Boston & Maine Railroad v. Durgin , 1877 Me. LEXIS 48 ( 1877 )

Appleton, C. J.

This is a complaint for forcible entry and detainer of “a portion of the bridge of the plaintiffs.”

The premises occupied by the defendant consist of a small building owned by the defendant, attached by stringers extending laterally from the bridge-stringers and clasped and bolted thereto, to the westerly side of the bridge over Saco river, in the city of Saco, by means of which the plaintiffs’ railroad crosses the river, and intersects Main street, crossing both by means of one bridge with its supports constructed partly of wood and of iron and the whole covered with co ntinuous wooden planking. This bridge was erected in 1872 by the joint co-operation of the railroad and the city, each furnishing a portion of the material and the railroad all the labor. The defendant erected this building in pursuance of a license from the city of Saco, and outside the limits of the street. The bridge to which the defendant’s building is attached, was repaired by the city of Saco, both before and after the defendant’s building was erected.

To entitle the plaintiffs to recover, They must bring their case within the provisions of B,. S., c. 94, §§ 1 and 2.

The defendant claims no rights as a disseizor, nor is he one. He is not a “tenant holding under a written lease or contract,” nor is he a “person holding under such tenant.” Neither is he a “tenant at will” of the complainants. The complaint cannot be sustained under § 1.

Nor can the complaint be brought within the last clause of § 2 by which the preceding provisions of § 1 are made to “apply to tenancies of buildings erected on land of a third party.” The building is attached to a bridge under which tlie water is flowing. Besides, the complainants have no interest in or ownership of the building. The purpose of the legislature by the last clause of § 2, was to enable the owner of a building erected on the land of a third person to recover the possession of the same from a tenant who had forfeited his rights and after due notice had refused to quit. The defendant was never a tenant of the complainants.

Indeed, it is not readily perceived what rights the complainants have to interfere. The deed, under which they claim, gives them certain piers, embankments and abutments, “with the land under all of said piers, embankments and abutments,” and nothing more. It excludes the land which the defendant’s building over-hangs. Nor have they any interest in or title to the building for which they seek to recover possession.

The complainants, owning neither the building which overhangs the Saco river nor the bed of the river which is overhung thereby, cannot maintain this process to recover possession of a building to which they have no title whatsoever.

Judgment for defendant with costs.

Walton, Barrows, Yirgin, Peters and Libbey, JJ., concurred.