Bowling v. . Burton

Merrimon, J., (after stating the ease). We do not doubt that the injured party can maintain an action in a proper case for a breach of the covenant of warranty of the title in a deed conveying a tract of land, on which is situate a mill and a dam connected therewith that embraces an easement as to ponded water, occasioned by such dam or back-water therefrom, on an adjoining tract of land of another person, and like easements incident and necessary to the free use and beneficial enjoyment of the mill and dam conveyed, although such easements are not expressly mentioned in the deed or covenant. If the deed, in effect, though not in terms, embraced them, and the covenant is comprehensive enough to include them, a breach thereof, in respect to such -easements, is actionable. This is so, because, in the nature of the matter — nothing to the contrary appearing — a party who conveys a mill and dam, or other thing, conveys whatever and all that he has or claims and purports to have, at the-cime of the conveyance, in connection therewith incident to and necessary to the just enjoyment of the thing he undertakes and proposes to convey. It is not to be presumed that a vendor sold property in a less complete condition, as to things incident and appurtenant to it, than it appeared to be at the time he sold it. Thus, if he sold a mill and dam and the site thereof, and he appeared and professed to have a right *180 in connection therewith to pond water on the land of another, the deed, nothing to the contrary appearing, would be construed as embracing and conveying such easement as'incident to and part of the mill, dam and site, to the extent and in the measure he appeared and professed to have and own it. Otherwise, he would sell a property different from and less valuable than that he professed to sell. The right to so pond the water might be essential to give the mill practical value. Indeed, it might be valueless without the easement, and it might be less valuable if the easement should not exist to the extent claimed by the vendor. The easement being thus incident and appurtenant to the property sold, and constituting part of its value, it must be taken that the vendor paid for it. It, therefore, fully comes within the covenant of warranty of title, and the vendee would have his remedy for a breach of the covenant in respect to it. Whitehead v. Garris, 3 Jones, 171; Everett v. Dockery, 7 Jones, 390; Adams v. Connover, 87 N. Y., 422; Avy on Water Courses, § 153, et seq.; Gould on Water, § 303; Wach on Easements, 133, et seq. In this case, the terms and scope of the deed of conveyance relied upon by the plaintiff are broad and comprehensive. They certainly embrace the right to erect dams across the river at the mills mentioned, and to pond the water as and to the extent claimed and exercised by the vendor at the time he executed the deed. The covenant of warranty of title is correspondingly comprehensive. If the vendor, at the time he sold and conveyed the land and mills to the plaintiff, claimed and exercised the right to pond the water on the land of an adjoining owner, by the erection of dams across the river, then his deed to the plaintiff embraced that right, and so did the covenant of warranty therein ; and the plaintiff can, for the reasons already stated, maintain his action, if there was a breach of the covenant in respect to such right. *181 The assignment of the breach of covenant in the complaint is very general and defective; it should have been made Inore specific and definite as to the extent and nature of the easement, and the breach of the covenant in respect thereto; but we think the complaint is not so defective in the respect mentioned as to warrant the Court in forcing the plaintiff to suffer a judgment of non-suit. A cause of action is defectively — imperfectly stated, and this might be ground for demurrer, but not for a motion to dismiss the action, because the complaint does not state facts sufficient to constitute a cause of action. The plaintiff might have been allowed to amend the complaint, and if the defendant would not require a better pleading, the Court might, ex mero motu, have required him to make proper amendments. Johnson v. Finch, 93 N. C., 205; Halstead v. Mullen, Id., 252; Warner v. The Railroad Co., 94, N. C., 250. It seems, however, that the Court was of opinion that the plaintiff alleged no cause of action at all, and it therefore gave the judgment of non-suit appealed from. There is error. Error.