Blake v. Clark

| Me. | May 15, 1830

Weston J.

delivered the opinion of the Court at the ensuing July term in Waldo.

The demandants, having proved their pedigree, and that their ancestors died seised of the demanded premises, have established their title; unless they have parted with it to those under whom the tenant claims; or he has acquired a title by disseisin. The saw mill, without any further description, was set off by the commissioners appointed to divide the estate, to Thatcher Blake, one of the de-mandants. Doubtless by this term, the fee of the land, upon which the mill stood, would pass. Lord Coke enumerates a variety of terms, which, being used in a conveyance, carry lands ; and he states to what extent. Co. Lit. 4. b. The land passes, because included in the term used. The word mill, or molendinum, is not among those to which he adverts; and probably no authority can be adduced, in which it has been held to convey, ex vi termini, any part of the adjoining land. That upon which it stands, may be regarded as including land, over and upon which the slip, if it has one, or any other necessary projection from the mill passes. The term may embrace the fx'ee use of the head of water, existing at the time of the convey-anee, as also a right of way, or any other easement, which has been ,used with the mill, and which is necessary to its enjoyment. We are not satisfied that it can, or ought, to be further extended.

But it is urged that, taking the whole report of the commissioners together, it is manifest that they intended to set off the land defended by the tenant, to the owners of the corn and saw mills. If this did satisfactorily appear, in any part of their report, although it might be by way of recital; yet if the intent was plain, and the enjoyment of the property, and the acquiescence of all concerned, had corresponded with this construction, there does not appear to be any legal objection to giving it effect. ' In the assignment of dower to the widow, there is set out to her one half of the corn mill, and one quarter of the mill yard. This was sufficient to give her a free hold in that portion of the yard ; but the tenant does not hold under her, and her estate is probably spent. The mill yard is no where mentioned by that name, nor is it any where adverted to by them ; except in their assignment to Silas Blake. He has among other things, all the residue of lot number 96, not before set off. The commissioners seem to have been aware that this would include the mill yard ; for they proceed to except from the residue thus assigned, one acre and twenty-three rods adjoining to, and for the use and accommodation of the mills. The natural and most obvious import of those terms seems to denote an easement, to continue only so long as the mills should be occupied as such; and that the owner -of the fee would have a right to appropriate the land to any object, consistent with the easement, and to hold it discharged of the easement, when no longer wanted for this purpose. So to regard it, would be giving full effect to the language of the commissioners. And the jury have found that the subsequent use and occupation of the premises by the tenant and other owners of the mills, under whom he claims, has been in accordance with this construction. And we are of opinion, that the mill yard was by the commissioners attached to the mills, as an easement only.

There is nothing inconsistent with this view of the case, in the deed of March 10, 1807, or of December 7, 1807, under which the tenant claims; the former conveying the corn-mill with all the privileges and appurtenances thereto belonging; and the other the saw-mill, with the right to the mill-yard set off to Thatcher Blake. If land could pass as appurtenant to the mill, which is not warranted by the authorities, it is a term much moré appropriate to an easement or incorporeal hereditament, attached to a thing corporeal. Co. Lit. 121 h. ; 1 Com. Big. Appendant and Appurtenant; Leonard v. White, 7 Mass. 6. The right to the mill-yard, must be intended to be that which the party might lawfully convey. The tenant’s case derives as little support from the monuments referred to, and recitals made, in certain deeds executed by some of the demandants. They do not conflict with the title of the demandants to the fee of the premises, subject to the easement. Nor does the right of the tenant to the enjoyment of the easement, interpose any objection to their recovery in this action. Thompson v. Propr’s of Androsc. bridge, 5 Greenl. 62.

As to the title of the tenant to the fee, arising from disseisin, it has been negatived by the jury ; and we see no reason to disturb their verdict upon this point.

Upon the principles of the common law, when nul disseisin was pleaded, the demandant was entitled to judgment, upon proving the title set forth in his count. But by the statute of 1826, ch. 344, the demandant is liolden to prove that the tenant is in possession of the demanded premises, or that he withholds the same from him, which the plea was before understood to admit. The tenant by his own testimony proved himself in possession. That alone might not be sufficient to sustain the action 3 for it might be such a possession as was consistent with his right to the easement; but his erection of a potash building and a store upon the premises, and his claim to hold the whole in fee, which he urged at the trial, was evidence to justify the jury in finding, not only that he was in possession of the demanded premises, but that he withheld the same from the demandants. According to the agreement of the parties, the increased value of the land, by reason of the improvements, is to be estimated as in other cases. And the value of the land, subject to the easement, is to be ascertained, had no improvements been made on the same. The verdict is then to be amended, accordingly ; the demandants having a right,, if they shall so elect, to abandon the premises to the tenant, as the parties have stipulated.