| Ark. | May 1, 1911
(after stating the facts). There is a direct con- „ flict in the authorities as to whether the existence of an easement for a railroad right-of-way is a breach of the covenant against incumbrances in the.deed -of conveyance. Counsel have -cited the authorities bearing on the question in their respective briefs. See also 11 Cyc. pp. 1067, 1116 and 1124. We do not deem it necessary to decide that question. We hold that under the facts of -the -case at bar the defendant is estopped from -claiming that the easement of the railroad over the lots in question is an incumbrance, because defendant not only purchased the property in contemplation of its physical condition, but because of such condition. “Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either -of property, of contract, or of remedy, as against another person, who has in good faith relied upon su-ch conduct, and has been led thereby to change his position for the worse, and wh-o on his'part acquires some -corresponding right, either of property, -of contract, -or of remedy.” 2 Pomeroy’s Equity Jurisprudence, § 804. Mr. Pomeroy -also says that “an estoppel determines the right which a person may enforce 'by action or rely on in defense, and not the mere m-ode and means by which those rights may be proved,” and in this view the doctrine of equitable estoppel is not a branch merely of the law of evidence. Ib. § 801. The undisputed evidence in this case s-bow-s that the defendant had knowledge of the' easement when he purchased the property. Lindsey, who negotiated the sale, says that some time elapsed between the time he first showed defendant the property -and the time the purchase was. made; that he attempted to show him other property, and defendant declined -to look at it because it had no switch tra-c-k on it. Then, too, this .property was situated in that part of the -city set apart for wholesale and manufacturing enterprises, and wh-ere switching facilities added to the value of the property for such use. The defendant himself admits that he told Lindsey that he greferred purchasing" property with a switch track on it. He now claims, however, that Lindsey told him that the switch was only located there temporarily, and he could have it removed whenever he wished to do so. Lindsey denies this, and stated that while he was negotiating- with defendant for the sale of the property defendant asked him about the switch, and he told him that there existed some kind of an agreement between plaintiff and Cornish, the owner of adjacent property, and the railroad company in regard to the switch, but he did not know what it was. He further stated that defendant made a careful examination of the switch and measured the ground occupied by it. He also said that the defendant measured the remaining ground to see what size buildings could be put on it. This defendant does not deny. Defendant also states that he purchased the property for speculation. The preponderance of the evidence shows that property in that locality is onty suitable for manufacturing industries or wholesale business, and that the existence of a switch track on such property adds to its usefulness for that purpose and consequently to its value. It is evident from the testimony that the existence of the easement of the switch track was an inducement to defendant to purchase the property. He purchased the property in contemplation of its physical condition and with reference thereto. He wished to purchase property with a switch track on it,, and he got what he wanted. He can not now turn around on his grantor and complain that the covenant against incumbrances was broken by the existence of an easement which he knew about when he purchased the property and the continued existence of which was one of the inducements which caused him to make the purchase. Such attempt is unjust and inequitable; and defendant is estopped from claiming that the existence of the easement is an incumbrance, which is a breach of the covenants contained in his deed.
The principle here invoked was recently applied by the court in the case of Soudan Planting Co. v. Stevenson, 94 Ark. 599" date_filed="1910-04-18" court="Ark." case_name="Soudan Planting Co. v. Stevenson">94 Ark. 599.
The decree will be affirmed.