contract to convey land clear of all encumbrances, except liability for municipal improvements, the cost of which has not been assessed, obvious easements, and unusual restrictions running with the land, and certain restrictions as to which it is a matter of dispute between the parties whether they are unusual in character, it is for the jury to determine the character of the restriction. 24

(c) Zoning ordinance or statute.

A covenant in a deed, by which the grantor, his representatives, heirs, and assigns, are prohibited from using specified materials in erecting a building or buildings on the real property conveyed, and also from using the property for specified purposes, does not make the title to such property unmarketable, if the grantor, his representatives, heirs, and assigns, could not use such materials in the erection of any building thereon, or use the property for the purposes mentioned, because of some general statute or other law which is equally prohibitive, and the provision does not exceed reasonable prohibitions by statute or ordinance. In such case the possibility of a change in the statute or ordinance, so as to permit the use of building materials fairly comprehended within the enumeration, is too remote for practical consideration. 25 A zoning ordinance regulating and limiting the height and bulk of buildings thereafter erected, and regulating and determining the area of yards, courts, and other open spaces, and regulating and restricting the location

--

24 Coombs v. Witte (1928) - N. J. L. -, 140 Atl. 408.

25 Bull v. Burton (1919) 227 N. Y. 101, 124 N. E. 111. In this case the covenant was that the grantee, his heirs, and assigns would not at any time thereafter erect any buildings within 40 feet of the front of the lot described, unless they were constructed of brick or stone, with roofs of slate or metal, and would not erect or permit upon any part of the lots any slaughterhouse, smith shop, forge, furnace, steam engine, brass foundry, nail or other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, ink, or turpentine, or for

of trades and industries and the location of buildings designed for specified uses, and establishing the boundaries of districts for said purposes, does not constitute an encumbrance upon property within the zone affected, and does not entitle the vendee to refuse to accept title thereto, where such ordinance was in existence at the time he entered into the contract for the purchase of the land, and it does not appear that he purchased the land for any purpose which was prohibited by the ordinance. 26 So, where the vendee purchased two separate pieces of property, and contracted, as to one of them, that if the title to adjoining premises, which he had also contracted to purchase, should be found unmarketable, he would not be obligated to complete the contract in question, the fact that, after execution of the contract, a zoning ordinance was adopted by the city, prohibiting the erection of a building of the kind the vendee intended to erect upon the adjoining premises, does not furnish a ground for his refusal to accept title to the property in question, nor will it preclude relief by way of specific performance in behalf of the vendor. 27

A zoning ordinance adopted after the execution of an executory contract for the sale of land, by which the erection of a building of the character that the vendee expected to build upon the land, of which the vendor had knowledge, was prohibited, does not render the title to the land unmarketable. 28 If, however, the circumstanthe tanning, dressing, or preparing of skins, hides, or leather, or any brewery, distillery, or any other noxious or dangerous trade or business.

26 Lincoln Trust Co. v. Williams Bldg. Corp. (1920) 229 N. Y. 313, 128 N. E. 209.

27 Biggs v. Steinway & Sons (1920) 229 N. Y. 320, 128 N. E. 211.

28 Anderson v. Steinway & Sons (1917) 178 App. Div. 507, 165 N. Y. Supp. 608 (affirmed in (1917) 221 N. Y. 639, 117 N. E. 575). The court said: "There can be no doubt that such a restriction upon the uses to which the property may be put under the resolution of the board of estimate and ap

ces are such as to render the specific enforcement of the contract unfair, equity will refuse a decree of this kind. 29 So, where the restrictions imposed by covenant are more burdensome than those imposed by the zoning provisions, the vendee will not be required to accept the title. 30 And it has been held that an ordinance restricting the erection of any building within a certain distance from any public street does not cure a defect in the title to land, due to a restriction in the deed against the erection thereon of any building within a certain distance from the public street, although the distance is the same as that specified in the ordinance, which was subsequently enacted. 31

portionment would, if imposed by a covenant found in the chain of title and running with the land, constitute encumbrance and absolve defendant from his contract to purchase it. . . . This, as we understand, is conceded by the plaintiff, respondent, and it is unnecessary to elaborate the point further, or to cite other authorities to sustain it. But it is said that such a restriction upon the use to which the property may be put, if imposed by legislative or municipal authority, while it may operate as an encumbrance on the property, and affect its marketability, is not such an encumbrance as may be availed of by a vendee to avoid his agreement to purchase it, and it is this view which seems to have been taken by the learned justice at special term. We are cited to no cases, and have been unable to find any, which make this distinction where, as in the present, the restriction or encumbrance was imposed upon the property between the time of making the contract and the time fixed for the passing of the title."

And see Lincoln Trust Co. v. Williams Bldg. Corp. and Biggs v. Steinway & Sons (N. Y.) supra.

29 Anderson v. Steinway & Sons and Biggs v. Steinway & Sons (N. Y.)

(d) Effect of vendee's knowledge of the restriction.

A building restriction which seriously impairs the value of the property will excuse performance upon the part of the vendee, although he had actual knowledge of the restriction at the time of the contract. 32 And it is the general rule that the fact that the vendee knew of building restrictions does not preclude him from objecting to the title on that account, 33 although it seems that knowledge of such restrictions acquired by reference in the contract of sale to deeds in the chain of title containing the restrictions, and failure to make any objection thereto, will be regarded as a waiver of, or acquiescence in, the restrictions. 34

31 Coues v. Hallahan (1904) 209 Pa. 224, 58 Atl. 158.

See Summers v. Midland Co. (1926) 167 Minn. 453, 46 A.L.R. 816, 209 N. W. 323, holding that a vendee in possession cannot rescind on the ground of an easement restricting the property to a restricted residence district, this easement or restriction having been acquired by condemnation proceedings subsequent to the making of the contract.

32 Nathan v. Morris (1891) 62 Hun, 452, 17 N. Y. Supp. 13.

33 Propper v. Colson (1916) 86 N. J. Eq. 399, 99 Atl. 385.

Scott v. Albemarle Horse Show Asso. (1920) 128 Va. 517, 104 S. E. 842, holding that even though the vendee will be presumed to have intended that covenants of warranty and title, or against encumbrances, were not to apply to easements which were open, visible, and notorious, it does not follow that the vendor may resort to parol evidence to show that the vendee had knowledge of the existence of such encumbrances as building restrictions, which were incorporated in the deed of the vendor's grantor, and thereby bringing the case within the rule above stated. In such case the covenant in the contract as to the character of title to be conveyed will control, and the vendee will be entitled to a title free and clear from such building restrictions, or, in the event of the vendor's failure to offer to convey such a title, the vendee may refuse to perform.

34 In Schifferdecker v. Busch (1927)

b. Easements.

1. In general.

An easement is a claim to an estate or interest in the land itself; it is so completely an estate or interest in the land that an action will lie to quiet title to it. 35 It is a right, distinct from ownership, to use in some way the lands of another, without compensation. In this respect an easement differs from a restriction, the latter being a limitation upon the manner in which one may use his own land, and it may or may not involve a grant. 36 The question whether, un130 Misc. 625, 225 N. Y. Supp. 106, the vendee was required specifically to perform a contract for the purchase of land, notwithstanding there were certain restrictions placed upon the property, where the only description in the contract of the property was a reference to recorded deeds, which contained these restrictions, and upon a subsequent meeting of the parties, in which certain objections were made to the closing of the transaction, no objections to these restrictions were made.

35 Wingard v. Copeland (1911) 64 Wash. 214, 116 Pac. 670.

36 Kutschinski v. Thompson (1927) N. J. Eq. —, 138 Atl. 569.

37 United States.-Adams v. Henderson (1897) 168 U. S. 573, 42 L. ed. 584, 18 Sup. Ct. Rep. 179.

California. Koshland v. Spring (1897) 116 Cal. 689, 48 Pac. 58; Tandy v. Waesch (1908) 154 Cal. 108, 97 Pac. 69; Krotzer v. Clark (1918) 178 Cal. 736, 174 Pac. 657; Rustigan v. Phelps (1923) 190 Cal. 608, 213 Pac. 957; Snowden v. Derrick (1910) 14 Cal. App. 309, 111 Pac. 757; Hixson v. Hovey (1912) 18 Cal. App. 230, 122 Pac. 1097; Cosby v. Danziger (1918) 38 Cal. App. 204, 175 Pac. 809.

Florida. Richardson-Kellett Co. v. Kline (1915) 70 Fla. 23, 69 So. 203. Illinois. Weiss v. Binnian (1899) 178 Ill. 241, 52 N. E. 969.

Iowa. Upton v. Smith (1918) 183 Iowa, 588, 166 N. W. 268.

Kentucky. Eversole v. Eversole. (1905) 27 Ky. L. Rep. 385, 85 S. W. 186; Mann v. Campbell (1923) 198 Ky. 812, 250 S. W. 110.

Massachusetts. Mansfield v. Wiles (1915) 221 Mass. 75, 108 N. E. 901; Bennett v. Sheinwald (1925) 252 Mass. 23, 147 N. E. 28; Schon v. Odd Fellows

der an executory contract for the sale of land, especially where it calls for a title free from encumbrances, a vendee is entitled to the land free from any easements, is not to be determined abstractly. The nature of the ease

ment and its relation to the servient estate should be considered. It is, however, the general rule that a contract to convey a fee-simple title is not complied with, where there exists an easement upon the land, if the full enjoyment of the premises is thereby precluded. 37 Even though an easement is comparatively only a slight Bldg. Asso. (1926) 255 Mass. 465, 152 N. E. 55; Hershorn v. Rubenstein (1927) 259 Mass. 288, 156 N. E. 251.

Minnesota. George v. Conhaim (1888) 38 Minn. 338, 37 N. W. 791; Steiner v. Zwickey (1889) 41 Minn. 448, 43 N. W. 376; Dosch v. Andrus (1910) 111 Minn. 287, 126 N. W. 1071 (subsequent appeal in (1911) 116 Minn. 190, 133 N. W. 480); Knudson v. Trebesch (1922) 152 Minn. 6, 187 N. A. 613; Joslyn v. Irwin-Dick Co. (1926) 168 Minn. 269, 209 N. W. 889. New Jersey. Melick v. Cross (1902) 62 N. J. Eq. 545, 51 Atl. 16; Denman v. Metz (1902) 63 N. J. Eq. 613, 52 Atl. 1117; Agens v. Koch (1908) 74 N. J. Eq. 528, 70 Atl. 348; Simpson v. Klipstein (1918) 89 N. J. Eq. 543, 105 Atl. 218; Garber v. Stern (1927) 100 N. J. Eq. 470, 135 Atl. 550 (affirmed in (1927) — N. J. Eq. —, 138 Atl. 920).

New York. Huyck v. Andrews (1889) 113 N. Y. 84, 3 L.R.A. 789, 10 Am. St. Rep. 432, 20 N. E. 581; O'Neil v. Van Tassel (1893) 137 N. Y. 297, 33 N. E. 314; Nicklas v. Keller (1896) 9 App. Div. 216, 41 N. Y. Supp. 172; Pryor v. Buffalo (1908) 60 Misc. 447, 112 N. Y. Supp. 437 (affirmed in (1909) 134 App. Div. 911, 118 N. Y. Supp. 1136, and see affirming opinion in (1909) 197 N. Y. 123, 90 N. E. 423); Oppenheimer v. Krnepper Realty Co. (1906) 50 Misc. 186, 98 N. Y. Supp. 204; Remsen v. Wingert (1906) 112 App. Div. 234, 98 N. Y. Supp. 388 (affirmed in (1907) 188 N. Y. 632, 81 N. E. 1174); Goodman v. Schwab (1910) 136 App. Div. 583, 121 N. Y. Supp. 69; Schaefer v. Hilliker (1910) 140 App. Div. 173, 124 N. Y. Supp. 1014 (affirmed in (1912) 206 N. Y. 708, 99 N. E. 1117); Israelsky v. Levine (1926) 215 App. Div. 94, 215 N. Y. Supp. 589;

hindrance to the full enjoyment of the land by the purchaser, yet the certainty of its existence renders it such a burden on the land that the purchaser is not obliged to accept the title offered by the vendor under a contract to convey a fee-simple title. 38 It has been held that a mere claim of easement upon the land contracted to be sold is sufficient to render the title thereto defective, where there is, at least, reason to expect trouble in regard thereto. 39

2. As affected by physical character of the easement.

Although not herein classified as an encumbrance upon the title, the view frequently has been expressed that certain easements constitute an encumbrance within covenants against encumbrances. In this view a distinction is made between visible and latent easements. And it has been Giles v. Dugro (1852) 1 Duer, 331; Wheeler v. Tracy (1883) 17 Jones & S. 208.

North Dakota. Grow v. Taylor (1912) 23 N. D. 469, 137 N. W. 451; Bruegger v. Cartier (1915) 29 N. D. 575, 151 N. W. 34.

Oregon. Friendly v. Ruff (1912) 61 Or. 42, 120 Pac. 745.

Pennsylvania. Kearney v. Hogan (1893) 154 Pa. 112, 25 Atl. 1076; Johnston v. Callery (1896) 173 Pa. 129, 33 Atl. 1036; Johnston v. Callery (1898) 184 Pa. 146, 39 Atl. 73; Atlantic Ref. Co. v. Sylvester (1911) 231 Pa. 491, 80 Atl. 1091; Ritter v. Hill (1925) 282 Pa. 115, 127 Atl. 455; Hays v. Stewart (1911) 47 Pa. Super. Ct. 440.

Utah. Thackeray v. Knight (1920) 57 Utah, 21, 192 Pac. 263.

held, as to visible easements, that physical conditions not affecting the title, and over which neither the grantor nor the grantee have control, are not encumbrances. This is particularly true of visible easements, which the vendee must have taken into account when agreeing on the price, or which may be regarded as beneficial to the property. To constitute an encumbrance, an easement must operate to diminish the value of the estate. 40 Hence, general contracts to convey land, giving a title in fee, or free and clear of all encumbrances, or similar covenants, are generally held not to refer to visible physical burdens upon the land, permanent in character, known to the vendee. In the ordinary case, the vendee is presumed to have contracted to accept the land subject to visible easements of an open and notorious nature, 1 although it would

39 Platt v. Newman (1888) 71 Mich. 112, 38 N. W. 720, holding that the title to land was defective, where an adverse claim had been set up for the use of a stairway which was part of a building on the premises contracted to be sold.

40 Wheeler v. Beem (1922) 111 Kan. 700, 208 Pac. 626.

41 Suter v. Mason (1921) 147 Ark. 505, 227 S. W. 782; McCarty v. Wilson (1920) 184 Cal. 194, 193 Pac. 578; Ferguson v. Edgar (1918) 178 Cal. 17, 171 Pac. 1061; Stevenson v. Polk (1887) 71 Iowa, 278, 32 N. W. 340; Wheeler v. Beem (Kan.) supra; Archer v. Archer (1895) 84 Hun, 297, 32 N. Y. Supp. 410 (affirmed in (1898) 155 N. Y. 415, 63 Am. St. Rep. 688, 50 N. E. 55); Barnum v. Lockhart (1915) 75 Or. 528, 146 Pac. 975, holding that the existence of an open, notorious, visible easement, such as a railroad in operation, does not constitute an encumbrance rendering the title to the land unmarketable; Patterson v. Arthurs (1839) 9 Watts (Pa.) 152; Pfister v. Sime (1925) 48 S. D. 131, 202 N. W. 476; Sachs v. Owings (1917) 121 Va. 163, 92 S. E. 997.

Compare with Fossume v. Requa (1916) 218 N. Y. 339, 113 N. E. 330, holding that, although the existence of telephone poles and a telephone line is a visible construction upon the highway which the vendee might have seen at the time of the contract, that fact

seem that the circumstances may be such as to repel this presumption, 12 And it seems that the rule that an agreement to convey land free and clear of encumbrances does not refer to visible physical burdens upon the land, permanent in character, will not be applied, in the absence of evidence to show that the vendee knew of their existence. 43

It has been held that, where the vendee protects himself against encumbrances by a positive covenant that the premises shall be conveyed clear of all encumbrances, the vendor does not comply with the contract by tendering a conveyance where the land is subject to a visible easement, even though the vendee knew of it. 44 furnishes no defense against an action for damages for a breach of contract to convey the land free and clear of all encumbrances. It is pointed out that in this respect there is a distinction between judicial sales in which the bidder has been compelled to accept title, notwithstanding some minor defect therein, and a private executory contract for the sale of land.

42 Eriksen v. Whitescarver (1914) 57 Colo. 409, 142 Pac. 413, holding that a right of way for an irrigation ditch was an encumbrance, notwithstanding the fact that the vendee had viewed the premises and seen the ditch. The land in this case was subdivided into building lots and was intended by the vendee to be used for building purposes, to which the existence of the ditch was detrimental, and it further appeared that the ditch might be closed, and the water piped through the premises at an expense of about $150.

And see M'Whorter v. Forney Bros. & Co. (1912) 69 Wash. 414, 125 Pac. 164, holding that, although two public roads extending across the land in question were observed by the vendee before entering into the contract, yet he was not thereby precluded from relying upon their existence as a ground for recovering the amount he had paid on the purchase price, where it appeared that the roads were not regularly laid out, and the vendee was unaware of the fact that the public, by user, had acquired a prescriptive right to use them.

3. As affected by the beneficial character of the easement.

There are certain easements which are essential to the full and proper enjoyment of the premises. They may be regarded as an incident of the ordinary use of the premises. As to easements of this character, it does not lie with the vendee to object to them as a burden upon the land, or as an encumbrance upon the title. 45 An easement may be of so little injury to the land, or impose so slight a burden thereon, that the vendor will be entitled to a decree of specific performance, notwithstanding the easement, although its existence constitutes a technical breach of the contract. For example, sewers, water mains, and gas pipes, along a highway are re

43 Rustigian v. Phelps (1923) 190 Cal. 608, 213 Pac. 957.

44 Patterson v. Freihofer (1906) 215 Pa. 47, 64 Atl. 326; Strong v. Brinton (1916) 63 Pa. Super. Ct. 267.

45 Richardson-Kellett Co. v. Kline (1915) 70 Fla. 23, 69 So. 203; Wheeler v. Beem (1922) 111 Kan. 700, 208 Pac. 626; Pfister v. Sime (1925) 48 S. D. 131, 202 N. W. 476.

Sachs v. Owings (1917) 121 Va. 162, 92 S. E. 997, holding that, where a telephone line was visible at the time the contract was entered into, the vendee will be presumed to have taken into consideration the existence of this encumbrance in fixing upon the amount of the purchase money, and he is precluded from objecting to it as a burden, especially where it is found as a fact that it enhances the market value of the land.

Compare with M'Whorter v. Forney Bros. & Co. (1912) 69 Wash. 414, 125 Pac. 164, wherein the court recognizes the rule that a highway which is beneficial to the land does not constitute an encumbrance, but holds that the particular roads complained of by the vendee were detrimental, instead of beneficial, to the premises, and hence their existence furnished a sufficient ground for the recovery by the vendee of the amount he had paid on the purchase price.

46 Fossume v. Requa (1916) 218 N. Y. 339, 113 N. E. 330.