Esty v. Baker , 48 Me. 495 ( 1860 )

The opinion of the Court was drawn up by

Appleton, J.

On the 15th of March, 1841, Jay S. Putnam and Aaron R. Putnam leased for the term of twenty years, with the right of perpetual renewal, to Samuel Houlton, the premises on which the plaintiff’s factory is erected, with “ the privilege of making a road at the south end of said grist mill to said premises, not obstructing the privilege of said grist mill,” &c.

On the 10th of March, 1843, Samuel Houlton, by deed of that date, conveyed all his interest in the premises leased, to the plaintiff.

' The lease was assignable, and, whether the assignment be by deed, or writing on. the back of the lease, is immaterial. The interest of the assignor equally passes, whichever mode of transfer be adopted.

On the 29th of April, 1844, Jay S. Putnam and Aaron R. Putnam deeded to Rufus Mansur the premises which were included in the lease previously given, together with the land heretofore used as a road to the plaintiff’s factory, specifically describing by metes and bounds the land over which the road had passed; with a restriction upon Mansur, that he should not “ occupy that portion of the premises south of the grist mill, and now used as a road to the factory, for any other purpose than a road.” These premises, Rufus Mansur, on the 3d of Dec., 1851, conveyed to the- plaintiff.

The trespass complained of consists in the defendant’s placing a shaft, running from defendant’s shop to the grist mill, and across the road leading to the plaintiff’s factory. The shaft was underneath the bridge or ' platform over which was the passage-way, but it in no respect interfered therewith.

If the plaintiff’s rights were only such as he derived from the assignment of the lease to Houlton, he could not maintain this action: He thereby acquired only an easement in the land over which the road passed, and, as he is not injured in his right of way, he would have no cause of complaint.

But the deed of Mansur conveyed the fee of the road, if Mansur had the title thereto. The gist of the action of trespass guare clausum is the being disturbed in the possession of the land upon which the wrongful entry has been made. Anderson v. Nesmith, 7 N. H., 167. If the close is “illegally entered, a cause of action at once accrues. Whatever is done after the breaking and entering is but an aggravation.” Brown v. Menter, 2 Foster, 468. The defendant had no right of entry upon the premises, unless for the purpose of passing over the same. If he did more, he became a trespasser. The entry for the purpose of placing the shaft across the passageway, though under the platform, and not obstructing the right of passage, was unauthorized, and the defendant, by so doing, became liable in trespass. The mere continuance of a building on another person’s land, even after the recovery of damages for its erection, is a trespass for which an action will lie. Holmes v. Wilson, 10 A. & E., 503.

The action is therefore maintainable, unless the defendant can disprove the title of the plaintiff to the land used as a passage-way, and included in the deed of the Putnams to Mansur of the 29th of April, 1844, and show title in himself, or those under whom he derives his rights. This he attempts to do.

The defendant claims that “the land south of the grist mill, and now used as a road to the factory,” was included in the mortgage deed of Jay S. Putnam and Aaron R. Putnam to Bachellor Hussey, dated May 13, 1843, and which was prior to the conveyance under which the plaintiff derives his title. This deed is of “ the grist mill in said Houlton, on the Meduxnakeag stream, now owned and occupied by us, with all the appurtenances and machinery thereto belonging, together with the land and privilege where the same is situated, necessary for and attached to the said grist mill; hereby meaning and intending to convey all of the lands and mill privilege (not heretofore sold by us) on the dam connected with said grist mill and privilege,” &c..

The presiding Judge ruled that the conveyance of the grist mill covered only the land upon which it stood. This, we think, regard being had to the language of the conveyance, was too restricted a construction thereof. By the term, “ a grist mill,” the fee of the land upon which it stood would pass. Blake v. Clark, 6 Greenl., 636. But there might, from the situation of the mill, be land necessary for its existence, attached to it, and used and occupied with it at the time of conveyance, which, it would seem, would pass with it. Forbush v. Lombard, 13 Met., 109; Moore v. Fletcher, 16 Maine, 63.

■ But it may be considered questionable whether the land south of the grist mill, and above the dam, which had been set apart for a road by a lease, with the right of perpetual renewal, was either land necessary for or attached to the mill, or was on the dam, according to the meaning of that expression in the conveyance. But in the present aspect of the case, it is not material to answer this inquiry ¿

The case to stand for trial.

Tenney, C. J., Rice, Cutting, May and Kent, JJ., concurred.