Winchester v. Hees

35 N.H. 43 | N.H. | 1857

Sawyer, J.

Upon the pleadings in this case the only"question raised is as to the title to the bous in quo. The plaintiff claims under Lintha Wilbur, and tbe defendant under Clarinda, and the respective rights of Lintha and Clarinda are to be determined by the construction to be given to the deed from the latter to the former, of the 6th of February, 1844. Prior to that conveyance each owned an undivided half of the south half of the house, “ with a privilege to build an addition to said part, and all other privileges necessary to occupy and repair said share.” Clarinda at the same time was sole owner of the adjoining land, except upon the north side, where it abutted upon the north half of the house owned by Sally Wilbur. By virtue of the deed of the 6th of February, 1844, Lintha became seized of the entire south half of the house, “ with the right to use, repair and make such additions thereto as might be necessary for her convenience and occupancy thereof.” Whether, by the phraseology used in this deed, to describe the right to make additions to the house, more is conveyed than Clarinda then owned in the premises of which she was seized as tenant in common with Lin-tha, it is unnecessary to consider. It is clear that by this deed all passed that she did thus own in those premises, and if more passed it must be a right or interest of some nature and to some extent in the adjoining land, owned by Clarinda in severalty, and described in somewhat broader terms than in the deeds of partition of the 22d of August, 1840, as a right to make such' additions to the house as may be necessary for convenience and occupancy. If, in place of the shed which the plaintiff caused to be erected, there had been a structure of a character such as must be understood to have been contemplated under the description of an addition to the house ; such as would be a substantial enlargement of the house, and corresponding with it in the kind and character of the addition, and no question had arisen as to the time within which the additions were to be made, it is by no means clear that by the erection of such addition the grantee in the deed would not have secured a title to all the land covered by it, although it might have extended beyond the limits of the premises owned by Clarinda and Lintha in common, and covered more or less of the land owned by Clarinda in severalty. A deed of a house, with no definite description of the boundaries of the land on which it stands, is not necessarily to be limited on either side to the sills of the building, or to the outer surface of the foundation stones, but may extend, upon well settled principles, to more or less of the surrounding land. By the additional description inserted in the deed of the 6th of February, there may perhaps be understood to be included in the grant other land than such as might pass under the description of “ the housesuch other land to be located by the grantee by the erection thereon of additions to the house. Upon this view, the questions would arise whether a reasonable time must be understood as limited for the selection of the land by the erection of the additions; whether the lapse of five years from the delivery of the deed before the erection of the shed, may not have been such unreasonable delay as to preclude the grantor from claiming the right; and if not, whether the shed was such an addition to the house as was contemplated.

These questions, however, may be waived, as, upon another view of the case, one undivided half of the locus in quo must be held to have passed by the deed of the 6th of February, from Clarinda to Lintha, independent of the clause in the deed which gives the right to make the additions ; and upon the same view Lintha was seized of the other half under the deeds of partition of the 22d of August, 1840.

Under the grant of a thing specifically described, whatever is parcel of it, or of the essence of it, or necessary to its beneficial use and enjoyment, passes by the grant. This doctrine is based upon the ground that all that is essential to and connected with the subject of the grant, as parcel of it, or incident to it, passes under the specific description. Thus a grant of a messuage, a mill, or a house, by those designations includes the land on which they stand, and the adjoining land necessary to their beneficial enjoyment as such, and used with them. The doctrine on this subject is clearly expounded in the cases of Whitney v. Olney, 3 Mason 280, and United States v. Appleton, 1 Sumner 492. The cases of New-Ipswich Factory v. Bachelder, 3 N. H. 190; Gibson v. Brockway, 8 N. H. 465, and Gocheco Manufacturing Co. v. Whittier, 10 N. H. 205, are instances of its application in our own courts. The case finds that the locus in quo, prior to the death of Elisha Wilbur, in 1835, was used by him in connec-tian with .the house, for the purpose of a wood-yard. He was then the owner of the house and of the premises thus used with it, and they continued to be thus used together by the various owners and occupants down to the time of the alleged trespass. A yard of this description and for such purpose is used in connection with' almost every dwelling, and it cannot be doubted that it is essential to the convenient and beneficial enjoyment of the house. It is not distinctly stated in the case that it was thus essential in this instance, and that fact is material in the decision of the cas.e. The facts which are stated are sufficient, however, to warrant a jury in so finding. The verdict having been taken by consent, it is to be understood that all facts have been found by the jury necessary to sustain it, of which there is any evidence in the ease competent to be submitted to them as evidence of these facts. The locus in quo being essential to the beneficial enjoyment of the house, passed by the deeds to Lintha as part of the house, in the same manner as the front yard of a dwelling-house passes under the description of the premises as a dwelling-house, being parcel of it. There must be

Judgment on the verdict.