Stuhr v. Butterfield

Ladd, J. The defendant conveyed to plaintiff the S. %, section 21, the N. E. % and the W. % of the N. E. %, section 28, all in township 78 W., range 14, Harrison County, covenanting in the deed that the premises were “free of liens and incumbrances except a certain mort — 737 — gage.” This was on August 22, 1905. In June prior thereto the board of supervisors of Harrison and Pottawattamie Counties, acting jointly as provided by chapter 68 of the Acts of the Thirtieth General Assembly, had established a drainage district and had ordered the excavation of a drainage ditch through it thereby appropriating a right of way, one part seventy-five feet and another one hundred and fifty feet wide, through the farm amounting to about fourteen acres. No claim for damages has been filed as authorized by section 1989-aI, Code Supplement. The ditch has been constructed since.- The order of the board of supervisors directing the construction of the drainage ditch followed by its excavation is said to constitute a breach of the covenant against incumbrances, and this is the only question in the case. Appellant suggests that, inasmuch as the improvement had not been begun at the time of the conveyance, the alleged incumbrance had not fastened to the land; but the contention is without merit. All the proceedings are conceded to have been regular, the right to the way in which to excavate the drainage ditch had been fully established, and, if an incumbrance, it attached to the land prior to the execution of the deed. Nothing the vendee might have done would have relieved the premises of the burden thereby imposed. As to him the appropriation of the right of way was as complete, save the actual excavation of the ditch, as though this had been done, and for this reason the incumbrance, if such it was, had attached prior to the execution of the deed. Such an improvement is authorized only when of public utility or conducive to the public health, convenience or welfare. Section 1989-al, Oode Supp. This result is accomplished by the drainage of large areas of land either directly or by furnishing an outlet for lateral ditches or tiles. Necessarily benefits accrue therefrom to the land so drained, and this bears the burden of expense according to the benefits conferred. Pre — 738 — sumptively some injury results to the land from the taking of the right of way along which the ditch is excavated, and for this reason compensation for damages flowing from such appropriation is exacted as in the taking of the right of way for a railroad or in laying out a highway. See section 1989-a4 et seq. Section 18, article 1, .Constitution of Iowa. But the object of such an improvement, among other things, is the’benefit of the particular land through which it extends, as well as the surrounding area which drains into it. Ordinarily the drainage ditch follows the lowest portion of the watershed, and merely affords a channel throilgh which the water may flow which otherwise would pass onto or over the land in some other manner so that it can not he regarded as the opening up of -an entirely new waterway. The lands through which it extends are mutually interdependent as they were prior to its completion inasmuch as the ditch through the land of one owner is quite as essential to carry the water away as the portions through lands above or below. The drainage ditch as a whole is designed to benefit each parcel of land through which it extends. The nature and object of the easement the public thereby appropriates is much as others within the district like that of a highway. The taking of the right of way for a railroad is of no advantage to the land on which the burden is imposed. It is not intended to improve such land or that surrounding it. The only justification for the appropriation is the demand of the public for a highway of travel and commerce. The thought of any actual advantage, to the land in the way of cultivation or productiveness is not involved in the condemnation of a railroad right of way to the public use. The benefits flowing from the construction and operation of a railway are shared by the community generally. But highways are established because essential to the enjoyment of the land on which they- constitute an easement. The advantage of a particular road to the owner of the land may — 739 — be doubtful iu some instances, but it is established as a part of a system designed to be of use and value to the owner as well as all others out’ of whose lands the highways are carved. In Harrison v. Railway, 91 Iowa, 114, in holding that the existence of a highway on the land conveyed did not constitute a breach of warranty against incumbrances, the court, after quoting definitions of “incumbrance,” and observing that “no easement should be regarded as- an incumbrance to an estate which is essential to its enjoyment, and by which its value is presumably enhanced,” said, speaking through Granger, J.: “By this system of highways the landed estates ’become mutually servient, and in such 'a way that the easements are mutually advantageous, and the respective land values enhanced thereby. Such an easement is not an incumbrance. If the rule of appellant’s contention were to be announced of the multitude that would seek a recovery because of conditions broken in their deed of conveyance, probably not a score, if, indeed, one, could be found who would have made the purchase without the easement of which he would complain, or the assurance that one could be established. It seems demonstrable that the mere existence of a public highway is not an incumbrance to land. It is probably true that such highways might be made an incumbrance; but that is not the question with which we are to deal. To our minds the known conditions, of which judicial notice is taken, lead to the conclusion that public highways are so far essential to the usual and ordinary use and occupancy of land, and so far constitute an inducement to the purchase of the same, as that they are not incumbrances, so as to constitute a breach of the usual covenants of warranty.” After referring to several decisions, it was said in conclusion that: “We make the distinction on the line of what the law will presume to be an incumbrance in the sense that it is a damage to the estate. Other easements to — 740 — which our attention has been called, or which we may have been .able to consider, are not such that the law will presume them as attaching to the estate at the instance of the owner or for its advantage.” The distinction between a railroad right of way easement and that of a highway, and also that of a drainage ditch, is clearly pointed out in the last sentence. The landowner is accorded no hearing as to whether a right of way shall he condemned for the use of ,a railroad, nor is such a taking of any advantage to the estate from which taken while a highway or drainage ditch may be ordered at his instance, and he is accorded a hearing as to the propriety of the establishment of a highway or a drainage district, and both are presumably of advantage to his land. It must be conceded that there is a conflict in the authorities as to whether a highway is an incumbrance constituting the breach of a covenant against incumbrances, and that the decisions followed by the Harrison case are put on the ground that such a covenant does not cover physical easements which are apparent to observation. The reasons for this conclusion were well stated by Paxson, J., in Memmert v. McKeen, 112 Pa. 315 (4 Atl. 542): “Incumbrances 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 a right of way, of the latter. Where incumbrances 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, 5 Pa. 317, supra; Funk v. Voneida, 11 Serg. & R. (Pa.) 109 (14 Am. Dec. 611). Such incumbrances 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 a breach of such covenant. Where, — 741 — however, there is a servitude imposed upon the land which is visible to the eye, and which affects, not the title, but the physical condition of the property, a different rule prevails. Thus it was held in Patterson v. Arthurs, 9 Watts (Pa.) 152, that, where the owner had covenanted to convey certain lots free from all incumbrances, a public road, which occupied a portion of said lots, was not an incumbrance within the meaning of the covenant. This is not because of any rights acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance, 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 incumbrance is really an injury, such injury was in the contemplation of the parties, and that the price was regulated accordingly.” See Des Verges v. Willis, 56 Ga. 515 (21 Am. Rep. 289); Whitbeck v. Cook, 15 Johns. (N. Y.) 483 (8 Am. Dec. 272). On the other hand, courts adhering to the doctrine that the existence of a highway is a breach of warranty against incumbrances regard it as a mere technical breach, and suggest reformation of the deed so as to except it from the operation of the covenant. Thus in Butler v. Gale, 27 Vt. 739, Redfield, C. J., characterizes a claim for damages based on such a breach as “one for a mere technical breach, which the parties must have understood and could not really have intended to indemnify against, with the dry law of the case.” With reference to the equitable relief, he observed that “ordinarily a court of equity would readily suppose that the incumbrance of an existing highway, or any other known and notorious right of a similar character, as a right to draw water from a spring, exercised by another at the time of the conveyance, could not have been intended to be indemnified against, and therefore should have been excepted from the operation of the covenant, — 742 — and would no doubt require the parties to so treat the deed.” To say that an easement constitutes an actionable breach of a covenant and in the same breath -that action will on inference obviate such breach by inserting an exception in the covenant is putting theory above common sense, and apparently recognizing a cause of action for the purpose of defeating it. Ordinarily the allowance of damages to a vendee, with full knowledge of the physical conditions evidencing an easement which can not be changed subsequently by the vendor, and which are so apparent that they must have been taken into account in making the transfer, on a breach of warranty against incumbrances immediately upon receiving a deed containing such warranty, is little less than putting a premium on dishonesty, and has been tolerated by the court only because of their inability to avoid the rule excluding parol evidence of prior negotiations when followed by the execution of a written instrument. But this court has recognized the right of recovery where the covenant is broken by the existence of a railroad right of way over the land. Barlow v. McKinley, 24 Iowa, 69; McGowen v. Myers, 60 Iowa, 256. But happily it declined to extend the rule of these decisions to highways, and, as seen, held that, inasmuch as these exist for the convenient and economic use of the land from which taken, the vendee is conclusively presumed to have taken them into account in making the purchase. Ordinarily the ditch, whether of a drainage district or excavated through the land of joining owners as a private enterprise, is essential to the beneficial use of the land, and is no more likely to prove an injury thereto than a highway. The utility of such drains are universally admitted, and so generally are they regarded as beneficial that few, if any, scriveners in preparing deeds would he -more likely to except them from the operation of a covenant against incumbrances than creeks and other streams flowing through the land conveyed. That they have not — 743 — been thought to constitute breaches of covenants of this kind is somewhat confirmed by the absence of any adjudications on the subject. The reasoning by which the exclusion of a highway from a covenant against incumbrances is peculiarly persuasive in justification of a like ruling with respect to drainage ditches and tiles,- and we are of opinion that, as the design in excavating' a drainage ditch is the permanent improvement of the land, and this results so uniformly therefrom that injury thereto is exceptional, and, as ordinarily the character of the land is such that but for the drainage afforded thereby the vendee would not have purchased, he should be conclusively presumed to have taken all drains as well as highways into' account in acquiring title. This is because essential to the' full enjoyment and economic use of the land, and in this respect the existence of drainage ditches, private or public, and tile drains as well as highways, are to be distinguished from those apparent easements which impair rather than enhance the enjoyment, -and profitable enjoyment and use of the realty on which they constitute a burden. Though the ditch had not been dug, the public records disclosed that it was ordered and plaintiff knew that the improvement was about to be made. The judgment is reversed. Sherwin, O. J., dissenting.