
    George B. Sweet, Respondent, v. Joseph Howell, as Administrator, etc., of Sophia Howell, Deceased, Appellant.
    
      Measure of damages where the title to an easement to take water from a spring, conveyed with land to which it is appurtenant, by a full covenant deed, fails —the case is one of partial eviction.
    
    Where the title to the whole of property conveyed under a full covenant deed fails and the grantee is evicted therefrom, the measure of damages recoverable by him in an act¡ion upon the covenants of seizin and of quiet enjoyment contained in the deed is the purchase price of the premises and interest thereon..
    If the failure of the title and the eviction only affected a portion of the property conveyed, the grantee may recover such part only of the original price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole premises.
    Where the property-conveyed consisted of two acres of land and the right to take water from a spring upon land adjacent to such two acres, and the grantee is evicted from the use and enjoyment of the water rights under a paramount title, the case is one of a partial eviction.
    It is, therefore, error in such a casé for the court to charge that the measure of damages is the difference between the purchase price of the premises and their value without, the right to usé the spring.
    
      In order to enable the correct rule of damages to be applied, the,plaintiff should show the value of the property at the time it was conveyed, with and without the right to use. the spring annexed.
    Appeal by the defendant, Joseph Howell, as administrator, etc., of Sophia Howell, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Columbia county on the 15th day of May, 1902, upon the verdict of a jury, and also from an order bearing date the 8tlr day of May, 1902, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    On April 1, 1896, this plaintiff purchased from one Sophia Howell a hotel property consisting of about two acres of land in the town of Hillsdale, Columbia county, and also as an easement appurtenant thereto the right to take water from a spring -upon lands adjacent to such two acres. Such spring was a large one, furnishing water enough to supply the whole premises with all needed water. And all rights necessary to utilize and maintain the spring . were made appurtenant to the hotel property. On such date a full covenant warranty deed of the said hotel property and water rights and privileges was executed and delivered by her to this said plaintiff. The. purchase price of such property was $7,000. Subsequently, and in April, 1899, the plaintiff was wholly evicted from the use and enjoyment of such easement and water rights, by the foreclosure and sale thereunder of a certain mortgage, which was a lien upon the premises on .which the spring was located, prior and superior to the said Sophia Howell’s title. An action was subsequently brought by the plaintiff against his said grantor to recover damages for such eviction, upon her covenants of seizin and for quiet enjoyment. Upon her death pending the action the defendant, as her administrator, was substituted as defendant in her stead.. The action then proceeded to trial and judgment, and a verdict having been rendered against him for $2,075.80 damages and costs, he brings this appeal from the judgment, entered thereon and from the order denying a new trial on the minutes of the court.
    
      J. D. Bell and John Cadman, for the appellant.
    
      William Wallace Chace, for the respondent.
   Parker, P. J.:

The plaintiff having been actually evicted from so much of the property conveyed to him as was included in the easement and. water rights described in his deed from Sophia Howell, brings this action for a breach of the covenant of seizin and of warranty for quiet enjoyment which such deed contained. Had the title to the whole of the property therein described failed and an eviction followed, his measure of damages would have been the $7,000 paid for such premises and interest thereon. (Jenks v. Quinn, 61 Hun, 434 ; Brown v. Allen, 73 id. 291, 294, and cases there cited; Utica, Chenango & S. V. R. R. Co. v. Gates, 8 App. Div. 182, 183.)

But the title having failed and an eviction followed to the extent only of a portion of the property so conveyed, the plaintiff can recover such part only of “ the original price as bears the same ratio to the whole consideration that the value of the land to which the title has. faffed bears to the value of the whole premises.” (Hunt v. Raplee, 44 Hun, 149, 155 ; Brown v. Allen, 73 id. 294; Giles v. Dugro, 1 Duer, 336.)

The respondent- claims that this rule is not applicable to this case, because it is not one of a “ partial eviction.” With this claim I cannot agree. The easement from the use of which the. plaintiff has been evicted was a part of the real estate conveyed. It formed a material part of the property for which the $7,000 was paid, and by being deprived of its use he has been evicted from a portion of the very real estate that the covenants in such conveyance undertook and promised to secure to him.

Therefore, the authorities above cited are applicable. And though the rule is an arbitrary one, and in many instances far from just, it seems to be controlling in a case like this. The theory of the rule is that when loss occurs through failure, or a partial failure, of title, without the fault of the grantor,.«only the purchase price, or a proper proportion of the purchase price, may be recovered back.

Applying that rule to this case, a manifest error was committed on the trial, both in the admission of evidence offered by the plaintiff and in the submission of the measure of damages to the jury. The jury were told, in substance, that the measure of damages was the difference between the purchase price of the premises, viz., $7,000, and their value without the right to use the spripg. So, also, the plaintiff was allowed to ask his witnesses to this effect: Assuming that the hotel property with the easement annexed was of the value of $7,000 on April 3, 1899, what w;as the fair, market value of that land and property without the easement appurtenant thereto ? To this.rule of damages the defendant constantly objected and insisted that the rule above cited was the proper one to be applied, and to that end he offered to show the value of the hotel property at the time it was conveyed to the plaintiff with the right to use the spring annexed, and also what was its value without the right to use the spring annexed, thus giving the elements from which the value of the whole premises conveyed and of that part to Which the title had failed could be ascertained. With these two facts before the court the rule of damages above cited could be applied; without them it could not be applied. The court, however, excluded all proof of these facts, and for these errors, in my ■opinion, the judgment and order appealed from must be reversed.

All concurred.

Judgment and order affirmed on the facts and reversed on the law and new trial granted, with costs to appellant to abide event.  