Hale v. Barrows

The opinion of the court was delivered by

Poland, J.

This is an action of ejectment for a small piece of land in Brandon,- upon the south side of a certain stream, upon which formerly stood a blacksmith’s shop. In 1809 one Ebenezer Childs was the owner of the land upon both the north and south side of said stream, and on the twenty fifth day of December, 1809, he sold and conveyed a piece of land upon the north side of the stream, upon which was a blacksmith’s shop and works, and also the right to draw water from his flume above to carry said works, to Daniel Rowley. In the deed to Rowley, and immediately following the description of the premises upon the north side of the stream, was the following clause, — “ Also the privilege to remove said blacksmith shop works to the opposite bank of the river, below the grist mill, when he thinks proper.” The plaintiff showed a regular chain of conveyances from Daniel Rowley, through various persons, to himself, of the premises described in the deed from Childs to Rowley. In May, 1820, Ebenezer Childs conveyed, upon the south side of the stream, to Stephen Avery; and immediately following the description of the premises conveyed is the following exception,— “ Excepting a blacksmith’s shop, and such privileges of drawing water, as I have heretofore deeded to Daniel Rowley, and now owned by Salmon Farr.” The defendants show a regular line of' conveyances from Stephen Avery to themselves, of the premises conveyed by Childs to Avery. It appears from the case, that at some time, previous to the date of the deed from Childs to Avery, Salmon Farr, who then owned the premises deeded by Childs to Rowley, had removed the blacksmith shop to the south side of the stream, where it remained until 1841, when it was destroyed.

The present suit is brought to recover the piece of ground on the south side of the stream, where the shop formerly stood; and the whole question depends upon the construction of the above mentioned clause in the deed from Childs to Rowley. The plaintiff contends, that, by a .proper construction of that deed, Childs conveyed to Rowley a piece of land on the south side of the stream, upon which he might remove his blacksmith shop works, so that he became the owner thereof in fee simple. The defendants, on the other hand, insist, that the deed amounted to no more than a mere license to Rowley, to remove his blacksmith shop upon the south side of the stream, and that, when he ceased to occupy it for that purpose, he -had no farther right.

The question is, of course, one of mere intent, — to be gathered from the. language of the deed, the apparent object of the parties, which may, perhaps, be aided by their acts and conduct under it. From the peculiar phraseology of the deed we are inclined to believe, that it was not contemplated by the parties, that Rowley was to remove the very shop, which then stood upon the north side of the stream, unless he chose to do so; he was to remove, when he thought proper, — rather implying, that he might choose to occupy the old shop upon the north side of the stream for some time. Again, the language of the deed, as it seems to us, gives some countenance to this idea. It does not speak simply of a removal of “the shop,” — as if they had reference to the one particular building, — but of “ Ms works,” — as though they had reference rather to the business generally, and to any proper erections for its purposes. In short, we are satisfied, that the parties expected and intended, that Rowley might remove the old shop, or build a new one upon the south side, and he might build one of as permanent and durable a character, as he chose.

Under these circumstances it is hardly reasonable to believe, that the parties understood it to be a mere license, or permission, to Rowley, to occupy, Childs still remaining the owner of the land. Again, it séems to us, that if the intention of the parties had been to give a mere license for occupation, they would have introduced some words of limitation into the deed, that he should occupy so long as a particular building should stand, or so long as he should carry on the business of a blacksmith; but the deed contains no such words, but is unlimited as to time, or any other circumstance. This circumstance, taken in connection with the fact, that the deed is one conveying an estate in fee, in which this grant is found, can scarcely be reconciled with the idea, that the intent of the parties was for a mere license. Again, it seems to us, that the reservation in the subsequent deed from Childs to Avery favors the idea, that this was intended to be a fee; as the words of the reservation are such, as would naturally be used, if such were the fact; — and this, we suppose, may fairly be considered, in reference to this question, as an act of one of the parties to the conveyance, in relation to the same subject matter, — which evidence is always admissible to show intent.

Although it can hardly be said to be clear, from the deed, what the parties intended, we are all of opinion, that the most reasonable construction of the deed is, that the parties intended to convey the fee, instead of a mere license, or permission. The authorities cited by the counsel for the defendants are all cases, where, from the grants themselves, it was clear, that only a license was given; and the discussion in those cases is rather as to the effect of a license, than upon the nature of the grant.

The judgment of the county court is therefore affirmed.