that the lien of the mortgage was superior | Hamilton, 20 Mont. 343, 51 Pac. 161. This to a subsequent tax lien based on an assess- is a case wherein it was held that, where a ment of the identical property covered by license was required for the conducting of the mortgage. I concede that such holding a certain occupation, and such license is was wrong; there can be no question but made a lien upon the property used in such that the tax upon property can be made a occupation, such statute makes such license lien thereon superior to any other lien prior a lien upon such property superior to any or subsequent against the identical prop-mortgage lien against the same property. èrty taxed; and the Federal court, in revers- While it does not appear whether the morting the lower court, did what there is ample gage involved antedated the license lien, authority to support. It appearing, there- yet, conceding that it did, it is a far differfore, that the real question before that ent situation than is presented in this case. court was not the question presented upon There are many liens against personal propthis appeal, all statements in such opinion, erty which, owing to the nature of the which go farther than was necessary to de-lien, should take precedence over any mortcide the particular question before that court, should be treated as but obiter dic tum. The majority opinion states that "a similar conclusion is reached in Michigan under a statute somewhat similar to ours," and cites Crawford v. Koch, 169 Mich. 372, 135 N. W. 339. An examination of that case reveals that the holding therein has not the remotest bearing upon the question now before us. There was a statute in Michigan providing that personal property should be assessed against the person in possession thereof, regardless of whether such person was the owner or not. The property in question in the Michigan case was ten pianos. These pianos had been in the possession of one S., and were in his possession at the time when they were assessed for taxation, though the pianos belonged to another party. The taxes were assessed and levied against S. and, under such statute, became a lien against these pianos. Not only that, but the other personal taxes of S. became a lien upon these pianos, as well as upon any other property in S.'s possession. After such taxes had become a lien upon the personal property in S.'s possession, the true owner of such property, who, by placing the pianos in S.'s possession, had allowed them to become subject to such tax lien, sold the pianos to the plaintiff Crawford. Thereafter they were seized and taken out of Crawford's possession by the officers, under the alleged tax lien, and Crawford brought this action to recover the possession of such pianos. It will thus be seen that the question presented was the validity of a statute under which property could be assessed in the name of one not the owner thereof, but who was in the possession thereof, and under which statute any personal property in one's possession became subject to a lien for all the personal property taxes of such person. There is absolutely no question of priority of liens, and, as before stated, the decision has no bearing upon the question before us at this time. Reference is also made to Burfiend v. gage on the same property, such as a tax lien for taxes upon the identical property, or, as held in some states, an agister's lien upon live stock; such also would be a seed grain lien, a thresher's lien, or a blacksmith's lien. The case of Reynolds v. McMillan, 43 Neb. 183, 61 N. W. 699, is cited. The decision in this case rests upon that of Reynolds v. Fisher, 43 Neb. 172, 61 N. W. 695. An examination of this case reveals that their statute is like that of Minnesota, and that the court construed the same exactly as I believe our statute should be construed. It in no manner supports the views of the majority of this court. The case of Mills v. Thurston County, 16 Wash. 378, 47 Pac. 759, is cited. The sole question in that case was whether or not, where a stock of goods had been assessed for taxes and a part of the same afterwards sold in the regular course of business and other goods intermingled with the remainder, and such stock of goods, including the new goods, sold to another party after the time when, under the statute, it was declared the tax should be a lien upon the personal property of the owner, such stock of goods in the hands of said second partynot only the remainder of the goods taxed, but the new goods mixed therewith-could be held for such taxes. The court held that all of said goods were liable for such taxes. It will thus be seen that, in this case, there was no question of the priority of tax liens over other liens, and the decision therein in no manner bears upon the question now before us. So with the later case of Porter v. Yakima County, 77 Wash. 299, 137 Pac. 466. It has absolutely no bearing upon the question now before us. In the case of Bridewell v. Morton, 46 Ark. 73, also cited in the majority opinion, the sole question was whether, where a party owned various classes of personal property and had been assessed therefor, and the tax had become a lien against all of such property, and such party had afterwards sold a part thereof, such part, in the hands of the purchaser, could be holden for all of the former owner's personal property tax. In this case the court held that it could not be so holden, but that each class of personal property could be holden for the tax against such class. It will thus be seen that this decision, if it has any bearing whatsoever upon the question now before us, would be an authority against the proposition that a threshing machine in the hands of one who purchased same from the party owning same at the time it was taxed could be holden for any tax of the former owner, excepting such tax as was levied against that class of property to which the threshing machine belonged; and certainly there is nothing in this decision in any manner touching the real question before us, to wit, whether or not a tax lien is superior to prior liens against other personal property. There is also cited Morey v. Duluth, 75 Minn. 221, 77 N. W. 829. All that is holden in this case is that a real estate tax for special improvements takes priority over a mortgage against the real estate, exactly the same as the ordinary real estate tax lien takes priority over other liens and encumbrances against such real estate. Remembering that the right to a lien for taxes is to be found in the express provision of the statute, and that the provisions of such statute should not be enlarged by implication, it would seem that this statute should be construed to mean simply this: Taxes assessed upon personal property shall, from and after December 1st in each year, be a first or superior lien on all of the personal property of the person as against any and all liens that may be created against such property after such date. The word "first" as used in our statute should be construed as meaning nothing more nor less than "superior;" and we should hold it was not intended to make this lien superior to liens already against such property, but simply to make it superior to any and all liens that may thereafter be placed upon such property. By so construing it, no unconscionable results will follow, and the statute will also be practicable in its workings. While it is clear that the legislature might make the tax upon any item of personal property a lien superior to all other liens, either prior or subsequent, upon such item of property, yet, unless the express words of the statute so provide, it should not be held that the statute makes it superior to those prior in date of time even as against the particular property assessed. I am therefore of the opinion that we 'should hold that this statute means nothing more nor less than that the tax assessed against any personal property does, upon the 1st day of December thereafter, become a lien against not only the particular item taxed and still owned by such party, but against each and every piece of personal property then owned by such party, even though acquired after the date of assessment; that such lien should stand as a first or superior lien from the said 1st day of December as against any and all liens thereafter created or sales thereafter made. If the legislators intended it to be a first lien over all encumbrances and liens, whether prior or subsequent, they should have used unambiguous language. Note. As to existence of railroad right of way, public highway, or private way across land at time of conveyance as breach of covenant, see notes to Van Ness v. Royal Phosphate Co. 30 L.R.A. (N.S.) 833, and Sandum v. Johnson, 48 L.R.A. (N.S.) 619, and other notes there referred to. See also Sav. & T. Co. 51 L.R.A. (N.S.) 428, as to note to First Unitarian Soc. v. Citizens' existence of water right on land at time of conveyance as breach of covenant. Messrs. William O. Vertrees and John | 47 S. W. 189; Maupin, Marketable Title to J. Vertrees, for appellant: The deed to plaintiff contains express warranties as to seisin and encumbrances, and he can recover even though he had knowledge that these easements belonged to the railroad company and to Mr. Ryman, instead of believing that they were merely rented by them. Note to Browne v. Taylor, 4 L.R.A. (N.S.) 309; note to Van Ness v. Royal Phosphate Co. 30 L.R.A. (N.S.) 844; Cornelius v. Kinnard, 157 Ky. 50, 162 S. W. 524. A railroad right of way over land conveyed is a breach of the covenants against | encumbrances in the deed conveying it. Even if the presence of the railways enhances the value of the land, inasmuch as they constitute a breach of the covenant against encumbrances, the complainant is entitled to recover nominal damages and the costs of the case. Real Estate, § 127; Rawle, Covenants, § 83; First Unitarian Soc. v. Citizens' Sav. & T. Co. 162 Iowa, 389, 51 L.R.A. (N.S.) 428, 142 N. W. 87; Bennett v. Booth, 70 W. Va. 264, 39 L.R.A. (N.S.) 618, 73 S. E. 909; Stuhr v. Butterfield, 151 Iowa, 736, 36 L.R.A. (N.S.) 321, 130 N. W. 897; Rollo v. Nelson, 34 Utah, 116, 26 L.R.A. (N.S.) 315, 96 Pac. 263; Weller v. Fidelity Trust & S. V. Co. 23 Ky. L. Rep. 1136, 64 S. W. 843; Clark v. Mossman, 58 Neb. 87, 78 N. W. 399; Omaha Southern R. Co. v. Beeson, 36 Neb. 361, 54 N. W. 557; Chicago, R. I. & P. R. Co. v. Shephard, 39 Neb. 525, 58 N. W. 189; Huyck v. Andrews, 113 N. Y. 81, 3 L.R.A. 789, 10 Am. St. Rep. 432, 20 N. E. 581; Wilson v. Cochran, 46 Pa. 229; Scribner v. Holmes, 16 Ind. 142; Kutz v. McCune, 22 Wis. 628, 99 Am. Dec. 85; Burbach v. Schweinler, 56 Wis. 386, 14 N. W. 449; Van Ness v. Royal Phosphate Van Ness v. Royal Phosphate Co. 30 L.R.A. (N.S.) 844, note, Ann. Cas. 1912C, 650, note; 11 Cyc. 1116; 3 Washb. Real Prop. 3d ed. 391, 396; Beach v. Miller, 51 Ill. 206, 2 Am. Rep. 290; Farrington v. Tourtelott, 39 Fed. 738; Pryor v. Buffalo, 197 N. Y. 123, 90 N. E. 423; Pierce v. Co. 60 Fla. 284, 30 L.R.A. (N.S.) 833, 53 Houghton, 122 Iowa, 477, 98 N. W. 306; So. 381, Ann. Cas. 1912C, 647; Desvergers Barlow v. McKinley, 24 Iowa, 69; Kellogg | v. Willis, 56 Ga. 515, 21 Am. Rep. 289; ` v. Ingersoll, 2 Mass. 97; Burk v. Hill, 48 Moore v. Johnston, 87 Ala. 220, 6 So. 50; Ind. 52, 17 Am. Rep. 731; Butler v. Gale, Brown v. Young, 69 Iowa, 625, 29 N. W. 27 Vt. 739; Van Wagner v. Van Nostrand, 941; Whitbeck v. Cook, 15 Johns. 483, 8 19 Iowa, 422; Kellogg v. Malin, 50 Mo. Am. Dec. 272; Wilson v. Cochran, 46 Pa. 496, 11 Am. Rep. 426; Herrick v. Moore, 229; Smith v. Hughes, 50 Wis. 620, 7 N. W. 19 Me. 313; Lamb v. Danforth, 59 Me. 322, 653; Memmert v. McKeen, 112 Pa. 315, 4 8 Am. Rep. 426; Pilcher v. Atchison, T. & Atl. 542; Janes v. Jenkins, 34 Md. 1, 6 Am. S. F. R. Co. 38 Kan. 516, 5 Am. St. Rep. Rep. 300; Pomeroy v. Chicago & M. R. Co. 770, 16 Pac. 945; Whiteside v. Magruder, 25 Wis. 641; Ireton v. Thomas, 84 Kan. 75 Mo. App. 364. 70, 32 L.R.A. (N.S.) 737, 113 Pac. 306; Lallande v. Wentz, 18 La. Ann. 289; Haldane v. Sweet, 55 Mich. 196, 20 N. W. 902; Harrison v. Des Moines & Ft. D. R. Co. 91 Iowa, 114, 58 N. W. 1081; Holmes v. Danforth, 83 Me. 139, 21 Atl. 845; Denman v. Mentz, 63 N. J. Eq. 613, 52 Atl. 1117; Bacharach v. Von Eiff, 74 Hun, 533, 26 N. Y. Supp. 842; Bonebrake v. Summers, 8 Pa. Super. Ct. 55; Re Whitlock, 32 Barb. 48; Ake v. Mason, 101 Pa. 17; Hubbard v. Norton, 10 Conn. 422; Butler v. Gale, 27 Vt. 739; Bourg v. Niles, 6 La. Ann. 77; Neeson v. Bray, 46 N. Y. S. R. 914, 19 N. Y. Supp. 841; Hymes v. Estey, 116 N. Y. 501, 15 Am. St. Rep. 421, 22 N. E. 1087, 133 N. Y. 342, 31 N. E. 105; Howell v. Northampton R. Co. 211 Pa. 284, 60 Atl. 793; Patton v. Quarrier, 18 W. Va. 447; Barre v. Fleming, 29 W. Va. 314, 1 S. E. 731; Newmyer v. Roush, 21 Idaho, 106, 120 Pac. 464, Ann. Cas. 1913D, 433; Schurger v. Moorman, 20 Idaho, 97, 36 L.R.A. (N.S.) 313, 117 Pac. 122, Ann. Cas. 1912D, 1114; Crans v. Durdall, 154 Iowa, 468, 134 N. W. 1086; Geren v. Caldarera, 99 Ark. 260, 138 S. W. 335; Sandum v. Johnson, 122 Minn. 368, 48 L.R.A. (N.S.) 619, 142 N. W. 878, Ann. Cas. 1914D, 1007; Goodman v. Wadhams v. Swan, 109 Ill. 46; Van Ness v. Royal Phosphate Co. 30 L.R.A.(N.S.) 744, note. The measure of damages is the diminution in value by reason of the presence and location of these railways. 11 Cyc. 1166; 8 Am. & Eng. Enc. Law, 2d ed. 179; 2 Sutherland, Damages, § 623. Mr. Samuel N. Harwood, for appellee: Physical conditions of land are not encumbrances within the meaning of covenants against encumbrances. Hines v. State, 126 Tenn. 5, 42 L.R.A. (N.S.) 1138, 149 S. W. 1058; Robertson v. Mt. Olivet Cemetery Co. 116 Tenn. 221, 93 S. W. 574; Gardner v. Swan Point Cemetery, 20 R. I. 646, 78 Am. St. Rep. 897, 40 Atl. 871; Waldron's Petition, 26 R. I. 84, 67 L.R.A. 118, 106 Am. St. Rep. 688, 58 Atl. 453; Thompson v. Hickey, 59 How. Pr. 434; Stewart v. Garrett, 119 Ga. 386, 64 L.R.A. 99, 100 Am. St. Rep. 179, 46 S. E. 427; Perry v. Williamson, Tenn., Heilig, 157 N. C. 6, 36 L.R.A. (N.S.) 1004, | Sutherland and Graves, the then owners of 72 S. E. 866. Mr. Louis Leftwich also for appellee. the lot, for the consideration of $1,000, conveyed to Thomas G. Ryman a right of way along the river front on this lot from Neil, Ch. J., delivered the opinion of the its northern boundary to within 55 feet of court: its southern boundary, subject to several reservations, only two of which need be mentioned. One of these was that Sutherland and Graves were to have the right to cross the track, with a "movable track," so as to permit them to draw up and let down timber and lumber from their factory, but not in a manner to obstruct the proper use of the road by the railway company; the other was the right to load and unload cars on the track, but not so as to conflict with the operation of Ryman's boats and elevators. The owners of the lot, when using the cars on the Ryman track for industries located on said lot, paid, as did all other persons, $1 per car for any car of lumber loaded and unloaded on the said track, and more per car for all other kinds of mer was cheaper than hauling the merchandise in wagons to and from the landing. The contention of the complainant is that these railroads are encumbrances within the terms of the warranty, and that, as located, they diminish the value of the property at least $10,000. The defendant contends that the railroads are not encumbrances within the meaning of the deed, and that, as a matter of fact, they do not diminish the value of the property at all. The bill in the present case was filed to recover of defendant damages for breach of a general covenant of warranty, and against encumbrances, contained in a deed which defendant made to complainant on October 14, 1911, for certain land lying in East Nashville on the bank of Cumberland river, just north of the Woodland street bridge. The action is based on the fact that, when the deed was made, there were two railway tracks and rights of way on the lot, as follows: The Louisville & Nashville Railroad Company owned a track and right of way running across the lot in a diagonal direction, thence south to other lots and industries located thereon, the track at its northern end joining another track of the railway at Main street, in East Nashville. The con-chandise. But the evidence shows that this veyance was of a strip of ground sufficiently wide for the construction of a single track railroad, and it provided that, in case the said strip of ground should ever cease to be used for railroad purposes, the title should revert to the makers of the deed, William Sutherland and Charles Graves, the predecessors in title of defendant Black. The consideration was $3,000. This instrument was made May 11, 1889, and filed for registration in Davidson county May 15th of the same year, and duly registered. Subsequently, on the 17th of February, 1904, the Standard Lumber & Box Company, then the owners of the lot, supplemented the previous instrument by definitely fixing the limits of the right of way at 25 feet; that is to say, 12 feet on each side of the track. This deed was registered in Davidson county April 19, 1914. There was also a spur track built by the Standard Lumber & Box Company, running out from the diagonal track above mentioned in an eastwardly direction across the lot. The diagonal track referred to was constructed long prior to 1904, and was used by the Louisville & Nashville Railroad Company as a spur track from its main line to numerous industries lying to the south of the lot in question, also to industries operated on the lot in question. The other track is known as the Ryman track; the facts concerning which are as follows: The Ryman elevator is located on the bank of the Cumberland river below this lot, and Mr. Ryman and the Louisville & Nashville Railroad Company desired to extend the "water track" of the railroad company from the elevator up the river, over the frontage of this lot. On July 5, 1903, There is much evidence on both sides of the question, but we are of the opinion that the weight of the evidence shows that the railroads are not only not injurious to the lot, but of great benefit. The lot is flat and low, lying o.. the bank of the river, and is useful only for factories. The evidence shows that without the roads this lot would be practically useless, and that these roads add to its value from 25 to 50 per cent. On the other hand, there is evidence to the effect that the roads, considering the way in which they are located or placed on the land, are an injury to it. But, as stated, the weight of the evidence decidedly sustains the conclusion that the roads are of great benefit to the land. It follows, therefore, that complainants are not entitled to any substantial damages. It is insisted, however, that at all events the roads are technically encumbrances, and that complainants are entitled to recover their costs. There is a controversy in the authorities on this subject. In the New England states it is held that even a public road running across the land, in use, open and visible, is an encumbrance, falling within a covenant against encumbrances, and must. be accounted for in damages. Kellogg v. roads are excluded in some other states, not on the ground that their existence is open and obvious, but because the court judicially knows that they are necessary, and hence useful. Harrison v. Des Moines & Ft. D. R. Co. 91 Iowa, 114, 58 N. W. 1081; Killen v. Funk, 83 Neb. 622, 131 Am. St. Rep. 658, 120 N. W. 189; Sandum v. Johnson, 122 Minn. 368, 48 L.R.A. (N.S.) 619, 142 N. W. 878, Ann. Cas. 1914D, 1007. The same rea soning was applied to the existence of a drainage ditch in Stuhr v. Butterfield, 151 Iowa, 736, 36 L.R.A. (N.S.) 321, 130 N. W. 897, and to a public sewer 5 feet under ground in First Unitarian Soc. v. Citizens Sav. & T. Co. 162 Iowa, 389, 51 L.R.A. (N.S.) 428, 142 N. W. 87. In the following cases it is held that the existence of a railroad right of way is an encumbrance, regardless of its open and obvious character: Pierce v. Houghton, 122 Iowa, 477, 98 N. W. 306; Beach v. Miller, 51 Ill. 209, 2 Am. Rep. 290; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Tuskegee Land & Secur. Co. v. Birmingham Realty Co. 161 Ala. 542, 23 L.R.A. (N.S.) 992, 49 So. 378. The Missouri cases were followed to same effect in Farrington v. Tourtelott (C. C.) 39 Fed. 738, as substantially binding on the point, but with observations indicating that the doctrine did not wholly meet the approval of the court. Pilcher v. Atchison, T. & S. F. R. Co. 38 Kan. 516, 5 Am. St. Rep. 770, 16 Pac. 945, is cited in the brief before us, but there was no question of knowledge from the obvious existence of the railroad discussed. Pryor v. Buffalo, 197 N. Y. 123, 90 N. E. 423, is also cited, but the facts in that case were such as to render it inapplicable to the point we now have under examination. The covenant was of a very special character; and, while it appeared that the covenantee had knowledge of the existence of the railway on the ground contracted for, it was that very ground that had to be furnished by the city, and hence compliance with the covenant necessarily involved the removal of that railway and the delivery of the land to the covenantee. Still we do not doubt that, from the reasoning of the New York cases on the subject of public roads, the doctrine applicable to that class of improvements could not be extended to railroads. On the other hand, it is held in the following cases that existing railways in actual operation stand on the same ground as to their public and obvious character as do public highways: Van Ness v. Royal Phos phate Co. 60 Fla. 284, 30 L.R.A. (N.S.) 833, 53 So. 381, Ann. Cas. 1912C, 647; Goodman v. Heilig, 157 N. C. 6, 36 L.R.A. (N.S.) 1004, 72 S. E. 866; Ex parte Alexander, 122 Ingersoll, 2 Mass. 97; Hubbard v. Norton, 10 Conn. 422; Alling v. Burlock, 46 Conn. 504; Herrick v. Moore, 19 Me. 313; Lamb v. Danforth, 59 Me. 322, 8 Am. Rep. 426; Butler v. Gale, 27 Vt. 739; Prichard v. Atkinson, 3 N. H. 335; Haynes v. Stevens, 11 N. H. 28. The general reason assigned is that it deprives the owner of that dominion over the land to which he is entitled. A different view is taken in other states. Memmert v. McKeen, 112 Pa. 315, 4 Atl. 542, and cases cited; Howell v. Northampton R. Co. 211 Pa. 284, 60 Atl. 793; Whitbeck v. Cook, 15 Johns. 483, 8 Am. Dec. 272; Huyck v. Andrews, 113 N. Y. 81, 3 L.R.A. 789, 10 Am. St. Rep. 432, 20 N. E. 581; Hymes v. Estey, 116 N. Y. 501, 15 Am. St. Rep. 421, 22 N. E. 1087; Hymes v. Estey, 133 N. Y. 342, 31 N. E. 105; Jordan v. Eve, 31 Gratt. 1; Trice v. Kayton, 84 Va. 217, 10 Am. St. Rep. 836, 4 S. E. 377; Patton v. Quarrier, 18 W. Va. 447; Barre v. Fleming, 29 W. Va. 314, 1 S. E. 731; Desvergers v. Willis, 56 Ga. 516, 21 Am. Rep. 289; Haldane v. Sweet, 55 Mich. 196, 20 N. W. 902. The ground on which these cases rest is that when the road is a public one, actually open and in use, the parties must be presumed to have taken it into account in fixing the price of the land, and therefore the covenant must be construed as not intended to embrace the easement. The same rule is followed in some other states as to other open and visible easements. In Kutz v. McCune, 22 Wis. 628, 99 Am. Dec. 85, it appears that the easement held not to be an encumbrance was the right to overflow the land with a mill pond; the overflow being, of course, open and visible. The court said that this was equally as obvious as a public road, and that, in case of a public road, the doctrine did not rest on the fact that the road was in favor of the public, but that the easement was obvious and notorious in its character, and therefore the purchaser must be presumed to have seen it, and to have fixed his price for the land with reference to the situation as thus presented. The same rule was followed in Bennett v. Booth, 70 W. Va. 264, 39 L.R.A. (N.S.) 618, 73 S. E. 909, the easement complained of there being the right to overflow by a milldam (Ireton v. Thomas, 84 Kan. 70, 32 L.R.A. (N.S.) 737, 113 Pac. 306, a levee covering several acres; Schurger v. Moorman, 20 Idaho, 97, 36 L.R.A. (N.S.) 313, 117 Pac. 122, Ann. Cas. 1912D, 1114, an irrigation ditch; Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300, the right to the use of open windows looking across a lot which the vendor of the latter had retained, at which time the windows were obvious. Public |