McMullin v. Wooley

[395] By the Court Mullin, J. The right granted by defendant’s grantors, to William H. Wilson, to lay pipes in his (the grantor’s) land, and divert the water • thereof to his (Wilson’s) own land, for the use of his cattle, is an easement; and the deed granting the easement conveys no part of the land on which the spring is, or in which the pipes are laid. (Angel on Watercourses, sections 90, 161, 163, 285.) The existence of such an easement, if it can be held to be a breach of any covenant in a deed, is a breach of the covenant against incumbrances. (Rawle on Covenants of Title, 111, 115, and cases cited.) I can find no case in the books, in which it has been held that such an easement, is a breach of either the covenant for quiet enjoyment, or of warranty; and, upon principle, it would seem to me that it cannot be. To constitute a breach of either oj these covenants, there must be an ouster, either actual or constructive, of the premises conveyed. An ouster, is an actual deprivation of the possession of a part of the land, or, what is equivalent, a title, which is capable of being used to deprive the grantee of his possession, of a portion of the land, covered by his deed. Row the withdrawing through pipes, of water from a spring, is in no sense a deprivation of a part of the land; and hence, when a purchaser desires to protect himself, against the existence of such an easement oh his land, he must take a Covenant against incumbrances; or if the existence of it is concealed from him, and he has no such covenant, then he must sue for the deceit. (Rawle on Covenants of Title, 118, 120.) If this is a correct exposition of the law, the plaintiff was not entitled to recover for a breach of the covenant set out in the complaint, and the judgment should be reversed, unless the plaintiff will stipulate to deduct the amount allowed by the jury for the spring, in which event the judgment is affirmed without costs. Ordered accordingly.