Smith v. Richards, 155 Mass. 79

Smith v. Richards

155 Mass. 79 | Mass. | 1891

Allen, J.

The defendants contend that the deed of Richards to the Falls Cotton Company in 1838 conveyed only an easement. The plaintiff contends that it conveyed the fee. We are inclined thus far to agree with the plaintiff, because the reservation in the deed was not broad enough to include all beneficial uses that might be made of the land. For example, if mines or a quarry of stone were there, the grantor did not reserve them. Hamilton v. Dunlop, 10 App. Cas. 813.

Assuming this to be so, the title stood thus: the Falls Cotton Company owned the fee, with a full right of flowing the land, and Richards reserved the right to take mud and soil from the land, or otherwise improve it, not interfering with the flowing. That is to say, whatever right Richards reserved was in subordination to the Cotton Company’s right of flowing. It was thus practicable to have two distinct occupations of the land, at different seasons of the year, not inconsistent with each other. The Cotton Company might occupy it by flowing whenever it pleased. Whenever the land was not flowed, Richards might occupy it for cultivation. In point of fact, according to the plaintiff’s offer of proof, the land was thus occupied by the Cotton Company in the winter, and by Richards at other seasons, for many years. There was nothing in the plaintiff’s offer of proof going to show that Richards asserted any title, or had or' claimed to have any occupation inconsistent with the title of the Cotton Company.

Under this state of things, the defendants, who were heirs of Richards, conveyed to Ella F. Smith, with full covenants of seisin, of freedom from incumbrances, of right to convey, and of warranty, certain premises which included a small parcel of the land already conveyed to the Falls Cotton Company. The first *82three covenants were broken at once, and the grantee might have sued thereon, and her right to sue did not pass to her subsequent grantee. Clark v. Swift, 3 Met. 390. She held the title from September 13, 1884, to April 21, 1886.

The plaintiff’s ground of argument, in support of his right to recover upon the covenant of warranty, if we understand it correctly, is that during this time she was in full possessión of the whole estate described in her deed, including the small parcel owned by the Falls Cotton Company, and that she was not disturbed in her possession by the holder of the paramount title, so that at the time of her deed to Beckett, on April 21, 1886, she had not been evicted; and that the eviction of the plaintiff, who got title from Beckett, was the first eviction that took place. But we cannot so construe the offer of proof as shown in the report of the case. This offer stated that “ during the winter season for more than twenty years past the Falls Pond was usually full of water, flowing said premises up to the boundary line.” This embraced the two winters of Ella F. Smith’s own-1 ership. We must understand that during those two winters, as during other winters, the small parcel referred to was flowed by the Falls Cotton Company. Having a title to this small parcel, and having a right to flow it at pleasure, the Falls Cotton Company exercised this right during these two winter’s. We cannot attribute the flowing to any other purpose than the purpose and intention of exercising the plain rights of the company. There is no suggestion of any other purpose. If, therefore, Ella F. Smith entered upon the whole of the premises described in her deed, under a claim of right, she was dispossessed of this small parcel when it came to be flowed by the Falls Cotton Company in the exercise of its rights under its title. If she claimed anything more than occupation in subordination to the title of the company, she was evicted by the flowing under its paramount title. Such a flowing constituted an eviction, and was a breach of the covenant of warranty. Whitney v. Dinsmore, 6 Cush. 124, 128. Estabrook v. Smith, 6 Gray, 572, 577. Kramer v. Carter, 136 Mass. 504. Pumpelly v. Green Bay Co. 13 Wall. 166, 181. For this breach of covenant she might sue, and her right to sue did not pass to her grantee. Ladd v. Noyes, 137 Mass. 151. Rawle on Covenants, (5th ed.) § 204.

*83There is no question in this case, and none has been argued by counsel, as to the effect which might result if, after her eviction, Ella F. Smith had been restored to possession under any lawful title. No such thing happened. There was no offer to show that she ever afterwards gained any lawful title as against the Falls Cotton Company, or even that she ever held possession as against that company. She did as her predecessors had done, and as she and they had a right to do, namely, she improved the land when it was not flowed, but she did not interfere with the flowing. She regained no possession as against that. Leaving the land unflowed during the summer season was no surrender of the title by the Falls Cotton Company, and no restoration of possession to her. She had been evicted under a paramount title; she had her action for breach of the covenant of warranty ; she might have recovered full damages; and after her conveyance to Beckett, and Beckett’s to the plaintiff, the act of flowing in 1888 and 1889, though continued longer in time, was not the assertion of any new or different title from that which had been asserted during the ownership of Ella F. Smith, and was no new eviction; it was merely the continued assertion of the same title, and it constituted no new breach of covenant. See Ola't’Jc v. Swift, 3 Met. 390, 394, and cases there cited.

According to the terms of the report, the entry must be,

Verdict to stand.