
    Ebenezer C. Blake versus Solomon Ham.
    Where the title to separate and distinct parcels of land has become united in one person, by purchase from their various owners, and the purchaser after-wards conveys certain described portions of the whole, the rights of his grantees will depend upon the unambiguous language of their respective deeds, unaffected by the previous occupation of former owners, or by previous conversations or vague understandings.
    If a part of the premises demanded is a passage way, to the line of which the tenant is bounded, the demandant will be entitled to recover, the fee of the land being in him, notwithstanding the tenant may have an easement in the passage way.
    Reported from Nisi Prius, Cutting, J., presiding.
    Real action to recover a portion of lot No. 38 in the town of Houlton.
    The explanatory sketch, page 314, may be accurate enough to aid in understanding more readily the matters in controversy. The land claimed in the demandant’s suit is indicated by the lines B, A, D, C. The tenant disclaimed all east of the line E, E; but claimed the remainder, being H strip about three rods in width.
    
      The diagram is intended to represent the western portion of lot No. 38. In the year 1824, Amos Putnam, who owned the whole lot, conveyed to Leonard Wilson a part thereof, described thus : — "Beginning at the S. E. corner of lot No. 38, thence N. 77° W. 16 rods; thence N. 41° W. 14 rods, [see plan C to A] ; thence N. 13° E. to the Creek, [A to D] ; thence down the Creek to the line of No. 32; thence,” &c., — containing five acres, more or less.
    Subsequently, in the same year, said Putnam conveyed the residue of lot No. 38, on the east side of Meduxnekeag stream, to Jay S. Putnam, which was called the "Mill lot.”
    In 1825, Wilson conveyed to Peleg Lander the westernmost part of his lot, describing it thus : — "beginning * * * on the south line of the lot I purchased of Amos Putnam, [on plan B] ; thence N. 41° W. nine rods to a stake [A] ; thence N. 13° E. four rods to the Creek [D] ; thence,” (to Gr and to B, as indicated by the plan.*)
    On May 19th, 1834, said Lander conveyed to Edward Kelleran the western part of his lot, beginning on a line nine feet west of the west end of his dwellinghouse (line I, K, on the plan) "containing one acre, more or less.”
    Kelleran also purchased the mill lot, described in the deed before mentioned of Amos Putnam to Jay S. Putnam. In 1852, Eufus Mansur obtained Kelleran’s title to both lots. Lander had before that time released to Mansur the part of the premises conveyed to him by Wilson, which he had not before conveyed to Kelleran.
    Both parties concur that Mansur then had the title to both lots. On the 16th of May, 1857, he conveyed the two tracts to Henry Sincock, describing them thus : — "the following described parcels of land, being parts of lots numbered thirty-eight on the east side of Meduxnekeag Creek in the village of said Houlton; to wit: that parcel of land formerly occupied by Peleg Lander as a residence, and that parcel adjoining the same now occupied by my store, and bounded as follow?: — "beginning on the west line of Ingersoll’s store lot, and on the south-west line of the said Lander lot; thence north, forty-one degrees west, nine and •J-0% rods, to land belonging to the mill privilege of said Mansur ; thence north 13° east, four rods to the creek; thence down said creek to the said west line of the Ingersoll store lot; thence south 16° west, on the said west line twenty-eight rods to the place of beginning.” Sincock conveys by this description to one Lovering, and Lovering to the demandant.
    In the same deed of Mansur to Sincock, the mill lot is thus described, "also all that part of the land and mill privilege lying west of the passage way, which is reserved in the partition between Edward Kelleran and John Lovering, for a particular description of which reference is made to the registry of deeds, &c.; and west of the west line of the parcel of land hereinbefore described, and which was conveyed by Lysander Putnam and Jay S. Putnam to Edward Kelleran, as per their deed dated Nov. 21, 1834, and recorded, &o., and bounded as follows, to wit: — beginning on the said creek at the north-west angle of the first above described parcels of land; thence up said creek to the south line of said lot numbered thirty-eight; thence easterly on said south line to the west line of said reserved passage way; and thence northerly on said west line and the west line of said first described parcel of land to the place of beginning, with the mills thereon, together with all my right, title, and interest in the reserved passage way, dams, and right of water belonging to said privilege.”
    The description in the deed, Sincock to Ham, the tenant, is as follows, viz.: — "beginning on the south line of said lot No. 38, and on the lower or west line of a one rod passage way as laid out by P. P. Burleigh near the bank of the stream; thence northerly on the lower line of said passage way to the west line of the store lot formerly owned and occupied by Edward Kelleran, which was conveyed to me in the aforementioned [deed] by said Mansur; thence continuing northerly on said west line to the Meduxnekeag stream; thence up said stream to the south line of said lot No. 38; and thence easterly on said south line to the place of beginning, together with all my right, title, claim, and interest in said reserved passage way, dam, and right of water belonging to said privilege.
    
      
    
    In the deed of Kelleran to Frothingham and others, given in 1835, the south part of the land between the lines E, F, and I, K, was reserved; being the land on which his store stood.
    . Evidence was introduced by the tenant, subject to objection, to show that for a period of more than thirty years the space between Kelleran’s store , and the mill had been used for piling lumber thereon, and as a passage way to and from the mill; that except this, there was no other way of getting to the mills in front.
    
      
      Leonard Pierce testified that he drafted the deed of Aug. 27th, 1859, from Sincock to Ham; thinks it was not copied from another deed; does not recollect whether the deed from Mansur to Sincock was present or not.
    Witness further testified: — "I thought the line of the Kelloran store lot, was near the top of the bank, and supposed, that by following the lower lino of the passage way, it would not strike the west lino of the store lot, until it came near the top of the bank, which is near the store. I had no idea of any other west line of the store lot but that one.”
    The case was argued by
    
      Granger & Ilerrin, for the demandant, and by
    
      Blake & Garnsey, <& Burnham, for the tenant.
   The opinion of the Court was drawn up by

Appleton, J.

On the sixth day of May, 1857, Rufus Mansur was the undisputed owner of the premises claimed by both parties, and, being such owner, on the same day conveyed them to Henry Sincock. As the title was thus perfect in him, he and his grantee might convey in such terms as they should deem expedient, and the rights of the parties deriving their titles from and through them are to be determined by the language used in the conveyances, under which they respectively claim.

The deed from Mansur to Sincock conveys two tracts of land, separate and distinct, one of which is bounded by the other.

The first described tract embraces by course and distance, length of line and monument, the premises in controversy, and is conveyed in the same language by Sincock to Love-ring and by him to the demandant.

The second tract, in the deed from Mansur to Sincock, is land and a mill privilege " west of the west line of the parcel of land herein before described,” and, after referring to previous deed, and to other lines, the deed concludes— " thence easterly, on said south line, to the west line of said reserved passage way and thence northerly, on said west line and the west line of the said first described parcel of land, to the place of beginning, with the mills thereon,” &c. It is apparent, therefore, that there can be no possible conflict of line between these different tracts. Each are described in clear and unmistakeable terms, and the second is bounded by the first, so that if it is possible to ascertain the boundaries of the first, those of the second tract are necessarily bounded thereby.

On the 27th Aug., 1859, Sincock conveyed to the tenant " one half in common and undivided of the following described real estate, situated on a part of lot numbered, thirty-eight, in said Houlton, being the mills and privileges conveyed to me by Rufus Mansur, by his deed dated May 16, 1859, and bounded as follows, to wit: — beginning on the south line of said lot numbei’ed thirty-eight, and on the lower or west line of a one rod passage way, as laid out by P. P. Burleigh, near the bank of the stream, thence northerly, on the lower line of said passage way, to the west line of the store lot formerly owned and occupied by Edward Kelleran, and which was conveyed to me in the aforementioned (deed) by said Mansur, thence continuing northerly, on said west line, to the Meduxnekeag stream, thence up said stream to the south line of said lot numbered thirty-eight, and thence easterly, on said south line, to the place of beginning, together with all my right, title and interest in said reserved passage way, dams and right of. water belonging to said privilege,” &c.

This deed purports to convey only the title conveyed by Rufus Mansur, by deed of May 16, 1859. If so, it is not in conflict with the claim of the demandant, for the second tract, described in his deed to Sincock, is bounded by the first.

It appears that, on May 19, 1834, Peleg Lander conveyed a part of his lot (being part of lot 38) to Edward Kelleran, being less than half an acre, upon which he had built and occupied a store, and that, on Nov. 17, 1835, Kelleran conveyed the same to Henry Frothingham and others, " excepting therefrom the lot on which my store now stands, &c., beginning at a point eight feet west of a line drawn parallel with the west side of said store, and thence running northerly on a line parallel with and eight feet from said store, to a point eight feet west of the north-west corner of said store,” &c.

It is urged that " the store lot, owned and occupied by Edward Kelleran,” is the lot as excepted in the deed last referred to, and not the store lot, as occupied before and as originally conveyed.

But this construction fails to answer the calls of the tenant’s deeds. The passage way, as laid out by Burleigh,, is not in dispute. The lower line of the passage way does not touch the Kelleran store lot, as claimed by the tenant, nor does its west line touch the Meduxnekeag stream.

On the other hand, the passage does not touch the Kelleran store lot, as claimed by the demandant, and its west line runs to the Meduxnekeag stream.

" The store lot, formerly owned and occupied by Edward Kelleran,” is the one " which was conveyed to me (Sincock) in the aforementioned (deed) by said Mansur.” But the lot thus conveyed was the lot conveyed by Lander to Kelleran, not the lot as described in the exception in the deed of the latter to Frothingham. Mansur had, or purported to have, the original Kelleran title, and might, if he chose, convey it. That he did so, is clear from the language of his deed. Equally clear is it, that he neither conveyed, nor intended to convey the Kelleran lot as excepted.

The title to the premises conveyed to both parties having become vested in Mansur, and, after his conveyance, in Sincock, the previous occupation of either portion of the premises becomes immaterial. The rights of the parties must depend upon the plain and unambiguous language of the deeds under which they respectively derive their titles, and not upon previous conversations or vague expectations or understandings.

The fee in the land is to be regarded as distinct from an easement in the same. The fee may be in one and the easement in another. The demandant, having the fee, is entitled to recover, notwithstanding the tenant may have an easement in the passage way for the nse of the mill. But, of the rights, of either party to the passage way, it is not necessary to give an opinion in this case.

Defendant defaulted.

Tenney, C. J., Rice, Cutting, May and Kent, JJ,, concurred.  