Tuttle v. Walker , 46 Me. 280 ( 1858 )

The opinion of the Court was delivered by

Hathaway, J.

William B. Morrill formerly owned all the land between Union street and the river road, and bounded on the west by Cross street, in Skowhegan. [See plan, p. 281.]

By deed of December 9, 1825, he conveyed to Samuel Bickford a lot bounded northerly by Union street and westerly by Gross street, fifteen rods long on Cross street, and six and a half rods wide. In the deed was the following reservation:— “ excepting and reserving, as follows: —If the town should hereafter lay out and accept a road, from the road first mentioned (Cross street on the plan) to the river road, near the house of J. H. Hill, then the south end of the above described premises shall be considered and occupied for the use of the same, three rods wide; and otherwise, reserving the same for a private way forever,” and by deed of February 9, 1833, Bickford conveyed the southerly part of his lot to the defendant, with the same reservation as was contained in Morrill’s deed to him.

The plaintiff became the owner and occupant of the land south of, and adjoining, the three rod strip specified in the deed as reserved, which strip was conveyed to him by Morrill, by deed of July 3, 1855. The question is concerning the rights of the parties to the three rods reserved.

It was clearly Morrill’s intention to reserve a right of way for a town road, if the town would lay it out and accept it; and if the town declined to do so, then, for a private way, as was obviously for his interest, as it would give him, and those to whom he might convey, easy access to his land adjacent, and therefore render it. more valuable. Owning the whole lot, Morrill had an undoubted right, when he sold it, to make such reservations as he chose to make, either with a view to his own interest, or to that of other individuals, or for the public benefit. Salisbury v. Andrews, 19 Pick. 250. Morrill’s deed to Bickford, from whom the defendant received his title, conveyed the fee of the whole lot of land described therein, subject to an easement for a town way over the three rods, if the town would accept it, and if the town did not use it for that purpose, as it seems they did not, then it was to be for a private way forever. Hind v. Curtis & al., 7 Met. 94; Bowen & al. v. Conner, 6 Cush. 132.

The testimony reported does not show title in the defendant by adversary possession. His request to Morrill, in 1848, to convey his right to him, is inconsistent with any such claim of title.

The plaintiff took, by Morrill’s deed to him of July 3, 1855, nothing more than the right which Morrill had reserved in the land, which was only a right of way, and as the defendant maintained obstructions in the way, he is liable in this action. Proof of actual damage is not necessary. 16 Pick. 241. Whether the plaintiff is entitled to recover actual, or merely nominal damages, will be determined by the presiding Judge, by whom the parties have agreed the question of damages shall be settled. Defendant defaulted.

Tenney, C. J., and Rice, Appleton, May, and Davis, J. J., concurred.