p. 298Jackson, ex dem. Loux and others, against Buel.Headnote
Where agrandeed, reserved to himself, ids heirs and assigns, for ever* 65 the right and pvitingla m!utain1 pilcVde" scribed, and to sess the said festation from oiTl nT*'66’” &c it was’ light reserved was such the land, as of ejectmentWherever a right of en-the interest is that poise™ h^deüvered1, an ejectment will lie for it.
THIS was an action of ejectment, to recover the possession of part of lot No. 94. in the township of Ulysses. The cause was tried at the Seneca circuit, in June, 1812, before Mr. Justice rt Spencer.
The plaintiff produced in evidence a patent to Hendrick Dou x, one of the lessors, dated the 8th of July, 1790, for the whole of lot No. 94. also a deed for the same lot from Jeremiah Van Rensselaer to whom it had been awarded, to Robert M‘Dowel, dated (the 24th of April, 1792. M‘Dowel was dead, and the other lessors were his heirs at law.
The defendant gave in evidence a deed, dated the 30th April, from M‘Dowel to John Smith, for 10 acres, part of the lot ^°" containing a reservation in the words following, to wit, “ Excepting and reserving to the said Robert M‘Dowel, his heirs and assigns, for ever, the right and privilege, without any fee or rewar(j 0f erecting and building a dam on the back of the creek, near or at the place where the east line of the above granted promises crosses said creek, along the west bank of,said creek, about 20 rods, or near where the mill-seat is, to occupy and possess the aforesajd premises, without any let, hindrance or molestation from the said party of the second part, his heirs or assigns, agreeably to the express condition contained in the foregoing clause and reser» vation.” The deed of John Smith to the defendant, for the said jq acres of land was also read in evidence. It was proved tha t the defendant was m possession of the whole 10 acres, and that the defendant’s mill-dam extended 24 links on the land of the lessors of the plaintiff. In 1811, Pelton, one of the lessors, requested the defendant to let him enter on the premises, and build a dam on the creek, according to the reservation in MiDowel,s deed to Smithy which was refused by the defendant. A verdict was taken for the plaintiff! subject to the opinion of the court. And the question was, whether, under the judgment, possession could be token' of the premises reserved in the deed from M‘Dowel to Smith, or only of the premises in the possession of the defendant, and not included in the 10 acres.
Foot, for the plaintiff, contended, that the privilege reserved was like a right of way, for which an ejectment will lie.
p. 299Sunn. Eject. 131, 132. 1 Term Rep. 361. 2 Term Rep. 452. 3 Term Rep. 772. 4 Term Rep. 671. 6 Term Rep. 359.Rodman, contra, insisted, that the right reserved was not such that the sheriff could, in case of a recovery, give possession of it.
It was a mere license to use land, for which an ejectment will not lie. 2 East, 190. Chitt. Plead. 175. 188.The lessor of the plaintiff is entitled to recover for the possession of the defendant, extending beyond the tea acres. This is admitted by the case; but the great point is, whether the right reserved in the deed of erecting or building a dam on the bank of the creek at the place specified, be such an interest as that an ejectment will lie for it. The exception fur* ther states that the grantor, &c. is to occupy and possess the afore* mid premises without any let, See. It is evident that an interest in the soil was reserved at the given place, not only for erecting the dam, but for occupying and possessing it. There can be no. doubt but that this interest would be considered a tenement, within, the decisions under the English settlement law; for it has been held that a right of pasturage, of a- dairy, of a rabbit warren, and of a fishery, carried ouch an interest in the land as to create a tenement. (1 Term Rep. 358. 2 Term Rep. 451. 3 Term Rep. 772. 4 Term Rep. 671.) In one of the cases, Ashhurst, J. said that a fishery was a tenement, and recoverable in ejectment; and in another of them, Lord Kenyon held that a praecipe would lie for a free warren, though the party has no further interest in the. land than to enter and use the animals;’ and if a pmcipe will lie, (i fortiori an ejectment, which requires much less certainty, will lie. In Mellington v. Goodlittle, (And. 106.) it was decided in. error, that an ejectment would lie for a beast or cattle-gate which was a right of common for a beast; and in that case the court admitted that an ejectment would lie for a common appurtenant. Whenever a right of entry exists, and the interest is tangible, no that possession can be delivered, an ejectment will lie; and such an interest was reserved by the deed ia question.
The lessor of the plaintiff is, accordingly, entitled to recover, as well the premises reserved, as the other land encroached upon by the defendant.