Gibson vs. Brockway

The question in this case is, What ground is covered by the plaintiff’s title ? What, if any thing, is he entitled to recover ?

The defendant contends, that the deed to Graves conveyed no interest in the land, but merely the corn-mill, and when that mill was washed away the plaintiff’s interest ceased.

Our view of the matter is. that the conveyance of the corn mill, with its privileges and appurtenances, conveyed not only the mill itself, but the land on which it stood, with the land where the dam stood, and the land covered with the mill-pond, as it existed at the time of the conveyance to Graves. Such, we think, must have been the intention of the parties; and it is a well settled rule of law, that every deed ought to be construed, if it be legally possible, so as to effect the intention of the parties. 4 Mass. 136, Wallis vs. Wallis; ibid 205, Worthington vs. Hylyer; 9 Mass. 518, Davis vs. Hayden & al.; 3 Johns. 395, Jackson vs. Myers; 4 Dallas 347; >3hep. Touch. 86 — 88.

There can be no doubt, I apprehend, that a deed execut-’ ed to convey real estate, and purporting to convey a dwelling-house, a corn-mill, or any other building, conveys the land on which such building stands; and it seems to me that the mill-dam and mill-pond are to be considered parts of the mill, and pass with it as parts of the soil and freehold conveyed. The floom that conveys the water to the wheel is as much a part of the mill as the wheel; and the wheel is useless without a dam and pond of water. It does not seem to me that these are things considered as appurtenances; they are not things appertaining to the mill, but are parts of the mill — parts of the thing conveyed. It could not. have been within the contemplation of the parties, that Bailey was conveying to Graves the building merely that was called a grist-mill or corn-mill, but that he conveyed also a dam and water, — things necessary to make it a corn-mill, and without which it could not properly be called by that name! Perhaps the right of way to pass and repass might be considered an appurtenance only, or an easement; and as regards that, the right of soil ¡nay not have been conveyed. In support of these views he referred to Shop. Touch, 90 — 92; 4 Com. Dig. 312, Grant, E, 5; ib. 314; 2 Roll. Ah. 60; 7 Mass. 8, Leonard vs. White; Co. Lilt. 5, 6; Co. Litt. 5, a; Cro. Eliz. 521, 522; 5 Coke’s Rep. 11, Ives’ case; 4 N. II. R. 21,'Webster vs. Atkinson; 9 Johns. 298; ibid 377; 3 Johns. 395.

In regard to the question whether an ouster was proved, it seems that between tenants in common, when the general issue of nul disseizin is plead, proof of actual ouster is not necessary. 5 Mass. 351; 1 Pick. 318 — 328; I Johns. 312; 11 Johns. 463.

But however this may be, here was an actual ouster, if any thing done by one tenant in common can amount toan ouáter. The defendant and his grantors have not merely taken the rents and profits, as one tenant in common may do, but after the mill, which was the subject of the profits, was carried off, the defendant’s grantor refused to let the plaintiff join with him in rebuilding, and rebuilt himself, denying that the plaintiff had any right or interest there; and he and the defendant have held and occupied exclusively to their own benefit, under a claim of sole seizin, and refused the plaintiff any participation in the use and occupation. This surely is an ouster — a disseizin of the plaintiff. We claim an undivided half of the mill, dam and mill-pond, to hold the same in common with the defendant.

Hubbard if Gilchrist, for defendants.

1. The deed, Bailey to Graves, of May 25, 1802, conveyed no interest in the land. Thompson vs. Prop, of And. Br., 5 Green. 62; Withington if al., ex'rs, vs. Ay Iyer Sf al., 4 Mass. 199. Arguendo, that a grant of buildings does not affect the conveyance of the land on which they stand. Leonard vs. White, 7 Mass. 6: Taylor vs. Hampton, 4 McCord. 92; Whalley vs, Nurton, 1 Bos. ⅜' Pul. 52. See, also, Darling vs. Crowell, 6 N. PI. R. 421.

2. If the conduct of Jonathan Brockway amounted to a disseizin of Graves, it is difficult to see on what principle the deed of Graves to this plaintiff, of October, 1829, could convey any interest. The court, in Willard vs. Twitchell, 1 N. II. II. 178, consider the law as settled in that case, “ deeply to be regretted.” It conflicts with the law-as settled in 2 Bl. Com. 290; 3 Mass. 574: 5 do. 276; 6 do. 241; 14 do. 200; 5 Pick. 355; 13 do. 1-52; 5 Johns. 489, 500.

The opinion of the court was delivered by

An exception was taken on trial, that there was no evidence of a disseizin by the defendant; but the general issue which is plead in this case is a denial of record of the plaintiff’s right to recover any part or parcel of the premises, so that the pleadings are fatal to this exception.

The only question to be determined in the case, is whether the deed under which the plaintiff claims, passes the buildings merely, or the land on which the same were situated, with such adjoining land as may be essential for their use and improvement. Conveyances are most usually by metes and bounds of land, with the additional description, where buildings are upon the premises, of the phrase, “ with the buildings thereonbut this addition is immaterial. A conveyance of the laud passes the buildings, of course.

But land will also pass by other terms of description. Thus a conveyance of a messuage, a rectory, a house, <fcc. will in many instances convey land.

In Shepard's Touchstone 94, it is said that “ the grant of ‘ a messuage, or a messuage with the appurtenances, passes ‘ the house and building adjoining, together with the close ‘ upon which the dwelling-house is built, and the little gar-‘deu, yard, field, or piece of void ground lying near, and 1 belonging to the messuage. And so much also may pass ‘ by the grant of a house.”

Coke says: By the grant of a messuage, or house, the 1 orchard, garden and curtilage do pass, and so an acre or ‘ more may pass by the name of a house.” Co. Litt. 216.

The grant of a cottage will pass a little dwelling-house, that has no land belonging to it. Shep. Touch. 91. A cottage is a little house without land. Co. Litt. 216.

In Doe vs. Collins, 2 D. & E. 499, a devise “ of the house I live in, and garden, to B,” was held to include the stables, and the land on which they stood, and a coal pen which was on the opposite side of the way, and separated by the road. Ashurst, J., said — “ The distinction betwixt a ‘ house and a messuage seems to be too subtle to be relied ‘ upon at this time; for he thought whatever would pass by ‘ the one would pass equally by the other.” See, also, 2 Saund. 401, Smith vs. Martin, and authorities there cited. Blake & al. vs. Clark, 6 Green. 436, is a case directly in point. It was there holden that the conveyance of a saw-mill conveyed the fee of the land, on which the mill stood, and that the land on which a mill stands may be regarded as including land over and upon which the slip, if it has one, or any other necessary projection from the mill, passes, and that the term may also embrace the free use of the head of water existing at the time of the conveyance, as also a right of way, or any other easement which has been used with the mill, and which is necessary to its enjoyment.

We are of opinion that the description in the plaintiff’s deed must go to this extent at least. The terms used in the conveyance here are much stronger than those in the case last cited.

Tenement is a large word to pass not only lands, and other inheritances which are holden, but also offices, rents, commons and profits arising from lands. 1 Co. Litt. 219; Shep. Touch. 91.

With us the word tenement is applied exclusively to land, or what is usually denominated real property. Stearns on Real Actions, 150.

The description used in the conveyance in this case, is: “A certain tenement, to leit.: one half of a corn-mill, situ- ‘ ated in Washington, in the county of Cheshire, in lot No. 1 one, and second division, with all the privileges thereto ‘ belonging, the same as I now possess.” The design was, without doubt, to pass, under the phrase, “ a certain tenement, being one half of a corn-mill,” the land on which the same was situated, together with that portion of the water privilege which was essential to the use of the mill; and such is the proper legal effect of the terms made use of.

Independent of the word tenement, there is sufficient ip this description to convey the land connected with the mill' The term messuage, house and mill, will often include land if not necessarily so, unless there is something in the cot veyance to rebut such a presumption. In this case eac portion of the description corroborates the construction f give to it, and makes it an undoubted conveyance of l?d and buildings. The verdict must, therefore, be set aside, jd

Judgment rendered for the plaintij