73 Iowa 328 | Iowa | 1887
The thing stipulated for was to be done after the road should be constructed. But when that was done, the land conveyed by the grant became a part of the road, and its forfeiture would involve a material change in the line of the road, which could only be accomplished by a great expenditure of money. Surely the parties had no such result in view when they inserted the provision in the deed. The provision is very different in its terms from the one involved in Close v. Burlington, C. R. & N. R’y Co., 64 Iowa, 149. In that case the conveyance was of a strip of ground to be used for depot purposes, and the deed recited that it was made in consideration of one dollar and the permanent loca
II. The district court also ruled that the covenant is attached to the land, and that defendant is responsible for such injuries as are the consequence of its own acts in violation of the agreement. The covenant is an agreement by the covenantor that it will, for all time, maintain its railroad and appurtenances on the land in such condition that the surface-waters accumulating on one side shall be prevented from passing over onto the land on the opposite side. It concerns, then, both the land conveyed by the deed and that retained by Reden, and it formed part of the consideration for which the lauds were parted with. Mr. Washburn states the rule on the subject established by the authorities in the following language: “Such covenants, and such only, run with the land, as concern the land itself, in whosesoever hands it may be, and form part of the consideration 'for which the land, or some interest in it; is parted with, between the covenantor and the covenantee.” (2 Washb. Real Prop., 298.)
It appears to us that this instruction announces two propositions that are in conflict. By the last clause the jury were told that if the culvert originally constructed was a permanent part of the road-bed, plaintiff could not recover, for the reason that the action was not commenced within five years after it was put in. In the preceding part of the instruction they were told that if it was a permanent part of the road-bed, then a right of action accrued to his grantor when the first injury occurred for all the damages which he would sustain in the future, in consequence of its construction, and that he could commence his action at any time within five years if he continued to own the land; but that, if plaintiff purchased the land before the expiration of five years after its construction, he could maintain an action for the recovery of such damages as he sustained after his purchase, provided he brought the same before the expiration of the five years. Standing alone, this latter proposition is that plaintiff may recover for inj uries to the land after his purchase, if he brought his action before the expiration of the five years, even though the culvert was a permanent part of
It is insisted that the court erred in submitting to the jury the question whether the culvert as at first constructed was a permanent part of the road bed. But that clearly is a question of fact. As we reverse the judgment on the ground pointed out, we will not now consider the question whether the verdict of the jury is sustained by the evidence.
Reversed.