Kahn v. Cherry

• Decision Date: 29 October 1917
• Docket Number: 197
• Citation: 198 S.W. 266,131 Ark. 49
• Parties: KAHN v. CHERRY
• Court: Arkansas Supreme Court

198 S.W. 266

131 Ark. 49

KAHN v. CHERRY

No. 197

Supreme Court of Arkansas

October 29, 1917

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; reversed.

Judgment reversed and cause remanded.

Morris M. & Louis M. Cohn, for appellant.

1. It was error to direct a verdict. At the date of the conveyance by Cherry to Kahn the north wall was charged with an easement in Mrs. Stone. The proper rule is laid down in 89 Ark. 309 316. This rule is sustained by the authorities. 10 A. & E Enc. Law, 420; 27 N.E. 344; 25 Am. St. 421; 49 L. R. A. 417; 81 Am. St. 749; 6 Am. Rep. 300; 53 Id. 550; 38 Me 429; 27 Gratt. 77; 52 Am. Rep. 271; 4 Duer. 53; 5 Id. 553; 55 N.Y.S. 806; 77 N.E. 1126; 18 Id. 828. The lot was granted with the appurtenances, an express grant. See 117 Ill. 643; 7 N.E. 111; 60 N.J.Eq. 589; 10 A. & E. Enc. Law, 427; 26 N.E. 766; 49 L. R. A. 417; 81 Am. St. 749; 21 N.Y. 505; 27 App. D. C. 550; 2 Hill (N.Y.) 145; 52 A. 786; 32 P. 679; 25 Col. 67; 71 Am. St. 109; 39 N.J.Eq. 396; 119 Pa.St. 390; 4 Am. St. 654.

2. A jury should have been allowed to take the case and determine whether Mrs. Stone had an easement in the north wall and to award damages. 89 Me. 470; 36 A. 986; 78 S.E. 378; 7 Ky. Law Rep. 766; 80 N.Y.S. 552.

3. And the issue as to whether Kahn's knowledge of the easement at the date of the conveyance and whether such knowledge precluded him from recovery on the warranty, would then have been before the court and a jury. See 14 Am. Dig. Cent. Ed., §§ 39, 40; 6 Id., p. 16, § 39; 115 Tenn. 1; 88 S.W. 933; 4 L. R. A. (N. S.) 309, note; 62 N.E. 645; 30 S.E. 656; 52 N.E. 969; Ib. 49; 68 Id. 694; 75 Mo.App. 364; 35 A. 635; 69 L. R. A. 790; 74 P. 798; 32 S.E. 114; 49 Id. 722; 8 Ind. 171; 7 S.W. 886; 59 A. 1034; 64 Id. 326, etc. See also 22 Ark. 277, 285; 59 Id. 629, 636; 99 Id. 260. The judgment should be reversed.

Clifton W. Gray, for appellees.

1. No eviction is shown. 19 Ark. 447; 52 Id. 322; 65 Id. 495; 7 R. C. L. 1150.

2. There was no easement in Mrs. Stone. Easements by implied grant must be necessary, continuous, open and apparent. 9 R. C. L. 757.

While there is a conflict among the authorities as to whether the physical condition of the property should be strictly or only reasonably so for the enjoyment of the same, the better rule is the one that holds to the strict necessity. 9 R. C. L. 754; 65 Conn. 366; 66 Id. 337; 126 Ga. 210; 8 L. R. A. (N. S.) 327, and note; 125 Mass. 287; 37 Am. Dec. 85; 10 Allen, 366; 150 Mass. 267; 68 Me. 173; 89 Ark. 309.

3. If there was an easement there was no breach of covenant. It would have been improper to have submitted this case to a jury, for if there was an easement, appellant had knowledge of it at the time he bought. The law recognizes two kinds of encumbrances, one that affects title, the other the physical condition of the property. 32 L. R. A. (N. S.) 737; 22 Wis. 628; 6 Am. Rep. 300; 112 Pa. 315; 36 L. R. A. (N. S.) 1004. The parties, in the absence of anything to the contrary, are presumed to have contracted with reference to the existing state and condition of the property; and if the easement be open and visible and continuous the purchaser is supposed to take the property subject to the burden. 9 R. C. L. 737.

Whether appellant had knowledge should not have been submitted to a jury, for (1) he knew he was buying the whole dividing wall, and (2) because he contended there was an easement by implied grant and is precluded from denying that the physical condition creating the easement was open and apparent.

The court was correct in giving the peremptory instruction.

Morris M. & Louis M. Cohn, in reply.

1. An easement is an encumbrance, and no eviction is required. Rawle, Covenants for Title, § 79; 23 Ark. 590; 25 Id. 452; 33 Id. 640; 65 Id. 103; 74 Id. 348; 89 Id. 234; 84 Id. 415. It certainly interfered with the quiet enjoyment of the property.

2. Knowledge does not preclude a recovery. 11 Cyc. Pl. & Pr. 1066, etc.; 98 Ark. 1; 94 U.S. 343; L. R. A. 1916-C, 164, etc.

STATEMENT OF FACTS.

On the 16th day of November, 1912, the appellees did "grant, bargain, sell and convey" unto the appellant parts of certain lots in block 5, city of Little Rock. The habendum clause was as follows: "To have and to hold the same unto the said Herman Kahn, his heirs and assigns, forever, with all the appurtenances thereunto belonging," and the deed contained this covenant: "We hereby covenant with the said Herman Kahn that we will forever warrant and defend the title to the said lands against all claims whatever."

There was a three-story building, fronting on Main street, situated on part of the property conveyed, the south wall of such building not being on the parcel of land described in the deed, but the north wall of such building was located on the land.

After his purchase Kahn concluded to erect a new building on the site, and notified one Mrs. Stone, the owner of the adjoining property on the north, of his purpose. On Mrs. Stone's property there was also a brick building, and she claimed that the joists of her building were resting on Kahn's wall, and objected to his taking it down. Mrs. Stone turned over the matter of the protection of her interests to a well known firm of lawyers in the city. Kahn investigated the matter and found that it was true that the joists of Mrs. Stone's building rested in his north wall.

One Palez occupied the store owned by Mrs. Stone. Kahn notified Palez that he was going to tear down the wall on the south side of the property occupied by him and Palez protested. Kahn, in order to enable him to proceed, agreed with Palez to pay him $ 500 for his damages, and he was put also to an expense of from three to four hundred dollars in putting in a false wall to protect Palez's store while the building was being erected. Palez would not permit the contractors to enter his store, which was necessary in order to erect the new wall so that the old could be torn down.

Previous to the conveyance from Cherry to Kahn Mrs. Stone had acquired title to the lot and brick building occupied by her tenant, Palez, through mesne conveyances from Cherry, and when she purchased, the joists of her building were resting in the north wall of the building situated on the parcel of ground which Cherry afterwards sold to Kahn.

Kahn made demand upon Cherry for compensation for the damages which he claimed to have sustained, and upon Cherry's refusal to pay, appellant instituted this suit against the appellees, setting up substantially the above facts and alleging that because of the easement created in favor of the grantees of Cherry in the property conveyed by Cherry to appellant that he was damaged in the sum of $ 2,500, for which he prayed judgment.

The appellees answered, admitting the conveyance by warranty deed of the property to Kahn; denied that the property was subject to an easement in favor of the previous grantees of Cherry, and alleged that if the adjacent owner enjoyed the use of the wall conveyed by Cherry to Kahn in any way that said use or privilege was so apparent that same was known to Kahn and same was taken into consideration by him when he purchased the property. Denied that such privilege or use was an encumbrance; and denied any liability to Kahn on their covenant of warranty.

After the above facts, in substance, were developed the court instructed the jury as follows: "That the plaintiff can not recover in this action. In order for plaintiff to recover from the defendants for breach of warranty, it must appear that some encumbrance existed upon the land for which the plaintiff would be entitled to damages. After looking into the matter, I have reached the conclusion that Mrs. Stone, the owner of the property adjoining Mr. Kahn's on the north, did not have an easement in the north wall of Mr. Kahn's property. You will therefore bring in a verdict for the defendants."

Appellant duly excepted to the ruling of the court, and from a judgment in favor of the appellees has duly prosecuted this appeal.

OPINION

WOOD, J., (after stating the facts).

The court erred in directing a verdict in favor of appellees, and in deciding that Mrs. Stone, the owner of the property adjoining on the north, did not have an easement in the north wall of the building on the lot conveyed by Cherry to Kahn. The undisputed evidence shows that L. W. Cherry at one time owned the lot which he conveyed to Kahn and also the adjacent lot north, which, at the time of the institution of this suit, was owned by Mrs. Stone, and which we will hereafter designate as the "Stone lot." Before the conveyance to Kahn, Cherry had sold the Stone lot, with the appurtenances thereunto belonging, under a warranty deed. At the time of this conveyance there was situated on the Stone lot a brick building, the joists of which rested in the north wall of the brick building on the lot sold by Cherry to Kahn, which lot, for convenience, we will hereafter designate as the "Kahn lot." The mesne conveyances from Cherry to Mrs. Stone were warranty deeds with the same habendum clause. These mesne conveyances from Cherry to Mrs. Stone vested in her the dominant estate in the Stone lot, with the appurtenances thereto, which consisted of the brick building thereon. When Cherry conveyed this lot with its appurtenances he granted everything necessary to its enjoyment, and, therefore, he, by implication, conveyed to his grantee the easement in the north wall of the building on the Kahn lot which he also at that time owned, for without such easement it would have been impossible for the grantee of the Stone lot to enjoy the use and benefit of the premises with the appurtenances that were conveyed to him.

The rule of law is very clearly and cogently stated in Hancock...