Gadow v. Hunholz

Siebeckee, J. The trial court submitted to the jury only the question of damages. This necessarily implies that the court held that all other questions presented on the trial of the case involved propositions of law to be determined by the court. There is no dispute as to the reservation in the Meyer deed. The reservation is: “. . . the perpetual and exclusive privilege of harvesting, cutting, and raising ice on said premises,” and connected with this is the burden “. . . to maintain the water during the ice-cutting season as high as the fall of the dam.” There is no controversy but that this reservation is in breach of the covenants of the deed by which the .defendant conveyed the premises to plaintiffs, that “they [grantors] are well seised of the premises above described, as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in the law in fee simple and that the same are free and clear from all incumbrances whatever, and that the above bargained premises in the quiet and peaceable possession of . . .” the plaintiffs, etc., “they will forever warrant and defend.” The situation thus presented shows that the 296 plaintiffs’ title is incumbered and burdened as shown by the reservation and constitutes a breach of the covenant that the fee title is free and clear from all incumbrances. This right to harvest ice and the burden of maintaining the water during the ice-harvest season is a right and an interest in the land in diminution of the fee title which passed by the defendant’s deed to the plaintiffs. It is recognized that the title to ice formed on streams and ponds and which is subject to' private ownership belongs to the owner of the bed. Reysen v. Roate, 92 Wis. 543, 66 N. W. 599; Abbott v. Cremer, 118 Wis. 377, 95 N. W. 387. The grant of a privilege to cut and harvest ice is therefore a grant of an interest conveyed which constitutes an incumbrance, and hence breaches the covenant in a deed conveying the premises in fee simple free and clear from all incumbrances. Weiss v. Binnian, 178 Ill. 241, 52 N. E. 969. Defendant’s contention that the court erred in awarding recovery of the damages found by the jury rests on the proposition that only nominal damages 'are recoverable for such a breach of the covenant against incumbrances occurring immediately upon delivery of the deed, and that substantial damages do not accrue until the grantee has either paid for the removal or extinguishment of the incumbrance or has been actually ousted from the premises conveyed. Reliance for this contention is placed, among others, on the cases of Mecklem v. Blake, 22 Wis. 495; Eaton v. Lyman, 30 Wis. 41; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; and Estate of Hanlin, 133 Wis. 140, 113 N. W. 411. The basis for the claim for the recovery of nominal damages is as declared in Eaton v. Lyman, supra, “. . . that a covenant against incumbrances is broken if the land at the time of the conveyance is subject to an incumbrance not excepted in the deed, and that the covenantee may maintain an action for the breach, but can recover only nominal damages, unless it appears that he has sustained an actual injury.” The in 297 quiry is, What injury have the plaintiffs suffered? It is quite clear that they have suffered more than a nominal breach of the covenant against incumbrances. The record shows that the Wisconsin Lakes Ice & Cartage Company own the interest reserved by the deed of Henry Meyer, Jr., amounting to a “perpetual and exclusive privilege of harvesting, cutting, and raising ice on the said premises,” and connected therewith the burden of maintaining the water during the ice-harvest season at the full height of the dam. This right so carved out of the fee title is a valuable one. The present owners refuse to relinquish it and have asserted it hostilely to plaintiffs’ fee title, which defendant by his. deed to the plaintiffs covenanted to convey free from incumbrances. This hostile assertion of the rights to the ice and the consequent right to enter on the plaintiffs’ premises to harvest it operates to deprive the plaintiffs of the fee title free from all interference and amounts to an eviction from enjoying the title and possession of the premises pursuant to the covenants of the deed, and is an actual and substantial injury to them. The right reserved is in its nature and kind a grant to take something which is a part of the'soil or a product thereof .and is denominated a right in the nature of an easement. Walker Ice Co. v. American S. & W. Co. 185 Mass. 463, 70 N. E. 937; 14 Cyc. 1142; “Profits á Prendre,” 6 Words & Phrases, 5666; Kennedy S. & C. Co. v. Sloss S. S. & I. Co. 137 Ala. 401, 34 South. 372; 2 Washb. Real Prop. (6th ed.) § 1227. The facts and circumstances show that the fee to the premises conveyed is subject to the right of cutting ice, that this right is asserted as a hostile one to plaintiff’s rights and injuriously affects the title" which defendant covenanted to convey, and naturally permanently diminishes the value of the estate which defendant purported to convey to plaintiffs. Under such circumstances the covenantee may bring his action immediately on breach of the covenant in the deed and recover compensation for the actual injury sustained by him. Smith 298 v. Davis, 44 Kan. 362, 24 Pac. 428; Williams v. Hewitt, 57 Wash. 62, 106 Pac. 496; Geiszler v. De Graaf, 166 N. Y. 339, 59 N. E. 993. The circuit court properly held that the facts established a breach of the covenant against incum-brances, that the nature of the incumbrance showed that it diminished the value of the estate which defendant purported to convey to plaintiffs, and that the damage consisted in the difference, if any, of the market valúe of the estate conveyed by the deed with the existing incumbrance at the time of conveyance and the market value thereof without such incum-brance. This question was submitted to the jury, who found that such difference amounted to the sum of $1,500. They found the market value of the property free from the incum-brance to be $15,000, which was .the amount the plaintiffs paid the defendant as purchase price. The court awarded judgment for the recovery of $1,500 "as damages for breach of the covenant in the defendant’s deed of conveyance. By the Court. — The judgment appealed from is affirmed.