154 P. 757 | Or. | 1916
delivered the opinion of the court.
The entire problem in this case is based upon the question as to whether or not there have been such breaches of the contract as to entitle plaintiff to rescind.
“While the decisions are conflicting, the clear weight of both argument and authority is that the existence of a known rural highway does not constitute a breach of the usual covenants in a deed conveying agricultural land.”
This court has held that the existence of an open, notorious and visible encumbrance upon land contracted to be conveyed, such as a railroad in operation, is not an encumbrance which renders the owner’s title unmarketable and assigns as the reason for so holding that it is presumed that in fixing the purchase price the existence of the encumbrance was taken into consideration: Barnum v. Lockhart, 75 Or. 528 (146 Pac. 975); Wetherby v. Griswold, 75 Or. 468 (147 Pac. 388). The inevitable logic of this deduction is that, if the establishment of the highway is unknown to the contracting parties, the question of its effect upon the agreement depends upon the facts of the individual case, especially in a suit to rescind; for, if the prospective highway renders the premises unsuitable for the purposes intended by the vendee, the discovery thereof presents a condition which was not in the contemplation of the parties, and the vendee ought not to be compelled to purchase something different from that for which he bargained. In the case at bar the land was about 25 miles from Portland, where plaintiff resided. He was purchasing the land for the special purpose of making the 40-acre tract a summer home for his family. The possibility of having a dusty country
Reversed. Degree Rendered.