Knapp v. Clark , 30 Me. 244 ( 1849 )

Wells, J.

— The statute of 1821, chap. 45, does not in express terms, make the assignee of the person, against whom the judgment is rendered, fixing the yearly damages, liable for them.

In Lowell v. Shaw & al., adm’rs, 15 Maine, 242, the (defendant’s intestate was held liable for the damages, which ’became due, while he was the owner, for the whole of the year, though he had been the owner and occupant but a part ■of the year.

But he could not have been holden to pay any damages, unless they were a charge upon the estate. That decision rests •on the principle, that the judgment run with the estate, bindiingdhe grantee to pay the yearly damages.

If then, the yearly damages are a charge upon the estate the owner of it is liable not only for those accruing in his own time, but for all those, which are in arrear before his title commenced.

Such is the rule of law in relation to annuities, charged upon the estate. Trinity College v. Tunstal, Parson of Sharingford, Cro. Eliz. 810; Swasey v. Little, 7 Pick. 296.

The Revised Statutes, chap. 126, <§> 19, provide for a lien upon the mill and mill-dam, with the appurtenances and land, for the annual compensation, with a limitation, which it is unnecessary to consider, for the right of exercising the lien is not now in question.

The twentieth section of the same statute, makes the owner or occupier of the mill, when the action is brought, liable for all the damages due and unpaid.

It is unnecessary to decide whether the provisions of the Revised Statutes will apply to a case, where the annual damages have been established, before their passage. For the twentieth section, before mentioned, appears rather to be a legislative exposition of the law, as it then existed, than the enacting of a new one.

The defendant having been charged in the first and second counts of the declaration, as the owner and occupier of the mill, the count admitted by the District Court, stating the time when his ownership commenced, and from whom his title was derived, introduced no new cause of action. The allegation of ownership was sufficient without declaring the time and mode of its commencement.

There is no limitation for this action, except the presumption of payment arising after twenty years. It is founded on the judgment, with which the defendant is connected by privity of estate.

If the agreement set up by the defendant never had any existence, it could not affect the case. If it was entered into, but never was performed by the defendant, it would be inoperative. Nor would a part be equal to a full performance, such as the agreement required.

By the instructions, the defendant was allowed the benefit of the agreement each year-in which it was-executed, until it was broken. After it was broken, its continuance would necessarily cease, and could not be renewed without the concurrence of the plaintiff. By the very terms of the agreement, it was to be executed during each year. A failure to do so would terminate it. The special finding of the jury on “this part of the case seems to be equivocal, but they probably intended to say, that the agreement was not proved. But it is not necessary to ascertain their meaning.

The price alone of the plaintiff’s hay, could not have had any bearing upon the fact, whether the agreement had been executed. It might tend, with other testimony, to show the quality of hay cut upon the plaintiff’s land. But the value of hay in the market, depends upon various considerations. Without proof of the market price, which was not introduced, no comparison could be made to test the quality of the plaintiff’s hay, which might have brought a higher price, owing to the general scarcity of hay, than to its quality. It might have brought the same price, although of inferior quality. No other testimony was connected with the price or offered to be, rendering the evidence sufficiently relevant, to authorize its admission. Page v. Homans, 14 Maine, 478.

Judgment on the verdict.