Lamb v. Danforth , 59 Me. 322 ( 1871 )

Appleton, C. J.

On tbe 12th December, 1865, the defendant, by Ms deed of warranty conveyed- to the plaintiff and one John Lamb óertain real estate in Argyle. To a portion of the premises the grantor had neither title nor possession. The premises conveyed were subject to certain easements, such as a right of way, the right to maintain a dam, to use the shores, etc.

The deed to the plaintiff and John Lamb was to them as tenants in common. But tenants in common have several freeholds and are not obliged to join in an action against their grantor for a breach of the covenants of warranty in his deed. Swett v. Patrick, 11 Maine, 179; Hammond on Parties, 29; R. S. c. 104, § 9.

A public road is an easement the existence of which, over a lot of land conveyed by deed, with covenants of warranty, is a breach of those covenants. Haynes v. Young, 36 Maine, 557. So is a private right of way. Harlow v. Thomas, 15 Pick. 66. In Giles v. Dugro, 1 Duer, 334, the defendant assigned a lease, covenanting therein that it was free and clear of all former grants, bargains, and incum-brances whatsoever. A prior grant of a privilege of the use of a wall on the premises, as a party-wall, was held a breach of the covenant. The former grant created a paramount right to the extent of the interest granted. So here, as to the easements previously granted by deed upon the plaintiff’s land.

The plaintiff is in possession of the land over which easements had been previously granted. The exercise of those rights by a stranger having a -paramount title is'a disturbance, or interruption of the plaintiff's quiet enjoyment of rhe premises conveyed. Sprague v. Baker, 17 Mass. 586. The defendant conveyed the plaintiff a tract of^ and having a spring thereon with covenants of seizure and warranty. Prior to this he-had conveyed to another the right to the water of the spring and of drawing it away by an aqueduct to his premises. It was held that here was a breach of the covenant of warranty. Clark v. Conroe, 38 Vt. 469. So in this case the outstanding easements prevent the plaintiffs having a clear title to the land deeded. The covenant of seisin, so far as relates to the. land previously conveyed to Wm. II. Dow, was likewise broken at the date of the deed.

There is a breach of the covenants of the defendant’s deed, and by the agreement of parties the case is to stand for trial.

CcttiNg, Kekt, WaitoN, DicKeksoN, and DaNforth, JJ., concurred.