44 Conn. 312 | Conn. | 1877
This case comes here on a motion for a new trial by the plaintiffs, and the only question raised by the motion is—whether the plaintiffs were entitled to recover the sum of $750, instead of $10 and interest.
We think the plaintiffs are entitled to recover the larger sum. The case finds that, they paid full value for the land, and that by reason of the incumbrance the land was worth $750 less than it would have been without it. They therefore have sustained a loss of $750, and the defendants are bound by their covenant to make good this loss, it being the actual damage the plaintiffs have sustained by reason of the breach of the covenant. It is laid down as law in many of the cases cited in the defendants’ brief, that the plaintiff in cases of this sort is entitled to recover actual damage, and the defendants insist that the $10 is the only actual damage that the plaintiffs have sustained. It is true that this is the only direct damage they have received from the exercise of the right of way. But is this the only actual damage ? We think not. The incumbrance is permanent and perpetual and the estate of the plaintiffs forever burdened with this servitude, which they have no power, as a matter of right, to remove, and which diminishes the value of their land to the amount of $750. The true rule of damage we think is well stated in 3 Washburn-on Real Property, (Vol. 2, 2d ed., 730,) as follows:—“If the incumbrance be of a permanent character, such as a right of way, or other easement which impairs the value of the premises, and cannot be removed by the purchaser as a matter of right, the damages will be measured by the diminished value of the premises thereby occasioned.” This rule is sustained by cases cited in the plaintiffs’ brief. Wetherlee v. Bennett, 2 Allen, 428; Woodbury v. Luddy, 14
For these reasons we think a new trial should be granted.
In this opinion the other judges concurred.