Hunt v. Bremer

Citation47 Idaho 490,276 P. 964
Decision Date19 April 1929
Docket Number5087
PartiesG. K. HUNT, Appellant, v. GEORGE A. BREMER and WILLIAM A. PETERS, Respondents
CourtUnited States State Supreme Court of Idaho

WATER RIGHTS-APPURTENANCES TO LAND-CONVEYANCE OF LAND-COVENANT OF WARRANTY AGAINST INCUMBRANCES.

1. Deed conveying lots, together with appurtenances, would also transfer all water rights appurtenant thereto at time of its execution.

2. Division of tract of land to which water is appurtenant without segregating or reserving water right, works division of such water right in proportion as land is divided.

3. That water contract was appurtenant to all other lots in block, as well as those described in land contract, and that canal company would refuse to deliver any water to any lots, unless maintenance charges on entire water contract were paid, held not to constitute incumbrance, so as to relieve purchasers from obligation of contract, since, aside from C. S., secs 5385, 6340, "incumbrance" is right or interest which diminishes value of land, but is consistent with free transfer of fee.

4. That all irrigation projects must be maintained by payment of cost of delivery of water, and that this expense is met, under Carey Act projects, by annual assessments and tolls levied as expressly provided by statute, are matters of common knowledge.

APPEAL from the District Court of the Eleventh Judicial District for Jerome County. Hon. T. Bailey Lee, Judge.

Action to foreclose contract for sale of real estate. Judgment for defendants. Reversed and remanded.

Judgment reversed with instructions. Costs awarded to appellant.

Frank L. Stephan and E. D. Reynolds, for Appellant.

The term "incumbrances" includes taxes, assessments and all liens upon real property. (C. S., sec. 5385.)

A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act. (C. S., sec. 6340.)

Incumbrances are of two kinds, namely, first, such as affect the title; second, those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a road or public way, of the latter. (Sisk v. Caswell, 14 Cal.App. 377, 112 P. 185.)

We should certainly hold against a decision of the trial court where a party had hatched up a purely technical objection to the title offered him, and where it would not appear that the controversy was in good faith or supported by either reason or authority. (Schurger v. Moorman, 20 Idaho 97, Ann. Cas. 1912D, 1114, 117 P. 122, 36 L. R. A., N. S., 313.)

A. B. Barclay, for Respondents.

In equity, such a title (free and clear of all incumbrances) is one as free from apparent defects as from actual defects; one in which there is no doubt involved, either as a matter of law or fact. Every title is doubtful which invites or exposes the party holding it to litigation. (Bell v. Stadler, 31 Idaho 568, 174 P. 129; Eggers v. Busch, 154 Ill. 604, 39 N.E. 619; Herman v. Somers, 158 Pa. 424, 38 Am. St. 851, 27 A. 1050; Howe v. Coates, 97 Minn. 385, 114 Am. St. 723, 107 N.W. 397, 4 L. R. A., N. S., 1170; Moore v. Williams, 115 N.Y. 586, 12 Am. St. 844, 22 N.E. 233, 5 L. R. A. 654; Turner v. McDonald, 76 Cal. 177, 9 Am. St. 189, 18 P. 262; Hooe v. O'Callaghan, 10 Cal.App. 567, 103 P. 175.)

Covenants, restrictions and charges affecting the property contracted for, unless removed or released, will constitute an incumbrance entitling the purchaser to refuse to take the title. (39 Cyc. 1499, Vendor and Purchaser.)

Covenants restrict use. Unless excepted by the contract or released, covenants restricting the use which may be made of the premises are such incumbrances as entitle the purchaser to refuse to perform. (39 Cyc. 1499, Vendor and Purchaser.)

ADAIR, District Judge. Budge, C. J., Givens and Wm. E. Lee, JJ., and Baker, D. J., concur.

OPINION

ADAIR, District Judge.

Appellant owned Block A-188 of Jerome Townsite, and had purchased and paid for a water right for the irrigation of the tract, which water right was evidenced by a contract describing and appurtenant to the entire block. He subdivided this block into 14 lots, and thereafter agreed to sell and respondents agreed to buy two of such lots, the contract providing that upon completion of payments the vendor should make and deliver to the vendees a good and sufficient deed with title free and clear of incumbrances. Upon default in payments, appellant tendered a deed and demanded performance of the contract, and thereafter brought this action to foreclose respondents' rights under the contract and recover deficiency, if any, thereunder.

The defense interposed was that because the water contract was appurtenant to all other lots in the block, as well as the two described in the deed, this constituted an incumbrance, since the canal company refuses to deliver any water to any of said lots unless the annual maintenance charges on the entire water contract are paid in advance, and that, therefore, respondents may in the future be required to pay maintenance on the entire water right in order to get water for their lots, or, in default thereof, suffer a lien to be created against their property if the co-owners of such water right should refuse to pay their proportionate share.

All taxes and maintenance charges theretofore levied against the land and water right were fully paid at the time the deed was tendered. The entire block comprises 3.2 acres and in the past the water maintenance charges have approximated 85 cents per acre, which amount varies from year to year, being determined by the operating expenses which are prorated among the various water users under the system. This appeal is from a decree adjudging that the title tendered was not free and clear of incumbrance and dismissing the action.

The contract for the sale and purchase of the land specifically provided for the delivery of a deed to lots 13 and 14. Nowhere in the agreement was there any clause or stipulation for the conveyance or reservation of any water right. A deed conveying these lots, together with appurtenances, would also transfer all water rights appurtenant thereto at the time of its execution. (Koon v. Empey, 40 Idaho 6, 231 P. 1097; Paddock v. Clark, 22 Idaho 498, 126 P. 1053; Russell v. Irish, 20 Idaho 194, 118 P. 501.) A division of a tract of land to which water is appurtenant, without segregating or reserving the water right, works a division of such water right in proportion as the land is divided. (Russell v. Irish, supra.) The appellant owned an undivided one-seventh interest in the water evidenced by a certain water contract, and the transfer of the land to respondents would ipso facto transfer to them such right only as he had in this jointly owned water contract.

It appears that the irrigation company had refused, on demand, to divide this water contract into fractional parts or shares, due to the infinitesimal size of the water right, administrative and accounting difficulties, and inability to deliver water in such small quantities. Whether the company might legally be compelled, as urged here, to divide this contract is not now before this court for determination.

The sole question presented here is whether or not, under the foregoing state of facts, an incumbrance existed so as to relieve respondents from the obligations of their contract.

"The term 'incumbrances' includes taxes, assessments, and all liens upon real property" (C. S., sec. 5385). "A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act." (C. S., sec. 6340.)

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16 cases
  • Maher v. Gentry
    • United States
    • Idaho Supreme Court
    • November 21, 1947
    ... ... "together with appurtenances" unless specifically ... reserved from said conveyance. Johnson v. Gustafson, ... 49 Idaho 376, 288 P. 427; Hunt v. Bremer et al., 47 ... Idaho 490, 276 P. 964; Koon v. Empey, 40 Idaho 6, ... 231 P. 1097; Russell v. Irish, 20 Idaho 194, 118 P ... 501; Hall ... ...
  • Andrews v. North Side Canal Co.
    • United States
    • Idaho Supreme Court
    • May 23, 1932
    ... ... (C. S., secs. 3018, 3060, 3096, ... 5385, 5556, 5580; Leland v. Twin Falls Canal Co., 51 ... Idaho 204, 3 P.2d 1105; Hunt v. Bremer, 47 Idaho ... 490, 276 P. 964.) ... The ... water right in question was assessed and taxed with the land, ... as an ... ...
  • Crow v. Carlson
    • United States
    • Idaho Supreme Court
    • October 31, 1984
    ...share that each represents of the property described as belonging to Byrne in the Rexburg decree. As was held in Hunt v. Bremer, 47 Idaho 490, 493, 276 P. 964, 965 (1929), "A division of a tract of land to which water is appurtenant, without segregating or reserving the water right, works a......
  • Regan v. Owen, Docket No. 43848
    • United States
    • Idaho Supreme Court
    • March 5, 2018
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