Wagner, Judge,
delivered the opinion of the court.
Plaintiff brought suit against defendant, upon his covenant of seizin contained in a deed conveying certain real estate situated in Platte county. The breach assigned was that at the time of the execution and delivery of the deed the defendant was not séized in fee simple of a strip of land 100 feet wide running through the tract conveyed, but that the fee in such strip was then vested in the Platte County Railroad, by virtue of a decree rendered in the Circuit Court previous to the execution and delivery of defendant’s deed, of which the company, at all times since the delivery of the deed, had held exclusive possession.
To this petition ‘ the defendant demurred, and assigned as reasons therefor that the petition did not state facts sufficient to [499]*499constitute a cause of aetiou, because “ the location and use of a railroad over said lands in the petition named was and is a public, notorious act or fact, of which plaintiff was bound to take notice, and of which he was presumed to have had full notice; and- all such notorious physical facts were to be taken into consideration in construing the deed and warranty therein, and Avere not covered by said warranty and Avere not in law a breach thereof.”
The court sustained the demurrer and dismissed the petition, whereupon the plaiut.iff brought error.
The first question is whether the railroad, by its proceedings for condemnation which resulted in the decree of the court, became invested with a fee-simple title in the strip of land, or whether it acquired a mere easement. It is well settled that the covenant of seizin is not broken by the existence of easements or encumbrances which do not strike at the technical seizin of the purchaser. Therefore the existence of a higlnvay over part of the land conveyed is no breach of this covenant, since it has been firmly and consistently established that, although the public may have the right of passage over the way, the freehold technically remains in the owner of the soil. (Rawle Cov., 3d ed., 51; Goodtitle v. Alker, 1 Burr. 133; Cortelyou v. Van Brundt, 2 Johns. 357; Jackson v. Hathaway, 15 Johns. 449; Lewis v. Jones, 1 Barr, 336; Peck v. Smith, 1 Conn. 103.)
By the first section of the act chartering the Platte County Railroad Company, power is given the company to take, hold, use and enjoy the fee simple or other title in and to any real estate. The eighth section provides that where the Owner of the land through which such road shall run shall refuse to relinquish the right of way to the road, the facts shall be stated to the Circuit Court, and the judge shall appoint three disinterested citizens to view the land, who shall take into consideration the value of the land, and the advantages and disadvantages of the road to the same, and report what damages will be done to the land. And the ninth section declares that if no valid objection be made to the report, the court shall enter judgment in favor of the owner, against the company, for the amount of damages assessed, and shall make an order vesting in the company the fee-simple title to [500]*500the land. (R.R. Laws of Mo. 51, 52.) It is true that in speaking of the title Avhich the company acquire, the Legislature here uses the term “ fee simple ; ” but did it contemplate a fee simple according to the technical legal meaning of that term ?
That a f.ee simple may be taken and acquired through the exercise of the power of eminent domain may be conceded. But that, I apprehend, would be where an absolute and unconditional price was paid for the property. In determining the consideration to be paid by these roads for the right of way, the benefits and advantages accruing to the owner are taken into the calculation. The benefits and advantages, then, are considered as forming part of the purchase-money.
But suppose the road, after it is started, ceases to exist, and its operation is abandoned, will the land revert back to the owner, or may the road keep and dispose of it for a purpose entirely different from that had in view when it was commenced ? It seems to me there can be but one answer to this question. There might be cases where the commissioners and the court would not award the proprietor anything more than nominal damages, believing that the benefits would be greater than the value of the land ; and in such a case, if the road should cease or be abandoned, the owner would be deprived of his estate without any compensation. In the matter of highways, where lands have been taken and appropriated in this way, it has never been held that anything more than an easement passed by the condemnation and the payment of the amount of damages assessed.
The use is vested in the public, but the reversionary title still continues in the owner of the soil. In my opinion, notwithstanding the language used, nothing more than an easement passed to the road, giving it perpetual and continuous title so long as it used the land for the purpose for which it was taken, b.ut, when that use was abandoned, then it would revert back to the owner of the premises.
We do not think, then, there was any technical breach of seizin as set forth in the petition.
Some conflict of authority has existed, and still prevails, as to whether the existence of a public road or highway over the prop[501]*501erty is a breach of any of the usual covenants. The prevailing opinion, however, is that it is a breach of the covenant against encumbrances.
In an early case in New York, although the question was not directly decided, yet a strong doubt was expressed whether a public road could properly be deemed an encumbrance. (Whitbeck v. Cook, 15 Johns. 483.) “It must strike any one with surprise,” said Spencer, J., in that case, “that a person who purchases a farm through which a public road runs at the time of the purchase, and had so run long before, who must be presumed to have known of the existence of the road, and who chooses to have it included in his purchase, shall turn around ou his grantor and complain that the general covenants in the deed have been broken by the existence of what he saw when he purchased, and what must have enhanced the value of the farm.”
In Pennsylvania the question was directly presented in Patterson v. Arthurs, 9 Watts, 152, and the court expresses its surprise that a highway should ever- have been imagined an encumbrance within the covenants, and the belief that it had been the universal understanding of both sellers and purchasers in Pennsylvania that the covenant against encumbrances did not extend to public roads. The case, however, was not an action brought on a covenant against encumbrances, but an action for an installment of the purchase-money by the vendor. This doctrine was affirmed in Dobbins v. Brown, 12 Penn. St. 80, but the court went on to say that if a person purchased land without having seen it, upon the representation of the vendor, where its value was materially lessened by a public highway being located upon it, which circumstance was not made known to or was concealed from the purchaser, t'he latter might obtain redress by an action on the case for deceit; or, in an action brought against him for the purchase-money, might have compensation made by a deduction therefrom.
The courts of Pennsylvania are the only ones that have decided the question directly in the negative ; and Mr.
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Wagner, Judge,
delivered the opinion of the court.
Plaintiff brought suit against defendant, upon his covenant of seizin contained in a deed conveying certain real estate situated in Platte county. The breach assigned was that at the time of the execution and delivery of the deed the defendant was not séized in fee simple of a strip of land 100 feet wide running through the tract conveyed, but that the fee in such strip was then vested in the Platte County Railroad, by virtue of a decree rendered in the Circuit Court previous to the execution and delivery of defendant’s deed, of which the company, at all times since the delivery of the deed, had held exclusive possession.
To this petition ‘ the defendant demurred, and assigned as reasons therefor that the petition did not state facts sufficient to [499]*499constitute a cause of aetiou, because “ the location and use of a railroad over said lands in the petition named was and is a public, notorious act or fact, of which plaintiff was bound to take notice, and of which he was presumed to have had full notice; and- all such notorious physical facts were to be taken into consideration in construing the deed and warranty therein, and Avere not covered by said warranty and Avere not in law a breach thereof.”
The court sustained the demurrer and dismissed the petition, whereupon the plaiut.iff brought error.
The first question is whether the railroad, by its proceedings for condemnation which resulted in the decree of the court, became invested with a fee-simple title in the strip of land, or whether it acquired a mere easement. It is well settled that the covenant of seizin is not broken by the existence of easements or encumbrances which do not strike at the technical seizin of the purchaser. Therefore the existence of a higlnvay over part of the land conveyed is no breach of this covenant, since it has been firmly and consistently established that, although the public may have the right of passage over the way, the freehold technically remains in the owner of the soil. (Rawle Cov., 3d ed., 51; Goodtitle v. Alker, 1 Burr. 133; Cortelyou v. Van Brundt, 2 Johns. 357; Jackson v. Hathaway, 15 Johns. 449; Lewis v. Jones, 1 Barr, 336; Peck v. Smith, 1 Conn. 103.)
By the first section of the act chartering the Platte County Railroad Company, power is given the company to take, hold, use and enjoy the fee simple or other title in and to any real estate. The eighth section provides that where the Owner of the land through which such road shall run shall refuse to relinquish the right of way to the road, the facts shall be stated to the Circuit Court, and the judge shall appoint three disinterested citizens to view the land, who shall take into consideration the value of the land, and the advantages and disadvantages of the road to the same, and report what damages will be done to the land. And the ninth section declares that if no valid objection be made to the report, the court shall enter judgment in favor of the owner, against the company, for the amount of damages assessed, and shall make an order vesting in the company the fee-simple title to [500]*500the land. (R.R. Laws of Mo. 51, 52.) It is true that in speaking of the title Avhich the company acquire, the Legislature here uses the term “ fee simple ; ” but did it contemplate a fee simple according to the technical legal meaning of that term ?
That a f.ee simple may be taken and acquired through the exercise of the power of eminent domain may be conceded. But that, I apprehend, would be where an absolute and unconditional price was paid for the property. In determining the consideration to be paid by these roads for the right of way, the benefits and advantages accruing to the owner are taken into the calculation. The benefits and advantages, then, are considered as forming part of the purchase-money.
But suppose the road, after it is started, ceases to exist, and its operation is abandoned, will the land revert back to the owner, or may the road keep and dispose of it for a purpose entirely different from that had in view when it was commenced ? It seems to me there can be but one answer to this question. There might be cases where the commissioners and the court would not award the proprietor anything more than nominal damages, believing that the benefits would be greater than the value of the land ; and in such a case, if the road should cease or be abandoned, the owner would be deprived of his estate without any compensation. In the matter of highways, where lands have been taken and appropriated in this way, it has never been held that anything more than an easement passed by the condemnation and the payment of the amount of damages assessed.
The use is vested in the public, but the reversionary title still continues in the owner of the soil. In my opinion, notwithstanding the language used, nothing more than an easement passed to the road, giving it perpetual and continuous title so long as it used the land for the purpose for which it was taken, b.ut, when that use was abandoned, then it would revert back to the owner of the premises.
We do not think, then, there was any technical breach of seizin as set forth in the petition.
Some conflict of authority has existed, and still prevails, as to whether the existence of a public road or highway over the prop[501]*501erty is a breach of any of the usual covenants. The prevailing opinion, however, is that it is a breach of the covenant against encumbrances.
In an early case in New York, although the question was not directly decided, yet a strong doubt was expressed whether a public road could properly be deemed an encumbrance. (Whitbeck v. Cook, 15 Johns. 483.) “It must strike any one with surprise,” said Spencer, J., in that case, “that a person who purchases a farm through which a public road runs at the time of the purchase, and had so run long before, who must be presumed to have known of the existence of the road, and who chooses to have it included in his purchase, shall turn around ou his grantor and complain that the general covenants in the deed have been broken by the existence of what he saw when he purchased, and what must have enhanced the value of the farm.”
In Pennsylvania the question was directly presented in Patterson v. Arthurs, 9 Watts, 152, and the court expresses its surprise that a highway should ever- have been imagined an encumbrance within the covenants, and the belief that it had been the universal understanding of both sellers and purchasers in Pennsylvania that the covenant against encumbrances did not extend to public roads. The case, however, was not an action brought on a covenant against encumbrances, but an action for an installment of the purchase-money by the vendor. This doctrine was affirmed in Dobbins v. Brown, 12 Penn. St. 80, but the court went on to say that if a person purchased land without having seen it, upon the representation of the vendor, where its value was materially lessened by a public highway being located upon it, which circumstance was not made known to or was concealed from the purchaser, t'he latter might obtain redress by an action on the case for deceit; or, in an action brought against him for the purchase-money, might have compensation made by a deduction therefrom.
The courts of Pennsylvania are the only ones that have decided the question directly in the negative ; and Mr. Rawle, in explaining why it was regarded as a general understanding to that effect, says that it was originally agreed by Penn, at the formation of the colony, that there should be laid out “ great roads from city [502]*502to city;” and as the wild state of the country rendered it impossible to be done otherwise than very gradually, it became the custom of the proprietaries, and afterwards of the commonwealth, to allow to all grantees of vacant land an addition in the proportion of six acres for every hundred, as a compensation for the roads that should thereafter be opened. This was so universal that, although the declaration of rights in the constitution provided that no man’s property should be taken or applied to public use without just compensation being made, it was held that the law authorizing a turnpike to lay out and open roads without compensation was no infringement of the constitution, such compensation having been originally made in each purchaser’s particular grant. (McClanachow v. Corwin, 3 Yates, 373.) And from this circumstance, and the fact that it had been considered that the running a road through a man’s land conferred such a benefit upon him as to fully compensate him, is traced the common understanding which forms the basis of the decisions. But in an early case in Massachusetts the action was on a covenant, and the breach assigned was the existence of “ a public town road or way, duly laid out by the town of A., for the use of all its inhabitants,” which was held to be an encumbrance. In delivering the opinion of the court, Parsons, C. J., said : “It is a legal obstruction to the purchaser to exercise that dominion over the land to which the lawful owner is entitled. An encumbrance of this nature may be a great damage to the purchaser, or the damage may be very inconsiderable or merely nominal. The amount of damage is a proper subject of consideration for the jury who may assess them, but it cannot affect the question whether a public town road is, in legal contemplation, an encumbrance of the land over which it is laid.” (Kellogg v. Ingersoll, 2 Mass. 101.) This case has been approved and sustained in all the New England States, and it is now considered as definitely settled there that a public highway does constitute a breach of the covenant agqjnst encumbrances. (Herrick v. Moore, 19 Me. 313; Haynes v. Young, 36 Me. 560; Pritchard v. Atkinson, 3 N. H. 335; Butler v. Gale, 27 Verm. 742; Parish v. Whitney, 3 Gray, 516; Hubbard v. Norton, 10 Conn. 431.)
[503]*503Where the question has come up, the same doctrine has been approved in the Western States. Thus, it was held that where the owner of a tract of land had conveyed to a railroad company a right of way over the same, upon which the company had built and were operating their road, and subsequently thereto such owner conveyed the same land to another by a deed purporting to pass the fee to the entire tract, without any reservation in respect to such right of way, the easement so held by the railroad company was an encumbrance on the land, and its existence constituted a breach of a covenant against encumbrances contained in the deed, for which the covenantee might maintain his action. (Beach v. Miller, 51 Ill. 206.) So, in Iowa it has been decided that a right of way for a railroad is an encumbrance for which a grantee may recover, under a covenant against encumbrances, though he had full knowledge of such encumbrances at the time he accepted the deed. (Van Wagner v. Van Nostrand, 19 Iowa, 422; Barlow v. McKinley, 24 Iowa, 69.)
All the authorities concur in holding that an easement constitutes an encumbrance. If a person acquires the fee to land free and unencumbered, he obtains the exclusive and absolute dominion over it, and may use, enjoy and appropriate it to any purpose he may see fit. But if it is subject to an easement or an encumbrance it is not free, nor can he enjoy it to the fullest extent. If a public highway or a railroad track runs over it he cannot have its unobstructed enjoyment, for it is used by others in defiance of his will.
When a purchaser- obtains title by deed without covenants, he of course takes it subject to all defects and encumbrances it may be under at the time of the conveyance. But if he insists upon and obtains covenants for title, he has the right, when obtained, to rely upon them and enforce their performance, or recover damages for their breach. The vendor is not compelled to make covenants when he sells land; but, having done so, he must keep them, or respond in damages for injuries sustained by their breach. Nor is it a relief or discharge of the covenant to say that both parties knew it was not true, or that it would not be performed when made. A person may warrant an article to be sound when [504]*504both buyer and seller know it tó be unsound; so the seller may warrant the quantity and quality of an article he sells, when both parties know it is not of the quantity or quality warranted. The usual reason why a purchaser insists upon covenants for titles or a warranty of quality or quantity, is because he fears that the title is not good, or that the article lacks eitheir in quantity or quality.
Then, as a highway or a railroad located and running over one’s land is an encumbrance, and to a greater or less degree obstructs and encumbers the free use and enjoyment of the land, it follows that a person selling land thus encumbered, and covenanting that it is not, must be held to perform his covenant by its removal, or respond in damages.
The points raised in the demurrer, therefore, were not all well taken, but the judgment must be affirmed because the allegations in the petition set out no cause of action — a breach of seizin only being averred.
Judgment affirmed.
The other judges concur.