majority">Loomis, J.

This is an action upon a general covenant of warranty, brought by the warrantees against the administrators of Thomas Burlock, deceased, the warrantor.

The breach complained of arises out of the following facts:— Smith and Phelps, the former owners of the land in question, on the 30th of August, 1843, by quitclaim deed, conveyed it to the town of Derby, “ to hold for public streets and highways.” The town formally accepted the deed, and it was duly recorded; but the land for some years remained unappropriated to the purposes mentioned. And afterwards Bur-lock, having obtained whatever title remained in Smith and Phelps, on the 3d of October, 1863, conveyed the same land to the plaintiffs, by warranty deed, containing the usual covenants of seizin, warranty, and freedom from incumbrances, and the plaintiffs took full possession under their deed, and *510while in possession the town of Derby and the borough of Birmingham, claiming the land for highway purposes, under the deed to the town, instituted proceedings in equity, which resulted in a decree by the Superior Court, pursuant to advice from this court, enjoining the plaintiffs from using the land for any purposes which would in any manner interfere with the use of the same for a public highway. See Town of Derby v. Alling, 40 Conn., 410.

After this, in January, 1876, the town and borough took possession under the deed to the town, and improved, worked and graded the land for a public highway, and it has ever since been used for that purpose, and, in the language of the finding, “ thereby and in that way only were the plaintiffs evicted and ousted from the possession of said land.”

Do these facts constitute a breach of the general covenant of warranty, or simply of the covenant against incumbrances ?

The distinction involved in this question is all important. If the latter alternative is true, the plaintiffs are now without remedy either in this suit or any other; for the covenant against incumbrances, being broken instantly, became the mere personal obligation of the warrantor, which, not having been prosecuted against him while living, nor against his estate since his decease, has now become barred and lost.

An incumbrance may be defined to be every right to or interest in land which may subsist in a third person to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.” Rawle on Covenants (4tli ed.), p. 94.

In an action for the breach of this covenant the rule of damages is generally the diminished value of the premises by reason of the incumbrance. But the scope and extent of the covenant of warranty is very different. It is something more than a covenant for quiet enjoyment. It is a covenant to defend not the possession merely, but the land and the estate in it. It operates in futuro, and can only be broken by eviction, actual or constructive, and when so broken the damage's are the value of the land at the time of the eviction.

The defendants claim that the deed to the town left the fee *511still in the grantors, and had no effect whatever on the title, except the imposition of an easement in favor of the public; and that the case now stands precisely as it would had an ordinary highway existed at the time of the warranty.

If the premises are true we admit the correctness of the conclusion, for in this state an ordinary public highway is considered a mere easement, the fee remaining in the original owner, and constitutes a breach of the covenant against incumbrances. Hubbard v. Norton, 10 Conn., 431.

But, however satisfactory the reasoning in support of the above claim might otherwise appear, we do not feel at liberty to treat the question as an open one in this state.

In Taylor v. Public Hall Co., 35 Conn., 430, the legal capacity of a town to take and hold the fee of land for highway purposes was distinctly recognized. The court, in construing the deed referred to in that case, said (p. 432) : “This deed conveys something more than an easement. * * So long as the premises continue to be used for a highway the town has a complete title, in the enjoyment of which it cannot be disturbed, not only to a right of way, but to the fee of the land.”

And in the recent case of Derby v. Alling, 40 Conn., 410, this court, Seymour, C. J., giving the opinion, cited the above authority, and gave a similar construction as to the effect of the identical deed now in question, and held that the town was an appropriate trustee to hold the title to the streets for the purposes contemplated.

The only remaining question to be considered relates to the eviction. So far as this is a matter of fact, the court has found affirmatively an actual eviction and ouster of the plaintiffs, but with an added qualification, that it was only in the way described. If therefore the mode as set forth could not as matter of law amount to an eviction, there would be no breach of the covenant in suit. But we think the facts as stated, taken in connection with the construction we have given to the deed, will be found to contain every essential element of a legal eviction. It was not a mere disturbance of the plaintiffs’ possession occasioned by the public using *512this right of way. But before the way was ever open to public travel the town asserted its paramount title, and that too in a hostile manner, through proceedings in court against the plaintiffs, whereby they were rightfully enjoined against appropriating the premises to their individual use in the manner contemplated.

For these reasons a new trial is not advised.

In this opinion the other judges concurred, except Carpenter, J., who having tried the case in the court below, did not sit.

Citation profile

How this case has been treated — in progress