Eriksen v. Whitescarver

Mr. Justice Gabbert delivered the opinion of the court: The right of way for an irrigation ditch is an easement, and constitutes an incumbrance upon land subject to such easement. Plaintiff covenanted to convey her lots free and clear of such an incumbrance. The mere fact that defendant may have known of the existence of the ditch, at the time she signed the contract did not relieve the plaintiff from complying with her covenant respecting the character of the title' she agreed to convey. To produce such result there must, in addition to notice, have been at least something in the transaction to show that the parties intended the incumbrance should be excluded from the operation of this covenant. The very purpose of the covenant was protection against defects in the title, and to hold that defendant was thereby only protected against unknown defects would rob the covenant of its value, besides destroying the force of its language. The lots involved are building lots. Defendant intended to erect dwellings thereon. She did not intend' to use them for agricultural purposes. Consequently, the existence, of the ditch, as the testimony discloses, would interfere with their intended use. Mere [412] knowledge then of defendant, of the existence of the right of way for the ditch did not indicate even an intent on her part to treat this incumbrance as excluded from the covenant of plaintiff to convey free and clear of all incumbrance. — Barlow v. Delaney (C. C.) 40 Fed. 97; Sherwood v. Johnson, 28 Ind. App. 277, 62 N. E. 645; Eller v. Moore, 48 App. Div. 403, 63 N. Y. Supp. 88; Harlow v. Thomas, 15 Pick. (Mass.) 66; Flynn v. White Breast C. & M. Co., 72 Iowa, 738, 32 N. W. 471; Quick v. Taylor, 113 Ind. 540, 16 N. E. 588; Farrington v. Tourtelott (C. C.) 39 Fed. 738; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731. What might be the rule where lands incumbered by a right of way for an irrigation ditch, and conveyed for agricultural purposes of which the vendee had notice at the time of the conveyance is not involved, and what we have said on the subject of any such easement is confined and limited to the facts before us. It is apparent that plaintiff could not comply with her covenant to convey her lots to defendant free and clear of incumbrance, at the time she commenced her action, and it was' therefore error to decree a specific performance of the contract. The judgment of the District Court is reversed and the cause remanded with directions to enter a judgment that plaintiff take nothing by her action and that the contract between the parties be annulled. Judgment reversed and cause remanded with directions. Chief Justice Musser and Mr. Justice Hill concur.