Moulton v. Faught , 41 Me. 298 ( 1856 )

Appleton, J.

This is an action of trespass, for an injury to a dam built by the plaintiff on the land of the defendant.

It seems, that the defendant acquired title to twenty-three and one-half acres of land, upon which the dam in dispute was erected, by a deed from one Southwick containing the following reservation: — “Reserving to the said Southwick and his successors, the privilege of flowing, by a dam situated at the outlet of the bog, as much of the above described premises as may be useful to them for the benefit of machinery situated at the brook below; reserving likewise the privilege of digging and removing earth and stones from said premises, at all times when the same may be wanted for building, repairing and supporting said dam, and of passing and repassing across said premises for such purposes.”

The title to the Southwick tannery, for the benefit of which this reservation was made, on April 1st, 1846, passed to David Pingree, who on May 23d, 1849, gave a bond to Henry Cutler to convey to him by deed of quitclaim, all his (Pingree’s) right, title and interest, “ in and to a certain estate situate in said Sidney, being the same now occupied by said Cutler for tanning and agricultural purposes,” &g. The plaintiff claims a right to erect the dam, by virtue of the verbal permission of Cutler. If Cutler were to be regarded as the successor of Southwick by reason of his bond, and as such entitled to the benefit of the reservation, still it is difficult to perceive how the plaintiff can derive any benefit therefrom.

The reservation was for the benefit of Southwick or his successors, and not for that of those claiming title to other mills, derived from other sources. The plaintiff is the owner of a saw-mill. It does not appear, nor is it alleged, that his title was from Southwick, or that the reservation was for the mills now occupied by the plaintiff. The reservation was for the benefit of Southwick and of the machinery owned by him, and not for that of others.

The direct interest in the premises passed to the defendant by his deed. The right reserved by the grantor was an incorporeal hereditament. It was not the land itself, but a right annexed to it, and it could only pass by grant. The grantor could only assign his reserved interest by writing, according to the express provisions of the statute of frauds. Thompson v. Gregory, 4 Johns. 83.

In the present case, Southwick conveyed to the defendant but twenty-three and one-half acres. The dam in dispute, besides flowing the land granted, flows likewise from fifty to a hundred acres of land belonging to the defendant. Southwick, by his reservation, could not and did not attempt to impose a burthen upon the other lands of the defendant. The dam cannot therefore be justified by the reservation under which it is claimed to have been built.

It is provided by R. S., c. 126, § 3, that no mill or dam shall “be placed on the land of any person, without such-grant, or conveyance, or authority, as would be necessary by the common law, if no provision relating to mills had been made by any statute.”

The right to erect and maintain a dam on the land of another, must be regarded as such an interest in real estate as cannot pass by parol. Pitman v. Poor, 38 Maine, 236; Thompson v. Gregory, 4 Johns. 81; Cocker v. Cowper, 1 Cr., M. & Ros. 118. The verbal license to erect, would not be legally binding on the defendant. It was held in Mumford v. Whitney, 15 Wend. 481, that a parol agreement that a party might abut and erect a dam upon the lands of another, not for a temporary, but for a permanent purpose, as the creation of mills or other hydraulic works, was void within the statute of frauds. Plaintiff nonsuit.

Tenney, C. J., and Rice, Cutting, and May, J. J., concurred.