Great Falls Co. v. Worster

15 N.H. 412

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Parker, C. J.

Upon the 11th and 18th pleas, founded upon the right of Isaac Worster in a corn-mill situated below the plaintiffs’ dam, a verdict was taken by consent for the plaintiffs, and no question is made.

The 2d, 6th and 8th pleas result in issues of law.

The 2d plea is that Joseph Fernald was seized of thirty acres of land, that the plaintiffs flowed it by means of their dam, and that the defendant, as the servant of Fernald, entered and tore down part of the dam, &c. To this there is a replication of de injuña, and a demurrer.

The 5th plea is that Isaac Worster was seized of one fourth of a tract of land, with a corn-mill, below the plaintiffs’ dam, and the dam obstructed the water from coming to the mill, and that the defendant, as the servant of I. Worster, entered and tore down, &c. To this there is a similar replication and demurrer.

Upon these pleadings the controversy between the parties is rather as to the application of the law, than respecting the rule itself. The question is, whether the matter of the pleas sots up a right, or an excuse. The result of the authorities is summed up in á note to the case Taylor vs. Markham, Yelv. Rep., Metcalf’s Ed., 158. “ When the defendant pleads or insists on a right, title, or interest, the general replication, de injuña sm propia absque tali causa, is bad; otherwise, when the defendant’s plea sets forth matters of excuse merely.” “But such replication is aided by verdict.” “ If, however, the title alleged be only inducement, as in the text, the general replication is proper and sufficient.” Various authorities are there cited in support of these positions, and they seem to be well settled principles, although the rules have not been deemed entirely satisfactory, because such replication puts or may put several matters in issue. But it is settled that this is not a sufficient objection. 3 Barn. & Adolph. 2, Selby vs. Bardons.

The defendant claims no right, title, or interest in the land, or dam, which is the foundation of the plaintiffs’ action, either in himself, or those under whom he acted. The right and interest of Fernald and I. Worster in other tracts form an inducement to the excuse he makes for entering upon the plaintiffs’ land. In common parlance, it may be said that he claims a right to go upon the plaintiffs’ land to abate the nuisance; but, within the meaning of the cases, he sets up matter in excuse for so doing.

The replications ai*e, therefore-, sufficient, and the plaintiffs are entitled to judgment upon the demurrers.

The 8th plea is, that the defendant was possessed of an undivided moiety of thirteen acres of land, and that the plaintiffs’ dam flowed the tract, wherefore the defendant entered and tore down the dam, &c. The replication is, that the plaintiffs were seized of - the whole tract in fee and in mortgage, and had the right of possession, and therefore by means of the dam caused the water to overflow, &c. To this there is a general demurrer, and we are of opinion that the replication is insufficient.

If the replication had alleged that the plaintiffs, before that time, had entered into possession _as mortgagees, there would have been some doubt here. A mortgagee in possession is to be treated as owner, until redemption. If he should subvert the soil, pull down buildings, build dams on the land, and flow it, could the mortgager justify air entry to prevent him, or to take down a dam ? If he could not, how could he justify, or excuse an entry into other lands of the mortgagee, to take down a dam there-erected, or to do any other act ?

But the replication does not allege any entry by the plaintiffs as mortgagees. A mortgagee not in possession is not entitled to be treated as owner, except in a suit, or some other proceeding, to enforce his rights as mortgagee. Until entry, he has no right to exercise any aets as owner. He cannot claim the rents and' profits. He cannot convey the land by deed, without transferring the debt. But he may assign the debt, and thereby assign and transfer the charge upon the land. He has no right to commit waste or destroy the property when in possession, until he has foreclosed. But there may be doubts whether there is a remedy at law, if he does so. Perhaps a remedy may be had after redemption, and a court of equity may restrain him so long as the right of redemption exists, and, on a petition to redeem, may compel him to deliver up the possession where he has committed waste. 2 Vernon 392, Hanson vs. Derby; 1 Powell on Mortgages 188, and notes.

It does not appear, from the replication, that the flowing of the land by the plaintiffs was in the exercise of any right as mortgagees.

It has been contended on the part of the plaintiffs, that the defendant’s 8th plea is bad, because it does not allege that the defendant had any title or interest in, or right to, any part of the thirteen acres, or even that he was lawfully possessed thereof, but merely alleges that he was possessed of an undivided moiety. If the plea were bad, the plaintiffs would be entitled to judgment on the demurrer, because that would be the first fault. No authorities are cited in support of the otjection bearing directly upon it, but there is an attempt to liken the case to an avowry for distress for rent. There does not seem, however, to be such an analogy as to require us to apply the same principle. By the common law it was necessary for the avowant to set forth his title, and it was held insufficient to allege that he was lawfully possessed. 1 Johns. R. 382. That has been altered in England by the statute 11 Geo. 2, ch. 19. But it has been held that the common law is still in force in New-York. 5 Cowen 340. If it is so here, but the rule is of such questionable propriety as to have been altered by statute in England, we shall not be justified in extending the principle to a plea of justification or excuse in the abatement of a nuisance, without some authority. The rights of a person holding for years are as well worthy of protection from nuisance as those of a freeholder.

An assize of nuisance, or a quod permittat prosternere, which not only gave the plaintiff satisfaction for the past, but removed the nuisance, lay only in favor of the tenant of the freehold, against the tenant of the freehold, (3 Black. Com. 220, 222,) and a lessee for years was confined to his action on the case. 3 Black. 220. But I no where find it stated that the lessee for years,'or any other person lawfully in possession, might not abate the nuisance. Case lies for him in possession against him in possession, 3 Black. Com. 222 ; and the statement of the right to abate, by the party’s own act, is- general. “ The reason why the law allows this private and summary method of doing one’s self justice, is because injuries of this- kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.” 3 Black. Com. 6.

The possession alleged in the defendant’s plea must be taken to be a lawful possession, which furnishes evidence of title. If it were not so, the plaintiffs might have- traversed it.

Upon the 4th, 12th and 19th pleas, the parties- are at issue on matters of fact, and there has- been a trial, and a verdict for the plaintiffs. These pleas all allege that Isaac Worster was seized of a tract of land; that the plaintiffs’ dam caused the water to flow upon it; and that the defendant, as his servant, and by his command, broke and entered the plaintiffs’ close, and tore down part of the dam, &c.

The replication to the fourth plea is de injuria, and issue.

To the 12th the plaintiffs reply, precludi non, because they say it was not necessary for the defendant to tear down a part of the dam fifty feet in length, and two feet in height at one end and six and a half feet at the other, in order to prevent the dam or any part of it from overflowing the land,' &c. The rejoinder avers that it was necessary, on which issue is joined.

The replication to the 19th plea alleges that the plaintiffs did not cause the water to overflow the land at the time mentioned in that plea, (which is- in answer to the 4th count,) and on this issue is joined.

Upon the trial of these issues, the jury returned a verdict for the plaintiffs on all of them.

The only questions here arise upon the rulings at. the trial and the instructions to the jury.

It has been suggested on the part of the plaintiffs, that the defendant had no right to enter upon the plaintiffs’ land and demolish the dam, even if it did wrongfully cause the water to overflow his land, or the land of those whose servant he was, at the time. But it is admitted that such a power has existed, and there seems to be nothing in the grant of equitable jurisdiction to this-court, which can operate to extinguish it. It exists in England, notwithstanding the existence of ample jurisdiction in equity there.

On the trial, the plaintiffs offered the testimony of Theodore O. Lyman, that in 1838, while on “ the Plains lot,” mentioned in the 4th, 12th and 19th pleas, James Roberts, then over sixty years of age, and who died previously to the trial, pointed out a stump, on the line between his land and the lot in question, as I. Worster’s corner. The defendant excepted to this evidence. It has been held in England that in questions upon boundary between parishes or manors, or on a customary right, the declarations of the common opinion of the place, made by deceased persons, who from their situation had the means of knowledge, and no interest to misrepresent, are admissible in evidence. 1 Phil. Pm. 198. The question in such cases partakes somewhat of a public character, and it is for that reason, probably, that declarations of the common opinion of the place are received. But in the case of a mere private boundary, if the individual was living he could not give evidence of the common opinion, but must testify to his knowledge respecting the boundary, and how his knowledge was derived. This knowledge often rests in tradition merely. The alleged boundary has perhaps been pointed out by some one who professed' to have information respecting it. “ Reputed boundaries are often proved by the testimony of aged witnesses, and the hearsay evidence of such witnesses has been admitted to establish such lines, in opposition to the calls of an ancient patent.” 1 Peters’s C. C. R. 496, Conn. vs. Penn. And we are of opinion that the declarations of deceased persons, who from their situation appear to have had the means of knowledge respecting private boundaries, and who had no interest to misrepresent, may well be admitted in evidence. It has been held, generally, in. Pennsylvania, that where boundary is the subject in question, what has been said in relation to it by a person deceased, is evidence. 6 Binn. R. 59, Caufman vs. The Presbyterian Congregation of Cedar Sprmg. If the witness from his situation had any interest to make the declarations, then they are not admissible. 4 N. H. Rep. 213, Shepherd vs. Thompson.

In this case Roberts does not appear to have had any interest to make the declaration. Although his land bounded upon I. Worster’s, he had no interest in the corner in dispute.' It did not affect him whether Worster’s comer was at the birch stump, or whether Worster’s land extended farther along side of his own, so that it would be overflowed.

Upon the trial of those issues it appeared that the plaintiffs’ dam consisted of a main part, extending across the stream, and a wing dam, which was taken away by the defendant, extending up the stream at nearly a right angle with the main dam. The wing dam was supposed to be permanently secured, and could not be removed without cutting. Six feet in height of the main part of the dam was constructed by setting up posts along the top of the old dam, in the sides of which were grooves, into which loose planks were fitted, but which could be removed, or drawn up, so as to reduce the water to any point desired, not exceeding six feet. The defendant proved that he at first attempted to reduce the water in the pond by removing these planks, but they were replaced by the plaintiffs before the water was reduced much, if any, more than one foot. The defendant then cut away part of the wing dam, which was rebuilt, and it was again cut away by the defendant. The court charged the jury that if there were loose planks in the dam, which the defendant might have taken away with less injury to the plaintiffs, and which would have relieved his land from water in a reasonable time, he was not justified in cutting away the wing dam. To this the defendant excepted.

The law, under the usual practice here, gives a party two remedies, if his land is flowed. He may bring his action to recover the damages, or he may take the remedy into his own hands, and abate the nuisance. If he takes the latter course, he is bound to proceed in a reasonable manner. The ordinary pleas in such cases allege, in substance, that the party had a right to protect his own possessions, or that others under whom he acted had the right to protect their possessions from injury, and that in doing that he necessarily did what was done; or that he did the acts alleged in the exercise of his rights, or as servant, exercising the rights of another, doing as little damage as possible.

If there is excess and unnecessary injury, it may be replied. He has not a right, because the water is on his land, to do an unnecessary injury to the adverse party, notwithstanding the latter is in the wrong. He has not even the right to take such measures as will relieve his land in the most speedy manner. If that was his right, he might blow up the dam and mills, if mills were connected with it. He cannot take the water off at once. It will necessarily take time. The law does not put into his hands an unreasonable remedy. ' Whether this principle was correctly stated in the instructions respecting the loose plank and the wing dam, may admit of doubt on the case before us.' The party suffering the injury is not bound to exercise his right of removal in the most convenient way for the other. He may make it effectual. The instructions should have been general, that the defendant had a right to remove so much of the dam as would drain the water from his land in a reasonable time, doing at, the same time no unnecessary injury to the plaintiff’s property. If this is not in substance the effect of the direction which was given, it was erroneous.

But, furthermore, this point did not arise on these pleadings. The three pleas which were under consideration when those instructions were given to the jury, excuse the act of the defendant, because the land of I. Worster, called “ the Plains lot,” was flowed by means of the dam, and the defendant, acting under his authority, removed, &c. The replication to one of these pleas, (the 4th,) sets forth that the defendant did the act of his own wrong, and without the cause alleged. The replication to the 12th alleges that it was not necessary to tear down so much of the dam, and on this issue is joined. The replication to the 19th denies that the plaintiff caused the water to overflow the land of I. Worster, and the issue is on this.

In trespass to the person, if the defendant has pleaded a plea merely in excuse of an injury to the person, and not a justification under process, the replication de injuria, or de son tort demesne, is in general proper, if the plea be wholly untrue. But if the plea be true, and the plaintiff did in fact commit what in point of law amounted to the first assault, the plaintiff must reply specially; and it is said if the defendant’s battery was outrageous, or more than was necessary for self defence, that matter should be so replied ; but a qumre is made whether de injuria, ■ in such a case, is not sufficient. Matter in aggravation or an excess, however, it is said, must bo new assigned. 1 Chitty’s Pl. 410, [563] Phil. Ed., 1819. In trespass to personal property, when the answer to the plea confesses and avoids it, the replication should be special. 1 Chitty’s Pl. 565. So where, in breaking and entering the plaintiff’s house, or land, felling his timber, or taking away his goods, the defendant pleads a license, which the plaintiff had revoked before any of the trespasses were committed, or which was confined to some particular thing, and the defendant exceeded it, the plaintiff must state the revocation, or excess, in a new assignment. But there are some replications which rather partake of the nature of a new assignment than are properly and strictly so. As when a man abuses an authority or license which 'the law gives him, by which he becomes a trespasser ah initio, if the defendant pleads such license, or authority, the plaintiff must reply the abuse. 8 Co. R. 146, [290,] (Dub. Ed. 1793;) 3 Wils. R. 20, Dye vs. Leatherdale; 3 D. & E. 292, Taylor vs. Cole; 1 H. Black. 555; 1 D. & E. 338, Gundry vs. Feltham; 1 Chitty’s Pl. 567, 568.

According to the authorities thus cited, no question of excess arose on the 4th or 19th pleas.

The replication to the 12th is perhaps not a very formal new assignment, or averment of excess, but if it is regarded as a replication of that character, it merely raises a question whether the defendant tore down more of the dam than was necessary, and not whether he should have taken up loose planks from the main ria.nn, instead of tearing down a certain portion of the wing dam .connected with it. It seems to admit, impliedly, that the defendant might tear down a portion of the dam in the manner he did, but it seeks to maintain the action on the ground that he tore n clown more than he ought.

Here, however, the plaintiffs say that these instructions were immaterial, and that they furnish, therefore, no cause for setting aside the verdict. It is said that it appears conclusively, from the plan used upon the trial by the plaintiffs, and to which the parties are at liberty to refer by the case, that it was not necessary to remove so much of the dam as was taken away, in any aspect of the case. And it is said, farther, that the jury having found, upon the issue framed on the 19th plea, that the plaintiffs did not by means of the dam cause the water to overflow any part of I. Worster’s land, the instructions respecting the manner of removal were of no consequence, because that finding shows that the entire act of tearing down the dam was wrongful, so far as I. Worster’s lot was in question. The verdict seems to show that these instructions could not have had any effect in the consideration of the issue framed on the 19th plea. That relates only to the fourth count. But it farther appears by the case, that the jury, under the direction of the court, found specially that the birch stump was the corner of I. Worster’s land, (as was contended by the plaintiffs,) and that the part of the frog-pond owned by I. Worster was not overflowed by means of the plaintiffs’ dam, at the time the dam was cut down. This finding (which it must be understood was taken by consent of parties, no objections appearing to have been made,) applies to all the different issues on trial relating to that lot; and from an examination of the plan, and the case, we must conclude that the instructions became of no importance. These appear to have been the only points where it was contended that this lot w*as overflowed.

There was a place upon the lot called the frog-pond, which has just been adverted to, and which appears to have been situated some little distance from the mill-pond, and there was no connection between them, unless it was under the surface of the ground. The defendant contended that the water had been raised in the frog-pond, and the banks around it overflowed.. He introduced evidence that on former occasions the water there had risen and fallen, with no perceptible cause save its connection with the mill-pond. The court instructed the jury, that no matter how it had been proved to be on former occasions, unless the defendant proved that at the time he cut away the dam the frog-pond was thus flowed by the dam, he could not justify himself in that part of his defence. The defendant excepted. By this instruction the judge could only have intended that if there was evidence of flowing before the time in controversy, that could not support the pleas, but that it must be proved that the lot was flowed at the time. It could not have been intended that the flowing before, by means of the dam, if proved, had no tendency to show that, if flowed at the time, it might be by the same cause. It is not so expressed, and could not naturally be so understood.

The plaintiffs have attempted to raise a question whether the defendant was servant of Isaac Worster, on the evidence reported. The case finds that the defendant proved that Isaac Worstei*, who had been in the possession of the Plains'lot, “ gave him all the power that said Isaac lawfully might have to draw the water raised by said dam off from his land.” The plaintiffs have argued that I. Worster could not communicate power to the defendant to take down the dam, and did not employ him as his servant to do the act for him. This depends upon what is to be understood by the phraseology used. It does not appear that any question was made about this matter, and we cannot say, from the language stated in the case, that there was not a request by Isaac Worster, which would render him principal and the defendant his agent. If it was not so, the argument of the plaintiffs may be correct. This does not seem to be a case in which power can be communicated by transfer or assignment, so that the defendant could act upon the right of Isaac Worster, but the latter not be responsible as principal for the act done. Isaac Worster had the right to act, if his lot was overflowed. The defendant could have no right but as his servant or agent, so far as that lot is concerned. The pleas allege that the defendant acted as the servant of I. Worster, and by his command. If he was not so, the replication de injuria to the fourth plea would have been well sustained, for that reason, and the question should have been submitted to the jury. In the other two issues relativo to this lot, it is admitted by the course of the pleadings that the defendant acted as ser vant, it being alleged and not denied.

Upon the remaining issues judgment is to be rendered according to the opinion of the court, upon the facts reported at the trial.

The first and fifteenth pleas allege that the defendant was possessed of an undivided moiety of thirteen acres, bounded, &c., part of the 4th division, lot 120, in Milton, that this land was floored, and that he entered and tore down the dam for this cause. The 6th, 13th and 20th pleas allege that the defendant was possessed of one half of two fifths of the same thirteen acres, hut are otherwise similar to the other two.

There are several different issues upon those pleas. To the 1st and 6th, the plaintiffs reply that the defendant entered of Ids own wrong, upon which issue is joined.

To the 13th he answers that he was seized in fee and mortgage, and had the right of possession, and therefore caused the water to overflow the land, similar to the replication to the 8th plea. The rejoinder is that the plaintiffs had not the right of possession, and the issue is upon this. It appears from the evidence that John Fall conveyed the land to the defendant, who mortgaged back the same day to secure the purchase money, and this mortgage was assigned to the plaintiffs, and held by them at the time when the defendant cut down the dam, as alleged in the third count, to v'hich this ploa is an answer. If, then, Fall’s deed to the defendant conveyed to him the title under which he attempts to justify or excuse his entry, it is apparent that his mortgage back, assigned to, and held at the time, by the plaintiffs, gave them a right of possession, which is all that is, involved in this issue. As against the defendant, they had the right, for they might enter at any time under the mortgage.

But a question arises here whether this issue is material, and this is settled by the opinion we have already expressed upon the demurrer to a similar replication to the 8kh plea. Notwithstanding the plaintiffs had the right of possession by virtue of their mortgage, they had no right thereby to flow the land, and the establishment of the right of possession, therefore, under this issue, does ijot entitle them to a judgment. But their right of possession being clear, the defendant cannot have a verdict or judgment on this issue. The issue being immaterial, a repleader must be awarded. 2 Tidd’s Pr. 829; Hobart’s R. 56, note, (Williams’ Edition.)

The replications to the ,15th and 20th pleas allege, in the same manner, that the plaintiffs were seized in mortgage, and had the right of possession, and then aver that they were actually possessed, and traverse the defendant’s possession. The'issue is on the traverse.

The issues on the 1st, 6th, 15th and 20th pleas, therefore, result in the same matter, viz., a denial of the defendant’s possession.

On these .issues the defendant relies upon the deed from Fall to himself, and the plaintiffs upon the mortgage from the defendant to Fall, with evidence that they, prior to the time when the defendant cut down the dam, surveyed the lot, along with other lands, and flowed it. If this survey and flowing constituted a valid possession on the part of the plaintiffs under the mortgage, the possession of the defendant would be negatived by the evidence, and the plaintiffs entitled to a verdict on these issues, notwithstanding the mortgage was afterwards redeemed. Had this deed been absolute, instead of a mortgage, the mere survey of the lot would have been a sufficient possession, the survey constituting an entry under color of title. And it would, moreover, have given them a valid title as against the defendant, carrying seizin along with it. A mortgage title, however, demands a different consideration. We have already adverted somewhat to the nature of it in our remarks upon the 8th plea. The mortgager is seized against all the world except the mortgagee, and against him except so far as he may rightfully maintain his seizin under the mortgage. The mortgage is regarded in this State as a mere security, except for the purpose of the remedy upon it when the mortgagee or his assignee please to enforce it. Then it is treated as a conveyance of the fee. 11 N. H. Rep. 55, Smith vs. Moore; Ditto 274, Ellison vs. Daniels; Rigney vs. Lovejoy, [13 N. H. Rep. 247.] A mere survey of that and other lots, therefore, for the purpose of obtaining information respecting boundaries, cannot be regarded as a possession under the mortgage, because it does not appear to have been an entry for the purpose of asserting a title under it, or with a design of foreclosing. The purpose of the survey in this case is not stated. If it is not to be inferred that it had relation to the flowing of the lot, it cannot be concluded that it was a taking of possession for the purpose of securing the profits, or with a view to foreclosure. And we are of opinion that the flowing of the lot with water, by means of a dam erected elsewhere, cannot be regarded, of itself, as a possession under the mortgage title. It is not a just exercise of any right under the mortgage. Without title it is a tortious act, and a mortgage cannot change its character, for the reason just stated. The mortgage was made to secure a debt, and to enable the creditor to obtain payment or satisfaction; not to authorize him to erect a dam elsewhere, and flow the land mortgaged for purposes not connected with the debt, and not authorized by the nature of a mortgage.

Had the plaintiffs been in possession, as mortgagees, previous to the flowing of the land, the result on these issues might have been different, (ante,) but this is not clear. They did nothing previous, unless it was to survey the lot for the purpose of ascertaining its boundaries.

The fact that they consulted counsel after the water was on, and were told that what they had done was enough, does not seem to alter the case.

Coming more immediately to the question of the defendant’s possession, we find nothing in the case to show that he, or Fall, who conveyed to him, ever was in the actual possession of the thirteen acres. Whether he had any possession, then, depends upon the validity of Ms title. If he had a legal seizin, that is sufficient possession. 7 N. H. Rep. 15, Frost vs. Cloutman; 15 Mass. R. 214, Goodwin vs. Hubbard; 1 Hilliard’s Abr. 24.

It appears from the pleadings that this tract of thirteen acres is parcel of fourth division, lot 120, in Milton, which was originally drawn to the right of Salathiel Denbow, and is familiarly called the Denbow lot. The title to the Fall lot, as it has been called, depends upon the same principles which must govern that part of the case arising under the pleas in which the defendant alleges that Joseph Fernald was seized in fee of a part of that lot, and they may therefore be considered together, so far as the title is concerned.

The 9th and 16th pleas allege that Joseph Fernald was seized in fee of a tract of meadow land, containing about thirty acres, bounded, &c.,in the Denbow lot, and that the defendant entered by his command, &c.

The 7th, 14th and 21st pleas allege that he was seized in fee of one fourth part of the same thirty acres. To the 7th plea the plaintiffs have replied that the defendant acted of his own wrong, and without the cause alleged, upon which issue is joined. In the replications to the other four of these pleas they have traversed the seizin in fee of Joseph Fernald, and tendered an issue, which is joined. The evidence shows that the defendant had a power of attorney to act for Joseph Fernald in the matter, and the issue, therefore, on the 7th plea, raises only the same question, respecting title, which is raised by the other four issues. There seems to be no doubt that Joseph Fernald was seized in fact of the thirty acre lot, claiming a fee, but no question has been made on that. Both parties have treated these issues as raising the question whether Joseph Fernald was seized in fee by a legal title. Perhaps this is the legal import of the pleadings.

This brings us to the title to the Denbow lot, and the multifarious conveyances connected with it.

In 1795, Samuel Palmer, Beard Plumer, senior, and Joseph Plumer, senior, owned the Denbow lot in common, Palmer having the title to half of it, and the others to one quarter each.

In 1802, Palmer conveyed to Ivory Hovey his half.

In 1814, Hovey conveyed to Thomas Leighton all the land he owned in Milton, excepting such parts as he had conveyed to Palmer and others. This deed must be held to have passed the title to half of the lot to Leighton, because there is nothing to show that Hovey had conveyed to Palmer, or any one else, any portion of this lot.

In 1815, Leighton convoyed three eighths of the lot to Joseph Plumer, junior.

In 1816, Joseph Plumer, junior, convoyed to Beard Plumer, senior, throe sixteenths.

At this time, then, the title stood iu Beard Plumer, senior, seven sixteenths, Joseph Plumer, senior, four sixteenths, Joseph Plumer, junior, three sixteenths, and Thomas Leighton two sixteenths.

The argument of the defendant’s counsel assumes that Hovey convoyed hack to Palmer one fourth of the half he had purchased of him. But aside from the fact that Leighton, after he had conveyed three eighths to Joseph Plumer, junior, made no farther conveyance for a long period, and does not seem, in the mean time, to have asserted any title to the other eighth, there seems to be nothing to support this position. The case finds that in 1807,Palmer conveyed to Hovey,in mortgage, “the same quarter part of the estate that day conveyed by Hovey to Palmer,” hut that deed from Hovey to Palmer is not in the case, and there-is nothing to show what land it covered. It may have been part of this lot. It may, as well, have been part of some other lot. If it was a conveyance of part of this lot, it may, for aught which appears, have been a quarter of the whole lot, instead of a quarter of half of it. If the latter, why was it not described as one eighth 1 Palmer does not appear to have asserted any title afterwards, which tends to show that that deed and mortgage related to a quarter of something else. If it had been shown that the deed conveyed part of this lot, the neglect would he immaterial. Leighton’s neglect to assert a title to the one eighth until 1837, cannot operate as an abandonment, he having had title, and there having been no adverse possession.

Pursuing the chain of title, the case finds that Beard Plumer, senior, October 5,1816, devised two sixteenths of the Denbow lot to Joseph Plumer, junior, and three sixteenths to John Plum-er. He also devised to John Plumer the use and occupancy of all his real and personal estate, (a part of which was his remaining interest in the Denbow lot,) except what was before devised, he paying one half of the debts and legacies, and if he died without issue the said property to go to Joseph Plumer, junior, and Beard Plumer, junior, in equal shares.

The defendant’s counsel construe this devise over as including the three sixteenths given to John Plumer, but the plaintiffs’ counsel has considered it applicable only to the remaining two sixteenths not specifically devised in the will. If this matter were important it might require a more precise statement of the language of the will. It does not seem, however, to affect the result. Assuming the construction of the plaintiffs’ counsel, on the decease of John Plumer half of the two sixteenths went to Joseph Plumer, junior, by the executory devise, and the three sixteenths specifically devised to John, with the remaining two sixteenths, descended to Joseph Plumer, junior, Enoch Plumer, Betsey Hall, Susan Brown and Mary H. Plumer. Joseph Plumer, junior, it appears, then purchased the shares of all except Mary H. Upon the construction of the defendant’s counsel, the result will be only to reduce the fraction of Mary H., which is an immaterial matter in this case.

The date of the decease of Beard Plumer, senior, is not stated in the case, nor does it seem to affect the result.

On the'f17th of May, 1819, Joseph Plumer, senior, conveyed to Joseph Plumer, junior, his quarter of the lot.

Joseph Plumer, junior, thus acquired title, by these different conveyances, to all the Denbow lot except the share of Leighton, two sixteenths, and the share of Mary H. Plumer, one twentieth, or one thirty-second part, as the case may be.

Before he had obtained the conveyance from Joseph Plumer, senior, and perhaps before he acquired title under Beard Plumer, senior, he began to make conveyances of portions of the lot.

On the 13th day of February, 1819, he conveyed to James Fernald twenty-five acres, in common, in the lot. This conveyance forms the subject matter of another part of the case, to be considered hereafter.

On the 20th September, 1821, he conveyed to'James Fernald thirty acres of the lot, by metes and bounds, with warranty. The deed was recorded May 1,1826, and James Fernald, December 21,1831, conveyed the same to Joseph Fernald.

On the 28th of March, 1821, Plumer conveyed one hundred and fifty acres of the lot, (it is understood, by metes and bounds,) thirteen acres of which, through several mesne conveyances, have come to the defendant, by the deed of John Fall, as before stated, provided those conveyances by Joseph Plumer, junior, are valid.

On the 10th of May, 1837, Sally Plumer, being then the owner of the share of Mary H. Plumer, conveyed all her right in the Denbow lot to the plaintiffs, and on the next day Leighton conveyed all his right to them, and the plaintiffs object that the conveyances by Joseph Plumer, junior, in severalty, by metes and bounds, as before mentioned, were void as against the other tenants in common with him, whose titles they have thus purchased.

The general rule seems to be well settled, that one tenant in common cannot, as against his co-tenants, convey a part of the common property in severalty by metes and bounds, or even an undivided share of such part. The authorities cited by the plaintiffs’ counsel sufficiently establish the principle. 24 Pick. R. 329, Peabody vs. Minot; 5 Conn. R. 366, Griswold vs. Johnson; 4 Kent's Com. 368; 9 Vermont R. 138, Smith vs. Benson. The reason is obvious. His title is to an undivided share of the whole, and he is not authorized to carve out his own part, nor to convey in such a manner as to compel his co-tenants to take their shares in several distinct parcels, such as he may please.

It is suggested on the part of the defendant that the true rule probably is, that one co-tenant cannot convey in severalty to the prejudice of his co-tenants. Such is the expression in some of the cases; but this is because it assumes that a conveyance of part in severalty, without their assent, is, of course, to their prejudice. If their assent is manifested in a proper manner, there is no occasion for the application of the rule. Other cases say that as against co-tenants the deed is void. 4 Conn. R. 495; 5 Conn. R. 363.

The fact that neither Leighton or Mary H. Plumer ever objected, cannot show that the conveyance was not to their prejudice, or that they assented. They were not bound to assert their title by an objection to an unlawful conveyance, nor had the lapse of time been such as to bar any of their rights.

The defendant suggests farther, that the plaintiffs acquired their title as tenants in common under Leighton and Mary H. Plumer, with full knowledge of the conveyances in severalty to Fernald and Miller. But this does not seem to affect this part of the case. If the conveyances from Joseph Plumer, junior, had been in the exercise of his lawful rights, notice of "these conveyances might in certain events be material. But notice of an' invalid conveyance cannot make it good. The plaintiffs took all the rights their grantors had.

The defendant farther objects, that the plaintiffs are precluded from contesting the title of Joseph Fernald to the thirty acres, and of himself to the thirteen acre tract, because they have taken conveyances of the residue of the tract of one hundred and fifty acres, of which the thirty and thirteen acres are parcels, from persons holding under the grant to Miller, and other conveyances from persons holding under other deeds in severalty from Joseph Plumer, junior, in some of which the land is described as bounding upon land of Joseph Fernald; and furthermore, because the plaintiffs have taken an assignment of a mortgage of the thirteen acres, made by the defendant, and have thereby recognized his title to that part of the lot. But the principle of estoppel does not seem to apply here. The grantee in a deed poll is not estopped to deny that his grantor had such an estate as he undertook to convey. 1 Stark. Ev. 302; Co. Litt. 363, 6; Strange 610, Skipwith vs. Greene; Yelv. 226, note; 3 Barn. & Ald. 426, Hunter vs. Fry, per Holroyd, J.; 10 N. H. Rep. 408, Otis vs. Parshley. The plaintiffs are not here denying the validity of conveyances by their grantors, to which they stand in privity by the acceptance of their deed. Joseph Fernald and the defendant have nothing to do with the lands of which the plaintiffs thus took deeds. The plaintiffs' are not obliged to claim under those deeds, and do not set up any title under them in the present case. Those deeds, therefore, cannot estop the plaintiffs from denying the right of Joseph Plumer, junior, to convey something else, which they do not, and cannot, cover.

The defendant farther objects, that the plaintiffs are precluded from avoiding the titles of Joseph Fernald and himself under the deeds of Joseph Plumer, jr. in severalty, because they have contracted with Sally Plumer, who is widow of Joseph Plumer, jr., and executrix of his will, to save the estate and heirs of Joseph Plumer, junior, harmless from all damage on account of his not being the owner of the several tracts in the Denbow lot which he has conveyed in severalty. It is argued that the plaintiffs cannot create the injury against which they are bound to save the estate and the heirs harmless. The objection is based upon the principle of estoppel to avoid circuity of action. 7 N. H. Rep. 76, Robinson vs. Leavitt. Put here again the answer of the plaintiffs’ counsel is conclusive. The heirs and the estate of Joseph Plumer, junior, are not parties or privies to that contract. It purports to have been made ip consideration of the conveyance, by Sally Plumer, of the share formerly owned by Mary II. Plumer, which Sally Plumer held by purchase from Hall & Hannaford in her own right, and she has the entire control of it. If she sees fit at any time to release the plaintiffs, or refuses to enforce the agreement, the plaintiffs cannot be compelled to make good the damages they may occasion. The principle, therefore, cannot apply, as it might if the plaintiffs were answerable to the heirs of Joseph Plumer, junior, who are bound by the covenants in his deed.

It has been farther suggested, that if the deeds to Fernald and Miller are not good in severalty, they may bo good for such proportion of the lot as the thirty, and one hundred, acre tracts boar to the whole lot; but this cannot be as against the plaintiffs, the other tenants in common. They are not conveyances of so many acres of the whole undivided, nor can they he made to operate as if they were so. They cannot be extended so as to include lands not contained in their boundaries. Nor ca,n they even be held good as against the other tenants in common of tho Denbow lot, for any portion of the land embraced in them, upon the facts which we have thus far considered, without a partition.

If Joseph Plumer, junior, or his heirs, had retained a legal interest as tenants m common in the lot; upon the avoidance of his deeds in severalty, by the other- tenants in common, as being inoperative against them, a partition might be made, and if on that partition the lands, or any portion of them -which are embraced in those deeds, fell to the title of Joseph Plumer, junior, as tenant in common, to .that extent his grantees in severalty might again enter, by force of the warranty, claiming the title acquired on partition, through an estoppel, not only against the grantor himself and his heirs, but against purchasers under him with notice. 5 N. H. Rep. 583, Kimball vs. Blaisdell; 12 Mass. R. 354; 16 Maine R. 391, Duncan vs. Sylvester.

The conveyances -in severalty by Joseph Plumer, junior, who was in possession as tenant in common, were good as against himself and his heirs, and all persons claiming under him or his heirs with notice, or having no better title. They were invalid only as against Leighton and Mary H. Plumer, and those claiming under them. When Joseph Plumer, junior, died, his heirs could take nothing in those tracts, thus conveyed in severalty, against the deeds of their ancestor. They would be estopped to say that he had not such a title as he conveyed, that his deeds were, therefore, invalid, and that the land descended to them. And any conveyance from them to the plaintiffs, if it might pass to the plaintiffs an interest in common in any portions of the lot not conveyed, could not authorize the plaintiffs, as tenants in common under Joseph Plumer, junior’s, title, to treat his conveyance in severalty as invalid. 1 N. H. Rep. 43, French vs. Lund; 12 Mass. R. 354, Bartlett vs. Harlow; Ditto 474, 479, Varnum vs. Abbot; 5 Day’s R. 483, Hoyt vs. Dimon; 7 Conn. R. 220, Stow vs. Wyse; 22 Rick. R. 316, Nichols vs. Smith; 24 Pick. R. 324, White vs. Patten.

And here a question arises on the suggestion of the defendant’s counsel that the plaintiffs acquired title after two of the acts of the defendant, upon which the suit is founded, were committed. It appears that the plaintiffs acquired Mary H. Plumer’s share on the 10th of May, and Leighton’s on the 11th of May. On the 1st and 29th of April, then, when the defendant cut down the dam, as alleged in the first and second counts of the declaration, Joseph Fernald and the defendant, although they had no valid title as against Leighton, and against Joshua Gr. Hall, who then held the title of Mary II. Plumer, had a good seizin in foe against the plaintiffs. The plaintiffs had no authority to flow their lands. They must have answered to them in damages, and could not at that time object to their authoiity to remove, in a lawful way, what, as between the parties, on the state of facts then existing, was a nuisance to the possession of Joseph Fernald and the defendant.

But on the 10th of May, when the plaintiffs procured the conveyance of the shares of Mary H. Plumer and Leighton, the state of the case became changed. The plaintiffs, then, as tenants in common, might well deny the titles of Joseph Fernald and the defendant to hold in severalty, and might enter on the lands, and do any acts as owner, being answerable to no one unless he could show a title in common. Neither Joseph Fernald or the defendant could after that time maintain an action against the plaintiffs, and of course the defendant had no right, on this state of facts, to take down the dam on the 11th and 13th of May, as stated in the third and fourth counts.

Stopping here, without adverting to the effect of the deed which the plaintiffs took from the heirs of Joseph Plumer, junior, on the 24th of February, 1837, of all the land in the Denbow lot flowed by the dam, (which, it is said, was in fact the whole lot,) the result would be, that on this branch of the ease the defendant had maintained his defence on the pleas applicable to the first and second counts, being the first, sixth and seventh, and that the plaintiffs were entitled to a verdict and judgment on the remaining issues, relating to the thirty and thirteen acre tracts, being the 15th, 9th, 16th, 20th, 14th and 21st.

The operation of the deed from the heirs of Joseph Plumer, junior, to the plaintiffs, upon these issues, will be considered hereafter.

We proceed to consider the questions raised by the pleas alleging that James Fernald was seized in fee of an undivided part of the Denbow lot, equal to twenty-five acres in common and undivided, excepting thirty acres of the lot conveyed to Joseph, and that the defendant as his servant did the acts of which the plaintiffs complain. These are the 3d, 10th and 17th pleas. The replication to the 3d plea, that the defendant did the acts of his own wrong, on which issue is taken, might raise a question respecting his authority from Fernald, such as was suggested by the plaintiffs in that part of the case relative to Isaac Worster’s “Plains lot.” The evidence is that James Fernald told the defendant he gave him full authority to clear his land. The question whether this constituted him a servant, might be a question of fact, depending upon intention, to be found by the jury. But this turns out to be unimportant. The issues, therefore, are all to be considered only as they raise a question of title in James Fernald, which is the particular issue on the other two.

In support of this branch of the defence, the defendant relies upon a deed from Joseph Plumer, junior, to James Fernald, February 13th, 1819, conveying twenty-five acres in common and undivided in the Denbow lot.

It is objected, on the part of the plaintiffs, that this deed is void for uncertainty, but this objection cannot avail. The deed is a conveyance of twenty-five acres, not in severalty but in common, in the lot. If the lot contains three hundred acres, this is a conveyance of one twelfth of it. If it contains more or less, the proportion can readily be ascertained by a survey. Id certwm est, &c.

The next objection is, that this deed was not recorded until May 30th, 1837; that the plaintiffs, on the 24th of February, 1837, purchased of the children and heirs of Joseph Plumer, junior, all the Denbow lot then flowed by the dam; that the whole lot was in fact so flowed at that time; that this deed to James Fernald was not then on record, or known to them, when they took their deed from the heirs, and that the deed is, therefore, invalid against them.

The deed to James Fernald was hot in fact recorded until May 30th, 1837, and the case is, therefore, within the well known rule that a prior conveyance, not recorded, is invalid against a subsequent grantee, under the same title, without notice, unless there are some special circumstances which may affect the case. The conveyance would be good against Joseph Plumer, junior, and his heirs, without record, but purchasers under him, or his heirs, stand in a different situation.

The defendant’s counsel has contended that so long as grants do not impinge, there is no necessity for a record; but this part of the argument was more particularly applicable to the evidence showing that Joseph Plumer, junior, had sold to other persons divers portions of the lot in severalty, and that the plaintiffs had acquired title under some of the grantees of those portions. The principle is correct, but the application fails. Joseph Plumer, junior, might have conveyed to one, twenty-five acres in common, to another, thirty acres, and so on, until his interest was exhausted, and there would be no necessity for a record of these conveyances, in order to protect the prior against the subsequent purchasers. Each would be consistent with the other, and all might have their shares on partition. If he conveyed beyond his interest, in this manner, then the grants would impinge, and a record become important.

The plaintiffs’ counsel contend that the grants in severalty by Joseph Plumer, junior, under which they show conveyances of part, impinge ujDon this grant to James Eornald. But the plaintiffs have objected to those grants, and say that they are invalid against them, because they are tenants in common of the lot; and we have seen that they are so, at their election. This part of the argument seems to treat them as valid. Whether the plaintiffs can treat those conveyances at the same time both as void and valid, (void as against the plaintiffs holding as tenants in common, and valid to enable them, holding under those conveyances, to defeat the deed of James Fernaldof an interest in common,) will be considered hereafter. The conveyance by the heirs of Joseph Plumer, junior, to the plaintiffs, embracing the whole lot, does directly impinge upon the prior conveyances of their ancestor, and under this the plaintiffs also object to the deed to James Fernald, because it was not recorded.

The defendant farther suggests, that James Fernald was then in possession, and that this was notice, and equivalent to a record. But this, as alleged by the plaintiffs’ counsel, does not appear from the case, nor is there anything to lead to a supposition that, if in possession, he probably occupied anything except the thirty acres which were conveyed to him, and which he afterwards conveyed to Joseph. The deed of that was on record, and would explain his possession so far. 8 N. H. Rep. 264, Rogers vs. Jones. Why it was that he never attempted to exercise any rights under his deed of the twenty-five acres does not appear. But this neglect alone would not have barred him from asserting his title, if the deed had been recorded. Like Leighton, he could not, by the neglect, have been regarded as abandoning his title, while he held a deed.

There seems, then, to be no valid answer to the objections to this deed urged by the plaintiffs under the conveyance from the heirs of Joseph Plumer, junior; and considering this part of the case separately, they are entitled to a verdict and judgment on the third, tenth and seventeenth-issues.

But a question arises here, which carries us back again to that part of the case founded on the alleged rights of Joseph Fernald in the tract of thirty acres, and of the defendant in the tract of thirteen acres. If the plaintiffs set up title under their deed from the heirs of .Joseph Plumer, junior, and thereby defeat the title of James Fernald to the twenty-five acres in common, conveyed to them, because that deed was not recorded, can they at the same time deny the titles of Joseph Fernald to the thirty acres, and of the defendant to the thirteen acres, derived from the conveyances of Joseph Plumer, junior,in severalty? Those conveyances, as we have seen, were valid against Joseph Plumer, junior, and his heirs, and every other person except the tenants in common with him. The plaintiffs, claiming under Joseph Plumer, junior’s, title, would be bound by those conveyances, previously made by him, and duly recorded. That title could not authorize them to disturb the possession of Joseph Fernald, or any other of the grantees- of Joseph Plumer, junior. Can the plaintiffs stand in any better situation in this respect, because they have also a title as tenants in common of the lot, under Leighton and Mary H. Plumer ?

The plaintiffs’ counsel have suggested that the plaintiffs may avail themselves of both titles separately: in effect, that they may avoid the deeds of Joseph Plumer, junior, in severalty, because they hold as tenants in common, and then take the land under their conveyance from his heirs, as if those deeds had never been executed. And this is necessary to the maintenance of their suit against the rights set up by the defendant, under the several titles on which he relies. He must otherwise prevail, either on the title of Joseph or James Fernald, to say nothing of his own claim to the tract of thirteen acres. But we are of opinion that this position of the plaintiffs cannot be maintained. If it might be, the plaintiffs, by the union of their rights as tenants in common under Leighton and Mary H. Plumer, with their rights under the deed of Joseph Plumer, junior, would be able to take to a much greater extent than any individuals could take who held those different titles separately. If the titles of Leighton and Mary H. Plumer were held by any third person, that person, treating the deeds of Joseph Plumer, junior, in severalty as invalid, might have a partition. But that partition could give him but a small portion of the lands conveyed by Joseph Plumer in severalty, even if his whole share was set oil’ in those lands. So far as he obtained any portion of the lands embraced in those deeds, so far the deeds would become entirely inoperative. But if bis share was sot off in another part of the lot, the grantees under those deeds would have obtained a valid title to the whole land described in their deeds, by means of the partition, as we have already seen. Their title would be good to all embraced in their deeds, which ho did not take. The plaintiffs, claiming under the heirs of Joseph Plumer, jr., could not avail themselves of those proceedings to hold any thing within those grants. And their rights under a deed from the heirs cannot be enlarged by any purchase of the shares of other tenants in common. They cannot take under that deed what they are estopped from claiming under it by the prior deeds of Joseph Plumer, jr., (from whom the title under it is derived,) by reason of any other conveyance they may have of something else. Nor can the conveyance from the other tenants in common operate to give to the plaintiffs more than the undivided shares of those tenants in these lands; and the plaintiffs cannot, on any partition, claim more, under this conveyance, than those shares, because they have a deed from Joseph Plumer, junior. Notwithstanding this conveyance, they stand in the place of Joseph Plumer, jr., representing and claiming under his title also, and except as to the undivided shares derived from Leighton and Mary H. Plumer, they are still bound by the estoppel which would have bound him if he was now asserting Ms title as tenant in common, wMch they assert derived from him. They cannot stand upon the land, under their different grants, and take the whole of it, when their grantors, collectively, could not have done so.

Staadmg in this situation, therefore, they cannot claim more of the lands thus conveyed by Mm in severalty than a fractional part of them, equal to the fractional right of Leighton and Mary H. Plumer in the whole. To that extent we think they are fairly entitled to avoid those deeds by virtue of their title as tenants in common under Leighton and Mary H. Plumer, because their grantors did not assent to those conveyances, and might, therefore, have avoided them thus far. Representing 'Joseph Plumer, junior, as they do at the same time, the plamtiffs can go no farther than that.

If it was necessary, m order to prevent the deeds to the plaintiffs from operating to an extent greater than what their several grantors had a right to convey, we might be bound to regard them as holding the title in trust for those to whom Joseph Plumer, jumor, had conveyed m severalty, except so far as the shares of Leighton and Mary H. Plumer extended. 1 Shepley 351.

If their case would admit of it, the plaintiffs might perhaps be entitled to waive one branch of their title, and elect to claim under the others alone. 1 Hilliard’s Abr. 450, pl. 43. Rut if they waive the conveyance from the heirs of Joseph Plumer, junior, they let in the title of James Eernald and others, so far as it would avail without interfering with Leighton and Mary H. Plumer. If they use that conveyance, they are bound by the other conveyances made by Plumer, so far at least as to admit Ms several grantees as tenants in common with themsolves of the lots wMch he conveyed m severalty.

There seems, then, to be no view of the case wMch will enable the plaintiffs successfully to avoid all the titles upon wMch the defendant relies. The part of - the argument before adverted to, that the deed to James Eernald, in common, is invalid for want of record, because the grants of Joseph Plumer, junior, in severalty, impinge upon it, must be based upon their validity, and the plaintiffs cannot treat them as void and valid at the same time.

It has been argued that James Ecrnald cannot he allowed to claim or hold under his deed in common against the plaintiffs, because he was present and knew that the plaintiffs were making purchases of the Rehbow lot, and made no claim, and gave no notice that he claimed any thing, except in the thirty acres. But the evidence fails to make out an estoppel of this character. He does not appear to have been present vv'hen the heirs of Joseph Plumer, junior, conveyed to the plaintiffs. If lie had been, and it had then been said that the conveyance embraced all the lot, he could have been estopped only as against that deed, and the plaintiffs, to avoid his title, must use that deed, as they have done. Nor was he present when any other deed was made which appears to affect his claim. That he was present when the plaintiffs were surveying there, and knew they were about purchasing; pointed out the boundaries of the tract which was convoyed to him in severalty, and which he conveyed to Joseph; spoke of it as his; refused to soli, and refused to assent to the flowing of it, cannot estop him from setting up any title he may have, which is otherwise valid. 2 Metcalf’s R. 423, Parker vs. Barker; Parker vs. Brown, ante 176. He did not stand by and seo anyone sell what he now claims as then belonging to himself, nor does it appear that he understood that any conveyance was to he made which would include anything before convoyed to him.

The plaintiffs, relying upon their deed from tho heirs of Joseph Plumer, junior, on the whole evidence before us, then, are tenants in common with the defendant in the tract of thirteen acres, and with Joseph Fernald in that of thirty acres, and their counsel have argued that as tenants in common of tho whole Renhow lot, including all tho lots in question, they had a right to enter upon and occupy all those lots, and that their co-tenants could have no right to enter upon the sole property of the plaintiffs, and destroy it, to prevent tho plaintiffs from exercising their right of occupying the common property, even if they occupied in a manner injurious to their co-tenants.

But we are of opinion that this position cannot be maintained. As tenants in common, the plaintiffs might enter upon those lots, and exercise acts of ownership, but them co-tenants have an equal right of entry and possession. If one co-tenant excludes another, the latter may have an'action; but he may, also, if he can without a breach of the peace, regain his possession without suit. For this purpose he may do what a sole owner might lawfully do. One tenant in common has no right, by means of a dam erected on land of which he is sole owner, to flow the land owned in common, without the assent of his co-tenant, and thus exclude his co-tenant from the possession. It is in fact an ouster. 9 N. H. Rep. 502, Odiorne vs. Lyford; 13 Maine R. 353, Thomas vs. Pickering, and cases cited; 12 Mass. R. 352. As the plaintiffs, therefore, cannot justify or excuse the flowing of the land, the wrong to their co-tenants is of the same character, and the remedies must be the same as if the latter were sole seized.

There is, perhaps, one other point to be considered, arising out of the view we have thus taken of the rights of the parties.

In one set of the pleas, founded upon his own title, the defendant alleged himself to be possessed of an undivided moiety of the tract of thirteen acres. In another, he alleged that he was possessed of one half of two fifths of that tract. His possession, as before stated, was dependent upon his title. In one set of the pleas, founded upon the title of Joseph Fernald, he alleged that Fernald was seized of the thirty acre tract in fee, and in the other set he alleged that he was seized of one fourth part of that tract.

The plaintiffs’ counsel, in one part of their argument, contended that the evidence was wholly insufficient, and failed to make out that Joseph Fernald was seized of the whole thirty acres, or , of one fourth in common; and in another part suggested that, as Joseph Fernald and James Fernald were neither of them seized, ,&c. as the defendant alleged, the plaintiffs were entitled to judgment'. If this was intended as a position that the defendant was bound to prove the title precisely as he alleged it, although we were at first inclined to doubt the doctrine, it seems, on examination, to be sustained by authority.

“ The manner of showing title,” says Stephen, in his Treatise on Pleading, “ both where it is laid in the party himself, or the person whose authority he pleads, and where it is laid in his adversary, having been now considered, it may next be observed, that the title so shown must, in general, when issue is taken upon it, be strictly proved. With respect to the allegations of time, quantity and value, it has been seen that they in most cases do not require to be proved as laid, at least if laid under a videlicet. But with respect to titile, it is ordinarily of the substance of the issue; and therefore, according to the general principle stated in the first chapter of this work, requires to be maintained accurately by the proof. Thus, in an action on the case, the plaintiff alleged in his declaration that he demised a house to the defendant for seven years, and that during the term the defendant so negligently kept his fire that the house was burned down; and the defendant having pleaded non dimisit modo et forma, it appeared in evidence that the plaintiff had demised to the defendant several tenements, of which the house in question was one; but that with respect to this house, it was, by an exception in the lease, demised at will only. The court held, that although the plaintiff might have declared against the defendant as a tenant at will only, and the action would have lain, yet having stated a demise for seven years, the proof of a lease at will was a variance, and that in substance, not in form only; and on the ground of such variance judgment was given for the defendant.” Stephen on Pleading 226. The case cited is Cudlip vs. Rundle, Carth. 202, and the principle decided is correctly stated by Stephen. See, also, 6 Conn. Rep. 156, and auth. cited.

The counsel who drew the defendant’s pleas seems to have supposed the rule to be so, and for that reason filed pleas containing different statements of the legal interest. But the proof, as it turns out, does not support either allegation. It is as much a variance to allege a seizin in fee of the whole, when the party is seized only of ninety-nine one hundred and twentieths, as it is to allege a lease for seven years, when, by reason of an exception, by which the lessor had the right to occupy one house if he pleased, it became, as to that house, a lease at will only. Such was the ease in Garihew.

Where á party brings an action to recover a tract of land, declaring on a seizin in fee, his action is sustained if he shows a .title'to an undivided part of it, and he recovers according to his .title. But that principle seems not to be applicable to a case where he alleges a particular title as the ground of excuse or justification for an act which would otherwise be a trespass.

Had the defendant brought an action against the plaintiffs to recover damages for flowing the thirteen acre tract, alleging that he was seized of a moiety of that land, upon the authorities cited he must have failed, the allegation being special, and the proof showing that he was seized of a different interest than that which he alleged.

On these pleadings, therefore, the plaintiffs are entitled to-judgment, on account of the variance. But under such circumstances we may .decline to render a judgment on the case submitted to us, and give the defendant leave to amend, on the payment of costs.