CONCURRING OPINION OF
QUARLES, J.The conclusion that the complaint is insufficient in that it failed to allege that plaintiff was kept out of possession by the acts of the defendant lessor, or persons claiming under the defendant, or by reason of title paramount to that of the defendant, is, in my opinion, correct, for which reason the demurrer was properly sustained, and the judgment must be affirmed.
That the covenant for quiet enjoyment is a continuing one I agree is a correct statement of law; but, in my opinion, it necessarily follows that the rights and obligations thereunder are also continuing. The covenant of quiet enjoyment. is one running with the land (7 R. C. L. 1105, par. 21, 1145, 1146, par. 58; 11 Cyc. 1088) and is one of assurance or indemnity (7 R. C. L. 1145, par. 58; 11 Cyc. 1072). It is true that when the lessee is prevented from taking possession, or disturbed in his possession by one claiming a paramount title, or by his lessor or those claiming under the lessor, the covenant is broken and the lessee may treat the lease as terminated and elect to treat his injuries as permanent and sue for damages, or he may treat the breach as temporary or continuing damages, and sue for the same as they arise from time to time. The reason *357for this rule is well stated in 8 R. C. L., under the head of Damages, sections 96 and 97, wherein it is said, inter alia: “The damages in such case are called temporary or continuing damages, and the recovery is limited to them when the injury is intermittent and occasional, or the cause thereof remediable, removable or abatable. They are given on the theory that the injury may and will be terminated. The law contemplates that the plaintiff himself may be able to abate the cause of the injury or relieve the property from its ill effects, or that the defendant will remove it, as he is under legal obligation to do, rather than submit to having the entire damages recovered against him for a permanent injury or subject himself to the infliction of repeated judgments for temporary damages. For this reason it is thought to be unjust to allow a recovery of damages in excess of the injury already sustained, as future damages might not ensue.”
It has been held that where the grantor in a deed conveying land covenanted that he would perpetually maintain a fence along a railroad running through the land, failure for twenty years to maintain such fence did not impair the obligation to maintain it (Bronson v. Coffin, 108 Mass. 175). Covenants of seizin, of right to convey, and against encumbrances are broken, if at all, at the time of the execution of the deed, and limitation immediately starts to run. This is not true as to covenants of warranty or for quiet enjoyment, covenants which run with the land, and which may be broken at any time, and if broken, the plaintiff may remedy the damage and look to the defendant for compensation, or the defendant may remove the ill effects of the breach. The covenant being one of indemnity or assurance, the lessee may look to the lessor to restore possession to him, if it has been delivered to him, or if such possession has not been delivered to him, he may continue to look to the lessor to deliver such possession, in the mean*358while'holding the lessor responsible for the temporary or continuing damage that is sustained. The covenant for quiet possession being a continuing one, the lessee may stand on the covenant, elect to treat the lease as a subsisting one, and look to the lessor for damages that accrue from a breach of the covenant, and may recover at any time the damages that have accrued from such breach, at least within six years after they accrue.