Schwartz v. Black
| Decision Date | 03 April 1915 |
| Citation | 174 S.W. 1146,131 Tenn. 360 |
| Parties | SCHWARTZ v. BLACK. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Davidson County; John Allison Chancellor.
Suit by H. Schwartz against J. T. Black. From a decree for defendant plaintiff appeals. Modified and rendered.
Vertrees & Vertrees, of Nashville, for appellant.
Samuel N. Harwood and Louis Leftwich, both of Nashville, for appellee.
The bill in the present case was filed to recover of defendant damages for breach of a general covenant of warranty, and against incumbrances, contained in a deed which defendant made to complainant on October 14, 1911, for certain land lying in East Nashville on the bank of Cumberland river, just north of the Woodland street bridge. The action is based on the fact that, when the deed was made, there were two railway tracks and rights of way on the lot as follows: The Louisville & Nashville Railroad Company owned a track and right of way running across the lot in a diagonal direction thence south to other lots and industries located thereon the track at its northern end joining another track of the railway at main street, in East Nashville. The conveyance was of a strip of ground sufficiently wide for the construction of a single track railroad, and it provided that, in case the said strip of ground should ever cease to be used for railroad purposes, the title should revert to the makers of the deed, Wm. Sutherland and Charles Graves, the predecessors in title of defendant Black. The consideration was $3,000. This instrument was made May 11, 1889, and filed for registration in Davidson county May 15th of the same year, and duly registered. Subsequently, on the 17th of February, 1904, the Standard Lumber & Box Company, then the owners of the lot, supplemented the previous instrument by definitely fixing the limits of the right of way at 25 feet; that is to say, 12 1/2 feet on each side of the track. This deed was registered in Davidson county April 19, 1904. There was also a spur track built by the Standard Lumber & Box Company, running out from the diagonal track above mentioned in an eastwardly direction across the lot. The diagonal track referred to was constructed long prior to 1904, and was used by the Louisville & Nashville Railroad Company as a spur track from its main line to numerous industries lying to the south of the lot in question, also to industries operated on the lot in question.
The other track is known as the Ryman track; the facts concerning which are as follows: The Ryman elevator is located on the bank of the Cumberland river below this lot, and Mr. Ryman and the Louisville & Nashville Railroad Company desired to extend the "water track" of the railroad company from the elevator up the river, over the frontage of this lot. On July 3, 1903, Sutherland and Graves, the then owners of the lot, for the consideration of $1,000, conveyed to Thomas G. Ryman a right of way along the river front on this lot from its northern boundary to within 55 feet of its southern boundary, subject to several reservations, only two of which need be mentioned. One of these was that Sutherland and Graves were to have the right to cross the track with a "movable track," so as to permit them to draw up and let down timber and lumber from their factory, but not in a manner to obstruct the proper use of the road by the railway company; the other was the right to load and unload cars on the track, but not so as to conflict with the operation of Ryman's boats and elevators. The owners of the lot, when using the cars on the Ryman track for industries located on said lot, paid, as did all other persons, $1 per car for any car of lumber loaded and unloaded on the said track, and more per car for all other kinds of merchandise. But the evidence shows that this was cheaper than hauling the merchandise in wagons to and from the landing.
The contention of the complainant is that these railroads are incumbrances, within the terms of the warranty, and that, as located, they diminish the value of the property at least $10,000. The defendant contends that the railroads are not incumbrances, within the meaning of the deed, and that, as a matter of fact, they do not diminish the value of the property at all.
There is much evidence on both sides of the question, but we are of the opinion that the weight of the evidence, shows that the railroads are not only not injurious to the lot but of great benefit. The lot is flat and low, lying on the bank of the river, and is useful only for factories. The evidence shows that without the roads this lot would be practically useless, and that these roads add to its value from 25 to 50 per cent. On the other hand, there is evidence to the effect that the roads, considering the way in which they are located or placed on the land, are an injury to it. But, as stated, the weight of the evidence decidedly sustains the conclusion that the roads are of great benefit to the land. It follows, therefore, that complainants are not entitled to any substantial damages.
It is insisted, however, that at all events the roads are technically incumbrances, and that complainants are entitled to recover their costs.
There is a controversy in the authorities on this subject. In the New England states it is held that even a public road running across the land, in use, open and visible, is an incumbrance falling within a covenant against incumbrances, and must be accounted for in damages. Kellogg v. Ingersoll, 2 Mass. 97; Hubbard v. Norton, 10 Conn. 422; Alling v. Burlock, 46 Conn. 504; Herrick v. Moore, 19 Me. 313; Lamb v. Danforth, 59 Me. 322, 8 Am. Rep. 426; Butler v. Galek, 27 Vt. 739; Prichard v. Atkinson, 3 N. H. 335; Haynes v. Stevens, 11 N.H. 28. The general reason assigned is that it deprives the owner of that dominion over the land to which he is entitled. A different view is taken in other states. Memmert v. McKeen, 112 Pa. 315, 4 A. 542, and cases cited; Howell v. Northampton R. Co., 211 Pa. 284, 60 A. 793; Whitbeck v. Cook, 15 Johns. (N. Y.) 583; Huyck v. Andrews, 113 N.Y. 81, 20 N.E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432; Hymes v. Estey, 116 N.Y. 501, 22 N.E. 1087, 15 Am. St. Rep. 421; Hymes v. Esty, 133 N.Y. 342, 31 N.E. 105; Jordan v. Eve, Trustee, 31 Grat. (Va.) 1; Trice v. Kayton, 84 Va. 217, 4 S.E. 377, 10 Am. St. Rep. 836; Patton v. Quarrier, Trustee, 18 W.Va. 447; Barre v. Fleming, 29 W.Va. 314, 1 S.E. 731; Desvergers v. Willis, 56 Ga. 516, 21 Am. Rep. 289; Haldane v. Sweet, 55 Mich. 196, 20 N.W. 902. The ground on which these cases rest is that when the road is a public one, actually open, and in use, the parties must be presumed to have taken it into account in fixing the price of the land, and therefore the covenant must be construed as not intended to embrace the easement. The same rule is followed in some other states as to other open and visible easements. In Kutz v. McCune, 22 Wis. 628, 99 Am. Dec. 85, it appears that the easement held not to be an incumbrance was the right to overflow the land with a millpond; the overflow being, of course, open and visible. The court said that this was equally as obvious as a public road, and that, in case of a public road, the doctrine did not rest on the fact that the road was in favor of the public, but that the easement was obvious and notorious in its character, and therefore the purchaser must be presumed to have seen it, and to have fixed his price for the land with reference to the situation as thus presented. The same rule was followed in Bennett v. Booth, 70 W.Va. 264, 73 S.E. 909, 39 L. R. A. (N. S.) 618; the easement complained of there being the right to overflow by a milldam (Ireton v. Thomas, 84 Kan. 70, 113 P. 306, 32 L. R. A. [ N. S.] 313), a levee, covering several acres (Schurger v. Moorman, 20 Idaho, 97, 117 P. 122, 36 L. R. A. [ N. S.] 313, Ann. Cas. 1912D, 1114), an irrigation ditch (Jones v. Jenkins, 34 Md. 1, 6 Am. Rep. 300), the right to the use of open windows looking across a lot which the vendor of the latter had retained, at which time the windows were obvious. Public roads are excluded in some other states, not on the ground that their existence is open and obvious, but because the court judicially knows that they are necessary, and hence useful. Harrison v. Des Moines & Ft. D. R. Co., 91 Iowa, 114, 58 N.W. 1081; ...
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