(dissenting):
There is in the complaint, as it will be seen, a general allegation that the plaintiffs have not been permitted peaceably to enjoy, etc. No force however has been given to these general words, upon the argument of the appeal. They are probably insufficient by themselves to show a breach. Nor has any force been given to the allegation of the plaintiffs’ purpose in the purchase or of the defendant’s knowledge. The question argued has been whether the facts stated constitute a breach of the covenant.
*133The deed is the .usual warranty deed. It describes the land simply by metes and bounds. It does not describe it as a mill site, or even as land partly covered by a stream of water, So far as the deed is concerned, it cannot be told what was on the land, if any thing. It adds the usual phrase “with the appurtenances,” and concludes with the usual covenant of warranty, making no special covenant of any kind. We may however consider that it is admitted by the demurrer that, at the time of the conveyance, there was on the premises a water power, and a flouring mill run thereby.
Yet if may be doubted whether that circumstance is important on the mere question of eviction, although highly important, if there be an eviction, upon the question of damages. The alleged eviction consists in this: That a person, owning land next below the plaintiffs on the river, lawfully raised, as he had a right to do, his dam, without plaintiffs’ permission, some eight inches higher than it was at the time of the conveyance; the effect of which act was to set back the water of the river upon plaintiffs’ land, to overflow a part, to obstruct plaintiff’s waterwheel and to undermine their buildings. The obstruction of the waterwheel and the undermining of the buildings were- only aggravations of the alleged injury. An overflowing of the plaintiffs’ land would be, in kind, the same wrongful act. That is to say, if the raising of the dam and the consequent setting back of the water is an eviction, because it impeded the plaintiffs’ wheel and undermined their buildings, it would follow that, in a less degree, such raising of the dam and setting back of the water would be an eviction if it only caused an overflow of the plaintiffs’ land. And, of course, the only question here is whether there was an eviction. No one will dispute that to recover on such a covenant as this there must be an eviction.
It does not seem to be necessary to give any effect to the word “ appurtenances.” "Whatever is by right appurtenant passes without that word., (Huttemeier v. Albro, 18 N. Y., 48.) ' Whatever is not by right appurtenant of course does not pass. And though an easement appeared to be appurtenant, but was not at the time of the conveyance, yet the ordinary covenant of warranty does not warrant its enjoyment. (Green v. Collins, 86 N. Y., 246.) Of course, if the apparent easement be over the land of the grantor, it passes by the grant (Lampmann v. Milks, 21 N. Y., 505), that *134is, if its existence were known to the grantor. (Tabor v. Bradley, 18 N. Y., 109.)
So far, then, as the defendants’ rightful act affected, or took away, only an easement’ which, at the time of the conveyance, appeared to be appurtenant to the premises, it was not an eviction which gave a cause of action upon the covenant of warranty. This seems to be definitely decided by Green v. Collins (ut supra). That was the exact point discussed in that case and passed upon by the General Term. (27 Sup. Co. [20 Hun], 474.)
It is however claimed that the present case is controlled by the decision in Adams v. Conover (87 N. Y., 422). These two cases are analyzed and compared in 25 Albany Law Journal, 279, and the distinction is there supposed to be that the easement in the one case related to a dam; in the other, to a drain. But, as the court in Adams v. Conover adhere to the doctrine of Green v. Collins, it is necessary to see, if possible, what the distinction is.
There are some expressions in the opinion in Adams v. Conover which I suppose cannot be exactly accurate. It is said that the grantee ‘‘lost, by force of the paramount title a thing actually conveyed.” Again “ the deed conveyed the dam at its existing height.” Again, “ the deed both conveyed,, and as we construe it, purported to convey the identical thing destroyed by a paramount title.” Now I suppose that, if the thing had been in fact conveyed by the deed, it could not have been lost by the paramount title. The grantee lost what was not conveyed by the grant, but what the covenant bound the grantor to protect. Covenants of warranty are broken, because the deed does not convey the thing which it purports to convey; and hence the grantee is evicted by a paramount title.
So again, it is said in the opinion that, in Green v. Collins, the grantee was not evicted from anything wMch passed by the grant. Certainly not, because if it had passed by the grant, he could not have been evicted. The question in all these actions on covenant is not, what passed by. the grant, but to what did the covenant bind the grantor. Now in Adams v. Conover there was a dam on the premises, the effect of which was to overflow the land of one Felt, lying higher up on the stream. The court say that, if there were nothing else of the case than the apparent easement on Felt’s *135land, such apparent easement would not be within the covenant of warranty. But they say that the deed (not of course by any express language therein), purported to convey the dam as it existed, as it stood and the water-power, it thus indicated and measured. And that, as the plaintiff was compelled to reduce the height of that dam, he was deprived of a part of the property which the deed purported to convey. I understand then the court to hold that the apparent easement to flood Felt’s land was not guaranteed by the covenant; but that the existing height of the dam was. And that where the grantee was compelled to lower his dam, the covenant was broken. That is to say, I understand the decision to Fold that the ordinary covenant of warranty guarantees the right to retain all structures upon the premises in the same condition in which they were at the time of the grant, excepting, perhaps, sewer pipes in a building. (Green v. Collins.)
Chancellor Kent says that there are implied, as well as express, covenants concerning land. (4 Kent Com., 473.) But now, by the Revised Statutes, no covenant shall be implied in any conveyance. (1 R. S., 738, § 140.) I suppose therefore that, even if the premises either in the present case or in Adams v. Conover, had been described as containing a water-power, there would be no implied covenant that such water-power existed. Or if the deed had described the height of the water-power I suppose that no covenant could be implied as to the height. The doctrine, then, of Adams v. Conov&r must be that the mere covenant of warranty guarantees to the grantee the right to retain all structures on the land, as they were at the time of the grant, excepting probably sewer pipes in a building.
It seems to me that in Adams v. Conover the court holds that a lawful prevention by paramount title of the overflowing of Felt’s land was not a breach of the covenant of warranty. But that a lawful lowering of the structure of the dam by such paramount title was such breach. If, in that case, the water had not overflowed Felt’s land, but if Felt had had the right to require the dam to be lowered, the decision must have been the same.
The plaintiffs’ counsel urges that the vendor is not to be permitted to indulge in a palpable fraud upon his vendee. On this point, however, notice that in an action upon the covenant of war*136ranty, the defendant cannot give parol evidence to control tbe effect of the deed. If tbe grantee bad known of tbe right of Douglass to erect tbe obstruction, still tbe grantor would bave been equally liable. (Mott v. Palmer, 1 N. Y., 574; Suydam v. Jones, 10 Wend., 180; Jackson v. Croy, 12 John., 427.) But if tbe acts of Douglass are a breach of the covenant of warranty, made by tbe defendant, then it mattei’s not -that tbe plaintiff was informed before be purchased, that Douglass bad this paramount right. Tbe question is not one of fraud but of contract. And if tbe defendant chose to execute such a covenant as would be broken by tbe exercise of tbe right which Douglass had, be could do so, even though tbe grantee knew of Douglass’ rights. If tbe grantee, on the- other band, did not take proper covenants, then be could not recover, whether tbe grantor bad title or not.
Tbe case of Mott v. Palmer (1 N. Y., 564) arose on a covenant of seizin, not on a covenant of warranty. It was held that tbe lawful taking away.by paramount title of a fence which stood on tbe premises at the time of tbe conveyance was a breach of that covenant. Tbe reason was that a covenant of seizin of tbe land was a covenant of seizin of all that was attached thereto, so as ordinarily to be a part thereof. If the action bad been one on tbe covenant of warranty, and if tbe grantee, instead of losing title to bis fence bad only been required to lower it, without any loss of title, probably the plaintiff would not bave recovered.
In Burke v. Nichols (2 Keyes, 670) a bouse, standing principally on tbe lot, conveyed with full covenant, projected fourteen inches on an adjoining lot. From,these fourteen inches tbe grantee bad been evicted. It was held that no cause of action existed on tbe covenants. If then in Adams v. Conover tbe grantee’s dam bad been partly on Felt’s land and be bad been compelled to take it down altogether, it would seem that be could not have recovered on his covenants.
Now in this present case tbe plaintiffs bave been prevented from having tbe free flow of tbe stream over tbe land lying below them, as it existed when they purchased. What is tbe nature of tbe right which the plaintiffs would otherwise have had ? They would not even then bave owned tbe land below them. They would not bave owned tbe water which flowed across their land and - upon that *137below. (2 Bl. Com., 18; 1 Bracton, 7.) Bnt they would'have had, as is sometimes said, an easement in the land below, viz'., the land of Douglass and of others for the free passage of the water from their land. (Cary v. Daniels, 5 Metc., 236; Prescott v. Williams, Id., 429; Angell on Watercourses, § 8.)
The obstruction put in the stream by Douglass and the consequent setting back of water on plaintiffs’ land is either: 1st. An interference with an easement which would (but for Douglass’ right) belong to plaintiffs, viz., the easement of having the water flow off. In that case it is not a breach of the covenant of warranty as is clearly decided in Green v. Collins and in Adams v. Conover; or, 2d. It is an easement of Douglass which he exercises over land of the plaintiffs. In that case such easement is not a breach of the covenant of warranty. (Janes v. Jenkins,_ 34 Md., 11; Hendricks v. Stark, 37 N. Y., 106; McMullin v. Wooley, 2 Lans., 394; Whitbeck v. Cook, 15 Johns., 483; Mitchell v. Warner, 5 Conn., 497.) To say that every easement which exists over a piece of land is a breach of the covenant of warranty of that land is to confound, as I think, that covenant with. the covenant against incumbrances. Nor do I see how the rule can be applied that there must be an eviction to constitute a breach. Suppose a vacant lot is conveyed with covenant of warranty. In fact, the lot is subject to an easement in behalf of adjoining lots, that any house built thereon must stand a certain distance from the street. When is there an eviction? The easement is in existence at the very date of delivery of the deed. Was the grantee then evicted?
I suppose that the Bevisfed Statutes intended to require grantees who desired to protect themselves to have the necessary covenants inserted to leave nothing to implication or inference. It has been well settled that the covenant of warranty was broken only by eviction ; that is, by the actual taking away the whole or some part of the land which by the deed purported to be guaranteed. Mere limitations or restrictions upon the use of the land are not evictions. The title remains in the grantee and the possession. The easement may be a great incumbrance. But a covenant of warranty is not a covenant against incumbrances. And a covenant of quiet enjoyment is practically the same as a covenant of warranty.
*138I think the judgment should be reversed and judgment for defendant given on the demurrer, with costs.
Judgment affirmed, with costs, with usual leave to answer.