
    Jonathan Ellis and Luther Ellis versus William Welch.
    A covenant in a lease, that the lessee shall hold and occupy the demised premises during the term, amounts to a general covenant for quiet enjoyment during the term.
    The location of a town way over land so leased, is no breach of the said cove nant; the lessee having, by statute, as owner, a remedy against the town equally with the lessor.
    The declaration in this action was in covenant broken upon an indented lease, by which the defendant demised to the plaintiffs a certain brick store, with the land and appurtenances thereto belonging, situate in State Street, in Boston, and covenanted and agreed with the plaintiffs that they should hold and occupy the said premises for the term of five years, to commence on the Sth day of September, 1804, on Condition of the quarterly payment of the rent of 500 dollars per annum, and to keep the demised premises in good repair, and at the end of the term peaceably restore them in like good order and repair, the natural wear, fire, and decay, of the buildings excepted, with sundry other conditions and covenants to be performed by the plaintiff, and not necessary to. be recited all which they allege to have been kept and performed by them.
    
      “ Yet the defendant, not regarding his said covenants in said deed, hath not kept nor performed the same; for that, in and by a certain law of this commonwealth, passed the 22d day of June, 1799, entitled, ‘ An act to regulate the paving of streets in the town of Boston, and for removing obstructions in the same,’ it is, among other things, enacted that the selectmen of the said town of Boston, for the time being, whenever, in their opinion, the * safety and convenience of the inhabitants of said town [ * 247 J shall require it, shall be, and they hereby are, empowered to lay out or widen any street, lane or alley, of sa:d town, and foi that purpose to remove any building or buildings of what nature soever ; and the owner or owners of such buildings shall be entitled to receive compensation for the damages, which he or they may sustain by such removal, which damages shall be ascertained, determined, and recovered, in the way and manner pointed out in the act of this commonwealth, entitled ‘An act directing the method of laying out highways.’ And on the 14th day of November, 1806, at said Boston, the selectmen of said Boston, at a legal meeting, after considering the subject, determined to lay out and widen the easterly part of State Street, as follows : [here is described the widening of the street, including in it a part of several buildings: ] it being the judgment of the selectmen that the safety and convenience of the inhabitants of the town required it. And the plaintiffs aver that, afterwards, on the same day, in obedience to the aforesaid order of the said selectmen, the store aforesaid was taken down, to the line afore mentioned, being nineteen feet in the front thereof, and six inches on the w'est end; and by reason whereof the plaintiffs have not been able to hold and occupy the premises for the term aforesaid, but have been lawfully amoved, ejected, and ousted, from the same, in manner aforesaid; and so the plaintiffs say that the defendant hath not kept and performed his covenant, but has broken the same.”
    The defendant prays oyer of the deed declared on, which comports with its description in the declaration, to which he thereupon demurs generally, and the plaintiffs join in demurrer. The demurrer was argued at the last March term in this county, by Bigelow for the defendants, and Selfridge for the plaintiffs.
    
      Bigelow, in support of the demurrer, contended that there was no covenant'of the defendant’s in the deed declared [ * 248 ] * on, which could be said to be broken by the facts stated ; and that, if the covenants had been never so special, yet that no action would lie against the defendant upon the facts. It was very absurd to hold the defendant chargeable for what the municipal authority of the town had done by legal authority; especially when it was considered that the plaintiffs would, after all, be liable to the defendant for not leaving the demised premises in as good order and repair as at the commencement of their lease, which they had expressly covenanted to do.
    
      Selfridge, for the plaintiffs,
    insisted that these words “ shall hold and occupy ” are tantamount to a covenant for quiet enjoyment during the term. Indeed, the words “ lease and demise ” are an implied covenant to the same effect. Where the enjoyment of the term by the lessee is interrupted by a lawful title paramount tc that of the lessor, an action lies upon a covenant for quiet enjoy inent,  though not upon an ouster by a wrong-doer. The right and authority of the selectmen in this case is in effect a title paramount to that of the defendant. The plaintiffs have no remedy, if not against the defendant. The statute confines the compensation, to be recovered from the town, to the “ owner or owners,” which must mean, at least, the tenant of the freehold. Another construction would be attended with inconvenience, as it would multiply suits, and subject the town unnecessarily to several bills of cost. Besides, it may be that the lessee only is a sufferer. The benefit derived to the tenant of the freehold or fee, in widening the street, may be a balance for the immediate injury to his building, and the loss of his land. But this is nothing to the tenant for a short term, who ought, in such case, to be indemnified by the lessor; and the liability of the latter to his tenant will very properly make an item in his claims upon the town.
    
      Bigelow, in reply. The first part of the indenture contains a covenant that the tenant shall hold the premises demised; but this covenant is afterwards qualified by the * covenant on the part of the tenant to deliver up the [ * 249 ] premises in like good order, &c. This is not like the cases cited of an eviction by a paramount title. There is no title in the commonwealth, other than there is to all the land in the state. If there had been no covenant at all in this lease, either express or implied, the plaintiffs would still have their remedy equally against the town ; for they are as much owners of the store, during the term, as the tenant in fee simple. It is idle, in this case, to intimate that the defendant is benefited by this proceeding of the selectmen. His store has been cut down, and his land taken from him; and he is now proceeding in this Court against the selectmen for his damages.
    The action standing continued to this term, the opinion of the Court was now delivered by
    
      
       3 D & E. 584, Dudley vs. Folliott. — 1 Selwyn's Nisi Prius, 412.
    
   Parsons, C. J.

This action is in a plea of covenant broken, in which the plaintiffs declare on a lease made by the defendant to them of a brick store in State Street, in Boston, with the appurtenances, for five years from the 8th day of September, 1804, and they aver that the defendant covenanted with them, that they should hold and occupy the demised premises during that term; and that within the term the selectmen of Boston, pursuant to the statute of 1799, c. 31, in widening State Street, laid a part of that street over the demised premises, by reason of which the public became en titled to an easement in the same as a town way; and so the plaintiffs could not hold and occupy it agreeably to the covenant. In describing the allegation of the breach, I have adopted the legal inference from the facts alleged. The defendant, after having oyer of the lease, demurs generally, and the plaintiffs join in the demurrer.

Two questions are made — whether the covenant shown in the declaration is contained in the lease; and if it is, whether the widening of the street by the selectmen of Boston is a breach of this covenant.

[ * 250 ] * After this clause of demise, the words of the lease,

so far as they apply to the first question, are, “ and the said Welch does agree that the said Jonathan Ellis and Luther Ellis shall hold and occupy the same for the term of five years from,” &c. These words, in our opinion, amount to a general covenant for quiet enjoyment during the term, and sufficiently main tain that part of the declaration in which the covenant is alleged.

The next question is, if the widening of State Street in this manner is a breach of this covenant. As no authorities in point are cited, the question must be decided on general principles.

All deeds are to be construed agreeably to the intent of the parties; and in a lease or conveyance containing a general covenant for quiet enjoyment, it must be presumed that the parties had »n view evictions, entries, or disturbances, to be made by virtue only of existing rights, and not of rights afterwards to be acquired ; for these it cannot be presumed, from the general words of the covenant, were contemplated. Now, the interruption complained of is an easement acquired by the public after the execution of the lease. And the authority of the selectmen to locate and establish a town way when necessary, cannot be considered as an existing encumbrance. Neither can the prerogative of the public to convenient ways on the lands of individuals be deemed an existing right, within the intention of the parties to the lease. For the lessor holds his land subject to this prerogative; and so also do the lessees their term, because it is one of the incidents of the tenure, by which all the lands in the state are holden. A covenant against the exercise of this prerogative would be a covenant, not against any existing right or interest in the land, but against a naked possibility.

To support the presumption that a general covenant for quiet enjoyment extends only to rights then existing, the case of the Executors of Grenelife vs. W--, in Dyer, 43, b, is applicable. It was there holden, by all the judges, that [*251 ] *when a man binds himself and his heirs to warranty, they are not bound to warrant against new titles aris mg through the feoffee, or any other person, after the warranty is made.

Upon this general principle, it appears to us that there is no breach of the general covenant for quiet enjoyment, well and sufficiently assigned. — But as the case is new, it has been the subject of our further consideration.

To guard the citizen from any oppressive consequences of the prerogative we have noticed, the tenth article of the declaration of rights provides “ That whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.” In conformity to this just and equitable provision, the statute of 1786, c. 67, ■§> 1, defining the manner in which town ways, when necessary, may be located and established, has provided that the owner of the land covered by the location may recover of the town where the way is established, a reasonable compensation for the damage, to be estimated by a jury.

Now, any person having an interest in the land, either as lessee for years, tenant for life, or for any greater estate of freehold, as also he in reversion or remainder, is an owner within the provision of this section ; because, being within the mischief, he is within the remedy. If there was any doubt, the change of phraseology in the fourth section would remove it. For in that section, compensation for damage in laying out a public highway is provided expressly for any person damaged in his property by the location. And, for the same reason, the provision made in the statute of 1799, c. 31, for the owner or owners of buildings, must have the same construction ; and the lessee, as also his landlord, are each one entitled to compensation, according to the nature and magnitude of the damages he may sustain by the widening of any street.

In this case, therefore, the plaintiffs have no occasion to resort to the defendant for recompense, as the same law * by which the easement, of which they complain, is [ * 25£ ] authorized, has provided for them a remedy against the town; and such a construction of the lease, as would give the lessees another remedy against the lessor, who is a fellow-sufferer with them, is unnecessary and unreasonable.

This conclusion is supported in principle by the cases deciding that a general covenant in a lease for quiet enjoyment extends only to entries and interruptions by those who have lawful title, but not by wrong-doers; for the tenant has his remedy by action for all tortious entries and disturbances, Now, the reason of this distinction applies with great force to the present case. For the plaintiffs have an adequate remedy, for the interruption alleged, against those for whom the easement is acquired. Indeed, this case is not to be distinguished in principle from a feoffment in fee of land, with a general covenant against encumbrances and for quiet enjoyment. And although the feoffor is answerable for existing encumbrances, by ways established at the time of the feoffment, yet it has never been attempted to charge him on his covenant for ways afterwards located; but the feoffee is left to the remedy provided for him by the statutes in such cases provided.

Upon the whole, we are satisfied that the declaration before us is bad, because no breach of the covenant is therein legally assigned.

Judgment must be rendered, that the plaintiffs take nothing by their writ, and that the defendant recover his costs. 
      
       3 D & E. 584. — Hob 24, Tisdale vs. Sir W. Essex.
      
     
      
       [See Patterson vs. The City of Boston, 20 Pick 165. — Parks vs The City of Boston, 15 Pick. 198. — Ed.]
     