Crans v. Durdall

• Decision Date: 15 March 1912
• Citation: 134 N.W. 1086,154 Iowa 468
• Parties: A. W. CRANS, Appellant, v. O. B. DURDALL, Appellee
• Court: Iowa Supreme Court

134 N.W. 1086

154 Iowa 468

A. W. CRANS, Appellant, v. O. B. DURDALL, Appellee

Supreme Court of Iowa, Des Moines

March 15, 1912

Appeal from Floyd District Court.--HON. JOSEPH J. CLARK, Judge.

ACTION for damages for breach of a covenant of warranty, and for false representations in the sale of land. The answer was a general denial. At the close of plaintiff's evidence, the trial court directed a verdict for the defendant and entered judgment accordingly. Plaintiff appeals.

Affirmed.

J. H Lloyd and W. M. Brouillard, for appellant.

J. C Campbell, for appellee.

OPINION

EVANS, J.

On November 16, 1904, the defendant conveyed to the plaintiff a certain quarter section of land in Murray county, Minn., by warranty deed. The breach of covenant charged is that there is and was a highway "laid out through said land." The petition charged both a breach of warranty and false representation. These allegations are all contained in the same count of the petition. It appears that the plaintiff visited the land before purchase. He saw the said highway in use. It entered the land from the west side near the northwest corner, and proceeded east nearly half way across the land, and then turned south crossing the south line of the quarter section about midway between its east and west ends. Gates were maintained at each end of the highway. There were also regularly laid out highways along the west line and along the south line of such land. The defendant stated to the plaintiff "that the road across the land was temporary." The plaintiff commenced this action in July, 1910. His petition charged as follows: "That defendant represented that there was no laid out road across said tract of land. . . . That in truth and in fact there was at and prior to the said time of conveyance a laid out road in a diagonal direction across said real estate, of which the defendant had knowledge, but fraudulently concealed the fact of said laid out road from this plaintiff. That the defendant fraudulently represented to this plaintiff for the purpose of inducing this plaintiff to purchase said real estate that there was no laid out road across said real estate. That this plaintiff had no notice of the existence of said laid out road. . . . That in truth and in fact there is now and was a laid out road diagonally across said real estate."

At the trial the trial court construed the plaintiff's petition so as to require him to prove a formal establishment of the road complained of by statutory proceedings for that purpose. The plaintiff introduced in evidence certain certified records showing certain proceedings had in 1884 with reference to a proposed road across this particular land. These records disclosed only an application for the establishment of such a highway and notice to landowners, and a waiver of damages by landowners. No further proceedings appear to have been had so far as disclosed by such records. No order of establishment appears to have been made by any officer or tribunal. Thereupon the plaintiff proposed to show that the public had used such highway for travel for many years and since about 1884. This line of evidence was rejected by the trial court because it went...