Bradbury v. Cony , 59 Me. 494 ( 1871 )

Tabley, J.

A controversy having arisen concerning the payment of the expense incurred in the construction of a Avail standing between a block of the plaintiffs and the Cony House, the plaintiffs and defendant, in Avriting agree to submit the claim made to the determination of íavo persons named. The persons named decided the claim, awarded that Avhich, in their judgment, was due. In the writing, submitting this claim to arbitration, is a statement, that the center line of the wall is the dividing line between said blocks. For the purposes of the hearing upon that claim, the fact thus recited must be taken as true.

Beyond this it was not conclusive evidence of the fact. In any other controversy, arising between the parties, when relevant to the issue raised, this recitation would be evidence for the consideration of the tribunal investigating, of greater or less weight, according to other circumstances proved. It is not an instrument of conveyance, and of itself is inoperative by way of transfer. It is but an admission of a party made in a particular case, and does not affect the ownership of the fee in the land. The result in this particular Avould be the' same whether we limit the word “ block,” to the structure raised upon the earth, or extend its significance so as to embrace the building and the land under it.

The action of the parties under this agreement to refer, was to determine the joint contribution in the payment of the cost of the construction of it. This could have no effect to pass the fee. That must be accomplished by deed, or levy, or devise duly made and executed. The joint ownership of the wall, or joint contribution in its construction, is nowise inconsistent with the idea, that the fee in the land under it, rests solely in either of the part-owners of the wall. It may be resting upon the land by license of some kind from the owner of the soil.

The report presents for our consideration only the agreement to refer, and the acts of the parties under it. With the anterior acts of the parties Ave now have no concern. Whether all or any of them may, or .may not, have created an easement in favor of the owners of the Avail for some length of time, is not necessary to decide. The fee remains unaffected by these acts, and the estoppel, by way of recitation in the agreement, does not extend beyond the case in which it was made.

The existence of an easement on the land, if found, would constitute no bar to the right of the owner of the fee to recover on a writ of entry. Blake v. Ham, 53 Maine, 430.

Under the agreement of the parties, the entry must be,

Case to stand for trial.

Kent, Dickerson, and Barrows, JJ., concurred. Appleton, C. J., signified his concurrence as follows :