Baker v. Bessey

• Decision Date: 29 May 1882
• Citation: 73 Me. 472
• Parties: SUSAN BAKER v. BELDEN BESSEY, and another.
• Court: Maine Supreme Court

73 Me. 472

SUSAN BAKER v. BELDEN BESSEY, and another.

Supreme Judicial Court of Maine.

May 29, 1882

ON REPORT.

Writ of entry to recover possession of certain real property situated in Albion and described in the declaration.

Writ dated April 26, 1880.

(Declaration.)

" In a plea of land, wherein the plaintiff demands against the defendants a lot of land situated in said Albion in said county, and bounded and described as follows: The mill and mill-dam, with the appurtenances, and the land under and adjoining them and used therewith, situated on and across the stream that constitutes the outlet of the Lovejoy pond, so called, in Albion, and formerly owned by said Belden Bessey and now occupied by the defendants; whereof the demandant was seized in fee within twenty years last past, and the defendants within said time unjustly and without judgment of law disseized the demandant and still unjustly withhold said premises from her.

And the demandant further avers that the defendants have been in possession of said premises since the first day of June 1878, receiving the rents and profits thereof during all that time, which the demandant avers are reasonably worth one hundred and fifty dollars a year, amounting to two hundred and eighty-eight dollars in all, which she claims to recover in this action."

Plea nul disseizin, and brief statement averring the title to be in the defendants and not in the plaintiff.

Other material facts are stated in the opinion.

By the terms of the report " the court to enter judgment upon so much of the evidence as is legally admissible, and if the plaintiff is entitled to recover, the damages for the rents and profits are to be one hundred and forty dollars with interest from the date of the writ."

Joseph Baker, for the plaintiff, cited: R. S., c. 92, § § 11, 15; Lowell v. Shaw, 15 Me. 242; Knapp v. Clark, 30 Me. 244; Pierce v. Knapp, 34 Me. 402; Leonard v. White, 7 Mass. 6; Blake v. Clark, 6 Me. 436; Blains v. Chambers, 1 S. and R. 169; Pickering v. Stapler, 5 S. and R. 107; Angell on Watercourses, § 153, a ; Maddox v. Goddard, 15 Me. 218; Rackley v. Sprague, 17 Me. 281; Stackpole v. Curtis, 32 Maine 383; Perrin v. Garfield, 37 Vt. 312; Washburn on Easements, § 45, 34; Crockett v. Millett, 65 Me. 191; Whitney v. Gilman, 33 Me. 273; Walcott Co. v. Upham, 5 Pick. 292; Shaw v. Wells, 5 Cush. 537; Bates v. W. Iron Co. 8 Cush. 548.

Edmund F. Webb, for the defendants.

The writ is not in the form prescribed by law. R. S., c. 104, § 3. " He (the demandant) shall set forth the estate he claims in the premises, whether in fee simple, fee tail, for life, or for years," & c.

The demandant's writ sets forth only a naked fee, which may be fee-simple, fee-tail, for life, for years, a determinable fee, a qualified fee or conditional fee, and is not such a writ as defendant is entitled to. Veazie v. China, 50 Me. 526; Low v. Dunham, 61 Me. 566; Blake v. Portsmouth and Concord Railroad, 39 N.H. 435, and cases there cited. Wyman v. Brown, 50 Me. 143; 1 Wash. on Real Prop. c. 3, § § 31, 32; 2 Bl. Com. 106.

Demandant's lien attachment and levy are void.

The process undertakes to divest the defendant of the title to his property without his consent, and there must be a strict compliance with the law.

The word appurtenant does not carry the upper dam.

The word will not pass any corporeal real property, but only incorporeal easements or rights and privileges. Bouvier's Law Dictionary.

By grant of a grist mill, with the appurtenances, the soil of a way, immemorially used for the purpose of access to the mill from the highway does not pass. Leonard v. White, 7 Mass. 6. " Land cannot be appurtenant to land," Ibid. 9.

In Bryan v. Weatherhead, 3 Crokes, Rep. 17, it is held that " the grant of a house with the appurtenances will not pass an adjoining building not accounted parcel of the house, although held with it for thirty years, it must be an accepted parcel thereof " ex vi termini. "

And in Hearn v. Allen, Ibid. 57, it is held that a devise of a house with the appurtenances will not pass land at a distance, though occupied with the house.

After the four deeds to the defendant, there was a unity of seizin of all the estates, both upper and lower dams, in the defendant, and all rights as easements, were extinguished.

The right of flowage is like the right of way which one may have through the close of another which is appurtenant to his land, and grant of his land with the appurtenances will pass the right of way. But a man cannot have a right of way through his own land, independent of his right to the land; he has the right of way, but it is not an easement. Barker v. Clark, 4 N: H. 382; Grant v. Chase, 17 Mass. 447.

In this case the defendant owned the upper dam, the soil, the yard, the banks and the right to flow, but his right was not an easement; he had the title to the soil, and there was no easement to pass with the lower dam under the head of flowage as it would be if the upper dam had annexed to it the right to flow land of other people.

" Nothing is more clear than that under the word appurtenance according to its legal sense, an easement which has become extinct, or which does not exist in point of law by reason of ownership, does not pass." 2 Wash. Real Prop. 627; Plant v. James, 27 E. C. L. R. 191.

There is no easement of flowage in the upper dam, for the defendant owns it ex vi termini ; he owns the soil which includes the use of flowing.

" By the grant of a mill, the land under the mill and adjacent thereto so far as necessary to its use, and commonly used with it, will pass by implication." Forbush v. Lombard, 13 Met. 114; Blake v. Clark, 6 Me. 436.

But the land thus passing must be adjacent and not at a distance. Blake v. Clark, 6 Me. 439, 440; Tyler et al. v. Hammond, 11 Pick. 193.

The attachment and levy in the name of Belden Bessey were void. The title deeds were in his real name, J. B. Bessey, or Jonathan B. Bessey.

R. S., c. 81, § 56, requires the officer returning the attachment to return " the names of the parties" to the registry of deeds. See Dutton v. Simmons, 65 Me. 583, where the officer returned attachment of real estate of Henry " M" Hawkins instead of Henry " F" Hawkins and where this class of cases are collected and discussed by the court.

The defendant could not plead in abatement in this action, because he would necessarily tender more than one issue of fact.

Any plea in abatement which tenders an issue upon more than one matter of fact is bad. State v. Heselton, 67 Me. 598; Wyman v. Brown, 50 Me. 139; Bailey v. Smith, 12 Me. 196; Tibbetts v. Shaw, 19 Me. 204; Maine Bank v. Hervey, 21 Me. 38.

In 1831, the legislature passed an act to abolish special pleading. C. 514. " In all civil actions the defendant shall plead the general issue." In 1836 special pleading was abolished in Massachusetts, and after that a tenant could show non tenure under the general issue of nul disseizin. Wheelwright v. Freeman, 12 Met. 154; Richards v. Randall, 4 Gray 53.

PETERS J.

The demandant, under a complaint for flowage, recovered a judgment for damages against one of the present defendants; sued the same in assumpsit in order to obtain a lien-judgment against the defendants' mill-dam and mill, recovering in that suit; purchased the property in her name at a sale by the officer upon an execution issued on the latter judgment; and institutes this action to recover possession of the property thus purchased. The proceedings in thus obtaining title seem to have been in proper form and in accordance with the statutory requirements.

It is contended that the present writ is wrong in not alleging the demandant's ownership to be a fee-simple; it alleges a fee. That point fails, by force of a previous decision of the question in the case of Jordan v. Record, 70 Me. 529.

The description of the demanded premises in all of the writs and papers, including the deed from the officer, is this: " The mill and dam, with the appurtenances, and the land under and adjoining them, and used therewith, situated on and across the stream that constitutes the outlet of the Lovejoy pond, and formerly owned by Belden Bessey and now occupied by the defendants." It is argued, by the defendants, that this is not a good description because not giving metes and bounds. We think that, in this particular proceeding, such a general description is well enough, though such might not be the case in officers' proceedings usually. It is the language of the statute. It may in this case be a safer description to abide by than any other, for both parties.

The defendants contend, further, that the description does not embrace the dam which caused the original injury by flowing, and that for that reason the proceedings are erroneous. It appears that there are two dams across the stream, one at the mill, and the other about half a mile above the mill, and within a mile from the pond; that the lower dam flows only up to the upper dam; that the upper dam holds back the principal head of water used at the mill, and caused the flowage which the demandants complained of; that the same person was the owner of the mill and both dams, and that for many years the dams have been used in conjunction with each other; and it may be inferred, we think, from the evidence, that either structure would be of very little value or consequence without the other.

The question, upon these facts, is, whether an easement in the upper dam is included in the describing words, " mill and dams, with the appurtenances," as used in the sheriff's conveyance and the other papers. We think it is contained therein, not in express terms, but by the strongest implication. It is an incident to the land granted.

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