Stevens v. Morse

MblliGn C. J.

As the title to the lands claimed by the complainant and respondents respectively is admitted, no question arises as to the first issue.

Whether the facts reported amount to proof sufficient to maintain the second and third pleas, or either of them, must depend upon an examination of dates and the order of the proceedings of the proprietors, in relation to the division of the township, and the building of mills on lot No. 7, in the 3d range, which is now owned by the respondents.

Nov. 1, 1773 the proprietors voted to draw the lots for a division of the township and chose persons to draw the lots. January 5, 1774, they voted that the proprietors names be recorded in the several lots on the plan of said township ; and in the record of December 1, 1780, mention is made of the whole township having been lotted out into lots, and allotted to each proprietor, and of their having holden their lots in severalty and thereby increased the settlement. No other division was ever known to have been made; and it seems the plan is lost. Such being the facts, the inquiry is, whether the proprietary proceedings, detailed in the report, furnish proof of an agreement on the part of the complainant, or those under whom he claims, of a consent that the complainant’s lot might be flowed for an agreed price, or witiiout payment of any compensation; or, in oilier words, whether the votes of the proprietors are to be considered, in respect to the building of the mills, as binding on the successive owners of the other lots in town. By the report it appears that the first vote relating to the building of mills was passed April 20, 1774. The second vote on the subject was passed August 11,1774, appointing a committee. The next vote was passed August 3.1, 1774, offering further encouragement to any person that would undertake to build mills, and appointing another committee. April 18, 1780, they appointed a committee with distinct powers and authority to make an agreement with any person or persons who would build j another vote was passed April 17, 1782, and another on the 5th of March 1783, of a preparatory kind; and prescribing the mode in which Lemuel Jaclcson before mentioned should be paid for building mills, on his agreeing to erect them, which proposals it seems were accepted, inasmuch as on the 7th of said March the committee made and executed to him a deed of the lands mentioned in the vote of March 5th. From this view of dates and proceedings it appears that until March 5, 1783, Jackson's name does not occur as a contemplated contractor to erect the mills; all prior to that time was merely a series of preliminary arrangements; and if the votes respecting Jackson, and the contract with him as to the erection of mills, amount to proof of consent on the part of the proprietors, that he and those claiming under him should erect and occupy them, without being liable to pay damages; still the proprietary proceedings before that time can never be considered in the nature of an agreement with any one in particular for any purpose whatever.

How then stands the case ? Admitting- the contract with, and deed to Lemuel Jackson, to amount to a license to him, and those, claiming under him to flow lands belonging to the proprietary, without payment of damages, this will not avail the respondents, because, as we have before stated, all the township, except the mill-lot, had been divided into lots and was holden in severalty, (so says the record of December 1, 1780,) for several years prior to the conveyance to Jackson. According to this record, lot No. 10 was not common land in March 1783; it belonged at that time to some person whose title thereto is admitted to be in the complainant. Being holden and owned in sev-eralty, it was not subject to any proprietary control, more than if it had been situated within the limits of another township. These are plain principles, and they settle the question before tire Court. It has been urged, that for a series of years prior to the division and allotment of the proprietary lands, there was an understanding among all concerned, that the-mill lot should be reserved for the purpose of having mills erected thereon for the general convenience; and that therefore when the division was made, each assignee or owner of a lot must be considered as assenting to take his land subject to the right, in the owners or occupants of the mill-lot, to flow the adjoining lands without payment of any compensation. But such a construction would contradict the record ; it would be changing a vote or conveyance, absolute in its terms, into a conditional one ; it would be making a contract, instead of giving a construction to one already made. If a man’s title, founded on a deed or record, could be varied and impaired in this manner by parol proof, or by the magic of construction without any proof at all, titles would be exposed to a thous- and dangers, and thrown into confusion. In early times, the flowing of the lands in question, as in many other cases, was little or no injury to the owner ; but as the lands have become more valuable, that injury may become a matter of importance ; and we do not perceive why such an injury should not furnish as fair a claim for the damage which has actually been sustained, as in cases where the flowing has been occasioned by more recent erections.

Accordingly it is the opinion of the Court that the verdict must stand ; and a trial be had as to the fourth issue according to the agreement of the parties.