
    Hiram Esty versus Richard L. Baker.
    If a deed contains two descriptions of the land conveyed, which do not coincide, the grantee is entitled to hold under that which will he most beneficial to him.
    If some of the particulars of the description of land conveyed do not agree, those which are uncertain, and liable to error or mistake, must be governed by those which are more certain.
    In a deed conveying a gristmill, with the land and privileges where it is situated, “ necessary for and attached to said gristmill, hereby meaning to convey all the lands and mill privilege (not heretofore sold by us) on the dam connected with said gristmill and privilege,” the effect is to convey all the land and privilege not before sold by the grantor, and connected with the mill and privilege, and not merely what is strictly necessary for and attached to the mill.
    But if the parties have, by their acts and occupation, treated the grant as embracing, not all the lands and privilege on the dam not previously sold, but all the lands and privilege connected with the gristmill not previously sold, the Court will not interfere to control their construction.
    A tenancy at will is, by alienation of the estate by the landlord, changed into a tenancy at sufferance; and, although the tenant had occupied the premises for a series of years, by consent of successive owners, the last alienation would effect the same change.
    The statute providing for the termination of tenancies at will by notice in writing served on the occupant a certain period before the time fixed for such termination, does not provide that such tenancies cannot be terminated in any other way; and, even if this is implied as, to tenancies at will under the statute, tenancies at will at. common law may he terminated in the same manner as before the statute.
    The decision in the case of Young v. Young, 36 Maine, 133, where the tenant was in possession under a parol lease at an agreed rent, which was a tenancy at will by statute, does not apply to a tenancy by common law, where the tenant merely occupied by consent of the owner, without rent.
    A tenant at sufferance cannot maintain trespass guare clausum for a peaceable entry.
    Trespass .guare clausum. Plea general issue, with brief statement.
    It appeared that the plaintiff occupied a carding mill and privilege in Houlton, under a lease for twenty years, from J. S. and A. R. Putnam, to S. Houlton, dated March 15, 1841, assigned to the plaintiff by deed of S. Houlton in 1851, adjoining said Putnam’s gristmill, with "the privilege of making a road at the south end of said gristmill, not obstructing the privilege of water to said gristmill.” The plaintiff also claimed the premises under a deed from said Putnams to Rufus Mansur, dated April 29, 1844, and intervening conveyances. The plaintiff had erected a platform and passage way for a road to his mill, as authorized by the lease to Houlton.
    The Putnams, May 13,1843, conveyed to Batchelor Hussey, by mortgage deed, "the gristmill in Houlton, on the Meduxnekeag stream, now owned and occupied by us, with all the appurtenances and machinery thereto belonging, together with the land and privileges where the same is situated, hereby meaning and intending to convey all of the lands and mill privilege (not heretofore sold by us) on the dam connected with said gristmill and privilege,” &c. This mortgage was subsequently foreclosed. In 1857, William Mays and J. M. Vanwart, having, through intervening conveyances, become the owners of the premises, leased them to the defendants for fifteen years; and they erected a building for a cabinet shop on the opposite side of the passage way from the gristmill, and run a shaft from the shop to the gristmill, under and across the platform built and used by the plaintiff for a passage way. By means of this shaft, the machinery in the defendant’s shop was carried.
    The plaintiff testified, that he' repeatedly forbid the defendant erecting the building, and placing the shaft under the platform. The defendant testified, that the plaintiff at first gave his consent to both, but afterwards objected. On this point, there was much conflicting evidence adduced.
    The plaintiff requested the presiding Judge, Cutting, J., to instruct the jury, that the deed to Hussey conveyed only the land where the gristmill stood, and connected therewith, and not any land disconnected with the gristmill by the passage way; that the land under the defendant’s shop cannot be regarded as attached to the gristmill; that, if the plaintiff was in possession of the land on which the shop was built by permission of the Putnams, and if Hussey acquired a title to said land by his deed from the Putnams, the plaintiff was the tenant at will of Hussey and those claiming under him, and could not be dispossessed without notice to quit; and that, in this State, a tenancy at will can be terminated only by a written notice, and the tenant at will may maintain trespass guare clausum, against the owner of the land for an entry on him without such notice.
    The Court, amongst other things, instructed the jury as follows : — that the plaintiff, in order to maintain this action, must have the fee of the land, or possession and control of the fee; that, if he had only an easement, trespass guare clausum is not an appropriate remedy; that the Putnams, having owned the land in dispute, conveyed the fee in the passage way by their deed to Mansur, unless they had before conveyed it by their deed to Hussey; and that, if not so conveyed to Hussey, the fee passed to Mansur, and from him to the plaintiff, and the act of the defendant, in placing the shaft across the passage way, was unauthorized, and this action can be maintained.
    And, for the purposes of this trial, the Court further instructed the jury, that the plaintiff’s deed conveyed only the gristmill owned by the grantor, with the land and privilege where the mill was situated, necessary for and attached thereto, exclusive of anything embraced in that description which the grantor had previously sold; that, if the land covered by the passage way, and that on which the defendant’s shop was erected, were, on May 13, 1843, necessary for and attached to said gristmill, then it passed to Hussey, and this action cannot be maintained; or, if the land necessary for and attached to said gristmill embraced said passage way, then this action cannot be maintained for placing the shaft across it, as the fee would be in Hussey and his grantors, and the plaintiff would have only an easement.
    And that, if the plaintiff was in possession by permission of the Putnams, and as their tenant at will, such tenancy was terminated by the deed to Hussey, if that deed embraced the land in dispute, and the tenancy at will was thereby changed to a tenancy at sufferance, and a tenant at sufferance is not entitled to notice to quit.
    The verdict of the jury was "not guilty.” Before the verdict was affirmed, the Court inquired of the foreman, if the jury found that the defendant erected the building with the plaintiff’s consent. The foreman answered that they had.
    The plaintiff filed exceptions to the rulings of the Judge, ■ and also a motion to set aside the verdict as against evidence, and the evidence was reported by Cutting, J., to the full Court.
    J. Granger, for the plaintiff,
    argued that he had an exclusive right to the passage way, under the Houlton lease, and that, although he did not own the soil, this would give him a right to maintain an action of trespass against the defendant. Spooner v. Brewster, 3 Bing., 136; S. C., 2 C. & P., 34; Northampton v. Ward, 1 Wils., 110; 3 Burr, 1566, 1824; 5 East, 480, 485; Cro. Eliz., 421; 2 Salk., 638; 2 Mi & S., 499; Crosby v. Wadsworth, 6 East, 602 ; 5 T. R., 333 ; Bac. Ab., title Trespass, c. 3.
    The ruling of the Court, referring to the jury the question what land was necessary for and attached to the gristmill, was erroneous. That was a question for the Court. The legal construction of a deed is always a question of law. If left to a jury, one jury may decide to-day one way, and another may to-morrow decide the same question differently.
    •The plaintiff being in possession by permission of th.e Putnams, was a tenant at will of said Putnams, and therefore, after the deed of Putnams to Hussey, tenant at will of Hussey,‘and, after the deed to Mays and Yanwart, tenant at will to them, if their deed embraced the land. In this State, nothing but a written notice to quit, under the statute, will terminate a tenancy at will. Young v. Young, 36 Maine, 133; Smith v. Rose, 31 Maine, 212; 1 Cruise Dig.,-282, 'estate at will, c. 1, § 16.
    
      A tenant at sufferance is one who comes into possession lawfully, and holds over wrongfully, after his estate is determined. But a tenancy at sufferance soon ripens into a tenancy at will; delay of the landlord in taking possession or in taking steps to remove the tenant raises a presumption of acquiescence. Chesley v. Welch, 37 Maine, 106; 5 Cush., 571. Even if alienation of the estate changed the tenancy at will to tenancy at sufferance, sufficient time had elapsed to change it to a tenancy at will again.
    
      In support of the motion to set aside the verdict, the counsel argued that the evidence was confused, and threw but little light on the subject. But the finding of the jury, that the building was erected by the defendant by consent of the plaintiff, if not the mere opinion of the foreman, was manifestly against the evidence. Even the defendant admits that the plaintiff objected to the building being erected, although he alleges that he consented at first.
    Bradbury, Blake, Garnsey■ & Madigan, for the defendant.
    That land necessary for, and attached to, and ordinarily used with a mill, will pass by the grant of the mill, is well settled. Blake v. Clark, 4 Maine, 436; Maddox v. Goddard, 15 Maine, 218; Forbish v. Lombard, 13 Met., 114; Whitney v. Olney, 3 Mason, 280; Johnson v. Raynor, 6 Gray,. 111.
    It is right for the jury, as in the case at bar, to find by their verdict, as a matter of fact, what land is included, after being instructed as to the law applicable. This was done in 3 Mason, 280, just cited, under the instructions of Judge Story. We find no case where there has been a different practice.
    The instruction as to tenancies at will was correct. Moore v. Boyd, 24 Maine, 242; Howard v. Merriam, 5 Cush., 575¿- But this became immaterial, as, by the special finding of the jury, the erections were made by the consent of the plaintiff.
    
      The plaintiff, in fact, was a teñant at sufferance, and not at will. Taylor’s Landl. and Tenant, 2d ed., 32, § 64.
    The deed to Hussey passes all 'the lands and mill privilege on the dam connected with the gristmill, not before sold, as well as all necessary fór the mill.
   The opinion of the Court was drawn up by

Davis, J.

This case has been presented to the Court before, (48 Maine, 495,) upon a report of the evidence differing in many respects from that now reported. It was then ordered to be tried by a jury; and, upon that trial, new questions of law were raised. The verdict being for the defendant, the plaintiff now presents the case again, upon exceptions and a motion for a new trial.

The plaintiff owned a mill and privilege on the Meduxnekeag stream, in Houlton; and he occupied a passage way and platform adjacent thereto. ■ He derived his title to the premises, through mesne conveyances, from J. S. and A. E. Putnam, by their deed to Eufus*Mansur, dated April 29, 1844.

In the summer of 1857, the defendant entered upon a portion of the passage way, and erected a shop thereon, in .part; and he placed a shaft across the passage way, to connect the machinery in the shop with the water wheel of a grist mill. For that entry this action of trespass quare clausum was brought by the plaintiff.

The defendant entered under a lease from the owners of .the gristmill, who also derived their title, through mesne (aonveyances, from the Putnams, by their deed to Batchelor JSissey, dated May 13, 1843. The description of the preinikss conveyed by this deed is as follows :—

'"’The gristmill in said Houlton, on the Meduxnekeag :Stream, now. owned and occupied by us, together with the Rand ¡and privileges where the same is situated, necessary for and attached to said gristmill; hereby meáñing and intending to convey all the lands and mill privilege, (not heretofore sold by us,) on the dam connected with said gristmill and privilege.”

This was a mortgage deed; and the debt secured by it not being paid, it was afterwards foreclosed. The validity of the foreclosure is not questioned.

The defendant contends that the deed to Hussey embraced ” all the lands and privilege” owned at the time by the Putnams " on the dam connected with the gristmill.”

The plaintiff contends that nothing passed by the deed except what was " necessary for and attached to said gristmill.”

An explanatory clause, added to the clause containing the grant, sometimes has the effect to diminish, and sometimes to enlarge the grant; and sometimes it is rejected as repugnant to the grant. Forbish v. Lombard, 13 Met., 109; Chesley v. Holmes, 40 Maine, 536; Pike v. Munroe, 36 Maine, 309. The authorities on this subject are collected in the case oí Melvin v. Proprietor's of Locks, &c., 5 Met., 15 ; and the following general rules are deduced:—

" If there be two descriptions of the land conveyed, which do not coincide, the grantee is entitled to hold that which will be most beneficial to him.”

" If some of the particulars of the description of the estate conveyed do not agree, those which are uncertain and liable to errors and mistakes, must be governed by those which are more certain.”

If the deed of the Putnams to Hussey, by the explanatory clause, commencing with the words •" hereby meaning and intending to convey,” embraces all the lands and privilege on the dam, not previously sold by them, such a construction is not only more beneficial to the grantee, but more definite and certain than a grant of what was necessary for and attached to the mill. The former is susceptible of actual demonstration and proof, by fixed boundaries. The latter can be determined only by the varying opinions and imperfect judgment of men.

But does the explanatory clause in that deed embrace all the lands not previously sold by the grantors ? This raises a question of verbal construction, of no little difficulty. Eor the clause may be analyzed, and the words supplied which are not expressed, in two ways, without doing any violence to the language.

Thus, — "hereby meaning and intending to convey all lands and mill privilege (not heretofore sold by us) on the dam (which is) connected with said gristmill and privilege.”

Or, — " hereby meaning and intending to convey all the lands and mill privilege, (not heretofore sold by us) on the dam, (which are) connected with said gristmill and piivilege.”

So far as appears in the evidence reported, the parties themselves, by their subsequent acts and occupation, seem to have adopted the latter construction, treating the grant as embracing, — not all the lands and privilege on the dam, not previously sold, — but all the lands and privilege connected with the gristmill. This construction is most favorable to the plaintiff, and is in harmony with the instructions given to the jury. He therefore has no reason to complain; and it is unnecessary for us to express any opinion in regard to its correctness.

The plaintiff contended, at the trial, that if the passage way was not embraced in the deed from the Putnams, he had occupied it for a long time with their consent; that he was therefore a tenant at will; and that until the tenancy should be terminated by a notice to quit, according to the statute, the defendant, or his lessors, had no right of entry. But the jury were instructed " that, if the plaintiff was the tenant at will of the Putnams, that tenancy was terminated by the sale to Hussey; that the alienation of the estate changed the tenancy at will to a tenancy at sufferance.”

The plaintiff appears to have occupied with the consent of the subsequent owners, as much as of the Putnams, until the defendant took his lease for a term of years, in 1857. But the principle would apply to the last, alienation, as well as to the first. It is not claimed that the defendant ever gave such consent.

The statute in force at the time provided that "tenancies at will might he terminated by notice in writing served upon the occupant thirty days before the time fixed in said notice for the termination thereof.” Law of 1853, c. 39, § 1.

This statute, and the one which preceded it, requiring a longer notice, enabled a landlord to terminate such a tenancy, without entry therefor, or alienation. It does not provide that such tenancies cannot be terminated in any other way. And even if this is implied in tenancies at will under the statute, such tenancies at common law may be terminated in the same manner as before.

"If the landlord enters on the land and cuts down the trees demised, or makes a feoffment, or a lease for years to commence immediately, the estate at will is thereby determined.” 1 Cruise, title 9, c. 1, § 18. "It is an intrinsic quality of an estate at will,” says Shaw, C. J., "that it is personal, and cannot pass to an assignee; and that, by an alienation in fee or for years, the estate at will is ipso facto determined, and cannot subsist longer. This is a limitation of the estate which is incident to its very nature. When, therefore, it is determined by operation of law, it is determined by its own limitation, without notice.” Howard v. Merriam, 5 Cush., 563. And in Curtis v. Galvin, 1 Allen, 215, the same doctrine is stated by Bigelow, C. J. " The determination of an estate at will, by an alienation by the owner of the reversion, is one of the legal incidents of such an estate, to which the right of the lessee therein is subject, and by which it may be as effectually terminated, as by a notice to quit, given according to the requisitions of the statute.” McFarland v. Chase, 7 Gray, 462.

This might seem, at first view, to be in conflict with the case of Young v. Young, 36 Maine, 133. But that decision, if correct, does not apply to the case at bar. The tenant in that case was in possession under a parol lease, at an agreed rent. Except by special provision of statute, it would have been a valid lease from year to year. It was a tenancy at will by statute. And it is expressly declared in the opinion of the Court, that tenancies at will by the common law might be determined without notice to quit.

If the plaintiff was a tenant at will, it was by the common law. He occupied merely by the consent of the. owner, without paying or agreeing to pay any rent. -By the conveyance of the premises to the defendant he became a tenant at sufferance. Benedict v. Morse, 10 Met., 223. Such a tenant cannot maintain trespass quare clausum for a peaceable entry. Motion and exceptions overruled.

Appleton,.C. J., Rice, Cutting and Kent, <TJ., concurred.  