Messer vs. Oestreich. MESSER VS. OESTREICH. September 2― September 27, 1881. DEEDS. (1) Form of warranty deed. (2) Evidence for construction of deed. (3, 4) Uncertainty in description: Practical construction by parties: Estoppel of grantor. (5) Breach of covenant of seizin, what constitutes. (6) Damages for such breach. (7) Damages for breach as to a part only. 1. A deed executed since the revision of 1878 in the form prescribed for a warranty deed by sec. 2208, R. S., must be regarded as containing the covenanfs named in that section. 2. Where the description, in a deed, of the land conveyed, is otherwise uncertain, evidence will be admitted of the state of the property when the deed was executed, to aid in its construction. 3. Where a deed purports to convey a strip of land of a certain width along a line already located, but without prescribing the lateral boundaries or designating the particular portion of the strip traversed by such line, if the grantee thereupon goes into possession under such deed, and designates the lateral boundaries by substantial fences, and continues in the exclusive possession for many years with the acquiescence and consent of the grantor, this is a practical construction of the deed, binding upon the parties and those claiming under them. 4. It seems that such a deed, with full covenants of warranty, for a valuable consideration paid, would be valid as a covenant; and, if executed to a railroad company, would authorize it to appropriate such a strip of land, of the width named, along the line already located, as might be necessary to the construction of its contemplated road; and that, after such actual appropriation of the land, the grantor would be estopped from denying that he had conveyed it. 5. A prior valid deed to a railroad company and its assigns, of a strip of land along the line of its railroad for the uses and purposes of said company, is a breach of the covenant of seizin in a subsequent deed, by the same grantor to a third person, of the parcel of land which includes such strip, although the company is in occupancy of the strip for the purposes of a railroad when such subsequent deed is executed. Kutz v. McCune, 22 Wis., 598, and Smith v. Hughes, 50 Wis., 620, distinguished. 6. The railroad company, under such deed, has not a mere easement in the land, but the absolute title, subject at most to forfeiture for non-user or misuser; and as the value of such possible forfeiture is not susceptible of proof, it seems that the amount to be deducted therefor from what would Messer vs. Oestreich. otherwise be the measure of damages for the breach of the covenant of seizin in the second deed, would be merely nominal. 7. When the title fails to only a part of the land conveyed, the grantee may recover in an action on the covenants of seizin and right to convey (or upon an agreement to convey), such a proportion of the whole consideration paid, as the value of the part to which the title fails bore to the whole purchase price at the time of the purchase, with interest thereon during the time he has been deprived of the use of such part, not exceeding six years. APPEAL from the Circuit Court for Jefferson County. Action to recover damages for an alleged breach of the covenant of seizin in a deed of fifty-three acres of land, executed by the defendant and his wife to the plaintiff, September 8, 1879, in consideration of $2,925, paid by the plaintiff to the defendant, in pursuance of a contract in writing made by the parties March 30, 1872, by which the defendant gave to the plaintiff possession of the premises, and covenanted and agreed that upon payment of said consideration he would cause to be executed and delivered to the plaintiff a good and sufficient deed, in fee simple, of the premises, free and clear of all legal liens and incumbrances except the taxes thereafter assessed. The deed is in the form prescribed by section 2208, R. S., for a "warranty deed." The particular breach relied upon is a deed duly executed, acknowledged and delivered by the defendant's grantors, Carl Oestreich and his wife, July 28, 1853, wherein and whereby they, in consideration of $40, purported to convey to the Milwaukee & Watertown Railroad Company, its heirs and assigns, forever, "a strip of land, five rods in width, for the uses and purposes of the said railroad company, along the line of their [its] railroad as at present located, across or through the" fifty-three acres of land in question. This deed to the railroad company was a warranty deed with full covenants, and was recorded August 29, 1853. From a judgment in favor of the plaintiff, the defendant appealed. Messer vs. Oestreich. Warham Parks, for the appellant: 66 1. To save the grantor in a warranty deed from an action on his covenants, it is not necessary to except or reserve, in the deed, lands included therein used for highway or railway purposes, where the easement is obvious and notorious. Kutz v. McCune, 22 Wis., 628; Pomeroy v. C. & M. R. R. Co., 25 id., 641; Sabine v. Johnson, 35 id., 201; Smith v. Hughes, 50 id., 626. 2. The deed to the railroad company conveyed no interest, because there was an "incurable uncertainty, amounting to a patent ambiguity," in the description of the premises. Williams v. W. U. R'y Co., 50 Wis., 71. The descriptions in the deed here in question and that pronounced invalid in the case just cited, are identical. Ambiguitas patens is never holpen by averment." 1 Greenl. Ev. (Redf. ed.), $$ 297-300; Bacon's Elm., Rule 23. "If the estate cannot be ascertained by the description in the grant, the deed fails altogether." 3 Washb. R. P., *629; Jackson v. Rosevelt, 13 Johns., 97; Jackson v. Delancy, id., 537; Jackson v. Clark, 7 id., 217; Lawson v. Mead, Hill & Den., 158; Clemens v. Rannells, 34 Mo., 579. 3. The court erred in its instructions as to the measure of damages, and in refusing to permit the defendant to show the value of the strip of land five rods wide, at the date of the deed to plaintiff, "subject to the right of the railroad company to run over it and use it as long as it should see fit." Compensation will be given only for the amount of the actual loss; the damages must be made to correspond with the real injuries sustained. 1 Sedgw. on Dam. (7th ed.), 40, 343; Brandt v. Foster, 5 Iowa, 287; Griffin v. Reynolds, 17 How., 610. The court should have submitted to the jury the question whether the plaintiff, before he purchased these lands, knew that the railroad track went through them. There is positive testimony that he did know that fact, and no positive testimony to the contrary. In Smith v. IIughes, 50 Wis., 627, this court holds that such knowledge must be presumed; and in Kutz v. McCune, 22 Wis., 631, it declares AUGUST TERM, 1881. 687 Messer vs. Oestreich. the "strong natural presumption "to be "that the parties sell on the one hand and buy on the other the property in its actual physical condition, and subject to such rights, either in favor of the vendor or others, as that physical condition obviously indicates, without any exceptions or reservations concerning them in the deed." But if plaintiff took his deed subject to a right of user, or easement, of the railroad company, and if the company had in fact the fee of the strip, and this last fact was a breach of defendant's covenants, the real damages were only the difference between the value of the whole tract conveyed to plaintiff, subject to an easement in the company, and its value with the fee of the five-rod strip vested in the company. And it would seem that the difference between these values was merely nominal. Plaintiff has not yet felt the pressure of the railroad title, other than the user. 4. Counsel further suggested that while the deed to the railroad, if valid, conveyed the fee in form, still the rights thereby acquired were only in the nature of an easement in perpetuity; that in general it is for the legislature to decide what shall become of lands thus granted by deed to railroad companies, in case of an abandonment by such companies (Ford v. Railroad Co., 14 Wis., 617; Att'y Gen. v. Railway Co., 36 id., 466); that the words in the grant in this case, "for the uses and purposes of said railroad company," amount to a condition subsequent (Horner v. Railway Co., 38 Wis., 165); and that in case of a reversion the land would go to plaintiff as defendant's grantee. Harlow Pease, for the respondent: 1. The railroad company has not a mere easement in the land occupied by it, but owns the fee. The charter under which the Milwaukee & Watertown Railroad Co. took the deed of said land, expressly authorized it not only to purchase lands, but to "sell and convey the same when they shall no longer be needed for railroad purposes." It also provides that the title to all lands acquired either by purchase or by condemnation shall vest in fee simple in said company. Laws of 688 SUPREME COURT OF WISCONSIN, Messer vs. Oestreich. 1851, ch. 176, secs. 11, 13, 23. 2. The measure of damages as between vendor and purchaser, upon a breach of the covenant of seizin, is the value of the land at the time of the sale, limited by the consideration money. Rawle on Cov., 4th ed., 235–6 and cases cited; Sedgw. on Dam., 3d ed., *175-6. Interest for six years is to be added to the consideration money. Rich v. Johnson, 1 Chand., 19; Noonan v. Ilsley, 21 Wis., 138. CASSODAY, J. The deed from the appellant to the respondent is in the form prescribed by section 2208, R. S., for a "warranty deed." That section provides that such deed shall have the effect of a conveyance in fee simple to the grantee, his heirs and assigns, of the premises therein named, together with all the appurtenances, rights and privileges thereto belonging, with a covenant from the grantor, his heirs and personal representatives, that he is lawfully seized of the premises and has a good right to convey the same; that he guaranties the grantee, his heirs and assigns, in the quiet possession thereof; that the same are free from all incumbrances; and that the grantor, his heirs and personal representatives, will forever warrant and defend the title and possession thereof in the grantee, his heirs and assigns, against all lawful claims whatsoever. The deed must therefore be regarded as a warranty deed containing the covenants named. It is urged that there was no breach of the covenant of seizin, nor of the contract, on account of the deed previously given to the railroad company, for the reason that the description therein is void for uncertainty; and Williams v. Western Union Railway Co., 50 Wis., 71, is relied upon in support of that position. That was an action of ejectment. It is true, the description in that deed was substantially like the one we are considering. But here it is admitted in the answer that at the time of making the contract the railroad company occupied a strip of land five rods wide through the land in question for track purposes, and that the same "is the part of said premises alleged to be |