Dorman v. Bates Manufacturing Co.

Walton, J.

Two actions are before the court involving substantially the same question. One is against the Maine Central Railroad Company, and the other is against the Bates Manufacturing Company. The question is in relation to a right of way.

The plaintiffs own land bounded on and extending across Mill street, in Lewiston. Mill street as it now exists, extends from Cedar street northerly to Chestnut street, a distance of about six hundred feet'. As marked on a plan of the Lewiston Water Power Company, made in 1855, it extended northerly to' Main street, a distance of over two thousand feet. The contention is in relation to that portion of the street which lies between Chestnut and Main street.

The plaintiffs obtained a title to their land by a deed from the Franklin Company, dated March 24, 1880; and they claim that being bounded on Mill street, they are entitled to an unobstructed way throughout the entire length of the street as it was laid down on the plan of the Lewiston Water Power Company iu 1855.

The defendants contend that the plaintiffs obtained at most only a right of way as far north as Chestnut street, that being the recognized and defined length of Mill street in that direction at the time of the conveyance to them. And they contend further, that at the time of the conveyance to the plaintiffs, their grantor did not own the land north of Chestnut street for more than six hundred feet, and therefore could not convey a right of way over it to any one.

We think the defendants are right in both positions.

Wo think the Mill street, referred to as a boundary in the plaintiffs’ deed, is not the Mill street laid down on the old plan of the Lewiston Water Power Company. The old plan is not mentioned or referred to in any way. On the contrary, the language of the deed is, “Mill street, as at present defined and located by the Franklin Company.” Not as located and defined by the old Water Power Company, but “as at present defined and located by the Franklin Company.” This language implies that there bad been a change in the location, and seems to have been employed on purpose to negative the idea that the old location was the one referred to. And we can not doubt that the plaintiffs so understood it. They knew that the Bates Company had purchased the land over which the old location passed immediately north of Chestnut street, and had erected expensive buildings upon it, one of which was a brick store-house costing $28,000. We are satisfied by the evidence that the plaintiffs must have known at the time of taking their deed that Mill street, “as defined and located by the Franklin Company,” did not extend northerly of Chestnut street. The language of their deed warned them of a change, and what they had seen with their own eyes must have informed them of the extent of the change. It is undoubtedly true, as stated in Bartlett v. Bangor, 67 Maine, 460, that when a grantor sells land by reference to a plan, and the plan bounds the land sold on a street, the purchaser thereby obtains a right of way in the street which neither the grantor nor bis successors in title can afterwards impair. But the conveyance to the plaintiffs can not be brought within this principle, for the reason that the sale to them was not made by reference to a plan. No plan of any hind is mentioned in their deed. A street was referred to; but the reference was to a street as then defined and located by the Franklin Company; and we are satisfied that that street did not extend north of Chestnut street. Other grantees may have obtained rights by a reference in their deeds to the plan of the Lewiston Water Power Company; but it is clear that the plaintiffs secured no rights by such a reference, for the reason that their deed contains no such reference.

But, suppose the plan of the Lewiston Water Power Company had been referred to in the plaintiffs’ deed, and suppose the deed had contained, not merely an implied covenant, but an express covenant, that the grantees should have a right of way throughout the entire length and breadth of Mill street as thereon laid down, —what then ? It is perfectly plain that they would not have obtained such a right of way. One can not convey what he does not own. One can not convey land, nor create an easement in it, unless he owns it. An attempt to do so may render him liable on the covenants in his deed; but neither the land nor the easement will pass. At the time of the conveyance to the plaintiffs, their grantor did not own the land over which they thereby claim to have obtained a right of way. Not only the land adjoining, but the road-bed itself, north of Chestnut street for a distance of 694 feet, had before that time been conveyed to the Bates Company, and been built upon, as already stated. It was, therefore, impossible for them to obtain, by a conveyance from the Franklin Company, the right of way claimed. The Franklin Company was then powerless to convey such a right. Before its conveyance to the Bates Company, it might have done so. After that conveyance, it was powerless to do so. Oliver v. Pitman, 98 Mass. 46, is a case directly in point. In that case, it was held that where the owner of land lays out a way through it, with lots on each side, and then conveys one of these lots with a right of way over the whole of it, and then conveys another lot together with the fee of the street in front of it, and then conveys a third lot bounding it on the same street opposite to the two lots before sold, the purchaser of the third lot gets no right of way in that portion of tbe street, tbe fee of which had been conveyed to the second purchaser; and for the reason that his grantor was then powerless to place such an additional burden upon it; and the third purchaser could claim no rights under the deed to the first, because to that deed he was a stranger. So, in this case, the way in dispute can not be held by the plaintiffs under the deeds to other parties, for, to such deeds, they are strangers. They can not hold it under their own deed, for, at the time of the conveyance to them, their grantor had no power to create or convey such a right. And, furthermore, we are satisfied by the terms of their deed, when read in the light of the surrounding circumstances, that it was never intended to convey such a right, and can not be legally so construed as to convey it, either expressly or by implication, or by way of estoppel.

And, of course, the incipient dedication of the street to the public, does not convey a right of way to the plaintiff's, or to any one else, fill accepted; and the evidence shows that that portion of the street north of Chestnut street, and in relation to which this litigation has arisen, has never been accepted, and probably never will be.

The whole extent of the doctrine in this class of cases is that, if land be conveyed as bounded on a street, and the grantor at the time of the conveyance owns the land over which the supposed street passes, he and his successors in title will be estopped to deny to the grantee and his successors in title the use of it as a street. But each one claiming the benefit of such an estoppel must rest his claim on his own-title deed, and not on the deed of another, through which he has not derived his title. Howe v. Alger, 4 Allen, 206; Oliver v. Pitman, 98 Mass. 46; Fogarty v. Kemmell, 105 Mass. 264; Regan v. Boston Gas Light Co., 137 Mass. 36; Bartlett v. Bangor, 67 Maine, 460; Heselton v. Harmon, 80 Maine, 326.

The plaintiffs having failed to establish their title to the way claimed in their writs, judgment must be rendered for the defendants in each action. T , , „ 7 ,, ,

, 7 , Judgment for defendants.

Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.