No. 18102 | Wash. | Mar 6, 1924
The appellants, in 1918, by warranty deed, conveyed lot 8, block 7, of the town of Cordova, Alaska, according to the plat thereof, to the respondent. The lot as platted is 25 x 100 feet, and at the time of the deed there was a building on it cover
It is urged here that no damages were proved, and that, therefore, tbe respondent could take nothing by tbis action. There was some evidence, however, as to tbe difference in tbe market value of tbe property subject to tbe right of way and tbe market value bad not tbe right of way existed, and tbis difference tbe respondent would be entitled to, as it would also be entitled to tbe reasonable costs and attorney’s fee incurred by it in tbe defense of its title to tbe alleyway in tbe district court, and for tbe reasonable value of tbe costs and attorney’s fee on appeal to tbe circuit court of appeals, if there was evidence before tbe jury showing that tbe appeal bad been authorized by tbe appellants, and in tbe record we do find evidence to that effect.
The next question (and the one of real importance in the case) is this, whether, under a warranty deed, the grantee may maintain an action against the grantor for damages where there exists a roadway, street or alley on a portion of the granted premises.
This court, in Hoyt v. Rothe, 95 Wash. 369" court="Wash." date_filed="1917-03-24" href="https://app.midpage.ai/document/hoyt-v-rothe-4735597?utm_source=webapp" opinion_id="4735597">95 Wash. 369, 163 Pac. 925, recognized that on this question there was a diversity among the authorities, and in that case held that a public right of way does not fall within the covenant against encumbrances, but “is impliedly exempted from the effect of the covenant. ’ ’ Later, in the case of McDonald v. Ward, 99 Wash. 354" court="Wash." date_filed="1918-01-09" href="https://app.midpage.ai/document/mcdonald-v-ward-4736095?utm_source=webapp" opinion_id="4736095">99 Wash. 354, 169 Pac. 851, L. R. A. 1918F 662, the Hoyt case was referred to and the court, again recognizing the division of authority, held to the exemption of highways from covenants of “seizin and warranty and against encumbrances.” Again, in Walquist v. Johnson, 103 Wash. 30" court="Wash." date_filed="1918-06-27" href="https://app.midpage.ai/document/walquist-v-johnson-4718806?utm_source=webapp" opinion_id="4718806">103 Wash. 30, 173 Pac. 735, the court more strongly committed itself to this doctrine, saying:
*575 “Nor can the recovery be supported upon the theory that there was a breach of warranty because a public highway extended over the land. We have adopted the rule, supported by a majority of the cases, that a public highway is not an incumbrance warranting a purchaser to claim a breach of a covenant of warranty, even though there may be no express exception of the highway from the covenant.”
It will be noticed that these three cases were dealing with highways across rural land, but we take it that the principle announced is not affected by that fortuitous circumstance. The law stood in that situation until the case of Fagan v. Walters, 115 Wash. 454" court="Wash." date_filed="1921-04-15" href="https://app.midpage.ai/document/fagan-v-walters-3999813?utm_source=webapp" opinion_id="3999813">115 Wash. 454, 197 Pac. 635, which involved a highway over rural land, and there the court held that a covenant of warranty warrants against known as well as unknown defects and incumbrances, and that where an easement for a sixteen-foot right-of-way existed over the granted land, the grantee could recover damages for this breach of warranty. That opinion does not refer to the rule announced in the three cases hereinbefore cited and contains this language:
“It seems to be settled, however, that ordinarily, knowledge on the part of a grantee at the time of the existence of an incumbrance upon the land, or a defect in the grantor’s title, does not militate against the covenants in the deed, as such covenants warrant against known as well as unknown defects and incum-brances, and a grantee with knowledge of an incum-brance may rely upon the covenants in the deed for his protection.”
Although the opinion does not clearly indicate it, the record in the Fagan case shows that the right-of-way there under consideration was a private and not a public right-of-way. It is to be borne in mind that the right-of-way in the case before us is a public one which, by a decision of the circuit court of appeals,
The argument is advanced that the Fagan case, supra, in effect, overrules the three prior cases. But, hearing in mind that the Fagan case relates to a private right-of-way over rural property, and the other three cases relate to public rights-of-way over rural property, there is no necessary conflict between the decisions, and the rule as established by the four cases is, that public rights-of-way over rural property are impliedly exempted from covenants of ‘ ‘ seizin and warranty and against encumbrances,” but that private rights-of-way over rural property are not so exempted, and that the existence of such private rights-of-way gives rise to an action upon the covenants against the grantor.
It may be that there is not any very substantial difference to be noticed between public and private rights-of-way over rural property, but the decisions having been made and titles having been transferred in reliance upon them, the court is not disposed to alter the rule as laid down by the four prior decisions.
The decisions of this court have made the distinction between rural and city property, and strong contention is made that there is no reason for such a distinction. On the other hand, it is argued that rural and city property are very differently situated as affected by rights-of-way; that generally the purchaser of rural property buys an appreciable area from which the deduction of a right-of-way is not much of a loss, whereas the purchaser of urban property buys a very restricted area and to take from it a right-of-way is to materially decrease the amount called for in the deed, and that, in the present case, practically one-sixth of the area agreed to be transferred by the grantor has
Many authorities are cited upholding this argument, probably the most interesting one being the decision of the supreme court of Minnesota in Sandum v. Johnson, 122 Minn. 368, 142 N. W. 878, where, after a review of a multitude of eases, that court said:
‘£ There is an obvious distinction between rural highways and city streets. Cities are platted into lots, blocks and streets. The streets are marked out upon the plat as entirely separate and distinct from the lots and blocks. It is rarely necessary to open streets other than those so marked out. To lay out a street over a lot would often result in appropriating the entire lot. It is also as much a matter of common knowledge that the purchaser of a city lot never contemplates that it will be burdened by an easement for a street, as it is a matter of common knowledge that the purchaser of a farm expects to take it subject to the easement for the existing country roads.”
■While there is an instinctive hesitancy in giving full acquiescence to such a position, and it may be that, logically, there is no such distinction to be drawn, and that actually urban and rural property blend into the same physical conditions, and that there exists an indefinite zone which partakes the nature of both properties, still the distinction has become stare decisis, in this jurisdiction and it is too late at this time to inject confusion into a myriad of titles, and the court must adhere to the view that covenants of ££ seizin and warranty and against encumbrances” on city property cover rights-of-way both public and private, but that public rights-of-way are impliedly exempt from such covenants on rural property. As a matter of fact, the exemption of public rights-of-way on rural property
Therefore the respondent had a cause of action, and the court was correct in overruling the demurrer to the complaint and refusing to dismiss the action, and the judgment is affirmed.