
    John Davis & others vs. Thomas G. Atkins & another.
    In a lease of a wharf, which, after describing the boundaries, proceeds thus. “ being the same premises now in the occupancy of A. B., together with all the rights, privileges, and appurtenances to said wharf, and to the flats belonging thereto, or in any ways appertaining; ” and which contains a covenant of quiet use and enjoyment; the words, “ being the same premises now in the occupancy of A. B.,” apply only to the wharf, and have no reference to what follows ; so that the subsequent lawful filling up. by the proprietors of an adjacent wharf, of a portion of the intervening dock, constitutes no breach of covenant for which an action can be maintained.
    This was an action of covenant, founded upon a lease executed by the parties, March 12, 1845, for five years from May 1, of the same year.
    The premises were described in the lease as “ a certain wharf called ‘ Atkins’s wharf,’ situated in Commercial street, in said Boston, and is bounded on said street fifty-nine feet, and bounded on one side by James Bartlett’s land and flats, and on the other side by land and flats of James S. Wiggin, being the same premises now in the occupancy of B. Abra-hams & Co., together with all the rights, privileges, and appurtenances to said wharf, and to the flats belonging thereto, or in any ways appertaining.” The lease contained the usual covenants of quiet use and enjoyment of the premises during said term.
    It appeared in evidence, on the trial before Metcalf, J., at the sitting in October 1850, that, in the year 1808, an agreement, duly executed and recorded, was entered into by William Mills, then owning Bartlett’s wharf, and Edward and Hannah Proctor, then owning Atkins’s wharf, fixing the boundary line between their estates and the boundaries and dimensions of the dock between their wharves, and reducing the dock from a width sufficient to admit two vessels lying abreast, to twenty-five feet, so that only one vessel could occupy it at a time, and regulating the future use of the reduced dock by the parties.
    Until about one year subsequent to the execution of the lease, the dock remained of its original width, and the occupants of Atkins’s wharf enjoyed the entire use of their part of it. In 1846, the proprietors of Bartlett’s wharf, availing themselves of their rights, under the agreement above mentioned, filled up the space on the south side, next to their wharf, reducing the dock to twenty-five feet, as specified in said agreement, and enforced the provisions of the agreement securing to them the joint occupancy of the dock. And from that time to the date of the writ in this case, the dock was jointly occupied by the plaintiffs and the proprietors of Bartlett’s wharf.
    The defendants contended that the plaintiffs enjoyed all they were entitled to under the lease, and that there was no breach of their covenants in the same ; and asked the judge so to instruct the jury.
    As this point of defence was not suggested until after the plaintiffs had introduced their evidence as to the damages sustained by them in consequence of the filling up aforesaid, by the proprietors of Bartlett’s wharf, the judge, for the purpose of the trial only, ruled otherwise, and the jury returned a verdict for the plaintiffs. To this ruling the defendants alleged exceptions.
    
      C. B. Goodrich, for the plaintiffs.
    1. The instruction asked was well refused, because it was the province of the jury, under directions of the judge, to ascertain the identity and extent of the land demised.
    2. It was competent for the plaintiffs to show the nature and extent of occupancy which had been, and, at the date of the lease, was enjoyed by Abrahams & Co., because, by the terms of the lease, this was made an essential element in the description of the property demised. 1 Platt on Leases, 730, 731; Worthington v. Hylyer, 4 Mass. 196; Waterman v. Johnson, 13 Pick. 261.
    
      J. C. Park, for the defendants.
    1. The contract between the parties was in writing, and there was no pretence of fraud to justify the admission of parol testimony.
    2. The sentence, “ with all the rights, privileges, and appurtenances to said wharf, and to the fiats belonging thereto, or in any ways appertaining,” means lawfully belonging, for there can be no such thing as unlawful right.
    3. The preceding tenant may have been trespassing upon others during all his term, or may have been enjoying an easement on the land of others by sufferance, and we should not be held to give the same privileges to his successor without special agreement.
    4. The restriction of privilege complained of was matter of record, and therefore presumed in law to be known and public.
    5. There can be no ground for the idea that the preceding description of the premises as a “ wharf,” with certain lateral boundaries, strengthens the plaintiffs’ case; because, if it is to be construed literally, and not as a mere descriptio loci, it would describe an actual wharf of the width of fifty-nine feet, without any lateral docks, bounded by land and flats of Bartlett and land and flats of Wiggin. It is not pretended bv the plaintiffs that such would be the right construction.
   FletcheR, J.

The decision of this case depends wholly upon the construction of the lease, upon which the action is founded. For the plaintiffs it was maintained, that the lease conveyed to them the wharf and dock as they were at the time actually occupied by B. Abrahams & Co.; and that, by the subsequent filling up of a part of the dock, by those having a paramount title and rightful authority, the plaintiffs were deprived of a part of the premises leased to them by the defendants, for which loss, it was insisted, that the defendants were responsible in this action of covenant broken. The question therefore is, whether, upon a just construction of the lease, that part of the dock of which the plaintiffs have been deprived was conveyed to them by the defendants, with a covenant for quiet enjoyment ?

The premises were described in the lease as a certain wharf, called Atkins’s wharf, and, after giving the boundaries of the wharf, it is said, “ being the same premises now in the occupancy of B. Abrahams & Co., together with all the rights, privileges, and appurtenances to said wharf, and to the flats belonging thereto, or in any ways appertaining.” It is quite manifest that that part of the description, which says “ being the same premises now in the occupancy of B. Abrahams & Co.,” applies only to the wharf; it merely identifies the wharf, and has no reference whatever to the dock, or the rights, privileges, and appurtenances and flats belonging to the wharf, which are afterwards mentioned. No reference is made' to the occupancy of Abrahams & Co., as identifying or defining or measuring the rights, privileges, appurtenances, flats, or docks belonging to the wharf, nor are these in any way particularly pointed out or described.

The lease conveys the wharf, particularly described by metes and bounds, together with the rights, privileges, and appurtenances, and flats belonging thereto, in the most general terms.

Whatever rights, privileges, and appurtenances, and flats and docks belonged to the wharf were granted to the plaintiffs, and nothing more; and all these they enjoyed without hindrance or interruption.

The plaintiffs would, if they had thought it important or desirable, have ascertained the precise extent of the rights, privileges, appurtenances, flats, and docks belonging to the wharf, and have had them accurately defined, limited, and set forth in the lease.

But they were willing to take the lease in the general form in which it was framed; they have enjoyed all which was conveyed by the terms of the lease, and with that they must be content.

The defendants not having conveyed that part of the dock which has been filled up, and of which the plaintiffs have been deprived of the use, nor covenanted for the quiet enjoyment of it by the plaintiffs, there has been no breach of covenant for which this action can be maintained. The instruction, therefore, asked for by the defendants, “ that the plaintiffs enjoyed all they were entitled to under said lease, and that there was no breach of their covenants in the same,” should have been given, and probably would have been if it had been asked for at an earlier stage of the trial.

This decision is conclusive against the plaintiffs’ right to recover; but the entry now must be, that the verdict for the plaintiffs be set aside and a

New trial granted.  