These exceptions cannot be sustained. The action is upon the breach of a covenant against incumbrances in a conveyance of land. The incumbrance was a right of way over the land, which subsisted at the time of the conveyance and for some time after. The defendant contended that the evidence showed that the plaintiff had never been disturbed in the enjoyment of his estate by any user of the way, and that the right of way had been extinguished without expense; and asked that the jury should be instructed to return a verdict for nominal damages only; but the judge declined to give these instructions. It does not follow from these facts that no actual damages had been sustained. While the right of way lasted, the plaintiff was precluded from using the part of the land covered by the way as fully as he otherwise might have done. He could not set a tree, or a post, or a building upon it; or enclose or cultivate it; or sell or lease it to any person to whom such an incumbrance would be objectionable. It was an apparently permanent subtraction from the substance of the estate.
The defendant then contended that the measure of damages was a just compensation to the plaintiff for the real injury resulting from the incumbrance. This was the correct rule, as *430was held by this court in Harlow v. Thomas, 15 Pick. 66, and in Batchelder v. Sturgis, 3 Cush. 201. And this rule was adopted by the judge, with the qualification that it must be “ the real injury resulting to the estate in its market value from the incumbrance.” We do not think this qualification made the instruction erroneous. The jury were not confined by it to the value of the estate merely for the purposes of immediate sale, but rather were directed to exclude from their consideration any special purposes or uses peculiar to the owner for the time being, which had not formed the basis of the contract when he purchased it. The market value is substantially the value to owners of such property generally, for all the purposes of ownership.
In Batchelder v. Sturgis, it was held that evidence was inadmissible that the purchase was made with a particular view to a resale, and that the opinion of experts of the effect of the incumbrance upon a sale could not be given to the jury. In that case, the incumbrance was a lease, and it was considered that an opinion upon the effect of a lease upon a sale would be in its nature imaginary and conjectural, and therefore of no value. But in the case at bar the plaintiff was not allowed to show that he purchased the estate for the purpose of selling it again; and the incumbrance being an easement, which impaired the permanent value of the estate for all purposes and uses, the opinion of skilled witnesses as to the difference in market value occasioned by the incumbrance was rightly admitted. The fact that an estate can be sold is one of its elements of value, and is not to be excluded from consideration; though it is not to be considered as a reason for enhancing damages that the purchaser acquired it for the special purpose of selling it again directly.
Exceptions overruled.