*1 OPINION COMPANY, INC., LUMBER TABET NOBLE, Chief 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-way 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 the 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 held 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. exists, which the Castillo easement Modrall, Seymour, Sperling, upon inquiry Roehl put & reason thereof was Harris, Dewey, Albuquerque, Allen C. for of an easement across the existence defendant-appellee. land.

443 are uniform as to The authorities not contract. an That easement is an 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), where 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 the 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 exception: 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 “ * * price.” * 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 and 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 principle was This covenant. contemplation parties, was in the Gault, 194 N.W. 181 Wis. in Chandler price regulated accord- was telephone line 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 306 P.2d 325 Leiser, no telephone line in- of the constituted Somers v. Wash.2d White, sense, cumbrance, legal within 843; 179 Or. Ford Wilson, meaning 822; term as used McCarty 184 Cal. 578; Edgar, Ferguson P. 178 Cal. WATSON, COMPTON and JJ., con- Thomas, 1061; P. Ireton v. 84 Kan. cur. Falls, L.R.A.,N.S., 737; P. Inc. Old MOISE, J., Johnson, N.J.Super. A.2d *3 Appeals, dissenting. Ky. 97, Trautwein, Eaton see also Jones, and Patterson 155 S.W.2d MOISE, (dissenting). Justice Compare Huyck

Ky. 32 S.W.2d 408. Andrews, appreciate While I the result 113 N.Y. 20 N.E. majority reached support announcing has in au (1889), L.R.A. 789 thority opinion, cited in trary so-called Tabet I feel New York rule. better applied be that heavily upon Huyck relies and its criti- Utah McCune, supra, cism of Kutz v. and Mem- Grow Invest Jones Co., Mortgage & supra. However, mert Utah 2d even Also, P.2d (1961). Huyck recognized exception Lavey see to the rule v. Graes sle, 245 Mich. N.W. existence of an encumbrance im- A.L.R. breach, mediately Annot. 64 A.L.R. constitutes of the cove- (1929), nant, Thompson, highway. Property, case of visible (Rev.Ed. 1962); highway easement in the instant case was Covenants C.J.S. 101, 110; Am.Jur.2d, Covenants, §§ which the court found have §§ 84, 90, Application 91. of that been obvious and rule would visible. require a reversal judgment. only Our research reveals that Jones majority having concluded the case should Mortgage & Grow Investment 11 Utah affirmed, be hereby respectfully I my note appears P.2d fol- have dissent. However, lowed the New York rule. Special Concurrence of Crockett Justice Appeals, concurs. points the Utah case out that the views majority respect are dicta though because found even irrigation

a visible ditch extended 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 notorious 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.