Tyler v. Beacher.

The decision of the majority of the court, in Newcomb v. Smith, 1 Chand. (Wis.) 71, followed the practice and decisions in Massachusetts, and appears to have been made largely upon their authority. And, of the five judges who composed that court, Srow, C. J., and LARABEE, J., dissented, and LARABEE, J., reported a dissenting opinion, that the proceedings were unconstitutional, in which the chief justice concurred. Thien v. Voeghtlander, 3 Wis. 461, merely followed Newcomb v. Smith, without any reported discussion. These cases from Massachusetts and Wisconsin seem to be much relied upon to support these proceedings in this case.

Decisions from Virginia, North Carolina, Kentucky, Tennessee and Georgia, are sometimes cited in support of the right to take property in this manner for mills. But in all these States the mills were made public mills, by being required by law to grind for all in due turn for regulated tolls, and in some of them the mills were made public by more explicit provisions. CARR, J., Crenshaw v. Slate River Company, 6 Ran. (Va.) 245; Burgess v. Clark, 13 Ired. (N. C.) 109. In Kentucky, when private property was taken for such a mill, the statute required the mill owner to begin to build the mill within one year, and to complete it within three years, and "afterward continue it in good repair for public use;" and, if destroyed, to rebuild and continue it, or the property taken would revert to the former owner and his heirs. Statute Laws of Kentucky, 1834, p. 1215, §7; McAfee v. Kennedy, 1 Litt. 92; Shackleford v. Coffey, 4 J. J. Marsh. 40. The statutes of Tennessee provided that every mill which ground for toll should be a public mill; that the miller should grind according to turn for prescribed tolls, and imposed penalties for violation by millers. Upon the question of the power to take private property for such mills, GREEN, J., in Harding v. Goodlet, 3 Yerg. 41, said: "The grist-mill is a public mill. The miller is a public servant. He is allowed a compensation for grinding. His duties as a miller are prescribed, and penalties are imposed for a violation of any of these duties," etc. Upon this ground the taking was upheld in that case.

The supreme court of Alabama held, in Sadler v. Langham, 34 Ala. 311, that the right of eminent domain might be exercised in behalf of mills that ground grain for toll, and were compellable by law to render impartial service for all, but seems to have been of the opinion that it could not be exercised in favor of mills not so compellable. Judge COOLEY, in the opinion of the court in The

Tyler v. Beacher.

People v. Township Board, decided by the supreme court of Michigan, and reported at large in 9 Am. Law Reg. N. S. 487, said that the distinction taken in Sadler v. Langham was a very reasor able

one.

The petitioner, as has been seen, could not be compelled by law to render any service with his mill for any one but at his own option, consequently, not impartial service for all.

In the course of the same opinion, Judge COOLEY also said that he "did not understand that the right of eminent domain can be exercised on behalf of private parties or corporations, unless the State, in permitting it, reserves to itself a right to supervise and control the use by such regulations as shall insure to the public the benefit promised thereby, and as shall preclude the purpose which the public had in view in authorizing the appropriation being defeated by partiality, or unreasonable selfish action on the part of those who, only on the ground of public convenience and welfare, nave been suffered to make the appropriation.

The legislature in these acts did not reserve to itself any control whatever over the use of the property taken, but left it entirely to the control of the taker.

As to railroads, in respect to the public, all persons have the right to ride, and to have property carried on them in the vehicles of the roads, upon payment of a common charge. As to turnpikes, all persons may pass and carry on them in their own vehicles, upon payment of a common toll. All who have occasion may use ways laid out to private dwellings or lands. School-houses are instruments of a system that is maintained for all the people of the State. The public, or some essential part of it, has the right to have, and has to some extent the actual use and enjoyment of all these, and the takers of property for them are, in some sense, agents for the State in taking, and trustees for the public in holding the property taken, although they go into the enterprises in some cases merely for private gain.

In this case, the public would not take through the petitioner, but the petitioner would take for himself, and the petitioner would not hold as a trustee for the public, but only for himself. It is to be considered that this taking would be for the public benefit, for such is the effect of the finding, but the benefit would not arise out

any use the public would acquire by the taking, but of the better

Tyler v. Beacher.

use the petitioner would make than the petitionees would of the property taken.

Upon this comparison of these acts and proceedings with the provisions of the constitution, it seems to be plain that this taking would not be for public use within the meaning of the constitution. All the judges who could sit at the hearing of this cause have been consulted with upon this question, and concur in this decision of it ('The judge here referred to an unimportant point.)

Judgment reversed and cause remanded.

CASES

SUPREME JUDICIAL COURT

OF

ΜΑΙΝΕ.

BATES, plaintiff, v. FOSTER.

(59 Me. 157.)

Real estate- · construction of deed-breach of covenant.

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In an action for a breach of covenants in a warranty deed, it appeared that the deeds, after the usual words of conveyance and a description of the premises, contained the words, " and meaning hereby to convey the same premises and title as conveyed to me by D. W., and no more." It appeared, also, that D. W. conveyed to defendant only an equity of redemption from a mortgage which was still outstanding at the date of the deed, and which plaintiff was subsequently obliged to pay. Held, that the deed only conveyed an equity of redemption, and that the action could not be maintained.

ACTION for breach of covenants in a deed of warranty brought by Josiah F. Bates against Charles B. Foster. The deed was given by Foster to Bates, and contained the usual words of conveyance, "give, grant, sell and convey," together with a description of the premises. Then followed the clause: "And meaning hereby to convey to the said Bates the same premises and title as conveyed to me by Daniel Witham, and no more." At the date of the conveyance of the premises by Witham to defendant, there was a mortgage on the premises, and Witham had and conveyed only an equity of redemption. This mortgage was still outstanding when defendant conveyed to plaintiff, and plaintiff was subsequently obliged to pay it. On these facts, the case was reported, and if the action could not be maintained, the plaintiff was to be nonsuited.

for plaintiff.

A. Libbey, for defendant.

Bates v. Foster.

DANFORTH, J. This is an action for a breach of the usual covenants in a deed of warranty. Whether there has been any breach depends upon the construction to be given to the language used in describing the grant and the premises conveyed; for the covenants in a deed are limited in effect by the description of the grant. Hoxie v. Finney, 16 Gray, 332, and cases cited; Freeman v. Foster, 55 Me. 508; Coe v. Persons Unknown, 43 id. 432.

The defendant's deed, after the usual words of conveyance, "give, grant, sell and convey," followed by a description of the premises, has these words: "And meaning hereby to convey to the said Bates the same premises and title as conveyed to me by Daniel Witham, and no more." It appears that Witham conveyed to the defendant only an equity of redemption from a certain mortgage; that the same mortgage was still outstanding at the date of the defendant's deed to the plaintiff, and that the plaintiff was subsequently obliged to pay.

Did, then, the defendant, by his deed, convey to the plaintiff the interest which he received from Witham, and no more, or did he convey the whole title to the land and thereby covenant against the subsisting mortgage?

The defendant, in his deed, says he intended to convey the same he received from Witham, and "no more." But it is said that these words are repugnant to what goes before, and are, therefore, void. Such a construction is not admissible unless they are necessarily so inconsistent that both cannot stand together. Whatever may have formerly been the rules of construction in this respect, "in modern times, they have given way to the more sensible rule, which is, in all cases, to give effect to the intention of the parties if practicable, when no principle of law is thereby violated." Pike v. Monroe, 36 Me. 315.

It was certainly competent for the grantor to convey just such an interest in the land as he chose to do; therefore, no principle of law prevents the giving effect to his clearly expressed intention.

Nor is the latter clause in the description necessarily repugnant to or inconsistent with the former. It is undoubtedly true, that what is expressly granted cannot by subsequent clauses be restricted.