First Unitarian Society v. Citizens Savings & Trust Co.

Evans, J. The plaintiff holds its cause of action by assignment. Its assignor was the grantee in a warranty deed executed to it by the defendant on December 14, 1907, and which conveyed to it a certain lot 4 in Iowa City. The deed — 390 — contains covenants of warranty which will be hereinafter set out. It was averred that the covenants were breached by the existence of a public sewer traversing said lot to a depth of six feet beneath the surface, which sewer had been used and maintained by the public for more than forty years and was still so used and maintained. It was averred that the plaintiff’s assignor was damaged thereby to the sum of $1,500. The answer admitted the assignment of the cause of action and the existence of the warranty deed and the existence of the public sewer, and denied all other allegations, and especially denied that the existence of said sewer damaged plaintiff’s assignor or was in any way detrimental to the value of the lot. In the court below, the parties submitted the case to the court without a jury upon the following agreed statement of facts: It is agreed as follows: That the defendant was the owner of lot four in block forty-four of Iowa City, Iowa, and that on the 14th day of December, 1907, by its authorized officers it conveyed said above-described property by a warranty deed to the plaintiff. The said covenants of warranty being as follows: ‘And we do hereby covenant with the Iowa Association of the Unitarian and other independent churches that we are lawfully seized of said premises, that they are free ,from incumbrances, that we have good right and lawful authority to sell and convey the same, and we do hereby covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever, and the grantors aforesaid hereby relinquish all contingent right including rights of dower, which they have in and to said last described premises.’ That at the time of executing said deed and of the conveyance of the said property, there extended across said lot a certain public sewer, which sewer entered the lot about sixteen feet west of the northeast corner thereof and extended diagonally southeast, passed out of said lot at a point about sixty-four feet south of said northeast corner. That said sewer had been in existence for many years and was a public sewer of such a character that the public had rights therein and the same could not be removed. That the top of said sewer is from five feet to five feet six inches — 391 — below tbe surface of the ground, and said sewer is about three feet wide and four feet deep on the inside and five feet and six inches wide on top. It is agreed that the court shall determine from the said above facts whether the defendant is liable to the plaintiff for breach of warranty. First Unitarian Society of Iowa City. Citizens' Savings & Trust Co. We think appellant’s discussion in the briefs goes quite beyond the facts appearing of record. Our consideration and discussion of the question presented must necessarily be circumscribed by the agreed statement of facts. The incumbrance charged in this case is the public easement incident to the use and maintenance of the public sewer. ■ An easement may or may not be an incumbrance. An “incumbrance” has been defined as “a burden upon the land depreciative of its value; such as any lien, easement, or servitude which though adverse to the interest of the landowner does not conflict with the conveyance of the land in fee. ’ ’ 10 Am. & Eng. Encyc. of Law, 361. In Barlow v. McKinley, 24 Iowa, 69, it was defined as “right in a third person in the land in question, to the diminution of the value of the land, though consistent with the passing of the fee by deed of conveyance. ’ ’ The trial court found that the easement in question was not an incumbrance within the meaning of the law. This holding was concededly based upon our previous cases. Harrison v. Railway Co., 91 Iowa, 114; Stuhr v. Butterfield, 151 Iowa, 736. The real question before us is therefore whether, under the stipulated facts, the doctrine of the cited cases warranted the judgment of the lower court in favor of the defendant. Some of the authorities classify incumbrances as falling naturally into two general classes: (1) such as affect or relate to the title or to the record thereof; (2) such as affect or relate to the actual physical conditions upon the realty. The first class is illustrated by lien of taxes, judgments, or mortgages. — 392 — As to such it is uniformly held that they are included in the covenant against incumbrances regardless of knowledge of the grantee. Those relating to physical conditions of the realty may come under a somewhat different rule. Whenever the actual physical conditions are apparent and are in their nature permanent and irremediable, they are sometimes held to have been within the contemplation of the parties in fixing the price and are deemed not to be included in a general covenant against incumbrances. The distinction in the two classes of incumbrances is recognized by many courts. In Memmert v. Keene, 112 Pa. 315, this distinction is discussed as follows: Where incumbrances of the former class exist, the covenants referred to, under all the authorities, are broken the instant they are 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; Funk v. Voneida, 11 Serg. & R. (Pa.) 109 (14 Am. Dec. 617). 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, however, there is a servitude imposed upon the land which is visible to the eye, and which affects, not 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 such 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 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. — 393 — To the same effect, see Desvergers v. Willis, 56 Ga. 515 (21 Am. Rep, 289); Whitbeck v. Cook, 15 Johns. (N. Y.) 483 (8 Am. Dec. 272); Clark v. Mossman, 58 Neb. 87 (78 N. W. 399); Weller v. Trust Company (Ky.), 64 S. W. 843; Kutz v. McCune, 22 Wis. 628 (99 Am. Dec. 85); Scribner v. Holmes, 16 Inch 142; Wilson v. Cochran, 46 Pa. 229; Huyck v. Andrews, 113 N. Y. 81 (20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432); Railway Co. v. Beeson, 36 Neb. 361 (54 N. W. 557); Railway Company v. Shepherd, 39 Neb. 525 (58 N. W. 189). To the foregoing must be added the further proposition that, where public improvements are adopted for the betterment of real estate within a district, such new physical conditions as are necessary and usually incident to such improvement are deemed ordinarily within, the contemplation of purchaser and seller and are not deemed a breach of covenant against incumbrances. Such doctrine has been expressly applied by this court to highways and drainage ditches. Harrison v. Railway Co., supra; Stuhr v. Butterfield, supra. All public improvement involves a certain community of interest in all real estate within its district. Such improvement is not available to one piece of property alone, and yet it is essential to its appropriate use and enjoyment. From its very nature it can not benefit one without benefiting many; and, as an incident to the mutual benefit, it lays also a mutual servitude upon all. The highways carved out of a farm bring such farm into connection with the entire highway system of the state. The drainage ditch cut through a farm confers upon such farm the benefit of a complete drainage system furnishing to it an outlet below for its own surface waters and subjecting it to incident servitude from above. Is a public sewer such an improvement and betterment to real estate that it comes fairly within the operation of the doctrine announced ? City property has need of sewer facilities. Abutting property is taxed therefor as for benefits received. These facilities can be acquired only by inclusion — 394 — in a sewer system. To become a part of such system is to receive its benefits and to be subject likewise to some degree of servitude. Can such incident servitude be deemed a breach of covenant against incumbrances ? It is argued by appellant that the doctrine of our cases above cited does not apply because the sewer was underground and not apparent to observation. This distinction might meet the argument of some’ of the cases. The doctrine of our own cases, however, has not been made to rest upon the fact that the incumbrance was apparent or known. 'This court had previously held, in Barlow v. McKinley, 24 Iowa, 69, that a railroad right of way operated as a breach of covenant though its existence was apparent and known. The Harrison case was put upon the broad and practical ground that public improvement and betterment which so benefits abutting property as to render it liable to assessment for the improvement ought not to be deemed ordinarily as depreciating its value. It recognized the fact that such betterment imposed, nevertheless, upon the benefited property a certain mutual servitude, and to that extent created an easement in a legal sense against all property within the benefited district. The holding was that such easement, however, was not ordinarily an incumbrance, because in its entirety it was beneficial and not detrimental to the value. The following excerpts are from the opinion in that ease: It will be observed that we are to meet a delicate question, and also one of great and very general importance to all parts of the state, from the fact that conveyances of land are generally with covenants against incumbrances, and very few of the number, which is immense, contain exceptions as to public highways. If the rule is to obtain in this state that such highways are incumbrances, against covenants of warranty, the effect will be to create almost numberless liabilities where none were thought to exist; for, with few exceptions, if any, conveyances have been made without an apprehension of such a rule, by either of the parties; and, as has been said in other states that have denied the rule, it ‘would produce a — 395 — crop of litigation . . . that would be almost interminable. ’ Such considerations should not influence us to override an established rule of law, and to deny to any party a vested right; but they are important where a rule of law for the state is to be settled upon authority, and is so doubtful that parties acquiring rights may have done so under mistaken apprehensions of what the rule should be. It is conceded that the authorities are not uniform on the question. In Prichard v. Atkinson, 3 N. H. 335; Kellogg v. Ingersoll, 2 Mass. 97; Haynes v. Young, 36 Me. 557, and Burk v. Hill, 48 Ind. 52 (17 Am. Rep. 731), it is held that such highways are incumbrances and a breach of such covenants. In Desvergers v. Willis, 56 Ga. 515 (21 Am. Rep. 289); Whitbeck v. Cook, 15 Johns. (N. Y.) 483 (8 Am. Dec. 272); Patterson v. Arthurs, 9 Watts (Pa.) 152, and Memmert v. McKeen, 112 Pa. 315 (4 Atl. 542), the opposite rule is held. Both lines of authorities have support from rulings on kindred questions, and nothing less can be said, on authority, than that the question is one of grave doubt. It should be said that some of the authorities cited against the rule that such an incumbrance constitutes a breach base the conclusion on a broader doctrine than that of the rule applying simply to public highways, and hold that it applies to other easements, where they are open, notorious, and are, or may be presumed to have been, known to the vendee when the purchase was made; as in the case of a right of way for a railroad, when the road was in operation, and the easement created by it known to the grantee. In view of the rule adopted in this state — that knowledge of the easements will not exclude it from the operations of the warranty — if we are to make a public highway an exception to the rule, it must be on other grounds, or at least the conclusion should be aided by other reasons. ... In general, easements are of such nature that they become incumbrances, in the sense that they are a burden or detriment to the servient estate; because there is nothing in their nature from which the law will presume that they were created in the interest, or for the betterment, of the estate. It is in this view that it has sometimes been said that all easements are incumbrances, and this, as we think, has led, in some cases, to the statement of a broader rule than either public or private interests demand. No easement should be regarded as an incumbrance to an estate, which is essential to it's enjoyment, and by which its value is presumably enhanced. Nothing in the record indicates that the highways in — 396 — question do not bear the relation to the land conveyed to the plaintiff that public highways generally do to agricultural lands; and we have no hesitancy in saying that public highways are not depreciative, but, on the contrary, they are highly appreciative, of the value of the lands on which they constitute an easement, and are a means without which such lands are not available for use, nor sought after in the markets. . . . 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. . . . We may say 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 made servient to the easement. Other easements to which our attention has been called, or which we have been able to consider, are not such that the law will presume them as attaching to an estate, at the instance of the owner, and for its advantage. The consequences of a rule that would hold to a technical liability at law in such cases, and remand parties to proceedings in equity to reform the thousands of conveyances that would fall within its operation, can be better imagined than expressed; and we feel that the announcement of a rule of law decisive of the rights of parties, without such litigation, is correct in principle and in accord with public and private interests. Jn the Stuhr case, su/pra, the same doctrine of mutuality of benefit and burden was applied to a drainage ditch. The ditch in question had not been cut nor the,land appropriated in a physical sense at the time of the execution of the warranty sued on in that case. The doctrine of the Harrison case is there fully discussed and reaffirmed, and we need not repeat the discussion. It will be noted, also, that the discussion in the Stuhr ease is made to apply not only to open ditches, but also to covered tile drains. Nothing less would be consistent. In a practical sense, it is hardly conceivable that a purchaser of real estate underlaid with covered tile drains could deem himself damaged thereby as for breach of covenant against incumbrances. Such tile drains are usually laid at great expense and to the great improvement of the property. — 397 — Necessarily such benefit has its incident servitude and perhaps inconvenience. The landowner must necessarily adapt his use of the land to the use and location of the tile drains. He can not sink a well or dig a post hole over such drain. If he put a structure upon such ground, he must protect his tile against undue weight. And if he excavate a basement he must take account of, and make provision for, his tile drain. This is a burden incident to benefit. Is this argument fairly applicable to a public sewer? It is urged that a public sewer is not a benefit to the particular land through which it passes. But it is a matter of common knowledge that proximity to a sewer is one of the first requisites of city property and one of the first conditions to city value. It is true, as argued by appellant, that public sewers are usually laid in streets and alleys. It is also true that it is sometimes a practical necessity to lay them along the course of the ravines because of the topography of the ground, and because their expense might otherwise be prohibitive. The very selection of the cheaper course is in itself in the interest of the property owner who has need of sewer' connection and must needs pay for the improvement. It is further argued that the sewer should be deemed an incumbrance because of the statutory provisions for the condemnation of land for such purposes and for the assessment of damages therefor. But similar statutory provisions are made for condemnation of land for public highways and for public ditches and tile drains. In all such cases the constitutional prohibition against the consideration of benefits is applicable, as well as the prohibition against the taking of private property without compensation. Turning to the stipulation of facts before us, we discover nothing therein to take the case out of the operation of the doctrine of the cases here considered. No facts of a special nature are made to appear. Nor does it appear that the plaintiff suffered any damage in fact, unless damage is to be presumed from the mere existence of the sewer. No question of deceit or false representation or mutual mistake is involved. We have before us only the cold — 398 — question whether the mere existence of a sewer five or six feet under ground necessarily constitutes a breach of covenant against incumbrance. We think the holding of the trial court is in accordance with our previous cases here considered, and its judgment is therefore — Affirmed.