Pritchard v. Rebori

Facts

Defendant conveyed land to Plaintiff along with a covenant against incumbrances. When Plaintiff began construction of a warehouse in accordance with the specific legal description in the deed from Defendant, the Southern Railway Company notified Plaintiff that his construction was encroaching on a pre-existing right of way easement in favor of the railway. The right of way of the railway was to run 50 feet from tracks along the way. However, the portion of the right of way near Plaintiff’s property lies in a cut and there is a retaining wall built by the railway, which is only about 15 feet from the tracks. When the Defendant had his lot surveyed, the surveyor indicated the edge of the fence as the end line of the right of way and the legal description in Plaintiff’s deed reflected that misapprehension. In order to remove the incumbrance and continue building, the Plaintiff had to convey two parcels of property to the railway company, which the railway company took as consider ation for conveying to Plaintiff the portion of the right of way necessary for Plaintiff to continue construction. Thereafter, Plaintiff sued Defendant for the recovery of damages incurred as the result of the breach by Defendant of the covenant against incumbrances in the deed.