Baker v. Bessey , 73 Me. 472 ( 1882 )

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 Maine, 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 BeldenBessey 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 demand-ants 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.

The question is governed by the ancient maxim or rule of law, that when a person grants a thing, he is supposed also tactily to grant such means of his own as are necessary to thereby attain the thing granted; that, when the principal thing is granted, the incident passes with it. Broom Max. *362; Shep. Touch. 89. Incidents attached to land granted pass to the grantee, without any special terms in the conveyance, when necessary for its use and enjoyment. This principle is especially applicable to water privileges in grants of mills dependent for their use and value upon a water-power.

The general principle has various practical applications. A deed of a wharf may, by implication, include the use of adjoining flats; of a house, may convey the right of access thereto; of standing timber, grants the necessary facilities for cutting and removing it; of a mine, the opportunities to excavate for it; of a "farm” or "messuage ” or "manor,” known by any certain name, may include sundry distinct tenements and easements which are necessarily incident to the principal thing described as granted. A "barn,” when conveyed or reserved eo nomine, may include a shed, connected with it, and other privileges. Cunningham v. Webb, 69 Maine, 92. Under a description of a "rope-walk” in a deed, such land of the grantor may pass as is habitually and necessarily used for its business. Davis v. Handy, 37 N. H. 65. An interesting and novel illustration of the principle is seen in the case of Hougan v. Railroad, 35 Iowa, 558, where it was held that a railroad company, having by grant a right, of way for the use and occupation of.its railway, had the legal right to dig a well upon such right of way and to use the water supplied by percolation for railroad purposes, although it materially diminished the supply of water in a spring upon the grantor’s land. It has been frequently held that the principle applies to a grant of land with water running to, buildings upon it, the grantor having a permanent ownership in the estate and in the waters. Coolidge v. Hager, 43 Vt. 9.

The maxim or principle is general in its character, ipid for that reason different courts have been led to different conclusions in many instances, and nice distinctions have arisen in cases. Differences might arise even in respect to some of the cases which we have cited for the purpose of argument and illustration. But in construing conveyances of mills and mill privileges, the course of decision has been uniformly liberal towards the grant. It was laid down by the old writers in general terms, that, "by the grant of mills, the waters, flood-gates, and the like, that are of necessary use to the mills, do pass.” The same doctrine was at an early day accepted in this 'State. In Blake v. Clark, 6 Maine, 436, it was held that the word "mill” in a conveyance would carry the land under the mill, and might embrace the free use of the head of water existing at the time of the conveyance, as also a right of way and any other easement which has been used with the mill and which is necessary to its enjoyment. This principle has been acted upon in quite a number of subsequent cases. Hathorn v. Stinson, 10 Maine, 224; Maddox v. Goddard, 15 Maine, 218; Rackley v. Sprague, 17 Maine, 281; Crosby v. Bradbury, 20 Maine, 61; Stackpole v. Curtis, 32 Maine, 383. Shaw, C. J., defines the principle in Richardson v. Bigelow, 15 Gray, 154, as far as applicable to the waterpower embraced in such a description. " It is a well settled rule of law,” says he, "that the grant of a mill carries with it, by necessary implication, the right to the use of the water-course coming to the mill and furnishing power for working it, and also to the canal or raceway which carries the water from the mill, to the full extent of the grantor’s right and power so to grant them.”

There are cases which hold that the rule would, not apply where a mill-site is described by metes and bounds, without any allusion in the deed to any mill or water right or privilege, and there is nothing therein to indicate an intention to include any privileges connected with the main subject of the grant. Brace v. Yale, 4 Allen, 393; Tabor v. Bradley, 18 N. Y. 109; Voorhees v. Burchard, 55 N. Y. 98; Simmons v. Cloonan, 81 N. Y. 557.

The objection raised, that land does not pass as appurtenant to land,, does not apply in this case. The land is not claimed in the upper dam, but only the use of the land, an easement in it. Nor does the objection, pressed upon our attention, lie, that there was no easement to pass by the grant for the reason that the grantor had more than an easement, having a full fee. The question is not whether an existing easement passed by the terms of the grant, but whether a new one was not thereby created; whether the proceedings do not carve one out of the defendants’ estate; in other words, whether an easement in the dam above is not, in a legal sense, a part and parcel of the privilege below. A mere mill-structure was not the thing granted, but a mill; which implies a water power; and a privilege in the upper dam is an essential part of that power. The two are but one thing. The two combined are amenable for damages under the flowage act. Goodwin v. Gibbs, 70 Maine, 243.

The fact that a half mile’s distance intervenes between the two dams does not defeat an application of the principle. They are connected by a natural stream. All easements are out of land other than the principal land granted. It is the use of the water-course that constitutes the privilege, which may necessarily be for a longer or shorter distance, according to circumstances. It may require a control of the water far above or below the mill. New Ipswich Factory v. Batchelder, 3 N. H. 190. Distance is but one of the elements to be taken into the account. This is outweighed by relatively more important considerations. " It has often been held that a conveyance by metes and bounds, of a mill site,” says Folger, J., in Voorhees v. Burchard, supra, "carries the right to take and convey and discharge water, from and across landsmot within the boundaries given by the deed, for the reason that the power so to do is necessary to the full enjoyment of the property specifically conveyed.” The case of Perrin v. Garfield, 37 Vt. 312, presents a statement of facts almost identical with those in the case at bar, where the court decided that such an easement passed. Peck, J., in discussing the question, says: "It is said this dam or easement is too far distant to pass by a conveyance of the mill. The proximity of the one to the other is of little comparative importance in determining the question whether an easement passes by a conveyance of the dominant tenement. It depends rather upon the nature, character and purpose of the easement, its relation to the subject matter of the grant, its accustomed use in connection with it, and its necessity to the value, and to the beneficial and convenient use of the premises granted.”

It seems that one of the defendants has been in all the proceedings called Belden Bessey, while his true name is Jonathan Belden Bessey. The objection does not lie to this action, there being no plea in abatement. It does not avoid former proceedings, because J. B. Bessey was in all of them impleaded under the name of Belden Bessey, and appeared and contested the actions under that name. No question of notice arises. The case cited by the defendants (Dutton v. Simmons, 65 Maine, 583), presented a question of notice, where third parties were interested. Here only the immediate parties are concerned. Ryder v. Mansell, 66 Maine, 167. It would be well for the plaintiffs to amend the writ in this action by inserting defendant’s true name, and aver that former proceedings were prosecuted against Mm by the other name. Root v. Fellowes, 6 Cush. 29; Colton v. Stanwood, 67 Maine, 25.

Judgment for the plaintiffs.

Appleton, C. J., Walton, Barrows, Daneorth and Virgin, JJ., concurred.