Stetson v. French , 16 Me. 204 ( 1839 )

The opinion of the Court was by

Emery J.

According to the agreement of the parties, the right of the petitioner to partition depends on the legal construction of his deed, executed on the 12th of July, 1831, to Fbenezer French, George S. French, and Frederick F. French, “ of all the petitioner’s right, title and interest in and to one undivided half of a certain parcel of land in said Bangor, viz. the land on Kenduskeag point, which lies west of water lot, No. 27, and south of water lot, No. 26, as laid down on apian of said point made by Charles Bulfinch, reserving and providing for the keeping open and extending to low water Poplar Street and Washington Street as laid down on said plan; said streets to be for the future disposition of the parties to this deed in such manner as may hereafter be mutually agreed on by them, also, one undivided half of two lots of land, situate on said point in said Bangor, being water lot, Nos. 27 and 28, as laid down on said plan.”

The petitioner claims partition of a lot of land in Bangor, commencing at the southerly line of Washington Street, at the northwesterly corner of water lot, No. 28, thence westerly, by and on the southerly line of said Washington Street, extended fifty feet, thence at right angles, southerly to Penobscot River, thence easterly by and on said Penobscot River, to the westerly line of said water lot No. 27, thence northerly, by and on the westerly line of said water lot, No. 27, to the place of beginning. In his petition, he alleges, that he is seized in fee simple of one undivided half of the premises.

In our judgment, the petitioner by his deed divested himself of the fee in one undivided half of the premises, and by his warranty, must be considered as reserving and providing for the Iceeping open and extending to low water Poplar and Washington Streets as laid down on said plan, and that he is not entitled to partition in the manner he has prayed, unless he shows that it is agreeable to the parties to the deed, their heirs or assigns. They have an interest in the property to be kept for the purpose designated in the deed, and the petitioner has only an easement according to his contract.

The petitioner can take nothing by his petition. As the parties have agreed, it must be dismissed, and the respondents recover their costs.