
    Stetson vs. Veazie.
    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.
    Where one having an easement in the land of another bounded upon a river, consisting of a right to land upon the shore and flats with boats, rafts, &c. enclosed the flats with a boom which rested upon them when the tide was out, claiming said shore and flats as his own, it would constitute a disseizin of the true owner; — but such act continuing for one year only, connected with the use of the easement afterward, could not be regarded as a continuance of the disseizin after the boom had been removed.
    This was a petition for partition of certain flats in Bangor, against persons unknown. Veazie, the respondent appeared and contested the seizin of the petitioner in a part of the land of which partition was prayed, claiming to be sole seised of that part —■ and upon a traverse of the seizin of the petitioner as alleged, issue was joined.
    It appeared on trial before Weston J. that on the 23d of August, 1803, one McGlathery conveyed by deed, the upland, contiguous to which were the flats in controversy, with “ all the privileges thereunto belonging as well by water as by land.” Which privilege, it was admitted, was. that of using the water and shore for the purpose of landing boats, lumber, &c. Wilder held the land till May, 1809, when all his rights passed to the defendant by purchase.
    To prove that Wilder disseised Stetson of his interest prior to July, 1806, the respondent called said Wilder, who testified, that he occupied the land and water in his own right — that he used the shore as a landing as he had occasion, for the deposit of lumber and for other purposes — that he used also the waters next the shore for his rafts, and that in 1804, he had a boom along the whole shore, to secure his lumber, which rested upon the flats, when the tide was out. That he considered he had the whole title there, and that no other person had any interest in said property, believing that such were the legal rights he derived from his deed; but upon being inquired of, said that he had no intention to invade or appropriate to his use, the property of others. He farther testified, that on one occasion while he occupied, in conversing with Stetson in relation to his purchase of McGlathery, Stetson said, that he, Wilder, had a legal but not a moral right. Stetson’s right to partition was admitted, subject to the easement aforesaid in the owner of the adjoining upland, unless it had been lost by the operation of the statute of limitations. It was also admitted, that the petitioner made an entry into the premises in July, 1826.
    On this evidence the jury found, that Wilder disseised Stetson of his interest, and upon that ground returned their verdict for the respondent — which the petitioner moved to have set aside and a new trial granted, as against law and evidence.
    
      Rogers and Starrett, for the petitioner,
    maintained that there was no sufficient evidence of a disseizin, and cited the following authorities : Pray v. Peirce, 1 Mass. 381 ; Stearns on Real Actions, 7 ; Poignard v. Smith, 8 Pick. 272 ; Utile v. Libbey, 2 Greenl. 242; Brown v. Gay, 3 Greenl. 126; 1 Salkeld, 246; 6 Johns. 197; 4 Kent’s Com. 482 ; 5 Pick. 138 ; Shumway v. Holbrook, 1 Pick. 114; Barnard v. Pope, 14 Mass. 434; 9 Johns. 163 ; 4 Kent’s Com. 487, 488.
    
      Allen and Abbot, for the respondent,
    contended, that the dis-seizin of the petitioner by Wilder, was fully proved. The same possession could not be expected of this property, from the nature of it, as of high lands —■ it being flats covered with water half the time. The acts of ownership were all that could be expected— he, Wilder, could not fence it — nor could he well do more than he did, unless he had covered it with a wharf. The possession was sufficient to give notice to every one of his claim. It commenced in 1804, and therefore in 1826, the plaintiff’s right of entry, when he attempted to exercise it, was gone. Of the whole evidence it was the province of the jury to judge, and their verdict ought not to be disturbed. Propr. Ken. Pur. v. Laboree, 2 Greenl. 281 ; Boston Mill Corp. v. Buljinch, 6 Mass. 229; Stearns on Real Actions, 11 ; Spring v. Cutts, 15 Mass. 135.
   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.  