Munroe v. Stickney , 48 Me. 458 ( 1860 )

The opinion of the Court was drawn up by

Appleton, J.

In the division among the proprietors of certain lands held in common, in the town of Calais, upon the petition of E. H. Robbins, jr., there was, besides other lands, which have no bearing upon the present case, set off to the petitioner, “ the water privilege now occupied by the said mill, called the Franklin, and one undivided half of the stream saw of the Washington mill, marked on the plan No. 2.” The title of Robbins to the half of the stream saw of the Washington mill is now vested in the tenants, and the'inquiry arises, how much land passed by virtue of the language of the report.

The report of the commissioners, by whom partition was made, cannot receive a more favorable construction than if it Were the language of the grantor in a deed. No principle is „ better established, than that land cannot pass as appendant to land. In Leonard v. White, 7 Mass., 6, Sedgewiok, J., says, “ by the grant of a mill cum pertinentiis, the close where the mill is, or the kiln there, does not pass without some further expression.” In Hasty v. Johnson, 3 Greenl., 282, it was decided that a deed of a mill dam and falls, and a right to the road and landing, conveys only an easement in the road and landing. In Thompson v. Androscoggin Bridge, 5 Greenl., 62, a grant of a saw mill, with a convenient privilege to pile logs, boards and other lumber, conveys only an easement in the land used for piling.

In Blake v. Clark, 6 Greenl., 436, — “ The saw mill, without any further description,” says Weston, J., “ was set off by the commissioners appointed to divide the estate, to Thatcher Blake, one of the demandants. Doubtless, by this term, the fee of the land, upon which the mill stood, would pass. Lord Coke enumerates a variety of terms which, being used in a conveyance, carry lands; and he states to what extent. Coke Lit., 146. The land passes, because included in the term used. The word mill, or molendinum, is not among those to which he adverts; and probably no authority can be adduced in which it has been held' to convey ex vi termini any part of the adjoining land. That upon which it stands, may be regarded as including land over and upon which the slip, if it has one, or any other necessary projection from the mill, passes. The term may embrace the free use of the head of water, existing at the time of the conveyance, as also a right of way or any other easement, which has been used with the mill, and which is necessary to its enjoyment. We are not satisfied it can or ought to be further extended.” In Moore v. Fletcher, 16 Maine, 62, the words mill privilege, or privilege of a mill, was held to mean the land on which the mill and its appendages stand, and the land and water actually used with the mill, necessary to its enjoyment. But the conveyance is to be construed with reference to the actual and rightful state of the property at the time of the conveyance. The “conveyance of a mill, or of land on which a mill is situated, carries with it, as incidents of the mill,” says Bell, J., in Dunklee v. Wilton Railroad Co., 4 Foster, 489, “ the right to raise the mill pond, and to flow the lands above, as high as the dam has been usually kept up, and to maintain the dam and flume, which are necessary to support the water at that height, and to support and use the penstocks, aqueducts and channels, which are necessary to convey the water to the mill, and the channels and raceway' which are necessary to conduct the water from the mill to the stream, in the manner in which they have been kept and used immediately previous to the conveyance, so far, at least, as the grantor had the right to convey such privilege.”

It is apparent, therefore, that, by the partition, Robbins took the land upon which the mill stood, with the various easements upon the lands of his co-tenants necessary to the full and perfect enjoyment of his share, and that the plaintiff cannot injuriously interfere with the rights thus acquired. The plaintiff is entitled to recover the land described in his writ not covered by the mill and its appendages, at the time of the partition, subject to the easements of the tenant in and upon the same.

The words “ thence by a line running in a south-westerly direction to the flume of the machine shop,” as used in the description, evidently indicate the penstock or conductor of the water, at or near the corner of the machine shop, and not that part of the flume which is further up stream, as the defendants contend. Defendants defaulted.

Tenney, C. J., Cutting, May, Goodenow and Kent, JJ., concurred.