This is an action for damages for an alleged breach of the covenant of warranty contained in a deed from the defendant to the plaintiffs.
The complaint states that the defendant has failed to defend to the plaintiffs the stone wall included in the "second piece" described in said deed, and that the plaintiffs have been evicted from a part of the premises by the operation of a judgment permanently enjoining the plaintiffs from removing the stones from said wall. *Page 113
In the appeal to this court the plaintiffs claim that the trial court erred in holding that the facts found failed to establish a breach of the covenant of warranty.
It appears from the record before us that in 1859, Samuel Colt owned a tract of land, of which that now owned by the plaintiffs was a part, bounded west by the Connecticut River and north by one Dowd. In that year said Colt, with the consent of Dowd, built at his own expense a stone wall, on the boundary line between them, from the river to an ash tree 250 feet east from the river. This wall was a massive structure, about 11 feet thick and more than 12 feet high at the river, and diminishing in size from that point for a distance of 130 feet, and of a general uniform height and thickness of about 3 feet from the latter point to the ash tree. The divisional line of the two properties is the middle of the wall throughout its entire length. While the wall incidentally serves the purpose of a divisional fence, it was chiefly intended as a permanent protection for the land north and south of it against damage from the river in times of flood. It still serves its purpose as a protection to the Dowd land on the north and the land embraced in the Colt tract on the south, but its main value so far as the plaintiffs' land is concerned was impaired when the use of that tract in connection with their ferry was abandoned by the Colts before the plaintiffs took their title.
After the death of Samuel Colt, the defendant, his devisee, on April 27th, 1876, by warranty deed conveyed the eastern part of said Samuel Colt tract to Roger Lang, describing it as "a certain piece of land with the buildings and appurtenances thereon (excepting as to a certain stone wall hereinafter mentioned) . . . : beginning at the angle formed by the north and west lines of land belonging to William Coburn, running thence southerly on line of said Coburn 121 feet, thence westerly on line of land belonging to myself 220 feet, thence northerly on line of my own land 43 feet to the stone wall above-mentioned and at right . . . thereto, thence easterly on line of said wall about 210 feet to the place of beginning. It being understood and agreed that nothing herein contained *Page 114 shall be construed to convey the right to remove said stone wall or any part thereof, the right to the maintenance thereof being expressly reserved."
On the 2d of December, 1892, the defendant conveyed the rest of said tract lying between the tract conveyed to Lang, as above stated, and the river, to the plaintiffs by warranty deed describing that part of the premises, called in the deed the "second piece," as follows: "a small piece of land at the Ferry landing, bounded north on land of Mrs. Dowd and Roger Lang, east on land of Roger Lang, south on Colt Street, and west on the Connecticut River, including the Ferry landing, wharf, and the stone wall bounding said land on the north, and also including that part of the wall which is north of land of Roger Lang, and which was reserved to the grantor in a deed from the grantor to said Lang, dated April 27th, 1876."
Thereafter — the plaintiffs having commenced to remove the stones from said wall, claiming that by their said deed from the defendant they became the owners of the entire wall and the land under it — the owners of the Dowd property north of the wall, by an action brought to the Court of Common Pleas of Hartford county, which action the present defendant assisted in defending, obtained a permanent injunction restraining these plaintiffs from breaking up and removing the wall. This judgment of injunction was not appealed from and is still in force.
In considering whether the judgment of the trial court in the present case was erroneous, the first inquiry is what part of, or what interest in, the wall or the land under it does the deed from the defendant purport to convey to the plaintiffs; and second, if it appears from the language of the deed that it was intended to convey to the plaintiffs some interest in the wall or in the land under it, is the judgment of injunction an eviction which works a breach of the defendant's covenant warranty?
It will be observed that the description of the interest sought to be conveyed in the easterly portion of the wall namely, that part north of the Lang tract, differs from the *Page 115 description of the interest conveyed in the remaining or westerly part of the wall north of the Ensign tract. The former is described as "that part of the wall which is north of the land of Roger Lang, and which was reserved to the grantor in a deed from the grantor to the said Lang, dated April 27th, 1876"; and the latter, as "the stone wall bounding said land on the north."
Looking at the Lang deed referred to, in order to ascertain what part of the wall north of Lang was reserved by the defendant, we find these words: "excepting as to a certain stone wall hereinafter mentioned, . . . it being understood and agreed that nothing herein contained shall be construed to convey the right to remove said stone wall or any part thereof, the right to the maintenance thereof being expressly reserved."
We find here no exception or reservation of the wall itself, nor of a right to remove it. The provision "as to" this stone wall, whether it be an exception or reservation, is that the grantee shall not take the right to remove it, and that the grantor shall have the right to maintain it. The fact that such a provision is made indicates an intention of the defendant to convey to Lang the land owned by her under this part of the wall, and in connection with that provision and the fact that the divisional line between the defendant and the land north of the Lang tract was the center line of the wall, the words in the deed to Lang, "thence northerly to the stone wall," and "thence easterly on the line of said wall," may properly be construed as defining Lang's north boundary as the center line of the wall.
When, therefore, the defendant in 1892 conveyed to the plaintiffs, she was not the owner of any land under that part of the wall north of the Lang tract, nor of any interest in that part of the wall itself, beyond the right to maintain it upon the land owned by Lang and that owned by Dowd north of Lang; and no greater interest in that part of the wall, or the land under it, than that which she thus owned is described in the deed to the plaintiffs.
As to the other part, or westerly end of the wall, the language *Page 116 of the plaintiffs' deed does not import that the entire wall north of their tract and west of Lang's land is conveyed to them. The center line of the wall is the divisional line between the defendant and the Dowd land on the north, and the wall being a part of the realty, the defendant owned only the south half of it, at this place. The deed itself bounds the plaintiffs on the north by land of Mrs. Dowd. The line thus defined is the controlling monument in the description of the northern boundary at this place, of the land intended to be conveyed. Post Hill Improvement Co. v. Brandegee,74 Conn. 338.
The words of the deed, "including the wall bounding said land on the north," are to be construed as meaning the wall on the land conveyed. The interest of the plaintiffs, therefore, in this part of the wall, as described in the deed from the defendant, is that which follows from the fact that the south half of this structure, which is a part of the realty, stands upon land conveyed to them. The fact that it is referred to in the deed by words which might indicate that it was a divisional fence or wall standing equally on the land of adjoining proprietors, does not, however, limit the plaintiffs to the use of it for that purpose. By the language of the deed itself, the plaintiffs' right to use this part of the wall is wholly unrestricted. The description of the premises conveyed, and the covenants in the deed, give the plaintiffs the same right of beneficial enjoyment of the south half of this part of the structure in question, and of the land under it, as of any other part of the land conveyed by the deed.
Have the plaintiffs been evicted from any part of the premises conveyed by the judgment of injunction?
The covenant of warranty is an undertaking that the purchaser and his assigns shall enjoy the land free from all incumbrances existing at the time of the grant. Proof of a forcible expulsion of the plaintiffs from some part of the land described in the deed is not required to render the defendant liable under her covenant of warranty. A judgment, the necessary effect of which is to deprive the plaintiffs of the power of beneficial enjoyment of a part of the granted *Page 117 premises, is a constructive eviction. King v. Kilbride,58 Conn. 109, 116; Russ v. Steele, 40 Vt. 310.
The judgment of injunction against the plaintiffs did not deprive them of the right, granted by the deed, to maintain the wall north of the Lang tract, and it was therefore not an eviction of the plaintiffs from that part of the premises conveyed.
As to the remainder, or westerly end of the wall, the plaintiffs by the judgment of injunction have been deprived of the right to use the south half of it for any other purpose than as a stone wall, and the land under it for any other purpose than as a support for such wall.
The record before us shows that the judgment of injunction is based upon facts, not appearing in the plaintiffs' deed, which show that the owners of the property on the north had a legal right to have the south half of this structure stand upon the land conveyed to the plaintiffs; that it was erected as a protection to the property on the north and south of it, and under the mutual agreement of the adjoining proprietors, that it should remain permanently, and not be subject to removal if at any time it ceased to serve as a benefit to Colt.
Whether, upon the facts, the plaintiffs in the injunction suit were entitled to have the wall remain upon the land of the present plaintiffs, is not a matter to be considered by us. That question was conclusively settled by the judgment in the injunction suit. The inquiry here is whether the right, established by that judgment, in the adjoining proprietors on the north, to have the south half of the wall permanently remain upon land conveyed to the plaintiffs, deprives the latter of the enjoyment of a beneficial right in that land granted to them by their deed from the defendant.
The defendant has covenanted in her deed to the plaintiffs that the premises are free from all incumbrances whatsoever. Unless it can be said that such outstanding right, which has been enforced by a judgment, is not an incumbrance upon the land, within the meaning of the words "all claims and demands whatsoever," against which by the words of her covenant of warranty the defendant has undertaken to defend the plaintiffs, the judgment of injunction was a constructive *Page 118 eviction of the plaintiffs from this portion of the premises conveyed.
It is argued that, since the rights of the two adjoining proprietors in the wall are mutual, the burden of the easement to which the land of each proprietor is subjected, is balanced by a corresponding benefit, derived from the easement to which it subjects the land of the other proprietor, and that therefore the easement to which the plaintiffs' land is subjected is not such an incumbrance or claim as will render the defendant liable under her covenant of warranty.
The authorities to which we are referred in support of this claim discuss questions arising from the easement which each owner of adjoining house lots has in a party wall, for the support of the buildings on his own land. Jones on Easements, § 632, defines a party wall as a "dividing wall between two houses to be used as an exterior wall for each." In several States the rights of adjoining proprietors in such walls are fixed by statute. The case of Bertram v. Curtis, 31 Iowa 46, which holds that a party wall is not an incumbrance, is based upon a statute under which the existence of a party wall would not be an incumbrance, and with reference to the provisions of which it is presumed the covenants of the deed were made. In the case of Mohr v. Parmelee, 43 N.Y. (Super. Ct.) 320, the question of whether a party wall could stand equally upon the land of adjoining proprietors was not raised. The wall in that case stood wholly upon one of the adjoining lots, and the right of the proprietor of the other to use it as a party wall was held to constitute an incumbrance upon the lot on which the wall stood. To the same effect is Giles v. Dugro, 1 Duer, 331. The case of Hendricks v. Stark,37 N.Y. 106, which seems to support the defendant's contention that a party wall is not an incumbrance, was an action to enforce the specific performance of a contract for the purchase of a hotel in the city of New York, which the defendant refused to complete upon the ground that two of the walls of the hotel were party walls supporting buildings on adjoining lots. The court, in deciding that the plaintiff was entitled to recover, held that "a party wall, creating a community of interest *Page 119 between adjoining proprietors is in no just sense to be deemed a legal incumbrance upon the property." But the court adds that, even if this were otherwise, the plaintiff was entitled to a decree, since after full opportunity of examination the defendant approved of the form of the proposed conveyance and executed a bond and mortgage for the balance of the purchase price.
The basis of the decision in this and other cases cited, that a party wall is not an incumbrance, seems to be that the lands of the adjoining owners are necessarily equally benefited and equally burdened by such party wall. But even as applied to party walls, the correctness of this rule has been denied in actions at law for a breach of the covenants of a deed. Mackey v. Harmon, 34 Minn. 168, 172, cited with approval in Burr v. Lamaster, 30 Neb. 688; Edmunds' Appeal (Pa. 1887), 8 A. 31. In 8 Amer. Eng. Ency. of Law (2d Ed.), pp. 125, 126, where authorities upon this question are collected, it is stated, in the article on Covenants, that while it has been said that a party wall standing equally upon the land of adjoining proprietors does not constitute an incumbrance upon the land of either, the law has with reason been declared to be otherwise. In Mackey v. Harmon, 34 Minn. 168, the court, after defining an incumbrance as a right or interest in a third person in land to the diminution of its value (2d Greenl. on Ev., § 242), says: "The existence of the incumbrance does not depend upon the extent or amount of the diminution in value. If the right or interest of the third person is such that the owner of the servient estate has not so complete and absolute an ownership and property in his land as he would have if the right or interest spoken of did not exist, his land is, in law, diminished in value and incumbered."
In the case before us it appears that Colt in erecting this wall, and the Dowds in permitting it to be erected partly on their land, were "fully awake to the advantages of the structure both as a protection to Colt's slip and as a protection to Dowd's land;" that it was expressly provided in the original agreement that it should permanently remain, even *Page 120 if it ceased to serve as a benefit to the Colt property; that the main value of the wall, as to the plaintiffs' land, was impaired before the plaintiffs took their title, and that the plaintiffs now claim that the value of their property is diminished by the fact that they are compelled to allow this wall to remain on their land, and are not permitted to use their part of the wall, and the land under it, for other purposes than those to which they were dedicated by said agreement.
Upon the facts before us, the easement of the owners of the land on the north, entitling them to have the wall remain on the plaintiffs' land, is an incumbrance upon the plaintiffs' title to the south half of this part of the wall and the land under such south half, and it is none the less an existing incumbrance because the plaintiffs have an easement upon the land on the north. Hubbard v. Norton, 10 Conn. 422, 431. This incumbrance is not excepted from the covenant of warranty, and the judgment of injunction, establishing the incumbrance and enforcing its use against the plaintiffs, constitutes an eviction. Since the plaintiffs cannot remove the incumbrance they are entitled to compensation for the depreciation in the value of their land occasioned by it. 3 Sedgwick on Damages (8th Ed.), § 967; Fagan v. Cadmus, 46 N.J.L. 441,445. If it is a benefit, or is not an injury to the plaintiffs' land, to have the wall permanently remain, as provided by the agreement between Colt and Dowd, and directed by the judgment, they are entitled to only nominal damages. Hubbard v. Norton, 10 Conn. 422, 435. In determining what damage the plaintiffs have sustained, the entire agreement, including the value of the plaintiffs' easement upon the Dowd land, is to be considered, the question being how much less, if any, is the plaintiffs' land, described as the "second piece," worth, with the mutual easements and servitudes created by the agreement and judgment, than it would have been without them. Mackey v. Harmon,34 Minn. 168, 173.
The trial court erred in holding that the judgment of injunction was not an eviction, and in rendering judgment for the defendant. *Page 121
There is error and a new trial is granted.
In this opinion TORRANCE, C. J., and BALDWIN, J., concurred; HAMERSLEY and PRENTICE, JS., dissented.