Newmyer v. Roush

Citations

• 21 Idaho 106
• 120 P. 464
• 1912 Ida. LEXIS 105

Syllabus

<p>Easement — Warranty Against Encumbrances — Private Eights oe Way — Rescission oe Contract — Evidence.</p> <p>(Syllabus by the court.)</p> <p>1. Where an easement and right of way have been granted by Congress or are provided for by the state legislature, over public lands belonging to the government or the state, as the case may be, the existence of such easements’ does not constitute a breaeh of covenant against encumbrances in subsequent conveyances of said land. Sohurger v. Moorman, 20 Ida. 97, 117 Pae. 122, approved.</p> <p>2. Where a public highway has been constructed and opened and used by the public, and is of such general character as to give notice of its use, across a traet of land, it is not such an encumbrance as will constitute a breach of a covenant of warranty, and the purchaser of such land is presumed to have had in mind the existence of such easement, and that the parties in making such contract did not intend to include the same in the contract or conveyance.</p> <p>3. Where an easement is granted for a private roadway or passage over a tract of land and the use is limited to the person to whom the easement is granted, and his successors or assigns, and there is no indication of any intention to dedicate the same to a public use, and such private road or passageway is inclosed, such easement is a claim or right that interferes with the possession of the owner and affects the estate and falls within the spirit and intent of a covenant of warranty, and is an encumbrance upon the estate.</p> <p>4. The mere fact that the purchaser of real property has knowledge of the existence of a private roadway across the land which he contracts to purchase will not defeat his right to insist upon a dear title from the seller, who agrees to convey said lands free from encumbrances, and oral testimony will not be admitted to contradict the contract of sale, in which it is provided that the title shall be clear and free from encumbrances.</p> <p>5. Where a contr