United States v. Appleton

STORY, Circuit Justice. The question is, whether the defendant, Appleton, in virtue of the conveyance to him, is entitled to swing the side-door of his store over the piazza of the custom-house, and to pass in and out of his store through that side-door into CustomHouse street. In other words, is he entitled to the use of that door and the piazza, as a passage from , and to Custom-House street? It appears to me, that upon principle and authority he is so entitled. The general rule of law is that when a house or store is conveyed by the owner thereof, every thing then belonging to. and in' use for, the house or store, as an incident or appurtenance, passes by the grant. It is implied from the nature of the grant, unless it contains some restriction, that the grantee shall possess the house in the manner, and with the same beneficial rights, as were then in use and belonged to it. The question does not turn upon any point as to the extinguishment of any preexisting rights by unity of possession. But it is strictly a question, what passes by the grant. Thus, if a man sells a mill, which at the time has a particular stream of water flowing to it. the right to the water passes as an appurtenance, although the grantor was. at the time of the grant, the owner of all the 844 stream above and below the mill. And it will make no difference, that the mill was once another person’s; and that the adverse right to use the stream had been acquired by the former owner, and might have been after-wards extinguished by unity of possession in the grantor. The law gives a reasonable in-tendment in all such cases to the grant; and passes with the property all those easements and privileges, which at the time belong to it. and are in use as appurtenances. Mr. Justice Doddridge, in Sury v. Pigot, Poph. 166, put the very case. “A man.” (said he.) “owns a mill, and afterwards purchases the land, upon which the stream goes, which runs to the mill, and afterwards aliens the mill; the water-course remains.” Let us take another case. A man sells a dwelling-house with windows then looking into his ■own adjacent lands There can be no doubt, that the grant carries with it the right to the enjoyment of the light of those windows; and that the grantor cannot, by building on his adjacent land, entitle himself to obstruct the light, or close up the windows. Mr. Justice Bayley. in a very late case, put the very illustration. “If,” (said he,) “I have a house surrounded by my land, and sell the house. I sell the right to light from the windows. The sale of the house, as it stands, gives a right to the light coming in at the windows, without necessity for twenty years’ possession of the easement.” Canham v. Fisk. 2 Tyrw. 155, 157. He also put another case: “Suppose.” (said lie,) “the owner of two fields sells one, having a stream of water flowing through it; can the vendee stop that watercourse? Prima facie no exception in the conveyance could be presumed.” Id. This is the converse case; for here the law gives a common-sense construction to the grant, and supposes, that each field has the appurtenances thereof in statu quo, notwithstanding the grant. It has been very correctly stated at the bar, that in the construction of grants the court ought to take into consideration- the circumstances attendant upon the transaction, the particular situation of the parties, the state of the country, and the state of the thing granted, for the purpose of ascertaining the intention of the parties.' Bigelow, Dig. “Conveyance,” S, p. 211. In truth, every grant of a thing naturally and necessarily Imports a grant of it, as it actually exists, unless the contrary is provided for. Here, the side-door in question was in actual use. as an appurtenance de facto, at the time of the grant. Could the owners of the central building on the next day after have shut it? Could they have shut out all the light of the window in the upper part of it? Could they have built down to Custom-House street, and filled up the piazza? In my opinion it is most clear, that they could not. Their grant carried by necessary implication a right to the door and window, and the passage, as it had been, and as it then was. used. The case of Nicholas v. Chamberlain, Cro. Jac. 121, is in point. So is the case of Staple v. Heydon, 6 Mod. 1, 4, notwithstanding the criticism which has been passed upon it at the bar. There, the third point decided by the court was. that “If one be seised of black acre and white acre, and use a way over white acre' from black acre to a mill, river. &o.. and he grant black acre to B, with all the ways, easements. &e., the grantee shall have the same conveniency that the grantor had. while he had black acre.” The report of the same case, in 2 Ld. Kaym. 922, is quite imperfect, and far less satisfactory. And Mr. Chancellor Kent, in his learned Commentaries, fully sustains the doctrine in 6 Mod. 4. 3 Kent, Comm. (2d Ed.) Lect. 51, p. 420. It is observable, that in this case reliance is placed on the language of the grant, “with all the ways.” &c. But this is wholly unnecessary; for whatever are properly incidents and appurtenances of the grant will pass without the word “appurtenances,” by mere operation of law. So, it is laid down by Lord Coke in Co. Litt. 307. The same doctrine is affirmed by Lord Chief Baron Cornyns (Com. Dig. “Grant,” E. 11); and it has been fully supported by the supreme court of Massachusetts in a very recent case (Kent v. Waite, 10 Pick. 138). The doctrine of the same court also in the eases of Grant v. Chase. 17 Mass. 443, 447, 448, and Story v. Odin, 12 Mass. 157. especially the latter, appears to me fully to support my present opinion. The question is not indeed new to me; for I had occasion in the case of Hazard v. Robinson [Case No. 6,281], to examine the subject at large. I adhere to the doctrine stated in that opinion, which covers the whole ground of the present question. If there had been any doubt upon the conveyance, which I think there is not, the subsequent usage would, in my judgment, be conclusive, as to the construction put upon the conveyance by all the parties in interest. My opinion. therefore, is. that judgment upon the statement of facts ought to be for the defend-aut.