
    Giles v. Dugro.
    (Before Duer, Campbell, and Bosworth, J.J.)
    October 22;
    November 20.
    The defendant, in the assignment of a lease to the plaintiff, covenanted that “ the assigned premises were free and clear of and from all former and other grants, bargains, and incumbrances whatsoever.” The defendant, however, by a prior deed, had bargained, sold, and assigned to one Sloan the privilege to use a wall on the premises as a party wall of a building, to be erected during the whole unexpired term of the lease.
    
      Held, that the conveyance so shown was not to be construed as a mere license to use the wall, but was an absolute and irrevocable grant creating a permanent encumbrance, and was therefore a breach of defendant’s covenant with the plaintiff.
    It appearing that Sloan, in the exercise of the privilege granted him, had actually used, and still used, the wall in question as the party wall of a building he had erected—Held, that these facts were a virtual eviction of the plaintiff, entitling him to more than nominal damages. The rule of damages, when there is only a partial eviction, is, that a portion of the original consideration money can be recovered, bearing the same ratio to the whole consideration as the value of the land to which the title has failed bears to the value of the whole premises.
    It not appearing that the damages found by the jury exceeded the proportionate sum to which the plaintiff was entitled, and no such question having been raised in the court below—Held, that the verdict could not be disturbed.
    
      Held, that the allegation that the use by Sloan of the privilege granted to him occasioned no damage to the plaintiff’s building, was no answer to the plaintiff’s claim for damages.
    Judgment for the plaintiff affirmed with costs.
    Appeal from a judgment at special term.
    The following are the material facts in the case:—
    The defendant owned an indenture of lease, dated February 1st, 1851, for the term of twenty-one years. On the 31st of May, 1851, by deed, he sold and assigned it to the plaintiff for the sum of $4,000, subject to a mortgage executed by the defendant to secure the sum of $2,000; and subject also to the rents, covenants, conditions, and provisions contained in the assigned lease. The defendant covenanted that “ the assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases and executions, back rents, taxes, agreements, and incumbrances whatsoever, except said mortgage.” This deed of assignment was recorded June - 18, 1851.
    The defendant, by an instrument in writing, signed and sealed ' by himself and Smith Sloan, dated on the 21st of May, 1851, had sold and assigned to Sloan the privilege of using as a party-wall one of the end walls of the building on the demised premises, free and undisturbed for the whole term of the lease. Sloan not to be at liberty to insert more than five tiers of beams in the wall, nor to break into the wall more than four inches in depth, four in width, and ten in length. This was recorded the 3d of June, 1851, and Sloan paid for the grant or privilege $100.
    This action was brought to recover the value of the privilege granted to Sloan, on the ground that the grant was a breach of defendant’s covenant contained in the deed of assignment from him to the plaintiff. At the time this action was commenced Sloan had entered upon the erection of a building on a lot adjoining the wall in question, and had inserted one tier of beams in this wall.
    The action was tried before Chief Justice Oakley, who “ instructed the jury to render a verdict for the plaintiff' for the value of the privilege granted to Smith Sloan, subject to the opinion of the court on the questions, whether the privilege granted by defendant to Smith Sloan was a breach of the covenant contained in defendant’s assignment to the plaintiff, and if so, whether the plaintiff can recover for the value of the privilege so granted, inasmuch as the same was not any damage to plaintiff’s building.”
    The jury rendered a verdict for the plaintiff for $150.
    On a case containing the evidence and the questions reserved at the trial, Justice Dube, at special term, adjudged that the grant of the privilege was a breach of defendant’s covenant, and gave judgment for the plaintiff. From his order and the judgment entered pursuant to it, the defendant appeals to the general term.
    
      J. Cochrane for the defendant, the appellant,
    contended that the judgment was erroneous, and ought to be reversed, upon the following grounds :—
    The action is for the value of the privilege—
    The defendant, by his assignment of lease dated 31st May, 1851, covenants that the assigned premises are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, back rents, taxes, assessments, and encumbrances whatsoever (except a certain mortgage).
    The defendant, on 21st May, 1851, bargained, sold, and assigned to Smith Sloan the privilege of using as a party-wall, a certain wall standing on the north end of a lot (the lot in question), to have the use of the wall, free and undisturbed, for and during the term for which the defendant leased it—
    In case of injury to the wall, the agreement to cease—
    It seems the use of the wall was no injury to it.
    I. The selling by defendant to Sloan of the privilege to use one of the walls of the house in question for twenty years, conveyed no interest in the realty, and consequently there was no breach of defendant’s covenants against encumbrances. A license to enjoy a beneficial privilege is not an interest in lands within the statute of frauds. (3 Kent, 472, 7th ed.)
    A license granted for a temporary purpose, as to erect a dam, teiminates with the decay of the dam.
    A license passes no estate, it merely confers a right or privilege. (1 Hilliard, 146.) -
    A license is an authority to do a particular act, or series of acts, upon another’s land, without possessing any estate therein. (3 Kent; 4 Sand. Ch. R. 91-2.)
    There is a distinction between a license and a covenant. (15 Wend. 380, 387-9, 90, 91; 6 Hill, 64; 7 Ed. 3 Kent, 452; 4 Sand. Ch. R. 73; 5 Barb. 550, 555; 2 Well. 116.)
    It was a license to use in a certain manner for a limited term.
    H. The plaintiff has not been disturbed in his possession. He could not maintain ejectment against Sloan if the defendant had not sold him the privilege. (4 Kent, 571; 4 Mass. 629; 10 John. 258.)
    
      Barnard, contra,
    made and argued the following points:—
    I. The privilege to Sloan was a grant, bargain," and sale of a right in the assigned premises and building, and deprived the plaintiff of the full ownership of the lot and building. He could not take down the wall to alter the building during the term of the lease.
    H. The privilege was a valuable privilege, and the plaintiff was entitled to the benefit of that value, if he was willing to sell it.
    III. The plaintiff is entitled to recover for the value of the privilege, even though it was not any damage to the building— a grant of a right of way over that part of the lot not covered by the building would not have been of any damage to the building, and yet it would have been a breach of the covenant, and would lessen the value of the premises assigned.
   By the Court. Bosworth, J.

The defendant’s counsel insisted that the sale to Sloan of a privilege to use one of the walls in question as a party wall for. twenty years conveyed no. interest in the realty, and therefore was no breach of defendant’s covenant to the plaintiff. That it was a mere license, and passed no estate in the leasehold premises.

The terms of the covenant (among others) are, that “the assigned premises now are free and clear of and from all former and other grants, bargains, and encumbrances whatsoever.”

By the deed to Sloan, the defendant did “ bargain, sell, and assign” to him the privilege to use the wall as a party wall of a building to be erected adjoining to it, for and during the whole unexpired term of. the lease. This was an absolute and irrevocable grant of a right to use a portion of the premises assigned to the defendant, and excluded the possibility of the defendant making the same use of the wall, or selling, and granting to any one the right to so use it.

It is sufficient to say that the right granted was not revocable, and was permanent. It would endure as long as the lease of the premises affected by it. It is in the nature of an easement. It creates a paramount right to the extent of the interest granted, and we have no doubt that it is an encumbrance within the proper meaning of the term as used in the defendant’s covenant. (Prescott v. Trueman, 4 Mass. 627. Wolfe v. Frost, 4 Sand. Ch. R. 72-89.)

The more important question relates to the proper rule of damages.

The general rule is, that in an action upon a covenant against encumbrances, the plaintiff will recover only nominal damages, unless he has been evicted or has satisfied the encumbrance. He may pay off the encumbrance if he chooses to do so, and in such a case will recover the amount paid with interest, if it do not exceed the consideration paid for the land. (Delavergne v. Norris, 7 J. R. 358. Hall v. Dean, 13 J. R. 105.)

In Prescott v. Trueman, Ch. J. Parsons says that, “ where a subsisting easement is alleged as the encumbrance, the injury arising from the easement, or the fair and reasonable price paid by the grantee to extinguish it, of which the jury will judge, is the measure of the damages.”

The general rule undoubtedly is that in an action upon a covenant against encumbrances, whether it be a judgment, mortgage, right of dower, or a paramount right to the land or some part of it, if he has not paid off the mortgage or judgment, or extinguished the right of dower or paramount right, as the case may be, he shall recover only nominal damages. The reason of the rulé is, that he shall not be permitted to recover back the consideration paid for the land, and still hold it on a contingency that he may never be disturbed in his possession. He must first extinguish, the encumbrance, so that it cannot afterwards prejudice the grantor before he will be permitted to recover the amount of it, or the amount fairly and necessarily paid to extinguish it.

- In this case the easement has not been extinguished, but is still subsisting. In the nature of things it cannot well be extinguished, except by the plaintiff’s purchasing the dominant tenement. It cannot be deemed feasible to extinguish it, by a purchase or assignment of the privilege, without the payment of much more than the privilege is found by the jury to be worth.

Sloan has entered into the use and enjoyment of the privilege granted to him, has erected a building adjoining the one in question, and made a wall of the latter a party wall of the newly erected building. His occupation and possession of the wall of the building in question, so far as it is used as a party wall of the new building, is exclusive of, and excludes the use of it by any other person for the same purpose.

It is virtually an eviction of the plaintiff by force and virtue of a grant from the defendant to Sloan, co-extensive with the nature and extent of the interest granted. If instead of the grant in question, the defendant had underlet for the unexpired term a specific parcel of the assigned premises, and the lessee had entered into possession under his lease, what would be the measure of damages ?

The rule seems to be, in case the eviction be only of a part of the land purchased, that a recovery under the covenant of seizin can be had for only a ratable part of the original price, and it must bear 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. And it is also laid down as settled law in this state, that “ the ultimate extent of the vendor’s responsibility, under all or any of the usual covenants in his deed, is the purchase money with interest.” (4 Rent Com. 476, 477 5 J. R. 49; 12 id. 126; 10 Wend. 142.)

Assuming this to be the true rule, and that the plaintiff may be deemed to have been evicted to the extent and according to the nature of the interest granted to Sloan, the technical expression of the proper measure of damages would be such sum as represents truly the relative value x of the interest granted to the value of the whole premises.

Whether such proportionate value is more or less than the actual value of the interest granted, does not expressly appear. Ho objection appears to have been made on the trial, nor was it taken on the argument, that such relative value might possibly be less than the actual value of the privilege granted.

The objection taken on the argument was, that only nominal damages could be recovered, while the easement or privilege was existing and unextinguished.

We do not, under the peculiar facts and circumstances of this case, deem it a duty to grant a new trial, on the mere conjecture, that on investigation the relative value of the interest granted to that of the whole premises, may possibly be less than the actual value of the interest granted, as no such position has been taken ‘by the defendant’s counsel.

The affirmation, that the privilege granted “ was not any damage to the plaintiff’s building,” we understand to simply mean, that the exercise and enjoyment of the privilege do not impair its stability, or the value of its use for the purposes for which it was designed and is occupied.

Such a fact is no more an answer to the plaintiff’s claim to damages for a breach of the covenant, than the fact that a failure of title to, or a prior lease of part of a farm granted, is no damage to the residue, would be an answer to an action for damages on a covenant of seizin covering the whole. The residue might be as valuable in and of itself, without as with that, the title to which had iailed. That would be no reason why the grantee should not recover a proportionate part of the consideration, to indemnify him for the loss of that, from which he had been evicted by a paramount title.

The judgment appealed fron; must be affirmed with costs.  