Johnson v. Conant , 64 N.H. 109 ( 1886 )

The trespasses alleged in these suits consist of acts done by the defendants in rebuilding and enlarging a flume. The ledge in controversy is bounded on the east by the flume, on the north and west by Ammonoosuc river, and on the south by the defendants' pulp-mill. Both parties claim certain paper title to the ledge under Richard Gookin, to whom the ledge, a grist-mill (predecessor of the defendants' pulp-mill), flume, the land under the mill and flume, and other adjoining pieces of real estate, were conveyed by Sargent in 1815 by a deed which included the whole in one tract, described as a "tract or parcel of land in Bath, where the grist-mill now stands," and further described by metes and bounds. A blacksmith-shop lot on the east side of the flume, and a secondary right to draw a certain quantity of water from the flume (which lot and right are now owned by the plaintiff), had been previously conveyed by Sargent to Bartlett Thomas: but the ledge, the flume, and the land under the flume passed to Richard Gookin as a part of the grist-mill lot.

In August, 1829, after Richard Gookin's death, dower was assigned to his widow in an undivided half of the grist-mill lot, including the mill, flume, and ledge. The assignment, first describing her dower as an undivided half of the grist-mill, with the privileges and appurtenances to that half belonging, closes as follows, — "and we do hereby assign and set off the same to her by the metes and bounds by which her said husband held the same." On the facts stated in the referee's report, these metes and bounds were the metes and bounds of her husband's title deed, by which the ledge, grist-mill, flume, and the land under the mill and flume, were included in the grist-mill premises. Some months after the assignment of dower, "partition was made by the probate court of the real estate formerly belonging to Richard Gookin." This partition assigned to W. D. Gookin "the one undivided half of the brick grist-mill in Bath village, with all the privileges and appurtenances to the same belonging, to be held by him in as full and ample manner as the same might or could have been by the said Richard Gookin if living, with all rights of passage, and all other rights belonging or appertaining to the same, to be held in common with Rebecca D. Gookin," the widow, "during her life." The clause "to be held in common with Rebecca D. Gookin during her life" tends to show that, in territorial extent, W. D. Gookin's half was not less than the other half assigned to the widow for dower, which included the ledge and flume as a part of the grist-mill lot. The fact that the ledge would be excluded from the partition, and left undivided, if not thus assigned to the widow and W. D. Gookin, removes all doubt if the question of construction is not clearly settled by the other competent evidence. There is no evidence of an intention to make partition of anything less than all the real estate of Richard Gookin, unless the dowral reversion is an exception. The insignificance of the ledge is shown by the absence of all specific mention of it, and by its being included in the general description of the grist-mill premises; but there is in the case no indication of a purpose to leave it undivided. Land, not expressly named, was divided by the partition of the mill. Marston v. Stickney, 58 N.H. 609.

From 1815 to 1838 there was on the ledge a building, originally used for making nails, and called a nail-factory. In the reserved case, the application of the name of this building to the ledge is misleading. The partition not only made no use of this name, but ignored the separate existence of both the building and the ledge and set them off as a part of the grist-mill, and a part worthy of no particular mention. In title, the ledge has been a part of the grist-mill lot. The nail building was carried off by a freshet in 1838: since that time the ledge has been occupied by nobody but the grist-mill owners, who have made occasional use of it in clearing, repairing, and rebuilding the flume; and this was the only beneficial use that could be made of it. For the six months ending January 31, 1838, the plaintiff let the nail building to Ladd Thompson; and he received rent for their use of it during that time. With this immaterial exception, for every legal purpose of the reserved case, the ledge has been, in actual possession as well as in title, location, and utility, a part of the grist-mill lot

Before October, 1835, W. D. Gookin had conveyed a saw-mill on the west side of the river to Ross. Ross agreed to sell the saw-mill to the plaintiff; and W. D. Gookin agreed to convey half of the grist-mill lot to Ross. The four conveyances of October 23, 1835, were parts of one transaction, and are to be construed together. So construed they executed W. D. Gookin's agreement to convey to Ross half of the grist-mill lot of which the ledge was a part. One of these instruments, called by the plaintiff "a blanket deed," was a quitclaim from W. D. Gookin to the plaintiff. It is not necessary to inquire whether the referee's inability to find that the plaintiff paid anything for this paper is competent evidence on the question of its construction. The character of the document rebuts the ordinary presumption that favors such a construction of a deed as will give it some effect. It does not appear that the nail building, swept from the ledge by the freshet of 1838, is in existence. Its title is not now in controversy; and we need not inquire whether the plaintiff acquired any interest in it by his "blanket deed." The referee does not find, and no evidence is reported on which he could find, that the ledge was "the nail-factory privilege" mentioned in that paper. If anything passed under that description, it was neither the ledge nor any other section of the grist-mill lot, but some right of using water. If such a right, thus acquired, increases the plaintiff's interest as an owner in common with the defendants of the water-power of the flume, it does not enable him to maintain either of these actions. Whether the "blanket deed" gave the plaintiff any right of using water on the ledge or elsewhere is an immaterial question. The grantor expressly reserved his half of the grist-mill lot: by a deed which was a part of the same transaction he conveyed it to Ross: it is now owned by the defendants: and the ledge was as much a part of the grist-mill lot as the land under the mill.

The plaintiff claims the ledge by prescription. The referee, after stating the facts bearing on this claim, says, "If upon the foregoing facts it is competent to so find, the referee finds that Johnson has acquired title by adverse possession." There is no evidence of such a title in the plaintiff. He owned certain water rights on both sides of the river, and for sixteen years was accustomed to receive rent for the use of water which he chose to call his "nail-factory water." His doing this twenty years would have been no evidence of his possession of the ledge. The water was not used on the ledge; and he could get no title to the ledge by using, at some other place, some of the water of the river, and calling it his nail-factory water. The use elsewhere of a portion of the Ammonoosuc power was not possession of the ledge. His calling some of the river his nail-factory water might be evidence of his claiming the building that disappeared in 1838, and of his claiming some right to use some water somewhere. But such a claim, assented to by others, would not be actual possession of the ledge. Claim of title is a necessary accompaniment of, but not a substitute for, the possession that transfers the title of property from its owner to its possessor. There is no evidence that the plaintiff had such a possession of the ledge, except his tenants' occupation of the building: and if that were constructively expanded over the ledge, it would not sustain either of these actions. In duration, it lacked nineteen years and a half of being sufficient for the acquisition of title by prescription.

The referee found that the defendants' use of the ledge could not be justified as all exercise of a right of necessary use under certain implied grants claimed by them; but he held that if the plaintiff and Rand Cummings were tenants in common of the grist-mill lot, including the ledge, his conveyance of his half of the mill to them did not prevent them or their grantees from making any use of the ledge which they could rightfully have made of it before that conveyance; and that if the ledge "is a part of the grist-mill premises, it will of course follow that the grist-mill owners have only been making a legitimate use of the same." For many years before 1870 the plaintiff was one of the owners of the grist-mill lot, and he contends that when he sold his half of the mill in 1870 to Rand Cummings, who owned the other half, he did not convey to them any title to the ledge. If this claim is well founded, he is still one of the common owners of the ledge. He owns the blacksmith-shop lot on the east side of the flume, and the right to draw a certain quantity of water from the flume after the defendants draw a certain other quantity; and if he has any interest in the ledge, it is an interest held in common with the defendants. During the last fifty years, the flume has been carried away by a freshet "about once in every seven years." In the reconstruction of it, of which the plaintiff complains, the defendants, by making it larger, and substituting stone for wood, improved the plaintiff's water right, and greatly diminished the danger of losing the flume by freshet and decay. At their own expense they put a durable structure in place of the perishable one, and widened it westward on the ledge, which was worthless for any other purpose, and was not damaged by this use of it. Upon the view of the facts and the law most favorable to the plaintiff's complaint, the defendants applied the common property to the only use to which it could be profitably put; and the application, made without damage, was a common benefit to the plaintiff and the defendants. Their community of interest in the flume and ledge would not be a bar against either of the common owners improving the flume in the only way, or the best way, in which it could be improved, and using the ledge in the only way in which it could be beneficially used. Community of interest does not prevent every improvement to which one of the common owners objects. Cubitt v. Porter, 8 B. C. 257. The defendants are not liable in trespass for the use made of the ledge in rebuilding and widening the flume.

The plaintiff's water right in the flume is probably of small value; but it cannot on that account be excluded from consideration in ascertaining the rights of the parties in any branch of their controversy on which it has a legal bearing. For the return of water from his wheels to the river, in his enjoyment of his privilege on his blacksmith-shop lot, the plaintiff formerly had two easements in raceways running from that lot to the river, one under the grist-mill and the other under the flume; and he reserved the former when he conveyed to Rand Cummings half of the grist-mill "with the first right of water-power" and "a proportionate right of the flume." If the raceway under the flume had been in use when he reserved the other, it might have been argued that there was a presumption of his intent to retain the right in use at that time. But as neither of them was then in use, and neither had been used for fifteen years, no presumption arises from the contemporaneous use of the premises in favor of an implied reservation of an easement that would materially impair the apparent extent and value of his grant. In view of the condition of the blacksmith-shop lot, of which no use had been made for fifteen years, and on which during that time there had been no building and no indication either of any intended use or of any necessity for two raceways if it should ever be used again, his grantees might well understand that as the subjection of the grist-mill to one raceway easement for the benefit of the vacant lot was expressly continued by the deed, their right to permanently rebuild the flume was not obstructed by another concerning which the deed was silent. The construction of the deed is the ascertainment of the fact of the parties' intention from competent evidence. M. M. R. Co. v. Jurey,111 U.S. 584, 592; Hurd v. Dunsmore, 63 N.H. 171; Crawford v. Parsons, 63 N.H. 438. In whatever doubt this fact may be left by the evidence, there is a preponderance of probability that the parties intended the grist-mill privilege should not be burdened with two raceways for the unoccupied lot, and that the one the plaintiff reserved under the mill was the only one he was to have across the grist-mill lot. The other was extinguished by the deed; and the defendants are not liable, in an action of any form, for obstructing it by the solid foundation of the new flume.

The plaintiff's three suits in trespass qu. cl. were tried together. In rebuilding the flume, the defendants of the third suit permanently and materially improved the plaintiff's vacant lot at their own expense; and the gratuitous improvement having been made without his consent, he is entitled to nominal damages in the third suit. We concur in the referee's opinion that this portion of his award ought not to carry costs. In the first and second suits, the defendants are entitled to judgment; and in the third they are substantially the prevailing party. In two suits, they are entitled to the usual costs, and in one, to the costs of the trial.

Case discharged.

BLODGETT, CARPENTER, and BINGHAM, JJ., did not sit: the others concurred.