Dygert v. Matthews — 11 N.Y. 35

Majority

p. 36

Dygert vs. Matthews.

Headnote

An exception in a grant of lands, in these words : “ excepting and reserving out of the said piece of land so much as is necessary for the use of a gnst-mill, on the east side of the road at the west end of the saw-mill dam,” is a good exception; but until the grantor or his assigns exercises the right reserved, and builds the mill, it is inoperative, and the whole premises vest in the grantee, who may maintain trespass against a stranger, or even against the grantoi' or his assigns, for an entry on the land for any purpose other than that specified in the reservation.

Error from the Onondaga common pleas. Dygert sued Matthews in trespass quare clausum fregit. The defendant pleaded liberum tenementum. Both parties derived title from Stephen and John De Lamater, who, in 1809, conveyed fifty acres of land, lying on the Chitteningo creek,to Stephen Wilcox, by metes andbounds with areservation in the words: “ excepting and rescrving out of the said piece of land so much as *is necessary for the use of a grist-mill, on the east side of the road, at the west end of the saw-mill-dam.” Wilcox conveyed the fifty acre lot, with a like exception, to one Cunningham in 1813, since which time the plaintiff has been in possession of the lot. On the east side of the road there is a strip of about an acre of land, which was enclosed by Wilcox, and one or two crops taken from it, after which it laid to commons until 1826 or 1827, when the plaintiff again enclosed, and since then has cultivated it. In 1830 the defendant broke down the fence, entered the enclosure with teams and drew gravel across it, trampling down potatoes there growing, for which entry this action was brought. The defendant attempted to justify, by showing that in 1828 one John Matthews obtained a conveyance from the representatives of Stephen and John De Lamater of the strip of land on which the entry was made, and that he conveyed it to the defendant. It was shown that a mill had been erected on the fifty acre lot. The court charged the jury that by the reservation in the deed from the De Lamaters to Wilcox, the/ee of the land remained in the grantors, and that no right or interest in the land mentioned in the exception passed to -the grantee; and also that it

p. 38

was not necessary for the grantors to build a grist-mill on the premises, to avail themselves of the exception in the deed. The jury found for the defendant, and judgment was entered accordingly. The plaintiff having excepted to the charge of the court, sued out a writ of error.

A. Worden & J. Watson, for the plaintiff in error.

A. Yelverton & E. D. Hopping, for the defendant in error.

By the Court,

I am of opinion this case falls within the case of Thompson v. Gregory, 4 Johns. R. 81, and Provost v. Calder, 2 Wendell, 517. Those cases recognize the doctrine that strictly an exception of a part of the thing granted is void, but an incident to the grant may be reserved; that the reservation of a mill site out of a tract of land is good, but until the grantor or his assigns exercises the right and builds the mill and dam, the exception is inoperative, and the whole *premises vest in the grantee, who may maintain trespass against any one except the grantor or his assigns ; and, as a necessary consequence of this doctrine, even against them, unless they are in the exercise of the right reserved.

This exception, as such, assuming it to be an attempt to reserve out of the grant one acre of land, is void; but construing it as a reservation of a mill site, which is the obvious intent of it, it is valid, but inoperative until used for the purposes reserved. The reservation of the land is for a specific purpose, and an appropriation to any other object by the grantors or their assigns is without right, and they can be in no better situation than strangers, and therefore are trespassers.

All other rights to the premises in question, beside those reserved to the grantors, belong to the grantee, and for any encroachment upon them, he has the appropriate remedy. The nature of the reservation may be very material to the grantee ; in this case he may have considered the erection of a gristmill on the place reserved no detriment to the grant, but there are many uses to which it might be appropriated incompatible with such a supposition. It would therefore'be unjust to the grantee, and unreasonable to allow the grantors or their assigns to use the land in question in any other manner or for any other purpose than in pursuance of the intent of the parties, to be gathered from the exception in the deed; and that cannot be misunderstood.

It may be added, until the right is exercised and the grist-mill built, it cannot be ascertained with certainty what quantity of land will be necessary for that purpose, nor the precise location.

There is nothing in the case of Hasbrouck v. Vermilyea, 6 Cowen, 677, at variance with the conclusion in this case, or with the cases above cited, by which it is sustained. There the right had been asserted, and the mill built and in operation.

Judgment reversed.