Conant v. Jordan

• Decision Date: 27 October 1910
• Citation: 107 Me. 227,77 A. 938
• Parties: CONANT et al. v. JORDAN et al.
• Court: Maine Supreme Court

77 A. 938

107 Me. 227

CONANT et al.

v. JORDAN et al.

Supreme Judicial Court of Maine.

Oct. 27, 1910.

(Syllabus by the Court.)+++++

Report from Supreme Judicial Court, Cumberland County.

Bill by Frederick O. Conant and others against Edward D. Jordan and others. On report to the law court under a stipulation. Bill dismissed.

Bill in equity brought by Frederick O. Conant, Alphens G. Rogers, and the Great Pond Club, a corporation organized and existing under the laws of Maine, against Edward D. Jordan and 10 others, wherein, in substance, the plaintiffs claimed to be the owners of a certain tract of land situate in the town of Cape Elizabeth, "together with certain waters thereon, all containing 250 acres more or less, known as the Great Pond property," and praying that the defendants be enjoined "from entering upon the complainants' said lauds, or upon said pond, from fishing in said waters, from shooting from said waters or from complainants' lands, from trespassing upon complainants' said property in any manner whatever, and from asserting or maintaining any claim adverse to the estate of complainants in said property or to their exclusive right to the use of said pond for all purposes," and that a final decree be entered "adjudging that complainant Conant and the other persons herein named as part owners with him are the absolute owners in fee simple of said lands, including the said pond and the land thereunder, and the exclusive use of said pond and the waters thereof for all purposes." The defendants filed an answer, and the plaintiffs filed the usual replication.

The cause was then heard before the justice of the first instance on bill, answer, and evidence, and at the conclusion of the evidence the cause was reported to the law court under the following stipulation:

"The parties consent and request that the foregoing case be reported to the law court for determination upon the pleadings, the admissions, and agreements of the parties, and so much of the evidence as is admissible by law or under the agreements and admissions of the parties. They further consent and request that the court shall exercise jury powers and determine in this proceeding all questions of law and fact necessary for the determination of the controversy between the parties; all question whether the procedure should be at law being expressly waived."

In relation to the size of the pond in the case at bar, the fourth paragraph of the plaintiffs' bill alleges that: "Situated upon said tract of land and lying entirely within it is a small body of water now called Great Pond, which is about 200 rods in length, about 125 rods in width, and covers about 175 acres of said tract."

The case is stated in the opinion.

Argued before EMERY, C. J., and SAVAGE, PEABODY, SPEAR, CORNISH, and KING, JJ.

Payson & Virgin and Jed F. Fanning, for plaintiffs.

Wilson & Bodge, for defendants.

SAVAGE, J. This is a bill in equity praying for an injunction. The plaintiffs claim to be the owners of Great Pond in the town of Cape Elizabeth, of the soil underneath it, and of lands adjoining it, and they seek to enjoin the defendants from entering upon the pond, and from fishing and shooting upon it The defendants claim that Great Pond is a public pond, upon which the public has the right of free fishing and free fowling. This is the issue.

Great Pond contains more than 10 acres, and comes within the terms of the Ordinance, or Body of Liberties, doclared by the General Court of the Massachusetts Bay Colony in 1041, as amended by the ordinance of 1047. This ordinance is commonly called the Colonial Ordinance of 1641-47. The ordinance was not merely an enactment. It was a declaration of existing claimed rights and liberties. Com. v. Alger, 7 Cush. (Mass.) 53.

Among the rights so declared was the one that "every inhabitant that is an householder shall have free fishing and fowling in any great ponds * * * within the precincts of the town where they dwell, unless the freemen of the same town or the General Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others' propriety without their leave." In 1647 the ordinance was amended so that towns were forbidden to appropriate "to any particular person or persons any great pond containing more than ten acres of land," and also providing that "for great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass on foot through any man's propriety for that end, so they trespass not upon any man's corn or meadow." And from that time to this, in the Massachusetts Bay Colony, and wherever else the ordinance has been in force, ponds containing more than 10 acres are deemed to be "great ponds." They are public ponds. The state holds them, and the soil under them, in trust for the public. There can be no private ownership of them, even by prescription. The public, in the absence of statute regulation, have the unrestricted right to fish and fowl upon them, and to make other uses of them, like cutting ice, provided that they can reach the pond without trespassing "upon any man's corn or meadow." These are rights which were not enjoyed under the common law of England. The ordinance was an assertion of new rights, and was subversive of the common law.

At the time this ordinance was adopted, none of the territory now embraced within the state of Maine was a part of, or in any way connected with, the Massachusetts Bay Colony. Therefore the ordinance as a legislative or declaratory act did not then apply to this territory. Nor has this ordinance been extended to Maine by any legislative act. Rather, it has been declared to be a part of the common law of this state. It has been judicially adopted, not in the sense that the court extended it to this state, but that the court found it extended by the public itself, as the expression of a public right, so acted upon and acquiesced in as to have become a settled, universal right. And it has been extended through all the parts of the state. Barrows v. McDermott, 73 Me. 441, and many other cases cited therein.

Although these views are not controverted in this case, it is thought best to state them, in order that the precise point in controversy may be the better understood. The plain-tills, not denying that the Colonial Ordinance of 1641-47 is in force in Maine, and that Great Pond is within the terms of the ordinance as now interpreted, say that the ordinance does not apply, because prior to the adoption of the ordinance Great Pond and the lands around it had passed into private ownership, and have ever since remained in private ownership. They say that in 1641 the English common law was in force in Maine; that by the English common law the pond and the soil under it then belonged to private individuals; that private titles to ponds were in terms exempted from the operation of the ordinance; and, further, that the General Court of the colony by which the ordinance was adopted was prevented by "the fundamental limitations of legislative power" from taking, by means of the ordinance, privately owned ponds for public use without making just compensation therefor. It may be said again in passing that the adoption of the ordinance by the Massachusetts Bay Colony, of course, did not, of itself, affect any pond in Maine. It was extraterritorial as to them. But that is not important, since the same objections may be made to the extension later of the principles of the ordinance as a part of the common law of Maine, over those ponds in Maine which were private at the time of the extension. If the doctrine, "Once private, forever private,", is to prevail in the one case, it ought to in the other.

We think the plaintiffs' contention should not prevail. In the first place, it may well be doubted whether the plaintiffs have shown a title to the pond beginning prior to the Colonial Ordinance, and continuing unbroken to the present time. It is not denied that Great Pond is within the limits of the Great Patent of New England by which King James I in 1620 conveyed to the Council of Plymouth for New England all of the American continent between the fortieth degree and the forty-eighth degree of north latitude, nor that it was included in the grant from the Plymouth Council to Robert Trelawny and Moses Goodyear, December 1, 1931. This is the beginning of the plaintiff's title, as claimed. We do not stop to notice technical objections to this or any other ancient grant. We notice, however, that prior to the Trelawny grant the Council of Plymouth had already issued two patents, including the land which the Trelawny patent covered, one to Sir Ferdinando Gorges and John Mason, in 1022, and one to John Dy and others in 1631, for the Province of Lygonia. These conflicting grants led to prolonged contests between the proprietors, and threw much doubt and uncertainty upon the validity of the titles to private grants. There is evidence that Trelawny himself had doubts about the validity of his title, and after his death his heirs appear to have abandoned the claim. However, in 1648 Robert Jordan, executor of the will of John Winter, a creditor of Trelawny's, obtained a judgment of the Lygonia Assembly, by which he was authorized to retain possession of the Trelawny lands until redeemed by Trelawny's executors. And he and his successors have retained possession until now.

While the plaintiffs have undoubtedly a valid title to all the estate claimed by them, the pond and soil underneath excepted, we think that upon the evidence there is considerable doubt whether their present title originated in Trelawny before 1641, the year the ordinance was adopted, or in judgments, confirmations, and prescription after that date. We do not decide this question. We prefer to rest our decision of the case upon another point.

We will assume that the title of Trelawny...