Livingston v. Ketcham

Strong, P. J. The lease from Robert Livingston to John Wheeler, dated on the 9 th of March, 1772, conveyed to the lessee, his heirs and assigns, a right to cut fire Wood, fencing stuff and timber, for the use of the demised premises, from the waste and unimproved wood lots of the lessor-, whilst they should continue in that state. Alburtis Wheeler, the son of the lessee, succeeded to his right in such premises, and on the 23d of December, 1808, assigned the lease to the defendant and.one Shadrach Sherman. The defendant took possession of the north part, Sherman of the south part, and one Ensign of about twelve acres in the middle, of the leasehold premises; and they now occupy such parts in severalty. How long they have so occupied them does not appear, but it is in evidence that the defendant has alone possessed the north part for Upwards of 35 years. During the greater part of that period he has cut wood, fencing stuff and timber, for the use of the land occupied by him-, from the waste and unimproved wood lots of the landlord, the title td which has in the meantime passed from the lessor, through his widow, to the plaintiff. The defendant’s tight to ctit the Wóód iñ question, notwithstanding his exercise of it for so long a period, must depend upon the lease to John Wheeler; as he has uniformly claimed under that instrument. That precludes him from claiming, by [597] prescription, estovers for the land actually occupied by him. Prescription raises the presumption of a grant only where none is expressly proved. The principal, and in my opinion the controlling question, in the case, is whether the claim now presented by the defendant can be supported by the original grant. It seems to be well settled that common of estovers cannot be divided or apportioned. .The reason given is, that it would necessarily lead to surcharging the land from which they are taken. More fuel, fences and buildings would be requisite for a number of tenants than for one. It is not necessary to inquire, at this late day, whether the quantity necessary for one tenant could not have been reasonably ascertained, and that divided among the several new tenants, agreeably to the extent or value of their respective parts of the land. It is sufficient, for the present, to say that the rule which I have mentioned has been settled. Lord Coke says that the right to take estovers is so entire that it cannot be divided, even between coparceners. (Co. Lit. 164, b.) It appears by the books that in such case the eldest shall have them and the others, a contribution ; or if no other property descended, from which contribution could be had, then the parceners should have the alternate enjoyment. It seems to be settled that, when the entire right devolves upon several by operation of law, although they cannot enjoy it in severalty, nor either of them alone, they may yet unite and convey it to one; who would thereby acquire a vested title. But when it is once severed by the act of the party, it is extinguished and gone forever. The question in this case is whether the right to take the estovers has not been severed by the act of the party. The defendant confessedly occupies but a part of the demised premises. He claimed in his notice subjoined to his plea that he had a right to cut the wood and timber under the lease. He does not claim under a joint right in his co-assignéé Sherman and himself. Had they occupied the whole jointly, and he had justified under a joint claim, then the question might have been raised whether an assignment, in terms, of the right by one to several would, per se, have annihilated it. In that [598] case it might well be doubted whether the same reason—the danger of surcharging the common—could not be urged against the continuance of the right as well under such circumstances as in the case of tenants holding in severalty, although not to the same extent. There would be a necessity, certainly, for more fire wood, and probably for more fencing stuff and building timber. However, it was not necessary to decide that point on tlie trial of this cause. It could, and I think should, have been put on another ground. There was strong, if not conclusive, evidence to prove that there had been a partition of the demised premises between the defendant and' Shadrach Sherman, under the assignment of the original lease to them. Such partition would have been valid arjd have created separate interests in the parties, although made by parol. There is no evidence to show that the right to take estovers was in any manner granted or conveyed to the defendant to be exercised by him solely. On the contrary, the presumption from the facts proved is the other way. It was incumbent upon the defendant to remove . such presumption by positive proof; more especially as nothing is to be presumed in favor of the claim to take estovers. If there has been a partition of the premises without any express stipulation as to such claim, that of course extinguished the right to take the estovers in question, and the defendant was a trespasser. In my humble opinion the learned judge should so have instructed the jury. The intimation which he gave, and his refusal, to charge on this point as requested by the plaintiff’s counsel, doubtless led them to a different conclusion. There should be a new trial, costs to abide the event of the suit. M Horse, J. concurred. New trial granted.