Ayer v. Phillips

69 Me. 50, 1879 Me. LEXIS 4

• Court: Supreme Judicial Court of Maine
• Decided: January 7, 1879
• Status: Published

Opinion

Appleton, C. J.

The demandant, by her deeds, shows a legal title to the premises demanded. It is not pretended that the tenants have title to the fee. Whatever rights they may have are under the location of the Somerset Railroad Company.

No disclaimer has been seasonably filed. What was in the nature of a disclaimer was not filed within the time allowed for filing a disclaimer, nor has leave of court been granted to file it. The general issue having been pleaded, and the title being in the demandant, she must recover. Chaplin v. Barker, 53 Maine, 275. Colburn v. Grover, 44 Maine, 47.

The Somerset Railroad Company, by its location over the premises demanded, obtained only an easement. Undoubtedly, for any interference, the party aggrieved thereby may, in a proper action, recover appropriate damages. The right of the demand-ant to recover is unquestioned, so far as relates to the land demanded ; but she is not entitled to have judgment and execution that would exclude the Somerset Railroad Company from complete possession and control of the premises for all purposes pertaining to the full exercise of its corporate franchises.

The tenants claim under the Somerset Railroad Company, and are in possession and occupancy under it, and have a right to all the protection its charter enables it to confer. Proprietors of Locks & Canals v. N. & L. Railroad Company, 104 Mass. 1.

The plaintiff is entitled to a judgment which shall establish her right as owner of the fee.

The buildings, from the evidence, would seem to be personal property, and judgment should go only against the land.

Exceptions overruled.

Daneorth, Virgin, Peters and Llbbey, JJ\, concurred.