Beach v. Child

By the Court, Nelson, J. All the rights and privileges to the use of the basin, possessed by Charles Carroll, under the deed of partition bearing date the 19th September, 1822, and which he would have been entitled to enjoy in the occupation of mill site No. 7, for its benefit and convenience as such, he conveyed to Kempshall, by his deed of 21st May, 1823, in terms too special and explicit to be misunderstood. After describing the privileges granted and restrictions imposed, he adds: “ It being hereby intended to convey the said mill site number seven, with the same privileges and immunities, and subject to the same limitations and restrictions, and expenses347 of repairing the works, that the said Charles would'have been entitled to' enjoy, and liable to incur by the above mentioned deed,” (meaning the partition deed.) The question presented in the special verdict is to be decided as if it had arisen between Carroll in the occupation of the mill on this lot and his co-tenants under the partition deed, and in truth involves, simply, a construction of that instrument. Though the defendant is one of his co-assignees of the basin, and of all the rights belonging thereto, under a deed of the executor of the 19th December, 1823, yet that conveyance must be taken subject to the rights previously granted to Kempshall, and it in no way varies the case. The basin was made Upon land belonging in common to the parties ; and it was agreed in the partition deed of 1822, to be made at their joint expense, and to be the common property of the parties to the deed of partition, their heirs and assigns forever. The deed also provides for the building, by each, of warehouses in front of his respective mill sites across a common way, the extent of his lots to the margin of the-basin, which was obviously constructed'for the special convenience and accommodation of the many valuable mill sites belonging to- the parties in that neighborhood, while at the same time it afforded facilities to other branches of business, thereby benefitting their other lots, besides creating a revenue from anchorage, wharfage, &c. There is nothing in the deed of partition expressly regulating or restricting the use of their common interest, and it is left, therefore, to the operation of law. Being tenants in common, they are possessed per my et per tout, and upon strict principles applicable to this estate, each is entitled to the use and enjoyment of every part of the basin—one part as-much as another. 2 Black. Comm. 194. Looking at the subject, however, with regard to the division of the mill lots, and that the basin was constructed in part, at least for the benefit and accommodation of those lots, this general right of each, legally flowing from the nature of the estate,- should be deem.ed'so far qualified by the deed of partition, by implication of law, as to admit the application of the maxim sic utere tuo, ut alienum non Icedas; and neither party ought to be permitted so to occupy the basin or use this common right in [348] front of his own lot as permanently to do injury to the rights of the others. So far, and for this purpose, there is a species of severance of the common right, and of its enjoyment. Under this maxim, the remedy on the case would be appropriate, if the injury was established, and is the only one at law to which the plaintiff can resort, Carroll owning the fee, and being tenant in common with the defendant, might also, perhaps, have sustained an action of ejectment upon the ground of an actual ouster from the possession, 2 Selw. 517, n., 1 Wendell, 52, resting upon the remedy incident to his principal interest or fee. It does not appear to be denied but that the original proprietors would have been entitled to the right now claimed by the plaintiffs as against each other; but it is supposed that the plaintiffs have not been invested with such right. The argument is, that the basin was a separate and distinct piece of property, held in common by them, except the east bank or wharf, which was divided and held in severalty for specified objects; that the plaintiffs by their deed only acquired a several portion of such wharf belonging to Carroll, without any interest or right in the basin, except to use it reasonably as a way of ingress, egress, and regress to and from such wharf. The soundness of the argument upon this view, must depend upon a construction of the deed to ICempshall of mill site No. 7. We have before expressed our opinion of the true construction of that deed, and will only add, that it in terms conveys to him u the same privilege of wharfage, of loading and unloading boats on said thirty-five feet, (the width of the lot) that the said Charles is entitled to by said deed, (meaning the partition deed;) the said ICempshall not to bear any part of the expense of making the basin, but to be at the same expense of keeping it in repair that the said Charles would have been liable to for said mill site.” It is true that the plaintiffs are only entitled to the use of the basin, as an easement in going to and from their mill lot, and for the purpose of loading and unloading their boats, but they are also entitled to the enjoyment of these privileges to the fullest extent, and in the most ample manner that belonged to their grantors. They have paid for these privileges, and are perpetually subject to the [349] expense of repairs in the proportion this lot bears to the others. The deed being the act of Carroll, should, upon well settled principles, if there be any obscurity in its terms, be construed most strongly against him, and liberally and beneficially for the grantee. Being himself a tenant in common in the basin, and having built it in part for the accommodation of the, mill lots, he would, beyond all"doubt, have been entitled to use it, and would have used it in the most practicable and convenient manner for the purposes specified, having a due regard to the rights of his co-tenants; and they, in turn would have been entitled to a reciprocal enjoyment. Such a use the plaintiffs have bought. That the pier of the defendant is a permanent obstruction and impediment to the use of the basin, both in loading and unloading boats at the plaintiffs wharf, and in departing from such wharf, is admitted. It excludes them from the water in front of the defendant’s lot, to the extent of 12 feet from the wharf, at all times, whether used by him or not, and is virtually an exclusive appropriation of that part of the basin. If the defendant can thus obstruct or embarrass this use, the other co-tenants, if owners of the lots, can do the same ; and had they done so, it would necessarily have created a very serious inconvenience to all parties. The assignees of the lots possessing like privileges with the plaintiffs, may also erect a pier ,• for if the pier of the plaintiffs is a convenience to the operations connected with the null lots, they have the same right to build one ; and if a detriment to demolish it. In regard to this use of the basin, the rights of the mill owners, as contradistinguished from those of the original proprietors, are paramount; they were granted out of the original rights, and must be first satisfied. Proprietors, as owners of the mill sites, have, of course, concurrent rights and privileges. It was said, on the argument, that as the original proprietors in their division of the mill sites possessed a width equal to the length of a canal boat, the inconvenience complained of could not have existed to them, and it was inferred that this view probably entered into their consideration in the division. The facts abundantly refute this argument—each mill site, according to the division, measuring but thirty-one feet, besides [350] *wo ^eet on each side for air and light. Though the aggregate of lots happened to exceed the length of a canal boat, it was not the design of the proprietors thus to sell or occupy them, as is obvious from the size of the lots, each of which is specially provided for as to water, common way, warehouse, &c. It may be added, that the basin being made for the purpose, as is obvious, of admitting canal boats to the mill lots, the convenient use of them may be considered as having been especially provided for, and affords additional strength and weight to the views of the plaintiffs. There is no pretence for saying they should cut their boats down to the size of the mill lot, or suffer the inconvenience imposed upon them. It was also said that all the owners of lots adjoining the basin had the same rights which belonged to the plaintiffs, and that they did not pretend to make the claims which were made by the plaintiffs. Whether this be so or not, we cannot say ; and whether they have the same rights as the plaintiffs, must depend upon their deeds. We put the right of the plaintiffs upon express grant,vend any other person showing a similar conveyance, would of course be entitled to the same privilegés. From the foregoing principles discussed and applied to the special verdict, and in pursuance of its directions, it necessarily follows that the plaintiffs are entitled to the judgment for $1, for obstructing the passage to and from their wharf; and also to judgment for the $100, for preventing them, by means of the same obstruction, from laying their boats in front of the defendant’s wharf, for the purpose of loading and unloading, when not in the use of himself or some other common otoner. The judgment of the $100 follows from the principle of law arising from the estate in common in the basin, and the qualification derived from the construction of the deed of partition, that each proprietor of the mill site must so use this common right as not substantially to injure his neighbor.' When the basin in front of the wharf of one of the parties is not in the appropriate use of the owners of the wharf, the right to occupy it is then free, and may be enjoyed by either of the other parties, in the same manner as he may use the basin in front of his own lot. Judgment for plaintiffs.