Fay v. United States

• Decision Date: 21 April 1913
• Docket Number: 966.
• Court: U.S. Court of Appeals — First Circuit
• Parties: FAY et al. v. UNITED STATES.

204 F. 559

FAY et al. v. UNITED STATES.

No. 966.

United States Court of Appeals, First Circuit.

April 21, 1913

John L Hall, of Boston, Mass. (Edmund S. Kochersperger, of Boston Mass., on the brief), for plaintiffs in error.

Asa P French, U.S. Atty., of Boston, Mass. (William H. Garland Asst. U.S. Atty., of Boston, Mass., on the brief), for the United States.

Before PUTNAM and DODGE, Circuit Judges, and ALDRICH, District Judge.

ALDRICH District Judge.

We are concerned here with a writ of entry in which the United States demands possession of a certain tract of shore land situated at Woods Hole, in Falmouth, Mass.

Since 1871 there has been a station of the United States Fish Commission at Woods Hole, and work incident to such an establishment has been carried forward there. At the station there has been a large residence building, which serves as summer headquarters for the Bureau of Fisheries. There is a hatchery building, which includes a biological laboratory; and the work is the cultivation of cod, flat fish, and lobsters, and the study of problems connected with the fisheries of the coast. There are wharves, docks, a coalhouse, and a reservoir. There are also at this station two regular steamers, a steam launch, small boats, and an auxiliary steamer.

In 1882, Joseph S. Fay, who was a wealthy man and owner of considerable land on the shore and thereabouts, conveyed to Charles F. Choate and J. Malcolm Forbes, trustees, a certain parcel of narrow shore land particularly described, which they were to hold primarily for the use of the United States Commission of Fish and Fisheries, under the general direction of the United States Commission of Fish and Fisheries, and, secondly, for the use of such other departments of the United States government as might from time to time during the continuance of the trust be designated by the Secretary of the Treasury, with authority, upon request of the United States Commissioner of Fish and Fisheries, or of the Secretary of the Treasury, to convey the same to the United States. The conveyance and trust were subject to a proviso in the following words:

'Provided, however, that if hereafter the premises hereby conveyed are not used for the purposes of the said Commission of Fish and Fisheries, nor by the United States, the same shall revert to the said Joseph S. Fay, his heirs and assigns.'

A perpetual right of landing for Mr. Fay was reserved to himself and his heirs.

In 1883 the trustees conveyed the land to the United States, subject to the same proviso in respect to reversion.

The grant was a donation or gratuity, and was for a public purpose; and we have no doubt of the power of the government to receive and hold property thus donated, and to maintain suits for the protection of its rights.

It must be observed that the terms of the grant are explicit, and that the reservation is in the broadest possible language, in that it fixes no time limit in respect to nonuser operating as a reversion; and the language with respect to the kind of uses is equally broad:

'Not used for the purposes of the United States Commission of Fish and Fisheries nor by the United States of America.'

It was unquestionably open to the United States, under the broad language quoted, to devote the land to any kind of useful public purposes; but the government's only contention is that it has been used in connection with the fisheries station, and again here the language is very broad:

'Used for the purposes of the United States Commission of Fish and Fisheries.' It does not express buildings or wharves or structures of any kind; and we think it follows that the parties contemplated any beneficial use, either for structures or incidental, auxiliary, beneficial uses.

We accept the established rule that grants of this character should be liberally construed, with a view of upholding the purpose of the grant, as well as the proposition that, upon questions of reversion or forfeiture in respect to conditions subsequent, the rule of strict construction obtains.

Under these rules of construction, the government had a fair and reasonable question for the jury upon the evidence in respect to active, substantial, beneficial uses. It is true the land has not been used for building purposes, or for permanent structures; but the uses were such practical, incidental, beneficial uses as are often applied to open land connected with public and private structures and enterprises.

At the trial considerable importance was attached to the protective features of this narrow strip of shore land as bearing upon the question whether the government had used it for the purposes of the Fish Commission establishment within the meaning of the...