demand. No easement should be regarded as | And if he excavate a basement he must take an incumbrance to an estate, which is essen- account of, and make provision for, his tile tial to its enjoyment, and by which its value is presumably enhanced. Nothing in the record indicates that the highways in question do not bear the relation to the land conveyed to the plaintiff that public highways generally do to agricultural lands; and we have no hesitancy in saying that public highways are not depreciative, but, on the contrary, they are highly appreciative, of the value of the lands on which they constitute an easement, and are a means without which such lands are not available for use, nor sought after in the markets. * * * By this system of highways the landed estates become mutually servient, and in such a way that the easements are mutually advantageous and the respective land values enhanced thereby. Such an easement is not an incumbrance. * We may say that we make the distinction on the line of what the law will presume to be an incumbrance, in the sense that it is a damage to the estate made servient to the easement. Other easements to which our attention has been called, or which we have been able to consider, are not such that the law will presume them as attaching to an estate, at the instance of the owner, and for its advantage. The consequences of a rule that would hold to a technical liability at law in such cases, and remand parties to proceedings in equity to reform the thousands of conveyances that would fall within its operation, can be better imagined than expressed; and we feel that the announcement of a rule of law decisive of the rights of parties, without such litigation, is correct in principle and in accord with public and private interests." In the Stuhr Case, supra, the same doctrine of mutuality of benefit and burden was applied to a drainage ditch. The ditch in question had not been cut nor the land appropriated in a physical sense at the time of the execution of the warranty sued on in that case. The doctrine of the Harrison Case is there fully discussed and reaffirmed, and we need not repeat the discussion. It will be noted, also, that the discussion in the Stuhr Case is made to apply not only to open ditches, but also to covered tile drains. Nothing less would be consistent. In a practical sense, it is hardly conceivable that a purchaser of real estate underlaid with covered tile drains could deem himself damaged thereby as for breach of covenant against incumbrances. Such tile drains are usually laid at great expense and to the great improvement of the property. Necessarily such benefit has its incident servitude and perhaps inconvenience. The landowner must necessarily adapt his use of the land to the use and location of the tile drains. He cannot sink a well or dig a post hole over such drain. If he put a structure upon such ground, he must protect his tile against undue weight. drain. This is a burden incident to benefit. Is this argument fairly applicable to a public sewer? It is urged that a public sewer is not a benefit to the particular land through which it passes. But it is a matter of common knowledge that proximity to a sewer is one of the first requisites of city property and one of the first conditions to city value. It is true, as argued by appellant, that public sewers are usually laid in streets and alleys. It is also true that it is sometimes a practical necessity to lay them along the course of ravines because of the topography of the ground, and because their expense might otherwise be prohibitive. The very selection of the cheaper course is in itself in the interest of the property owner who has need of sewer connection and must needs pay for the improvement. It is further argued that the sewer should be deemed an incumbrance because of the statutory provisions for the condemnation of land for such purposes and for the assessment of damages therefor. But similar statutory provisions are made for condemnation of land for public highways and for public ditches and tile drains. In all such cases the constitutional prohibition against the consideration of benefits becomes appli cable, as well as the prohibition against the taking of private property without compensation. Turning to the stipulation of facts before us, we discover nothing therein to take the case out of the operation of the doctrine of the cases here considered. No facts of a special nature are made to appear. Nor does it appear that the plaintiff suffered any damage in fact, unless damage is to be presumed from the mere existence of the sewer. question of deceit or false representation or mutual mistake is involved. We have before us only the cold question whether the mere existence of a sewer five or six feet under ground constitutes a breach of covenant against incumbrance. No We think the holding of the trial court is in accordance with our previous cases here considered, and its judgment is therefore affirmed. DEEMER, J. (dissenting). In view of the importance of the legal principle involved, it is unfortunate that the case has been submitted in the manner it has, for I fear that this has unconsciously lead to an announcement of legal doctrines which might not otherwise have been pronounced-doctrines which I think are a wide departure from previous cases, and from well-settled - rules and principles of law formerly imbedded not only in the jurisprudence of this country but of England as well. I am led to believe that the case was submitted to the district court simply to secure an opinion as to whether or not a public or private sewer, running across private property, is or may be Again it does not appear how the right to pass over the property was obtained, that is, whether through purchase or by condemnation; but, however acquired, it is conceded that the same is public in character, that the public have rights therein, and that the same could not be removed. an incumbrance, which will constitute a improvement and taxed up against property breach of warranty against incumbrances, or abutting on the streets in which the sewer is for the quiet enjoyment of the property con- laid. Code, § 795. veyed. The covenant in plaintiff's deed is The fair inference from the description of as broad as it could be made, and the deed this sewer is that it is a storm sewer, alcontains no reservations or exceptions. It though, to my mind, this makes no difference will be observed that, after giving the de- with the legal principle involved. scription of the sewer which crosses the lot, it is expressly provided in the stipulation of facts that the question to be decided was whether or not defendant is liable to the plaintiff for breach of covenant or warranty. Mark, the court was not to determine the amount of the damages, but whether or not there was any liability to the plaintiff for breach of warranty. If we find that the district court erroneously decided this question, then, in my opinion, we should reverse the case and remand it for a determination as to the amount of damages and not assume as a matter of law, as the majority do, that no damages could arise to plaintiff by reason of the presence of the sewer which would be sufficient to sustain an action for breach of covenant. The rule that we do not reverse for failure to award nominal damages is not applicable to the case; for the parties did not submit the question as to the amount of damages at all, and nothing is said in the stipulation regarding that matter. Plaintiff did not attempt to state the amount of damages claimed to have been suffered by it, and defendant did not claim that the sewer was a benefit to the property, save as any sewer may be so considered. The nature of the sewer is not shown, save that it is a public one, of large size, set five feet to five feet and six inches in the ground, five feet and six inches wide on top, and three feet wide, and four feet deep, on the inside. It is evidently not the ordinary round sewer; and, whether a sanitary or storm sewer, or one to carry off the water from the streets and buildings, does not appear, save by the merest inference. * * It was not built in the street, as most sewers are, and was evidently an outlet, over the land in question, for some kind of a system of drainage or sewerage, procured either by purchase or condemnation under section 795 of the Code or some similar section of previous Codes. No one would contend that private property could be entered and taken, even for public use, without compensation to the owner. Conceding, then, that the city either owns the property upon which the sewer lies, or that it has a permanent easement over the lot for the sewer, it follows that the city authorities had the right, at any time, to go upon the lot to make repairs to the sewer to clean it out, and to see that it was properly maintained. This right followed as of law, even though nothing but an easement was created over the lot. Such is the universal holding of the authorities: Prescott V. White, 21 Pick. (Mass.) 341, 32 Am. Dec. 266; Prescott v. Williams, 5 Metc. (Mass.) 429, 39 Am. Dec. 688; Doane v. Badger, 12 Mass. 65; Morrison v. Marquardt, 24 Iowa, 68, 92 Am. Dec. 444. That the right of the third person to pass upon or over land, to dig thereon, or to, in any manner, remove the soil, constitutes a breach of a covenant of warranty in a deed for quiet enjoyment, is, to my mind, too clear for argument, and it is so held in many cases. See McGowen v. Myers, 60 Iowa, 256, 14 N. W. 788; Mitchell v. Warner, 5 Conn. 497; Blake v. Everett, 1 Allen (Mass.) 248; Wetherbee v. Bennett, 2 Allen (Mass.) 428; Swift v. Crocker, 21 Pick. (Mass.) 241; Johnson v. Knapp, 146 Mass. 70, 15 N. E. 134; Cotting v. Commonwealth, 205 Mass. 523, 91 N. E. 900; Patterson v. Freihofer, 215 Pa. 47, 64 Atl. 326. The majority give a definition of an incumbrance with which I do not disagree; but, after giving the definition they proceed to hold, as I understand it, that there is an easement, which ordinarily would be an incumbrance upon and over plaintiff's property; but that this easement is, as a matter of law, a benefit rather than an injury, and that, no matter what the testimony may show, as to actual damages, the law conclusively assumes that there were no damages to the property by reason of the presence of the sewer. Ordinarily sewers are laid in the city streets, and, as no additional servitude is created thereby, adjoining or abutting prop- In this connection, I cannot do better than erty owners may not complain of them. In-quote from a leading case, upon this subject, deed, in such cases they are thought to be a as applied to easements of the character benefit to the property, and assessments may mentioned in Wetherbee v. Bennett, 2 Allen be made to meet the cost thereof. But, in (Mass.) 429, the Supreme Court of Massafinding an outlet over private property, no chusetts said: "These exceptions cannot be such rule exists, no matter what the nature sustained. The action is upon the breach of of the sewer. Indeed, the cost of making a covenant against incumbrances in a conveythis outlet cannot be taxed against the prop-ance of land. The incumbrance was a right It is hornbook law that an owner of real estate owns from the highest heavens to the center of the earth and our fee-simple titles are allodial in character. That is to say, they are free and absolute and held of no superior. Suppose, now, that the owner of this lot wished to bore for coal or oil upon his lot, to dig a well over this sewer, or to erect a building or a church, and that he wished to excavate below the sewer for his foundation walls, or to make a basement; would any one contend that his absolute right to do so would not be interfered with by the presence of this sewer? As the prop time of the conveyance and for some time | v. Ames, 164 Mass. 467, 41 N. E. 671; Mackey after. The defendant contended that the v. Harmon, 34 Minn. 168, 24 N. W. 702; Kelevidence showed that the plaintiff had never logg v. Malin, 62 Mo. 429. been disturbed in the enjoyment of his estate by any user of the way, and that the right of way had been extinguished without expense, and asked that the jury should be instructed to return a verdict for nominal damages only; but the judge declined to give these instructions. It does not follow from these facts that no actual damages had been sustained. While the right of way lasted, the plaintiff was precluded from using the part of the land covered by the way as fully as he otherwise might have done. He could not set a tree, or a post, or a building upon it; or inclose or cultivate it; or sell or lease it to any person to whom such an incum-erty was purchased by a church, it is evibrance would be objectionable. It was an apparently permanent subtraction from the substance of the estate." * ** In Butler v. Gale, 27 Vt. 739, Chief Justice Redfield said: In this country, where our tenures are strictly allodial, we are very much accustomed to consider that, if another really possesses any rights in our land, it is so far forth an incumbrance upon our title. Whether it be small or large in amount, whether it be a mortgage or a right to flow a portion or all of the land, for a shorter or longer period during the year, or to draw water from a well or spring, or to water cattle at a brook, or to pass across the land on foot, or with teams, or to draw wood in winter only across the land, or to build and maintain a railway perpetually, or a highway, is certainly of no importance, in determining the mere technical question of incumbrance or no incumbrance. And it can make no difference whether his right is notorious or not. If the question of an incumbrance were to be determined by its notoriety, or, what is the same thing, by its being known to the purchaser, it must, to preserve consistency, be extended to all incumbrances. And, in that view, the grantee could not recover upon this covenant for paying a mortgage which he knew existed at the time of his purchase. But the contrary is perfectly well established. And in regard to these rights of way, if they existed only in a prior grant, and were not known to the grantee at the time of purchase, no one could claim that they did not constitute a breach of the covenant against incumbrances. dent that this sewer may be a decided disadvantage, rather than a benefit to the owner of the land. Not only has another a right to enter upon his premises for repairing, cleaning, or maintaining the sewer, but plaintiff must not, in any way, interfere with or destroy that sewer on penalty of paying damages therefor, if not of being restrained by injunction from in any way interfering therewith. These illustrations are not forced or strained, but, to my mind, perfectly legitimate in arriving at a proper solution of the case. Although the rule for this state is that knowledge on the part of the grantee of an incumbrance against the property does not deprive him of the right to recover for breach of covenant, the majority quote the Pennsylvania rule as if it had some applicability to the case. The so-called Pennsylvania rule has not only been distinctly repudiated by this court in many cases, but it has been departed from by the Pennsylvania court itself in recent cases. In Patterson v. Freihofer, 215 Pa. 47, 64 Atl. 326, decided in 1906, that court said: "When one protects himself against an incumbrance by a positive covenant that the property is to be conveyed to him clear of all such incumbrance, he is entitled to the benefit of his contract, whether he had knowledge of the existence of the incumbrance or not." This was said with reference to the use of cesspools and privy wells. Again, in Evans v. Taylor, 177 Pa. 286, 35 Atl. 635, 69 L. R. A. 790, the same court announced the same rule. There is no room for dispute as to what our own cases Indeed, according to all the cases at my hold. I here cite them without quotation: command, the most that can be said is that, Billingham v. Bryan, 10 Iowa, 317; Van in cases of incumbrances by easements over Wagner v. Van Nostrand, 19 Iowa, 422; Barland, the question is not one of law for the low v. McKinley, 24 Iowa, 69; Gerald v. Elcourt, but of fact for a jury. They may ley, 45 Iowa, 322; McGowen v. Myers, 60 be of considerable damage, or very inconsid- Iowa, 256, 14 N. W. 788; Specht v. Spangerable in character, and the amount thereof enberg, 70 Iowa, 488, 30 N. W. 875; Flynn is for a jury. See Opinion by Parsons, Chief v. Coal Co., 72 Iowa, 738, 32 N. W. 471; YanJustice, in Kellogg v. Ingersoll, 2 Mass. 97. cey v. Tatlock, 93 Iowa, 386, 61 N. W. 997; Also, Hubbard v. Norton, 10 Conn. 422; Gil- Pierce v. Houghton, 122 Iowa, 477, 98 N. W. bert v. Bulkley, 5 Conn. 262, 13 Am. Dec. 306; Doyle v. Emerson, 145 Iowa, 358, 124 57; Morgan v. Smith, 11 IlL 194; Richmond N. W. 176; Harwood v. Lee, 85 Iowa, 622, * * 52 N. W. 521; Kostendader v. Pierce, 37 | vested in the public authorities. In the inIowa, 645. There has been no departure from this rule, so many times maintained. I cannot myself see any distinction between an incumbrance which is of record, of which all persons must take notice, and one which is visible to the naked eye, but which the parties may or may not have seen. Will the next step be to say that a covenant of warranty does not cover an incumbrance of record? Much confusion will be introduced by a rule which makes the right.of action depend upon knowledge. One holding title against which there is an incumbrance may resort to any warranty in his claim of title made after the incumbrance arose. Now, suppose some remote grantor was chosen as a defendant and he could show that, while plaintiff did not know of the incumbrance, his immediate grantee, or some more remote grantee, did; would this be a defense to suit? I have always understood that the reason why one is so tenacious in insisting upon a warranty deed is for the reason there may be, or he thinks there is, some incumbrance against the land, and often he takes it for the very reason that there is an apparent incumbrance. Is he to be defeated in his action of covenant because he knows of this incumbrance? I think not. stant case, it is conceded that the sewer in question is a public sewer, and it must have been acquired either by grant or condemnation. In Cotting v. Commonwealth, 205 Mass. 523, 91 N. E. 900, the Supreme Court of Massachusetts held that a sewer constitutes an incumbrance on the land; and in Johnson v. Knapp, 146 Mass. 70, 15 N. E. 134, the same court held that a pipe to convey water across land is an incumbrance. In Smith v. Sprague, 40 Vt. 43, the court of that state held that a private drain and the accompanying right to enter and clean the same constituted a breach of covenant against incumbrances. The principal, for which I contend, was laid down in an early case in Massachusetts. Kellogg v. Ingersoll, 2 Mass. 97, from which I quote the following words of Parsons, C. J.: "If the public town road, described by the plaintiff in his assignment, is no legal incumbrance of the land sold, the breach is not well assigned. But the court is well satisfied that the road, as there described, is an incumbrance of the land sold. It is legal obstruction to the purchaser to exercise that dominion over the land to which the lawful owner is entitled. An incumbrance of this nature may be a great damage to the purchaser, or the damage may be very inconsiderable, or merely nominal. The amount of damages is a proper subject of consideration for the jury who may assess them, but it cannot affect the question whether a public town road is, in legal contemplation, an incumbrance of the land over which it is laid." "* Moreover, this question of knowledge of a physical incumbrance defeating an action for breach of covenant has been distinctly negatived in many of our cases where the easement was known to both grantor and grantee. See Flynn v. Coal Co., 72 Iowa, 738, 32 N. W. 471; Barlow v. McKinley, 24 Iowa, 69; McGowen v. Myers, 60 Iowa, 259, 14 N. W. 788; Van Wagner v. Van Nostrand, 19 Iowa, 422. In Huyck v. Andrews, 113 N. Y. 81, 20 N. In each of these cases there was an open and E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432, apparent easement on the land, and we ex- the Supreme Court of New York said: pressly disapproved of the Pennsylvania and Wisconsin rule the rule adopted by the minority of the courts-and expressly and definitely held that knowledge of such easements would not defeat the action. Courts and text-writers generally disapprove of the rule announced by the majority upon this proposition. See Jones on Real Property, §§ 861 et seq., 873, 882, 886, 910; Rawle on Cove nants for Title, §§ 79, 88, 191; Tiffany on Real Property, § 397; Tiedeman on Real Property, 853; 2 Warvelle on Vendor, pp. 992-998; 8 Am. & Eng. Ency. pp. 123, 124, 125; 11 Cyc. p. 1066. If our previous cases are to be overruled, we should do so squarely, and not leave the matter to mere inference. Coming now to the question of sewers, drains, etc., the cases, without exception, so far as I have been able to discover, hold that they are incumbrances, and the English courts have recently established the same rule. In Pemsel v. Tucker (1907) 2 Ch. 191, 97 L. T. N. S. 71 P. J. 547, it was held that a public sewer, running under property sold, 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 the burden should not be cast upon the grantee to show that he was not aware of them. The security of titles demands that a grant made without fraud or mutual mistake shall bind the grantor according to its written terms. It should not be incumbent upon the grantee to take special and particular covenants against visible and apparent defects in the title, or incumbrances upon the land, but it should be incumbent upon the grantor, if he does not intend to covenant against such defects and incumbrances, to except them from the operation of his covenants. The distinction which is attempted to be made between incumbrances which affect the title and those which affect the physical condition of the factory. Easements not only affect the physical condition of the land, but they affect and impair the title. The owners of them have an interest in and dominion over the servient tenement which frequently may largely impair its usefulness and value." ages may be only nominal, such right or interest is an incumbrance. * * * Knowledge of its existence cannot alter its character as an incumbrance. The land granted is or may be thereby diminished so that the grantee does not acquire that use and posIn Prescott v. Trueman, 4 Mass. 629, 3 session which the deed purported to grant. Am. Dec. 246, it is said: "On these principles Mr. Rawle, conceding that, if there be a we are of opinion that every right to, or in- real incumbrance, the purchaser's knowledge terest in, the land granted, to the diminu- of its existence will furnish no defense to tion of the value of the land, but consistent an action on this covenant, ingeniously sugwith the passing of the fee of it by the con- gests that such knowledge may have a maveyance, must be deemed in law an incum-terial bearing in determining what was the brance. We say consistent with the passing subject-matter of the contract. Rawle, Cov. of the fee of the land by the conveyance, because, if nothing passed by the deed, the grantee cannot hold the estate under the grantor. Thus a right to an easement of any kind in the land is an incumbrance. So is a mortgage. So also is a claim of dower, which may partially defeat the plaintiff's title, by taking a freehold in one-third out of it. And for the same reason, a para-brance not only does not destroy its inherent mount right, which may wholly defeat the plaintiff's title, is an incumbrance. It is a weight on his land, which must lessen the value of it." In De Mars v. Koehler, 62 N. J. Law, 203, 41 Atl. 720, 72 Am. St. Rep. 642, the Supreme Court of New Jersey said: "Prof. Greenleaf declares that a breach of the covenant against incumbrances is shown when the proofs establish that a 'third person has a right to or an interest in the land conveyed, to the diminution of the value of the land, though consistent with the passing of the fee by the deed of conveyance.' 2 Greenl. Ev. § 242. This definition of 'incumbrance' is substantially that given by Chief Justice Parsons in Prescott v. Trueman, 4 Mass. 627 [3 Am. Dec. 246]. It was approved in Mitchell v. Warner, 5 Conn. 497, and adopted by Chief Justice Green in Carter v. Denman, 23 N. J. Law, 260-272. The diminution of value which is thus made a test of an incumbrance is not, however, to be understood as limited to cases where the thing granted is, by reason of some outstanding right or interest in a third person, of less pecuniary worth, but also extends to and embraces cases where the grantee, by reason of such an outstanding right or interest, does not acquire * * the thing granted which the grant apparently gives, but is or may be deprived thereby of the whole or some part of its use or possession. The diminution of pecuniary value is important in the admeasurement of damages for the breach of this covenant, but does not form the test whether an outstanding right or interest is an incumbrance or not. If the thing granted be, or be liable to be, diminished by the existence of an outstanding right or interest, so that the grantee does not acquire the complete dominion which the grant purports to convey, then, although the diminution of pecuniary worth may not appear, and the dam 95, 96. With equal ingenuity the opinion below denies the right to recover upon this covenant because such an incumbrance, known to the grantee, is not within its terms, and consequently no breach of the covenant. With great respect, I deem the reasoning specious and the conclusion insupportable; for knowledge of the existence of an incum character as an incumbrance, but may and |