Ethen v. Reed Masonry, Inc., 50571.

• Decision Date: 11 December 1981
• Docket Number: No. 50571.,50571.
• Parties: Walter ETHEN, et al., Appellants, v. REED MASONRY, INC., Respondent.
• Court: Minnesota Supreme Court

313 N.W.2d 19 (1981)

Walter ETHEN, et al., Appellants, v. REED MASONRY, INC., Respondent.

No. 50571.

Supreme Court of Minnesota.

December 11, 1981.

Anderson, Drahos & Keyes, Bemidji, for appellants.

Cann, Schmidt, Weddel & Haskell, Bemidji, for respondent.

Considered and decided by the court en banc without oral argument.

SCOTT, Justice.

This is an appeal from a judgment of the Beltrami County District Court in favor of respondent Reed Masonry, Inc. We reverse.

On October 7, 1976, respondent conveyed to appellants Walter and Joyce Ethen a lot in Bemidji, Minnesota, upon which a new house had been built. The record reflects that the sale price was $44,000, and that the house was built upon the property by respondent at the time it owned the subject real estate.

Prior to the sale Fred Lahman, of Lahman Well Drillers, was hired by respondent to place a water well on the property and, in accordance with respondent's instructions, the well was drilled. Some time after the sale appellants discovered that, according to a survey conducted by Kerick Surveying, the well had been placed 1.4 feet onto the property of the adjoining landowner.

Appellants brought this action to recover $1,683 in damages from respondent, representing the cost of removing the equipment and drilling a new well ($683), and the cost of sealing the old well to prevent ground water pollution ($1,000). Appellants claim that the warranty deed provided by the respondent warranted title to the property and its appurtenances and that respondent's failure to locate the well on the transferred property constituted a breach of that warranty.

In its answer to the complaint, respondent suggested that throughout the 2½ years from the date of conveyance to the time of trial appellants had full use of the well and the water from it. There was no evidence of any interference by the adjoining landowner with appellants' use or maintenance of the well, nor was there any evidence that the adjoining landowner at any time claimed that the well encroached upon his property or that appellants' use constituted a trespass. Respondent also contends that there was no express or implied warranty by it that the well was located on the subject lot, and that appellants failed to prove any breach of covenants by respondent.

The district court found that the well was in fact constructed on 16 inches of adjacent property neither owned by respondent nor conveyed to appellants. In dismissing appellants' complaint, the district court distinguished the cases upon which appellants relied and concluded, citing Potter v. Hill, 43 N.J.Super. 361, 128 A.2d 705 (1957), that the word "appurtenance" in a covenant of a warranty did not encompass a well located on adjoining property. The court then noted that an additional problem was the complete lack of evidence of any actual or constructive eviction of the plaintiffs from their use of the well by the adjoining landowners. In this regard, the court suggested that an actual or constructive eviction must have occurred to support a breach of covenant.

The issue, therefore, is whether the evidence is sufficient to support the finding of the district court that no breach of express or implied warranty or covenant occurred.

By warranty deed, the seller conveyed the property to the buyers "together with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining." The traditional definition of appurtenance was expressed in Pine v. Gilbraltar Savings Association, 519 S.W.2d 238 (Tex.Civ.App.1974), as follows:

Pertaining to real property, an appurtenance "means and includes all rights and interests in other property necessary for the full enjoyment of the property conveyed and which were used as necessary incidents thereto." An appurtenance is also defined as "everything necessary to the

...