[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 426 The principal attack upon this judgment is based upon a doctrine which we have recently approved. (Green v Collins, MSS., Oct. 4, 1881.*) We held in that case that a conveyance of land, though transferring whatever is properly and lawfully appurtenant to the subject of the grant, does not convey an easement which has no lawful or valid existence as such, although it may seem or appear, as matter of fact, to be attached to the land. And this upon the obvious ground that mere general words, or presumptions arising from the character and uses of the property conveyed, cannot justly be construed *Page 427 to pass a right or easement in another's land, which the grantor cannot effectually grant, and which his deed, on its face, does not necessarily purport an intention to convey. We further held that the ordinary covenant of warranty is co-extensive only with the grant, and does not reach or operate upon any thing beyond it, and what the deed does not purport to convey the covenant cannot be said to warrant. The application of this doctrine to the present case is accomplished by limiting the entire controversy to the flowing of Felt's land, and treating that as an easement in the property of a stranger from which alone the plaintiff had been evicted. If there was nothing else of the case the doctrine referred to would be decisive. The grant might be held not to pass the pretended easement, and, therefore, its loss would break no covenant of quiet enjoyment. But that is not this case. It has in it another and very important element, the possible effect of which, in cases of the conveyance of a mill property, we broadly intimated in Green v. Collins, might lead to a different result. The conveyance here was of that character. It transferred, within its metes and bounds, a dam and water-power essential to the full enjoyment and operation of a plaster-mill. It conveyed the dam, as it then stood, at its existing and apparent height, representing sufficient head and adequate power to drive the mill successfully and properly. The power thus created and stored was the essential and material element of value in the mill property which was the subject of the conveyance, and was alone measured and secured by the dam at its existing height. It stood, with its slash-boards, in plain sight of the purchaser, and formed largely the ground and reason of his purchase. He had a right to assume that it stood lawfully at its existing height, that his deed would pass it at the same height, and allow him rightfully to maintain it unchanged, and so preserve to him the water-power which was the important and essential element of his purchase. By every rule of fair construction the deed of the grantor purported to convey the dam as it existed, as it stood, and the water-power it thus indicated and measured, if not in terms, at least as an incident of the grant. *Page 428
From the thing thus conveyed, itself covered by the deed and passing under it, the grantee was evicted by a paramount title. It caused an overflow of Felt's land. As to the latter, it became a nuisance, which he might lawfully abate. (Brown v. Bowen,30 N.Y. 519; Thompson v. Allen, 7 Lans. 459). If in pursuance of that right he had come upon plaintiff's premises, and torn down so much of the dam as occasioned the overflow, he would have exercised a right and evicted the plaintiff from the enjoyment of a part of the property conveyed by the deed. He did this just as effectually by his action for damages. That vindicated his right and compelled by law a reduction in the height of the dam. The grantee, therefore, was not merely deprived of an easement in another's land which was not conveyed, and which his deed did not purport to convey, but he lost by force of the paramount title a thing actually conveyed, included within the metes and bounds of his deed, and just as much property granted by that conveyance as if it had been a particular acre of the land. Considering the subject-matter of the grant, the peculiar character of the property as a water-power and a mill-site, the existence of the dam at a height essential to that power, and to the full enjoyment of the property, we hold that the deed conveyed the dam at its existing height, and the covenant of warranty was broken when the grantee was compelled, in whole or in part, to take it down. The case, therefore, does not come within the rule ofGreen v. Collins, nor is it like Burke v. Nichols (2 Keyes, 670). In neither of these cases was the grantee evicted from any thing which passed by the grant. That plain line of distinction separates both from a case like the present, where the thing lost was covered by the conveyance, and embraced within its description, and the deed both conveyed, and, as we construe it, purported to convey, the identical thing destroyed by a paramount title. The justice of the rule is entirely clear. It does not permit the vendor of an apparent water-power to get a price for what he does not own, or indulge him in a palpable fraud upon his vendee. It rests upon the general principle that the covenants in a deed are designed to protect the *Page 429 grantee in the enjoyment of his property, in the manner and for the particular purpose intended by the parties at the time of executing the deed. (Comstock v. Johnson, 46 N.Y. 615;Voorhees v. Burchard, 55 id. 102.)
It is further objected that the plaintiff purchased with full knowledge of the overflow of Felt's land and was chargeable with notice of his claim. We have discovered no evidence of any such fact. The careful and excellent brief of the learned counsel of the appellant turns our attention upon this point to but a single item of evidence, and that seems to us inadequate for the purpose. The plaintiff was told that Loveland, whose land as matter of fact adjoined Felt's, had sued the defendant for damages occasioned by the raising of the dam; that it had been raised and the defendant had been obliged to buy Loveland's land in order to maintain the dam. It further appeared that on the trial of the Felt suit the present plaintiff admitted the flooding of the former's land, but claimed a prescriptive right to do so. These facts are not suggestive of the knowledge claimed. On the contrary, they serve to strengthen our idea that the plaintiff bought under the clear conviction that the dam stood lawfully at its existing height, and without either knowledge or suspicion that it was creating an illegal trespass upon the lands of Felt.
We think the judgment-rolls in the two actions brought by Felt, and the evidence given of what was in fact litigated upon their trial, were properly admitted. While the complaints in those actions charged the erection of the dam by the present plaintiff and John Conover after their purchase, the answers explicitly allege that the dam was simply rebuilt by them after a flood which partially washed it away, and was merely restored to its original height as it stood when they purchased, and as they claimed it had stood while in the possession of their grantors. The precise question involved was, therefore, their right to maintain it at such height as against the claim of Felt. The oral evidence tended to show that no proof was given of any excess in the height of the dam due to the acts of Adams and *Page 430 Conover, beyond that existing at the date of their purchase. (Smith v. Smith, 79 N.Y. 634.)
An exception was taken to the charge of the court that the slash-boards were to be treated as a permanent part of the dam. It is claimed that a question of fact existed upon that point, which should have been submitted to the jury. The evidence shows that a portion of the dam was ten inches lower than the remainder, and that depression was filled up with slash-boards whenever the mill was running, and they were usually removed in times of freshet, or very high water. Plaintiff swears the slash-boards were on when he bought. Defendant only says he don't "think" they were, but admits that they were always in use to keep the water up when grinding was to be done. We do not see any error in the charge in this respect.
The objection that the covenant sued on runs with the land and plaintiff lost his right of action when he parted with his title is answered by the fact that the damages suffered all accrued before his sale. (Hamilton v. Wilson, 4 Johns. 72; Beddoe'sEx'r v. Wadsworth, 21 Wend. 120.)
Several other exceptions were taken, which we have carefully examined without finding sufficient reason for a reversal of the judgment. No useful purpose requires their detailed discussion.
The judgment should be affirmed, with costs.
All concur, except DANFORTH, J., taking no part.
Judgment affirmed.
* 86 N.Y. 246.