Van Rensselaer v. Van Rensselaer

Per Curiam. By the original lease from Stephen Van Rensselaer to the Slingerlands, he reserved to himself the mill-seats* with the privileges necessary therefor; consequently, the mill-seat and ground sufficient for the use of the mills, never passed to them. The agreement between Stephen Van Rensselaer and the plaintiff vested the latter with all the rights of the former, until the plaintiff was paid a reasonable compensation for erecting the saw-mill and dam, but, at all events, it rendered the plaintiff a-tenant at will. The sale by Maria Van Rensselaer, to the defendant, being only co= extensive with the right held by the Slingerlands, did not, and could not, pass that part of the premises on which the saw-mill and dam were erected, because they were never granted to the Slingerlands. When Stephen Van Rensselaer gave the plaintiff a right to enter and hold the interest reserved out of the Slingerlands* lease, the entry and erection of a mill-dam, and saw-mill, was a complete severance of the freehold, and it became a distinct and independent close. The circumstance of the dam’s being carried away, and the non-user of the mill thereafter, did not give to those vested with the right of the Slingerlands, any interest whatever, either in the dam or mill; but, in point of law, the possession of them resided in the tenant of S. Van Rensselaer, who did no act destructive of that tenancy. In point of fact, the defendant had not the possession of the mill, or dam, until hp entered and did the acts complained of as trespasses. . The fallacy of the argument of the defendant’s counsel, relative to the possession, is founded on a supposition that the defendant’s occupancy of the farm was necessarily an occupation of the mill-dam ; this is wholly incorrect, if they were distinct and independ [381] ent hereditaments. That they were so, results from the reservafion in the lease, and the actual entry under it. In the spring of 1806, the defendant put Sanders in possession, offering to let him have the mill, but he declined taking it; and there is no evidence that the defendant ever possessed the mill or dam, till he demolished both. The plaintiff having erected the mill and dam, under authority from Stephen Van Rensselaer, in whom the right resided, his tenancy never having been determined, on what principle can the defendant, who appears without the colour of right, appropriate to himself the plaintiff’s property ? Admitting that the possession of the mill and dam was vacant, it, nevertheless, was the close of him who had the right; and for violating that right, trespass is the appropriate remedy, (1 Chitt. 174.) A landlord may maintain trespass for trees, or other property excepted in the lease, and any possession is sufficient, as against a wrongdoer. (1 Chitt. 176.) There is no solidity in the objection to the form of the action» nor to the plaintiff’s right to recover. The objection to the amount of the verdict is equally untenable. The jury did right in giving the plaintiff the value of the mill and dam as it stood, and might have gone higher. Motion' deied.