Russ v. Steele

The opinion of the court was delivered by Prout, J. This ease comes into this court upon demurrer to the plaintiff’s declaration, which, with formal averments, alleges an outstanding right of way over the premises of the plaintiff. The plaintiff claims that this outstanding right of way constitutes a breach of the covenant of warranty contained in the deed from the defendant to Littlefield, whose title the plaintiff acquired by virtue of certain intermediate conveyances as set forth in his declaration. The right of way is in William Steele, and used by him in passing to and from premises owned by him adjoining the plaintiff’s, and is established by the adjudication and judgment of a court of competent jurisdiction, and concludes the plaintiff with reference to the premises affected by it and owned by him, the former grantor having been vouched to defend in that proceeding or suit. The deed upon which the plaintiff bases his right to recover in this action, in terms conveys the entire interest and estate'in the premises described in the declaration, and such would be its effect were it not for the existing right of way. The covenant upon which the plaintiff declares, is co-extensive in its application with the title or estate the deed purports to convey, and containing as it does, covenants against incumbrances and of warranty, the only question is, whether the right of way is within the terms and scope <5f the covenant of warranty, and constitutes upon the facts set forth in the declaration, a breach of it. The covenant is expressed in this language, that the defendant “ will warrant and defend, &c., to the said Littlefield, his heirs and assigns against all lawful claims whatsoever,” and would seem not to admit of misconstruction. It extends to all lawful outstanding adverse claims upon the premises or any part conveyed by the deed; and as expressed and as no doubt the parties to the deed intended, is an undertaking on the part of the covenantor, to defend the title [315] and estate against all lawful adverse claims, however limited, which necessarily affect the full and complete possession and -enjoyment of the premises to which it relates. As remai-ked by Royce, J., in respect to a similar covenant in Williams v. Wetherbee, 1 Aik. 233, “ it is something more than a covenant for quiet enjoyment. It is a covenant to defend, not the possession merely, but the land, and the estate in it.” Such being the scope and extent of the covenant declared upon, it would seem to follow, that an existing, outstanding right of way across the plaintiff’s premises, used and enjoyed as such, call it what we may, is such a claim or right as interferes with the possession of the proprietor, and affects the estate, both in quantity and value, and falls within the terms and spirit of the covenant. The plaintiff does not get such an estate or title as his deed, by its terms, ought to secure him, and this being so, the case is directly within the principle of the recent case of Clark v. Conroe’s Estate, 38 Vt. 469. And, we think, the occupation of the way, in such a manner as the nature of the right secures to the adjoining proprietor, as occasion may require, and for all time, is such a disturbance of the possession of the plaintiff, as in law amounts to an eviction to the extent of the adverse right or claim, and that the covenant declared upon, attending and running with the land as it does, entitles the plaintiff to his action. •The judgment of the county court is reversed, and cause remanded.