HAMMorin v. DEEHAN.l
(Supreme Judicial Court of Maine. October 18, 1886.)

ARBITRATION—AWARD—CONSTRUCTION. An award stating that the arbitrator had “excluded” certain items is valid; the true construction being not that he had failed to pass upon them, but that he had considered and disallowed them.

On report from superior court, Cumberland county.

The case was referred to an arbitrator, and the defendant filed objections to the award on the ground that the arbitrator did not determine the whole controversy submitted.

E. S. Ridlon, for plaintiff.

D. A. Marker, for defendant.

VIRGIN, J. By the express terms of the submission the arbitrator was made “sole judge of the law and fact arising between the parties.” The only objection raised against the award by the party against whom the balance was found is that the arbitrator did not determine the whole controversy submitted. After stating his conclusion, the award recites: “In arriving at this result I have excluded every claim (including those for intoxicating liquors) submitted by said parties, except the following, which I have allowed,” etc. Then follows a detailed statement of articles allowed each against the other, with the balance struck. Without any explanation on the part of the arbitrator, the evident meaning of the award is, not that he did not pass judgment upon all claims submitted, but simply that he “excluded” certain ones (enumerated in his testimony) from his computation in the result because he disallowed them, as well he might. . '

In accordance with the terms of the report, the entry must be judgment for plaintiff for $171.17 , and interest from date of writ.

PETERS, C. J ., WALTON, LIBBEY, EMERY, and HASKELL, JJ., concurred.

TRIAL—REQUESTED INSTRUCTION—REFUSAL. ‘ A requested instruction is properly refused by the court when there is no testimony on which to base the same.

On motion and exceptions by defendant from supreme judicial court, Franklin county.

Trover to recover the value of a pair of steers to which both parties claimed title. The verdict was for the plaintiff, and the defendant filed a motion for a new trial, on the ground that the verdict was against evidence, and also exceptions to the refusal of the presiding judge to give the following requested instruction: “That, if Dennison owned the steers when he delivered the mortgage to the defendant, the title would pass to the defendant, if Dennison gave him to understand that the steers were included in the mortgage.” The opinion states the facts.

P. A. Sawyer, for plaintiff.

B. Emery Pratt, for defendant.

VIRGIN. J. Trover to recover the value of a yoke of steers, the title thereto being claimed by each of the parties. The defendant admitted that he took the steers from the possession of the plaintiff, claiming to own them. One McKeen, owning the steers, on February 27, 1884, mortgaged them, with other live-stock, to one Dennison to secure a note of $250, which mortgage and note, together with sundry other notes and mortgages of personal property, Dennison, on August 29, 1884, delivered to the defendant as collateral security for the latter’s signing as surety a bank-note for $1,000, which note the defendant was obliged to pay after maturity. The plaintiff" claimed that, prior to the delivery of the mortgage and note to the defendant as collateral security, McKeen released his right of redeeming the steers, and sold them outright to Dennison, who on September 29, 1884, sold them to one Keene, taking back a mortgage thereof to secure Keene’s note for $95, which note Dennison assigned to the plaintiff. This the defendant denied. The only witnesses were the parties. The jury, after seeing and hearing the witnesses testify, found that the sale from McKeen to Dennison was bona fide, which finding we do not consider it our duty to disturb. There was no testimony on which the requested instruction could be based; and, if there were, the request was rightfully refused. Dennison testified that he informed the defendant that the steers were not included in the mortgage when it was delivered to him; and, while the defendant denies that any such conversation took place, he testified that no conversation at all in relation to the steers took place.

The other instructions could not injure the defendant. If the finding of the jury is correct, he had no title whatever on which to base any authority to take the steers from the plaintiff’s possession, which was titleenough for the plaintiff as against the defendant.

Motion and exceptions overruled.

PETERs, C. J ., WALTON, LIBBEY, EMERY, and HAsKELL, JJ., concurred.

STATE 1). INTOXICATING LIQUORs, (COBAUGH, Claimant.)1
(Supreme Judicial Court of Maine. October 18, 1886.)

STATES. Intoxicating liquors found in transit to the National Soldiers’ Home, Togus, at which place alone they were intended for sale by the Home storekeeper, are not liable to seizure under Rev. St. a. 27, § 39 et seq.; the territory of the Home having been ceded to the United States. and the state court having no jurisdiction thereof.

On exceptions by claimant from superior court, Cumberland county.

Search and seizure of intoxicating liquors found in a freight station in Portland, in transit from Portsmouth, New Hampshire, to the National Soldiers’ Home at Togus, Maine, where they were intended for sale by the storekeeper of the Home to the inmates. The treasurer of the Home claimed the liquors on the ground that Rev. St. Me. 0. 27, § 39, et seq., had no application, because the liquors were intended for sale on territory which had been ceded to the United States, and over which the state court had no jurisdiction. The complaint was made in the munic— ipal court for the city of Portland, and then went, by appeal, to the superior court for Cumberland, and thence, on exceptions by the claimant, to the law court. '

Geo. M. Seiders, Co. Atty., for the State.

H. M. Heath, for claimant.

VIRGIN, J. Intoxicating liquors found in a freight railroad station in Portland, in transit from Portsmouth, New Hampshire, to the National Soldiers’ Home, Togus, at which place alone they were intended for sale by the Home storekeeper, are not liable to seizure under Rev. St. 0. 27, § 39 et seq. By the terms of the statute such liquors only are liable as are kept and deposited “in the state, intended for unlawful sale in the state,” (section 39,) or “in violation of law,” (section 40.) It is the intent of one having the title or authority to sell in violation of law which is to be regarded. State v. Garland, 63 Me. 121. The Home, where the liquors were intended to be sold, is on territory which has been ceded to the United States, over which no jurisdiction whatever is retained by this state save that reserved by St. 1867, c. 66, viz., for the execution of civil and criminal processes issued under state authority against persons “charged with offenses committed outside of that territory,” which can have no possible application to cases like the one now under examination. The laws of this state do not reach beyond its own territory, and liquors sold in the ceded territory cannot be considered sold. in vio~ lation of the laws of this state. On the other hand, the jurisdiction of the federal courts is exclusive over all crimes or offenses committed Within such ceded territory. Houston v. Moore, 5 Wheat. 27; Com. v. Clary, 8 Mass. 72; State v. Kelly, 76 Me. 333.

Exceptions sustained.

PETERS, O. J ., WALTON, LIBBEY, EMERY, and HASKELL, JJ., concurred.

DORITY 'v. DUNNING.‘
(Supreme Judicial Court of Maine. September 28, 1886.)

1. WATERS AND WATER-COURsEs — EASEMENT — WATER IN AQUEnuo'r — PRESCRIPTIVE RIGHT. .

There may be such an adverse and continuous use of water flowing through an aqueduct as may well be considered presumptive evidence of a grant, and such right may therefore be acquired by prescription.2

2. SAME—APPURTENANCE.

An easement originating from water supplied by a spring not situated upon land belonging to the grantor of the plaintiff’s premises will not pass as an appurtenance to the estate conveyed unless it has become attached to the same. But where such easement has become appurtenant to the estate either by express or implied grant, or by prescription, a conveyance of that estate will carry with it such easement, whether mentioned in the deed or not, and

. althougl; it may not be necessary to the enjoyment of the estate by the grantee. '

3. EASEMENT—EXTINGUISHMENT—UNITY OF TITLE.

In order that an easement become extinguished by unity of title and possession of the dominant and servient estates in the same person, the ownership of the two estates must be co-extensive, equal invalidity, quality, and all other circumstances of right; and if one is held in severalty, and the other only as to a fractional part, there will be no extinguishment of such easement.

On report from supreme judicial court, Penobscot county.

Action on the case for diversion of water running in an aqueduct to the plaintiff’s premises. The opinion states the facts.

Davis (it Bailey, for plaintiff.

John Var/nay, for defendant.

FOSTER, J. This is an action on the case for diverting the water running in an aqueduct to plaintiff 7s house and stable. From the evidence reported, the following facts, essential to a correct understanding of the case, affirmatively appear: In 1836, Daniel Herrick took a lease of a certain spring, with the right to conduct water therefrom through the lessor’s land, for the term of 999 years. Having soon after obtained the right to lay pipes through adjoining lands, the lessee immediately constructed an aqueduct from said spring to Charleston Corner, a mile distant, more or less. The several places taking water from this aqueduct were accustomed to pay an annual water rent, except the Jacob Dority place, the Isaac Dunning place, now owned by the defendant. and the 'l‘ruxton Dority place, now owned by the plaintiff. These were the first three places lying along the line of the aqueduct, and in the order named; and it is claimed by the plaintiff that these three received the water un. der perpetual rights derived by grant from said Herrick, or by prescription. It appears that the parties occupying these places, and their successors, have always borne their proportional part of the expense in main. taining the aqueduct, and that the water has run to their houses and barns, by means of branch pipes, in the same manner for more than 45 years. After leaving the defendant’s premises, the aqueduct passes to the plaintiff 7s land, in the rear of his dwelling-house, and there the water has been accustomed to enter what is termed a “main cistern,” and from that to run in branch pipes to his house and stable. This continued till the fall of 1881, when it is alleged that the defendant diverted the water, thereby preventing it from flowing to the premises of the plaintiff; and for such diversion this action is brought. Daniel Herrick died in 1864, and his son, as administrator on his estate, in 1869, sold the rights of the deceased in this aqueduct to the defendant, and one David H. Patten, who then lived where the plaintiff now lives. Patten died, and by will left all his property to his wife and daughter, who, in 1879, conveyed to the plaintiff the premises where he now lives, by warranty deed; adding to the description this clause: “Also all the branch water-pipes running from the main cistern to the house and stable.” A short time after this conveyance they conveyed their undivided half of the aqueduct, derived from the administrator of Daniel Herrick’s estate, to the defendant, who, since that conveyance, has assumed the absolute right to control the water in the aqueduct, to the entire exclusion of the plaintiff, and has completely diverted the same from his premises.

The plaintiff’s claim is based upon the ground that this water-right was an easement legally appurtenant to his estate, and passed to him at the time he received his conveyance from the Pattens. To determine the correctness of this position we must first ascertain whether the easement was one that had ripened into a legal right, and had become legally attached to the premises conveyed; for this easement, originating from water supplied by a spring, and situated upon land belonging to the grantor of the [plaintiff’s premises, would not pass as an appurtenance to the estate conveyed unless it had thus become attached to the same. Spauld-ing v. Abbot, 55 N. H. 423. But when an easement, although not originally belonging to an estate, has become appurtenant to it, either by express or implied grant, or by prescription, which presupposes a grant, a conveyance of that estate will carry with it such easement, whether mentioned in the deed or not, although it may not be necessary to the enjoyment of the estate by the grantee. 2 \Vashb. Real Prop. *28; Kent v. Waite, 10 Pick. 138. Hence, if Patten, in his lifetime, aside from any interest conveyed by Herrick’s administrator, was the owner of this easement as annexed to this particular estate, it passed with the estate to his wife and daughter,'and from them would have passed to this plaintiff as appurtenant to the premises conveyed, even ii no mention had been made of it in their deed to him. And, from all I the evidence in the case, any extended summary of which would hardly, be deemed proper in an opinion, we can arrive at no other conclusion than that this easement had become appurtenant to the estate long. before it came into the hands of Patten.

The testimony of Place shows that in 1845, after it had been in operation about nine years, he hired the aqueduct of Herrick for four or