131 Tenn. 360 | Tenn. | 1914
delivered the opinion of the Court.
The hill in the present case was filed to recover of defendant damages for breach of a general covenant of warranty, and against incumbrances, contained in a deed which defendant made to complainant on October
The other track is known as the Ryman track; the facts concerning which are as follows: The Ryman elevator is located on the hank of the Cumberland river below this lot, and Mr. Ryman and the Louisville & Nashville Railroad Company desired to extend the “water track” of the railroad company from the elevator up the river, over the frontage of this lot.- . On July 5, 1903, Sutherland and Graves, the then owners of the lot, for the consideration of $1,000, conveyed to Thomas G. Ryman a right of way along the river front on this lot from its northern boundary to within fifty-five feet of its southern boundary, subject to several reservations, only two of which need be mentioned. One of these was that Sutherland and Graves were to have the right to cross the track with a “movable track,” so as to permit them to draw up and let down timber and lumber from their factory, but not in a manner to obstruct the proper use of the road by the railway company; the other was the right to load and unload cars on the track, but not so as to conflict with the operation of Ryman V boats and elevators. The owners of the lot, when using the cars on the Ry-man track for industries located on said lot, paid, as did all other persons, $1 per car for any car of lumber loaded and unloaded on the .said track, and more
The contention of the complainant is that these railroads are incumbrances, within the terms of the warranty, and that, as located, they diminish the value of the property at least $10,000. The defendant contends that the railroads are not incumbrances, within the meaning of the deed, and that, as a matter of fact, they •do not diminish the value of the property at all..
There is much evidence on both sides of the question, but we are of the opinion that the weight of the evidence, shows that the railroads are not only not .injurious to the lot but of great benefit. The lot is .flat and low, lying on the bank of the river, and is ■.useful only for factories. The evidence shows that without the roads this lot would be practically useless, and that these roads add to its value from twenty-five to fifty per cent. On the other hand, there is evidence to the effect that the roads, considering the way in which they are located or placed on the land, are an injury to it. But, as stated, the weight of the evidence decidedly sustains the conclusion that the roads are of great benefit to the land. It follows, therefore, that complainants are not entitled to any substantial damages.
It is insisted, however, that at all events the roads are technically incumbrances, and that complainants are entitled to recover their costs.
We have held that where an intending purchaser inspected the land which he proposed to buy, and saw upon it in operation a line of railway, he could not thereafter complain that the land was so incumbered, and recover therefor under his covenant against in-cumbrances. Rich v. Scales, 116 Tenn., 57, 66, 69, 91 S. W., 50, 52. In that case the court said:
*369 “But if a part of the land purporting to he conveyed by the deed he held in adverse possession at the time of the conveyance, and the vendee have knowledge of such adverse possession at the time he takes his conveyance, he can have no relief, either upon his covenants at law or in any form in equity; otherwise, if he have no knowledge of such adverse possession at the time.” Id. 66.
Again:
“Treating the case really presented in the hill, an action on the covenants of the deed, upon the ground that a part of the land embraced within the calls was at the time of the conveyance held hy an outstanding and better title, that of the railway company, two insuperable objections are apparent: Firstly, as already said, the representation by bounds would control that made by the calls for distance, and it follows that none of the’land described was held by better title, and that the complainant obtained all that he had contracted for; secondly, assuming that the strip claimed in the bill really fell within all the descriptive words of the deed, still the complainant could not recover, because the strip was, when the conveyance was taken, then in the adverse possession of the railroad company in a manner open and obvious to the complainant, and under such circumstances he could assert no right either at law or in equity in respect thereof based upon the deed in question.” 116 Tenn., 69, 91 S. W., 52.
In the case last cited it was held that the rule would not apply to the existence of a private way, when it did not appear that the purchaser had knowledge of the legal existence of such way.
Similarly, in the case now before us, it is insisted that although complainant inspected the premises before he made his purchase, and had an abstract of title, he was misled by defendant into believing that one of the railroads was paying rent for the use of the-right of way. The evidence sustains this contention as to the Ryman track. That is to say, the owners of the Ryman track were paying rent for the right to use a certain part of the lot adjoining the track for loading and unloading, the sum of $8.33 per month. This was so stated to complainant as reasonably to lead him to believe that the rent was being paid for the use of the track, and hence that the track was subject to the control and disposal of the owner of the lot.; and it seems that he did believe this, and actually demanded rent for it from the Ryman people a few months after his purchase, and after the time had expired for which the Ryman people had rented the space adjoining the track. ■ The latter informed him of his mistake, referred him to the contract under which they had obtained the right of way, and refused longer to rent the space of ground they had previously used for the loading and unloading. Under these circum
A decree will therefore be entered so modifying the decree of the chancellor as to adjudge that, although complainant is not entitled to any substantial damages, he is entitled to nominal damages, and to the costs of the cause.