10 N.H. 305 | Superior Court of New Hampshire | 1839
It is not perfectly clear that the defendant could maintain his defence under these pleadings, even if his construction of the deed was correct. It has been fully settled that the general issue, pleaded in a writ of entry, admits the defendant to be in possession, claiming a freehold. 8 N. H. Rep. 477, Sperry vs. Sperry; 9 N. H. Rep. 168, Gibson vs. Bailey. The statute of July 2, 1831, authorizing the defendant, in all civil actions, to plead the general issue, and to give in evidence any special matter in defence of the action, upon filing a brief statement of it, does not apply to matter in abatement of the writ, nor does it purport to change the nature of the general issue itself. It merely authorizes matter to be given in evidence under it, in certain cases, which could previously have been offered only upon being specially pleaded. It does not, therefore, take away the admission which is made, by a plea of the general issue, in a real action, that the defendant is in possession, claiming a freehold. This is further apparent from the fact, that the party who has filed a brief statement is not bound to prove or rely upon any thing contained in it, but may resort to any proof, in defence, which he could have offered under the general issue alone ; and the action may be tried as if the brief statement had never existed. The effect of the plea, and whether it admits the defendant to be in possession claiming a freehold, is, certainly, not to be determined by the shape which the del ud u t finally
There is a distinction between an exception, and a reservation. The former, it is said, is always of a part of the thing granted, but the latter is of a thing not in esse, but newly created or reserved. Co. Litt. 47, a; Shep. Touch. 80; 3 Wend. R. 635, Case vs. Haight. If the defendant was correct, in his construction of the deed, a question might arise whether the interest he claims was founded upon an exception, or upon a reservation. If the clause upon which he relies was, technically, an exception, by which he had the right to erect a building upon the land, it might, perhaps, be held that he was not only entitled to draw the water necessary for the use of it, but that he possessed a fee simple in the land itself, occupied by the building.
In Allen vs. Scott, 21 Pick. R. 25, cited for the defendant, the factory was excepted, and it was held that the land did not pass; and in Gibson vs. Brockway, 8 N. H. Rep. 465, the grant of one half of a mill was held to pass an undivided moiety of the land upon which it was situated. Notwithstanding the language of the deed is, “ reserving only to myself,” &c., if this could be construed to be an exception of so much of the land as a building to be erected should occupy, the defendant, when the part excepted was legally designated, (9 Johns. R. 100; 9 Cowen’s R. 279,) would be owner, in fee, of that part, because thus far the conveyance had no operation ; and in that case he might well defend his right under the general issue.
But if by the deed the whole land included in the boundaries in fact passed to the grantees, and the defendant had reserved only the right to place a building upon the premises conveyed, to be used for certain purposes, with a right to draw water for those purposes, as it seems to be admitted in
But no question has been made upon the pleadings, and it is ' not necessary to consider this matter farther. If the defendant’s right is, not to place a building upon the land and to enter into possession of it, but merely to draw water through it, he cannot maintain his defence under any plea.
A deed is to be construed according to the meaning of the parties. “ Quoties in verbis nulla est ambiguilas, ibi nulla expositio contra verba expréssa jienda est.” 2 Saund. R. 167. In cases of doubt, arising from the ambiguity of the language, it seems to be well settled that the construction is to be favorable for the grantee. Shep. Touch. 87; 3 Bos. & Pul. 403, Dann vs. Spurrier; 9 East's R. 15, Doe vs. Dixon; 4 Mass. R. 205, Worthington vs. Hylyer; 16 Johns. R. 172, Jackson vs. Troup. And there is no distinction, in this respect, between the language of the grant itself, and that of any exception or reservation contained in it. 10 Co. 107, Humfrey Lofield's case: 3 Dyer 376, b; 1 Plowd. 171; Shep. Touch. 100; 2 Saund. R. 166, Lanyan vs. Carne; lielverton 89, Smith vs. Newsam; 4 Taunt.
But, upon the language of the deed itself, we find no ambiguity. Nor does any arise from such extraneous circumstances as appear in the case. The clause in question reserves to the grantor the right of drawing from the pond such a portion of the water as may be necessary for fulling cloth or skins. This is clear enough, except as to the quantity, which is to be determined by the business of the defendant. The reservation is of a right to draw water, and nothing more. There is nothing about the erection of a building upon the land, or any possession of it, except so far as the drawing of water from the pond is concerned. If the defendant, at the time, had been the owner of land adjoining, upon which he had erected, or was then erecting a fulling mill, no one would have entertained a doubt what was the meaning of the parties. No one could have thought of contending for the right now claimed in the defence. If he had been, at that time, the owner of land immediately adjoining the acre conveyed, upon which a mill might conveniently have been erected, it could hardly have admitted of a question.
If the reservation extends beyond the mere right of drawing water, it must be, not from the express language of the clause, but from other facts connected with the conveyance. It appears that the defendant had not, at the time, and he has never since had, any land upon which he could have built a mill, and exercised the privilege reserved, by drawing
It is a correct principle, that where any thing is granted, whatever is essential to the enjoyment of it passes. And so of things reserved. 11 Co. 52, Richard Liford’s case; Hobart's R. 234, Lord Darcy vs. Askwith.
If it had appeared that there was no other land upon which a building could have been erected, this case might have come within the principle. The defendant having the right to draw water for the purpose mentioned, and it being necessary, in order to the exercise of that right, that he should occupy a portion of the land embraced in the deed, it must have been the intention of the parties that this right of occupation should accompany the right to take the water, although it was not so expressed. Jlut the case negatives this, explicitly. The facts stated show, that it is not necessary, for the enjoyment of the right reserved to draw water from the pond, that the defendant should erect any mill upon the land, or enter into the occupation of any of it, except for the passage of the water from the pond through it. The right reserved, so far as the language of the deed expresses it, may be fully exercised by the erection of a mill on other land.
The defendant’s counsel, however, contends for a much more enlarged construction of the term ‘ necessary,’ and argues, that if the defendant was not, at the time, the owner of other land upon which he could erect a mill, he is entitled to build one upon the land embraced within his deed, notwithstanding there was other land on which a mill might be erected, and which, for aught the grantees appear to have known, he then owned, or might have purchased; and he
It is said, in Comyn’s Digest, Chimin D, 3 — “ If a way be of necessity, the grantee of the land shall have it without a grant of -the way; as if a man enfeoffs another of land which was encompassed by his other land, the feoffee shall have a way over the other land, without any grant.” To which it is added, “ So if there be not another way convenient” ; for which 2 Cro. 170, and 2 Rol. 60, are cited. But this last position may well be doubted, if the term ‘ convenient’ is used in its ordinary acceptation. The case referred to in Croke is very shortly reported, and the facts do not fully appear. It is stated that “upon demurrer the case was, The one sells land, and afterwards, the vendee, by reason thereof, claims a way over part of the plaintiffs land, there being no other convenient way adjoining; and, whether this was a lawful claim ? Was the question. And it "was resolved without argument that the way remained, and that he might well justify the using thereof, because it is a thing of necessity ; for otherwise he could not have any profit from his land : et e converso if a man hath four closes lying together, and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold, although he reserved not any way, yet he shall have it, as reserved unto him by the law ; and there is not any extinguishment of away by having both lands.” Cro. Jac. 170, Clark vs. Cogge. It seems evident, from the opinion thus stated, that there had been a way before, and that this was necessary to the use of the land conveyed, and not merely more convenient than another way which might have been had.
In Rolle ⅛ Abridgment the doctrine is first laid down— “ If I have a close surrounded by my own land on every
The case of necessity stated in Croke, where a man having four closes, lying together, sells three of them, reserving the middle one, and hath not any way thereto but through one of those which he sold, not having stipulated for any way across either, is certainly a “ self created necessity,” which could hardly be said to confer a right, if the three closes were sold to different persons at different times.
In Holmes vs. Seely, 19 Wend, R. 507, the abstract contains the following proposition — “ Where the owner of land sells and conveys a portion thereof, which cannot be approached from a public highway but over the remaining lands of the grantor, the grantee is entitled to a right of way over such remaining lands,” There is certainly matter in the opinion which goes to indicate that such might have been the view of the court in making the decision, but it is not clear that the court proceeded upon such a general principle. There was testimony in that case to show that from 1792 the owners of one lot had used a way over the other without interruption. Mr, Chief Justice Nelson said — “ It is probable, from the facts in the case, that the defendant is entitled to a private way across the eighty acre lot, from the Bedford road to his small lot, for agricultural purposes, as .a
In Holmes vs. Elliot, 2 Bing. R. 76, it was held, that “ a way of necessity is limited by the necessity which created it, and ceases if, at any subsequent period, the party entitled to it can approach the place to which it led by passing over his own land.” But Sergeant Williams, in the note before cited, which is referred to with approbation by Lord Ellenborough, in Bullard vs. Harrison, 4 M. & Sel. R. 393, says, “a way of necessity, when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant. For there seems to be no difference where a thing is granted by express words, and where by operation of law it passes as incident to the grant. In the latter case it would be a superfluous and inoperative clause in the deed, to convey the incident by express words of grant, being only expressio eorum qum tacite insunt.” If the superfluous clause which is understood, were in fact inserted in the deed, would it take the shape of a grant of a way over the land of the grantor until the grantee should purchase some other tract of land over which he might conveniently reach the premises granted,
Without continuing this discussion further, it is sufficient to say that, as there existed at the time other lands adjoining, upon which a mill might be erected, and to which the water might be conveniently drawn, from the pond, for the purposes mentioned in the reservation, we are of opinion that the reservation does not authorize the defendant to erect a mill on the land embraced in the deed, notwithstanding he was not then the owner of such land adjoining. Whether he was in fact the owner, or had a contract for the purchase, or relied upon his ability to make a purchase when he should have occasion to use the right of water reserved, the grantees were not bound to know. It is not a matter of necessity, in order to the use of the water reserved, that he should occupy the land granted, with a mill, although it may be a matter of convenience.
Judgment for the plaintiffs.