Inhabitants of Eden v. Pineo

• Decision Date: 24 February 1911
• Citation: 108 Me. 73,78 A. 1126
• Parties: INHABITANTS OF EDEN v. PINEO.
• Court: Maine Supreme Court

78 A. 1126

108 Me. 73

INHABITANTS OF EDEN

v. PINEO.

Supreme Judicial Court of Maine.

Feb. 24, 1911.

Syllabus by the Court.

Report from Supreme Judicial Court, Hancock County, at Law.

Action by the Inhabitants of the Town of Eden against Flora Pineo. On report to the law court upon an agreed statement of facts. Judgment for defendant.

Action of debt, brought by the inhabitants of the town of Eden against Flora Pineo to recover the sum of $51)1.60, the amount assessed against the defendant as her proportion of the town, county, and state taxes for the year 1909 upon her real estate, being particularly described on the books of allotment and assessment of said Eden as four-fifths of Rodick's Island and buildings thereon. Plea, the general issue. An agreed statement of facts was filed, and the case reported to the law court for determination.

Argued before EMERY. C. J., and WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ.

John E. Bunker, for plaintiffs.

Charles B. Pineo, for defendant.

EMERY, C. J. In Frenchman's Bay, north of the village of Bar Harbor in the town of Eden, is a body of upland of about 70 acres in extent with buildings thereon. It has been known in Bar Harbor as "Rodick Island." but it is named upon the U. S. Coast Survey Chart as "Bar Island," and it is now called by either name. But it was included in the survey of the "Porcupine Islands" made in ITS." by Rufus Putnam for the commonwealth of Massachusetts, and upon his plan it bears the name "Bar Porcupine." It is something over 100 rods distant from the shore of Mt. Desert Island, measuring from mean high-water mark on each shore. It is connected with Mt. Desert Island by a bar consisting of clay, gravel, and rocks verisimilar to the general surface of the shores of both islands in the immediate vicinity. This bar is uncovered for about 12 hours out of each 24, so that teams and pedestrians can safely pass over.

Is this smaller island within the chartered limits of the town of Eden? It is conceded that it is not. unless it was included within the limits of the old town of Mt. Desert, from which the town of Eden was later set off. In the act incorporating the original town of Mt. Desert, finally passed February 17. 1789 (St. Mass. 1788, c. 75), the territory is described as follows: "The plantation called Mt. Desert together with the islands called Cramberry Islands, Bartlett's Island, Robertson's Island and Beech Island." No mention is made of what was then known as Bar Porcupine, nor of any other island. We have no evidence of the extent of "the plantation called Mt. Desert," and in the absence of such evidence we cannot assume that it comprised more than the island of Mt. Desert. Almost simultaneously with the incorporation of the town of Mt. Desert, but reaching its final passage a day earlier, was incorporated the town of Gouldsboro, with the following territory (after describing a tract on the mainland bordering on the east of Frenchman's Bay), "including Stave Island, Jordan's Island. Iron-Bound Island and Porcupine Islands (so called), Horn Island, Turtle Island, and Scooduk Island."

So far it would seem clear that the Legislature not only did not include the 70-acre tract in question within the town of Mt. Desert, but did include it within the town of Gouldsboro. Rufus Putnam, who was sent by the commonwealth to survey the "Porcupine Islands" in Frenchman's Bay, Included this tract in his survey and plan as being one of the Porcupine Islands. This was less than four years before the acts of incorporation. The survey and plan were official and presumably were known to the Legislature incorporating the two towns.

One avenue of escape from this conclusion is suggested, viz., that a body of land of the character, description, and situation of that in this case in tide waters, more than 100 rods from the main or a larger island, but connected with it by a bar submerged only half the time, is not a separate island, but is part of the main, or of the larger, island. No ease so holding is cited to us, and after diligent search we have found none. In Babson v. Tainter. 79 Me. 308, 371, 10 Atl. 63, 64, there was a question whether a two-acre parcel was an island or part of the main. The court said: "Here the parcel is described as containing about two acres, and though it consists mostly of rocks and ledges and is unfit for the habitation of man, it must be considered as having size and permanency enough to entitle it to the appellation...