Clark v. Estate of Conroe

*473 The opinion of the court was delivered by Wilson, J.

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 *474 held that the owner of land who had made a well in it and thereby enjoyed the benefit of underground water, bad no right of action 'against an adjoining proprietor who, in sinking for and getting coal from his own soil, in the usual and in a proper manner, caused the well to become dry. In Roath v. Driscoll, 20 Conn., the court say “each owner has an equal and complete right to the use of his land and to the water which is in it,” and they say “the water combined with the earth or passing through it by percolation, or filtration, or chemical attraction, has no distinctive character of ownership from the earth itself, any more than the metallic oxydes of which the earth is composed,” and they further add, “water, whether moving or motionless, in the earth, is not, in the eye of the law, distinct from the earth.” The case of Greenleaf v. Francis, 18 Pick. 117 , advances the same principle. The case of Chatfield v. Wilson, 28 Vt. 49 , was an action on the case for the disturbance of a water course. The declaration alleged that the defendant lowered and changed the channel of a brook which divided the farms of the plaintiff and defendant, and diverted the water therein ; .and also alleged an interference by the defendant with the natural flow or passage by percolation of the water through the defendant’s land to the plaintiff’s, by means of which a reservoir or tub on the plaintiff’s land was supplied with water. In that case the doctrine of the case of Roath v. Driscoll, 20 Conn., is approved, and the court say “ there are no correlative rights existing between the proprietors of adjoining lands in reference to the use of the water in the earth, or percolating under its surface ; and that such water is to be regarded as part of the land itself, to be enjoyed absolutely by the owner of the land as one of its natural advantagesand the court further add, “ to such water the law governing the use of running streams is inapplicable.” There is nothing in the case which shows that the spring was in part supplied by a diversion of surface water, or that it caused a flow of surface water, in which correlative rights could exist. The words “ a natural spring of water” import that the water of the spring was a part of the land, and susceptible of absolute ownership. It follows from these principles that the spring formed a part of the land conveyed by the defendant to the plaintiff

*475 The substance of the alleged breach of the defendant’s covenant is that the right to the water of the spring had been previously conveyed by John G-. Eels and Isaac L.(tEels to one Daniel Sullivan by valid title, with the right of taking and draining away the water of the spring by means of logs to the premises of Sullivan adjoining, and that under that title, Sullivan has ever since claimed and exercised the right so to draw off the water, and has entirely deprived the plaintiff of the use of it. It does not appear that Sullivan was in any manner restricted as to the quantity of water he might take, and we may conclude that the entire water of the spring was conveyed to him. Prior to the conveyance to Sullivan he had no correlative right to the water, or use of the water of the spring. His title in the spring was acquired by his deed from Eels. The conveyance from Eels to Sullivan is in effect a conveyance of the spring itself. Eels conveyed to Sullivan all that was, or could be of value in the spring, and at the time of the decease of John G-. Eels Sullivan was in possession of the spring, claiming it under his title derived from E’els, and appropriating its entire waters to his own use.

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 *476 establish a lawful right in another action. Rawle on Cov. 225. The paramount title of Sullivan, with his actual possession under it, was of itself a breach of the„covenant of warranty.

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