chased, when the State should withdraw the water. There is nothing in this, or any other act, from which an inference can be drawn, that the Legislature intended that the Commissioners should seize on the property of any, to sell or rent it, to pay the proceeds into the State treasury, or any department of it. On the 22d of February, 1830, the Legislature passed an act to authorize the Canal Commissioners to occupy and use part of the common of the town of Newark, in the employment of the water power of the canal, provided the town council consented. This was but six days before the passage of the act last mentioned. Here they prohibited the use of a town common for this purpose, without the consent of the town council.

Roads, streets, landing places, on navigable waters, canals and fortifications, are necessary. For these and some other public uses, the public must have land. To enable them to command so much of it as is necessary to be used and occupied for public purposes, is almost the only reason for subjecting the land of the owner to be taken by the government. A nation might be reduced to so great a strait as to go farther. Spain had to cede Gibraltar for a garrison to her enemy, whether any part of it belonged to a private owner or not. The public must have materials such as stone, timber and gravel, to construct and repair her roads and canals. The very existence of the soldier, in time of war, may depend on the food, &c. to be taken from the inhabitants in his neighborhood: for these reasons, property, other than land, is subject to be taken by government. When taken, it is to be used by the government-the food for the hungry soldier, the stone and timber in making and repairing the public work. (2 J. C. R. 166.) When the State takes land from the owner, as the Constitution of the United States expresses it, for "public use," she takes no more, nor any greater interest in it, than is necessary for the "public use." He who owns the land over which a road passes, still retains the fee subject to the public use. A tree left by the public is his-a quarry underneath is his-he may take the tree or work the quarry, if he does not thereby impair the road. When the road is discontinued, the whole interest of the land is again in him. Our governments have always acted on these principles. I know not that there was an instance of any State, distressed as they were, during the Revolution, ordering the property of any individual, to be taken and exchanged for arms or clothing, or food, for the unarmed, unclothed, and hungry soldier. Our Legislature has never directed either the land or personal estate of any man, to be taken and transferred to another, to pay him the damages he had sustained, by a road being laid on his land. They have ever considered it as a debt to be paid in money. They have never directed him to go and take his neighbor's land, or timber, or stone, in compensation for what he had lost. They have never directed property of any kind to be taken from the owner, unless it, in kind, was wanted for public use. Considerable excitement sometimes existed, respecting the canals, but the Legislature still kept this principle in view. To make the navigable canals, they directed the land to be occupied, and the materials to be used in their construction to be taken. For the using or selling their water power, for hydraulic purposes, they prohibited it. Nations to discharge their debts, levy taxes: for roads and other public purpo

ses, requiring the occupation of land, they take land. No other course is just or consistent with the security of property, or the public welfare. Our State has pursued this course, as the only constitutional one. She has not, either to relieve or increase the canal fund, or any other department of her treasury, directed the property of any one to be affected without his consent.

It is contended, that the Canal Commissioners, having a right to construct waste wears in the canals and feeders to pass off surplus water wherever they think it necessary, have a right to dig a race or ditch to convey from the wear the water which passes through it; that this lessens the injury to the owners of the land over which it passes; that consequently they have a right to erect this wear, and dig this race. The Commissioners undoubtedly have a right, and it is their duty, if they have the means, to construct waste wears wherever it is necessary to preserve the canals or feeders, or to facilitate navigation on the canals, and to cut ditches from the wear where the water would otherwise overflow, and injure the adjoining lands, as it is the duty of a supervisor of a road to cut ditches to pass off water which would otherwise injure the road; but a supervisor, who should cause the water to be conducted into the road, that he might enter on the land below, against the will of the owner, and cut a ditch to pass it off, would be a malicious trespasser, without excuse, who should pay most exemplary damages. Here, the water which is to be passed through this wear and race, is to be turned into the feeder for the express purpose, and no other, of being passed through this race and wear to supply Neville's mill. The feeder is to be overcharged with water, to make this wear and race necessary to the preservation of the canal: more water is to be passed along the feeder to the wear than "can safely be passed along the canal" below the feeder. It is very clear that on this ground the defendants cannot be justified.

On sales of water power, or land, the Commissioners are required by the general laws, to have the proceeds paid into the State Treasury for the canal fund, which is a department of the Treasury. The proceeds of the water power are liened for the discharge of the canal debt, by the act of 1825. They are not authorized to dispose of it to persons who have been injured by the canal, to pay them for their unliquidated damages. The Legislature have in this case made the contract: this act is nothing more than a contract between the State and the Nevilles and Cushing, by which the State agrees with them, that on their releasing to her all damages which they have sustained by the construction of the canal, &c. she will dig this race and construct the waste wear, and forward through the feeder and wear into the race, the water for their mill, if it can be done without affecting or interfering with the rights of any. If there are rights which will be affected by this race, the getting them in by the Nevilles and Cushing, is a condition, precedent to calling on the State to construct the wear and race. The Canal Commissioners, as agents of the State, are required, in executing the contract, to interfere with the rights of none. Now, to subject the State to the payment for any right which may be affected, is contrary to this act or contract, and unjust. The State agreed to be at the cost of digging the race, constructing the wear, keeping up the dam, and forwarding the water through the wear, only, and not to that of getting

in any right necessary to convey the water to the mill, or to be subjected to any damage for doing so, but provided that she would not. Every light in which we can view this subject, manifests that the Commissioners had no right to construct this race, without the consent of McArthur.

It is contended, that the injury to McArthur will be trivial; that it will not be grievous; that, therefore, this Court will not interfere by injunction. The bill might have stated the length of the race, or of that part of it which passes through McArthur's land. It states, that the dam is abutted on McArthur's land; that the wear and the greater part of the race, will, if constructed, be on McArthur's land; that the race is intended ever to be occupied for the use of the mill. If this land of McArthur, between the feeder and the river, was of little value before the construction of the dam and feeder, after this construction it becomes of considerable value. It is valuable in proportion to the value of the water power, and to the necessity to use this water power on or through this land. The water power is of as little value to the owner, without land to use it on, as the land can be without the water power; and it would consequently be as unjust, and an injury as grievous, to force the owner to part with his land, as to force the owner of the water power to part with it. Suppose at this wear, McArthur owns one hundred feet, through which this water must pass: the Nevilles and Cushing own the land between that and the river, fifty or one thousand feet: they, having purchased the water power of the State, can they use McArthur's land without his consent, to convey the water to theirs; and then say to McArthur, we owning the water power and the land below, your land is of no value to you; your injury is nothing; to us, though, your land is of immense value: without it, our water privilege is worthless. If the Court by injunction prevent persons from cutting timber, to the injury of the land upon which it is growing; tenants from pulling down houses, from draining fish-ponds, or from cutting down ornamental trees, or from ploughing meadow, where the lease forbids the ploughing, (1 Mad. ch. 143-7-9,) how can it refuse an injunction in this case, where the land of McArthur is to be taken from him for ever, so far as is necessary to keep up the race and pass this water? (1 Fonb. Eq. 29, 2 J. C. R. 162.)

The case of Jerome vs. Ross, (7 J. C. R. 315,) in which the Chancellor refused an injunction, differed materially from this: that was a simple trespass of almost the least injurious kind; the taking stone to erect a dam, from a cliff of rocks, in which, and in the neighboring cliffs, the quantity was such as to make them of little value; and their removal did not diminish the value of the cliff. It was like taking a winter's fire-wood for a family, from the fallen beech and sugar tree, and tops of fallen and decaying oaks, of a thousand acre tract of unimproved woodland. In this case, a permanent appropriation of the land of McArthur is intended. The Legislature, in the contract with the Nevilles and Cushing for this water power, have carefully guarded the rights of McArthur, as we have seen they are now endeavoring, at the expense of the State, by color of this contract to prostrate these rights. It is very clear that this objection cannot prevail with this Court.

It is contended, that the bill should have stated that the release to the State had

been executed, and that the Canal Commissioners had commenced the wear or race, or that preparations were made for its commencement; that the statement, that they "threatened" to construct the wear and race, is not sufficient to authorize the injunction. An injunction prohibits the doing something which would injure or endanger the rights of the complainant, as the causing nuisances, or committing trespass of certain kinds, or the assignment of a note, or the payment of money. If the Court had evidence that the defendant intended to commit the wrong, before its commencement, and that he had power to do it, they could no more refuse the writ to prevent its commencement, than after its commencement to stop its progress. Why should the Court? There are many cases, in which, if the Court could not issue the writ until the wrong was commenced, it would be of no avail, as to prevent the assignment of a note, opening of a mill dam, or taking down a house. And, in this case, the Canal Commissioners, with the force in their employ, might not allow sufficient time after the commencement of the work until it was finished, to have an injunction applied for, allowed, and served, before its completion. The bill states, that the defendants "threaten" to dig this race, which is confessed by the demurrer. On proof of the defendants threatening to do the wrong, when it appears that they have the power, the Court issue this writ. (1 Mad. ch. 138, 147-8-9, 2 Mad. ch. 216, 2 Har. ch. 131.)

It was not necessary to state in the bill, that the release to the State was made. It is made the duty of the defendants to have it executed: its execution may be presumed from their threat. Whether the release is executed or not, the injury would be the same to McArthur; and the defendants are equally unauthorized to inflict it. Upon the whole, the Court are clearly of opinion, that the motion to dissolve the injunction must be over-ruled. The defendants had leave to answer.

EDWARD KING, vs. JOHN KERR'S ADMINISTRATORS.

Covenant of warranty, until eviction, passes to heir or assignee.

The holder of a covenant of warranty, at the time of eviction, may maintain a separate action against every intermediate warrantor, which he may prosecute to judgment; but he can only obtain one satisfaction. The amount he can receive, is the actual damage sustained, including costs paid, with the costs of the several suits.

To sustain an action on the warranty, it is not necessary to give notice to the warrantor that the ejectment is brought upon which the eviction is had.

Where, after judgment in ejectment, the defendant claims the benefit of the occupying claimant law, under which the case is settled, actual eviction is not necessary to sustain an action on the warranty,

The rule of damages is the actual loss to the warrantee, when ascertained under the occupying claimant

law.

THIS case was adjourned from the county of Ross, and came before the Court upon an agreed state of facts. It was an action of covenant upon a warranty in a deed of conveyance, made by Kerr, in his lifetime, 30th December, 1807, to M. Baldwin, for a lot in the town of Chillicothe, in which deed the consideration expressed, was two thousand dollars. This lot, by intermediate conveyances, all containing covenants of warranty, came to the plaintif King, by a conveyance,

dated November 4th, 1817, from Marcus Heylen and wife; consideration expressed, two thousand eight hundred dollars. The possession had passed with the conveyances to King, against whom James Miller and wife brought an ejectment, and recovered judgment for the lot, upon an independent and superior title. King claimed the benefit of the occupying claimant law. Upon the return of the commissioners appointed to make valuation, Miller and wife elected to take the valua tion put upon the ground, without improvements, being three hundred and fifty dollars; which, upon the order of the Court, was paid to them by King, and they released to him their title. Subsequent to the recovery in ejectment, against King, he had sued an action of covenant, against the executrix of Heylen, his im mediate grantor, upon which no execution had been issued, or compensation had. The questions presented for decision, on this state of the case, were, can the action be maintained? And if so, for what amount?

LEONARD, for the plaintif, cited 1 Roll. 521, 1 Inst. 384, a. 1 Ves. 572, 4 Mass. 352, 1 Camp. 244.

G. SWAN, for defendants, cited 4 Halstead, 139, 7 John. 259, 376, 11 John. 122, 1 O. R. 386, 5 John. 120, 3 Term. 587, 2 Saund. 177, 13 John. 336, 1 Mass. 464, 3 Bibb. 175, 1 Mar. 370.

Opinion of the Court, by JUDGe Collet.

The covenant of warranty in a deed conveying land, or any interest in land, is an undertaking by the warrantor, that on the failure of the title which the deed purports to convey, either for the whole estate, or for a part only, by the setting up a superior title, that he will make compensation in money, for the loss sustained by such failure of title It is commonly, in express terms, extended to the heir and assignee of the grantec, but this is immaterial. This covenant is not broken until the grantee, his heir or assignee, is evicted from, or disturbed in the enjoyment of the premises, or a part of them, by the setting up of a superior, or paramount title. It is like the covenant of quiet enjoyment in a lease. The covenant of warranty, as respects the grantee, is not merely a personal covenant, for the breach of which, he, or his executors or administrators only, could sue; but it has respect to the land, is a real covenant, and until broken, passes with the land, to the heirs of the grantee; or if the land is conveyed or assigned to the assignee, and when broken, the heir or assignee injured by the breach, can, in his own name, sustain an action against the warrantor. (Co. Lit. 384, b. 385, a. 4 Kent. Com. 459, 5 Cow. R. 138, 1 Con. R. 248.) The Court believe it settled, that all covenants in deeds, for the conveyance of lands, which have respect to the title, and which were not broken when the land descended to the heir, or passed to the assignee, are inherent, or real covenants, and attend the land; and that on a breach happening, the heir or assignee, injured thereby, could sue the warrantor, his executor or administrator, for the recovery of damages. In the case of the administrators of Backus vs. McCoy, (3 0. R. 218–22,) which was an action to recover damages, for a breach of the covenant of seizin, in a deed