Whitney v. Olney

29 F. Cas. 1108, 3 Mason C.C. 280

• Court: U.S. Circuit Court for the District of Rhode Island
• Decided: November 15, 1823
• Status: Published

Opinion

STORT, Circuit Justice.

My opinion is, that by the devise of the mill and its appurtenances all the land under the mill, and necessary for the use of it, and commonly used with it, passed to the devisees. The exeeption of the Brown George paper-mill and ap-purtenanees. in the devise to Nathaniel G. Olney, is not an exception of the mere building, but of the land under and appertaining to, and used with, the mill. Whatever was saved by the exception, passed by the subsequent devise of the mill. I do not proceed upon the ground, that the land was a mere appurtenance to the mill; but that it was parcel thereof. It is true, that land cannot strictly be appurtenant to land so as to pass under the term “appurtenances” (Com. Dig. “Grant,” E. 9; Plow. 170; Doane v. Broad Street Ass’n in Boston, 6 Mass. 332; Buck v. Nurton, 1 Bos. & P. 53); but where the intention is clearly expressed, that land should pass under that name, the law will give effect to the grant, notwithstanding the misnomer. Thus, where it was averred in pleading, that certain land was appertaining to a messuage; the court held, that in point of law it could not be-appurtenant to the messuage; but that it was nevertheless well in a grant, because it shall be intended to mean such land as is usually occupied with the messuage or lying with the messuage; and therefore a demise of a messuage “with the lands to the same appertaining,” is good to pass such lands as were usually occupied, used, or lying with the messuage. Plow. 170. See, also, Bryan v. Wetherhead, Cro. Car. 17; Hearn v. Allen, Id. 57; Gennings v. Lake, Id. 168. 169; Com. Dig. “Grant,” E. 9. If this be so in a grant, the law will construe the words still more fa-vourably in a devise. Therefore in Boocher v. Samford, Cro. Eliz. 113, it was held, that lands usually occupied with a house, though at a distance from it, might well pass by a devise of it, as a tenement with its appurtenances, in which H. dwelleth in E. See, also, Cro. Eliz. 704; Com. Dig. “Grant,” E. 9, 10; 1 Bos. & P. 53; 1 P. Wms. 603; 3 Wils. 141; 2 Wm. Bl. 1148; Doe v. Collins, 2 Term R. 498. In these cases the lands pass, not as appurtenances, but as parcel of the granted or devised premises, upon the intention of the parties collected from the instrument, and explained by reference to the facts.

But in the present case I lay no stress whatsoever upon the words in the devise, “with the appurtenances.” The land under the mill and adjacent thereto, so far as necessary to its usé, and commonly used with it, passed by force of the word "mill.” It is not necessary, in order to pass lands, that they should be specially designated by that name. A grant of a messuage conveys all the land within the curtilage thereof; so the grant of a house. Shep. Touch. 94; Com. Dig. “Grant,” E. 6. The only ground, upon which a doubt could be entertained, is a dictum in Lord Chief Baron Comyn’s Digest (“Grant,” E. 9), where he says: “By the grant of a mill cum pertinentiis the close where the mill is, or the kiln there, does not pass without more;” 4nd for this he cites 1 Sid. 211, 1 Lev. 131, which are different reports of the same case. The case itself does not support any such doctrine. The question there was. not whether the land, on which the mill stood, passed under a grant of the mills with the appurtenances, but whether a kiln on another part of the close passed under the word “appurtenances.” And the court held, that it did not, “for by the grant of a messuage or lands cum pertinentiis any other land or thing cannot pass, though by the words ‘cum terris pertinentibus,’ it would.” And Windham, J., said, if all the matter had been found, and that the kiln was necessary for the use of the -mill, and without which it could not be useful, the kiln had passed as part of the mill, though not as appurtenances. In the English translation of Levinz’s Reports, by Sergeant Salkeld. there is an error, which probably led to the mistake. It is there said: "And whether the kiln and the parts of the close, on which they (i. e. the mills) stood, should pass to the plaintiff, was the question.” The original is: “Et si le kill et le parts del close, sur que il estoit (i. e. the kiln stood) passe al plaintiff fut le question. Et tenu eleerement que ils (il) ne passe.” The case is much more fully and accurately reported in 1 Keb. 736. where the facts are stated as found on a special verdict. O. was seized of a manor and messuage, and a close, and having two mills on the west side, and of a kiln, which he newly erected on the other side; then by metes and bounds he divided the close, and enfeoffed the plaintiff of the west part of the close, and the mills with the appurtenances; afterwards he assigned the other part of the close with the manor to the defeiidant; and “whether to these ancient mills, the kiln will, being severed, pass as appurtenant, having been enjoyed and used” with them, was the question. The court held that it did not. Keeling, C. J., said: “It passeth not, being neither found necessary, or belonging to the mill.” Windham, J., said that the special verdict was short, and that it did not appear that it was a kiln purposely erected for the use of the mill, “in which case it would have been parcel.” And in substance this is the same as may be gathered from the brief note in 1 Sid. So that the case, when examined, proceeds upon a principle recognizing that which has been adopted by this court.

The good sense of the doctrine on this subject is, that under the grant of a thing, whatever is parcel of it, or of the essence of it, or necessary to its beneficial use and enjoyment, or in common intendment is included in it, passes to the grantee. In common sense and in legal interpretation, a mill does not mean merely the building in which the business is carried on, but includes the site, dam, and other things annexed to- the freehold, necessary for its beneficial enjoyment. Judgment for the plaintiff. See Leonard v. White, 7 Mass. 6; Luttrel’s Case, 4 Coke, 86a.