I assented to a re-argument of this case, as my associates had differed from each other, and from a supposition that I might have misinterpreted the authorities cited by Judge Emott in his opinion, to which I had yielded my first impressions. On a re-examination, I *161have adhered to the opinion of a majority of the court, that the learned judge, before whom the action had been tried, had erred in rendering judgment for the plaintiff.
Taking the lease in its entirety, and that is the proper way to construe any instrument in writing, it demised the rolling mill, furnace and machinery, and the land under and immediately adjoining the mill,, with the dwelling-house formerly occupied by the Rev. Dr. Willard, the use of certain wire blocks or spindles, pulleys, wheels and shafts, arid the use of the railroad in common with others, including the lessor, the right to use and enjoy all such property passed to the defendant by the lease, and no part of it rested simply in covenant. The habendum included the premises previously described with the appurtenances, and w'hat was said afterwards as to the right to use the railroad may be considered as a specification of one of such appurtenances. If it had not acquired that character before, it might well have been created by the lease. (Co. Litt. 121, h; 1 Vent. 40; Com. Dig. title Appendant and Appurtenant, A.)
It is true, the habendum clause could not enlarge the premises. (Com. Digest, title Facts.) But it may well refer to what is granted in any part of the conveyance. To say that it must refer exclusively to what preceded it, would, in cases like the present, be sacrificing substance to form. The stipulation for the payment of rent by the use of the word, therefore, shows that it was to be for all that had been described or referred to immediately before, both the premises and their appurtenances. It follows, then, that the use of the railroad was actually leased, and that rent was to be paid for it as an appurtenance. If so, what was said by Chief Justice Savage, in Ethieridge agt. Os- born, (12 Wend. 529,) is directly applicable. There the lessor had covenanted to construct a raceway, which the lessee was to have the privilege of using; but it was never made. It was decided that the use of the raceway had not been demised, for it had no existence when the lease was executed, nor, in fact, at any time. But it was remarked by the chief justice, that had the landlord, after the raceway was dug, and the water let in and enjoyed by the tenant, subsequently diverted the water *162from the raceway, or a part of it, that, I think, would have amounted to an eviction within the cases of Lewis agt. Payn, (4 Wend. 423,) and Dyett agt. Pendleton, (8 Cow. 727,) which last case, in the court of errors, carried the doctrine of eviction to the utmost verge.
I have no difficulty in concurring in the opinion, that an interruption to the enjoyment of a privilege conferred by a lease, by physical means adopted by the landlord, constitutes an eviction. If so, such eviction clearly suspended the rent for the whole, and more especially any remedy by the landlord by reason of its non-payment.
It is no answer to this to say that the tenant has recovered, from the landlord, damages for the breach of the covenant for the use of the railway. If it would in any case, wherein the landlord would be liable fór a penalty once incurred, it could not have that effect in the case of a continuing covenant. Here the tenant was to have the use of the railroad during the entire term. The landlord can only relieve himself, as to the future, by returning the rails which he has wrongfully removed.
The judgment at special term must be reversed, and there must be a new trial—costs to abide the event.
Emott, Justice. After attentively considering all which was cited and urged upon the re-argument of this cause, in favor of sustaining this judgment, I adhere to the opinion expressed by me on the first hearing, with some slight modifications and additions, which I have made to meet suggestions which were made on the re-argument. The opinion thus delivered states the-reason for which, I think, there must be a new trial; and Mr. Justice Birdseye concurs in the reasoning and conclusions of that opinion.
We are unanimous that the judgment should be reversed, and a new trial ordered.
Note.—This case illustrates, if it does not confirm, the doctrine of constructive eviction as to the whole premises, (without abandonment,) in suspension of the rent.
It appears that the portion of the premises upon which the alleged eviction *163took place, was a very small and comparatively unimportant part of the whole; and besides, it was a pretty nice question whether such portion passed by the lease, as part of the demised premises, or rested entirely in covenant. And Judge Brown rested his opinion upon the distinct ground, that "the tearing up and removal of the railroad^ lacked two essential requisites of an eviction, to wit, the removal of the tenant from the possession, and the keeping him out of the possession after he was removed.”
On the reversal of this decision at the general term, Judge Ejíott says, “ The doctrine, that any intentional and injurious interference by the landlord, which deprives the tenant of the means, or the power of beneficial enjoyment of any part of the demised premises, is an eviction, appears to be considered as settled by authority in this state.”
The facts in this case appear to be that the defendant was not actually dispossessed of any portion of the premises; he must, therefore, have been evicted con state lively.—[Reporter.]