38 Vt. 469 | Vt. | 1866
This action is brought on the covenants contained in the defendant’s deed as administrator of the estate of John Gr. Eels, and the case comes before the court on a general demurrer to the declaration. The important question is whether the facts set forth in the declaration constitute a breach of the covenant of seizin or warranty. It will be conceded that the demurrer admits the whole of the declaration according to its legal effect. The defendant’s deed contains a description of the laud by metes and bounds, and the habendum is, “ to have and to hold the said parcel of land with all the privileges and appurtenances thereto belonging to the said Merlin Clark his heirs and assigns forever, to his and their own use.” The description of the premises is sufficient to include every thing within the meaning of the word land. The defendant covenanted wjth the plaintiff his heirs and assigns that John G-. Eels died seized of the granted premises, and that lie would, and his heirs, executors and administrators should warrant and defend the premises unto the plaintiff his heirs and assigns against all persons claiming the same, by, from, or under Eels, or the defendant, but against no other person. It is evident that the defendant’s covenants extend to and cover all paramount adverse titles in the laud, derived from Eels or the defendant. It is urged by the defendant’s counsel that Sullivan acquired by his deed only the right to draw water from the spring, and that such right created no title in the land itself. This conclusion we are not prepared to admit. The declaration alleges and the demurrer admits that, at the time of the execution of the deed and covenants by Conroe to the plaintiff, there was situated upon the granted premises a certain valuable natural spring of water essential to the use and occupancy of the premises, and largely increasing their value. No doubt can arise as to the nature of the spring, nor as to the source from which it was supplied.
The legal effect of the averment is that there was situated upon the premises a spring, which was supplied with '■underground water, by the natural percolation of the water through the soil. Such water is treated as a part of the land, to be enjoyed absolutely by the owner of the soil. In Acton v. Blundell, 12 M. & W. 324, it wag
The deed to Sullivan conveyed to him a title in the land, and so far as the spring formed a part of the land John G-. Eels did not die seized of the same. The covenant of seizin is an assurance to the grantee that the grantor has the very estate in quantity and quality which he purports to convey. Platt on Cov. 306. It has been repeatedly decided by our courts that the covenant -of seizin imports a covenant of title. It is clear that the title of Sullivan in the spring was a breach of the defendant’s covenant of seizin.
To constitute a breach of the covenant of warranty there must have been an eviction either actual or constructive. In regard to constructive eviction the rule would seem to be this: — where at the time of the conveyance the grantee finds the premises in the possession of one claiming under a paramount title, the covenant for quiet enjoyment or of warranty will be held to be broken, without any other act on the part of either the grantee, or the claimant, for the latter can do no more towards the assertion of his title, and as to the former the law will compel no one to commit a trespass in order to
The judgment of the county court is affirmed, and by agreement of the parties the case is remanded to the county court for assessment of the damages. y