Jackson, ex. dem. Saxton, against May.Headnote
réctámachine upon mian$ ning°the piara erected! or the q^ntity occupied doe! actualth°entry and location, confer such a right as to en-to mafotoin5!! The grant of a THUViletre to e*act?onofe)ectfor "any''thing soiiaCofd-iv°hích the sheriff nan deliver possession,
THIS was án action of ejectment, which was commences and tried in the Court of Common Pleas of the county of Greene, and in which á verdict was taken by bonsent for the plaintiff, subject to the opinion of this Court, on a case to be made between the parties,
Qn the 15 th of August, 1814, one John Van Den Bergh executed a lease of the premises in question, being a m‘^sea^ with the privilege of cutting timber for erecting buildings, to Samuel and Alvin S. Smith, for fifteen years, at 0 , , , ,, , an annual rent. By articles or agreement, dated the 22d of November, 1814, S. and A. F. Smith, who had taken possession shortly after the lease to them, granted to the lessor of the plaintiff, the privilege of putting up a carding machine, at the mills of J. Van Den Bergh, for fifteen years, from the date of the agreement, for the consideration of 125 dollars ; the machine to be fixed at a wheel or shaft * then built for a fulling mill; the plaintiff’s lessor to build a shop for the carding machine, and to be allowed to cut timber on the land of Van Den Bergh, for that purpose. In December, 1815, the Smiths having sold their interest to Schermerhorn and Beach, Van Den Bergh executed a lease to Schermerhorn and Beach, which was dated on the day of the date of the former lease, and agreed with it in every respect, except the names of the lessees-, Schermerhorn and Beach entered and erected buildings and machinery $ and the defendant afterwards came into possession under them, and used the privilege which had been granted by the Smiths to the plaintiff’s lessor, who had never entered, nor in any way availed himself of the privilege granted to him.
The case was submitted to the Court, without argument.
There is no doubt, that at the date of the agreement between the Smiths and Saxton, (22d November, 1814,) the former had the title, and were competent to make an assignment or under lease to Saxton: but the pretended lease to Saxton having never been actually located, and, thereby (as it might have been,) reduced to certainty, it is, per se, too vague and indefinite to be the foundation of aa action of ejectment. He was “ to have the privilege of putting a carding machine at the mills of John Van Der Bergh f1 and “ to fix the machine at the wheel or shaft now built for a fulling mill at the place aforesaidand “ is to build a shop for the carding machined1
The general rule is, that an ejectment will lie for any thing attached to the soil, of which the sheriff can deliver possession. Tested by this rule, the interest of Saxton cannot be defined by metes and bounds, otherwise than by an actual location, by consent of parties.
How much ground is he to recover ? Where is it situated, in reference to the wheel and shaft of the fulling-mill ? Where is the scite for the intended shop, how large a space was it to occupy; and in what shape was it to be ? No definite answer can be given to either of these inquiries.
We are, therefore, of opinion, that the defendant is entitled to judgment, according to the stipulation in the case.
Judgment for the defendant.