Geren v. Caldarera

• Decision Date: 01 May 1911
• Parties: GEREN v. CALDARERA
• Court: Arkansas Supreme Court

138 S.W. 335

99 Ark. 260

GEREN v. CALDARERA

Supreme Court of Arkansas

May 1, 1911

Appeal from Sebastian Chancery Court, Fort Smith District: J. V Bourland, Chancellor; affirmed.

STATEMENT BY THE COURT.

On the 25th day of June, 1908, G. Caldarera conveyed by warranty deed to C. N. Geren six lots in block 518 of the Reserve Addition to the city of Fort Smith, Arkansas. The consideration was $ 12,000, $ 5,000 of which was paid in cash. The deed contained a covenant against incumbrances except a mortgage on one lot. This action was instituted by S. Caldarera against C. N. Geren to enforce a vendor's lien on the lots in question for the balance of the purchase money. The defendant answered, setting up that the deed from plaintiff to him contained a covenant against incumbrances except a certain mortgage mentioned in the deed; that some time after the execution of the deed and after he had entered into possession of the lots he discovered that a certain railroad company had a perpetual easement for a switch track over two of the lots embraced in the deed; and he alleges that this constituted a breach of the covenants in his deed for which he asks damages.

Joe H Lindsey negotiated the sale of the property in question from plaintiff to defendant. He testified that defendant told him that he preferred property with a switch track on it, and would not consider some property shown him because it did not have track facilities; that defendant examined the property before he purchased it; that the switch track was then there and that defendant made a close examination of it and measured it and the amount of ground it covered and its course over the lots; that he knew the switch track connected with the main line of the Fort Smith & Western Railroad; that defendant asked him if plaintiff had given the railroad company a deed to the ground occupied by the track, and he told him that plaintiff had not given any deed, but that he and Mr. Cornish, who owned adjacent property, had made some kind of an agreement for the railroad to build in there and that he did not know the nature of the agreement. He denied that he told defendant that the agreement between plaintiff and the railroad company in regard to the switch track was a mere verbal agreement, and that the railroad company could be put off at any time.

Other evidence was introduced by the plaintiff tending to show that the fact that the switch track was located on the lots increased their value.

The defendant, Geren, testified that he examined the lots before purchasing them, and knew that the switch track was there. He admitted that he did not talk to plaintiff about it, but said that he asked Lindsey on what terms the railroad was there, and Lindsey told him that it was just a verbal deal; that if he did not want the railroad on there he could move it off. On cross examination he was asked: "Did you tell him (referring to Lindsey) that you wanted to buy property that had a switch track on it?" and he answered: "Now, in talking to him about different pieces of property, the switch track of course was mentioned, and I of course recollect telling him that property with switch tracks from the Frisco would be much more valuable than from these other roads. I probably told him that I would prefer property with a switch track on it. It was much more preferable." After defendant purchased the property, he built a business house on it, abutting the Switch track so that goods might be unloaded from the cars into the house, and used the switch track in his business, loading and unloading his goods in cars placed there for that purpose. He says, however, the building so erected was only a temporary structure, and, had he known that the railroad had a permanent easement for the switch track, he would not have purchased the property. Defendant also introduced testimony tending to show the amount of damages he suffered on account of the alleged breach of covenant.

Other evidence will be referred to in the opinion. The chancellor found for the plaintiff, and a decree was accordingly entered in his favor. The defendant has appealed.

Decree affirmed.

Winchester & Martin, for appellant.

The conveyance by Caldarera granting to the railroad company the right-of-way is an easement which is an incumbrance upon the lots conveyed by him to appellant; and his covenant against incumbrances in his deed to appellant was broken the moment he delivered the deed. 2 Warvelle on Vendors, §§ 971, 975; 74 Ark. 348; 65 Ark. 103, 105. The fact that Geren knew the track was laid upon the property does not prevent his recovery upon the covenant against incumbrances. 13 Ark. 522, 526, 532; 65 Ark. 103; 69 Ark. 562, 568, 569, 570.

Read & McDonough, for appellee.

1. The writing complained of is not a perpetual easement, but a mere license, or right held at will. While licenses are usually treated by parol, yet they may be created by deed, and when so created they are to be considered according to their meaning. They have the same effect whether in writing or in parol. 51 N.H. 485; 53 Hun 169; Kerr on Real Prop. § 2209; 25 Cyc. 640; 145 Mass. 1; 6 N.Y.S. 108; 7 Barb. 74; 14 Cyc. 1144. The instrument, being a mere license, was revoked by the sale. 74 Ill. 183; 51 N.H. 485. A right-of-way may be a mere license. 109 Ind. 586. A right-of-way to an individual is the same as a right-of-way to a railroad. 51 N.H. 485 and cases cited; 12 Kan. 257; 150 Mass. 19.

2. The alleged easement is not an incumbrance, within the meaning of the law. 4 Mass. 267. Neither is it an incumbrance within the meaning of the deed. The contract, even if it be an incumbrance, affects the physical condition of the premises, was open and visible to the eye, and, therefore, is not an incumbrance within the meaning of the warranty in the deed to appellant. 112 Pa. 315; 22 Wis. 628; 112 P. 108; Brewster on Conveyancing, § 203; 94 Ark. 599. See also 119 N.Y.S. 464; Maupin, Marketable Titles, §§ 85 and 117; 51 Ia. 321; 9 Watts 152.

3. The judgment should be affirmed because appellant can not in any event be entitled to anything more than nominal damages. 65 Ark. 103. The measure of damages is the injury, and none is proved; on the contrary, the proof is that lots are enhanced in value by reason of the switch track being there, and appellant admits that he wants it there. 58 S.E. 759; 109 P. 1034; 45 S.W. 75; 2 Devlin on Deeds, § 916 and authorities cited.

HART J. KIRBY, J. dissents.

OPIN ...