The opinion of the court was delivered by
Skinner, Ch. J.Stillman Foot was formerly the owner of all that estate at the falls which is now claimed by the plaintiff and defendant. In his deed of conveyance of the 22d of November, 1800, to the defendant’s intestate, after describing the saw-mill, and the land upon which the same was situate, the right to use a portion of the water, &c. his language is, “and of occupying the mill-yard in common with my works afore-*144Ea^ f°r any purpose not interfering with the said grist-mill, both above and below said millsand afterwards in the deed it is written, “nor is the said Daniel, at any time, or any way, to hinder or impede the aforesaid works, by obstructing, block-*DS UP> or hindering the prosecution of the other works, more than is absolutely necessary to accommodate said saw-mill.” By the deed of the 8th December, 1801, Foot conveys to the plaintiff all his lands, mills, shops, &c. &c. at the falls, except that which had been deeded to Daniel Henshaw. The inquiry then is, as to the extent of the right acquired by Henshaw, to the mill-yard under his deed. It is said he has but an easement. Whatever his interest may, in technical language, be denominated, (which is to be settled by an inquiry more nice than useful,) a right to him, his heirs, and assigns, to occupy in common with the grantor, his heirs and assigns, is given, that is, a continued constant right of possession and use, as, and for a mill-yard, which is the only beneficial interest and use to which the land can be appropriated by either party ; such being the effect of the contract. And we believe a judgment in ejectment against him would, by force of the statute, be conclusive, as to all right in the premises.
The suggestion, that by the abuse of the right, the defendant has forfeited his interest, is not supported by authortity. The plaintiff and defendant are to be regarded as tenants in common, of the mill-yard, though not strictly of the fee, yet of the use and occupancy. The important question, therefore, is, from the facts appearing in the case, was the plaintiff, (being a tenant in common with the defendant,) entitled to a verdict ?
It is insisted, that there is nothing upon the record by which the court can infer an actual ouster, and without which one tenant in common cannot maintain ejectment against his co-tenant. The case made by the counsel is very concise. The deeds of the parties are referred to, a brief relation of the defendant’s erecting and occupying the tenement; and then it states, “it was contended that by the proper construction of the two deeds, the plaintiff could not recover in this suit.” The court decided he could, &c.
It is very, evident that the rights the defendant had acquired by a legal construction of the deeds, was exclusively the matter in discussion.
One question undoubtedly was, whether the defendant, by the terms of the deed, had not a right to erect a building. This point, though now yielded, has been heretofore urged. Another question probably was, whether ejectment was the proper remedy ; and it is now insisted, that if any action will|lie, it is case.
That might, perhaps, be the proper remedy for acts of a particular character, inconsistent with the grant, and prejudicial to the plaintiff. But for ouster or expulsion from any portion of the premises, the appropriate remedy is ejectment. From the very statement of the case it is apparent, the question of *145ouster was not raised, but must have been conceded. The building was not erected by the plaintiff’s licence or consent, for this is the cause of complaint. It cannot be supposed the defendant, at his own cost and charges, erected it for the common use and benefit of the parties.
Seymour & Holley, and P. Starr, for the plaintiff. Daniel & George Chipman, S. S. Phelp.s and R. H. Bates, for the defendant.The case does not assume to state all the evidence that was given, and it is not presumed, that all that took place on the trial will appear in the case. When exceptions are taken, it is only necessary in making the case, to state so much of the testimony, as will fairly present the question decided. From these views it will be perceived the court are not inclined to open, the case, if it can be avoided, and the rights of the parties protected. It has already been intimated that a general verdict against the defendant will conclude him as to all right, and the verdict in this case is of that description. His right in common must remain. The verdict ought to have described the interest.
The defendant, who wishes to set it aside, will probably consent to its correction; if not, the plaintiff may take a rule upón him to show cause why the verdict should not be corrected.
The defendant refusing, a rule was granted, and on hearing, the verdict was corrected, and judgment rendered thereon.