Barlow v. McKinley
Supreme Court of Iowa
Appeal from Iowa District Court. Action upon the covenant against incumbrances contained in a deed conveying eighty acres of land. Breach, that the If. & M. Railroad company held a right of way conveyed to it by the defendant prior to the covenant sued on. Defense, that plaintiff knew of the existence of the right of way, and that it was in law no incumbrance. The cause was tried to the court, and judgment rendered for plaintiff for forty dollars. The defendant appeals.
1Opinion of the CourtCole, J.
But two questions are presented by the transcript:
1. Is the right of way for a railroad an incumbrance ? An incumbrance is defined to be a 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 the deed of conveyance. Bouv. Law Die. A public highway is held to be an incumbrance in all the New England States. Rawle on Cov. for Title, pages 115 to 120, and authorities cited in the notes. As to the right of way for a railroad being an incumbrance, see opinion of Redeield, J., in Butler v. Gale (1 Williams…
2Cases cited1 opinion
- Van Wagner v. NostrandSupreme Court of Iowa · 1865
3Cited by22 opinions
- Westerlund v. Black Bear Mining Co.Court of Appeals for the Eighth Circuit · 1913
- Kellogg v. MalinSupreme Court of Missouri · 1872
- Burk v. HillIndiana Supreme Court · 1874
- Harrison v. Des Moines & Ft. Dodge Railway Co.Supreme Court of Iowa · 1894
- Pilcher v. Atchison, Topeka & Santa Fé RailroadSupreme Court of Kansas · 1888
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