84 Va. 217 | Va. | 1887
delivered the opinion of the court.
This is a writ of error to a judgment of the corporation court of Norfolk city, rendered on the twenty-eighth day of October, 1886. The case is as follows: On the thirteenth day of December, 1878, the plaintiff in error sold to the defendant in error a certain lot and buildings thereon in the city of Norfolk. •The deed was with general warranty, and contained a covenant of seisin, and for quiet enjoyment free from all incumbrances, etc. On the twentieth day of October, 1878, the city inspector of streets of said city notified the defendant in error that her fence and buildings encroached on.the street, and ordered her to remove them. This order not being obeyed, in January following the notice and order were repeated, with a copy of the ordinance of the city providing for a fine if the order was not obeyed. The defendant in error notified her vendor, the plaintiff’ in error, and, the said vendor refusing to concern himself about the matter, the said defendant in error proceeded to obey the order of the city authorities, and pulled down and removed a part of her buildings, and repaved the street on the part vacated, and instituted her action of covenant for breach of the warranties in the deed of her grantor. On the trial of the action, it was proved that the house in question was built by direction of the city engineer at that day, which appeared to the present engineer to be erroneous. It appeared in evidence that the buildings in question encroached on the street three feet eight inches if the street was preserved of uniform width, which ivas forty feet. Both sides asked instructions, and the court, rejecting the defendant’s instructions, gave the plaintiff’s instructions; thereby instructing the jury that if they believed, from the evidence, that the deed of the defendant purported to convey the land in question, and that it was
The chief question involved here, and the only one it is necessary to notice, is whether the facts set forth above constitute a breach of the covenants in the deed. It is contended by the plaintiff in error that a taking of part of the land for this street was not a breach of any warranty contained in the deed. The question whether the extension of a highway through or over any part of a lot of real estate is a breach of the covenant of quiet possession, free from incumbrances, seems to have been much controverted; and it has been held that a public highway or a railway in actual use is no breach of the covenant against incumbrances, nor a public or semi-public alley which is open to public observation. But whatever weight, says Mr. Bawle, may be due to these decisions, it cannot be denied that the current of authority has set strongly the other way; and the ruling in Kellogg v. Ingersoll, 2 Mass., 97, has been approved and sustained in nearly all the Hew England States and many others, in which it appears to be definitely settled that a public highway does constitute at law a breach of this covenant. Rawle, Cov. §§ 79, 80, et seq. In the case of Kellogg v. Ingersoll, Parson, C. J., said: “It is a legal obstruction to the purchaser to exercise that domain over the land to which the lawful owner is entitled. An incumbrance of this nature may be a great damage to the purchaser,” etc. In the ease of Jordan v. Eve, 31 Gratt., 1, (opinion of Staples, J.,) the decision is placed upon the ground that the highway was known to the purchaser, and taken into consideration when the purchase was made, and was obviously
Judgment aeeiemed.