S. E. & H. L. Shepherd Co. v. Shibles

• Decision Date: 23 June 1905
• Citation: 100 Me. 314,61 A. 700
• Parties: S. E. & H. L. SHEPHERD CO. v. SHIBLES et al. (two cases).
• Court: Maine Supreme Court

61 A. 700

100 Me. 314

S. E. & H. L. SHEPHERD CO.

v. SHIBLES et al. (two cases).

Supreme Judicial Court of Maine.

June 23, 1905.

Beport from Supreme Judicial Court, Knox County.

Two actions by the S. E. & H. L. Shepherd Company against John W. Shibles and others. Cases reported. In the first action, judgment for plaintiffs against defendants Bryan and Kent; and in the second suit, judgment for defendants.

Two actions based upon precisely the same facts. The first is trespass quare clausum, wherein the defendants are charged with breaking and entering, with force and arms, the plaintiff's close, situate in Rockport, in the county of Knox, and committing certain acts of trespass thereon. The second is an action on the case, and charges the defendants with the acts specified in the declaration in the first action. After the evidence on both sides was concluded, it was agreed that the case be reported to the law court, "for that court to pass upon and decide all questions of law and fact involved."

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEA-BODY, and SPEAR, JJ.

C. E. & A. S. Littlefield, for plaintiffs. D. N. Mortland, for defendants.

SPEAR, J. This case involves two actions, both based upon precisely the same state of facts. The first is trespass quare clausum, wherein the defendants are charged in the usual form with entering plaintiff's close, situated at Rockport, in the county of Knox, and with erecting upon said premises spars and posts for the support of derrick guys, and digging up said close and planting anchorage for guys therein, and running guys over and securing them in said close, and thereby greatly incumbering and damaging the same, and preventing the plaintiff from having full and free use thereof.

The second is an action on the case, and charges the defendants with the acts specified in the first count upon the premises of the plaintiffs, located at Rockport, and bounded and described as follows: Beginning on the road leading from Simonton's corner to the late Alexander Harrington's, at the line formerly dividing the land of Abel Merriam et al. from the land of S. E. Shepherd et al. at the northwest corner of the present quarry lot; thence N., about 70 deg. E., by said Thorndyke quarry lot, 75 feet, to a stake and stones; thence westerly, 152 feet, to the road first mentioned, passing through a point 110 feet on the easterly line of said road, to the place of beginning; thence south, by said road, 110 feet, more or less, to the place of beginning—whereby the owner of said premises was deprived of their use and benefit.

The declaration in the first writ describes that portion of the Thorndyke farm owned by S. E. & H. L. Shepherd Company, and included within its limits the premises described in the declaration of the second writ. The latter premises, alluded to in the testimony and upon the plans as the triangular piece, is the locus of the real controversy in this case —the trespass, if any, set out in the first writ being technical, the right to stretch and hitch the derrick guys on some portion of the premises therein described being unauthorized. The foundation for the derrick and the erection thereof and the depositing of the débris complained of were all done within the limits of the triangular piece. The defendants claim that they have a right to occupy and use the triangular piece and land therein described, for the purposes for which they were using it, by virtue of the following deed from Abel and Wilson A. Merriam to John H. Bells, John W. Shibles, and Wilson A. Merriam, without date, but acknowledged July 2, 1887, described in the premises therein conveyed as follows: A certain lot or parcel of land situated in said Camden, and described as follows, to wit: Beginning on the road leading from Simonton's corner to the late Alexander Harrington's, on land formerly S. E. and H. L. Shepherd's; thence, by said Shepherds' land, N., 70 deg. E., 75 feet, to a stake and stone; thence westerly, 152 feet, to the road first mentioned, at a point 110 feet on line of said road from place of beginning; thence southwesterly, 22 deg. 40 min. E., by said road, 110 feet, to place of beginning—meaning to convey only a right of way across the same, and reserving the right to take lime rock from the same. This was a warranty deed, containing all the covenants usually found in such a deed.

The plaintiffs assert title to this same piece of land by virtue of a deed from Abel and Wilson A. Merriam, the same grantors under whom the defendants claim title under the above-described deed. It is conceded that at the date of the defendants' deed title to this lot was in Abel and Wilson A. Merriam. On the 23d day of October, 1895, the S. E. & H. L. Shepherd Company, the plaintiffs, purchased of Abel and Wilson A. Merriam lot 2, as delineated upon a plan used in evidence, and within the boundaries of that lot is situated the triangular piece in question. By virtue of this deed the plaintiffs also claim a title by fee in the triangular piece, excepting, as their deed specifies, "the right of way across the triangular piece." Admitting, without deciding, that an action on the case will lie in favor of the plaintiffs for consequential damages and injuries to, their freehold, then the question of the liability of the defendants depends upon the construction of their deed. If it conveyed to them in fee, if for only a right of way, they are not liable; if it conveyed to them simply the right of way, then they had no right to incumber it as they did, and would be liable. As will be seen from an examination of the deeds cited above, Abel and Wilson A. Merriam in 1887, long prior to the date of the plaintiffs' deed, by their warranty deed conveyed to Eells, Shibles, and Merriam, the defendants' lessors, this identical piece of land now under contention, by metes and bounds; and, as their deed says, it gives, grants, bargains, sells, and conveys to the grantees, their heirs and assigns, forever, the parcel of land described, with all the privileges and appurtenances thereof, and then further says, "meaning to convey only a right of way across the same, and reserving the right to take lime rock from the same." Does this deed convey a fee or a right of way, an easement? Are the grantors bound by what they actually in express and unambiguous words conveyed, or by what they said they meant to convey? Under the circumstances of this case, we are of the opinion that the deed conveyed a fee.

A reservation is of a thing not in being, but newly created out of the lands and tenements devised. "A reservation is said to vest in the grantor some new right or interest not before in him, operating by way of an implied grant." Engel v. Ayer, 85 Me. 453, 27 Atl. 352. A reservation does not necessarily...