Cushing v. State
| Citation | 434 A.2d 486 |
| Parties | Charles R. CUSHING, et al. v. STATE of Maine, et al. |
| Decision Date | 24 August 1981 |
| Court | Supreme Judicial Court of Maine (US) |
Severson & Hand, Lynwood E. Hand, Houlton, for Great Northern Nekoosa corp.
Pierce, Atwood Scribner, Allen, Smith & Lancaster, Gerald M. Amero (orally), Portland, for all other appellees.
Lund, Wilk, Scott & Goodall, Martin L. Wilk, Sp. Asst. Atty. Gen. (orally), Augusta, for all defendants and State of Maine.
James E. Tierney, Atty. Gen., Rufus E. Brown, Kay R. H. Evans, Asst. Attys. Gen., Augusta, for defendants.
Before WERNICK, GODFREY, NICHOLS and ROBERTS, JJ.
In May 1973, the plaintiffs 1 brought an action for declaratory judgment in Superior Court, Kennebec County, pursuant to 14 M.R.S.A. §§ 5951-5963, seeking an adjudication of their rights and status as successors-in-interest to grantees of deeds from the State of Maine, between 1850 and 1875, conveying rights to cut timber and grass from the public reserved lots. Their suit was prompted by the so-called "Schepps Report," issued by the Department of the Attorney General in January 1973. That report expressed conclusions concerning several aspects of the State's rights and powers with respect to the public reserved lots, including the opinion that the rights conveyed under timber and grass deeds excluded certain sizes and species of trees, and the "distinct possibility" that these rights had expired since timber in existence at the time of the conveyance had all been cut.
The ensuing proceedings, which culminated in October 1980 with an order of remand from this Court, are described in greater detail in Cushing v. Cohen, Me., 420 A.2d 919 (1980). As we explained in that opinion, the defendants first filed a motion to dismiss the complaint, asserting the state's sovereign immunity as one of the grounds for dismissal. The defendants later filed an answer and counterclaim seeking a declaratory judgment converse to that sought by the plaintiffs. This responsive pleading stated that it was filed subject to, and without waiving, the motion to dismiss. The State of Maine was designated as a counterclaimant even though it had not been named as a party to the original action. No action was taken to have the State added as a party pursuant to M.R.Civ.P. 21. Subsequent pleadings filed by the plaintiffs avoided naming the State of Maine as a party defendant. Subsequent pleadings and amended pleadings filed by the State agencies continued to leave ambiguous whether the Attorney General was undertaking to make the State a party defendant and whether he intended to abandon the protection of sovereign immunity.
In October 1974 the parties agreed to submit the case to a referee, pursuant to M.R.Civ.P. 53. By stipulation, the parties narrowed the submission to two issues: whether or not the public lot cutting rights related only to timber in existence at the time of the grant and whether or not those rights related to all sizes and species of trees. They reserved all other issues 2 and entered into an Agreed Statement of Facts comprising over 1,000 pages and more than 250 exhibits. Two days of evidentiary hearings were also held. The Referee issued his report in May 1979, deciding both issues in favor of the plaintiffs. The Superior Court overruled the defendants' objections, accepted the Referee's Report and entered judgment for the plaintiffs as recommended by the Referee. The defendants appealed. 3
On that appeal, we vacated the judgment and remanded the case to Superior Court for proceedings to determine whether the State of Maine was a party defendant; to determine whether the State was an indispensable party and, if so, to take formal action to join the State as a party; and to determine whether the action was precluded by the State's sovereign immunity. Cushing v. Cohen, Me., 420 A.2d 919, 927-28 (1980).
On remand, pursuant to a stipulation by the parties, the Superior Court ordered the State of Maine to be joined as an indispensable party to the action. 4 In order to deal with the possible bar of sovereign immunity, the plaintiffs moved, pursuant to M.R.Civ.P. 41(a)(2), for voluntary dismissal of their complaint. The Superior Court granted the motion and further ordered "That the counterclaims of Defendants (including the State of Maine) shall remain pending for independent adjudication." The Superior Court then determined that sovereign immunity was not applicable to the counterclaims because the State had "affirmatively and voluntarily sought an independent adjudication," and again entered judgment in favor of the plaintiffs in accordance with the original report of the Referee. On December 22, 1980, the defendants filed the instant appeal from that judgment.
The issue of the State's sovereign immunity is no longer before us. The Legislature, by a Resolve approved on February 18, 1981, and effective immediately, gave its consent to this suit 5 and thereby waived any bar that may have been presented by sovereign immunity. Due to this action by the Legislature, we need not determine the validity of the Superior Court's determination that sovereign immunity was inapplicable to the action, and we express no opinion thereon.
Before we address the merits of the appeal, a brief history of the public reserved lots is in order. 6 Before Maine became a state, Massachusetts maintained a policy of reserving, from grants of its public domain lands, certain lots for named public uses, including the use of the ministry and the schools. 7 See Opinion of the Justices, Me., 308 A.2d 253, 270 (1973). When Maine became a state, the Articles of Separation, Item Seventh, required similar reservations to be made in all grants of unlocated land within Maine:
All grants of land, franchises, immunities, corporate or other rights, and all contracts for, or grants of land not yet located which have been or may be made by the said Commonwealth (of Massachusetts), before the separation of said District (of Maine) shall take place, and having or to have effect within the said District, shall continue in full force, after the said District shall become a separate State. ... and in all grants hereafter to be made, by either State, of unlocated land within the said District, the same reservations shall be made for the benefit of Schools, and of the Ministry, as have heretofore been usual, in grants made by this Commonwealth. ...
This requirement, as part of the Articles of Separation, was incorporated into the Maine Constitution. 8
In 1824, the Maine Legislature responded to this constitutional requirement by providing:
That there shall be reserved in every township, suitable for settlement, one thousand acres of land, to average in quality and situation with the other land in such township, to be appropriated to such public uses, for the exclusive benefit of such town, as the Legislature may hereafter direct.
P.L. 1824, ch. 280, § 8. 9 The Legislature also provided that as townships became incorporated, title to these public reserved lots would become vested in the inhabitants of the town. P.L. 1824, ch. 254. 10 Legal title to public reserved lots in unincorporated townships was held by the State, as a trustee. See Opinion of the Justices, Me., 308 A.2d 253, 269-70 (1973); Dillingham v. Smith, 30 Me. 370, 381 (1849).
As the State made grants from its public domain, the grantees took their land subject to these reservations for public uses, but the public reserved lots were often not "located," i. e., not partitioned from the township or tract out of which they were reserved. 11 Statutory procedures allowed the proprietors of a township to designate the actual metes and bounds of the reserved lot, and location could be accomplished by agreement between the State Land Agent and the proprietors or by judicial proceedings. 12 In 1850, the Land Agent was "authorized and required" to procure the location of the reserved lots in all townships and tracts where they had not already been located by the proprietors. P.L. 1850, ch. 196, § 3. Nevertheless, more than one-third of the public reserved lots were never located. 13 In townships where the public reserved lots are unlocated, the State is a tenant in common with the owners of the rest of the township. See Hammond v. Morrell, 33 Me. 300, 305 (1851); see also Mace v. Ship Pond Land & Lumber Co., 112 Me. 420, 92 A. 486 (1914).
From 1830 to 1850 the State tried various methods of managing the public reserved lots in the unincorporated areas in an attempt to deal with the widespread problem of timber trespass, i. e., theft of timber. In 1831, the Legislature put the State Land Agent in charge of the public reserved lots and directed him to "preserve the same from pillage and trespass." P.L. 1831, ch. 510, § 9. In 1842, responsibility for the public reserved lots was shifted to the County Commissioners, 14 and in 1845 they were authorized "to grant permits for cutting timber" on the public reserved lots in unincorporated townships in their counties, "not to exceed a permit for one six ox team on any one lot in each year." P.L. 1845, ch. 149. In 1848, after criticism of the manner in which the County Commissioners had managed the funds received from the sale of timber permits, 15 the Legislature transferred custody of the public reserved lots to special state agents, gave them authority to grant similar limited cutting permits, and provided that all income would be held in the state treasury. P.L. 1848, ch. 82.
In 1850, the Legislature enacted the law which gave rise to the conveyances with which we are now concerned. The State Land Agent was given care and custody of the public reserved lots "in all townships or tracts of land unincorporated or not organized for election purposes." 16 P.L. 1850, ch. 196, § 1. The act also provided:
The land agent is hereby authorized and directed to sell for cash, the right to cut and carry away the timber and grass from...
To continue reading
Request your trial
-
Hoglund v. Omak Wood Products, Inc.
...than the existing timber unless the words of conveyance clearly and unambiguously express the intent to include more. Cushing v. Maine, 434 A.2d 486, 496 (Me.1981). The Eberle Deed conveys "all of the timber of all species upon the following described land ... together with all timber that ......
-
Figliuzzi v. Carcajou Shooting Club of Lake Koshkonong
...935, 937 (1985) (easement lacks right to participate in profits derived from land; right to hunt and fish is a profit); Cushing v. State, 434 A.2d 486, 494-95 (Me.1981) (right to cut and take timber is a profit, not a mere easement); Evans v. Holloway Sand and Gravel, Inc., 106 Mich.App. 70......
-
McGeechan v. Sherwood
...rely on "extrinsic surrounding circumstances ... to prove conveyance of something not expressly included in [a] deed." Cushing v. State, 434 A.2d 486, 497 (Me.1981). The McGeechans failed in their burden of proving ownership by deed to that part of the 3. THE MCGEECHANS' CLAIM OF TITLE BY A......
-
Norton v. Town of Long Island, CUM RE-02-014
...that sovereign immunity is applicable to bar suits where title to real estate is at issue. See Cushing v. Cohen, 420 A.2d 919 (Me. 1980). Cushing involved the rights of owners of land certain unorganized townships to cut timber on public lots. Id. at 921. The suit was originally brought aga......