Palmer v. Dougherty , 33 Me. 502 ( 1851 )

Howard, J.

— According to technical rules of pleading, a new assignment, in actions of trespass quare clausum fregit was necessary only where the defendant pleaded soil and freehold, or some other special plea in bar. But where he pleads the general issue of not guilty, to the whole trespass alleged, with or without a brief statement under the provisions of the statute, the plaintiff has no occasion to make a new assignment, but may give evidence of any act of trespass covered by his declaration. 1 Saund. 299, note 6; R. S. chap. 115, sect. 18.

Where land is conveyed according to a plan taken, the courses, distances and lines there delineated, are regarded, in legal construction, as the description, by which the limits of the grant are to be ascertained. Proprietors of Kennebec Purchase v. Tiffany, 1 Maine, 219; Thomas v. Patten, 13 Maine, 329; Davis v. Rainsford, 17 Mass. 207.

When land is conveyed as bounded by a street, represented on a plan, but not made, 'the soil of the contemplated' street, though owned by the grantor, does not pass by the conveyance. Southerland v. Jackson, 30 Maine, 462. But if he bound the grant by a highway, generally, it will carry the fee to the centre of the way, if his title extended so far. Stevens v. Whistler, 11 East, 51; Com. Dig. Chinim A. 2; 3 Kent’s Com. 433; Johnson v. Anderson, 18 Maine, 76.

David and James Miller, for the purpose of effecting a division of certain lands in Belfast village, owned by them as tenants in common, executed mutual releases of the same date. The former releasing all his right to the lands west of Congress street, and the latter releasing, with other lands, “ the following parcels of lands in Belfast, bounded as follows, lying easterly on Congress street, and northerly of the White and Mansfield lots, containing twelve house lots, of a quarter of an acre each, more or less, with the reserve of the two streets <contemplated by a plan made by M. Sleeper, Esq. Charles and James streets had been projected on the plan, but had never been made, and to those the language of the deed must have been applied.

It was manifestly the intention of James to release his interest in the lots, and the adjoining land delineated on’ the plan as the streets. The expressions “ with the reserve,” &c., do not import a reservation to the grantor or releasor, but are used as descriptive of the premises conveyed. , By this conveyance David became sole seized of the house lots and the soil of the contemplated streets. He subsequently devised to Margaret Hodgdon, (under grantees of whom the defendant justifies the alleged trespass,) the house lots, bounding them by those contemplated streets. By that devise, upon the principles stated, the fee in the streets did not pass. But by a subsequent clause in the will, he gave the remainder of his “ estate," after payment of his just debts and exposes, to his four children, or their heirs, to be divided equally, with an exception not material to this case. This operated as a devise of the realty. Barry v. Edgeworth, 2 P. Wms. 523, note 1; Rideout v. Paine, 3 Atk. 486, note 1; Barnes v. Patch, 8 Ves. 604; Wall v. Langlands, 14 East, 370; Pearson v. Housel, 17 Johns. 281; Pickering v. Langdon, 22 Maine, 413; Godfrey v. Humphrey, 18 Pick. 537; Kellogg v. Blair, 6 Metc. 322; 4 Kent’s Com. 535; Holdfast v. Martin, 1 T. R. 411; Morgan v. Morgan, 6 Barn. & Cress. 512.

By this devise, James, as one of the children, became seized in fee of one undivided quarter of the land on which the contemplated streets had been projected, as represented on the plan. Afterwards he released by deed of quitclaim all this interest to the plaintiff. R. S. chap. 91, sect. 8.

The argument, that this conveyance is void for maintenance, is not supported by the facts or the evidence. “ Maintenance is commonly taken in an ill sense, and, in general, seemeth to signify an unlawful taking in hand, or upholding of quarrels or sides, to the disturbance or hindrance of common right.” Hawk. P. C. ¶ 1, chap. 83, sect. 1.

Tenants in common may join or sever in personal actions for injuries to the land. R. S. chap. 129, sect. 17.

According to the agreement the defendant is to be defaulted.