The allegation is an eviction from a strip of land along the northern boundary line — six feet wide at one end and two feet wide at the other — being an insignificant portion of the farm conveyed by the deed. The proof is an injunction restraining the plaintiffs from destroying a wall, standing one half on the strip described and the other half on a similar strip belonging to the Dowds, so as to protect the land of the latter as well as of the plaintiffs from the ravages of the annual floods. If such equitable protection of the land of the adjoining proprietor puts the plaintiffs out of possession of the strip of land described, the allegation of eviction is proved; otherwise it is not.
The judgment relied upon as proof of a substantial eviction, in fact recognizes and confirms the plaintiffs' title to the land, and possession thereof. It upholds the plaintiffs' legal title to and possession of the land, and holds that, by reason of that title and possession and the conditions of the adjoining proprietors in their relation to the river that flows by both, each has a beneficial interest in the massive boundary wall which serves the purpose of a natural rock, dividing the properties and protecting both from destruction by the river, and that upon these conditions a duty arises restraining each from destroying this protecting boundary, which equity will recognize and enforce.
Assuming this legal conclusion of the judgment to be law, it seems clear that the enforcement of such a duty by injunction is not substantially, nor in any way, an eviction from the land whose ownership and possession gives rise to the duty enforced.
The possession of land, as of all property, carries with it certain duties, especially the duty of so using one's own property as not to injure others. These duties frequently arise in respect to adjoining lands, sometimes from the natural *Page 122 conditions of the land itself, sometimes from the conduct or agreements of the adjoining owners, and sometimes from a combination of both causes. However the duty arises, it is in some way a beneficial interest in the land belonging to and in possession of another, but perhaps never comes within the definition of an easement, where the duty arises from conditions independent of any actual or presumed agreement.
Treating the judgment as establishing and enforcing an easement, which is the view of the matter most favorable to the plaintiffs, it is clearly an easement consistent with the ownership and possession by the plaintiffs of the land conveyed. It is well settled that the exercise of such an easement is not an eviction, and is not a breach of the covenant of general warranty. The covenant of general warranty is a real covenant, peculiar in its origin and limited in its effect. It is not a covenant against incumbrances, or even of seizin. Its purpose is to secure the grantee against dispossession of land by persons claiming under a paramount title.Giddings v. Canfield, 4 Conn. 482; Mitchell v. Warner, 5 Conn. 497. It therefore cannot be broken unless the grantee is in reality dispossessed of the land conveyed. This dispossession may be either a literal or substantial one; but in either case, it must be an actual dispossession. "A turning out by the shoulders," to quote Lord Mansfield, "is not necessary to constitute an ouster." It is sufficient if an act has the same effect and falls within the same reason. Mitchell v. Warner,5 Conn. 497, 521. The existence of an incumbrance at the date of the deed is not a breach of this covenant. It is true that there may be an incumbrance of such a nature that it may ripen into a paramount title to the land and involve an actual dispossession of the grantee equivalent to an eviction, and so establish a breach of a covenant of general warranty. Such is the case where a prior mortgage has been foreclosed and judgment obtained whereby the mortgagee takes possession under a paramount title. King v. Kilbride, 58 Conn. 109,116. But the exercise of an easement which is consistent with ownership and possession of the land conveyed is not an eviction, either literally or in substance. Mitchell v. Warner, *Page 123 5 Conn. 497, 516; Alling v. Burlock, 46 id. 504; King v.Kilbride, 58 id. 109. It is clear that if the full and continuous enjoyment of the rights secured by an easement is not an eviction, a judgment restraining the grantee from so interfering with those rights as to cause irreparable damage to adjoining land cannot be an eviction. In neither case is there an ouster of the grantee under paramount title.
It may be doubtful whether such mutual interest in the continuance of a boundary wall situated equally upon adjoining land and serving as a mutual protection to the land of the adjoining proprietors is in itself an incumbrance within the meaning of the covenant against incumbrances, but it is certain that it never can ripen into a title to land, or be capable of exercise so as to deprive the owner of his possession.
It may also be doubtful what effect should be given, in view of all the facts found, to the language of the deeds from the defendant to the plaintiffs in respect to the boundary wall. It may be claimed that in addition to the conveyance of the land described the deed grants a right to maintain the existing wall on the land of the Dowds. If this be so, it is the grant of an easement to which the covenant of general warranty does not attach, and the plaintiffs have not been evicted from the land conveyed. Or it may be claimed, that in addition to the land conveyed the defendant sold the plaintiffs her interest in the mutual easement pertaining to the wall described. If this be so, the plaintiffs clearly enjoy everything the deed conveyed. Or it may be claimed, that in addition to the land conveyed the defendant sold to the plaintiffs the material of the wall, as if it were a loose pile of stones. If this be so, it is clear that any failure to deliver the property sold has no relation to the general warranty of the land. There is no reasonable view that can be taken of the contracts of the parties in respect to this wall which justifies the claim that the plaintiffs have been evicted from the land conveyed in violation of the covenant of general warranty.
I think there is no error in the judgment of the Court of Common Pleas.
In this opinion PRENTICE, J., concurred. *Page 124