Mussey v. Proprietors of Union Wharf

Hathaway, J. The deeds introduced by the plaintiff establish his title to one undivided quarter of the upland lot, bounded on the southerly or southeasterly side thereof, by the “ flats,” which were conveyed by Enoch Ilsley and others to Ebenezer Storer and others, by deed of December 1, 1792, as is alleged in the bill. That deed contains a reservation, in the words following, to wit: — “reserving to ourselves, however, forever, a convenient way on each side of said wharf when erected, a convenient way to pass and repass to and from the docks on the easterly and southwesterly side of said flats with such vessels as may float in said docks.” The plaintiff claims that this reservation was an easement, to which he has title as an appurtenance to his land. It was not conveyed to him as an easement, by his deed from Warren and others of August 5, 1854. Nor was it transferred or mentioned as such in any of the mesne conveyances, through which he derived his title. Nor was it ever conveyed by the original grantors in the deed of December 1, 1792, or by their heirs or assigns, unless it passed by the general words, “ privileges and appurtenances,” as used in the deeds. Nor were there any words of inheritance attached to the reservation. It was, “ to ourselves,” only. It is not necessary, however, to consider the question whether or not, the easement, reserved in that deed, was determined by the alienation or death of the grantors therein named, for it appears, in the case, that on the 29th of March, 1850, the city of Portland located Commercial street, [38] one hundred feet wide, and running across the docks and wharves, about one hundred and ten feet below the plaintiff’s land; which street, before the plaintiff acquired his title, was legally established and built, in a manner so substantial and permanent, that it was a perfect barrier, preventing any access to the plaintiff’s land, from the docks, by water, with vessels of any description. If the easement, as claimed by the plaintiff, existed previous to the location of Commercial street, it was extinguished by the lawful establishment of that street, with its embankments and solid walls. Hancock v. Wentworth, 5 Met. 446; Ballard v. Butler, 30 Maine, 94. But if, as the plaintiff contends, the establishment of that street did not extinguish the easement, but only suspended it, such conclusion would not aid him in the matter, for he could acquire no right to an easement, merely as appurtenant to his land, the existence of which easement was suspended when he purchased the land and received his title. 2 Hilliard on Real Property, c. 60, § 12. Bill dismissed with costs for defendants. Tenney, C. J., and Rice, Cutting and Goodenow, J. J., concurred.