Howard v. Wadsworth , 3 Me. 471 ( 1825 )

Mft,len C. J.

delivered the opinion of the Court, at the adjournment of the following November term in Cumberland.

By the report it appears that Samuel, and Thomas Howard were in Oct. 1807, owners of the whole of the mill privilege, mills, mill-dams and privileges therein mentioned ; that Oct.'S, 1807, they conveyed to the tenants one undivided half part of the same in fee simple, “but exclusive of the grist mill now on said falls, “ with the right of maintaining the same, and also the dwelliug- “ house and sheds now on the premises —that Nov. 21, 1807, the same grantors conveyed to the demandant in fee “a certain “ mill privilege of the ten mile brook in Brownfield, with the “ mills thereon, &c. except such part of said privilege as we “ have lately sold to Peleg and Charles Wadsworth —and that Oct. 7, 1816, the demandant conveyed to the tenants in fee the other undivided half of the same lot mentioned in the deed of said Samuel and Thomas Howard of October 8, 1807, and with the same exceptions. The claim of the demandant in this action is founded on the exception in the deed last mentioned ; and the question to be decided is, what is the true construction of that clause in the deed. According to a well known rule of law, as an exception operates by way of a restriction upon the general language of a grant, if it is in ambiguous language, it must not be enlarged by construction; but rather be construed strictly. The demandant contends that by the exception, the grist mill therein named, and the land on which it stood, and its appurtenances, remained in the grantors ; and that the fee thereof never passed by the deed to the tenants. The tenants contend that nothing was embraced in or intended by the exception, other than the mill and the right of maintaining it so long as it should stand on the premises ; and the dwelling house and sheds standing thereon. Upon a careful examination of the language of this deed, we are all satisfied that the tenants’ construction is the true one. The exception relates to the mill, house and sheds, then standing on the premises ; the grantors repeat the word “now” twice, in des-eribing what is excepted. Besides, there is a material variance between the language of the grant and of the exception. The grant describes the mill, privilege, &c.; but the exception is silent as to privileges and appurtenances; and refers only to the mill itself. Again, if the land on which the mill stood was intended to be conveyed, why should there have been á grant of a right to maintain the mill on the same ? Has not any man a right to erect or maintain a mill on his own land, without a special authority from his grantor so to do ? A grantor may annex conditions to his grant ; but it is certainly unusual, to say no more, for him to add to the language of his conveyance, permission to the grantee to go on and manage and improve his land by building houses and mills. All this he can do without such permission. The exception must not be extended beyond the plain language of it. Now it appears by the report that the mill described in the deeds was taken down, and had ceased to exist before the commencement of this action ; and of course, so far as the exception related to the grist mill, it has had its effect and ceased to operate. As to the house and sheds, we have no connection with them in this action. If the tenants have done the demandant an injury by taking down the old grist mill, and thus destroying, so far, the benefits of the exception, he may maintain an action for damages ; but on the facts before us, we are all of opinion that the nonsuit was proper and must be confirmed.