*

Y.] 416; Smith v. Lloyd, supra; Edwards v. | proof, that it was a benefit to the property, Clark, 83 Mich. 246, 47 N. W. 112 [10 L. R. upon the theory that it drained it out in A. 659]; Hubbard v. Norton, 10 Conn. 431; some manner, without any showing that it Prichard v. Atkinson, 3 N. H. 335; Van Wag- needed any kind of drainage or that it was ner v. Van Nostrand, 19 Iowa, 422; Barlow a sanitary sewer, with which plaintiff might v. McKinley, 24 Iowa, 69; Long v. Moler, 5 make connection, should it see fit to do so. Ohio St. 271." There is no proof that it is a sanitary sewer; and, if it was, there is no showing that plaintiff may not reach the sewer in the street in front of its lot, where such sewers are usually laid, with less trouble and expense than on its lot. The sewer could not have been laid across plaintiff's lot without compensation, and, if a private sewer, the land could not have been condemned for such an improvement. The sewer may manifestly interfere with building operations, for, if a heavy wall is to be constructed over it, the wall must have support, and this will cause extra expense; and, in the end, it may not be in such position that it can be used for drainage or sewerage purposes. When sewers are laid in the street, as they usually are, they do not interfere with building operations, and in no way interfere with the unrestricted dominion which the owner has over his property. That a sewer laid across a private lot does interfere with such dominion is too clear for argument, and we are not justified, I think, in assuming that this restriction, instead of being a damage, is a real benefit to the lot.

In De Rochemont v. B. & M. R. R. Co., 64 N. H. 500, 15 Atl. 131, the Supreme Court of New Hampshire said: A way, whether public or private, is an incumbrance upon land. Prichard v. Atkinson, 3 N. H. 335; Haynes v. Stevens, 11 N. H. 28. It is a legal obstruction to the exercise of that dominion over the land to which the lawful owner is entitled. Kellogg v. Ingersoll, 2 Mass. 101; Blake v. Everett, 1 Allen [Mass.] 248; Wetherbee v. Bennett, 2 Allen [Mass.] 428; Butler v. Gale, 27 Vt. 742; Hubbard v. Norton, 10 Conn. 422. The plaintiffs, having conveyed to the railroad with covenants of warranty against incumbrances, are estopped to deny the truth of the covenants that the premises are free from any incumbrances except what are reserved in the deed, and consequently they are estopped to claim damages for the obstruction of a way which they have covenanted does not exist. Wark v. Willard, 13 N. H. 389, 395; Gotham v. Gotham, 55 N. H. 440; Fletcher v. Chamberlin, 61 N. H. 438. 447, 478."

In appeal of Edmunds, Ex'r, 8 Atl. 31, the Supreme Court of Pennsylvania held a party wall an incumbrance, and the same rule obtains in many other states.

In Johnson v. Knapp, 146 Mass. 70, 15 N. E. 134, water pipes, running across a lot of land, were held to be incumbrances.

It should not be forgotten, in this connection, that the right to locate underground drains through the land of another, except when the public health requires it, is denied in previous cases decided by this court. Fleming v. Hull, 73 Iowa, 598, 35 N. W. 673; Patterson v. Baumer, 43 Iowa, 477. And this is true, notwithstanding such drain may be of benefit to the land in giving it drainage which it did not have before. Save as the law authorizes the establishment of drainage districts, one man has no right to force his neighbor to put in a drain or tile for the mutual advantage of both, or to go upon his neighbor's land, without his consent, to put in a tile line to connect with his own, in order that both pieces may be benefited.

Stuhr v. Butterfield, 151 Iowa, 736, 130 N. W. 897, 36 L. R. A. (N. S.) 321, is not an authority against the propositions for which I contend. The drainage ditch which, in that case, was held not to be an incumbrance, was over land which was within a drainage district, and by reason of that fact it had already been adjudicated that the lands were benefited by the improvement. In the case at bar, there is no showing that the sewer in question was any part of any system of drainage, was ever included in On the question of benefits, I cannot reany sewerage district, that it was a sanitary frain from referring to two of our cases, sewer, or that any part of the cost thereof which seem to me to be analogous. In Mchad been taxed against abutting property. Gowen v. Myers, 60 Iowa, 256, 14 N. W. 788, There never was any finding that the lot, the owner of a lot conveyed a part of it, rewhich it crossed, was benefited thereby, and serving a stairway, which was to be built nothing in this record to show that plaintiff and used in common between the building could, or would be permitted to, use it for erected on his part of the lot and the part any purpose whatever. It may have been a conveyed and for the mutual benefit of the storm sewer, which plaintiff would not have owners of both lots. Afterwards defendant been permitted to use for sanitary purposes, in the case became the owner of the adjoinor it may have been a sanitary sewer, but, ing building and conveyed it, by deed of genif the latter, it is not shown to be a part of eral warranty, to the plaintiff. Plaintiff any sewer system constructed by the city. brought action for breach of covenant, and Prima facie, such an easement, over plain- it was held that the right to use the stairtiff's lot, is an incumbrance, and this prima way in common was an easement and an infacie showing is not overcome by any testi- cumbrance and that defendant was liable on

nounced in Myers v. Munson, 65 Iowa, 423, | though adverse to the interest of the land21 N. W. 759. These cases are authority for owner, does not conflict with his conveyance several propositions in the case. The first of the land in fee.' 10 Am. & Eng. Encyclois that parol evidence is not admissible to pedia of Law, 361; 2 Greenl. Ev. § 242; show that the parties did not regard the Chapman v. Kimball, 7 Neb. 399; Carter v. easement as an incumbrance; second, that Denman, 23 N. J. Law, 260. In Prescott v. knowledge of the physical easement on the Trueman, 4 Mass. 627 [3 Am. Dec. 246], the part of the grantee was no defense; and, foregoing definition is given in substance, and third, that even though the easement was it is there said: 'It is a weight on land, for the joint benefit of grantor and grantee, which must lessen the value of it.' It will still there was a breach of covenant for perhaps be well for us to treat these definiwhich damages might be recovered. All that tions as not casting the burden on a grantee could possibly be claimed in the instant case to show affirmatively, in addition to the is that the easement might be for the joint easement, that it is an incumbrance, in the benefit of the original parties or their gran- sense of its being depreciative of the value tees-that is, that it was for the benefit of of the land, and, instead, to give him the the city, as well as to the lot owner-but, | advantage of what the law will assume from under the rule heretofore announced, and the existence of an easement." never since departed from, such benefit will not defeat an action for breach of covenant of warranty.

5. FIXTURES (§ 27*)-AGREEMENTS.

is any defense to an action for breach of | come a part thereof on acceptance, provided the removal may be made without injury. covenant; that a large public sewer, no [Ed. Note.-For other cases, see Fixtures, matter whether storm or sanitary, running Cent. Dig. § 62; Dec. Dig. § 31.*] across a private lot, is presumptively beneficial, and from the thought that without any The owner of land and the seller of perproof it will be presumed that such a sewer, sonal property may ordinarily make any although not shown to be a part of any sys- agreement they may choose regarding persontem or necessary in any way to the enjoy-alty to be annexed to the land, although as to a third person, such as a purchaser or a mortment of the property through which it runs, gagee, it may become a fixture. is a benefit thereto rather than injury.

On the whole, I think the trial court was in error in dismissing the case, and I would reverse, with instructions to take testimony on the question of damages.

GAYNOR, J., joins in dissent.

SNOUFFER & FORD v. CITY OF
TIPTON et al.†

(Supreme Court of Iowa. June 7, 1913.)

1. INJUNCTION (§ 137*)-ISSUANCE-SUBJECT OF PROTECTION.

While courts have large powers in the matter of granting temporary injunctions against the ordinary processes of the law, such injunctions should not be granted where it will transfer the possession of property from one to another or otherwise interfere with the status quo, and a temporary injunction, restraining a city from interfering by criminal process or otherwise with contractors who were removing pavement constructed by them and which had not been paid for, should not be granted; it appearing that the injunction would permit a change in the status of the parties.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. 307-309; Dec. Dig. § 137.*] 2. INJUNCTION _(§ 105*)—SUBJECT OF PRO

TECTION AND RELIEF.

Courts of equity will rarely restrain criminal or quasi criminal proceedings by injunction, although exceptions are made in cases where property would be placed in jeopardy or taken without due process of law.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dec. Dig. § 105.*]

3. JUDGMENT ($ 736*)-CONCLUSIVENESSMATTERS CONCLUDED JUDGMENTS AGAINST A PAVING CONTRACTOR.

Judgments adverse to the contractors, plaintiffs in actions against a municipality and property owners wherein they sought to recover the contract price for a pavement and upon the quantum meruit, on the theory first that the contract had been complied with and later that the defendants had used the pavement and were liable for the market value thereof, are not conclusive as to the right of the contractors to remove the pavement, for in those actions the question of the title to the paving materials could not have been litigated.

[Ed. Note. For other cases, see Fixtures, Cent. Dig. 88 5, 22, 25, 44, 45, 54; Dec. Dig. § 27.*]

6. MUNICIPAL CORPORATIONS (§ 363*)-PUB

LIC IMPROVEMENTS-REJECTION.

Where a municipality and the abutting property owners did not accept a pavement as being in compliance with the contract and refused to pay because it was not in compliance, neither was obliged to reject the improvement or offer to return it.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 896; Dec. Dig. § 363.*]

7. MUNICIPAL CORPORATIONS (§ 363*)-PUBLIC IMPROVEMENTS-LIABILITY.

Neither a municipality nor the abutting property owners can be held liable an an implied contract or for a quantum meruit because of the use of a pavement which did not comply with the contract.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 896; Dec. Dig. § 363.*]

8. MUNICIPAL CORPORATIONS (§ 663*)-PAVING MATERIAL IN STREET-CONVERSION BY ABUTTING OWNER.

Owners whose property abutted upon a pavement not constructed in accordance with the terms of the contract are not liable for a conversion of the pavement for which they refused to pay because of a sale of their realty without exempting the improvement from the covenants of warranty.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1438-1440; Dec. Dig. § 663.*]

9. MUNICIPAL CORPORATIONS (§ 374*)—PavING STREET-COMPLIANCE WITH CONTRACTREMOVAL OF PAVEMENT MATERIAL.

Where a pavement was not laid in accordance with the contract, and the contractor after being defeated in an action for the contract price offered to remedy any defect, but the municipality refused to point them out, and the contractors were defeated in an ac

tion on the quantum meruit, they may remove the pavement, if it can be done without injury to the street, for a municipality is not entitled to hold property and refuse to pay therefor, but must do justice to all persons.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$ 905, 910; Dec. Dig. § 374.*]

10. LIMITATION OF ACTIONS (§ 105*)-TOLLING OF STATUTE PENDENCY OF LITIGA

TION.

Where contractors who laid a pavement were refused payment on the ground that it was not in compliance with the contract and were defeated in actions for the contract price and on the quantum meruit, the pendency of those actions tolled the statute of limitations as to their right to remove the pave

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1264, 1265; Dec. Dig. § 736.*] 4. FIXTURES (§ 31*)-BETWEEN SELLER AND BUYER OF CHATTELS-REMOVAL. In general, one who furnishes goods or materials to be paid for when delivered and accepted by the buyer may, if the buyer refuses to accept and pay for the goods, rescind [Ed. Note.-For other cases, see Limitation the contract and recover them back, even of Actions, Cent. Dig. §§ 514, 515; Dec. Dig. though they be annexed to land so as to be- | § 105.*]

ment.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Nor were the contractors guilty of laches where their right to recover on a quantum meruit was not adjudicated until January, 1911, and they began to assert their right to remove in May of that year.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. § 374.*]

12. PLEADING (8 214*)-DEMURRER-EFFECT.
A demurrer admits all facts well pleaded.
[Ed. Note. For other cases, see Pleading,
Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]
13. MUNICIPAL CORPORATIONS (§ 374*)
PUBLIC IMPROVEMENTS PAVEMENTS
RIGHT OF REMOVAL.

11. MUNICIPAL CORPORATIONS (§ 374*)-RE- | contract, and that abutting property should MOVAL OF PAVEMENT BY CONTRACTORS- not be assessed with the cost thereof. See LACHES. Wingert v. City of Tipton, 134 Iowa, 97, 108 It should be reN. W. 1035, 111 N. W. 432. marked parenthetically that plaintiff reported the work as completed some time in October of the year 1903. Failing to secure its assessment certificates, plaintiff brought a suit in which they sought to have a lien established against property abutting upon the streets which had been paved, to the amount of the value of such improvement, and in this they failed. See Snouffer & Ford v. Grove et al., 139 Iowa, 466, 116 N. W. 1056. They then commenced an action on In the absence of a showing that a city the quantum meruit against the city and acted thereunder, a stipulation in a paving con- others, and, as part of the relief prayed, asktract that if the contractor should abandoned that a lien be established against the imthe work, or if the city engineer should certify that it was being unnecessarily delayed, the security might be forfeited and the materials delivered at and built into the work should become the property of the city, will not give the city the right to prevent removal, where payment was refused solely on the ground that the work was not in accordance with the contract specifications.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$ 905, 910; Dec. Dig. § 374.*1

Weaver, C. J., dissenting.

provement for the value thereof, and this action also failed. See Snouffer & Ford v. City of Tipton, 150 Iowa, 73, 129 N. W. 345, Ann. Cas. 1912D, 414. In each and all of these cases plaintiffs asserted that they had performed the work according to contract. In one of them, plaintiffs averred that they had offered to reconstruct the pavement to make it comply with the terms of the contract, but in that it was held that the offer came too late. The result has been that the

Appeal from District Court, Cedar County; plaintiffs have received nothing for the imF. O. Ellison, Judge.

provement constructed by them, and this improvement has remained in the city streets since it was originally constructed; neither the plaintiff nor the city doing anything toward remedying the defects, which, this

Suit in equity, to enjoin the defendants, the City of Tipton, the County of Cedar, and the officers of each, including the County Attorney, City Solicitor, the County Sheriff, and certain private citizens, from prosecut-court held, existed therein. ing, either civilly or criminally, or from The facts with reference to this prior litiinterfering in any way with plaintiff, its gation, the pleadings, decrees, and records agents or employés, in removing a certain of the testimony taken therein are set out pavement and gutter and paving and gutter- in the petition filed in this case, and, in ading material, laid in the streets of the de- dition thereto, plaintiff, among other things, fendant city by the plaintiffs herein. A alleged: temporary writ of injunction issued as prayed, which upon motion was afterwards dissolved; and certain of the defendants filed demurrers to the original petition, and an amendment thereto, and these demurrers were also sustained, and plaintiffs' petition was dismissed. Plaintiffs appeal. Affirmed in part, and reversed in part.

Redmond & Stewart, of Cedar Rapids, and R. R. Leach, of Tipton, for appellants. C. O. Boling and France & Rowell, all of Tipton, for appellees.

DEEMER, J. This seems to be the last case of a series which have come to this court, involving the construction of a curb and gutter and a certain pavement in the city of Tipton. The first of these cases involved the question as to whether or not the improvement was completed according to contract, and the right of the city to issue assessment certificates to the contractor on account thereof. This court held that the work had not been completed according to

"Par. 6. That the contract by its terms provided that reconstruction of the work might take place at any time before it was paid for, and provided also that the defendant city might reconstruct and charge back the expense thereof to the plaintiff, and the city council itself, by resolution, after the commencement of said action, deferred further consideration of assessment and payment for said work by the adoption and approval of the following record: "The matter of the assessment of paving under the Snouffer & Ford contract and the issuance of certificates against abutting property therefor was deferred pending the hearing and decision upon the injunction restraining the city council from assessing said paving or the issuing of certificates, issued in the case of F. D. Wingert and others v. City of Tipton et al., by district court of this county, until such time as said injunction is dissolved or finally heard and then the matter of the assessment of said paving and issuing of certificates shall be taken up at the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

first regular meeting after the dissolution or disposition of said injunction or on a specially called meeting therefor.' That at the next regular meeting of the city council of the defendant city, held after the announcement of the opinion of the Supreme Court in the case of Wingert v. City of Tipton, held on October 1, 1906, and at the following regular meeting thereof in the same year, the plaintiff in this case offered both orally and in writing to reconstruct the pavement up to the strict requirements of the contract, but the city council ignored the offer and did nothing. This plaintiff, under the contract aforesaid, as according to its terms and under the construction thereof theretofore adopted by both this plaintiff and said city, could do nothing toward reconstruction of said pavement without inspection, supervision, direction, and co-operation of the defendant city and its officers. This offer to reconstruct was made after the filing of said opinion, but before any decree of injunction or other remedy had been rendered or entered in the Supreme Court in said cause, which decree was in fact entered on the 12th day of December, 1906.

"Par. 7. Thereafter, the plaintiff sought to recover on quantum meruit from some of the abutting property owners on said portions of Meridian and Fourth streets, and also sought to recover so much as said pavement was worth from the city, but was defeated in both of said forms of action.

and the removal will leave said streets in substantially as good condition, or better, than they were before the pavement and curbing aforesaid was placed thereon.

"Par. 9. That pursuant to said notices, the plaintiff and its employés commenced on the 8th day of May, 1911, to remove the said pavement and curbing, but the defendant city, acting through its officers and agents for and on behalf of said city, and some of the property owners made defendants herein who owned property abutting on said paved and curbed streets, arrested the men engaged in said removal for a violation of section 4703 of the Code of Iowa; and again, on or about May 23, 1911, when said work of removing was resumed, repeated said arrest, and again threaten to arrest the plaintiff or any of its employés who may attempt to or start upon said removal, and in this manner and ways the defendant city of Tipton and some of the other defendants, the plaintiff cannot specify them, through the officers and agents of said defendant city and the county of Cedar, refuse to permit the plaintiff to remove said paving and curbing as proposed, and have interfered with and threaten to interfere with and prevent said removal of said paving and curbing by the plaintiff and its employés.

"Par. 10. That the defendants and none of them have paid anything for said pavement and curbing. That said pavement and curbing is the property of plaintiff. That the defendants have failed and refused to accept said pavement and curbing as in compliance with the contract aforesaid, and have failed and refused to reconstruct the pavement and curbing to comply with the terms of said contract and charge the expense thereof to the plaintiff as said contract provides they might do; and on the proposal and offer of the plaintiff, as under the terms of said contract it might before final payment for said pavement and curbing, to reconstruct said pavement to the full requirements of said

"Par. 8. Thereafter, the plaintiff caused to be served by the sheriff of Cedar county, Iowa, on each member of the city council of the defendant city of Tipton, and mayor thereof," a notice in writing to the effect that, in view of the failure of the city to accept and pay for the pavement or to allow plaintiff to reconstruct or remedy the defects therein, it would, with as little disturbance to public travel and convenience as possible, and without disturbing the grade or the parking, proceed on the 8th day of May, 1911, to remove the pavement and curb-contract and asking the supervision and aping from the streets. It also averred that: "At the first regular meeting of said council in May, 1911, it read the said notice to said council in session, by and through its attorney, R. R. Leech; and the plaintiff, prior to the service of said notice, orally notified the said mayor and said councilmen that it would take up and remove said pavement and curbing, and expeditiously, and not to interfere thereby with travel upon the streets, and would leave said streets upon which paving had been laid by it as aforesaid in as good or better condition than they were before Snouffer & Ford began the work of putting down said pavement, and that all of the same could be done without material injury to said streets. That in truth and in fact said removal of said paving and curbing In amendment to the petition plaintiff alcan be accomplished without material incon-leged:

proval of said reconstruction by the officers of said city, as plaintiff was bound to do, the defendant city and its officers refuse and neglect to do anything or to permit said reconstruction, and all defendants have failed and refused to pay anything for said pavement and curbing, and refuse to permit, and prevent the taking up and removal of the same and it is their expressed purpose and intention so to do.

"Par. 11. The plaintiff has no plain, speedy, or adequate remedy at law, and will suffer irreparable injury if delayed in the taking up of said pavement and curbing and will be harassed and annoyed by a multiplicity of suits, criminal and civil, without just or legal ground therefor."

venience to the use of said streets and with- "Par. 12. That the purpose of filing the