Beckwith v. Rossi

• Decision Date: 07 November 1961
• Citation: 175 A.2d 732,157 Me. 532
• Court: Maine Supreme Court
• Parties: Howard BECKWITH v. Frank ROSSI and Thomas Teague, Intervener by Application.

Page 732

175 A.2d 732

157 Me. 532

Howard BECKWITH v. Frank ROSSI and Thomas Teague, Intervener by Application.

Supreme Judicial Court of Maine.

Nov. 7, 1961.

Eames & Eames, Skowhegan, for plaintiff.

Robert A. Marden, Waterville, for defendant.

Before WILLIAMSON C. J., and WEBBER, TAPLEY and SIDDALL, JJ.

SIDDALL, Justice.

This is an appeal from a decree granting defendant Rossi's motion for a summary judgment and denying plaintiff's motion for such a judgment

Sarah T. Cole, in 1945, conveyed to Ralph A. Jewell certain property located in Fairfield Maine. The controversy in the case involves the interpretation of the following provision in that deed, to wit, 'Also reserving the gravel near the northerly line of said lot but with the understanding that the purchaser of the lot may take gravel therefrom for use on the farm which he owns on the westerly side of said road which was formerly a part of this farm.' The property came from Ralph A. Jewell by various mesne conveyances to the plaintiff, subject to the above described reservation. Sarah T. Cole conveyed to Thomas M. Teague the gravel reserved by her in her deed to Jewell. The defendant Frank Rossi entered upon said property by permission and license given him by Teague to take the gravel. Rossi bored seven holes in the ground to test for the presence of gravel, and after finding no gravel, the holes were filled by use of a bulldozer.

Under the old rules of court then in effect the plaintiff brought suit in trespass q. c. f. against the defendant Rossi, claiming that the topsoil of his property had been damaged by Rossi's operations. Subsequent proceedings were conducted under the new rules. Teague intervened as a defendant. Teague in his answer set up a counterclaim requesting that plaintiff be enjoined from certain acts with reference to the reserved gravel.

The action of the court of the motions for summary judgment was taken under the provisions of Rule 56 of the Main Rules of Civil Procedure. This rule provides that summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. Rule 56(c).

The points of appeal relied upon by the plaintiff are summarized as follows:

1. That the court erred in ruling that Sarah Cole had an assignable interest in the gravel.

2. That the court erred in ruling that Sarah Cole had a greater interest than a life estate in the said gravel.

3. That the court erred in ruling that the defendant had the right to bore holes and close the holes so bored by the method used.

The use of the words 'reserving the gravel' used in the deed from Sarah Cole to Ralph Jewell created in Sarah Cole what is technically designated as a 'profit a prendre.' A profit a prendre is the right to take from the land of another a part of the soil, or something which is a product of the soil. Examples of profits a prendre are the right to take soil, gravel, minerals and the like from another's land. See Engel v. Ayer, 85 Me. 448, 455, 27 A. 352. The right may be appurtenant to a dominant estate, in the nature of an easement proper, or it may be a right in gross. In the instant case the right to the gravel does not appear to be appurtenant to other lands and therefore is a right in gross. A right to a profit a prendre in gross in the lands of another is treated as an estate or interest in the land itself. Such interest is assignable and may be for life or inheritance. Engel v. Ayer, supra.

The ruling of the court that Sarah Cole had an assignable interest in the gravel was correct.

The plaintiff also claims, in the points of appeal filed by him, that the court erred in ruling that Sarah Cole had a greater interest than a life estate in the gravel. There is no suggestion in the record that Sarah Cole was not alive at the time of the acts of the defendant upon which the complaint was based. Furthermore, the plaintiff did not argue this point of appeal in his brief filed with this court. Therefore, a discussion of this claim is unnecessary.

The plaintiff makes the further claim that the court erred in ruling that the defendant had the right to bore test holes and to close such holes by the method used therefor. This claim necessitates; (1) a discussion of the rights and obligations of the owner of a right to profits a prendre and those of the owner of the remaining soil; (2) whether, under common law pleadings, a suit in trespass q. c. f. may be properly brought for damages arising out of the misuse of such right; (3) whether the issue of misuse of such right was eliminated in the pre-trial proceedings.

The record shows that no gravel was found in the area tested. We are therefore not concerned with the question of whether gravel was properly taken from the property. We are, however, concerned with the right of the owner of a right to profits a prendre to make tests for the presence of gravel, and with his obligations to the owner of the soil during and after such operations.

'The right of a profit a prendre involves the right to do anything upon the land in which the right exists that is reasonably necessary for the proper exercise of the right.' Thompson on Real Property, Vol. 1, Sec. 225. (Emphasis supplied.)

'A profit a prendre involves a right to do such things on the land in which the right exists as are reasonably necessary for the exercise of the right.' Tiffany Real Property, 3d Edition, Sec. 839. (Emphasis supplied.)

The rights and obligations of the owners of the right to profits a prendre and of the owners of the remaining soil are not unlike those of the owners of the dominant and servient estates in the use and enjoyment of easements proper.

One having an easement in another's land must exercise his right in a reasonable manner. Kaler v. Beaman et al., 49 Me. 207, 208.

'The owner of the easement has all rights incident or necessary to its proper enjoyment but nothing more.' Great Hill Lake v. Caswell, 126 Conn. 364, 11 A.2d 396, 397.

'It is an established principle that the unrestricted grant of an easement gives the grantee all such rights as are incidental or necessary to the reasonable and proper enjoyment of the easement. A grant or reservation of an easement in general terms is limited to a use which is reasonably necessary and convenient and as little burdensome to the servient estate as possible for the use contemplated. An unlimited conveyance of an easement is in law a grant of unlimited reasonable use.'

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'The reasonable use and enjoyment of an easement is to be determined in the light of the situation of the property and the surrounding circumstances. No definite rule can be stated, however, as to what may be considered a proper and reasonable use as distinguished from an unreasonable and improper use. The question is usually one of fact.' 17A Am.Jur., Easements, p. 720, 721.

In the instant case the reservation of the right to profits a prendre was set forth in general terms, and the rights and obligations of the respective parties were not specifically set forth in the instrument of conveyance. In such a situation, the right of the defendant to make reasonable tests for the presence of gravel was incidental to the proper enjoyment of his rights to profits a prendre. Having found no gravel, it became the duty of the defendant to restore the soil in a reasonably proper manner.

Generally, the owner of an easement who exceeds his rights either in the manner or extent of its use is guilty of a trespass. 28 C.J.S. Easements § 103, p. 785, 17A Am.Jur., Easements, p. 719-720. We see no reason why the same rule should not apply to the owner of a right to profits a prendre.

The case of Kaler v. Beaman, supra, involved the wrongful use of certain easements of way and right to the use of water. The suit was for trespass q. c. f. brought by the owner of the servient tenement. In finding for the plaintiff, the court said:

'Merrill, by his deed, had the right to draw the specified quantity of water from Kaler's flume, at such point as would best convene himself. But he must exercise that right in a reasonable manner. Though he was authorized to select from what part of the flume he would draw the water to which he was entitled, he would not, in the exercise of that right, by wantonness or negligence, so conduct as unnecessarily to injure the plaintiff, in the exercise of his remaining rights.

'The defendants also have, by the terms of Merrill's deed, a right to the use of one half of the surplus water, over and above what was necessary to carry Kaler's...