
    Kunkle v. Beck et al.
    
      Pleadings — Action for breach of covenants against incumbrances in deed — Answer avers knowledge by grantee of pipe-line easement — That plaintiff had physical evidence of easement — That pipe-line not incumbrance affecting title — Such averments do not state defense, when.
    
    The answer in an action for a breach of the covenants against incumbrances in a deed averred in substance that while plaintiff and defendant were negotiating about the sale of the farm the defendant informed plaintiff that he had conveyed a right of way to a gas company for a pipe-line, and the plaintiff had knowledge of the fact that a pipe-line had been laid across the land; that the physical evidence of the fact was visible to the plaintiff, and that while said negotiations were pending plaintiff inquired of defendant what consideration he had received for conveying said right of way and when informed of the amount asked to have the same deducted from the purchase price of the farm, which was agreed to; and that such right of way is not an incumbrance affecting the title to the property but is merely an easement affecting its physical condition, and that the plaintiff having knowledge thereof is estopped from claiming the same to be an incumbrance.
    
      Held: Such averments do not state a defense to the action.
    (Decided April 10, 1913.)
    Error: Court of Appeals for Summit county.
    Metcalfe, J.; Norris and Pollock, JJ., concurring, sitting in the place of the judges of the , Eighth District.
   Plaintiff here, Leo Kunkle, was plaintiff below, and this cause comes before us on demurrer to the defendants’ answer. The petition alleges, in substance, that the plaintiff purchased from the defendants and the defendants conveyed to him by warranty deed a certain farm; that the deed contained the usual covenants of title and against encumbrances; that prior to the execution of said deed to plaintiff defendants had granted and conveyed to The East Ohio Gas Company a right of way across said farm by which a perpetual right was granted to that company to maintain and operate a gas pipe-line thereon for the transportation of gas, and that said line had been laid down and has ever since been maintained and operated by the company. Plaintiff claims that said right of way constitutes an incumbrance on said farm which lessens its value, and thereby causes him damage.

Defendants, Matilda Beck and John Beck, in their answer admit the execution of the instrument conveying to the gas company the right of way in question, and that the company has laid and maintained a pipe-line across said right of way. For a second defense the defendants say that before the execution of.the plaintiff’s deed, and while the plaintiff and defendants were negotiating about the sale of the farm, they informed the plaintiff that they had conveyed such right of way to the said gas company, and that the plaintiff had knowledge of the fact that a pipe-line had been laid across said land. That the physical evidence of the fact was visible to the plaintiff, and that while said negotiations were in progress plaintiff inquired of them what consideration they had received for conveying said right of way, and when informed of the amount asked to have the same deducted from the purchase price of the farm, which was agreed to by defendants, and the sale consummated in accordance with such' agreement. In a third defense the defendants aver that such right of way is not an incumbrance in any way affecting the title to the property, but is merely an easement affecting its physical condition, and that the plaintiff having knowledge thereof is estopped from claiming the same to be an incumbrance.

Plaintiff demurred to the answer and the common pleas court overruled the demurrer, and the plaintiff not pleading further judgment was entered against him on the pleadings. Error is prosecuted in this court, and the only question is whether the common pleas court erred in so holding.

In our judgment the common pleas court erred in overruling the demurrer. The matter set forth in the second defense is a parol arrangement between the parties made before the execution of the deed, which is clearly in contravention of the terms of the deed itself. While this matter, if properly pleaded, might constitute a good cause of action to reform the deed, it is no defense in an action on the covenant against incumbrances, and parol evidence would not be admissible to prove such an understanding. Long v. Moler 5 Ohio St., 271.

As to the matter set forth in the third defense, a question much more difficult of solution is presented. It is urged with much ability that the incumbrance, being open, notorious and visible, is not such an incumbrance as affects the title, but only affects the physical condition of the land, and that the plaintiff having knowledge of its existence at the time of the purchase of the farm cannot now be heard to complain that it is a damage to him. Many authorities are cited upon this proposition, and there seems to be respectable holdings that where the right of way is a public highway, or a railroad which was known to the parties at the time of the conveyance, its existence furnishes no basis for an action for breach of covenant against incumbrances. Kutz v. McCune, 22 Wis., 628; Memmert v. McKeen, 112 Pa. St., 315; Van Ness v. Royal Phosphate Co., 60 Fla., 284, 53 So. Rep., 381, 30 L. R. A., N. S., 833, and note.

But where the right of way is a private one, existing solely for the benefit of a private person or corporation, we think the decided weight of authority is to the effect that such incumbrance constitutes a breach of the covenant.

In Long v. Moler, above cited, it is held that incumbrances known to the parties to the conveyance are not presumed to be excluded from the operation of the covenant.

The correct rule, as we think, is clearly stated in Huyck v. Andrezvs, 113 N. Y., 81. In this case it was held that the right to maintain a' mill dam constituted a breach of a covenant against incumbrances though the easement was perfectly visible to the grantee and its existence was known by him at the time he purchased the premises. “There is no distinction in this respect between incumbrances which affect the title and those simply affecting the physical condition of the land.”

In this case the cases of Kutz v. McCune, 22 Wis., 628, and Memmert v. McKeen, 112 Pa. St., 315, both of which are cited and much relied upon by counsel for the defendant in error, are disapproved. On page 90 it is said respecting these cases:

“They open to litigation, upon parol evidence in every action for the breach of the covenant against incumbrances caused by the existence of an easement, the question whether the grantee knew of its existence; and in every such case the protection of written covenants can be absolutely taken away by disputed oral evidence. We think the safer rule is to hold that the covenants in a deed protect the grantee against every adverse right, interest or dominion over the land, and that he may rely upon them for his security. If open, visible and notorious easements are to be excepted from the operation of covenants, it should be the duty of the grantor to except them.”

And our own supreme court in Long v. Moler, supra, seem to be of the same opinion. On page 274 it is said:

“The covenant embraces in terms, 'all incumbrances whatsoever,’ and excepts none whatsoever. * * * The parties may have had an understanding resting in parol, to the effect that the taxes of the current year were to be excepted from the operation of this covenant. But this we cannot know; for parol evidence is inadmissible to contradict or vary the plain provisions of the deed. The application of the rule may possibly, in this case, work injustice to the defendant. If so, we can only regret it; for the rule itself, being a salutary one, must be maintained.”

Messrs. Rockwell & Grant, for plaintiff in error.

Mr. Charles Smoyer, for defendants in error.'

The following cases also, we think, support the view we have taken in this case: Ladd v. Noyes, 137 Mass., 151; McGowen v. Meyers, 60 Ia., 256, 14 N. W. Rep., 788; Teague et al. v. Whaley, 20 Ind. App., 26, 50 N. E. Rep., 41; Myers v. Munson, 65 Ia., 423, 21 N. W. Rep., 759; and we are satisfied that the rule contended for, that open, notorious and visible incumbrances are excepted from the operation of covenants against incumbrances, finds no support in the Ohio decisions. It is urged that the right of way granted to the gas company is in the nature of a public easement, but we are unable to accept this view.. Whatever the rule may be with regard to highways, we do not think that this pipe-line can be regarded in the same category with roads and highways. Its construction was a private enterprise and the fact that the public are interested in procuring the product which it transports does not make it any the less so.

Judgment of the common pleas court is reversed and the cause remanded with instructions to sustain the demurrer.

Judgment reversed.  