23 Me. 234 | Me. | 1843
The opinion of the Court was prepared by
The first question presented for consideration by the exceptions taken by the tenants, relates to the amendment. It was provided by statute, c. 186, § 3, that if either of the demandants should die during the pendency of a real action, his death should be suggested on the record, and that the survivor might amend the declaration by describing his interest in the premises, and proceed in the cause to final judgment. In the Revised Statutes, c. 345, $ 19, there is a provision, that in such case the action shall not abate, but the Court shall proceed and determine the same after notice to the heirs. The forty-ninth section of the same chapter provides, that all real actions which shall be pending, when the chapter shall become a law, “ shall proceed and be conducted to final judgment, or other final disposal, in like manner, as if this chapter had never been enacted.” This action was pending at that time. It is insisted however, that the revised code repealed c. 186, and that there was no longer any statute pro
The next question presented is, whether the testimony offered by the tenants to prove, that they and those under whom they claim had made improvements upon the premises, was properly excluded. It appears, that Samuel Smith conveyed the premises to the demandant and Pierce, on December 18, 1832. That on the same day they executed a bond to Edward and Samuel Smith to convey the same premises to them upon the performance of certain conditions. The tenants claim under a title derived from the Smiths or onc_ of them, and especially desire to avail themselves of the value of the improvements made by Samuel Smith. The acts author
The next question presented is whether the agreements signed by Samuel Smith and others, made on October 10 and November 7, 1833, were properly admitted as testimony to prove the line of highwater mark. In these agreements Smith recites, that he was owner of one of the lots. lie had before that time conveyed to Pierce and Treat one undivided half of one of the lots, and the whole of the other lot demanded, but he was at that time the owner of the other undivided half of one of the lots, by purchase from Dealing and Leavitt on April 25, 1833. The tenants claim under a title derived from him; and the acts and declarations of one, while he was an owner of the estate, respecting the extent and boundaries of that estate, may be received in evidence against those claiming title under him. Human v. Pettell, 5 B. & A. 223; Adams v. French, 2 N. H, R. 387; Jackson v. Griswold, 4 Johns. R. 230. These agreements were not received as binding .and conclusive upon the estate, but only to show the acts and declarations of a former owner,
The jury were instructed, “ that by the pleadings in this case no actual ouster need be proved.” This is alleged to have been erroneous. The tenants had pleaded the general issue accompained by brief statements of certain matters in defence. Non-tenure or tenancy in common with the de-mandant, was not made a point in the defence by the brief statements ; and they cannot be considered as presenting any matter of defence not stated in them. The general issue admitted their possession of the premises as tenants of the freehold. The decision requiring such proof from the demand-ant in the case of Cutts v. King, 5 Greenl. 482, was founded on the statute, c. 344, <§> 2, which was repealed by c. 63, and the instructions were correct.
The jury were further instructed, that the passage way referred to in the deed from Smith to Pierce and Treat, “ extended from highwater mark, in the same direction and of the same width as on shore, upon the flats towards the centre of the Kenduskeag stream in a line at right angles with Hammond street, and that the line described in that deed, as being seventeen feet and six inches in length, went to the East line of said passage way as the same extended.” The conveyances, by which it was created and preserved, extend the passage way only to the stream; and if it can be extended further, it must be by virtue of some right or title other than that derived from the language of these conveyances. And if by their true construction the land, over which it was located, did not pass to the grantees, but only a right of way over that land, it may be doubtful, whether the passage way can be extended in any direction over the flats. It is not perceived, that a mere right of way would be extended from high to low water mark in these tide waters by the ordinance of 1641; for that only thus extends the title of the owner of the adjoining upland. But it will not be necessary to decide, whether the passage way did or did not extend beyond high water mark, if the tenant were not injured or aggrieved by those instructions. And this will
The Court does not consider, that the deed from Samuel Smith to Pierce and Treat, and their bond to Edward and Samuel Smith of the same date, constitute a mortgage of the estate.
The point made respecting the finding by the jury of the line of highwater mark, and respecting the form of their verdict, it will become unnecessary to consider.
The exceptions taken by the demandant present for consideration the question, whether he was entitled to recover an undivided fourth part of the flats contained within the side lines of the lot described in the second count in the writ, continued to low water mark, on the same courses as those lines ran upon the upland. The jury were instructed, that he was not so entitled. In the year 1825,'Caleb C. Billings and wife appear to have been the owners of a tract of land, including the demanded premises, bounded easterly by the passage way, northerly by the Kenduskeag stream, westerly by the laud of William Emerson, and southerly by Hammond street. They convoyed to Thomas A. Hill, on August 22, 1825, one undivided third part of that tract, describing the East line thereof as “ perpendicular to the northern line of said street.” This deed also says, “ it is intended by this deed to convey all the right, which the grantors have to the flats adjoining the lot conveyed in the same direction with the side lines and no
The argument is, that the flats appertaining thereto, and of right belonging to said parcel of land, can mean nothing more or different from flats, which the law would determine to belong to that parcel of land. And this will doubtless be correct, if there be not sufficient evidence to show, that the language was used by the parties in a different sense. If there be such evidence the language must receive such a construction, as will accord with their intentions. Some of the indications of a different intention are, that the flats adjoining the eastern side of the lot had been conveyed and held for seven years before that conveyance by a line at right angles with the street and on that course extending over the flats. That the flats on the westerly side of the lot had been conveyed and held by a like line for three years. That the grantees had been in possession of the land under deeds recorded. This would have the effect to disseize others, and to give them a seizin of the flats according to the bounds named in the deeds, whether they actually occupied the flats or not. Smith had purchased one undivided half of the flats, describing the whole flats as between the side lines of the lot extended on the same course over the flats. And when in conveying them he spoke of them as appertaining thereto, must he not have meant such flats, as had been appurtenant to and connected with the upland for several years? And when he described them as “of right belonging to said parcel of land,” could he have doubted, that the flats, which he purchased with the land rightfully belonged to it; or have intended to attempt to convey by that language flats, which he had not purchased, and did not own, and to leave unconveyed a portion of the fiats, which he had purchased with the lot? Such would be the result of a construction, that the deed conveyed such flats only, as the law, independently of all description of them, would assign to the lot. The case finds also, that the demandant “ introduced evidence tending to show, that there was erected a wharf
The exceptions of the demandant are sustained,
the verdict is set aside, and
a new trial granted.