Symonds v. Harris , 51 Me. 14 ( 1862 )

The opinion of the Court was drawn up by

Rice, J.

.Trespass quare clausum. The estate was originally the sole property of Thomas Harris. On this estate, which consisted of a mill privilege, and a mill called the "sash and blind factory,” with the machinery therein, the plaintiff and also one George Blake, on the 16th Dec., 1858, had caused executions, which they severally held against said Harris, to be levied. On these executions certain undivided portions of the estate were assigned to each of said .execution creditors. It is admitted that the levy of Blake was invalid, thus leaving that portion of the estate seized by him, on his execution, still in Harris. Assuming the levies of the plaintiffs to be valid, Harris would be a tenant in common with them in the estate.

It is, however, objected that the levies of the plaintiffs are invalid, first, for the reason that the original return of the officer is insufficient in law to bar the estate. There was, undoubtedly, an informality in the original return of the officer. Th'ese defects, however, were cured by the amendments which have been duly and properly allowed by the Court, and which are binding upon the parties to this suit. Whittier v. Vaughan, 27 Maine, 301.

Further, it is objected that these levies, or a portion of them, are fatally defective in this, that the appraisers, in their certificates, which were made part of the'officer’s return, appraised the entire estate at a given sum, ($1050.,) but did not appraise the undivided portion thereof, which was taken to satisfy such execution, at the same rate at which they had appraised the whole estate. Or, in other words, that the sum at which the several parts were appraised is not equal to the appraisal of the whole.

By § 9,c.76,R.S., where the premises consists of a mill, mill privilege, or other estate, more than sufficient to satisfy the execution, which cannot be divided by metes and bounds without damage to the whole, an undivided part of it may betaken, and the whole described.

By § 2, of the same chapter, the appraisers are to be sworn faithfully and impartially to appraise the real estate to be taken, &c.

Now, while the statute, in such case, requires the whole estate to be described, it does not require it to be appraised, nor are the appraisers sworn to appraise the whole. They are, however, sworn to appraise the part taken to satisfy the execution. The appraisal of the whole estate was, therefore, unnecessary and irrelevant, and must be treated as surplusage. Winsor v. Clark, 39 Maine, 428.

It is also contended that, if the parties are tenants in common, this action cannot be maintained, because the defendants’ possession, in such case, must he deemed to be the possession of all the co-tenants, and in subordination to their title. Such, undoubtedly, is the general ride of law. But, to this general rule, there are exceptions, as where one tenant in common destroys the common property, or so conducts with reference to it as to effect a practical destruction of the interest of his co-tenants therein.

There is .a manifest distinction between the cases in which one .tenant in common appropriates the proceeds, such as the rents, profits, or income of the estate, and where he practically destroys the estate itself or some portion thereof. Tu the latter class of cases trespass may be maintained by the injured co-tenant, in the former it cannot.

Thus, it was held in Blanchard v. Baker, 8 Maine, 253, that the diversion of the water in a stream from a mill owned in common and entitled to the natural flow of the stream, and the appropriation of such' water to the sole use of a mill owned by a part of the co-tenants, was such a destruction of the common property as would support an action of trespass on the part of the co-tenants who were injured thereby.

So too, in the case of McDonald v. Trafton, 15 Maine, 225, it was decided that the demolition of the mill by one co-tenant, and the appropriation of the materials of which it was constructed to his sole use, would support an action» of trespass therefor, by the injured co-tenant.

In the case at bar, it is denied that the property taken was real estate, or, if so, that it has been so converted by the defendants as to constitute a practical destruction thereof.

The property taken was machinery used -in the " sash and blind factory,” and evidently necessary to' its operation as a factory. Without this machinery, then, the mill would cease to bo a factory. This machinery was attached to the mill by spikes, nails, bolts and screws, and was operated by belts running from the permanent horizontal shafting in the mill, which shafting was driven by a water wheel under the mill, and connected with the main shafting by suitable gearing, &e.

Such machinery, thus situated and connected, constitutes fixtures and becomes a part of the mill or factory, and its unauthorized disseverance and removal, and the subsequent incorporation thereof into another mill, the sole property of the defendants, is, in our opinion, a practical destruction of the common property, within the letter and spirit of the case above cited. The action is therefore maintained.

Defendants defaulted, damages to be ' determined as per agreement.