Young v. Clement

Libbey, J.

By the deed of the 6th of July 1870, Benjamin Young, the plaintiff, granted to Fayette Shaw, William Shaw and Brackley Shaw, co-partners in the name of F, Shaw & Bros., certain rights in his timber township, in the following language:

“Said Benjamin Young in consideration of the agreements and stipulations hereinafter written, does hereby give, grant, bargain, sell and convey and confirm unto the said F. Shaw & Bros., party of the second part, the exclusive right to enter upon and improve and clear the bed and banks of the stream called the Sisledobsis Stream, flowing from Sisledobsis Lake into Pocumpus Lake through my lands, lying in township No. 5, in the county of Washington, and to build dams and locks upon said stream, and rstraighten the course thereof, so as to make said stream navigable .for boats, steam-boats and scows of any size deemed advisable by said F. Shaw & Bros., and for this purpose to remove any earth, rocks or other material, and dig and excavate in and upon the bed ■and banks of said stream and the ground adjacent thereto, and to make canals through the same, if necessary for the purposes afore.said. And all the said improvements, locks, canals, erections or .excavations to use and improve, keep up and repair, with the right :and privilege for the purposes aforesaid, to pass and repass over and upon my lands there situated whenever necessary thereto. The said Shaw & Bros., not however by any of said improvements or operations, or the use thereof, to hinder or prevent the use of the mill privilege at the outlet of Sisledobsis Lake, nor to injure the same for milling purposes.”

This is followed by a grant'to the Shaws of the exclusive right to cut down and peel hemlock and take away the bark upon the plaintiff’s timber lot on both sides of Sisledobsis Lake, to be cut and piled'at such times and in such quantities as said Young might elect, he giving reasonable notice before the beginning of the season for peeling bark in each year; not however to exceed one million feet of logs, board measure, in any one year, the Shaws paying for said bark at the rate of fifty cents for every thousand feet of the saw logs from which the bark should be peeled. “To have and to hold all and singular the premises aforesaid to the said Fayette, William and Brackley, their heirs and assigns forever, subject to all the conditions and stipulations, herein contained.”

Then follows another grant by the plaintiff to the Shaws, for the consideration aforesaid, the right to cut and haul from said lands hemlock logs, timber and bark not exceeding one million feet of saw logs in any one year, for the term of ten years at the rate of $2.00 per thousand feet for the saw logs, including the bark therefrom. And the Shaws on their part covenant to cut and peel the quantity of logs required by said agreement and to pay for the same at the rate stipulated, on the first day of July of the year after the same was peeled.

Under this deed, the Shaws entered upon the plaintiff’s land, improved said stream, constructed canals and locks between said lakes, and cut from time to time the hemlock on the plaintiff’s land and peeled the bark, paying for the same according to the stipulations in their contract, until July 1, 1883, when they became insolvent and failed to pay the sum then due. They had used said stream and the canals and locks they constructed for transporting their bark and general merchandize in their boats and scows to that time. In July 1886, the Shaws conveyed all their right, title and interest, in said premises including bark peeled prior to 1883, then on the plaintiff’s land, to Charles W. Clement, trustee, to secure a debt for money borrowed. And it was agreed that he holds all the title that the Shaws could convoy in the property in dispute.

After the conveyance to the defendant Clement in 1886, the plaintiff gave to the Shaws and to Clement notice in writing that he claimed a forfeiture of all the rights granted to the Shaws by-said deed, for failure on their part to comply with the conditions thereof, and forbade their entering upon said lands or stream or using the canal and locks; and he fastened the gates of the locks. Afterwards the defendant, for the purpose of removing the bark that had been peeled and was then upon the lands, entered upon the premises, removing the fastenings, which the plaintiff had put upon the gates, and with Ms boats and scows, transported his bark over said lakes and stream, doing no unnecessary damage. And for those acts the plaintiff brought this action of trespass.' The court below ruled that it could not be maintained. We think the ruling was correct.

There is no condition in the deed that the rights in the stream and the locks and canals, which the Shaws might erect under the grant, should be forfeited on failure to pay for the bark or logs as stipulated, nor that on failure to pay as stipulated, the title to the logs and bark cut should be forfeited to the plaintiff. True, there was a' covenant on the part of the Shaws to cut and pay for the logs and bark as stipulated. But there is no stipulation that a failure to keep that covenant should forfeit their rights to their erections upon the stream and the use of them for navigation.

We think it unquestionable that in 1886, when they conveyed to the defendant, they owned the bark which they had cut prior to 1883, and had a right to use the stream and their erections upon it for the purpose of .transporting the same to their tannery, or to a market; and that by the conveyance to the defendant he succeeded to their rights, and that the plaintiff had no right to close the navigation of the stream against him. In doing what he did, the defendant was not a trespasser.

¡Exceptions overruled.

Peters, C. J., Walton, Daneorti-i, Virgin and Emery, JJ., concurred.