Barge v. Wilson ( 1816 )

Taylor, C. J.

delivered the opinion:

The question arising from this record, is, whether the plaintiff is owner of the ground on which he erected the fence; for if he is not, no trespass has been committed by the defendant in pulling it down. And we are of opinion, that it was the intent of the testator to give the whole of the tenement to the defendant, except that part which is especially devised away to the plaintiff, or excepted from the devise to the defendant. Without adverting to the necessity of a curtilage to a tavern in a town, rather than to a store, and the utter inutility of a tavern without one, the exception made by the testator of the room over the store, seems to mark his own conception of what he was doing. For why, in a devise of the tavern, should he make the exception, unless he believed that such precaution was necessary tot prevent the whole from passing? The room over the store is to belong to the store, otherwise, the testator thought it was comprehended in the tenement, which he describes as his large tavern. We therefore think that the true construction of this will is, that all, except the store and the room over it, were devised to the defendant, for whom there must be judgment.

Lowrie J. dissented.