(dissenting). — I can not agree either to the reasoning or to the conclusion of the majority. The covenant in this case is a general one, and covers all incumbrances of whatsoever kind or character, and insures quiet enjoyment in the purchaser of all the land covered by the deed. Conceding arguendo that the covenant of seisin and of further assurance also embraced within the general warranty were not broken, although control and supervision of the land covered by the ditch passed for all time to the board of supervisors of the county (see sections 1989-a21 *744-a25-a40 of the Code Supplement), yet the majority must agree, I think, that plaintiff has lost the enjoyment of the land which was taken for the large ditch described in the opinion, and his land is burdened by a permanent easement which the jury in this ease under proper instructions found was an injury rather than a benefit to the land. It is erroneous to assume that all lands included in a drainage district are benefited by the improvement. Every ditch must have an outlet, and this ditch may be a damage to the land taken. The drainage law itself so indicates, for it provides for the allowance of such damages. See sections 1989-a4-1989-a7. Without provision for such compensation, the law would undoubtedly be unconstitutional. Whether or not lands included within a district are damaged or benefited is to be determined, not as a mere theory or abstraction, but as. a fact depending upon the circumstances of each particular case. The law contemplates that lands may be damaged by the establishment of a drainage district, and it is not for the courts to say as a matter of law that all lands included in the district are benefited thereby, as lands are benefited by the establishment of highways. Moreover, the landowner has to pay for all the benefits to his land by assessment made to meet the cost of improvement. Railways are a benefit to all lands, for without means of communication and transportation none of the lands on these our-western prairies would be of much value. Yet a railway right of way is almost, if not quite, universally held to be an incumbrance. Beach v. Miller, 51 Ill. 206 (2 Am. Rep. 290); Quick v. Taylor, 113 Ind. 540 (16 N. E. 588); Purcel v. Hannibal, 50 Mo. 504. Our own cases are to the same effect: Jerald v. Elly, 51 Iowa, 321; Barlow v. McKinley, 24 Iowa, 69; Van Wagner v. Van Nostrand, 19 Iowa, 422. Practically every form of easement has been held to be an incumbrance. Without making a complete list of cases so holding, I cite the following: Ensign v. Colt, 75 Conn. 111 (52 Atl. *745829, 946); Weiss v. Binnian, 178 Ill. 241 (52 N. E. 969); Teague v. Whaley, 20 Ind. App. 26 (50 N. E. 41); Smith v. Davis, 44 Kan. 362 (24 Pac. 428); Spurr v. Andrew, 6 Allen (Mass.) 420; Denman v. Mentz, 63 N. J. Eq. 613 (52 Atl. 1117); Huyck v. Andrews, 113 N. Y. 81 (20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432); Stambaugh v. Smith, 23 Ohio St. 584; Edmund’s Appeal, 8 Atl. (Pa.) 31. The rule has been applied to private ways. Sherwood v. Johnson, 28 Ind. App. 277 (62 N. E. 645); Wilson v. Cochran, 46 Pa. 229; Russ v. Steele, 40 Vt. 310; Butt v. Riffe, 78 Ky. 352; Bridger v. Pierson, 1 Lans. (N. Y.) 481. And the same rule applies to drains and water rights. Morgan v. Smith, 11 Ill. 194; Medler v. Hiatt, 8 Ind. 171; Harrington v. Bean, 89 Me. 470 (36 Atl. 986); Isele v. Arlington Bank, 135 Mass. 142; Clark v. Conroe, 38 Vt. 469. Even building restrictions have been held to be incumbrances. Hatcher v. Andrews, 5 Bush (Ky.) 561; Locke v. Hale, 165 Mass. 20 (42 N. E. 331); Mackey v. Harmon, 34 Minn. 169 (24 N. W. 702); Foster v. Foster, 62 N. H. 46; Greene v. Creighton, 7 R. I. 1. See, also, the following authorities bearing upon the same propositions: Gawtry v. Leland, 31 N. J. Eq. 385; Spurr v. Andrews, 5 Allen (Mass.) 420; Ginn v. Hancock, 31 Me. 42; Smith v. Sprague, 40 Vt. 43. The last case is closely in point. In no case has it ever been held that an easement such as the one in question is not an incumbrance, and the reason for this no doubt is that the grantee in the deed will be obligated to pay for the benefit received by contributing his part of the expense of the improvement.
There is very decided conflict in the authorities as to whether or not a public highway is an incumbrance. The majority of the eases seem to hold that it is. See cases collected and cited in 11 Cyc., 1115. In Huyck v. Andrews, 113 N. Y. 85 (20 N. E. 582, 3 L. R. A. 791, 10 Am. St. Rep. 433), it is said:
*746The deed entitled her to a perfect title to all the land which it purported to convey, free from any incumbrance thereon; and it is no defense to her action that at the time she took it she knew of some incumbrance or some defect in the title. Proof of such knowledge would be quite important in an action brought by her grantor to reform the deed, but, as a defense to an action upon the covenants contained in the deed, it is of no importance whatever. That the covenant against incumbrance is broken by an outstanding easement of any kind is perfectly well established by the authorities in this state, and there is no hint in any of them that knowledge by the grantee of the existence of the easement at the time of the conveyance makes any difference. An easement is an interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another. An incumbrance ... is said to be 'every right to or interest in the land, to the diminution of the value of the land, but consistent with the passage of the fee by the conveyance’ (Prescott v. Trueman, 4 Mass. 627 [3 Am. Dec. 246]); and the breach of such a covenant takes place at the instant the conveyance is made. There is in this state one exception to the rule that the existence of an easement constitutes a breach of the convenant against incumbrances, and that is in the case of a highway. It was held in Whitbeck v. Cook, 15 Johns. (N. Y.) 483 (8 Am. Dec. 272), that it is not a breach of the covenants that the grantor was lawful owner of the land, was well seised, and had full power to convey, that part of the land was a public highway, and was used as such; and that decision has ever since been regarded as the law in this state. It was based upon the peculiar nature of highway easements, and the general understanding with reference to them. Spencer, J., writing the opinion, said: 'It must strike the mind with surprise that a person who purchases a farm through which a public road runs at the time of 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 on his grantor, and complain that the general covenants in the deed have been broken by the existence of what he saw *747when he purchased, and what must have enhanced the value of the farm. It is hazarding little to say that such an attempt is unjust and inequitable and contrary to the universal understanding of both vendors and purchasers. If it could succeed, a floodgate of litigation would be opened, and for many years to come this kind of action would abound. These are serious considerations, and this court ought, if it can consistently with law, to check the attempt in. the bud.’ These reasons are not applicable to other easements, and the rule of that case has not been applied to any other. While there was not in the deed there under consideration any covenant against incumbrances, yet the ratio decidendi is equally applicable to such a covenant; and since that decision it has always been understood in this state that such a covenant is not broken by the existence of a highway. In McMullin v. Wooley, 2 Lans. (N. Y.) 394, it was held that the right to take water by means of a pipe-laid beneath the ground from a spring on the premises conveyed constituted a breach of the covenant against incumbrances. In Roberts v. Levy, 3 Abb. Prac. (N. S.) 311, it was held that a covenant entered into between owners of adjoining city lots for themselves and all claiming under them, to the effect that all buildings erected upon the lots should be set back a specified distance from the street on which the lots fronted, constituted an incumbrance upon the lots to which it applied; and if subsequently conveyed by deed containing the usual covenant against incumbrances, a breach of the latter covenant arises the instant the deed is executed. In Rea v. Minkler, 5 Lans. (N. Y.) 196, it was held that the existence and use of a private right of way over the granted premises was a breach of warranty; and Blake v. Everett, 1 Allen (Mass.) 248; Russ v. Steele, 40 Vt. 310, and Wetherbee v. Bennett, 2 Allen (Mass.) 428, are to the same effect. ... In Mohr v. Parmelee, 43 N. Y. Super. Ct. 320, a party wall was wholly on one of two contiguous lots of land yet subject to appropriation and use for all the purposes of a party wall, by the proprietor of the other by reason of a prior grant, and it was held that it constituted an incumbrance upon the land on which it stood; that, when a title is incumbered by such an easement, a right of action immediately accrues; and that *748whether the covenantee had or had not knowledge of notice of its existence is immaterial, both as regards his right of action and the question of damages. In 2 Greenleaf on Evidence, section 242, it is said: ‘A public highway over the land, a claim of dower, a private right of way, a lien by judgment or by mortgage, or any other outstanding elder and better title is an incumbrance, the existence of which is a breach of this covenant. In these and the like cases it is the existence of-the incumbrance which constitutes the right of action, irrespective of any knowledge on the part of the grantee, or of any eviction of him.’ In 2 Dart on Vendors and Purchasers (6th Ed.) 886, the following language is used: ‘Although the fact of the purchaser having notice of the defect can not prevent the covenants for title from extending to it, since extrinsic evidence is inadmissible for the purpose of construing a deed, yet, in an action to. rectify the covenant, that fact can be used as the basis of an inference that it- could not have been the intention of the parties that the covenant should include a defect of which both parties were aware.’ To the same effect are the following authorities: Beach v. Miller, 51 Ill. 207 (2 Am. Rep. 290); Barlow v. McKinley, 24 Iowa, 70; Gerald v. Elley, 45 Iowa, 322; Butt v. Riffe, 78 Ky. 352; Burk v. Hill, 48 Ind. 52 (17 Am. Rep. 731); Kellogg v. Malin, 50 Mo. 496 (11 Am. Rep. 426). In Mott v. Palmer, 1 N. Y. 564, the action was to recover damages for breach of the covenant of seisin because the grantor did not at the time of the conveyance own certain fence rails constituting part of a fence; that Bronson, J., writing one of the opinions, said: ‘That parol evidence was inadmissible to control the legal effect and operation of the deed is too plain a proposition to be disputed. If the plaintiff had been told at the time that Brown owned the rails, and more, if the rails had been expressly excepted by parol from the operation of the grant and covenant, it would have been no answer to the action. A deed can not be contradicted in its legal effect any more than it can in its terms.’
We have followed the New York rule laid down by the minority of the courts in Harrison v. Railway Co., 91 Iowa, 114. A careful perusal of that case will show that it is *749based largely upon reasons of public policy which are in no manner applicable to this case. The general rule is that knowledge on the part of the purchaser of an incumbrance on the land will not prevent him from recovering damages on account of it. See cases collected in 11 Cyc. 1066, 1067, 1068. Whatever the rule in other states, we are unalterably committed to the doctrine that knowledge is no defense. That I am not mistaken in this will, I think, appear from a review of our cases. In Doyle v. Emerson, 145 Iowa, 361, it is said: “The covenant in the deed against incumbrances was broken as soon as made, and it was not material that the grantee had notice of such incumbrance when he purchased. Harwood v. Lee, 85 Iowa, 622 (52 N. W. 521); Yancey v. Tatlock, 93 Iowa, 386.” A railway right of way is an incumbrance. Pierce v. Houghton, 122 Iowa, 477. And, of course, the grantee had knowledge of its existence, but action will lie in his favor for breach of the covenant of warranty. See, also, Flynn v. Coal Co., 72 Iowa, 738. In the latter case it is said: “The conveyance executed by the plaintiff was a warranty deed, without any reservations or exceptions. The defendant pleaded as a counterclaim that the plaintiff had, prior there, conveyed to the Burlington & Missouri Bailroad Company the right of way across said premises and that such road had been constructed, and was being operated. As this was not denied, the facts pleaded must be deemed true. The court found and determined that there was a breach of warranty, and that the defendant was entitled to recover the damage sustained. We think this is corerct. Van Wagner v. Van Nostrand, 19 Iowa, 422; Barlow v. McKinley, 24 Iowa, 69; McGowan v. Myers, 60 Iowa, 256. Under these authorities, the fact that the defendant had knowledge of the right of way or incumbrance is immaterial.” In Gerald v. Elley, 45 Iowa, 322, it is said, with reference to this question: “Conceding that the plaintiff knew of the incumbrance, and that he *750traded his farm for that of the defendant, this would not make the legal effect of such a contract in any wise different from what it would be if the plaintiff had paid $5,000 in cash. The question is, Did these parties contemplate the incumbrance and contract, or agree that it should be' excepted from the operation of the covenants? We feel constrained to say that under the allegations in the answer and the evidence we are compelled to answer this question in the negative. There is nothing different shown in the testimony from the very common case where a party sells ■and conveys land on which there is located a railway, the existence of which was known to the other party, and the premises are conveyed with the usual covenants without excepting such incumbrance therefrom. In such case there can be no relief because of the grantor’s negligence, or his want of legal knowledge. There is no mistake of fact in such case.” See, also, Kostendader v. Pierce, 37 Iowa, 645. In McGowan v. Myers, 60 Iowa, 259, it is said:
It is contended that the defendant should have been allowed to show upon the trial that the plaintiff knew, when he purchased the property, that the stairway was used in common, and that he purchased with reference to that fact. It is said this knowledge is no defense to the action, either partial or otherwise. See Van Wagner v. Van Nostrand, 19 Iowa, 422; Barlow v. McKinley, 24 Iowa, 69. In the first case cited, where the alleged breach of covenant consisted in the removal of a stable from the land by a tenant who had the right of removal, it is said that: ‘According to the weight of authority, it is no less a breach, if it be assumed that the plaintiff, or covenantee, knew at the time of the conveyance that the stable was the property of the tenant, and that the latter had the right of removal.’ It is not to be denied that there are cases holding the contrary doctrine. Appellant cites Leland v. Stone, 10 Mass. 459, a case where the grantor conveyed certain parcels of land, including one parcel which he had before conveyed to his son. In an action upon a breach of covenant, the jury gave nominal damages only, on the ground that the *751parcel so conveyed to the son had been inserted in the deed to the plaintiff by mistake; and the verdict was approved. If we understand the opinion in the case, it was thought the jury were authorized as chancellors to reform the deed and correct the mistake. Kutz v. McCune, 22 Wis. 628 (99 Am. Dec. 85), cited by appellant, was a case where damages were claimed for a breach of covenant because of an easement, which consisted of the right to back water on a part of the land by a milldam. It was held that no right of action would lie, because the easement obviously and notoriously affected the physical condition of the land at the time of the conveyance and therefore was not’embraced in a general covenant against incumbrances. This court, as we Have seen, has held the contrary doctrine. In the case of Barlow v. McKinley, supra, the Rock Island Bailroad was completed and in full operation upon the land, at the time the conveyance was made, and it was held that it was an incumbrance, and that the easement was a breach of the covenants in the deed, although the grantee had full knowledge of the existence of the incumbrance at the time he accepted the covenant. We think this is the ‘better rule, and adhere to the decisions made by this court. Any other holding would in our view be an invasion of the elementary rule that exceptions and reservations can not be ingrafted by parol upon the deed.
In Barlow v. McKinley, 24 Iowa, 69, it is said:
(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. Bouvier Law Dictionary. A public highway is held to be an incumbrance in all the New England states. Bawle on Covenants for Title, 115-120, and authorities cited in the notes. As to the right of way for a railroad being an incumbrance, see opinion of Bedfield, J., in Butler v. Gale, 27 Vt. 742, and see the same case as to remedy for covenantor when such incumbrance was considered and allowed for in the sale, etc. Whether a public highway is an incumbrance in this state we need not now decide; but upon both prin*752ciple and authority we hold that a right of way for a railroad is an incumbrance.
(2) Can a party recover upon a covenant against incumbrances when he had full knowledge of the existence of the incumbrance at the time he accepted the covenant? This point was decided in the affirmative by this court in Van Wagner v. Van Nostrand, 19 Iowa, 422, following the weight of authority. See the cases there cited. With that decision we are still content.
In Van Wagner v. Van Nostrand, 19 Iowa, 422, it is said:
And, according to the weight of authority, it is no less a breach if it be assumed that the plaintiff or covenantee knew at the time of the conveyance that the stable was the property of the tenant, and that the latter had the right of removal; for in an action by covenant the deed governs; and in such an action, by grantee against grantor, the latter can not, in order to defeat the operation of the' covenant, establish by parol the grantee’s knowledge of an incumbrance or defect in' the title or by parol ingraft upon the deed exceptions and reservations not therein mentioned. Wickersham v. Orr, 9 Iowa, 253; Harlow v. Thomas (strong case), 15 Pick. 66 (1833), approving Townsend v. Weld, 8 Mass. 146 (1811); Mott v. Palmer, 1 N. Y. 574, per Bronson, J.; Collingwood v. Irwin, 3 Watts (Pa.) 306 (1834); 1 Greenleaf Evidence, section 275; 2 Cow. & H. notes, Philips Evidence, 467. And see other authorities cited, and question discussed by Eawle on Covenants, 149-154. If the deed, by accident or mistake, did not embrace the contract of the parties, if it was intended by the parties to have. excepted the lease and right of the tenant, equity, on this being satisfactorily established, would correct and reform the conveyances. The defendant did not seek relief or redress in this manner.
The distinction attempted to be made by the majority between incumbrances which do, and those which do not, affect the physical condition of the property, has been repudiated by us in many of the cases heretofore cited. See in this connection Flynn v. White Breast Co., 72 Iowa, *753738; Gerald v. Elley, 45 Iowa, 322; Barlow v. McKinley, 24 Iowa, 69; aud the other cases from which quotations have been made.
To my mind it is entirely immaterial that defendant did not file any claim for damages. One reason for this doubtless was that he got full value for his land without the burden of the easement and cared not to make a claim, concluding to take his chances upon litigation. No one suggests that plaintiff ever had any right to file a claim for damages in the drainage proceedings. If defendant did not see fit to do so, this should not prejudice the plaintiff. A jury upon proper testimony found that plaintiff’s land was damaged v by the construction of the large ditch, and it is not for us to say that, no matter what the testimony, theoretically there was no damage, and no recovery can be had. On principle and authority I believe the majority are wrong in their conclusion and especially in the reasoning by which it is reached.
The case is controlled by our previous decisions, and I would affirm.