Scriver v. Smith

Boaedman, J.: Neither Adams v. Conover (87 N. Y., 422), nor Green v. Collins (86 id., 246), seem to me strictly to apply to the ease before us. One Douglass here owned a water-power, dam, etc., next below the premises conveyed by defendant to plaintiffs by warranty deed. At the time such deed was given the dam of Douglass did not back water upon the premises described in the deed, but the right existed, and was afterwards exercised by Douglass, to raise his dam ten inches, whereby the water of the river was thrown back upon said premises. Was the exercise by Douglass of this conceded right such an act as gave to plaintiffs the right of action under the covenant of warranty, and for quiet enjoyment contained in defendant’s deed to them. ' ' • It is not whether the plaintiffs took an apparent easement to discharge a sewer upon a stranger to the deed as in Green v. Collins, nor whether they took an apparent easement to maintain water upon the lands of a stranger to the deed. The question here presented is whether the plaintiffs are entitled' to have, possess and enjoy what they bought. The lands are described in the deed by metes and bounds. The vendor has given the common covenants of warranty, and for quiet and peaceable possession of the premises cenveyed. The adjoining owner below establishes and exercises his legal right to flood a portion of said lands with water by his mill dam. The principle would be the same if his right authorized him to flood every rod of the land conveyed to the plaintiffs. Would such an act, legally done, constitute a breach of the defendant’s covenant ? Is the plaintiff, in legal effect, deprived of the possession, of the use, of the enjoyment of such lands as are under water by virtue of Douglass’ right? If the plaintiffs’ possession is taken away by a paramount title the action will lie for a breach of the covenant for quiet enjoyment. It is as effectually taken away in this ease at the election of Douglass as though he had the title in fee simple. To the extent that the lands deeded by defendant to plaintiffs are taken possession of by Douglass to maintain his dám and sustain his head of water, the plaintiffs are injured and have their action for the breach of the covenant. It has been so decided in an analogous case in this department in Rea v. Minkler (5 Lans., 196). That was a private right of way over the lands, a much less [132] obnoxious disturbance of possession than the present. The case of McMullin v. Wooley (2 Lans., 394) relates to carrying water in pipes underground where the Use and occupation of the lands are not sensibly affected. So) of Whitbeck v. Cook (15 Johns., 483), relating to a highway of which the owner has the use, possession and. title subject only to the public right of way.' It is difficult to reconcile or distinguish all cases to be found in the books on this subject. But it seems proper to follow the decision of our own court until it is overruled. This conclusion, I insist, is just and reasonable. It gives to the parties what they had a right to expect under their contract. It gives to the plaintiffs what they bought, or damages for its loss. It subjects the defendant to liability for selling what he did not own, and agreeing that plaintiffs should have and enjoy it. Many cases indicate that the plaintiffs should have required covenants of seizin or against incumbrances in order to maintain an action for such cause as this. The old English law was very technical in its requirements. To a considerable degree those technicalities are still retained. But there is a growing tendency to disregard unmeaning and useless rules, and to search for and administer justice when it can be done. This is an appropriate case for the exercise of any legal power the -court may possess in giving a remedy, if the wrong shall be made to appear, rather than turn the plaintiffs out of court upon a technicality. The interlocutory judgment should be affirmed, with -costs, with the usual leave to answer, etc. Bookes, J., concurred.