
    BREARLEY v. THE DELAWARE AND RARITAN CANAL CO.
    1. The sixteenth section of that act incorporating the Delaware and Raritan canal company, Har. Com. 275, does not require the company to provide bridges over their canal, for the use and accommodation of the owner of land intersected by it, where such owner has sold to the company a part of the lands divided for the express purpose of constructing the canal.
    The obligation of the company in this respect can only arise in case a covenant or agreement to that effect has been entered into between the parties.
    2. So long as the expressed intention of the parties is carried out, and land is applied to the purposes for which it was conveyed, the grantee, in the absence of a covenant or agreement on his part, is not liable in damages for any inconvenience the grantor may sustain, necessarily resulting from, the performance of the act contemplated by the parties.
    This was an action on the case brought to recover damages for injury done to the farm of the plaintiff, by the Delaware and Raritan Canal.
    The third and fourth counts of the declaration, upon which the decision of the cause ultimately turned, stated that the plaintiff was the owner of a farm, consisting of meadow and pasture land with buildings; and that on the 1st of April, 1832, he had and thence hitherto ought to have had a free and uninterrupted way, passage and communication from his dwelling house to every part of his farm; but that the defendants intending to deprive him of the benefit of part of his farm, and to incommode him in its use and occupation, dug a canal of great depth and width, in such manner as to leave his house, barn and two acres of land on one side of the canal, and on the other side thirty acres of meadow and pasture land ; and that the defendants have neglected to provide and keep in repair a suitable bridge or bridges across the canal, where it intersects his farm, so that he and others may pass &c. the said bridge as by the sixteenth section of an act, entitled “ an act to incorporate the Delaware and Raritan Canal Company,” they were required to do ; by means whereof the defendants have wrongfully hindered him from passsage over and across the canal, from one part of his farm to another; and he has not been able to enjoy his meadow lot &c. as he otherwise would and of right ought to have enjoyed it.
    The defendants pleaded the general issue and several special pleas, of which the fourth set out, that the plaintiff on the 14th of December, 1831, granted and conveyed to the defendants, for a valuable consideration, a certain parcel of land (describing it particularly) situate on the route of the canal, for the purpose of cutting and constructing the canal; and that the canal was cut through and constructed on this land by and with the plaintiff’s consent; and that the land so purchased by the defendants, was part of the meadow and premises in the declaration mentioned.
    To the second, third and fourth pleas the plaintiff demurred specially, assigning as causes of demurrer, that material circumstances were stated without allegations of time and place, and that the pleas were argumentative and in other respects informal.
    
      W. Hoisted, for the plaintiff.
    
      J. 8. Green, for the defendants.
   The opinion of the Court was delivered by

Whitehead, J.

Upon the principles declared by this court in Ten Eyck v. The Delaware and Raritan Canal Co. 3 Har. 200, and afterwards affirmed by the court of Errors, the demurrer to the second and third pleas must be sustained as not containing a legal defence to the plaintiff’s claim for damages. As there are no formal objections to any of these pleas, I presume the real question between the parties arises on the fourth plea. Do the matters set forth in this plea constitute a valid defence to the plaintiff’s claim for damages under the third and fourth counts in his declaration ? By the demurrer, the plaintiff admits the facts set forth in this plea. They are briefly these: The plaintiff for the consideration of throe hundred and eighty-six dollars granted and conveyed to the defendant, a piece of land on the route of their canal, for the purpose of constructing their canal thereon, and it was constructed with his consent.

It would seem by the plaintiff’s declaration, that he supposes the defendants hold the land subject to the duties imposed upon them by the sixteenth section of the act referred to. By that section it is enacted, that it shall be the duty of the company, when the canal intersects the farm or lands of any individual, “ to provide and keep in repair, a suitable bridge or bridges, so that the owner or owners and others may pass the same.” In this I think he is mistaken. The liability of the defendants in this respect is to be decided upon the contract between the parties, without reference to their charter of incorporation. The plaintiff sold the land for the express purpose of making the canal thereon. There is no condition or reservation in the deed, nor is there any covenant on the part of the defendants, that they wil 1 build a bridge or do any other act for the convenience- of the plaintiff in passing over his farm. The presumption is, that as the plaintiff sold the land for the purpose mentioned, he took into consideration all the inconveniences which might result from the construction of the canal through his farm, and asked and received a price, which in his estimation would cover all the damages that he might sustain in consequence of it. Had it been the intention of the parties at the time of the conveyance, that the defendants should make and maintain a bridge for the plaintiff’s convenience, the presumption is, there would have been a condition or covenant to that effect in the deed. The defendants having used the land for the single and only purpose, for which it appears by the deed it was purchased, they are in no worse condition, nor are they to have more burthens imposed upon them, than if an individual had purchased it for the same pupose, or for making any other improvement thereon, which would equally prevent the plaintiff from passing over all parts of his farm. So long as the expressed intention of the parties is carried out, and the land is applied to the uses for which it was purchased, the grantee, in the absence of any covenant or agreement on his part, is not liable in damages for any inconveniences the grantor may sustain, necessarily resulting from doing the act contemplated by the parties. The liability of the defendants in this respect depends not upon the provisions of their act of incorporation, but upon the contract between the parties, and for the reason, that their right to enter upon the land and dig their canal is founded upon contract and not upon the statute. '

In my opinion the facts set forth in this plea, constitute a legal defence to any claim for damages under the third and fourth counts in the declaration.

Cited in Del. & Rar. Can. Co. v. Lee, 2 Zab. 250; Green v. M. & E. R. R. Co., 4 Zab. 489; Mor. & Es. R. R. Co. v. Green, 2 McCar. 475.  