Schurger v. Moorman

• Decision Date: 24 June 1911
• Citation: 117 P. 122,20 Idaho 97
• Parties: HERMAN SCHURGER, Appellant, v. D. B. MOORMAN, Respondent
• Court: Idaho Supreme Court

117 P. 122

20 Idaho 97

HERMAN SCHURGER, Appellant, v. D. B. MOORMAN, Respondent

Supreme Court of Idaho

June 24, 1911

SALE OF REAL PROPERTY-COVENANT OF WARRANTY AGAINST ENCUMBRANCES-EASEMENT FOR IRRIGATION CANAL-TENDER OF DEED-FORFEITURE.

(Syllabus by the court.)

1. Under the act of Congress of March 3, 1891 (6 Fed. Stat. Anno., p. 508), Congress has specifically granted an easement and right of way over the public domain for ditches and canals to companies formed for the purposes of irrigation and under sec. 1630 of the Rev. Codes of this state, the legislature has provided that maps of Carey Act lands segregated for purposes of reclamation under the act of Congress shall show the locations of all ditches and canals, and that all lands filed upon under the Carey Act shall be subject to easements and rights of way for irrigation canals necessary for the carrying of water to reclaim such lands. Held, that one who deals with lands taken and reclaimed under such acts is chargeable with notice of the provisions of the law in reference thereto.

2. An easement and right of way across a tract of land for the purposes of maintaining and operating an irrigation canal for the reclamation of arid land is not a breach of a covenant in a deed or contract of sale against encumbrances.

3. The court in construing the terms of a contract and the law applicable thereto will take into consideration the conditions and circumstances under which the parties were contracting, and construe their contract in the light thereof.

4. Where M. has contracted and agreed to sell S. a tract of land and covenanted that he would furnish a good and sufficient deed free of all encumbrances, and at the time of the tendering of the deed and of the making of the final payment of the purchase price a bona fide controversy arose between the parties as to whether or not an easement or right of way for an irrigation canal constituted a breach of the covenant against encumbrances, and the deed was not accepted and the final payment was not made and the question has never been determined by the courts of this state, and each of the parties is supported by authority from the courts of other states, and the parties find their way into court over the question, and the courts of this state finally determine that such easement was not a breach of the covenant contained in the contract: Held, that the vendor will not be allowed to declare a forfeiture of the contract until the question is determined by the court, but will, on the contrary, be required to execute and deliver a deed in compliance with the terms of his contract upon payment of the purchase price together with interest thereon.

APPEAL from the District Court of the Fourth Judicial District, in and for the County of Twin Falls. Hon. Edward A. Walters Judge.

Action for specific performance of contract. Judgment for the defendant and plaintiff appealed. Reversed.

Reversed and remanded with direction. Costs of this appeal equally divided between the parties.

C. O. Longley, and H. C. Hazel, for Appellant.

As a general rule, the covenant against encumbrance is broken by any outstanding easement which diminishes the value of the land conveyed, nor will the knowledge by the grantee of the existence of the easement make any difference. (Ensign v. Colt, 75 Conn. 111, 52 A. 829, 946; Weiss v. Binnian, 178 Ill. 241, 52 N.E. 969 (affirming 78 Ill.App. 292); Teague v. Whaley, 20 Ind.App. 26, 50 N.E. 41; Smith v. Davis, 44 Kan. 362, 24 P. 428; Spurr v. Andrew, 6 Allen, 420; Denman v. Mentz, 63 N.J. Eq. 613, 52 A. 1117; Huyck v. Andrews, 113 N.Y. 81, 10 Am. St. 432, 20 N.E. 581, 3 L. R. A. 789; Stambaugh v. Smith, 23 Ohio St. 584, 15 Morr. Min. Rep. 82.)

The easement in the case at bar differs from the case of a road; it is not public; is of no benefit to this land.

Private easements are always held as breaches of covenant. ( Mitchell v. Warner, 5 Conn. 497; Harlow v. Thomas, 15 Pick. (Mass.) 66; Schmisseur v. Penn, 47 Ill.App. 278.)

The evidence in the case at bar shows the easement and encumbrance to belong to the Twin Falls Canal Co., thus putting the case outside the rule of easements owned by the public, for the benefit of the public.

Knowledge of grantee as to existence of encumbrance does not defeat right to strict performance of contract. (Brown v. Taylor, 115 Tenn. 1, 112 Am. St. 811, 88 S.W. 933, 4 L. R. A., N. S., 309; McCall v. Wilkes, 121 Ga. 722, 49 S.E. 722; Teague v. Whaley, supra; Myers v. Munson, 65 Ia. 423, 21 N.W. 759; Medler v. Hiatt, 8 Ind. 171.)

The appellant had the right to a tender of a deed conforming to the contract before he could be required to make final payment or held to be in default. (Robinson v. Harbour, 42 Miss. 795, 97 Am. Dec. 505, 2 Am. Rep. 671; Columbia Bank v. Hagner, 1 Pet. (U.S.) 455, 7 L.Ed. 219; Powell v. Dayton etc. R. Co., 12 Ore. 488, 8 P. 544.)

Appellant under the admitted facts was entitled to the conveyance by decree of court of what appellee had to convey, with damages properly admeasured for failure to convey all that was sold. (McConnell v. Dunlap, 3 Ky. 41, 3 Am. Dec. 723; Smith v. Davis, 44 Kan. 362, 24 P. 428.)

All conditions must be fully complied with in order to effect a forfeiture. (24 Ency. Law, 682; Sanford v. Weeks, 38 Kan. 319, 5 Am. St. 748, 16 P. 465; Smith v. Mariner, 5 Wis. 551, 68 Am. Dec. 87.)

John E. Davies, for Respondent.

Where the encumbrance is one that affects the physical condition of the land, is open and notorious, the parties are presumed to have contracted with reference to it, and the existence of such an encumbrance is not a breach of the covenant against encumbrances. (Memmert v. McKean, 112 Pa. 315, 4 A. 542; Kutz v. McCune, 22 Wis. 628; Safford v. Annis, 7 Me. 168; Holmes v. Danforth, 83 Me. 139, 21 A. 845; Desvergers v. Willis, 56 Ga. 515, 21 Am. Rep. 289; Harrison v. Des Moines R. Co., 91 Ia. 114, 58 N.W. 1081; Denman v. Mentz, 63 N.J. Eq. 613, 52 A. 1117; 1 Brewster on Conveyancing, pp. 706, 707; 11 Cyc. 1066, and cases therein cited; Mann v. Montgomery, 6 Cal.App. 646, 92 P. 875; Allen v. Lee, 1 Ind. 58, 48 Am. Dec. 352; Lallande v. Wentz, 18 La. Ann. 289.)

Where the right of eminent domain has been exercised by the state in condemning a right of way over the lands of a person, and such a person afterward sells the lands, and in his deed of conveyance covenants against encumbrances, without any exceptions, there has been no breach of the covenants, and the grantee cannot sue for damages for breach. (Weeks v. Grace, 194 Mass. 296, 80 N.E. 220, 9 L. R. A., N. S., 1092, 10 Ann. Cas. 1077; Cole v. Lee, 30 Me. 392; United States v. Jones, 109 U.S. 513, 3 S.Ct. 346, 27 L.Ed. 1015.)

When time is expressly made the essence of the contract and there has been a failure to comply with the terms and conditions thereof, the court will declare a forfeiture of the contract. (Castleberry v. Hay, 8 Idaho 670, 70 P. 1055.)

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

This action was instituted for the specific performance of a contract for the sale of real estate. Judgment was entered for the defendant and the plaintiff appealed.

About the 3d day of September, 1907, the respondent, D. B. Moorman, entered into a contract in writing with Harry Ball and Frank T. Mitchell, wherein and whereby he contracted and agreed to sell and convey to the second parties or their assigns by good and sufficient deed a certain tract of land upon the payment of certain stipulated installments. It was also stipulated and agreed in the contract that Moorman should convey to the second parties, their grantees or assigns, by "a good and sufficient warranty deed with fee simple title to certain premises, free from any and all encumbrances excepting the taxes levied during the year in which this contract is executed or thereafter." The grantees therein named assigned and transferred their interest in the contract to the appellant herein. Appellant made his payments in accordance with the terms of the agreement up to the time for the last payment. About the time of the maturity of the last installment, the appellant tendered the balance due and demanded a warranty deed to the premises free of all encumbrances. The respondent offered to convey the premises free of all encumbrances as he construed his contract, but insisted that an irrigation canal which runs across the premises and for which the company has an easement and right of way does not constitute an encumbrance within the terms of the warranty. This tract of land lies within what is known as the Twin Falls irrigated tract, which was segregated and has been reclaimed under what is commonly known as the Carey Act [U. S. Comp. Stats. 1901, p. 1554]. It is admitted that the tract of land in question has running through it an irrigation lateral which diverts and carries water for the irrigation of lands lying along and adjacent to the canal. The appellant contends that the easement and right of way for a canal across the lands constitutes an encumbrance and would amount to a breach of the covenant against encumbrances on the land. The respondent, on the other hand, insists that an easement and right of way for an irrigation canal, being an obvious and notorious servitude upon the land, and being of permanent character and essential for the reclamation of an arid country, does not fall within the category of encumbrances against which a covenant of warranty runs.

Since this action involves lands in an arid section of the state, and in view of the further fact that the greater portion of this state lies in the arid belt and requires irrigation for its successful cultivation, we should first turn to the statutes to ascertain the status of irrigation...