48 Me. 68 | Me. | 1861
The opinion of the Court was drawn up by
If the acts of the defendant, as shown by the evidence, were no infringement of the rights of the plaintiff, the nonsuit was rightly directed. Whether they were so or not, depends upon the construction of the deed from Thomas Boothby to the plaintiff, dated September 15th, 1857. By that deed the plaintiff became seized of the premises described in his writ, subject to the easement, whatever it may be, which was carved out of the estate by the following words contained in the deed immediately after the description of the lot, namely — “Reserving to Samuel Boothby a right to cross arid re-cross said lot to his field as he has heretofore done, by shutting gates and bars; and also reserving to said Samuel Boothby a right to cross said lot to the beach, and to take and haul away stones, gravel, sand and seaweed as he has hitherto done, by shutting gates and bars; meaning and intending hereby to reserve to said Samuel, the same right I reserved to myself in my deed to him, dated March 24th, 1841.” Whatever rights were thus reserved for Samuel Boothby were not conveyed to the plaintiff; and although the reservation may not, ex proprio vigore, pass such rights to the defendant, still the plaintiff by his acceptance of the deed as it is, is precluded from interfering with the defendant’s exercise of such rights, because, while the defendant does not go beyond the limits of the reservation, the title of the plaintiff is only that of a stranger as against him. Knight & ux. v. Mains, 12 Maine, 41.
It is contended by the plaintiff, that all the rights of the defendant, except of crossing and re-crossing his lot, are confined by a proper construction of his deed to the beach alone, by which we understand, that part of his land lying between the lines of high water and low water over which the tide ebbs and flows. This is the fixed and definite meaning of the word “ beach” when used in reference to places anywhere in the vicinity of the sea, or the arms of the sea. Doane v. Willcutt, 5 Gray, 328. By this construction the sea-wall would be excluded from the places from which the defendant might rightfully “take and haul stones, gravel and seaweed” if there to be found. We do not think, however, that the reservation can properly be limited in its application, so far as it relates to the things to be taken and hauled away, to the beach alone. The beach, as well as the field of the defendant, mentioned in another part of the reservation, appears to have been referred to, as a terminus of one of the ways over which the defendant might pass, or as a particular place to which he might go. The fact that the things to be taken, other than the sand and seaweed, were to be found in the sea-wall, and had been accustomed to be taken from there by the defendant, before the plaintiff took his deed, repels the construction for which the plaintiff contends.
The true construction of the reservation to the defendant is to be found in the words, “ as he has hitherto done.” The idea that these words refer only to the manner of transportation, or to the teams and carriages that might be used, is too narrow to be reasonable. The right reserved was to take, as well as haul away. Both these rights were to continue in
Nonsuit to stand, and
Judgment for the defendant.