Gibson vs. Brockway, 8 N.H. 465

The opinion of the court was delivered by Up ham, J. An exception was taken on trial, that there was no evidence of a disseizin by the defendant; but the general issue which is plead in this case is a denial of record of the plaintiff’s right to recover any part or parcel of the premises, so that the pleadings are fatal to this exception. The only question to be determined in the case, is whether the deed under which the plaintiff claims, passes the buildings merely, or the land on which the same were situated, with such adjoining land as may be essential for their use and improvement.

Conveyances are most usually by metes and bounds of land, with the additional description, where buildings are upon the premises, of the phrase, “ with the buildings thereonbut this addition is immaterial. A conveyance of the laud passes the buildings, of course. But land will also pass by other terms of description. Thus a conveyance of a messuage, a rectory, a house, <fcc. will in many instances convey land.

In Shepard's Touchstone 94, it is said that “ the grant of ‘ a messuage, or a messuage with the appurtenances, passes ‘ the house and building adjoining, together with the close ‘ upon which the dwelling-house is built, and the little gar-‘deu, yard, field, or piece of void ground lying near, and 1 belonging to the messuage. And so much also may pass ‘ by the grant of a house.” Coke says : By the grant of a messuage, or house, the 1 orchard, garden and curtilage do pass, and so an acre or ‘ more may pass by the name of a house.” Co. Litt. 216.

The grant of a cottage will pass a little dwelling-house, that has no land belonging to it. Shep. Touch. 91. A cottage is a little house without land. Co. Litt. 216. In Doe vs. Collins, 2 D. & E. 499, a devise “ of the house I live in, and garden, to B,” was held to include the stables, and the land on which they stood, and a coal pen which was on the opposite side of the way, and separated by the road.

Ashurst, J., said — “ The distinction betwixt a ‘ house and a messuage seems to be too subtle to be relied ‘ upon at this time ; for he thought whatever would pass by ‘ the one would pass equally by the other.” See, also, 2 Saund. 401, Smith vs. Martin, and authorities there cited. Blake & al. vs. Clark, 6 Green. 436, is a case directly in point.

It was there holden that the conveyance of a saw-mill conveyed the fee of the land, on which the mill stood, and that the land on which a mill stands may be regarded as including land over and upon which the slip, if it has one, or any other necessary projection from the mill, passes, and that the term may also embrace the free use of the head of water existing at the time of the conveyance, as also a right of way, or any other easement which has been used with the mill, and which is necessary to its enjoyment. We are of opinion that the description in the plaintiff’s deed must go to this extent at least.

The terms used in the conveyance here are much stronger than those in the case last cited. Tenement is a large word to pass not only lands, and other inheritances which are holden, but also offices, rents, commons and profits arising from lands. 1 Co. Litt. 219; Shep. Touch. 91. With us the word tenement is applied exclusively to land, or what is usually denominated real property. Stearns on Real Actions, 150.

The description used in the conveyance in this case, is: “A certain tenement, to leit. : one half of a corn-mill, situ- ‘ ated in Washington, in the county of Cheshire, in lot No. 1 one, and second division, with all the privileges thereto ‘ belonging, the same as I now possess.” The design was, without doubt, to pass, under the phrase, “ a certain tenement, being one half of a corn-mill,” the land on which the same was situated, together with that portion of the water privilege which was essential to the use of the mill; and such is the proper legal effect of the terms made use of.

Independent of the word tenement, there is sufficient ip this description to convey the land connected with the mill' The term messuage, house and mill, will often include land if not necessarily so, unless there is something in the cot veyance to rebut such a presumption. In this case eac portion of the description corroborates the construction f give to it, and makes it an undoubted conveyance of l?d and buildings. The verdict must, therefore, be set aside, jd Judgment rendered for the plaintij