Jackson ex dem. Loux v. Buel

9 Johns. 298

• Court: New York Supreme Court
• Decided: October 15, 1812
• Status: Published

Opinion

Per Curiam.

The lessor of the plaintiff is entitled to recover for the possession of the defendant, extending beyond the tea acres. This is admitted by the case; but the great point is, whether the right reserved in the deed of erecting or building a dam on the bank of the creek at the place specified, be such an interest as that an ejectment will lie for it. The exception fur* ther states that the grantor, &c. is to occupy and possess the afore* mid premises without any let, See. It is evident that an interest in the soil was reserved at the given place, not only for erecting the dam, but for occupying and possessing it. There can be no. doubt but that this interest would be considered a tenement, within, the decisions under the English settlement law; for it has been held that a right of pasturage, of a- dairy, of a rabbit warren, and of a fishery, carried ouch an interest in the land as to create a tenement. (1 Term Rep. 358. 2 Term Rep. 451. 3 Term Rep. 772. 4 Term Rep. 671.) In one of the cases, Ashhurst, J. said that a fishery was a tenement, and recoverable in ejectment; and in another of them, Lord Kenyon held that a praecipe would lie for a free warren, though the party has no further interest in the. land than to enter and use the animals;’ and if a pmcipe will lie, (i fortiori an ejectment, which requires much less certainty, will lie. In Mellington v. Goodlittle, (And. 106.) it was decided in. error, that an ejectment would lie for a beast or cattle-gate which was a right of common for a beast; and in that case the court admitted that an ejectment would lie for a common appurtenant. Whenever a right of entry exists, and the interest is tangible, no that possession can be delivered, an ejectment will lie; and such an interest was reserved by the deed ia question.

The lessor of the plaintiff is, accordingly, entitled to recover, as well the premises reserved, as the other land encroached upon by the defendant.