Jordan v. Otis , 38 Me. 429 ( 1854 )

Hathaway, J.

— The mills of the plaintiff and the defendant were on the same dam, and, above their foundation, were one or two feet apart. The parties derived title from the same grantors; the plaintiff by deed, Dec. 1, 1846; the defendant by deed, March 6, 1847. The two mills rested on a foundation of timbers, so interlocked, that the cutting away of the floor timbers of the plaintiff’s mill from the streak sill of the defendant’s, would cause the plaintiff’s mill to settle, and fall unless otherwise supported. The mills were thus situated when the plaintiff received his deed. The foundation of the plaintiff’s mill, as it was, when he purchased, was necessary for the use, and for the support of the mill, and by his deed, lie acquired the right to have it remain, as it then was, during the existence of the mill, if it should endure so long, and the defendant had no right to remove or impair it to the plaintiff’s injury.

If the defendant wished to alter or repair his mill he had an undoubted right to do so, but not in such manner, as to destroy or injure the foundation of the plaintiff’s mill, and that too without giving him any notice.

The testimony of Seth Tisdale was properly excluded. The authorities cited by the defendant’s counsel do not sustain its admissibility. The plaintiff has the elder title and his deed is free from ambiguity.

Exceptions overruled. — Judgment on the verdict.

Shepley, C. J., and Tenney, and Howard, J. J., concurred.