Brada v. Hosmer ( 1931 )

RICHARDS, J.

The defendants contend that this instrument conveys land, but we cannot,accede to that view. It describes no land, as the description consists solely of a line 4 rods long and another line at right angles thereto 44 rods in length. The manifest purpose of the instrument was to create an easement for the purpose of a dam and for carrying water to a mill. Immediately north of the line described is a pond or small lake, of irregular shape, situated near the center of the land owned by the plaintiffs. The mill itself was located just west of plaintiffs’ land and seems to have been used for a long time after the execution of the instrument from which quotation has just been made; but no mill has been operated there for ten or fifteen years, and the pleadings admit that there has been' in fact no mill on the property for many years. A situation is thus created which is quite like that shown by a report to Congress made long ago by a committee sent to investigate whether a mill had been erected for a tribe of Indians. Like that report, the evidence in this case shows a dam by a mill site, but no mill by a dam site.

This court is of the opinion that the plaintiffs are the owners of the real estate described in the petition, but that their ownership is subject to an easement in the defendant Julia V. Puzy, who is the success- or to the rights of the original owners in the easement.

The court finds that the plaintiffs are entitled to have their title quieted subject to the right of Julia V. Puzy in the min.lam and millrace in accordance with the terms of the easement herein quoted. Those rights are to inhere in her and all persons claiming through or under her, being successors to the title of said Amasa Carleton and Asa Carleton.

A decree will therefore be entered for the plaintiffs, but subject to the right of said Julia V. Puzy and her successors jn said easement.

Decree accordingly.

PARR and WILLIAMS, JJ, concur.