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apparent, and which result naturally from the relative situation of the land, and from the nature, construction, and intended use of the buildings, mills, etc., upon it, and their situation and connection with other property, as they were usually enjoyed at the time of the conveyance." In this case no mention is made of that of Kidder v. George,1 decided five years before in the same court, where it was held in an action of covenant that it is no breach of the covenant against incumbrances that the land, at the time of the conveyance, had been flowed by the grantor for twenty years by a dam below, and after the conveyance, was flowed as before.

§ 454. In Wisconsin the Supreme Court has gone further, and laid down the unqualified rule that purchasers of property, obviously and notoriously subjected at the time to some right of easement or servitude affecting its physical condition, take it subject to such right, without any express excep tions in the conveyance, and that such easements are not breaches of covenants against incumbrances or other covenants for title.2 So, where the defendant conveyed land to the plaintiff by a deed containing the usual covenants of seisin and against incumbrances, without any exceptions, and at the time of the purchase between thirty and forty acres of the land were flowed by a mill-pond created by a dam on land not belonging to the defendant, which dam had been maintained long enough to create a prescriptive right in the owner of it to flow the land in question, and the grantee brought an action for breach of the covenants, by reason of the right of flowage, it was held that the action could not be maintained.3

§ 455. The decisions in Massachusetts, New Hampshire. and Wisconsin are influenced by the policy of those States in favoring mills and the development of water-pow

1 Kidder v. George, 18 N. H. 511. 2 Kutz v. McCune, 22 Wis. 627 (approved in the cases of Pomeroy v. Chicago Railroad Co., 25 Wis. 641;

Sabine v. Johnson, 35 Wis. 185; Smith v. Hughes, 50 Wis. 620).

8 Kutz r. McCune, supra. Confer Janes v. Jenkins, 34 Md. 1, accord.

ers; but it is submitted that in so far as these cases hold that any such easements or servitudes upon land abridge the covenantee's right to the entire beneficial use of the property purchased, they are departures from the common law. They are, in short, a limitation upon the covenant, by reference to the subject-matter. The mere doctrine of notice is an insufficient ground for the departure, for the purchaser has notice of recorded incumbrances, such as mortgages and judgment liens, and buys with reference to them; but if he takes a covenant against incumbrances, he is entitled to damages for all such charges on the land, regardless of notice.2

§ 456. Covenants in private grants do not include protection against or compensation for future acts of sovereignty; and, accordingly, if lands conveyed are injured by an exercise of the power of eminent domain, such injury is not a breach of any of the covenants for title, and affords the covenantee no cause of action;3 and in States where the flowage of lands under the Mill Acts is held an exercise of the power of eminent domain, such flowage would not constitute a breach of the covenants. So an entry and occupancy in exercise of the power of eminent domain, for the purpose of building a canal, is not a breach of covenants of warranty, nor is a release of damages for such entry, executed before the conveyance is made.5

1 See Rawle, Covenants for Title Shaw, C. J., took the occasion, inci(4th ed.), 108, 113.

2 See Bean v. Mayo, 5 Greenl. (Me.) 94, where a covenant in a deed that the land was free from incumbrances was held broken by the existence of a mortgage previously given by the grantor to the grantee.

8 Ellis v. Welch, 6 Mass. 246.

4 In Fitch v. Seymour, 9 Met. 462, the action was upon a covenant against incumbrances, and the alleged breach consisted of flowage of the lands by a third person under a license from the grantor, which had been held binding as against him. It was held that such license gave no such right as against the grantee, and that, therefore, there was no breach.

dentally, to say: "Strictly speaking, the right given by the mill acts to the mill owner is not that of flowing, or making any other direct use of his neighbor's land adjacent to the stream, above his own; but only to raise a dam on his own land to a height sufficient to raise a suitable head of water, and to continue the same to his own best advantage, although the land of another is thereby flowed. We do not, however, mean to say that a right to keep up such head of water without payment of damages may not, under some circumstances, be an incumbrance on the land."

5 Dobbins. Brown, 12 Penn. St. 75. But where a lease of a mill and

§ 457. In Maine, where a corporation was authorized to erect dams, locks, etc., in a stream, and to take lands therefor, making compensation to the owners, and the company leased land, and erected a portion of their works thereon, no damages being claimed by the owner, or assessed, and the owner afterwards conveyed the land with covenants, it was held that the company had erected its works under its charter power, and had the right to maintain them permanently, and that they were a breach of the covenant against incumbrances. If this case is law, it follows that an easement erected in the past, under the exercise of the power of eminent domain, is an incumbrance within the meaning of the covenant, which is a strict application of the original rule as to easements.

§ 458. The covenant of seisin is held to be broken by the existence of a prior grant to another of the right to divert a natural spring. So where the deed included a grant of the right "to raise a dam sufficient to raise the water seven feet

water-power was made after the water had been taken for the temporary use of a canal company, and the lease contained covenants of warranty and against incumbrances, such abridgment of the full use of the property, under a prior exercise of the power of eminent domain, was held a breach of the covenant. Peters v. Grubb, 21 Penn. St. 455. This is plainly contrary to the New Hampshire and Wisconsin doctrine as to notorious easements.

1 Ginn v. Hancock, 31 Maine, 42, 47. The court said: "The acts performed would have been unlawful if they had not been done by virtue of the Act. The presumption is that they acted lawfully. The company must be considered as acting by virtue of the same authority, in all parts of the river, while constructing connected works of improvement; and not as erecting one portion of such works by virtue of the Act, and another por tion by a different right or authority,

as

merely because it was erected on land owned or occupied by it. The works must, therefore, be considered erected and maintained by the company, by virtue of the Act, and as rightfully existing there as its property at the time of the conveyance. It is agreed that, 'no damages for the premises in question were ever claimed or assessed under the act. and as there provided.' This fact does not deprive the company of the right to maintain those works. The defendant might have applied and have had any damages occasioned thereby to his reversionary interest assessed according to the provisions of the act. His neglect to do so cannot diminish the rights of the company. The land must, therefore, be considered as subjected to that servitude and as thereby incumbered at the time of the conveyance." Confer Peters . Grubb, 21 Penn. St. 455, supra, accord.

2 Clark v. Conroe, 38 Vt. 469.

high," with a covenant of seisin, it was held that the habendum and covenant of seisin extended to the right to maintain the dam, and were broken by lack of that right in the grantor.1 A similar question arose in Vermont on a covenant of warranty. The defendant had conveyed a lot, including a millsite and dam, simply as "lot No. 19"; habendum, etc., "with the appurtenances thereof," with a covenant to warrant and defend "the above granted and bargained premises." The plaintiff maintained the dam at its former height, and thereby overflowed lands above him, for which a recovery of damages was had against him. He then brought suit on the covenant against the grantor, alleging for breach the recovery against him. It not appearing that the dam had ever caused such flowage prior to the date of the defendant's deed, or that the 'defendant had ever exercised or claimed the right so to flow the land, it was held that no breach of the covenant was shown.2

§ 459. In a recent case in New York a different result was reached. The defendant and another conveyed to the plaintiff and another certain premises upon which were a mill, a dam and pond, which furnished water-power for the mill, and were essential to its complete enjoyment and operation, by a deed containing covenants of warranty and quiet enjoyment, but with no express covenant in regard to the waterpower. The grantees entered into possession, and while working the mill with the dam at the same height as when the conveyance was made, were sued for overflowing the lands of an upper riparian proprietor by means of the dam. They gave their grantors notice to defend the actions, and judg ments for damages were obtained against the grantees. They

1 Walker v. Wilson, 13 Wis. 522; Hall v. Gale, 14 Wis. 54; s. c. 20 Wis. 292; Traster v. Snelson, 29 Ind. 96. In Stetson v. Veazie, 11 Maine, 408, it is held that an easement (in this case of landing boats on the shore of a stream) was not a disseisin of the owner of the land to which the easement is annexed (upon which it is exercised). So in McMullen v.

Wooley, 2 Lans. (N. Y.) 394, a grant of a prior right to conduct water by means of pipes laid beneath the surface of land, from a spring thereon, was held an easement, and not a breach of covenants of warranty and for quite enjoyment, but a breach of the covenant against incumbrances.

2 Swasey v. Brooks, 30 Vt. 692.

then brought an action upon their covenants, and it was held that the deed conveyed the dam as it then stood, at its existing and apparent height, and the water-power it thus indicated, which was an essential element in the value of the property, and that the judgment constituted an eviction and breach of the covenants.1

§ 460. The paramount right to divert water from a spring was also held a breach of the covenant of warranty in the above case from Vermont.2 But in Mitchell v. Warner3 it was held that a pre-existing right to divert water from water works, thereby rendering them useless, was not a breach of the covenant of warranty. This case is placed upon the ground that the water is not part of the freehold; but the common law was not so, and the decision has been criticized in Pennsylvania as ill-considered. In the last men

1 Adams v. Conover, 22 Hun (N. Y.) 424; s. c. 87 N. Y. 422; 25 Alb. L. J. 193. In the Court of Appeals, Finch, J., in speaking of the plaintiff, said: "He had a right to assume that it stood lawfully at its existing height, that his deed would pass it at the same height and allow him rightfully to maintain it unchanged, and so preserve to him the water-power which was the important and essential element of his purchase. . . . From the thing thus conveyed, itself covered by the deed and passing under it, the grantee was evicted by a paramount title. . . . The grantee, therefore, was not merely deprived of an easement in another's land which was not conveyed, and which his deed did not purport to convey, but he lost by force of the paramount title a thing actually conveyed, included within the metes and bounds of his deed, and just as much property granted by that conveyance as if it had been a particular acre of the land. Considering the subject-matter of the grant, the peculiar character of the property as a water-power and a mill-site, the existence of the dam at a height essential

to that power, and to the full enjoyment of the property, we hold that the deed conveyed the dam at its existing height, and the covenant of warranty was broken when the grantee was compelled in whole or in part to take it down." No mention was made of the case of Swasey v. Brooks in either court. For a decision distinguishing the case of a sewer over adjoining land from this, and holding that the covenants of warranty and for quiet enjoyment of the premises and appurtenances do not extend to the right to discharge water through such a sewer, see Green v. Collins, 86 N. Y. 246.

2 Clark v. Conroe, 38 Vt. 469.

35 Conn. 497. The case of Thayer v. Wheelock, 16 Pick. 68, before referred to, held similarly that the benefit of a covenant of warranty in a grant of the right of drawing water from a pond would not enure to a subsequent purchaser of the land.

4 See Wilson v. Cochran, 46 Penn. St. 229; Rawle, Covenants for Title (4th ed.), 182 (note 2); Spencer's Case; 1 Smith's Lead. Cas. (7th Am. ed.), 201, note. In Griswold v. Allen,

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