Leach v. Gunnarson

PETERSON, J.,

specially concurring.

Looking at the law from the various states, it appears that there is a split of authority whether conditions which are visible, open and notorious constitute a breach of the covenant against encumbrances. Tiffany states:1

"* * * In some cases the fact that the grantee had notice, actual or constructive, of a highway upon the land, has been regarded as taking such incumbrance out of the operation of the covenant. In a few cases the fact that the existence of an incumbrance in favor of an individual was apparent upon an inspection of the land, and that…