The Providence news. (Providence [R.I.]) 1891-1906, 1899-02-17
He FAILED TO
FURNISH ice.
Now Mrs. Fisk Has Secured
Judgment Against Brayman
FOR POSSESSION OF PREMISES
Plaintiffs Father Made Reservation in the
Deed Of the Property.
APPELLATE COURTS CONSTRUCTION.
Its That the Reservation CreaIed a LeasehoId
Interest. and That Hsr Action Of Trespass
and ElsOimsni Could Be Maintained.
APPELLATE COURTS CONSTRUCTION.

Evelyn Fisk, by a decision handed
down by the appellate court today gets
Judgment for possession, 10 cents dam
ages and costs in her ejectment suit
against James Il. Brayman to recover
possession OF certain icehouses located
near the Belleville South Pond in North
Kingston. The case was originally be-
gun in the district court of the second
judicial district and came to the appel
late court on an agreed statement of
facts.
1t was shown that William f.. Pierce,
the plaintiffs father in his lifetime.
leased certain premises to the defend
ant 10 be used for icehouses, i'm consid-
GRAFTON that said defendant furnish
him and his family with Ice The de-
fendant occupied the premises and fur
nished Ice 20 Pierce during his lifetime.
ON August 49, 1882, the premises on
which the icehouses were situated were
conveyed TO John Maglone by deed from
Pierce, the grantor making certain re-
servations. among which was the fol-
lowing also the leasing OF icehouses
now standing on the above granted
premises Gas | now have) for % years
Meaning to convey all of the Be.leville
estate now owned by me except the
above named Oak Hill Min estate OF
about Ia acres, the North Dam Pond.
the privilege of dirt and gravel for re-
pairing dams, the leasing OF icehouses
as aforesaid. and gardens as now used
for the Narragansett mill"
William Il. Pierce, died i'm November.
1889, and from and after that time. the
defendant refused to furnish the plain
tiff with ice. Under the will of William
Il. Pierce as modified was made the
residuary legatee. and is also tenant
in common with the other heirs OF the
real estate.
Judge Tillinghast. who writes the op-
inion OF the court, says: The question
TO be decided under the facts as thus
stated, is whether the plaintiff can
maintain her action of trespass and
ejectment. The defendant contends that
the plaintif shows no legal title to the
premises in question and no right of
entry thereon; that the reservation in
question simply amounts 10 a reser-
walton OF the rent of the ice houses,
which is an incorporeal hereditament
and hence, that the action will not lie
The plaintiff contends on the contrary.
that by reason of the reservation i'm
question, she as landlord has right of
entry upon the premises and also. that
the reservation of the ice houses should
be held TO include the use of the land
necessary for the enjoyment thereof.
The plaintiff further claims that the
statute general laws II. H. chap. pa.
sec. 49D does not make any particular
estate in the premises necessary in or
der TO maintain such an action"
Judge Tillinghast says that the case
turns upon the construction of the deed
If IL be held that the effect thereof was
simply 10 reserve the rent OF the ice
houses. as contended by the defendant.
the action could not be maintained. as
there would be no corporeal heredita-
ment the plaintiff could be put in pos
session. nor any right of entry upon
the premises. If. however, the effect OF
the reservation was to except from the
operation of the deed the ice-houses
and the land on which they stand for
twenty-five years, thereby creating a
leasehold interest. the plaintiffs action
could be maintained.
The opinion OF the court is that the
reservation was of the ice-houses and
the land on which they stand, and that
the action OF trespass and ejectment
did lie.