Harrison v. Des Moines & Ft. D. R. Co.

• Decision Date: 17 May 1894
• Citation: 58 N.W. 1081,91 Iowa 114
• Court: Iowa Supreme Court
• Parties: HARRISON v. DES MOINES & FT. D. R. CO.

91 Iowa 114

58 N.W. 1081

HARRISON

v.DES MOINES & FT. D. R. CO.

Supreme Court of Iowa.

May 17, 1894.

Appeal from district court, Palo Alto county; George H. Carr, Judge.

The defendant made to the plaintiff, on the 18th day of May, 1885, a deed to the N. E. 1/4 of the N. E. 1/4 of section 20, township 96, range 32 W., for a consideration of $600. In the deed is a clause as follows: “And the Des Moines and Ft. Dodge Railroad Company doth warrant the title thereof to be perfect.” The petition alleges that there is, and was at the time the deed was executed, a public highway on two sides of the 40-acre tract, because of which he is deprived of 2 acres of the land described in the deed, and that the amount so used by the highway is of the value of $135; that at the time of the purchase he executed on the land a mortgage to secure a part of the purchase price; that since the execution of said mortgage he has made such payments thereon that, with the $135,--being the value of land used as a highway,--the mortgage is fully paid; that he has requested defendant to enter satisfaction of said mortgage, which defendant has neglected to do; and he asks judgment for the statute penalty. There was a demurrer to the petition on various grounds, which the district court overruled, from which order the defendant appealed.Thos. S. Wright and George E. McCaughan, for appellant.

T. W. Harrison, for appellee.

GRANGER, C. J. (after stating the facts as above).

We will assume, for the purposes of the case, that the covenant in the deed is against incumbrances, as well as seisin. In this way we come directly to the question of whether or not a public highway--in use, and known to the parties, at the time of the conveyance--is an incumbrance, so that its existence constitutes a breach of the covenants of warranty. In Barlow v. McKinley, 24 Iowa, 69, this court defined an “incumbrance” as “a 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 the deed of conveyance.” In the same case it was held that a right of way for a railroad, though in existence, and known to be so by the grantee, was a breach of the covenants of warranty, and justified a recovery, following Van Wagner v. Van Nostrand, 19 Iowa, 422, in which case it was held that a building on the land, belonging to a tenant, with a right in the tenant to remove it, when the facts were known to the grantee at the time of the purchase, constituted a breach of the covenants against incumbrance; and the rule was expressly stated that knowledge on the part of the grantee of the incumbrance did not defeat a right of recovery. The holding is followed in McGowen v. Myers, 60 Iowa, 256, 14 N. W. 788, wherein an easement for a certain stairway was held to be an incumbrance against covenants of warranty. It will be observed that we are to meet a delicate question, and also one of great and very general importance to all parts of the state, from the fact that conveyances of land are generally with covenants against incumbrances, and very few of the number, which is immense, contain exceptions as to public highways. If the rule is to obtain in this state that such highways are incumbrances against covenants of warranty, the effect will be to create almost numberless liabilities where none were thought to exist; for, with few exceptions, if any, conveyances have been made without an apprehension of such a rule, by either of the parties, and, as has been said in other states that have denied the rule, “would produce a crop of litigation * * * that would be almost interminable.” Such considerations should not influence us to override an established rule of law, and deny to any party a vested right; but they are important where a rule of law for the state is to be settled upon authority, and is so doubtful that parties acquiring rights may have done so under mistaken apprehensions of what the rule should be. It is conceded that the authorities are not uniform on the question. In Prichard v. Atkinson, 3 N. H. 335;Kellogg v. Ingersoll, 2 Mass. 97;Haynes v. Young, 36 Me. 557; and Burk v. Hill, 48 Ind. 52,--it is held that such highways are incumbrances and a breach of such covenants. In Desverges v. Willis, 56 Ga. 515;Whitbeck v. Cook, 15 Johns. 482;Paterson v. Arthurs, 9 Watts, 152; and Memmert v. McKeen (Pa. Sup.) 4 Atl. 542,--the opposite rule is held. Both lines of authorities have support from rulings on kindred questions, and nothing less can be said, on authority, than that the question is one of grave doubt. It should be said that some of the authorities cited against the rule of such an incumbrance constituting a breach base the conclusion on a broader doctrine than that of the rule applying simply to public highways, and hold that it applies to other easements, where they are open, notorious, and are, or may be presumed to have been, known to the vendee when the purchase was made, as in the case of a right of way for a railroad, when the road was in operation, and the easement created by it known to the grantee. In view of the rule adopted in this state,--that knowledge of the easement will not exclude it from the operations of the warranty,--if we are to make a public highway an exception to the rule, it must be on other grounds, or at least the conclusion should be aided by other reasons.

Appellee contends, with much earnestness, that the highway in question is an easement, and that such an easement is at all times an incumbrance, and in such a sense “as to constitute a breach of covenants against incumbrances.” It is to the latter branch of the proposition that we direct our attention. Is a public highway, in legal contemplation, an incumbrance? An “incumbrance” is defined to be “a burden upon land depreciative of its value, such as a lien, easement, or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in...