63 Me. 447 | Me. | 1874
The presiding justice instructed the jury that the respondents “have a right to the dam as it was at the date of their deeds; and if it became out of repair and by that means let off the water for a year or a series of years subsequent to that, and they then chose to tighten the dam, they would have a legal right to do so, because they would have a right to all that was conveyed to them and just what was conveyed to them. ,. . The onlyques
The instruction is in strict accordance with the principle established by a large multitude of decisions including several in our own State.
By his deed of November 3, 1818, Quimby, under whom both parties claim, conveyed by metes and bounds the east third of the Page mill privilege and dam, with certain restrictions as to the use of the water. By that of November 19, 1838, he conveyed “all that part of said privilege which I deeded November 3, 1818, which I then reserved, to wit, — the right to restrict the said Taylor in said privilege of water for no other purpose than for a tannery ; and the said Orin E. Taylor shall have and occupy all the rights and privileges of the one-third of the Page privilege afore-' said together with the right of flowage, the same as though no restrictions had been made.”
These deeds taken together granted not only what is expressly mentioned therein as they then existed, but by implication of law, all things necessary to the beneficial use and reasonable enjoyment of the premises mentioned, which Quimby then owned and could convey; and the manner in which this privilege was for so long a time openly and notoriously used and permitted to be used is swift evidence of what the parties to the grant intended and understood to pass by it. Quimby then owned the whole territory including the meadow flowed which subsequently came to be owned by the complainant. When he conveyed a part to Taylor the latter took it with all the necessary benefits which appeared at the time to belong to it, as between it and the remainder, retained by Quimby, among which was the right to flow the remainder as the dam then flowed. A subsequent conveyance of any portion or all of the remainder by Quimby could in nowise
The reservation in relation to flowing in Quimby’s deed to Dunn, of December 27, 1848, and in Dunn’s deed to the complainant, of December 27, 1852, could not restrict the rights of the defendant, Taylor, previously acquired. The testimony offered by the complainant and excluded, was not material to the issue and was rightfully excluded. Though Quimby bound himself not to flow the complainant’s meadow “between the fifteenth of May and the first of September in each year,” this could not bind the defendant Taylor — and “the gravamen of the complaint is” (using the language of his counsel) “that the complainant’s meadow has been flowed between the fifteenth of May and the first of September.”
In a process of this nature, all the owners of the dam must be joined as respondents. Moor v. Shaw, 47 Maine, 88. The defendant, Taylor, by his deeds from the complainant’s grantor has the right to flow the complainant’s meadow without compensation. It is therefore immaterial to the complainant whether or not the other defendants have the right. If that had become essential to the defence we should find no difficulty in finding it in the same deeds. Exceptions overruled.