*1 OPINION COMPANY, INC., LUMBER TABET NOBLE, Chiеf Justice. Plaintiff-Appellant, In Castillo v. Tabet Lumber 75 N.M. we held that Luz Castillo Golightly GOLIGHTLY, Pearl Pearl a/k/a Defendant-Appellee. prescriptive right-of-wаy had a Kronig, easement to property roadway from her over across the land involved this action. of New decision, Following that Tabet Lumber Inc., Company, plaintiff appellant (hereafter Tabet), purchaser referred as action, brought in this involved against suit Golightly, gran- Pearl Tabet’s tor, appellee (hereafter defendant and re- Golightly) damages ferred to as to recover for against breach encum- covenant brances.
Golightly the tract land in- by warranty volved in this action to Tabet reservation, containing following deed “subject to lien the Middle Rio Grande Conservancy paving liens easements and reservations of record.” This land had been leased a federal years agency during thе 1951 with housing” being “war constructed thereon. These structures were removed at the end lease, sidewalks, gut- curb and ters, roadways etc. remained. ex- Obvious isted across the one which ex- tended from Baca Avenue to the home of Luz Castillo. Castillo v. Tabet Lumber Co., supra, prescriptive hеld had a she roadway. ap- ment over this Tabet has pealed denying recovery for breach brances. upon
Eight points are and relied asserted reversal, requiring error Tabet as this case turns a determination of finding court erred trial prescriptive from the covenant court found that Tabet was aware .The condition of Howden, Belen, plaintiff- Sedillo & for appearance, including its over appellant. еxists, which the Castillo easement Modrall, Seymour, Sperling, upon inquiry Roehl put & reason thereof was Harris, Dewey, Albuquerque, Allen C. for of an easemеnt across the existence defendant-appellee. land.
443
are
uniform as to
The authorities
not
contract.
an
That
easement
is аn in-
n whether or
not a visible or known ease-
cumbrance,
denied;
of course cannot be
is
open,
it
where
is
obvious and notori-
precise question be-
ous,
it is not such an incumbrance as
in
impression
us is one
first
New
fore
of
constitutes a
defect
the vendor’s
title;
purchaser
nor can the
under a war-
ranty deed with full covenants maintain
generally
Easements
constitute
an action for breach
the
of
covenants
meaning of a covenant
within the
brances
of
seizin and
by
incumbrances
Tiffany, The
4
against encumbrances.
reason
the
of
existence of such an ease-
1004,
(3d
135
Property
at
Law
Real
§
ment.”
however,
Encumbrances,
fall
1939).
Ed.
in-
which
(1) those
categories:
In
into two
315,
Memmert v.
112 Pa.
4
itself;
(2)
and
those
fringe
the title
542
on
A.
(1886), whеre
flight
there was a
concerning the
physical facts
which involve
stone steps leading
from the
Powell,
The Law of
premises.
premises
the adjoining property,
to
the
1968).
(Recomp.
268.18
Property
pointed
court
the
kinds
out
two
of en-
in hold-
unanimous
appear
cumbrances,
saying
courts
affecting
as those
infringes
title,
an encumbrance
ing that where
the
the covenant is
the
broken
instant
itself,
purchaser’s knowl-
made,
a
upon thе title
it is
importance
that it
so
is of no
recovery in an
prevent
it does not
edge
grantee
the
it
had notice of when
covenant, but after
for breach of
said,
action
took
Pennsylvania
he
title. The
Powell,
rule,
supra, at
general
however,
stating this
prevails
different- rule
excеption:
268.21,
an
servitude,
it with
follows
where a
which is visible
the
eye,
imposed upon
is
land
the
and which
by
qualified
must be
statement
“[T]his
affects
the title
not
but the
physical conditions
excepting
property.
dition of the
The court ex-
inspection
apparent on
itself which were
pressed the view of those courts which
'with-
to have been
are found
and which
recognize
exception,
the
thus-:
parties’ in
the
contemplation of
in
“ *
*
pricе.”
*
purchase
agreeing
on
any
is
This
not because of
acquired
public,
rea-
exception to the
recognized an
Wisconsin
road,
son of
although
the fact
McCune,
early as Kutz v.
general
incumbrance,
admittedly
possibly
an
is, that an
(1868), that
[*
Wis.
628]
injury
an
to the
was there
to a
is
known
which
purchaser bought,
when
he is
buy,
the contract
makes
before he
chaser
presumed
knowledge
it.
to have had
notorious
open,
is
obvious
which
In such аnd similar cases there
is
it, is not an
known of
he must have
that,
presumption
if the incum-
further
meaning
such
within
encumbrance
really
injury
injury,
brance
such
is
reaffirmed
рrinciple was
This
covenant.
contemplation
parties,
was in the
Gault,
194 N.W.
181 Wis.
in
Chandler
price
regulated
accord-
was
telephone linе crossed
(1923), where
”
* * *
ingly.
the deci-
property. The rationale of
an easement consti-
such
as whether
sion
principle
again
This
reaffirmed
prevent
which would
an encumbrance
tuted
McMahan,
Taxman
21 Wis.2d
purchaser was
passing
title
to the
clear
(1963). Among other cases
N.W.2d 68
thus:
stated
Cal.App.
Faught, 231
accord are Evans v.
“
**
*
it is
So
considered
Cal.Rptr.
(1965); Matlock
presence
of the transformer and
Wheeler,
(Okl. 1956);
case
Ky.
a visible ditch еxtended across land, appeared it nevertheless to dead abandoned, line,
end at to be refuse, to be filled with and that the told, upon inquiry, chaser was BEALL, Petitioner, Richard W. Moreover, ditch could be filled in. majority recognized tendency there that a REIDY, Judge, Robert W. District Second holding public existed toward visible Judicial State of New highways easements such as and railroad Mexico, Respondent. way, open use, and notоrious do not breach a covenant Supreme Court of New Mexico. impressed brances. We are not that reason requires a different result between ease- visible, open ments which are and notori-
ous, merely public because one is a
ment and private. the other issue, disposition
In view of of this our questions argued
other briefed or need not It discussed. follows that the
appealed from must be affirmed.
It is ordered.