Williams v. Hewitt

• Decision Date: 21 January 1910
• Parties: WILLIAMS et ux. v. HEWITT.
• Court: Washington Supreme Court

106 P. 496

57 Wash. 62

WILLIAMS et ux. v. HEWITT.

Supreme Court of Washington

January 21, 1910

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Bert R. Williams and wife against L. Ella Hewitt. From a judgment for plaintiffs, defendant appeals. Affirmed.

James Kiefer, for appellant.

Smith &amp Cole, for respondents.

GOSE J.

In 1906 the appellant conveyed to the respondent a lot in the city of Seattle by a statutory warranty deed. There was a restrictive clause in the conveyance to the appellant's immediate grantor, which provides, in substance, that the grantee, her heirs and assigns, for the period of 10 years from October 4, 1906, shall not erect any flat building, or tenement house on the premises, and that there shall not be any residence or other dwelling house erected thereon nearer to the street than are the two residences now on either side of the lot. This clause is not contained in the respondent's deed. The respondent treated the clause as an incumbrance, and commenced the action to recover damages alleging that it depreciates the value of the property to the extent of $1,000. The case was tried to the court, and a judgment entered in his favor for the sum of $500. The defendant has appealed.

It is first contended that the clause should be treated as surplusage, or as a condition subsequent, and not as an incumbrance. We think the clause is an incumbrance. 'Any right existing in another to use the land, or whereby the use of the owner is restricted, is an incumbrance.' Wetmore v. Bruce, 118 N.Y. 319, 23 N.E. 303. 'If the right or interest of the third person is such that the owner of the servient estate has not so complete and absolute an ownership and property in his land as he would have if the right or interest spoken of did not exist, his land is in law diminished in value and incumbered.' Mackey v. Harmon, 34 Minn. 168, 24 N.W. 702. 'A building restriction constitutes an incumbrance upon the title, and its imposition is a breach of the covenant against incumbrances.' 5 Am. & Eng. Enc. of Law (2d Ed.) p. 6. See, also, Streeper v. Abeln, 59 Mo.App. 485.

It is further urged that no damages arise until some right is asserted under the restrictive clause, and that the evidence does not show that any right has been claimed. Leddy v. Enos, 6 Wash. 247, 33 P. 508, 34 P. 665, is cited in support of this contention. In that case it was held that under the terms of a deed which was not a statutory warranty the covenant was one for quiet enjoyment, and that the grantee could not pay taxes and maintain an action on the covenant before a right to enforce payment was asserted. Restrictive clauses of this nature are valid and enforceable in equity. 5 Am. & Eng. Enc. Law (2d Ed.) pp. 7, 9. Our Code (Ballinger's Ann. Codes & St.§ 4519 [Pierce's Code, § 4451]) provides that a statutory warranty deed shall be deemed and held a conveyance in fee simple with covenants, (1) that at the time of the making and delivery of the deed the grantor was lawfully seised of an indefeasible estate in fee simple; (2) that the premises were then free of incumbrances; and (3) that the grantor warrants to the grantee, his heirs and assigns, the peaceable possession of the premises. The contention that the respondent's right of action did not accrue until there was an assertion of right under the clause is not tenable. The very nature of the clause is such that no right could be asserted under it by a third party until the respondent or his successor in title did some act violative of the restriction. Where a right or interest exists in or upon the estate granted, and is in fact a part of it, detracting from the use, value, or possession of the estate, such as an easement, the incumbrance exists when the deed is made, and the amount which it diminishes the value of the estate may be determined at once. Runnells v. Webber, 59 Me. 488; West Coast M. & I. Co. v. West Coast Imp. Co., 25 Wash. 627, 66 P. 97, 62 L. R. A. 763. Where the incumbrance consists of taxes or a mortgage, or is of such a nature that it can be computed, and the grantee can compel a release, he cannot recover beyond nominal damages until he has paid the debt.

The point is made that, if the clause is an incumbrance, the damages are not susceptible of ascertainment, and that there can be no recovery. This contention is equally without merit. It is obvious that relief cannot be denied because the action is of such a nature that the extent of the liability cannot be determined with mathematical accuracy. The rule contended for would result in an exemption from liability in all cases of unliquidated damages. The case in this respect is analogous to a condemnation for a street or for a right of way for a railroad. In the former case the measure of damages is the difference in value in the property before and after the taking, less the benefits to the part remaining. In the latter case the rule is the same, except that no deduction is allowed for benefits. In the case at bar the measure of damages is the difference in the value of the property with and without the restrictive clause, if the value of the property is diminished by the presence of the clause in the chain of title. This view is supported by the following cases: Streeper v. Abeln, supra; Mackey v. Harmon supra; ...