Thompson v. Proprietors of Androscoggin Bridge , 5 Me. 62 ( 1827 )

Mellen C. J.

delivered the opinion of the Court.

The question upon the issue in this case is, whether the tenants have more right to hold the demanded premises in fee, than the de-tmmdants have to recover them. The seisin of Samuel Thompson was proved; and ihe demandants are his heirs at law, and are entitled to maintain this action, unless, by the act incorporating the proprietors, or by the conveyances made to Blanchard, and to King and Porter, by the ancestor, Samuel Thompson, that right has been taken away. With respect to the act of incorporation, it passes no fee simple estate to the tenants, but merely authorizes them to erect a bridge in a certain direction across the river. But, even if the fee passed, in the land or rock over which the bridge extends, that would not convey the fee simple in the land or rock on either side ; nor is it necessary that a toll-house should be on the bridge, or adjoining it on one side. It may stand on either shore. The right, therefore, whatever it is, to erect a toll-house, adjoining the side of the bridge, is not incidental to the grant to erect the bridge. It has been contended, that an estate in fee passed by the deeds, in the premises demanded, which disproves the seisin of the ancestor as alleged j but this cannot be admitted. The portions of the mill conveyed, and of the rock or land under or adjoining them, are described by distinct boundaries, which do not include the demanded premises. This point was not much relied on ; but it has been seriously contended that the easement, conveyed by the deeds, will be destroyed by a recovery in this action; and that an absolute judgment, rendered in favor of the demandants, will place them in a situation to hold the premises at once relieved from the easement. The first answer to this argument is, that if such would be the legal consequence, the tenants need not give themselves any trouble about it; because they have no interest in the easement. But such would not be the legal result. The easement would remain; and those entitled to it, might maintain an action against the demandants, or their assignees, for any disturbance in the enjoyment of it. The judgment and verdict in this case would be no evidence in such action on the case for disturbance. Surely the rights of Blanchard, and King and Porter, are not impaired or affected by the judgment against the tenants, between whom and Thompson's assignees there is no kind of privity. This argument therefore fails. Besides, if we should give it all the importance which the counsel has given, still it has no tendency to prove the issue on the part of the tenants.

The remaining question is whether the evidence offered by the tenants, disproves the seisin of the ancestor within the time alleged. On this point we are all clear that the rise of the easement by Thompson’s grantees, or in other words, the occupation by piling lumber, was not inconsistent with the estate remaining in Thompson. It was a lawful user, and under their deeds ; and of course in no degree partakes of the character of a disseisin. On every ground wé think the defence has failed, and accordingly there must be

Judgment on the verdict.