Moulton v. Trafton, 64 Me. 218

Moulton v. Trafton

64 Me. 218 | Me. | 1874

Peters, J.

The demandant received from Adeline and Chandler B. Shirley a deed of a farm, which contained the following provision: “Excepting by this conveyance a saw-mill and shingle-machine, and land enough around said mill to carry on the lumbering business at said mills, and a right of way from said mill to the road leading from Thorndike to Unity village, conveyed to Clark Trafton, as long as said Trafton occupies said privilege with mills.” At the date of this deed, and for some years afterwards, the excepted premises were occupied by Clark Trafton for milling purposes. His title is subject to the demandant’s deed. When Clark Trafton sold out his interest to Ira Trafton, and ceased to occupy the excepted premises personally, the demandant commenced this action for the premises, claiming them as his own. And the question here depends upon the construction to be given to the above clause in his deed.

In the first place, he claims that the language above quoted amounts only to a reservation and not an exception, and that it is void, because not made to the grantor himself. But this construction is not a reasonable or just one, so long as the words are fair*222ly susceptible of any other, by which the agreement of the parties can be upheld.

Then the position is taken that if not a reservation, that an exception of “a saw-mill and shingle-machine,” would not include the land under the same. But the authorities settle this point the other way. It would be an awkward conveyance indeed that carried land “around” a mill, but none under it. By the grant of a mill, the land under it, indispensable to its use, unless there is in the conveyance language indicating a different intention, passes by implication. The same rule applies to exceptions in a grant. Among the cases applicable to this view, are Forbush v. Lombard, 13 Metc., 109; Esty v. Currier, 98 Mass., 500; Clark v. Blake, 6 Maine, 436; Farrar v. Cooper, 34 Maine, 397. The case of Derby v. Jones, 27 Maine, 357, relied on by the demand-ant, is not at all opposed to these cases, but clearly distinguishable from them. The judge who delivered that opinion makes the distinction very apparent in the judgment in the case of Sanborn v. Hoyt, 24 Maine, upon page 119.

But the more important inquiry suggested in this case is, whether the subject matter of the exception in the demandant’s deed continues longer than the personal occupation of the premises by Clark Trafton. This question may not be free of all difficulty and doubt; still we think that the most satisfactory interpretation which can be put upon the words of the exception is, that a fee in the land under and about the mills and an easement in the way to the mills, were to be and remain excluded from the grant to the demandant, so long as “said privilege” was occupied “with mills” by Clark Trafton or his heirs or assignees. In other words, that the exception was not personal merely, but assignable. Our opinion is that the estate excepted is what is called in the technical law a qualified, base, or determinable fee; an estate which passes subject to a reverter,' and will continue until the qualification annexed to it is at an end. The test of the limitation in this case, is rather as to the purposes for which the estate may be occupied than as to the persons occupying it. When the *223estate ceases to be used for mills, then it reverts to the grantor. Such an estate is both descendible and assignable. There is much to indicate that such was the intention of the parties. The value of the excepted property was undoubtedly deducted from what would have been a greater price paid for the farm by the demand-ant. A valuable mill has been kept upon the privilege from that day to this. It can hardly be supposed that a license was to be extended to Trafton to make extensive investments, which would not be worth anything in anybody’s hands but his. Nor is it easy to perceive what difference it could be to the owner of the farm, whether the mills were to be owned by Trafton or some one else. At the same time there is every reason to believe that the demand-ant’s farm was not to be encumbered with any outside ownership of the privilege and easements, after the mills and all demand for mills at that place had passed away. We think this view is well supported by the authorities, and is also in accordance with the justice and equities of the case. In Esty v. Currier, before cited, it was decided, that a grant or a reservation of the whole of a cider-mill, so long as the cider-mill shall stand on certain land and no longer, gave a freehold in the land under the building so long as it stood thereon, even after it ceased to be used as a cider-mill. That case has a similarity, in the principle involved, to this case. The case of Jamaica Pond Aqueduct Co. v. Chandler, 9 Allen, 159, is a relevant authority. See also Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass., and cases there cited on page 322. The private way alluded to in the deed to this demandant, was one already constructed at the date of his deed. Such a way may be the subject of an exception iu a grant. State v. Wilson, 42 Maine, 9; Winthrop v. Fairbanks, 41 Maine, 307; Smith v. Ladd, Id., 314; Munn v. Stone, 4 Cush., 146.

The demandant claims that, at all events, he can recover the way or road, notwithstanding the tenant has an easement in it, because the tenant has pleaded the general issue, which tries the question of a fee, and not an easement, in it. But the language of the declaration is, “together with the water privilege used in operat*224ing said mills, and the road or private way leading from said mills to the county road.” No other or more particular description is given, and we are led to believe that the purpose of the averment was rather to describe the easement than the fee, in order to put in issue a claim to recover what was described in the exception in the deed, and no more. Demandant nonsuit.

Appleton, C. J., Cutting, Walton, Barrows and Danforth, JJ., concurred.