First Unitarian Soc'y of Iowa City v. Citizens' Sav. & Trust Co.

• Decision Date: 07 June 1913
• Citation: 142 N.W. 87,162 Iowa 389
• Court: Iowa Supreme Court
• Parties: FIRST UNITARIAN SOCIETY OF IOWA CITY v. CITIZENS' SAVINGS & TRUST CO., IOWA CITY.

162 Iowa 389

142 N.W. 87

FIRST UNITARIAN SOCIETY OF IOWA CITY

v.CITIZENS' SAVINGS & TRUST CO., IOWA CITY.

Supreme Court of Iowa.

June 7, 1913.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

This is an action for damages for breach of covenant in warranty deed. The case was tried to the court without a jury upon an agreed statement of facts. There was a judgment for the defendant, and plaintiff appeals. Affirmed.

Deemer and Gaynor, JJ., dissenting.Henry Negus, of Iowa City, and H. H. Griffiths, of Des Moines, for appellant.

O. A. Byington, of Iowa City, for appellee.

EVANS, J.

The plaintiff holds its cause of action by assignment. Its assignor was the grantee in a warranty deed executed to it by the defendant on December 14, 1907, and which conveyed to it a certain lot 4 in Iowa City. The deed contains covenants of warranty which will be hereinafter set out. It was averred that the covenants were breached by the existence of a public sewer traversing said lot to a depth of six feet beneath the surface, which sewer had been used and maintained by the public for more than 40 years and was still so used and maintained. It was averred that the plaintiff's assignor was damaged thereby to the sum of $1,500. The answer admitted the assignment of the cause of action and the existence of the warranty deed and the existence of the public sewer, and denied all other allegations, and especially denied that the existence of said sewer damaged plaintiff's assignor or was in any way detrimental to the value of the lot. In the court below, the parties submitted the case to the court without a jury upon the following agreed statement of facts: “It is agreed as follows: That the defendant was the owner of lot 4 in block 44 of Iowa City, Iowa, and that on the 14th day of December, 1907, by its authorized officers it conveyed said above-described property by a warranty deed to the plaintiff. The said covenants of warranty being as follows: ‘And we do hereby covenant with the Iowa Association of Unitarian and other independent churches that we are lawfully seized of said premises, that they are free from incumbrances, that we have good right and lawful authority to sell and convey the same, and we do hereby covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever, and the grantors aforesaid herebyrelinquish all contingent right including rights of dower, which they have in and to said last described premises. That at the time of executing said deed and of the conveyance of the said property, there extended across said lot a certain public sewer, which sewer entered the lot about 16 feet west of the northeast corner thereof and extended diagonally southeast, passed out of said lot at a point about 64 feet south of said northeast corner. That said sewer had been in existence for many years and was a public sewer of such a character that the public had rights therein and the same could not be removed. That the top of said sewer is from five feet to five feet six inches below the surface of the ground, and said sewer is about three feet wide and four feet deep on the inside and five feet and six inches wide on top. It is agreed that the court shall determine from the said above facts whether the defendant is liable to the plaintiff for breach of warranty. First Unitarian Society of Iowa City. Citizens' Savings & Trust Co.’ ”

We think appellant's discussion in the briefs goes quite beyond the facts appearing of record.

[1] Our consideration and discussion of the question presented must necessarily be circumscribed by the agreed statement of facts. The incumbrance charged in this case is the public easement incident to the use and maintenance of the public sewer.

[2] An easement may or may not be an incumbrance. An “incumbrance” has been defined as “a burden upon the land depreciative of its value; such as any lien, easement, or servitude which though adverse to the interest of the landowner does not conflict with the conveyance of the land in fee.” 10 Am. & Eng. Encyc. of Law, 361. In Barlow v. McKinley, 24 Iowa, 69, it was defined as “right in a third person in the land in question, to the diminution of the value of the land, though consistent with the passing of the fee by deed of conveyance.” The trial court found that the easement in question was not an incumbrance within the meaning of the law. This holding was concededly based upon our previous cases. Harrison v. Railway Co., 91 Iowa, 114, 58 N. W. 1081;Stuhr v. Butterfield, 151 Iowa, 736, 130 N. W. 897, 36 L. R. A. (N. S.) 321.

The real question before us is therefore whether, under the stipulated facts, the doctrine of the cited cases warranted the judgment of the lower court in favor of the defendant. Some of the authorities classify incumbrance as falling naturally into two general classes: (1) Such as affect or relate to the title or to the record thereof; (2) Such as affect or relate to the actual physical conditions upon the realty. The first class is illustrated by lien of taxes, judgments, or mortgages. As to such it is uniformly held that they are included in the covenant against incumbrances regardless of knowledge of the grantee. Those relating to physical conditions of the realty may come under a somewhat different rule. Whenever the actual physical conditions are apparent and are in their nature permanent and irremediable, they are sometimes held to have been within the contemplation of the parties in fixing the price and are deemed not to be included in a general covenant against incumbrances. The distinction in the two classes of incumbrances is recognized by many courts. In Memmert v. Keene, 112 Pa. 315, 4 Atl. 542, this distinction is discussed as follows: “Where incumbrances of the former class exist, the covenants referred to, under all the authorities, are broken the instant they are made, and it is of no importance that the grantee had notice of them when he took the title. Cathcart v. Bowman, 5 Pa. 317;Funk v. Voneida, 11 Serg. & R. (Pa.) 109, 14 Am. Dec. 617. Such incumbrances are usually of a temporary character and capable of removal; the very object of the covenant is to protect the vendee against them. Hence knowledge, actual or constructive, of their existence, is no answer to an action for a breach of such covenant. Where, however, there is a servitude imposed upon the land which is visible to the eye, and which affects, not title, but the physical condition of the property, a different rule prevails. Thus it was held in Patterson v. Arthurs, 9 Watts (Pa.) 152, that, where the owner had covenanted to convey certain lots free from all incumbrances, a public road, which occupied a portion of such lots, was not an incumbrance within the meaning of the covenant. This is not because of any rights acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance, and possibly an injury to the property, was there when the purchaser bought, and he is presumed to have had knowledge of it. In such and similar cases there is further presumption that, if the incumbrance is really an injury, such injury was in the contemplation of the parties, and that the price was regulated accordingly.” To the same effect, see Desvergers v. Willis, 56 Ga. 515, 21 Am. Rep. 289;Whitbeck v. Cook, 15 Johns. (N. Y.) 483, 8 Am. Dec. 272;Clark v. Mossman, 58 Neb. 87, 78 N. W. 399;Weller v. Trust Company (Ky.) 64 S. W. 843;Kutz v. McCune, 22 Wis. 628, 99 Am. Dec. 85;Scribner v. Holmes, 16 Ind. 142;Wilson v. Cochran, 46 Pa. 229;Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432;Railway Co. v. Beeson, 36 Neb. 361, 54 N. W. 557;Railway Company v. Shepherd, 39 Neb. 525, 58 N. W. 189.

To the foregoing must be added the further proposition that, where public improvements are adopted for the betterment of real estate within a district, such new physical conditions as are necessary and usually incident to such improvement are deemed ordinarily within the contemplation of purchaser and seller and are not deemed a breach of covenant against incumbrances. Such doctrine has been expressly applied by this court to highways and drainage ditches. Harrison v. Railway Co., supra. Stuhr v. Butterfield, supra.

All public improvement involves a certain community of interest in all real estate within its district. Such improvement is not available to one piece of property alone, and yet it is essential to its appropriate use and enjoyment. From its very nature it cannot benefit one without benefiting many; and, as an incident to the mutual benefit, it lays also a mutual servitude upon all. The highways carved out of a farm bring such farm into connection with the entire highway system of the state. The drainage ditch cut through a farm confers upon such farm the benefit of a complete drainage system furnishing to it an outlet below for its own surface waters and subjecting it to incident servitude from above.

[3] Is a public sewer such an improvement and betterment to real estate that it comes fairly within the operation of the doctrine announced? City property has need of sewer facilities. Abutting property is taxed therefor as for benefits received. These facilities can be acquired only by inclusion in a sewer system. To become a part of such system is to receive its benefits and to be subject likewise to some degree of servitude. Can such incident servitude be deemed a breach of covenant against incumbrances?

It is argued by appellant that the doctrine of our cases above cited does not apply because the sewer was underground and not apparent to observation. This distinction might meet the argument of some of the cases. The doctrine of our own cases, however, has not been made to rest upon the fact that the incumbrance was apparent or known. This court had previously held, in Barlow v. McKinley, 24 Iowa, 69, that a railroad right of way operated as a...