
    Justin Leonard versus Daniel White.
    By a grant of a grist-mill with the appurtenances thereon, the soil of a way, immemorially used for the purpose of access to the mill ftom the highway, does not pass.
    Trespass for breaking and entering the plaintiff’s close, situate in tVbst Springfield, and beating and driving away the team of the plaintiff, viz., one horse and one yoke of oxen, &c.
    
      The declaration contained several counts, and the defendant pleaded a number of pleas in bar. That on which the question, which came before the Court, arose, alleges in substance, that the defendant and his wife were seised in their right of the locus ir quo, and because the horse and oxen of the plaintiff were there doing damage, the defendant rightfully removed them. The repli cation traverses the seisin alleged in the plea, and tenders an issue, which is joined by the defendant.
    [ * 7 ] * From the report of Sedgwick, J., who sat in the trial of this issue, it appears that one Asaph Leonard, before and until the 4th day of April, 1789, was seised in fee of an ancient grist-mill, which stood at the distance of several rods from the highway, and of the land between the mill and the highway, over which land there is a way, which has been immemorially used for the purpose of access to the mill from the highway, and, as was understood, for no other purpose; and this way was the locus in quo. On the day above mentioned, the said Asaph conveyed, by deed in fee tail, to the defendant and his wife certain land, comprehending that on which the grist-mill stands, except two third parts of the mill privilege, which he reserved to himself; and this conveyance was made in that manner, “ with the appurtenances thereon.” After the decease of the said Asaph, the devisees of his real estate conveyed to the defendant all their interest and estate in the said grist-mill; “ with all the privileges and appurtenances thereunto belonging.”
    
    Upon this evidence the jury were directed to find their verdict, upon this issue, in favor of the plaintiff, which they accordingly did, the defendant moving for a new trial, as for a misdirection of the judge.
    
      Bliss, for the defendant,
    agreed that the locus in quo is not within the land described in Asaph Leonard’s deed, but he argued that, the way having been immemorially used with the mill, the soil thereof passed by the deed as appurtenant to the mill; and he cited Co. Lit. 5, b. By the grant of a messuage, or house, an acre or more of land may pass. (Com. Dig. Title Grant, E. 9.) By the grant of a messuage, cum terris pertinentiis, land occupied continually with the house passes. (Cro. Eliz. 113, S. P.) And although land may not pass as appurtenant to land, yet it may as appurtenant to a mill, or it may be considered as parcel thereof, if they have been enjoyed together for a long time. So where one granted a mill, cum pertinentiis, it was held that a kiln at the end of the close, wherein the mill stood, would have passed with the [ * 8 ] mill, if it had been found that * the kiln was necessary to the mill. (Bac. Abr. Title Grants, I. 4.)
    
      Hooker and Lathrop for the plaintiff.
   The opinion of the Court was afterwards delivered by

Sedgwick, J.

(after stating the substance of the report.) It is not contended in this case, on the part of the plaintiff, that the conveyance, mentioned in the report, does not operate as the grant of an easement for the accommodation of the mill, by means of the way which has been mentioned; but it is contended that it cannot be considered as a grant of the soil over which the way passed; and, on the other side, it is insisted that the deed ought to be considered as a grant of the land.

It is agreed that the locus in quo is not within the lines desig noting the limits of the grant. And as the seisin of the defendant and his wife in the land is put in issue, the question is, whether the soil was conveyed by the expression “ with the appurtenances thereon.”

An appendant or appurtenant is a thing used with, and related to, or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant. The way then, as an easement, might be append-ant or appurtenant to the mill; but the soil, over which the way went, could not.

An appendant is that which, beyond memory, has belonged to another thing more worthy, and which agrees with that to which it is related, in its nature and quality ; and an appurtenant is that, the commencement of which may be known. Appendances and appurtenances will pass by the words, “ with the appurtenances thereunto belonging,” or by other tantamount expressions.

By the grant of a messuage, cum pertinentiis, a shop, annexed to it for thirty years, does not pass, unless it be found to be a parcel of the messuage. By the grant of a house or land, cum pertinentiis, another house or land does not pass, unless it be found to be a parcel. By the grant *of a mill, cum [ * 9 ] pertinentiis, the close where the mill is, or the kiln there, does not pass without some further expression. Land cannot be appendant to land. Nor can it be appendant to a meadow or messuage. So a meadow cannot be appurtenant to a pasture, nor a pasture to a wood.

From these authorities it is evident that the deed in question did not convey the soil, over which the way went, to the defendant and his wife; and, therefore, will not support this issue on his part.

Nor can the defendant better avail himself of the deed of the devisees of Asaph Leonard to him, inasmuch as it is a conveyance to himself alone, whereas his plea sets up a joint seisin in himself and his wife; and, further, this last deed is subject to the same objections as that which has been already considered; there being no pretence that the soil, in the locus in quo, was conveyed by this latter deed, except as appurtenant to the subject of the grant.

We are, for the reasons which have been given, all of opinion that the direction, and the finding of the jury, upon this issue were right.

Judgment on the verdict 
      
      
        Co. Lit. 121, 6. 122, a.
      
     
      
      
        Co. Lit. 121, b. Com. Dig, Appendant and Appurtenant, A.
      
     
      
      
        Cro. Car. 17.
     
      
       1 Lex. 131.
     
      
       1 Sid. 211.— 1 Lev. 131.
     
      
       1 Rol. 230, l. 50
     
      
      ^ Plow. Com. 170 b.
      
     
      
      
        Plowd. uhi supra.
     