Stetson vs. Veazie, 11 Me. 408

Mellen C. J. —This is a petition for partition of certain flats in Bangor, and the defence before the jury was, that it was not maintainable, inasmuch as the petitioner was not seised at any time within twenty years next before filing the petition, but that prior to July, 1806, he was disseised by Luke Wilder.

It is admitted, though not stated in the report of the evidence, that in July, 1826, the petitioner made an entry into said premises ; but it is contended that at that time he had no right of entry, having been disseised more than twenty years before that time, and that the disseizin has continued ever since. The jury returned their verdict in favor of the respondent, and the motion before us is, that it may be set aside as against law and evidence.

It is admitted that the title to the flats, asserted in the petition, is in the petitioner, unless he has lost it by the operation of the statute of limitations, subject however, to an easement belonging to the owner of the adjoining upland, in virtue of which he had the use of the water for the purpose of landing boats, lumber, &cc. &,c. In July, 1806, and prior to that time, Lulce Wilder, was owner of the adjoining upland.

The mere enjoyment of an easement, being the exercise of a right, cannot amount to a disseizin of the owner of the land to which the easement is annexed ; for a dis-seizin is of itself a wrong; nor is it any bar to the maintenance of a writ of entry, by the owner of a piece of land, that the tenant is entitled to an easement in it. The title to the fee and to the easement are not in any manner incompatible.

Most of the acts done by Wilder, which are relied on as proof of the alleged disseizin, are not inconsistent with the easement to which he was entitled; such as using the shore, when he had occasion, as a place of landing for bis rafts, and other similar purposes ; and the enjoyment of such a privilege would give no notice of any disposition to disturb the legal rights of the owner of the flats.

Besides, it does not appear that any acts which he did, inconsistent with his easement, except placing the boom along the whole shore, were of an exclusive character; whereas the very idea of a disseizin is, that by means of it, all others are excluded by the disseisor, by his actual possession or constructive possession under a recorded deed. See Pro. Ken. Purchase v. Labaree, and cases there cited.

The act of Wilder in placing the boom along the whole shore or flats, seems to have been of a different and more decisive character ; and according to some of the eases cited by the counsel for the respondent, while it remained, we are inclined to consider as amounting to a disseizin : but that was placed there in 1804 ; and it does not appear by the report of the evidence that it remained there after that year; indeed, it is not contended that it did. Its legal effect ceased when it was discontinued.

We are not to indulge in presumptions in favor of those who found their defence upon rights which are contended to have become established, though confessedly originating in wrong. We do not. place any particular reliance on the declarations of Wilder, that he had no intention to invade or appropriate to his use the property of others ; the case does not seem to require it. On view of all the facts in this case, we see no evidence that the petitioner was disseised in 1806 ; the facts before the jury do not in law constitute a disseizin.

It is not a case of contradictory evidence, but a failure of proof on the part of the respondent to establish the defence on which he relies. The result is, that the verdict must be set aside and a new trial granted.