85 Me. 448 | Me. | 1893
This is an action of trespass guare clausum for placing and maintaining booms and fastening them to the plaintiffs’ piers, and storing logs therein, on flats owned by the plaintiffs in the town of Brewer. The case is presented on a report of the evidence.
The plaintiffs derive title from Thomas N. Egery, and the defendant justifies his use of the flats by a subsequent grant of an easement therefor from Egery’s devisees.
Egery was the owner of a tract of land lying between the Penobscot river and the county road and extending up and down the river about half a mile. August 23, 1880, in consideration of §1500, he conveyed to the plaintiffs a certain parcel of it, measuring four hundred feet on the river, by deed containing the following clause after the description, viz :
"Excepting and reserving, however, the full right of keeping and maintaining a boom or booms on the flats between high and low water marks of said river along the premises hereby conveyed, either to use myself or to let or sell to other persons.”
The same year of the conveyance from Egery above named, the plaintiffs erected an ice house on the premises between the county road and the river, and constructed a row of piers on and across the flats to support a run or tramway for the transportation of ice to and from the house.
Egery died in 1885, and August 8, 1888, in consideration of $7,000, his children and devisees conveyed to the defendant the remainder of the land above designated, lying between the county road and the river, by deed containing the following-language, viz :
" Excepting from the land hereinbefore described a certain piece of land conveyed by said Thomas N. Egery to William Engel and Julius Waterman by deed dated August 23, 1880, said excepted piece of land being described as follows ” (same as plaintilf’s premises). "And whereas said Thomas N. Egery in his said deed to Engel and Waterman excepted and reserved the full right of keeping and maintaining a boom or booms on the flats between high and low water marks of said river along the premises conveyed by said deed forever, either to use himself or let or sell to other parties, said right to keep and maintain a boom or booms is hereby conveyed: meaning and intending hereby to convey all the lands, shores, flats, privileges and rights*451 to keep and maintain booms which Thomas N. Egery owned at the time of his decease, between said county road and Penobscot river, and between Dyer’s Cove, so called, and the mill now owned by said Ayer in said town of Brewer.”
It is not in controversy that, since this conveyance, the defendant has maintained a boom upon the flats of the plaintiffs’' premises extending along the entire front near low water mark, and has fastened it by chains to the piers erected by the plaintiffs in connection with their ice business, and has used it for booming logs, keeping the flats covered much of the time with logs, to be manufactured at his mills above mentioned.
This deed to the defendant of August 8,1888, was undoubtedly" effectual to convey to him the full right to maintain booms on> the flats in question, as " excepted and reserved ” by Egery in the prior deed to the plaintiffs, provided this right was of such a nature and extent in fact and of such a character in law that it survived Mr. Egery and passed by will to his devisees.
When the terms employed in the clause of " exception and reservation” in the plaintiffs’ deed, are received and understood, in the plain, ordinary and popular sense in which they are used in connection with the subject matter, is their meaning obscure? When examined in the light of the internal evidence afforded by the deed itself, is the purpose doubtful ? It is contended in behalf of the plaintiffs that this clause of "exception and reservation ” in their deed was never intended to authorize the maintenance of a " boom or booms ” involving the use of the entire area of the flats for the storage of logs, but consistently with any facts disclosed by the case, may fairly be interpreted to signify only the right to maintain a series of spars or logs secured in line " along ” the front of the flats for the purpose of guiding logs past the premises and preventing them from grounding at ebb tide. But the clause describes "the full right of keeping and maintaining a boom or booms on the flats between high and low water marks of said river along the premises hereby conveyed.” It thus appears to be an unlimited right to maintain booms "on the flats” throughout their length and breadth, — an unrestricted privilege comprising the entire extent of the
When, therefore, the meaning of the grantor’s plain and comprehensive language is further illustrated by the facts and circumstances attending the execution of the deed, the conclusion is irresistible that this booming privilege was retained by the grantor with an intention and in the expectation that it would be made available for any useful and beneficial purpose to which the premises seemed to be adapted, either in storing logs on the flats or in guiding them past. It was the "full right” to maintain and use a boom or booms " between high and low water marks” for any purpose for which a boom or booms could ordinarily be used in driving logs and manufacturing lumber.
Again, it is contended in behalf of the plaintiffs that this clause describes a new right not before in being, and as it contains no words of inheritance it creates, not an exception, but a reservation which was limited to the life-time of the grantor, Mr. Egery ; and further, that the right does not appear to be an easement appurtenant to any other land of the grantor, but an easement
The words "excepting and reserving the full right,” etc., "forever, either to use myself or to let or sell to other persons,” taken in their ordinary and popular sense, show a clear and unmistakable intention to "except and reserve” a perpetual right inheritable and transferable, and not a personal easement limited by a life-time. But it is an arbitrary rule of the common law that without the word "heirs” a fee simple in land cannot be conveyed by deed, no matter how plainly the intention so to do may be expressed by other words of perpetuity. As stated by the court in Curtis v. Gardner, 13 Met. 457, "a grant to a man to have and to hold to him forever, or to him and his assigns forever, will convey only an estate for life.” See also Stockbridge Iron Co. v. Hudson I. Co. 107 Mass. 290. This technical and unyielding rule had its origin in the principles of that feudal policy which was swept away more than five hundred years ago, and although it may seem to be a reproach upon our common law that, with all its flexibility and progressive spirit, it still permits the plainly expressed contract of the parties to a deed, to be destroyed by the operation of this "relic of feudal strictness,” it has become so imbedded in the Jaw of real property and so interwoven with our system-of conveyancing that it will probably be recognized as an imperative rule until changed by the legislature. (See contra, Cole v. Lake Co. 54 N. H. 279.)
But this rule is not applicable to an " exception,” properly so called, of an easement appui'tenant to other land of the grantor or of a right to take profit in the soil. A "reservation” is said to vest in the grantor some new right or interest not before existing in him, operating by way of an implied grant, and if it does not contain words of inheritance it will give only an estate for the life of the grantor. The operation of an exception on the other hand, is to retain in the grantor some portion of his
In the case at bar the right to maintain booms on the flats was expressly "excepted” as well as "reserved.” It was ,a full right co-extensive with the area of the flats. It had always existed as an essential part of the premises. In a legal sense it was a thing in being and not newly created. In Smith v. Ladd, supra, a reservation of a right of way, not definitely located, for the benefit of that portion of the lot remaining in the grantor, was held to be a good exception. So also in Chappell v. Railroad, a late case in Connecticut (24 Atl. Rep. 997), the right reserved to cross a strip of land conveyed to the defendant was held by the court to be in a certain sense a right existing in the grantor at the date of the deed. "It was,” said the court, "a part'of their full dominion over the strip about to be conveyed by the deed, and not a right to be in effect,-conferred upon them by the grantee. ... In such cases the rule is well settled that a permanent easement in favor of the retained land may be made without words of limitation.”
It is agreed, however, in the case at bar that the excepted right is not for the benefit of or appurtenant to, any other lands owned by the grantor at the time, but was a right retained by him " either to use [myself] himself, or to let or sell to other
(In the case at bar the right to maintain booms involves the right to drive stakes, set posts and erect piers on the soil of the flats for the purpose of securing the logs which compose the booms. The right to maintain booms carries with it by implication in this case the right to use them either for " sheer ” booms or storage booms or for both purposes. In the full extent of its exercise the entire area of the flats may be covered with logs. At such times and for such a purpose, it involves practical
But the plaintiffs still claim that the act of the defendant in fastening his boom by chains to the plaintiffs’ piers on the flats, was an infringement upon their rights from which some damage is presumed to flow; and it is stipulated in the report that if the plaintiffs are entitled to judgment upon any phase of the case the damages are to be assessed at nisi priiis; otherwise a nonsuit is to be entered.
It has been seen that after their purchase in 1880, the plaintiffs erected a row of piers across the flats to support a tramway for carrying ice. There were no piers on the premises at the time of the conve3rance. By their deed the plaintiffs acquired title to the land as it then was subject to the paramount right excepted and retained by the grantor to use any and every part of the surface of the flats for the purpose of booming logs. As owners of the fee they may still use the flats for any purpose which does not materially impair or unreasonably interfere with this paramount right to use the entire surface for a storage boom. Morgan v. Boyes, 65 Maine, 124. The only evidence upon this point is the statement in the report that since his purchase from the devisees of Egery, the defendant "has maintained a boom on the flats .... and fastened it by chains to the plaintiffs’ piers.” As between the parties the defendant was entitled to exercise his right to boom logs on the flats Avithout restriction or limitation. If the plaintiffs’ piers proved to be a material hindrance to the full exercise of this right, the defendant
In the entire absence of any evidence in regard to the manner in which the rights of the parties might have been consistently exercised in conducting their respective business operations, the entry must be,
Plaintiffs nonsuit.