Clarendon Wheelock versus Amasa Henshaw, 19 Pick. 341

Wilde J. delivered the opinion of the Court. The defendant undertakes to justify the trespass charged, under a deed from one Lewis Thayer, from whom both parties derive their title. By that deed, dated1 March 7th, 1833, Thayer granted to the defendant the right and privilege of drawing water from a pond which the grantor was about to raise by erecting a di.m to be ten feet high, and which he was to keep in repair, and to pay all damages for flowing.

The right however was limited to the surplus water above the level of six feet at the dam, and with the exception also of the water which might be necessary to propel certain machinery described in the deed, belonging to Thayer. Before considering the rights and privileges granted by that deed to the defendant, a previous question is raised by the statement of facts, which may render the construction of the deed, in relation to the circumstances of the case, unimportant.

It appears that at the time of the grant, the defendant gave back a mortgage deed to Thayer of the granted premises, which mortgage has been duly assigned to the plaintiff; so that the plaintiff is now entitled to all the rights of the original mortga-, gée ; and it does not appear that these rights have been impaired or altered by any agreement as to the possession of the mortgaged property or privileges.

And the principle is well settled, that the mortgagee is the legal owner of the mortgaged property ; and if it is real estate, he becomes immediately seised, upon the execution of the mortgage, and no previous entry or notice to quit is necessary to enable him to maintain trespass or ejectment, but he may elect to consider the mortgagor as a deforciant, whenever he' pleases, without any other ceremony than the commencement of an action. Erskine v. Townsend, 2 Mass. R. 493; Newall v. Wright, 3 Mass. R. 152.

If there be no agreement that the mortgagor shall retain possession, the mortgagee may immediately enter and take possession. Or, if the mortgagor refuses to quit the possession, the mortgagee may consider him as a trespasser, and may maintain an action of trespass against him. In the present case the defendant is not in possession of the estate out of which the privilege was granted, nor of the privilege which he now claims. The plaintiff possesses this privilege by virtue of his mortgage. No actual and visible possession can be taken of a privilege or an incorporeal hereditament.

The defendant therefore has neither the possession nor the right of possession; and his claim to enjoy the privilege and receive the profits to the injury of the plaintiff and against his will, cannot be maintained. But although this ground of defence fails, it does not follow that the plaintiff is entitled to judgment. He must establish some title in himself, before the defendant can be put on his defence. The defendant’s claim is limited to the right of drawing water from the pond when the water rises at the dam over six feet; and he has no right to any water except the surplus above six feet.

Now it is admitted, that Thayer had no right to raise the water above that level. Nothing therefore passed by his grant to the defendant, and the defendant had no property in or title to the surplus water, and consequently had nothing to mortgage. Thayer’s covenant as to his right and title, was immediately broken on the delivery of his deed.

And so it was held in a former action brought by the present plaintiff against Thayer. (16 Pick. 68.) To this objection it would be a sufficient answer, if the plaintiff had rested his claim on that point, that the defendant is estopped by his deed, to deny that he had any right in the property mortgaged. But on this statement of facts, the plaintiff is not allowed to avail himself of the estoppel ; for it is expressly admitted, that Thayer never had any right to flow the water back upon Eldridge’s ancient mill, and that he consequently had no right to raise his dam above the height of six feet.

This fact being agreed, the defendant is not estopped to rely on it as an objection to the plaintiff’s title. A party is not to be estopped when the truth appears by the pleadings and record. Com. Dig. Estoppel., E2 ; Co. Lit. 352. If a party pleads a fact which he might be estopped to plead, and the other party takes issue on the fact, instead of relying on the estoppel, and the jury find the truth of the fact, judgment will be rendered accordingly, without regard to the estoppel. Com. Dig. Estoppel, E11.

The same principle applies when the parties agree to submit a case to the decision of the Court upon certain facts agreed. Upon these facts it appears manifest, that the plaintiff has no title to draw off the surplus water in question. This right is vested exclusively in Capron and Parkhurst, by their purchasing in the ancient privilege from Eldridge. If Wheelock or Thayer had purchased this privilege, it might enure to the benefit of the defendant; but the purchase by Capron and Parkhurst can no more avail these parties, than the purchase would by any other stranger. Note.

Judgment was afterward rendered for the plaintiff, by consent, for one dollar, damages.