The plaintiff claims the right to the sea-weed, as appurtenant to a tract of land, conveyed by Joseph Clarke, General Treasurer of the State of Rhode Island, to Nathan Kenyon.
The plaintiff derives his title by deed from Nathan Kenyon, and the decision of the cause depends upon the construction of the deed.
After describing the land intended to be conveyed, the deed contains the following clause: "with all the buildings, ways, privileges and appurtenances to the same belonging."
This is appropriate language to convey an easement or appurtenance already existing, and belonging to the land, but not to create a new one. In Whalley v. Thompson, 1 Bos. Pul. 370, the facts were these. The testator was seized in fee of adjoining closes A. B., over the former of which a way had been immemorially used to the latter close, and devised close B. with the appurtenances. Held, that the devised cannot under the word appurtenances, claim a right of way over close A. to close B., as no new right of way is thereby created, and the old one was extinguished by the unity of seizin in the devisor.
In Clements v. Lambert, 1 Taunt. 204, it was held: after an easement has been extinguished by unity of possession, a new easement is not created by a grant of a messuage and land with common appurtenant, though those who have occupied the tenement, since the extinguishment, have always used common therewith. To the same effect is Grymes v. Peacock, 1 Bulstrode, 17; andSaundeys v. Oliff, Moore, 467; Gale Whateley on Easements, *page 32. *Page 414
In Bradshaw v. Eyre, 2 Cro. El. 570, it was held: if A. has a house with common appurtenant in the hands of B., and conveys it to B., the old right of common is extinguished by the unity of possession; but if B. leaves it "with all commons used therewith," it is a good grant of a new right of common during the term. Gawdy and Fenner held by the words of the lease in that case "of all commons, profits, c., occupied or used with the messauge, c.," it is a good grant of a new common for the time; for although it were not common in the hands of the feoffor, yet it is quasi common used therewith; and although it be not the same common it was before, yet it is the like common.
To the same effect is Worledy v. Ringswel, 2 Anderson, 168, S.C. Cro. Eliz. 794.
The construction established by these authorities, (and other cases might be cited,) is certainly the reasonable and natural one, and corresponds with the plain import of the words. When the grantor says he conveys the land, with all the appurtenances and privileges belonging thereto, he means appurtenances and privileges existing and belonging to the land at the time; but he does not mean to create new appurtenances. That would require different language. The words which I have quoted from the deed being insufficient, is there anything in any other part of the deed which supplies this defect?
Are we at liberty to refer to the plat which is produced by the plaintiff, and to the votes and resolutions of the General Assembly, and the acts of their committees? It is undoubtedly true, that when a plat is referred to in a deed, for a description of the premises intended to be conveyed, it becomes for this purpose a part of the deed, and the same may be said of a record, or another deed, or a monument. *Page 415
But in order to make a plat a part of the deed, the reference to it must be certain, so that upon the production of the plat it will appear to be the plat referred to.
Now in the present deed there is no reference to any plat. The land conveyed is bounded on lot No. 2, and on lot No. 4, but on what plat, or whether on any plat, does not appear. Lots may be numbered, without being platted. The lots are numbered in the report of the sale made to the General Assembly by the committee appointed for that purpose. Besides, although a plat may be referred to in the deed, for a description of the lot from which the sea-weed was to be taken, yet such reference cannot be made to convey the right to take it. That must be done by words of the deed. In this case the words of the deed convey existing rights, but do not create any new one; and the plat is referred to by the counsel for the plaintiff, to show that the grantor intended to convey a new right. This would be to enlarge the meaning of the words of the deed in violation of the statute of frauds. When we refer to a plat for a description of the land intended to be conveyed, such reference is not to enlarge or diminish the effect of the words of conveyance in the deed, but to give them efficacy, and the operative words of conveyance are found in the deed itself.
Suppose a deed conveyed a life estate in land, could a plat be referred to, to enlarge that life estate into a fee. Parol evidence would be admissible, to show what the existing appurtenances were, but not to show that the grantor intended to convey new ones, and a plat stands on the same ground with parol evidence.
With regard to the votes and resolutions of the General Assembly, and the acts of their committees, they cannot *Page 416 be referred to for a description of the premises intended to be conveyed, unless they are referred to in the deed for that purpose. Now, the only reference to the General Assembly is, to show that Joseph Clarke, who executed the deed, acted under their authority, and for and in behalf of the State in so doing. When the State conveys land by deed, it must do it in the mode prescribed by law, and the deed must be construed according to the rules of law. Suppose the committee who sold had been authorized by resolution of the General Assembly, in express terms, to sell to the purchasers of the Sewell farm, the right to take sea-weed on the ten acre lot, and the committee had sold such right and taken pay for it; still if the deed of the General Treasurer contained no reference to these acts and proceedings as descriptive of the premises intended to be conveyed, they could not be referred to for that purpose.
Perhaps a bill might be maintained in such a case against an individual vendor to compel a performance by executing a deed sufficient to convey the right, but until such conveyance, the purchaser could not stand at law upon his title.
No evidence was offered by the plaintiff to show that the right claimed by him, was an appurtenant of the land, at the time of the execution of the deed of the General Treasurer. We think no right to take sea-weed passed by that deed, and the verdict, therefore, in favor of the plaintiff, must be set aside, and a new trial granted.
After the preceding opinion was delivered, the counsel for the plaintiff applied to the court to be further heard, and contended, *Page 417 First. That a right of common might be created by the act of the grantor.
Second. That representations of the committee, plat and sale under these, are such acts as create a right of common.
Third. Estoppel is good against the State, and confers good title against trespassers, although estoppel is in pais, and not by deed.
Loading…