Mitchell v. Stanley

Granger, J. This case comes here on a motion for a new trial by the plaintiffs, and the only question raised by the motion is—whether the plaintiffs were entitled to recover the sum of $750, instead of $10 and interest. We think the plaintiffs are entitled to recover the larger sum. The case finds that, they paid full value for the land, and that by reason of the incumbrance the land was worth $750 less than it would have been without it. They therefore have sustained a loss of $750, and the defendants are bound by their covenant to make good this loss, it being the actual damage the plaintiffs have sustained by reason of the breach of the covenant. It is laid down as law in many of the cases cited in the defendants’ brief, that the plaintiff in cases of this sort is entitled to recover actual damage, and the defendants insist that the $10 is the only actual damage that the plaintiffs have sustained. It is true that this is the only direct damage they have received from the exercise of the right of way. But is this the only actual damage ? We think not. The incumbrance is permanent and perpetual and the estate of the plaintiffs forever burdened with this servitude, which they have no power, as a matter of right, to remove, and which diminishes the value of their land to the amount of $750. The true rule of damage we think is well stated in 3 Washburn-on Real Property, (Vol. 2, 2d ed., 730,) as follows:—“If the incumbrance be of a permanent character, such as a right of way, or other easement which impairs the value of the premises, and cannot be removed by the purchaser as a matter of right, the damages will be measured by the diminished value of the premises thereby occasioned.” This rule is sustained by cases cited in the plaintiffs’ brief. Wetherlee v. Bennett, 2 Allen, 428; Woodbury v. Luddy, 14 [318] Allen, 6; Harlow Thomas, 15 Pick., 69; Rawle on Covenants, 291; Sedgwick on Damages, 6th edition, 199; Norton v. Hubbard, 10 Conn., 435. We think-111at the above rule is clearly applicable to this case, and is decisive of it. There can be no doubt that $750 is the actual damage sustained by the plaintiffs, as much so as if there had been a breach of the covenant of seizin, and the quantity of land described in the deed had fallen short to the amount of $750. No one wordd question but that the defendants would be bound in that case to pay that amount. Again, if the incumbrance had been a mortgage and the plaintiffs had been obliged to pay $750 to remove it, there can bo no doubt that this sum would be the measure of damage. We can see no difference in the result to a plaintiff, whether this loss is occasioned by failure of title to a portion of the land, or by his having to pay more money to remove a mortgage, or by his property being rendered less valuable by reason of the encumbrance. For these reasons we think a new trial should be granted. In this opinion the other judges concurred.