Morse v. Marshall.

WILLIAM MORSE VS. CALVIN MARSHALL.

A deed of a water privilege, having a lower and an upper dam, "also all the land which I the said grantor own that said first mentioned dam flows, (reserving all the wood except what stands on said dam,) together with the right to flow all the land that said dam as it now stands will flow; also all the land which the second mentioned dam flows, (reserving the wood,) together with the right to flow all the land that said dam as it now stands will flow," conveys the land which the dam would flow if in use, although at the date of the deed the dam was not in use, and the water flowed within the banks of the stream and through the waste way, as freely as if no dam had been there.

TORT in the nature of trespass quare clausum fregit. At the trial in the superior court, before Wilkinson, J., the jury returned a verdict for the defendant, under directions so to do; and the plaintiff alleged exceptions. The case is stated in the opinion. E. Ames, for the plaintiff.

E. H. Bennett, for the defendant.

GRAY, J. The plaintiff claims title under a deed made in 1833, by Calvin Marshall, (who then owned the premises and the adjoining land on both sides,) with the usual covenants of warranty, of a water privilege in Easton, having two dams, one about eight rods below the other: "Also all the land which I, the said Calvin Marshall, own that said first mentioned dam flows, (reserving all the wood except what stands on said dam,) together with the right to flow all the land that said dam as it now stands will flow; aiso all the land which the second mentioned dam flows, (reserving the wood,) together with the right to flow all the land that said dam as it now stands will flow, also the right to dig, make and use a watercourse immediately from the upper dam to the lower dam, to be finished four feet wide across my land." The plaintiff introduced evidence, which there was nothing to contradict, tending to show that when this deed was delivered no water was held or set back by either dam, but the brook flowed in its natural channel, which was three or four feet wide; and that a quantity of wood had grown up on the land formerly covered by the upper pond, and had been cut off by the defendant since making this deed. Wood has since grown up there again, and been cut by the defendant; and

Morse v. Marshall.

this action is brought against him for trespassing on this land and cutting down the wood.

The only question presented to us by the bill of exceptions is whether this deed conveyed "the land covered by the water raised by the upper dam to the height at which the dam stood at the date of the deed," or only a right to flow that land. And it seems to us very clear that it conveyed the land as well as the right to flow. The reservation of the wood to the grantor shows that the land on which the wood stood was intended to be granted. If only the right to flow had been granted, no such reservation would have been necessary, for the wood would have remained, together with the fee of the land, in the grantor. The wood did not grow in the bed of the brook, but upon the land on each side, which had been flowed when the mill pond was full. The grant of "all the land which the dam flows" is to be measured by the land flowed by the dam when in use, not limited to the land over which the brook ran when the dam flowed no land at all. The additional grant of "the right to flow all the land that said dam as it now stands will flow" is not by this construction rendered inoperative; it still gives the right to flow to the utmost limit of that land, notwithstanding any incidental injury caused by the water to adjoining lands of the grantor. There is nothing inconsistent with this view in the further grant of the right to make a watercourse from the upper dam to the lower; for the shortest way from the one dam to the other is across land the title in which, upon any construction, remained in the grantor. Exceptions sustained.

McPartland v. Read & another.

JOHN MCPARTLAND vs. ELIJAH R. READ & another.

If mortgaged personal property is delivered to and kept by an agent of the mortgagee, this is equivalent to a delivery to and possession by the mortgagee himself.

A tortious taking of chattels with intent to apply them to the use of the taker or some other person than the owner is a conversion.

One who is present at a tortious taking of chattels, directing and assisting therein, is liable for a conversion, although he acted as agent for a third person.

TORT to recover for the conversion of certain articles of house. hold furniture.

At the trial in the superior court, before Putnam, J., it appeared that, on the 9th of December 1863 Samuel B. Cook executed and delivered a mortgage of the articles in controversy to the plaintiff, and to avoid the necessity of recording the mortgage it was proposed by Cook to put the furniture in one room of the house in which he lived, and lock the door, and deliver the key to William D. Whiting, who owned the house, that he might keep possession of the mortgaged property till Cook should pay to the plaintiff the debt secured by the mortgage. This being assented to was accordingly done; and Cook shortly afterwards moved from the house, and the key of the house was also delivered to Whiting. After this had been done, and before the mortgage had been recorded, the furniture was attached by the defendant Read, who was a deputy sheriff, on a writ against Cook, and was subsequently sold by him on the execution which was obtained in the suit. The other defendant, Foque, acted as the agent of the attaching creditor, in directing and assisting in the attachment. The plaintiff made a due demand on Read for the amount due to him and secured by his mortgage.

Whiting was called as a witness, and testified that Cook wished to put the furniture into his hands in order that the mortgage need not be recorded; that he was to keep it for the plaintiff till Cook paid the debt, and in case Cook paid the debt then the furniture was to be redelivered to him. Read testified that Foque went with him and pointed out the property to him and directed him to attach it, which he did.

McPartland v. Read & another.

The defendant requested the court to instruct the jury that upon the facts and testimony the plaintiff was not entitled to recover, and that there was no such delivery of the goods to the plaintiff and retention of them by him as would entitle him to recover; and that there was no sufficient evidence that Foque took the property and converted it to his own use.

The judge declined so to rule, and instructed the jury that if Whiting took and retained the possession at Cook's request as the plaintiff's agent for the plaintiff's sole benefit, it was sufficient; but if he acted as bailee simply, or as agent of both parties, and was not to deliver the goods to the plaintiff except upon some contingency, then he was not the plaintiff's sole agent, and there was no sufficient delivery and retaining of possession and that if Foque went with Read, as agent of the attaching creditor, and pointed out the property and directed Read to attach it, and Read attached it at Foque's request and in his presence, Foque would be jointly liable with Read.

The jury returned a verdict for the plaintiff, against both defendants; and they alleged exceptions.

J. Brown, for the defendants, cited Hewett v. Swift, 3 Allen, 424; Johnson v. Couillard, 4 Allen, 446; Woodbury v. Long 8 Pick. 543; Muggridge v. Eveleth, 9 Met. 233; Fairbank v. Phelps, 22 Pick. 535; Gen. Sts. c. 151, § 1; c. 123, §§ 62, 63. C. I. Reed, for the plaintiff.

BIGELOW, C. J. These exceptions are groundless. 1. The evidence of delivery of the chattels included in the mortgage, and of the retention of possession of them by the mortgagee, was plenary. Delivery to and possession by an agent are the same in legal effect as if made to and held by the principal. The agency was clearly proved.

2. So was the evidence of the conversion of the property. Every tortious taking with intent to apply chattels to the use of the taker or some other person than the owner is a conversion.

3. Both defendants were liable. It was not necessary in order to charge them to show that each actually participated in seizing and removing the property. It was sufficient to prove that both

Commonwealth v. Lincoln.

were present, one inciting or directing the wrongful taking, and the other obeying the order and carrying it into effect. Both were principals in the conversion.

Exceptions overruled.

COMMONWEALTH US. JACOB N. LINCOLN.

A person who obtains money upon a mortgage of personal property which he falsely represents that he owns may be convicted of obtaining money by false pretences, under Gen. Sts. c. 161, § 54.

An indictment for obtaining money by false pretences may be sustained which simply alleges the obtaining of "forty-six dollars of the money of" the person defrauded, without setting forth that it was in coin, or bank bills, or United States treasury notes. An indictment which alleges, in proper form, that the defendant falsely represented that he owned certain personal property, with intent to obtain a loan of certain money from another, and that he offered to mortgage the same as security for the money, and that such other person, believing the representations to be true, by reason thereof lent the money to the defendant, in consideration of the mortgage, sufficiently shows that the money was lent by reason of the false pretences; and the averment that it was in consideration of the mortgage is not inconsistent therewith.

INDICTMENT for obtaining money by false pretences. The material parts of the indictment were as follows:

"The jurors for the said commonwealth on their oath present, that Jacob N. Lincoln of, &c., on, &c., at, &c., unlawfully, knowingly and fraudulently designing and intending, by the false pretences hereinafter named and set forth, to injure and defraud one Matilda K. Shepard, feloniously, unlawfully, knowingly and designedly did falsely pretend to said Matilda K. Shepard that a certain covered wagon which he the said Jacob N. Lincoln then and there had in his possession was then and there the property of him the said Jacob N. Lincoln, and was then and there owned by him the said Jacob N. Lincoln, with intent then and there thereby to obtain from said Matilda K. Shepard the sum of forty-six dollars, of the money and property of her the said Matilda K. Shepard, which she then and there had in her possession, upon a mortgage and pledge of said covered wagon to be then and there made by said Jacob N. Lincoln to said Matilda K. Shepard, and which said Jacob N. Lincoln then and