Marshall v. Niles , 8 Conn. 369 ( 1831 )

Peters, J.

This case presents two questions: 1. Was the land demanded conveyed to Marshall and Latham, by the deed of the Sopers? 2. Or was it included in the reservation to William Soper?

The grant was of a grist-mill and the bank whereon it stood, with the appurtenances thereof, on the South side of the river. West of and adjoining to the bridge, which crosseth the river. The grant is of land and buildings. The reservation is of a building only. By a grant of land, the superstructure passes. By a grant of the superstructure, that only passes. 2 Bla. Comm. 18. The defendants admit, that by the term bank, land passes; yet they claim, that by this deed, that only passed, which was covered by the buildings. The grant of the appurtenances conveyed to the grantees a right of way to the premises, and every thing else necessary to the enjoyment of the grant. The land conveyed is under the buildings and adjoining to the bridge; and the building reserved is between the mill and the bridge, and upon the land in question. The intention of the parties is obvious; and the terms of the grant are too plain to admit of doubt. Were they otherwise, they are to be taken most strongly against the grantors. As the defendants have no estate in the land, and their interest in the building is limited to its existence, they have no right to incumber the land beyond that period; and having voluntarily destroyed it, their interest is terminated; and by continuing in possession under a claim of right, they have become disseisors.

The plaintiffs are, therefore, entitled to judgment according to the agreement of the parties.

The other Judges were of the same opinion.

Judgment for plaintiffs.