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To render a party liable to an action of ejectment, he must be the actual occupant of the premises claimed if they are occupied by any one; if they are not so occupied, he must be a person exercising acts of ownership on the premises, or must claim title thereto, or to some interest therein, at the commencement of the suit. (2 R.S., 304, § 4.) The defendant was not the occupant of the wharf or basin, and he was not shown to have exercised any acts of ownership on them. His use of them was temporary and occasional, and not exclusive. It was not different from that which is made of a street or highway, or a public landing-place on a navigable river or canal. It did not constitute any pretension to the ownership, occupation or possession of the basin, and was not in itself possession or occupation. The act of discharging or loading boats lying in the basin over the dock did not imply any claim to the ownership of that property. They were structures erected for the convenience and use of persons engaged in forwarding and transporting property on the state canals, and such use of them as was shown in this case was no more an act of ownership than the navigation of the canals would be of the canal itself. As to claiming title: the defendant merely insisted that he had a right to use the basin and dock for the accommodation of his mill in bringing and taking away property which had been or was to be transported on the Erie canal. He claimed simply an easement, which is not a title to land or an interest in land within the meaning of the statute. (3 Kent's Com., 419;Hewlins v. Shippam, 5 Barn. Cress., 221.)
If being actually in the enjoyment of an easement on the land of the plaintiff does not subject a man to this action, it is impossible that the claim of a right to such enjoyment should make him liable. Ejectment only lies for something tangible, something of which possession may be delivered by the sheriff to the plaintiff. (Jackson v. May, 16 John., 184; Doc v.Alderson, 1 Mees. Wels., 210; Crocker v. Fothergill, 2Barn. Ald., 652; 2 R.S., 304, 306, 307, 308, 310, §§ 7, 8, 12, 25, 30, 33, 34, 41.) I am of opinion that the claim of title, or of some interest in the premises, spoken of in the statute, must be such a claim as that, if it were reduced to possession or enjoyment, it would constitute an actual occupation of the premises, so as to authorize ejectment to be brought on that ground. The wharf, it is true, is tangible property, but the defendant is not in possession of it, and does not claim to own it. He only insists on a right to use it for passage, and perhaps as a place of temporary deposit for property received or sent by the canal.
But I am also of opinion that the court below was right in holding that the defendant was entitled to use the basin and wharf for conducting his business at the mill. For an accurate understanding of the several partition deeds, it is necessary to consider the subject matter to which they relate. The three proprietors who were parties to them being the owners of a tract of land upon which there was a very valuable water power, which had been improved to a certain extent by the construction of aqueducts or races, caused it to be laid out into lots for mill sites and other lots, with alleys between the lots and on the sides of the mill-race, and with certain yards for the accommodation of the business of the mills. These were laid down on a diagram annexed to the first partition deed, and referred to in it; and by that deed the proprietors covenanted with each other that the water to be introduced into the races, the millyards and the alleys, should be held and owned by them, the proprietors, their heirs and assigns forever, for
their common use as tenants in common, with a reservation, however, made for greater caution, that they might by mutual consent dispose of any parts of the mill yards which they might afterwards consider unnecessary for the accommodation of the mills and water-works. The second partition deed was a modification of the first, and not an entire abandonment of it. The location and boundaries of some of the lots were changed, and a portion of the yards appropriated for the common use by the first deed was laid out into additional lots and divided between the proprietors. The basin provided for by the second deed was to be made and was afterwards actually made upon a part of the mill yard reserved by the first deed, and was so far a modification of the provisions of that instrument, but in all particulars not provided for in the second deed, the former one remained in full force. By the terms of the last deed the basin was devoted to the use and accommodation of the divided portions of the property, in language similar to that used respecting the mill-races, alleys and yards in the prior partition. To show more clearly the relation which the basin was to sustain to the mill-seat lots, the owners of the latter, their heirs and assigns, were by the deed allowed to extend the warehouses which they might erect on their lots, over the passage way between the lots and the basin, quite to the margin of the basin, leaving under those buildings a sufficient space for passing. The intention of the parties to appropriate in perpetuity the use of the basin and the means of access to it from the mill lots, to the accommodation of those lots and to the mills and other erections which might be constructed upon them, is as plain and explicit as it could be made by language. Neither the aqueducts or races, the water power or the common way, are more firmly annexed to the mill lots than the use of the basin. They are all of the same general nature, set apart for the same objects, and their relation to the divided property is of precisely the same character. It is not
necessary to inquire what remedy there would have been in favor of a purchaser of one of these mill lots upon the covenants to construct the basin, if the proprietors had neglected to perform that work, for there was no such neglect; the basin was excavated according to the provisions of the deed. It was no doubt competent for the proprietors, before they had conveyed any portion of the divided property to others, by common consent to have modified or rescinded the provisions respecting the undivided portions; and I presume either of the proprietors could, by express provisions in the conveyance of a lot to a stranger, have restricted him in the enjoyment of any of the rights relative to the common property created by the partition deeds. This, however, was not done in the deed of mill-seat lot number five, owned by the defendant.
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To render a party liable to an action of ejectment, he must be the actual occupant of the premises claimed if they are occupied by any one; if they are not so occupied, he must be a person exercising acts of ownership on the premises, or must claim title thereto, or to some interest therein, at the commencement of the suit. (2 R.S., 304, § 4.) The defendant was not the occupant of the wharf or basin, and he was not shown to have exercised any acts of ownership on them. His use of them was temporary and occasional, and not exclusive. It was not different from that which is made of a street or highway, or a public landing-place on a navigable river or canal. It did not constitute any pretension to the ownership, occupation or possession of the basin, and was not in itself possession or occupation. The act of discharging or loading boats lying in the basin over the dock did not imply any claim to the ownership of that property. They were structures erected for the convenience and use of persons engaged in forwarding and transporting property on the state canals, and such use of them as was shown in this case was no more an act of ownership than the navigation of the canals would be of the canal itself. As to claiming title: the defendant merely insisted that he had a right to use the basin and dock for the accommodation of his mill in bringing and taking away property which had been or was to be transported on the Erie canal. He claimed simply an easement, which is not a title to land or an interest in land within the meaning of the statute. (3 Kent's Com., 419;Hewlins v. Shippam, 5 Barn. Cress., 221.)
If being actually in the enjoyment of an easement on the land of the plaintiff does not subject a man to this action, it is impossible that the claim of a right to such enjoyment should make him liable. Ejectment only lies for something tangible, something of which possession may be delivered by the sheriff to the plaintiff. (Jackson v. May, 16 John., 184; Doc v.Alderson, 1 Mees. Wels., 210; Crocker v. Fothergill, 2Barn. Ald., 652; 2 R.S., 304, 306, 307, 308, 310, §§ 7, 8, 12, 25, 30, 33, 34, 41.) I am of opinion that the claim of title, or of some interest in the premises, spoken of in the statute, must be such a claim as that, if it were reduced to possession or enjoyment, it would constitute an actual occupation of the premises, so as to authorize ejectment to be brought on that ground. The wharf, it is true, is tangible property, but the defendant is not in possession of it, and does not claim to own it. He only insists on a right to use it for passage, and perhaps as a place of temporary deposit for property received or sent by the canal.
But I am also of opinion that the court below was right in holding that the defendant was entitled to use the basin and wharf for conducting his business at the mill. For an accurate understanding of the several partition deeds, it is necessary to consider the subject matter to which they relate. The three proprietors who were parties to them being the owners of a tract of land upon which there was a very valuable water power, which had been improved to a certain extent by the construction of aqueducts or races, caused it to be laid out into lots for mill sites and other lots, with alleys between the lots and on the sides of the mill-race, and with certain yards for the accommodation of the business of the mills. These were laid down on a diagram annexed to the first partition deed, and referred to in it; and by that deed the proprietors covenanted with each other that the water to be introduced into the races, the millyards and the alleys, should be held and owned by them, the proprietors, their heirs and assigns forever, for
their common use as tenants in common, with a reservation, however, made for greater caution, that they might by mutual consent dispose of any parts of the mill yards which they might afterwards consider unnecessary for the accommodation of the mills and water-works. The second partition deed was a modification of the first, and not an entire abandonment of it. The location and boundaries of some of the lots were changed, and a portion of the yards appropriated for the common use by the first deed was laid out into additional lots and divided between the proprietors. The basin provided for by the second deed was to be made and was afterwards actually made upon a part of the mill yard reserved by the first deed, and was so far a modification of the provisions of that instrument, but in all particulars not provided for in the second deed, the former one remained in full force. By the terms of the last deed the basin was devoted to the use and accommodation of the divided portions of the property, in language similar to that used respecting the mill-races, alleys and yards in the prior partition. To show more clearly the relation which the basin was to sustain to the mill-seat lots, the owners of the latter, their heirs and assigns, were by the deed allowed to extend the warehouses which they might erect on their lots, over the passage way between the lots and the basin, quite to the margin of the basin, leaving under those buildings a sufficient space for passing. The intention of the parties to appropriate in perpetuity the use of the basin and the means of access to it from the mill lots, to the accommodation of those lots and to the mills and other erections which might be constructed upon them, is as plain and explicit as it could be made by language. Neither the aqueducts or races, the water power or the common way, are more firmly annexed to the mill lots than the use of the basin. They are all of the same general nature, set apart for the same objects, and their relation to the divided property is of precisely the same character. It is not
necessary to inquire what remedy there would have been in favor of a purchaser of one of these mill lots upon the covenants to construct the basin, if the proprietors had neglected to perform that work, for there was no such neglect; the basin was excavated according to the provisions of the deed. It was no doubt competent for the proprietors, before they had conveyed any portion of the divided property to others, by common consent to have modified or rescinded the provisions respecting the undivided portions; and I presume either of the proprietors could, by express provisions in the conveyance of a lot to a stranger, have restricted him in the enjoyment of any of the rights relative to the common property created by the partition deeds. This, however, was not done in the deed of mill-seat lot number five, owned by the defendant. In the conveyance of that lot by Nathaniel Rochester, one of the three proprietors, to Rochester and Montgomery, so far from there being words excluding the grantees from the rights which the grantor possessed, the language seems to me to have been expressly intended to transfer those rights. The grantees were to have all the privileges and immunities and to be subject to all the limitations and restrictions which were expressed and provided for in the deed of partition. It is to be presumed that the grantees purchased with a view to the advantage which the rights which attached to the lot over the adjacent undivided property gave it, and that they paid a price grounded upon a consideration of those rights. The accommodation afforded by the canal may have been considered as important as that furnished by the water power, or by the avenues or common way. The right of the purchaser to the use of the former is provided for in precisely the same way as the right to the latter.
The intention of the parties to these instruments being sufficiently obvious, the next inquiry is what idea the law attaches to such arrangements respecting real estate. The
partition deeds in my opinion create a perpetual servitude, or in more modern language an easement in fee upon the undivided lands upon which the basin and wharf are situated, for the use and benefit of those parts of the original premises which were set off and released in severalty to the individual proprietors. These undivided lands are the servient tenement, and the released land became the dominant tenements. The easement or privilege is permanently annexed to the mill-seat lots, and becomes an integral part of the estate in them and of every part and parcel of them capable of being benefited by their enjoyment. They follow the estate benefited by the easement into the hands of any person to whom it may be assigned; and they constitute a perpetual incumbrance upon the lands burthened with them into whosesoever hands they may pass. (Hills v. Miller, 3 Paige,
256, 257; 2 Kent's Com., 420; Trustees of Watertown v.Cowen, 4 Paige, 514.) The doctrine of servitudes, or of services of houses and lands, as it is called, is derived from the civil law, and constitutes an enlightened system of rules upon this subject, which have been generally adopted in England and in this country. (Domat's Civil Law, book 1, tit. 12,vol. 2, 205 to 219; 3 Kent's Com., 435.) Servitudes of this kind, or easements as they are now called, are established, says Domat, by covenant, or by testament, or they may be acquired by prescription; or if naturally necessary, by the authority of justice. (Domat, ib., § 10.) In this case they arise upon the explicit covenants of the three proprietors, contained in the partition deeds; and the right of the defendant to the advantage of them, in respect to the land owned by him, was acquired by the grant of that land after the easement in its favor upon the undivided land had been established by these covenants.
The foregoing view seems conclusive; but I am of opinion that the case likewise falls within the principle of dedication,
which has been extensively applied of late years under similar
circumstances. The basin is connected with a public canal and was constructed for the sole purpose of facilitating traffic on that great thoroughfare. The act of laying it out in the diagram, covenanting for its excavation, and selling the lot to the defendant with express reference to the deed which contains the covenant and to the diagram, and with the right to extend an erection over the common lands to the margin of the basin, the only purpose of which must have been the use of the basin for the benefit of the lot conveyed, was, quoad the purchaser and the land purchased, a dedication of it to the use for which it was constructed. In the case of an express dedication it is not necessary that it should be followed by any length of user. (Hunter v. the Trustees of Sandy Hill, 6 Hill, 413, 414.) It operates immediately in the nature of an estoppel, upon the principle that to retract the promise implied by such conduct and upon which the purchaser acted, would disappoint his just expectations. (City of Cincinnati v. White, 6 Peters, 431;Watertown v. Cowen, 4 Paige, 510; Livingston v. TheMayor, c., of New-York, 8 Wend., 85; Wyman v. The Mayor,c., of New-York, 11 id., 486.)
This precise question was before the supreme court in reference to another of these mill-seat lots nearly twenty years ago, and it was held that the proprietor of each lot was, by force of the provisions of the partition deed, entitled to the use of the waters of the basin.
The deed from Nathaniel Rochester to the plaintiff, though dated on the same day with the one under which the defendant claims, was executed after the sale had been made to the defendant. Besides, the deed to the plaintiff did not profess to subvert the easement in the basin attached to the other mill lots. It passed the title to the soil subject to the provisions of the partition deeds in favor of all the mill-seat lots.
What is called the wharf or dock is a part of the basin. It is within the limits assigned to the basin in the diagram; and besides, the use of it by the person owning the defendant's
lot is essentially necessary to the use of the basin by such proprietor.
The lease from the plaintiff to the defendant, and the payment of rent by the latter and his predecessors in the title for the use of the basin and wharf, were acts done in ignorance of their rights. The plaintiff was not prejudiced by such payment, and there is no principle upon which it can be held that the payment estops the defendant from insisting upon his actual rights. The judgment should be affirmed.