that where incumbrances of the former class exist, the covenant is broken the instant it is made, and it is of no importance that the .grantee had notice of them when he took the title; that where,-.however, there is a servitude imposed upon the land which is visible to the eye, and which affects not the title, but the physical condition of the property, it is presumed that the grantee took the property in contemplation of such condition, and with reference thereto. We do not. yield assent to these authorities. They have no sanction in any of the cases decided in this state, and have no» adequate foundation in principle or reason. They open to-litigation upon paroi evidence, in every action for the breach of the- covenant against incumbrances caused by the existence of an easement, the question whether the grantee knew of its existence; and in every such case the protection of written covenants can be absolutely taken, away by disputed oral evidence. We think the safer rule is to hold that the covenants in a deed protect the grantee against every adverse right, interest or dominion over the land, and that he may rely upon them for his security. If open, visible and notorious easements are to be excepted from the operation of covenants, it should be the duty of the grantor to except them, and the burden should not be cast upon the grantee to show that he was not aware of them. The security of titles demands that a grant made without fraud or mutual mistake shall bind the grantor according to its written terms. It should not be incumbent upon the grantee to take special and particular covenants against visible and apparent defects in the title, or incumbrances upon the land; but it should be incumbent upon the grantor, if he does not intend to covenant against such defects and incumbrances, to except them from the operation of his covenants. The distinction which is attempted, to be made between incumbrances which affect the title,, and those which affect the physical condition of the land conveyed, is quite illusory and unsatisfactory. Easements not' only affect the physical condition of the land, but they affect and impair the title. The owners of them have an interest in, and dominion over, the servient tenement, which frequently may largely impair its usefulness and. value. The rule contended for would operate very unjustly,, and would be quite difficult to administer in many cases.. In this case, while the grantee knew of the existence of the-dam and of some use of the water, she did not know of the right to extend the dam from the edge of the water to her-high land on the west side of the creek, nor did she know of the right Briggs had to use the entire water óf the-stream.

We are, therefore, of opinion that Mrs. Huyck was entitled to the protection of the covenant against incumbrances.

The defendant alleged in his answer that there was a. mutual mistake, in that the conveyance by the defendant-to her was not made subject to the easement owned by Briggs; and by way of counterclaim he prayed relief that ;the deed be reformed. The issue thus tendered was tried and found against him. Upon the trial, he called Briggs as a witness, and he was asked this question: “What is the fair value of your dam in connection with your mill?” "This was objected to by the plaintiff “as no measure of damages in this suit,” and the objection was overruled. The witness answered: “It is worth $10,000, the dam and water privilege.”

Then plaintiff’s counsel moved to strike out the answer as incompetent and not a proper basis of damages,” and the motion was denied. Defendant’s counsel then stated that his “object in offering the evidence was to show that if this dam and stream was worth $10,000 that defendant was a fool, and plaintiff was a knave in paying $4,000 for this water privilege together with fifteen acres of land.” The judge then granted the motion, and the testimony was .stricken out, and defendant’s counsel excepted. It is now -claimed that this evidence was improperly stricken out.

Both parties were permitted to give evidence as to the value of the easement in connection with the land conweyed, and the rule for estimating plaintiff’s damages adopted by both parties was the difference between the value of the land without the easement and its value with ■the easement as an incumbrance thereon; and there was but little variation in the estimates of the witnesses. It was shown by competent evidence that if the deed to Mrs. Huyck had conveyed a perfect title to all the land described without the easement, it would have been worth $4,000, and with the easement $800 less. That evidence was pertinent, both on the question of plaintiff’s damages and upon the issue for the reformation of the deed.

The consideration mentioned in the deed is $4,000, and hence it appeared that the plaintiff paid for the premises what they were worth, free from the incumbrance of the easement, and that circumstance was entitled to some weight upon the issue for the reformation of the deed. But what the dam and the water might be worth in connection with an expensive mill on the other side of the creek could have no bearing upon that issue. They might be worth '$10,000 to Mr. Briggs, depending upon the value of his .mill and the business connected therewith, that is, rather than have his mill and business destroyed, he might be willing to pay that sum; but what he might be willing to pay under such circumstances would be no criterion of the real value of the easement. So far as that value has any bearing upon that issue, the evidence stricken out would.

have been delusive and might have been misleading. It was certainly too remote.

We are, therefore, of opinion that the judgment should, be affirmed, with costs.

All concur except Peckham, J., not sitting.  