135 Ky. 751 | Ky. Ct. App. | 1909
Opinion op the Court • by
Reversing.
On February 2, 1902, A. J. Asher conveyed by deed of general warranty to Carlo Helton a tract of eight acres of land lying in Bell connty. On April 26,1906, Carlo Helton conveyed the land by deed of general warranty to Carter and Farmer Helton, who built upon it a storehouse, residence, and other buildings. Previous to the sale to Carlo Helton, Asher had granted to Taylor and Crate a right of way over the eight acres for a tramroad to get out logs to market. After the purchase of the land by Carter and Farmer Helton, and after they had settled upon it, Taylor and Crate proposed to run the tramroad across it. This they resisted. Thereupon Taylor and Crate brought
On the return of the case to the circuit court, a final judgment was entered as indicated by the judge of this court. Thereupon the Heltons brought this suit against Asher on the covenant of warranty to recover damages for the taking of the easement over the land, by Taylor and Crate, and for their cost in the injunction suit. Asher filed an answer to the petition, in which he denied the plaintiff’s allegations as to the damages sustained, and pleaded in another paragraph that, when he sold the land to Carter Helton, he informed him of the easement which had been granted to Taylor and Crate, and Carter Helton agreed to take the land subject to the easement. He also alleged that Carter and Farmer Helton when they purchased from Carlo Helton had like notice. The court sustained a demurrer to this paragraph of the answer. The case coming on for trial before a jury, Asher testified that, when the suit was brought by Taylor and Crate, the Heltons came to him about it, and he told them that there was no use in defending the suit, that Taylor and Crate were bound to win it, and that they should just let the judgment go, that they answered that they were going to fight the suit
The court then gave the jury these instructions:
“No. 1. The jury will find for the plaintiffs the difference, if any, as shown by the evidence, between the market value of the eight acres of ground mentioned in the evidence before the time of the laying of the tramroad thereon by Taylor and Crate and the market value of said land after the laying of said tram-road, not to exceed the sum of $300.
“No. 2. If the jury believe from the evidence that the plaintiffs or either of them expended money in resisting the claim and right of Taylor and Crate to lay said tramroad over said land and using same asserted by said Taylor and Crate in the B.ell circuit court and elsewhere in the courts, and further believe from the evidence that it was necessary on the part of the plaintiffs to expend said money for said purpose, and further believe from the evidence that the amount so expended by said plaintiffs in resisting the claim of said Taylor and Crate was reasonable, then the jury will find for the plaintiffs the reasonable amount so expended by them not to exceed the sum of $300, unless the jury further believe from the evidence that the defendant Asher, before said sum of money was expended by plaintiffs, if any, requested said plaintiffs or either of them not to expend said money in the defense of said claim, and offered to pay the plaintiffs or either of them the damage they would sustain by the laying of the said tramroad over the said land and using same in which event they will find for the defendant on this account.”
The first instruction is not strictly accurate. The rule on the subject is thus stated in 11 Cyc. 1166: "The diminution in the value of the premises resulting from the existence of an easement thereon is as a rule the measure of damages in an action for the breach of the covenant against incumbrances. "Where the easement has been extinguished, the measure of damages is the injury sustained between the date of the deed and the removal of the incumbrance, together with the expenses incident to such removal.” The witnesses testifying as to the amount of damages should be required to state what the difference in value of the premises is with and without the easement as established by the court considering the time for which it exists, and they should not be allowed to state generally that the property is damaged in a certain sum by reason of the easement. It is manifest from the proof that the easement as established does depreciate the value of the property at least to some extent. The verdict for the defendant as to this is palpably against the evidence. Where the vendee has lost the entire property conveyed, the vendor is liable on his warranty in addition to the cost for the consideration paid him with interest, but, where only part of the property conveyed has been lost, he is liable in addition to the cost only for such proportionate part of the consideration paid him as the part lost bears to the entire property. Cox v. Strode, 2 Bibb, 275, 5 Am. Dec. 603; Hunt v. Orwig, 17 B. Mon. 85, 66 Am. Dec. 144; Robertson v. Lemon, 2 Bush, 304. On another trial the court will so modify instructions as to express this.
The court did not err in sustaining the demurrer to so much of Asher’s answer as pleaded that Carlo Helton bought the land with notice of the easement theretofore granted to Taylor and Crate. The writing is the best evidence of the contract between the parties in the absence of fraud or mistake. The rule is thus stated in 11 Cyc. 1066: ‘ ‘ The fact that either or both of the parties knew at the time of conveyance that the grantor had no title in a part or in the whole of the land does not affect the right of recovery for a breach of covenant. Knowledge on the part of the purchaser of the existence of an. incumbrance on the land will not prevent him from recovering damag’es cn account of it, where he protects himself by proper covenants in his deed. In some jurisdictions, however, it is held that where the incumbrance does not affect the title, but only the physical condition of the property, as in the case of an open notorious easement, of which it is the servient tenement, the purchaser must be presumed to have seen it, and to have fixed his price with reference to the actual condition of the land at the time, and that such incumbrance is no breach of the covenant; and the same is true of. easements and servitudes imposed by law.”
Again, on page 1155, it is said: “Parol or extrinsic evidence is not admissible to contradict, vary, or materially affect a covenant, although it may be received to show fraud or mutual mistake in the original execution of the instrument, or to explain a patent ambiguity.” In Bird v. Bank of Williamstown, 13 S. W. 430, 11 Ky. Law Rep. 868, the railroad ran across the land at the time of the purchase, and the company
Judgment reversed, and cause remanded for a new trial. , .,