Koch v. Hustis

113 Wis. 599 | Wis. | 1902

The following opinion was filed November 5, 1901:

WiNSlow, J.

It was frankly admitted upon the argument of this case by counsel for the respondent that the controlling question upon the merits of this case is simply as to-the proper construction of the defendant’s deed, which is set forth in the statement of facts; and that, if the plaintiff i» entitled to recover for the repairs to the dam made by limp it must be because by that deed the defendants bound themselves to make two thirds of such repairs.

The deed in question was one by which the defendant» granted, bargained, and sold to the plaintiff a mill lot bounded on one side by the canal or race, together with the right to draw from the canal as much water as could be drawn through a certain described aperture in the side of the canal, subject to the prior right of certain previous grantees, and upon condition that the plaintiff should make one third of all necessary repairs upon the dam and race. The deed also contained covenants of warranty, of quiet possession, and a covenant, against incumbrances in the terms usually employed in deeds of warranty. There was no covenant in the deed in express words binding the defendants to make any repairs upon the-dam or race.

But the plaintiff’s contention is that there was really such a covenant contained in the deed by necessary construction p that, because a perpetual right is granted, which cannot, im the nature of things, exist for any great length of time without repairs to the dam and canal, there results from such grant an obligation on the part of the defendants by clear and necessary construction to make the other two thirds of the repairs. Our statute (Stats. 1898, sec. 2204) provides that “no covenant shall he implied in any conveyance of real estate whether such conveyance contain special covenants or not.’' This language is very broad, and seems scarcely open to any construction which would import into it an exception of anj kind. Doubtless it was primarily aimed at the doctrine of implied covenants at common law, under which a covenant of warranty was implied from the word “dedi” in the deed, or a covenant for title from the words "demisi” or “concessi” in a lease. Rawle, Covenants (5th ed.), § 270 et seq. We do not see, however, how the section can he confined to such, covenants. This court has very recently held that under it there can he no implied contract of quiet enjoyment in a lease (Koeber v. Somers, 108 Wis. 497), nor as to the fit condition of the property leased (Hunter v. Hathaway, 108 Wis. 620). In each of these cases the lease in question was for a longer period than three years, and hence was a conveyance, and governed. by the section quoted. Stats. 1898, sec. 2242. Of course, if a conveyance of land contains also a transfer of personal property, the question as to whether any covenant concerning such personal property will he implied is entirely different, and one which is not before us, and upon which we intimate no opinion.

It seems certain, therefore, that under our statute no covenant to repair can be implied from the terms of the deed in question, and we do not understand that the plaintiff’s counsel so contend, but their contention, as before stated, is that the deed actually contains such a covenant by necessary construction of its provisions.

This theory of a covenant “by construction” certainly comes perilously near to a covenant “by implication.” To say that there is such a covenant in a deed in the absence of express words, we must be able to say that tbe language of the deed necessarily means snob an agreement. It is not sufficient to say that there are certain agreements in the deed which would be unreasonable or unlikely to be made in the absence of some counter agreement, and hence that the counter agreement must be supplied by construction, because this would amount to nothing more nor less than the creation of the supposed counter agreement by implication. In our judgment, this is what the plaintiff’s contention amounts to in the final analysis.

As a general proposition, the owner of an easement upon another’s land is bound to make all necessary repairs, and may enter for that purpose at all reasonable times. The owner of the servient estate is not bound to make repairs in the absence of an agreeiiient so to do. He is bound not to obstruct the enjoyment of the easement by any affirmative act. Washburn, Easements (4th ed.), 730 et seq.

The view we have taken of the case renders unnecessary the consideration of other questions raised.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment dismissing the complaint.

A motion for a rehearing was denied April 1, 1902.