| Mo. | May 15, 1876
delivered the opinion of the court.
On the 27th day of August, 1873, the defendant sold and conveyed to the plaintiff, in fee, “all the north-east quarter of the south-east quarter, of section No. three, Township, No. sixty-one, Range No. thirty-five, forty acres, more or less.” The deed, which was executed by the defendant and his wife, contained, among others, an express covenant, “that the said premises are free and clear of any incumbrances done or suffered by them or those under whom they claim.” On the 25th day of November, 1867, Thomas Yaughan, from whom the defendant acquired title, relinquished to the Missouri Yalley Railroad Company, its successors and assigns, a right of way for á railroad fifty feet in width over the tract above described, which has ever since been used by said company and its successors for railroad purposes.
The present suit was brought to recover damages for the breach of the covenant against incumbrances, occasioned by the existence of the right of way in the Railroad Company. There was a verdict and judgment for the plaintiff, from which the defendant has appealed.
It is conceded, that the language of the covenant covered the acts of Yaughan. The defendant acquired Yaughan’» entire estate in the land, and his deed to the plaintiff conveys the fee; it is clear that the words “ those under whom they claim” refer to those from whom they derive title. They can have no other application. In a covenant against incumbrances done or suffered by the grantor, and all claiming under him, the words “all claiming under him” might and probably would be construed to have a different signification, and would not be held to include a vendee of the entire estate of the grantor.
The plaintiff knew of the construction and operation of the railroad over the land at the time he purchased , though it is uncertain from the testimony, whether he knew that the railroad was rightfully there. The defendant sought to avail himself of the plaintiff’s knowledge as a defense, but it has been repeatedly, and we think properly, decided, that kuowl
In the instructions defining the measure of damages, the court directed the jury in substance to ascertain the amount of the injury resulting to the plaintiff from the existence of the easement in the Kailroad Company,excluding from their consideration all benefits or damages which were common to other lands in the vicinity not occupied by said railroad.
The phraseology employed in these instructions differs from that used in an instruction, which received the sanction of this court in Kellogg vs. Mai in, post p. 429, but in that case no damages or benefits were shown, except such as were common to other lands, and the value of the land with-interest was esteemed to be the true measure of damages in that ease. Here there was testimony of special injury and special benefits.
The result reached is practically the same in both cases.
The covenant being one of indemnity, the object, in each case, should be to ascertain the amount of the loss suffered in consequence of the existence of the incumbrance. In cases like the present the value of the land with interest, as increased or diminished by special damages or benefits, will accurately measure the injury resulting from the incumbrance.
The instructions given presented the case fairly to the jm7*
Another point relied upon by the defendant is, that as the plaintiff knew a part of the land was occupied by the railroad, the words “more or less,” used in connection with the quantity of land designated in the defendant’s deed, qualified his covenant against incumbrances, and the land occupied by the railroad under its easement must therefore be held to have been excepted from such covenant.
These words have been frequently construed in this country and in England, and when used in connection with a description ofland by the sectionalsubdivisionsestablishedand used in many portions of this country, or by metes and bounds, they
We are of the opinion therefore that the judgment should be affirmed. Judges Napton and Sherwood concur; Judges Wagner and Tories absent.