#### Alexander Ladue, Plaintiff, *v.*Lois P. Cooper, as Executrix, etc., Defendant.

(Supreme Court, Jefferson Special Term,

October, 1900.)

Action on covenant of warranty — Election — Estoppel — Eviction from an easement.

In 1850 C., the owner of two adjoining lots, conveyed the westerly one to H. by a description which reserved to C. and to H. the use in common of a lane which then existed between the lots. In 1858 C. conveyed the easterly lot to F. by a warranty deed which made the center of the lane a boundary of that lot. In 1892 the easterly lot was conveyed to L. by the heirs of F. and by the same description. The lane had been used in common by both abutting owners up to 1898 when, in an action between them, it was decided that the lane existed for their common benefit. The present action was brought by L. against the executrix of C. for a breach of the covenant of warranty contained in the deed of C. to F. made in 1858.

Held, that it could not be maintained.

That while F., the plaintiff’s predecessor in title, might in 1858 have sued C. for a breach of the covenant of warranty on the ground that the lane encroached upon one of F.’s boundaries, F. might also, under the terms of her description and in view of the circumstances, have judicially enforced the maintenance of the lane as an appurtenance to her lot, that she had chosen the latter course, and that *L.*was bound by her election.

That the plaintiff was estopped by the continuous use of the lane for more -than forty years, as his predecessor might have sued immediately in 1858 for the breach of warranty.

That, in view of the nature of the easement, the common use of the lane constituted, as to F., all the eviction from and dispossession of it which was possible under the circumstances.

This action is brought to recover damages for an alleged breach of covenant of warranty contained in a deed executed by defendant’s testator, one Howell Cooper, on April 7, 1858, to one Alice Farley, through whom plaintiff derives his title to the premises in question which are situated in the city of Watertown.

*545The alleged breach of covenant is predicated upon the fact that the owner of the premises adjoining upon the west those owned by plaintiff has a right to the use of a lane, laid one-half upon plaintiff’s premises and extending from the street back over said premises for a distance of about 100 feet.

Amongst other defenses, it is urged:

*First.*That said plaintiff’s predecessor in title, said Farley, knew of the existence of said lane at the time she purchased, and that the covenant of warranty in her conveyance does not cover said easement.

*Second.*That owing to the long-continued use by plaintiff and his predecessor in title of said lane laid one-half upon bis and one-half upon the adjoining premises, he has become estopped from seeking damages therefor upon said covenant of warranty.

*Third.*That the cause of action set forth in the complaint, if any, has become barred by the Statute of Limitations.

Henry Purcell, for plaintiff.

Walts *&*Pitcher, for defendant.

Hiscock, J.

On April 1, 1850, defendant’s testator, being the owner of two adjoining houses and lots on Main street in Watertown (and which are the premises giving rise to this litigation) conveyed to one John Hickey, the westerly house and lot by a description reading as follows: “All that certain piece or parcel of land * * * beginning on the margin of the road at the center of the lane, and running northeasterly parallel with the lane between William Smith and the party of the first part * * * fifteen-rods; thence northwesterly at right angles with the first line three rods to the board fence; thence southwesterly parallel with the first line fifteen rods to the margin of the aforesaid mentioned road; thence south * * * along the margin of said road three rods, to the place of beginning. * * * The party of the first part hereby reserving and excepting the right to use and enjoy in common with the party of the second part, the one-half of the aforesaid lane (which is contained in the above survey) for the purpose of ingress and egress, to himself and those owning or occupying the adjoining house and lot, the par*546ties of the first part granting to the party of the second part and his representatives the right to use and enjoy the other half of said lane as a common right of way for the purpose of ingress and egress, hut not extending farther back than the front of the barn, as it now stands.”

At the time said conveyance was executed the lane was in existence, which now gives rise to this controversy. It was laid, one-half upon the premises which Cooper then conveyed and one-half upon those which he retained. It led back about 100 feet to a double barn which stood, one-half upon the premises conveyed and one-half upon the premises retained by Cooper. After the conveyance in question Hickey and Cooper, or their respective tenants, used the lane as provided in this deed.

Thereafter and on or about April 7, 1858, and while the lane was in existence and being used as aforesaid, Cooper conveyed by warranty deed to one Farley, the easterly house and lot, being the premises now owned by plaintiff, describing the same as follows:

“All that tract or parcel of land * * * lying on the north side of the road leading from Williamstown to Juelville, beginning on the margin of said road at the southwest comer of the house lot formerly owned by William Smith, running northerly 771⁄2 deg. west 75 links along the margin of said road to the east line of the lot now owned by John Hickey'in the center of the lane; thence running northeasterly along the easterly line of said Hickey’s lot 15 rods; thence easterly at right angles with the last line 75 links to the land formerly owned by said Smith; thence south 14 deg. W. along the line of said Smith lot 15 rods to the place of beginning, containing 45 rods of land, be the same more or less, with the appurtenances and all the estate, title, and interest therein of the said parties of the first part.”

Said Farley and her heirs-at-law (she having died intestate) continued in the occupancy of said premises until March 23, 1892, when the latter conveyed the same by the description above stated to the plaintiff herein.

The lane continued to be used by Hickey and by Mrs. Farley and her heirs during all of the time down to said conveyance. It was originally fenced, but at some time the fence was taken away or fell down, and in June, 18.7"8, the barn which stood at the end. of the lane was burned and has not been rebuilt.

After the conveyance to plaintiff the parties owning the two *547pieces of land in question continued still to use the lane down to July, 1898, at which time plaintiff undertook to build a fence on the line between the two lots in the middle of the lane. Upon this the heirs of Hickey, who had died, brought an action to restrain him from so doing, and which action resulted in findings and judgment of the court to the effect that a right of way existed on the line between the said lots for the benefit of both parties as created by the deed from Cooper to Hickey; that Hickey’s heirs had a right of way over plaintiff’s premises for the purposes of said lane and that plaintiff had a right of way over the Hickey lot for the purposes thereof.

Plaintiff bad given defendant notice of this action by the Hickey heirs, calling upon her to defend the same, and now in this action seeks to recover the costs which were adjudged against him in that action, his expenses therein, and also for the damages which he claims to have sustained through the right of the adjacent owners to have this lane lying in.part upon his premises. He bases his action entirely upon the covenant of warranty contained in the deed from Cooper to his predecessor in title, Alice Farley.

If it he assumed as broadly as claimed by defendant that Mrs. Farley, at the time she took her deed from Cooper, had notice and knowledge of the existence of this lane and of the easement thereby created upon and against the premises of which she was acquiring the title and possession, it still would not be a defense to this action upon the covenant of warranty contained in her deed for the breach created by such easement, as urged by defendant. The deed to her in no way exempted her grantor from liability upon his covenant against the lane. His covenant was broad enough to cover it and to protect the grantee against the same. The reasoning and authority of the case of Huyck v. Andrews, 113 N. Y. 81, so well and clearly settles that under such circumstances the grantor cannot escape liability by showing that his grantee had knowledge of the defect in or incumbrance upon the title that it is not necessary or desirable to discuss the question at further length.

While it is thus true that Mrs. Farley had a right to treat this lane and the easement which it constituted as a defect in her title and a source of damage and hold her grantor upon his covenant, another course was open to her. If she regarded the lane as a benefit rather than an injury to her premises, she undoubtedly *548had the right under her deed from Cooper to insist upon its maintenance.

Where a grantor of land is the owner of a right of way then in use in connection with the premises granted, and grants land hounded upon the right of way, and user of the lane is not expressly granted, the question of whether the right of way is passed by implication as an appurtenance to the premises is one that must ¡be decided by the intent of the parties to be extracted from the grant and its language and the circumstances and conditions that existed at the time when the grant was made. Ranscht v. Wright, 9 App. Div. 108.

In this case we have the facts that Mrs. Farley’s grantor, in conveying the premises adjoining those now owned by plaintiff, expressly provided for the existence and continuance of this lane and for its use by himself and those who might occupy the premises now owned by plaintiff, and that such a lane had, as a matter of fact, been continuously used by the occupants of these two adjoining lots for many years when Mrs. Farley took her conveyance. While such lane was not, perhaps, an absolute necessity for the full enjoyment of the premises purchased by Mrs. Farley, still its use was beneficial and an advantage in their enjoyment. The conveyance to Mrs. Farley expressly referred to this lane as one of the boundaries in the description of the premises conveyed to her. The description in effect makes the center line of such lane one of the boundaries of the lot conveyed to her. One of the courses in the description runs to the east line of the lot then owned by the other grantee Hickey, which is described as being i'n the center of the lane, and the description thence runs along such easterly line of said Hickey (so described as being the center of the lane) for a certain distance, etc. It seems to me that this description and the circumstances surrounding the execution of the conveyance were sufficient to raise an implied right of way of the lane by Mrs. Farley in connection with the premises granted to her, under the authority of the case of Ranscht v. Wright, cited supra, and that she would have had the right as against her grantor (and under his reservation as against the owner of the adjoining premises) to insist upon the maintenance and continuance of this lane as an appurtenance to the premises granted to her. I think she would have been able to establish this right if her grantor had contested it. Certainly she bad strong reasons for *549claiming the right to use that lane, which would ripen into an. established privilege if neither Cooper, her grantor, nor Hickey, the owner of the adjoining premises, objected thereto, and neither of them did.

Therefore, we have Mrs. Farley, at the time when she received her conveyance from Cooper, with two diametrically opposed ways open to her. She might treat the lane as a detriment and when the proper occasion arose sue her grantor upon his covenant of warranty for breach, and recover damages, or she might treat it as a benefit, and an advantage to her premises, and under all of the circumstances which attended and preceded her conveyance and by virtue of the reference in such conveyance to the lane insist that she had acquired a right to its existence and maintenance as an appurtenance to her premises and insist upon the enjoyment thereof, which claim, as above stated, would certainly ripen into a right if no one else interested in the question objected thereto. She chose the latter course. From the time of her conveyance in 1858 down to 1892, when the conveyance was made to plaintiff, she and her heirs, by their acts, used and enjoyed this lane just as much as the owners and occupants of the adjoining premises did. She and her heirs insisted upon continuing and| exercising the easement which this Jane created to half its extent over the Hickey land, and upon the other hand acquiesced in the exercise by the owners and occupants of the latter piece of like rights over her land. In my judgment, by taking this course she and her heirs, prior to the conveyance to plaintiff, became estopped from then turning around and insisting that the lane was a source of damage for which the original grantor, Cooper, should be liable under his covenant of warranty. If this is so, her estoppel would be a bar to this action by plaintiff who claims through her. But in "addition to her course, plaintiff, for several years after he acquired title to the premises, took the same view which had been entertained by his grantor. lie elected to treat the lane as an established right and as a benefit to his premises to be used in connection therewith. And finally this long-continued conduct on the part of him and his grantors, extending through a period of forty years, has led up to and resulted in a judgment between him and the successors in title of Hickey establishing the right of each to have this lane maintained lying one-half upon the premises of one and one-half upon the premises of the other, and plaintiff, *550so far as appears, has acquiesced in and taken the benefit of this judgment. It comes about, therefore, that plaintiff as a compensation for the easement which is created upon his lands by half of the lane, has secured a similar right upon the premises of his neighbor. If, in addition to that, he should now be allowed to recover damages against defendant, it would result in his securing double compensation for the use of his land, and from doing which I believe he is estopped both by the conduct of his grantors and by that of himself.

In my opinion any cause of action plaintiff might otherwise have had is barred by the Statute of Limitations and defendant is entitled to succeed upon that defense also.

The covenant of .warranty upon which plaintiff relies was made in 1858. For more than forty years the easement of which he complains has been outstanding against the title covered by such covenant of warranty, and has been constantly used and enjoyed by those entitled thereto as against the premises owned by plaintiff. An attempt is made to avoid the conclusion that the Statute of Limitations has run against plaintiff’s cause of action by arguing that an action cannot be maintained upon a covenant of warranty until there has been an eviction, actual or constructive; that actual eviction takes place when the grantee is dispossessed by process of law, and a constructive eviction when a party yields possession to a title which is actually paramount; that neither actual or constructive eviction occurs while the covenantee continues in possession; that in this case there was no eviction until recovery of the judgment instituted in the action by the owners of the adjoining premises against plaintiff in 1898. The question of what constitutes an eviction and a dispossession, from his premises of the covenantee must be determined somewhat by the nature of the paramount right or title, which is claimed against him. If the latter consisted in an alleged,' absolute and unqualified ownership of a portion of the premises covered, by a covenant *of*warranty there would doubtless be required an absolute and unqualified dispossession of the covenantee from such premises in order to constitute' such an eviction as would amount to á breach of covenant. The assertion and exercise of an easement such as is involved here would, however, never naturally result in an entire and absolute exclusion of the covenantee from the possession and enjoyment of the premises covered thereby. He would always be *551entitled to the possession, use and enjoyment of his premises subject to the right of the person holding the easement by paramount title to go upon and over the same as the proper and ordinary exercise of the easement might require and permit. In the nature of things, the dispossession and eviction of the covenantee would only be a partial and qualified one. That has taken place in this case. The people entitled to the easement over plaintiff’s premises have constantly and continually and habitually exercised and enjoyed it for over forty years, and so far as was necessary to such exercise and enjoyment they have infringed upon and impaired the full possession and enjoyment by plaintiff and his predecessors of the lands covered by the right of way. During all of that period they have exercised and asserted all the rights which they properly could in derogation of the title succeeded to and held by plaintiff. There has been all of the breach of covenant of warranty which there could be under the easement which is complained of. Both reasoning and authority sustain the proposition that such an exercise of an easement as has existed in this case from 1858 down, constitutes a breach of the covenant of warranty, and that the right of action upon the covenant accrued at said date. Rea v. Minkler, 5 Lans. 196.

In this respect the same principles apply in the case of. a breach of covenant of warranty as would apply in the case of a breach of covenants for quiet enjoyment. And in the case of the latter covenants it has been held that the exercise of such rights as the evidence in this shows to have been established is sufficient to constitute a breach of covenant and furnish a cause of action. Scriver v. Smith, 100 N. Y. 471; Shattuck v. Lamb, 65 id. 499-510.

Judgment is ordered for the defendant, with costs.

Judgment for defendant, with costs.