Parsons v. Miller

15 Wend. 561 | N.Y. Sup. Ct. | 1836

By the Court,

Savage, C. J.

There was no contradictory evidence nor disputed fact before the justice; nor any question of law but one, to wit, whether evidence of the usage of the people to cart sea-weed from Fire Place Beach wras admissible as evidence of the construction of the reservation in the deed. The justice decided that point correctly. Deeds are to be expounded by their terms where there is no ambiguity» and neither parol evidence nor usage can be admitted to vary or contradict a written instrument. 3 Johns. Cas. 4. 5 Wendell, 547. In Livingston v. Ten Broeck, 16 Johns. R. 23, Spencer, Justice, says if the words are equivocal, evidence of usage ought to be admitted as the best expositor of the intention of the parties ; but if the words of a deed are clear and precise, leaving no doubt of the intention of the parties, usage will not aid in the exposition, and ought not to be admitted. The cases cited by Mr. Justice Spencer show that the evidence is proper only in cases of ancient deeds, and where there is an uncertainty as to what was meant by the terms made use of by the parties.

There was another objection to the testimony, which was sufficient to exclude it: the object of the testimony was to show an easement in the land of the plaintiff which is a title to lands, and is sufficient to oust the justice of his jurisdiction ; and both parties had agreed not to raise that question. Although both parties disclaimed trying the question of title before the justice, yet it is apparent that there is no other question in the case than the right of the people of Easthampton to take and carry away sea-weed from the landing in question. The plaintiff’s deed was introduced to prove his possession, which possession was also proved by parol. The introduction of the deed was not objected to; it conveys the premises upon which the trespass was committed; and without discussing all the points raised by the plaintiff’s counsel as to the validity of the reservation, and assuming that the reservation is to have the most liberal construction, what does it reserve? and is there any ambiguity about it? All people are to be allowed to pass and repass : to fish, fowl and hunt, and go to their meadows ; thus far there is no pretence of a liberty to carry away sea-weed : they are also “ to do any business they shall have occasion to do on said beach, as they used to do before this conveyance.” Now suppose the fact proved that both before and since the conveyance people have been in the habit of carrying away sea-weed, and also of loading and unloading vessels at the landing,—:would not any person say that by doing business was meant doing lawful business, to wit, the loading and unloading vessels, and not the committing of trespasses. It has been settled in the case of Emans v. Turnbull, 2 Johns. R. 322, that sea-weed thrown by the sea upon the beach, vests in the owner of the soil; that the words egress and regress, fishing and fowling, gave no other rights than those expressed; and that the plaintiff in that case had no more right to the sea-weed than he would have had to wood or grass, or any thing appurtenant to the ownership of the soil. Suppose in this case it had been proved that the people of Easthampton had always been in the habit of cutting wood from the hammock contained within the plaintiff’s deed; would that prove that the right was reserved by the. reservation in the deed to carry away wood ? It would only prove wha,t it proves in this case, that people had been in the. habit of committing trespasses. At an early day the seaweecj was no<; thought of any value, and people were permitted, as one of the witnesses says, to take it and welcome. So they might take wood in some places, probably, where it,is considered of no value on account of its superabundance, and being- an incumbrance on the land ; yet the taking it is no less a trespass, unless it is with the consent of the owner.

There is another view of this reservation which strikes me as having force. The reservation, or rather exception, if it is such, commences in this manner: “ He, the aforesaid Benjamin Leek, his heirs and assigns, forever hereafter, allowing all people to pass and repass,” &c. It. seems to me this is not strictly a reservation or exception, but a condition subsequent, upon breach of which the title to the premises granted may be divested, by proper proceedings. The very term allowing presupposes the absence of a right to pass and repass, &c. without the permission of the grantee. It is only by considering this clause in the deed as a condition, that it can have any operation. Covenants in' a deed are operative between the parties to it only. An exception or reservation is valid as to the parties to the deed. A stranger can take nothing under a deed inter partes, unless by-way of remainder. 9 Johns. R. 74, 75. 10 Wendell, 91, 2, 3. If this clause in the deed conveys a right to all people to take sea-weed from the plaintiff’s premises, then every person disturbed in the exercise of that right may maintain an action for such disturbance. Suppose the defendant had brought such an action, he must have attempted to sustain it by the very deed which was produced in evidence; and then the objection would be insuperable, that he was not a party to the deed, nor privy, nor claimed by way of remainder. Even had the deed contained a provision in favor of the defendant that he should have a right to take sea-weed, such a clause would be void, he not being a party to the deed. 8 Co. 69.

The justice was right in excluding from the consideration of the jury this whole subject, which raises the question of title ; and then the case before him was a plain one of trespass, by the defendant, upon the plaintiff’s premises. The common pleas erred, and their judgment must be reversed, The consequence will be to aErm the judgment of the justice.