On Petition for a Rehearing.
Buskirk, C. J.A very earnest and elaborate petition for a rehearing has been filed in this case. It is insisted that our ruling is in direct conflict with Scribner v. Holmes, 16 Ind. 142. That case does not seem to have received much consideration. The opinion is as follows:
“ Per Curiam.—This case was tried on May 16th, on which day a motion for a new trial was overruled, exception taken, and leave given to file a bill of exceptions in thirty days. The bill was not filed until July 6th. That was too late. A legal ■public highway, in actual use, is not embraced in a general *58covenant against incumbrances. It would be unreasonable that it should be. See Rawle Cov. 141, ei seq.” The court having held in that case, that the bill of exceptions did not constitute a part of the record, there was no question presented for decision, and all that was said in reference to what incumbrances were embraced in the covenants of a deed was obiter. Although what was said was in direct conflict with the well considered case of Medler v. Hiatt, 8 Ind. 171, no-reference was made to such case. Besides, the authority cited does not sustain the ruling.
Rawle, after referring to the cases of Whitbeck v. Cook, 15 Johns. 483, and Peterson v. Arthurs, 9 Watts, 152, says:, “ But whatever weight may be due to these decisions, it cannot be denied that the current of authority has set strongly the other way, and the ruling in Kellogg v. Ingersoll, 2 Mass. 101, has been approved and sustained in nearly all the New England States, and it appears to be definitely settled there that a public highway does constitute at law a breach of this covenant. And in a very recent case in Illinois, these decisions have been approved and applied to the case where the incumbrance complained of was the right granted to a railway company to construct their road across the land conveyed.”
Counsel also refer us to several cases in Pennsylvania in conflict with our ruling. In the original opinion, it was stated that the ruling had been uniform in that State in the opposite-direction, and the reason of such ruling was stated.
In Kutz v. McCune, 22 Wis. 628, the rule as it exists in Pennsylvania is approved and applied.
On the other hand, our ruling is supported by many adjudged cases which were not cited in the original opinion, and which we now cite: Herrick v. Moore, 19 Maine, 313; Haynes v. Yowng, 36 Maine, 557; Lamb v. Danforth, 59 Maine, 322; Same Case, 8 Am. Rep. 426; Pritchard v. Atkinson, 3 N. H. 335; Butler v. Gale, 27 Vt. 739; Clark v. Estate of Conroe, 38 Vt. 469; Parish v. Whitney, 3 Gray, 516; Harlow v. Thomas, 15 Pick. 66; Sprague v. Baker, 17 Mass. 586; Giles v. Dugro, *591 Duer, 331; Hubbard v. Norton, 10 Conn. 422; Kellogg v. Malin, 50 Mo. 496; Same Case, 11 Am. Rep. 426.
In the last case cited, the court, after referring to the rule as it exists in the New England States, says: “ Where the question has come up, the same doctrine has been approved in the Western States.” The court then reviews the cases in Illinois and Iowa, which are cited in the original opinion.
Again, it is said: “ 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 insist upon and obtain 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 both buyer and seller know it to 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 either in quantity or quality.”
Then, as a highway or railroad located and running over one’s land is an incumbrance, and to a greater or less degree obstructs and incumbers the free use and enjoyment of the land,. *60it follows that a person selling land thus incumbered, and covenanting that it is not, must be held to perform his covenants by its removal, or respond in damages. The seller may protect himself by excepting such incumbrances from the operation of the covenants of his deed.
We think our judgment is sustained by the weight and current of modem cases, and is supported by the better reason. The petition is overruled.