Opinion
March Term, 1859
E.N. Bullard, for the appellant.
John H. Reynolds, for the respondents.
The existence of prior grants of water rights to the one contained in the conveyance to Vanderwerken, would not be a breach of the covenant for quiet enjoyment in that conveyance, provided they were so restricted as to leave a twentieth part of the water at all times to satisfy the grant to Vanderwerken. But, according to the statements of the answer, the grants to Olney and to the Waterford Manufacturing Company gave the grantees the right to the quantity mentioned absolutely. Being prior in time to Vanderwerken's grant, they were entitled to be first satisfied; and, according to the answer, they have been enforced by a legal judgment by which the present plaintiffs are concluded, and the result has been, not merely to deprive the defendant of nineteen-twentieths of the water at the time when it was deficient, but of the whole of it; the exigencies of the prior grants having, for a portion of the year, required the use of all. It seems probable that during those periods, when the prior grants of water enough to drive three thousand spindles engrossed all which could be taken from the canal, the right of one-twentieth of the whole would not be of much value to the assignees of Vanderwerken, and that their damages at these times must have been small, if not merely nominal. But we can conceive that there may have been stops of water when the proportion to which the defendants were entitled would have been useful, and when the satisfaction of the absolute rights to which the prior grantees were entitled would operate to the substantial injury of the defendants. It cannot, therefore, be denied but that proof might have been given under the answer, which would have entitled the defendant to damages for the breach of the covenant of quiet enjoyment.
We must assume that the rent reserved upon the conveyance to Vanderwerken was for the enjoyment of the whole premises granted, the water right as well as the ground. Such would be the natural intent of such a conveyance; and the instrument is not set out at length so as to enable us to judge of the bearing of its provisions, or to say that the rent was for the land alone. We have then the case of a grant of land and of an easement upon other land of the grantors, with a covenant for quiet enjoyment of the whole, and of a partial eviction from the easement under title paramount. There should, therefore, in equity if not at law, be an abatement of the rent agreed to be paid for the whole subject granted. This was probably the view of the referee; but he was of opinion that the defendant could only have relief by a new suit in the nature of a cross bill. In this I think he fell into an error. The action, it is true, was in the nature of ejectment, and the plaintiffs were entitled to recover if there was half a year's rent in arrear, though a good defence was established to all the residue claimed. (2 R.S., 505, § 30.) The legislature assumed that there might be an equitable defence against the rent claimed or a part of it, and in order that the defendant might not lose his estate for the non-payment of half a year's rent, against which he had no answer at law, they provided that he might seek redress in equity within six months after execution issued upon the judgment in ejectment. ( Id., § 36.) It was mainly for the purpose of avoiding the necessity of resorting to several actions in cases of this kind that the distinction between legal and equitable remedies was abolished; and it was in furtherance of that policy that a counter claim was allowed to be interposed where the defendant had "a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. ( Code, § 150.) In ejectment for non-payment of rent it is essential to ascertain whether any and how much rent is due; and in coming at this, the defendant ought to have the advantage of any equitable answer he may have to the claim for rent; and the present forms of procedure are adopted to the adjustment of such a claim upon equitable as well as upon legal principles. The provisions of the Code modify to this extent those of the Revised Statutes, which give the remedy by ejectment for non-payment of rent.
It follows that the judgment of the Supreme Court must be reversed and a new trial ordered.
ALLEN, J., did not sit in the case; all the other judges concurring,
Judgment affirmed.