Sandum v. Johnson

• Decision Date: 11 July 1913
• Docket Number: 18,075 - (113)
• Citation: 142 N.W. 878,122 Minn. 368
• Parties: G. H. SANDUM v. JOHN JOHNSON
• Court: Minnesota Supreme Court

142 N.W. 878

122 Minn. 368

G. H. SANDUM v. JOHN JOHNSON

Nos. 18,075 - (113)

Supreme Court of Minnesota

July 11, 1913

Action in the district court for Benton county to recover $2,078.30 for breach of contract to convey certain premises pursuant to a contract of purchase. The answer admitted there was a public highway across a portion of the premises described in the contract and alleged that, prior to the execution of the contract, plaintiff had notice of the existence of the highway. At the trial of the action before Grindeland, J defendant's motion for judgment of dismissal upon the pleadings was granted. From an order denying plaintiff's motion for a new trial, he appealed. Affirmed.

SYLLABUS

Breach of covenant -- highway across land.

The existence of a rural highway, extending across land conveyed by warranty deed of the form in common use, does not constitute a breach of the covenants usually contained in such deeds.

G Halvorson, for appellant.

O. A. Naplin, Charles Loring and G. A. Youngquist, for respondent.

OPINION

TAYLOR, C.

The trial court directed a judgment for the defendant, on the pleadings and the admissions made in open court, and the plaintiff appeals from an order denying his motion for a new trial. The facts are briefly as follows:

The defendant entered into a contract with the plaintiff whereby he agreed to convey to the plaintiff 359.30 acres of land located in Pennington county, "in fee simple, clear of all encumbrance whatever, by a good and sufficient warranty deed," on being paid the purchase price therefor as provided in the contract. Prior to the making of the contract, a public road had legally been laid out across the land, but had not been opened for travel or used. At the time of making the contract, the existence of this road was unknown to the plaintiff, and, apparently, was also unknown to the defendant.

After the second installment of the purchase price became due, the plaintiff tendered the payment, on condition that the defendant relieve the land from the burden of the highway and convey it free from the easement therefor. The defendant admitted that he was unable to do so, and asserted that the highway was not an encumbrance within the meaning of the contract.

It is conceded by both parties that the only question for determination on this appeal is whether the existence of the easement for this highway constitutes an encumbrance within the covenants of the deed contracted for.

Whether the owner of a farm, across which a public road had been established, who conveys the farm by deed containing the usual covenants, without expressly excepting the road therefrom, is liable in damages for a breach of his covenants has been considered by many courts, and the results reached and the reasons assigned therefor differ.

The Massachusetts court, in the case of Kellogg v. Ingersoll, 2 Mass. 96, decided in 1806, held that a town road was an encumbrance within the terms of the covenant saying, "It is legal obstruction to the purchaser to exercise that dominion over the land, to which the lawful owner is entitled." The subsequent cases in that state, to which our attention has been called, do not involve public highways; but they consistently apply the rule that the existence of any easement is a breach of the covenant, for the reason that it interferes with the dominion of the owner over his property.

In the following states the courts adopt the rule stated in Kellogg v. Ingersoll, supra, and hold that in all cases a public highway is an encumbrance, within the meaning of the usual covenants in a warranty deed, for the reason that its existence deprives the owner of that exclusive dominion over his land to which he is entitled.

Connecticut: Hubbard v. Norton, 10 Conn. 422; Alling v. Burlock, 46 Conn. 504.

Maine: Herrick v. Moore, 19 Me. 313; Haynes v. Young, 36 Me. 557; Lamb v. Danforth, 59 Me. 322, 8 Am. Rep. 426.

Vermont: Butler v. Gale, 27 Vt. 739.

New Hampshire: Prichard v. Atkinson, 3 N.H. 335; Haynes v. Stevens, 11 N.H. 28.

Indiana: Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731.

Illinois: Beach v. Miller, 51 Ill. 206, 2 Am. Rep. 290.

Missouri: Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426.

Alabama: Copeland v. McAdory, 100 Ala. 553, 13 So. 545.

The Pennsylvania court, in Memmert v. McKeen, 112 Pa. St. 315, 4 A. 544, says: "Encumbrances are of two kinds, viz., (1) such as affect the title; and (2) those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road or right of way, of the latter. Where encumbrances of the former class exist, the covenant referred to, under all the authorities, is broken the instant it is made, and it is of no importance that the grantee had notice of them when he took the title; Cathcart v. Bowman, supra ; Funk v. Voneida, 11 S. & R., 109 Such encumbrances 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 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, 152, that, where the owner had covenanted to convey certain lots free from all encumbrances, a public road, which occupied a portion of such lots, was not an encumbrance within the meaning of the covenant. This is not because of any right acquired by the public, but by reason of the fact that the road, although admittedly an encumbrance, 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 the further presumption that, if the encumbrance is really an injury, such injury was in the contemplation of the parties, and that the price was regulated accordingly."

This case is based upon Patterson v. Arthurs, supra, and Wilson v. Cochran, 48 Pa. St. 107, 86 Am. Dec. 574; and is approved in Howell v. Northampton, 211 Pa. St. 284, 60 A. 793.

In New York, a public highway, in actual use upon the land at the time of the purchase, is not a breach of the covenants, as the vendee is presumed to have known of its existence and to have taken it into consideration in making his purchase, Whitbeck v. Cook, 15 Johns. 482, 8 Am. Dec. 272; Huyck v. Andrews, 113 N.Y. 81, 20 N.E. 581, 3 L.R.A. 789, 10 Am. St. 432; Hymes v. Estey, 116 N.Y. 501, 22 N.E. 1087, 15 Am. St. 421, and 133 N.Y. 342, 344, 31 N.E. 105.

The Wisconsin court, in Smith v. Hughes, 50 Wis. 620, 627, 7 N.W. 653, 654, say: "In respect to railways and other highways over these lots, or over any portion of them, it is sufficient to say that if they were used as such when the deed of July, 1872, was executed, the appellant must be presumed to have purchased with full notice of them, and they constitute no breach of the covenants of the deed." The same rule is applied in Kutz v. McKune, 22 Wis. 628, 99 Am. Dec. 85; Pomeroy v. Chicago, 25 Wis. 641; Pick v. Rubicon, 27 Wis. 433, 442; Mead v. Hein, 28 Wis. 533, 537; Sabine v. Johnson, 35 Wis. 185, 201; Burbach v. Schweinler, 56 Wis. 386, 390, 14 N.W. 449; Milwaukee v. Strange, 63 Wis. 178, 183, 23 N.W. 432; McLennan v. Prentice, 85 Wis. 427, 434, 55 N.W. 764.

The Virginia court, in Jordon v. Eve, 31 Gratt. 1, after adopting the views of the New York and Pennsylvania courts, add: "With us it has never been supposed that the vendor in conveying his lands is required to make an express reservation or exception with respect to the highways upon the tract, or else to submit to an abatement of the purchase money." In Deacons v. Doyle, 75 Va. 258, the same court again state the rule thus: "Where, at the time of the purchase of real estate, there is a road, or right of way, used by the public, such as a public highway, or a road used so long that there may be a presumption of a dedication to the public, the purchaser takes the land subject to such right; and he is not protected even by a deed of warranty against encumbrances. See Jordon v. Eve, 31 Gratt. 1, and cases there cited." Trice v. Kayton, 84 Va. 217, 4 S.E. 377, 10 Am. St. 836, approves the above rule, but states that it does not apply to a right of way unknown to the purchaser and not discoverable by observation.

The West Virginia court adopts the views of the courts of Pennsylvania and Virginia. Patton v. Quarrier, 18 W.Va. 447; Barre v. Fleming, 29 W.Va. 314, 325, 1 S.E. 731.

The Maryland court adopts the Pennsylvania rule. James v. Jenkins, 34 Md. 1.

The Georgia court, in Desvergers v. Willis, 56 Ga. 515, 21 Am. S. 289, says: "The decisions of the courts of this country are not uniform upon this question, but the weight of authority, we think, is that the existence of a public road on the land, known to the purchaser, is not such an encumbrance as would constitute a breach of the covenant of warranty. This view of the question is sustained by the better reason, especially as applicable to the condition of the people of this state. To hold that a public road running through a tract of land, which was known to the purchaser at the time of his purchase thereof, is such an encumbrance on the land as would constitute a breach of a covenant of warranty against encumbrances, would produce a crop of litigation in this state that would be almost interminable."

The Idaho court approves the same rule, Newmyer v. Roush, 21 Idaho 106, 120 P. 464; Schurger v. Moorman, 20 Idaho 97, 117 P. 122, 36 L.R.A. (N.S.) 313, Ann. Cas. 1912D, 1114.

The Iowa court, in Harrison...