terested in the estate, which consent shall be entered on the proper records of the circuit court." The above proposition is well sustained by the decisions cited, as they were nearly all made under the law existing at the time of the death of Joseph H. Ridle, and the statute then in force was construed and applied in those cases. nance. No estoppel is pleaded in this case, and no fact is shown by the evidence, or in the stipulation, that would operate as an estoppel on her to claim her distributive share in her husband's property. In the case of Archer v. Barnes, supra, it appears that the husband made a will and bequeathed to his wife all of his real estate as long as she remained his widow. It appears that she received all the personal property bequeathed to her in the will, and en [3] The next proposition is that where the widow is named as executrix and accepts the trust, and settles the estate, such fact will not preclude the recovery of her dis-joyed the use of the realty up to the time tributive share, in addition to the devise of the life estate. This proposition is settled in Re Proctor, 103 Iowa, 232, 72 N. W. 516, in favor of appellee's contention and other cases cited above. [4] The third contention is that under the provisions of section 2452 of the Code of 1873 a widow's interest in the estate of her husband could not be affected by any provi- | sion of the will, unless she clearly and unequivocally consents thereto, and such consent was made a matter of record, and that no declaration or act of hers relative to the property, short of statutory election could operate to deprive her of her distributive share. This proposition is sustained by Jones v. Jones, 137 Iowa, 382, 114 N. W. 1066. [5] The next proposition is that, the will having devised to the wife a life estate only (not specifying that the same is in lieu of her statutory rights), such a devise was not in lieu of her statutory rights, unless so expressly provided in the will. This proposition is abundantly supported in the authorities above cited, and in Byerly v. Sherman, 126 Iowa, 447, 102 N. W. 157. From the stipulation on which this case was tried, as hereinbefore set out, it will be noticed that the said Mary Ridle, the second wife of Joseph H. Ridle, "continued in possession and occupancy in the land in controversy, up to the time of her death in 1909." There is no stipulation and no evidence that she changed her relationship to this property in the least after the death of the said Joseph H. Ridle. [6] It would appear from the stipulation that at the time of his death she was in the actual occupancy of the property in controversy; that she continued such occupancy up to the time of her death, and there is no other act shown to have been committed by her with reference to the property in controversy that would indicate in the least an intention on her part to accept the provisions of the will in lieu of her statutory rights, except perhaps the fact, shown by the stipulation, that as executrix of the last will of Joseph H. Ridle she in her report as executrix charged herself with $61.78 for support for six months as the widow of Joseph H. Ridle. This did not indicate an intention to take under the will, for, under the law, she was entitled to that much from her hus the action therein was begun, and in that In Byerly v. Sherman, supra, the following language is used: "No one, it seems, thought of requiring an election on the widow's part, and no one gave her notice of the terms of the will." She has six months after notice in which to make an election, and not six months after she had knowledge of the provisions of the will. She may remain passive until such notice is given. "She did not, as we have seen, make a statutory election; and, if there is any election, it must be bottomed on the theory of estoppel. Counsel have diligently gone over our cases for a decision on * * side that there cannot be an estoppel on the subject to the rights of homestead and exwidow, save by following the statute, while emption created by law, and the distributive on the other the theory of equitable estoppel share in his estate given by law to the suras applied to wills in general is invoked. viving spouse, * but where the surBut for the statutory provision with refer-vivor is made a devisee therein, it shall be ence to election there would be no difficulty presumed, unless the intention is clear and with the case; and there are some chance ex- explicit to the contrary, that such devise is pressions in our cases which seem to indicate in lieu of such distributive share, homestead that there may be an estoppel or an election and exemptions." Under this present statthrough conduct not evidenced by any court ute, if the widow accepts the provisions of record. But in each and every one of these the will, it is presumed from the act of accases, which were decided under the statute ceptance that she elected to take the devise now under consideration, there was some made to her in the will in lieu of her statrecord of an election which was made the utory rights. Under the statute, as it now basis for the decision. * Suffice it to is, a widow is not bound to accept the besay that all the later decisions proceed upon quest made to her in the will, but may rethe theory that there can be no election save ject the same and take her rights under the as pointed out by statute." statute, but she cannot take both. The intention of the testator in making the devise is presumed to be in lieu of statutory rights, and when an acceptance is made under the provisions of the will she is presumed to have accepted it in lieu of her other rights, and to have waived all right, under the law, to a distributive share. It was held in Baldozier v. Hughes, 57 Iowa, 683, 11 N. W. 651, in effect, that no one has the right to rely upon any acts or conduct of the surviving husband or wife, not made of record in the manner required by law. That it was not the declarations or conduct of the survivor which estopped him, but the entry of record. Reference is made to the Huston Section 3376 of the present Code provides: Case, reported in 62 Iowa, 291, 17 N. W. "The survivor's share cannot be affected by 514, and it is said: "This decision is a strong any will of the spouse, unless consent thereone, and the decision is planted squarely up-to is given within six months after a copy on the thought that the survivor's distributive thereof has been served upon the survivor share cannot be defeated by any conduct on his part, short of some record entry of consent. This rule has been often challenged, but never departed from. If there is any apparent conflict, it is not what is actually decided upon the facts, but in expressions used in argument, which were not necessary to the decision of the case, or because the statute now under consideration was not then under consideration." The case of Mohn v. Mohn is cited, reported in 148 Iowa, 288, 126 N. W. 1127, but it appears in that case that the decision was bottomed on the fact that the widow, as executor of her husband's will, had made a report in which she said that, under the terms of the will, she was entitled to all the real estate during her life, and that she was given all the personal property of every description owned by the deceased, and this was held to constitute a sufficient election under the statute to take a life estate in lieu of her dower. Under these decisions and the statute in force at the time the rights of these parties accrued under the will, the court did not err in finding in favor of the cross-petitioners, and did not err in holding that their mother, Mary Ridle, did not elect to take under the will, and that at the time of her death she was entitled to a distributive share in the property in controversy. Under the present statute we would be forced to a different conclusion. The statutes now in force touching the matter in controversy are section 3270 of the Code of 1897, which provides as follows: "Any person of full age and sound mind may dispose by will of all his property, by the other parties interested in the estate, and notice that such survivor is required to elect, whether consent thereto will be given, which consent, when given, shall be in open court, or by writing filed therein, which shall be entered on the proper records thereof; but if, at the expiration of six months no such election has been made, it shall be conclusively presumed that such survivor consents to the provisions of the will and elects to take thereunder." From the present statutes, it appears: (1) That a devise to a wife is presumed to be made by her husband, in lieu of her stat- · utory right, unless he, in his will, clearly and explicitly indicates that it is not in lieu of her statutory rights. (2) That after she has notice of the terms of the will she may elect to take, and take, either the devise made to her in the will, or she may reject the same, and take the portion of her husband's estate given to her by statute, but she cannot take both. (3) That the right to elect vests in her immediately upon receiving notice of the will and its provisions, and until she does elect the will does not affect the rights given her by statute in her husband's estate. (4) That upon receiving notice of the will and of its provisions she may, upon her own motion, without notice to do so, elect to take, and take the devise made to her in the will or she may elect to take, and take the rights given her by statute. If she elects to take, and takes, the thing devised, she is presumed to have taken it in lieu of all the rights to a distributive share, homestead, and exemptions. ES. (5) That no time limit is fixed in the stat- | 3._COVENANTS (§ 96*) INCUMBRANCES-NATURE ute in which she is required to make her election, and there is nothing in the statute prescribing how this election shall be evidence, when she assumes to, and makes, her election on her own initiative. (6) That if she has not already made her election, and taken the thing devised to her in the will, the other parties interested in the estate, who desire that her interest in her husband's property be speedily determined and fixed, may, by serving the notice provided for in section 3376, require her to elect whether she will take the devise made to her in the will, or whether she will take her statutory rights, and to make her election, with respect thereto, a matter of record. (7) That if she has not already made her election, and does not elect within six months after receiving notice from the other parties interested, as provided for in said statute, then it is conclusively presumed that she consents to the provisions of the will and elects to take thereunder. But, as said before, the rights of these parties must be governed by the statute and law in force at the time their rights in the property accrued, and applying the law, as it then existed, to the facts as they appear in this case, we reach the conclusion that the district court did not err in its holdings, and that the decree entered was right, and the cause is therefore affirmed. FIRST UNITARIAN SOCIETY OF IOWA (Supreme Court of Iowa. June 7, 1913.) 1. APPEAL AND ERROR ( 845*)-QUESTIONS - COVENANT AGAINST cove The existence of a public sewer 5 or 6 feet under the surface is not within a nant against incumbrances, in the absence of special facts, though public sewers are usually laid in streets and alleys, notwithstanding the statutory provisions for the condemnation of land for such purpose and for the assessment of damages therefor. [Ed. Note.-For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.*] Deemer and Gaynor, JJ., dissenting. Appeal from District Court, Johnson County; R. P. Howell, Judge. This is an action for damages for breach of covenant in warranty deed. The case was tried to the court without a jury upon an agreed statement of facts. There was a judgment for the defendant, and plaintiff appeals. Affirmed. Henry Negus, of Iowa City, and H. H. Griffiths, of Des Moines, for appellant. O. A. Byington, of Iowa City, for appellee. EVANS, J. The plaintiff holds its cause of action by assignment. Its assignor was the grantee in a warranty deed executed to it by the defendant on December 14, 1907, and which conveyed to it a certain lot 4 in Iowa City. The deed contains covenants of warranty which will be hereinafter set out. It was averred that the covenants were breached by the existence of a public sewer traversing said lot to a depth of six feet beneath the surface, which sewer had been used and maintained by the public for more than 40 years and was still so used and maintained. It was averred that the plaintiff's assignor was damaged thereby to the sum of $1,500. The answer admitted the assignment of the cause of action and the existence of the warranty deed and the existence of the public sewer, and denied all other allegations, and especially denied that the existence of said sewer damaged plaintiff's assignor or was in any way detrimental to the value of the lot. In the court below, the parties submitted the case to the court without a jury upon the following agreed statement of facts: "It is agreed as follows: That the defendant was the owner of lot 4 in block 44 of Iowa City, Iowa, and that on the 14th day of December, 1907, by its auAn "incumbrance" within a conveyance thorized officers it conveyed said above-dewith a covenant against incumbrances is a right in a third person in the land conveyed scribed property by a warranty deed to the diminishing the value thereof, though con- plaintiff. The said covenants of warranty sistent with the passing of the fee by the being as follows: 'And we do hereby coveconveyance, and liens for taxes, judgments, and mortgages are incumbrances, but actual nant with the Iowa Association of Unitarian physical conditions, apparent and permanent and other independent churches that we are and irremediable, are not within a general lawfully seized of said premises, that they covenant against incumbrances and physical are free from incumbrances, that we have conditions usually incident to public improvements are not a breach of the covenant. [Ed. Note. For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.* On appeal from a judgment entered on an agreed statement of facts, the court is confined to the questions presented by the statement of facts. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3342, 3345; Dec. Dig. 8 845.*] 2. COVENANTS (§ 96*)-COVENANT AGAINST INCUMBRANCES-NATURE OF "INCUMBRANC ES. For other definitions, see Words and Phrases, vol. 4, pp. 3519-3527.] good right and lawful authority to sell and convey the same, and we do hereby covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever, and the grantors aforesaid here by relinquish all contingent right including | Those relating to physical conditions of the rights of dower, which they have in and to realty may come under a somewhat differsaid last described premises. That at the ent rule. Whenever the actual physical contime of executing said deed and of the conditions are apparent and are in their nature veyance of the said property, there extended permanent and irremediable, they are someacross said lot a certain public sewer, which times held to have been within the contemsewer entered the lot about 16 feet west of plation of the parties in fixing the price and the northeast corner thereof and extended are deemed not to be included in a general diagonally southeast, passed out of said lot covenant against incumbrances. The distincat a point about 64 feet south of said north- tion in the two classes of incumbrances is east corner. That said sewer had been in recognized by many courts. In Memmert v. existence for many years and was a public Keene, 112 Pa. 315, 4 Atl. 542, this distincsewer of such a character that the public tion is discussed as follows: "Where incumhad rights therein and the same could not brances of the former class exist, the covebe removed. That the top of said sewer is nants referred to, under all the authorities, from five feet to five feet six inches below are broken the instant they are made, and it the surface of the ground, and said sewer is of no importance that the grantee had nois about three feet wide and four feet deep tice of them when he took the title. Cathon the inside and five feet and six inches cart v. Bowman, 5 Pa. 317; Funk v. Vonwide on top. It is agreed that the court eida, 11 Serg. & R. (Pa.) 109, 14 Am. Dec. 617. shall determine from the said above facts Such incumbrances are usually of a tempowhether the defendant is liable to the plain- rary character and capable of removal; the tiff for breach of warranty. First Unitarian | very object of the covenant is to protect the Society of Iowa City. Citizens' Savings & Trust Co.'" We think appellant's discussion in the briefs goes quite beyond the facts appearing of record. [1] Our consideration and discussion of the question presented must necessarily be circumscribed by the agreed statement of facts. The incumbrance charged in this case is the public easement incident to the use and maintenance of the public sewer. [2] An easement may or may not be an incumbrance. An "incumbrance" has been defined as "a burden upon the land depreciative of its value; such as any lien, easement, or servitude which though adverse to the interest of the landowner does not conflict with the conveyance of the land in fee." 10 Am. & Eng. Encyc. of Law, 361. In Barlow v. McKinley, 24 Iowa, 69, it was defined as "right in a third person in the land in question, to the diminution of the value of the land, though consistent with the passing of the fee by deed of conveyance." The trial court found that the easement in question was not an incumbrance within the meaning of the law. This holding was concededly based upon our previous cases. Harrison v. Railway Co., 91 Iowa, 114, 58 N. W. 1081; Stuhr v. Butterfield, 151 Iowa, 736, 130 N. W. 897, 36 L. R. A. (N. S.) 321. vendee against them. Hence knowledge, actual or constructive, of their existence, is no answer to an action for a breach of such covenant. Where, however, there is a servitude imposed upon the land which is visible to the eye, and which affects, not title, but the physical condition of the property, a different rule prevails. Thus it was held in Patterson v. Arthurs, 9 Watts (Pa.) 152, that, where the owner had covenanted to convey certain lots free from all incumbrances, a public road, which occupied a portion of such lots, was not an incumbrance within the meaning of the covenant. This is not because of any rights acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance, and possibly an injury to the property, was there when the purchaser bought, and he is presumed to have had knowledge of it. In such and similar cases there is further presumption that, if the incumbrance is really an injury, such injury was in the contemplation of the parties, and that the price was regulated accordingly." To the same effect, see Desvergers v. Willis, 56 Ga. 515, 21 Am. Rep. 289; Whitbeck v. Cook, 15 Johns. (N. Y.) 483, 8 Am. Dec. 272; Clark v. Mossman, 58 Neb. 87, 78 N. W. 399; Weller v. Trust Company (Ky.) 64 S. W. 843; Kutz v. McCune, 22 Wis. 628, 99 Am. Dec. 85; Scribner v. Holmes, 16 Ind. 142; Wilson v. Cochran, 46 Pa. 229; Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432; Railway Co. v. Beeson, 36 Neb. 361, 54 N. W. 557; Railway Company v. Shepherd, 39 Neb. 525, 58 N. W. 189. The real question before us is therefore whether, under the stipulated facts, the doctrine of the cited cases warranted the judgment of the lower court in favor of the defendant. Some of the authorities classify incumbrance as falling naturally into two general classes: (1) Such as affect or relate to the To the foregoing must be added the furtitle or to the record thereof; (2) Such as af- ther proposition that, where public improvefect or relate to the actual physical conditions ments are adopted for the betterment of real upon the realty. The first class is illustrated estate within a district, such new physical by lien of taxes, judgments, or mortgages. As conditions as are necessary and usually inci to such it is uniformly held that they are dent to such improvement are deemed ordiincluded in the covenant against incumbranc-narily within the contemplation of purchaser es regardless of knowledge of the grantee. and seller and are not deemed a breach of covenant against incumbrances. Such doctrine has been expressly applied by this court to highways and drainage ditches. Harrison v. Railway Co., supra. Stuhr v. Butterfield, supra. All public improvement involves a certain community of interest in all real estate within its district. Such improvement is not available to one piece of property alone, and yet it is essential to its appropriate use and enjoyment. From its very nature it cannot benefit one without benefiting many; and, as an incident to the mutual benefit, it lays also a mutual servitude upon all. The highways carved out of a farm bring such farm into connection with the entire highway system of the state. The drainage ditch cut through a farm confers upon such farm the benefit of a complete drainage system furnishing to it an outlet below for its own surface waters and subjecting it to incident servitude from above. [3] Is a public sewer such an improvement and betterment to real estate that it comes fairly within the operation of the doctrine announced? City property has need of sewer facilities. Abutting property is taxed therefor as for benefits received. These facilities can be acquired only by inclusion in a sewer system. To become a part of such system is to receive its benefits and to be subject likewise to some degree of servitude. Can such incident servitude be deemed a breach of covenant against incumbrances? cumbrances, and very few of the number, It is argued by appellant that the doctrine of our cases above cited does not apply because the sewer was underground and not apparent to observation. This distinction might meet the argument of some of the cases. The doc trine of our own cases, however, has not been made to rest upon the fact that the incumbrance was apparent or known. This court had previously held, in Barlow v. McKinley, 24 Iowa, 69, that a railroad right of way operated as a breach of covenant though its existence was apparent and known. The Harrison Case was put upon the broad and practical ground that public improvement and betterment which so benefits abutting property as to render it liable to assessment for the improvement ought not to be deemed ordinarily as depreciating its value. It recognized the fact that such betterment imposed, nevertheless, upon the benefited property a certain mutual servitude, and to that extent created an easement in a legal sense against reasons. all property within the benefited district. of such nature that they become incumbrancThe holding was that such easement, how- es, in the sense that they are a burden or ever, was not ordinarily an incumbrance, detriment to the servient estate; because because in its entirety it was beneficial and there is nothing in their nature from which not detrimental to the value. The following the law will presume that they were created excerpts are from the opinion in that case: in the interest, or for the betterment, of the "It will be observed that we are to meet a estate. It is in this view that it has somedelicate question, and also one of great and times been said that all easements are incumvery general importance to all parts of the brances, and this, as we think, has led, in state, from the fact that conveyances of land some cases, to the statement of a broader |