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strong may have personally, by virtue of an agreement heretofore entered into between myself and said Armstrong, and said Armstrong's subsequent deed, to use of one half of the afore-described premises."

The agreement above referred to was an agreement dated February 17th, 1835, between said Wilbour and Armstrong, by which said Armstrong agreed that he would not, within six years, sell his undivided half of the Nicholas Taylor farm to any one except said Wilbour, and that Wilbour should at any time within six years have the right to purchase the same, upon paying the sum which said Armstrong paid for the same; and it was agreed, “ if said Wilbour shall purchase as aforesaid, the said Armstrong, his heirs and assigns forever, shall have an equal privilege to get sea-weed on the east and south shores of said farm, – that is, the said Armstrong, his heirs and assigns, to get the sea-weed one week at the east shore, and in that week the said Wilbour, his heirs and assigns, to get sea-weed at the south shore," and the next week vice versa, and so alternately ; “ the said Armstrong, his heirs and assigns, to have the privilege of tipping up sea-weed on the bank of the east shore, the said Wilbour, his heirs and assigns, to forever have a right of way for carting, &c., from said farm as follows: to keep the drift-way towards said Armstrong's house until it comes into the way leading into town. It is also agreed that said Armstrong, his heirs and assigns, when getting sea-weed, is to keep the way or path westerly to meet the old path generally used from the east shore.”

It further appeared that the plaintiff, on the 14th of October, 1813, conveyed the said Joseph W. Taylor farm to one Thomas R. Martin, who, on the 27th of October, 1847, reconveyed the same to the plaintiff; and that on the 18th of September, 1850, the plaintiff conveyed to Robert II. Ives about nine and a quarter acres of said farm, being part of the nineteen and three quarters acres retained by Joseph W. Taylor when he made the conveyance of March 12, 1803, to Nicholas, but by said deed expressly reserved the said privileges of sand, gravel, and sea-weed upon the south shore of the said Taylor farm, and of tipping the sea-weed on the bank thereof, as appurtenant to the residue of the said Joseph W. Taylor farm, retained by the plaintiff.

Carpenter and Turner, for the plaintiff.
Ames, for respondent.
Brayton, J., delivered the opinion of the court.

The plaintiff claims in this case a right to enter upon the land of the defendant, being the farm set off to Nicholas Taylor in the deed of partition of 1776, and to take and carry away from the shore thereof, mentioned in the deed of partition, sea-weed, gravel, and stone in any quantity without limit at his will and pleasure, and to make merchandise thereof for his profit, and a right of way to pass and repass to and from said shore over the defendant's land for that purpose.

This right he claims as a right in gross, though, by the deed of partition, he claims that it was originally made appurtenant to the north farm set off in said deed to Joseph W. Taylor, under whom he claims.

the south part.

The arguments both for the plaintiff and defendant proceed upon the assumption that the right of taking sea-weed, gravel, and stone, whatever it was, was originally appurtenant to the estate of Joseph W. Tarlor; and, indeed, if it were not appurtenant, it is evident the plaintiff has no title

, for his deed from Armstrong describes no such right, and unless it was appurtenant at the time, he takes nothing by his deed.

In order to ascertain what the rights of the plaintiff now are, it is necessary to inquire, first, what were the rights originally granted in said deed to Joseph W. Taylor.

By the terms of the deed, after setting off to Nicholas the south part of the original farm, upon which portion was all the beach, and setting off to Joseph the north part, which was less in quantity, and we may presume, without a beach privilege, less in value, the deed then proceeds and says: " And the said Nicholas Taylor doth grant free liberty of carrying away gravel and sea-weed off the beach, belonging to his part of said farm, and, also, stones below high-water mark on said beach, to the said Joseph W. Taylor, his heirs and assigns, and, also, liberty to tip the sea-weed on the bank on his part of said land.”

This grant is made doubtless to equalize the partition, to render the north part (which had no shore where sand and sea-weed might be obtained for improving and fertilizing the land, and it may be less facilities for obtaining stone for building and fencing) equal in value with

It will be seen, also, that the grant is not limited in terms as to quantity, nor is it defined in terms to what uses it shall be applied. or for

prirposes taken, so as to furnish a just measure of the amount which Joseph might take.

We must, however, presume that it is not to be entirely without limit, extending to the entire quantity of gravel, sea-weed, or stone upon the shore, and thereby excluding Nicholas ; but that the right of Joseph, was to be a right in common with Nicholas. So it must have been the intent of the parties, that, as the right was created for the benefit of the north shore, and as it must have some limit as to the amount, it should be limited in extent to the uses of the land set off to Joseph, and so it must necessarily become appurtenant ; Joseph would not, however, be confined to so much only as might be necessary of necessity to the estate, but as the grant was liberal

6 free liberty

– might take so much as he might have occasion to use for any purpose upon the

The plaintiff's counsel contends that under this grant, upon a just construction of it, Joseph originally had a right to take for sale and profit, without regard to any use; and the case of Phillips v. Rhodes, 7 Met. 322, is cited to that point, in which is held, that under a right of conton to take sea-weed appurtenant to the estate and intended for a dressing for the land, it might when taken be applied to that use or sold. No reason is given, nor authority cited, and we are left authority of the case alone. It is not easy to perceive the reason, if





the extent of the right were to be measured by the use and purposes of the estate. But without determining whether when once taken for use, the party might not forego the benefit of it to his estate and sell to another, the conclusion we think is warranted that the sale would not give him a right to take more than reasonably he might have taken had he thought fit to use it upon the estate.

The effect of the grant in the deed of partition is to create a right of common for sea-weed, gravel and stone, in favor of the north farm set off to Joseph, and as appurtenant thereto, to be exercised on the shore of the estate set off to Nicholas, giving a right to take so much as the owner of the north shore might think proper or profitable to use on the estate.

There passed also, as incident to this grant, a right of passing and repassing to and from the shore over the land of Nicholas, in some convenient place for the purpose of taking the profit. This was necessary to the enjoyment of the right of common granted, and would therefore pass by an implied grant, and accompany and follow the principal grant so long as it existed, and only become extinguished with the extinction of the common itself.

So also a grant of land, over which the grantor has a way of necessity to him for the enjoyment of another estate, does not extinguish the way, but the way is by implication reserved.

This right of way incident to the right of common falls under the head of secondary easements; and the objection raised, that it was not appurtenant to the north farm, and would not pass under the term " appurtenance,” is not tenable.

Did these rights pass to the plaintiff? George Armstrong, by his deed of July 4th, 1835, conveyed to the plaintiff all the land originally set off to Joseph W. Taylor in the deed of partition of 1776, with the appurtenances; and whatever rights of common were then appurtenant to the lands conveyed, or to any portion of them, passed to the plaintiff. Our inquiry then must be directed to the title which Armstrong had to the common.

Armstrong's title to the land is derived to him by two separate conveyances. By the deed from Joseph W. Taylor, of August 12, 1813 [4, 1812), he acquired title to nineteen and three quarters acres, a portion of the land originally set off to Joseph, “and all the privileges and appurtenances which I, the grantor, now have of taking and carrying away gravel and sea-weed and all stones below high-water mark on said beach, and also to tip the sea-weed on the beach of the said Nicholas Taylor's land.” Such are the words of the grant.

But whether any right of common then remained appurtenant to the nineteen and three quarters acres, must depend upon the effect which is to be given to the conveyance of Joseph W. Taylor to his brother Nicholas, of March 12, 1803. By that deed Josephi conveyed to Nicholas thirty acres, part of the share set off to him, to which the whole right of common was made appurtenant.


The defendant's counsel claims that the effect of the conveyance of the thirty acres portion of the dominant estate is the extinguishment of the whole common.

The first question here raised is whether this right of common was divisible, and might or not be apportioned to the several parts of the dominant estate upon a severance of the estate. In regard to rights of common which by law are indivisible, a conveyance of any portion of the dominant estate will extinguish the whole, as in the case of common of estovers, Van Rensselaer v. Radcliff, 10 Wend. 639; Livingston v. Ketchum, 1 Barb. S. C. R. 592 ; and the reason assigned is that the service is entire and appurtenant to an entire estate, and not being divisible, it cannot be appurtenant to part of the estate as an entire service.

are, however, other rights of common which are in law divisible ; and in all such cases it may be apportioned to the several parts of the dominant estate upon its severance by different conveyances. A right of pasture for cattle sans nombre is of this kind. In such case it is held that though the right be unlimited in terms, yet it is intended for the use of the estate and limited to such cattle as may be kept upon the dominant estate or upon any portion of it, and equally upon any portion, so that upon a division of the dominant estate and upon apportionment of the service to the several parts, the servient estate is not charged to any greater extent than before or with more cattle. And the rule is that wherever the common is admeasurable, the common is apportionable. Tyrringham's Case, 4 Co. 35. But the right, being measured by the uses of the estate, cannot be severed from the estate and granted over. Drury v. Kent, Cro. J. 15. The right in the present case is of the same nature. It is intended for the use of the estate and for every acre of it, and that equally; and whether the right be divided or not, the measure is the same. therefore be divided, and, by a conveyance of a part of the dominant estate, it would be apportioned to the part conveyed, and so much might well pass with it under the term “s appurtenance.”

This conveyance may be affected by another rule, for though the common may be in its nature divisible and apportionable, yet, if the effect of the conveyance is to surcharge the servient estate, it shall not only not be apportioned, but shall become extinct for the whole.

And for the same reason it is, that a release of a portion of the serrient estate or purchase of part of the servient by the sole owner of the dominant shall extinguish. In Rotherham v. Green, Cro. E. 593, there was a release of part of the land in which, &c. In Kimpton v. Bellamyes, Leonard, 43, the owner of the dominant purchased two acres of forty of the servient estate. In these cases the effect was to surcharge the residue. So, in Tyrringham's Case, 4 Co. 35.

In Wild's Case, 8 Co. 156, there was a conveyance of five acres of the forty contained in the dominant, and on the same reasoning it was held that the servient estate was no more chargeable upon the sever

It may

ance of the dominant estate than before, for that the five acres were entitled to common for the cattle levant and couchant thereon as before, and for no more.

And the rule deducible from all the cases is, as before stated, that if the effect of the conveyance is to surcharge the common, and burden to a greater extent the servient estate, it shall extinguish; if otherwise, there shall be an apportionment, and such portion will pass as appurtenant.

By this rule the portion of common belonging to the thirty acres would become severed from the residue, which would remain appurtenant to the nineteen and three quarters acres retained by Joseph Taylor, and the thirty acres would become a distinct dominant estate.

But inasmuch as the title to the dominant estate, by virtue of the conveyance, became united in the hands of Nicholas with the servient estate, all the common appurtenant to the thirty acres thereby became extinguished by unity of title. It has not been revived by any of the conveyances so as to pass by the term “ appurtenance” in the deed of Armstrong to the plaintiff.

The defendant's counsel claims that, although such would be the effect of the deed to a stranger, who immediately convers to the servient owner, yet, if made directly to the servient owner, the whole is extinguished.

Now, bearing in mind the reasoning on the cases generally upon the subject, and the rules deducible from them, we should not expect to find a case in which it should be held that, where the conveyance does not directly surcharge the common remaining, and where the servient owner can in nowise suffer injury, the whole common should become extinguished, and that against the apparent intent of the parties, but that effect would be given in such case to the clear intent.

There is, however, in Tyrringham's Case, the annunciation of such a rule as the defendant's counsel claims. It is this : that common appurtenant cannot be extinct in part and in esse for part by act of the parties, for that common appurtenant was against common right. Taken in the broad sense which counsel gives it, and independent of the connection in which it is used, it might support the ground which the counsel assumes. But taken with its connection, it is evident that it was not applied, or intended to apply, to such a case as is now before

The same rule exists in relation to rent-charge, which is said to be against common right as distinguished from rent-service, which is deemed of common right.

The only American case cited upon this point is that of Livingston v. Ten Broeck, 16 Johns. 14; and as this is claimed to conclude this point, it will be necessary to examine it with a little particularity.

The statement of the case shows that a certain estate, called the Vosburg farm, was entitled to common in a large pasture within the manor of Livingston, and that Henry Livingston was sole owner of fifty acres of land, parcel of the tract in which common was to be


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