Lapish v. President of Bangor Bank

• Decision Date: 01 June 1831
• Citation: 8 Me. 85
• Parties: LAPISH v. THE PRESIDENT & C. OF THE BANGOR BANK
• Court: Maine Supreme Court

8 Me. 85

LAPISH v. THE PRESIDENT & C. OF THE BANGOR BANK

Supreme Judicial Court of Maine, Penobscot

June, 1831

THIS was a writ of entry to recover an undivided portion of an acre of land at Budge's point in Bangor, adjoining Penobscot River, and extending to low-water mark; in which the demandant counted on his own seisin, and a disseisin by one William M'Glathry. The only question at the trial which was had before the chief justice, was upon the demandant's title to the flats; which he claimed under a deed from the Commonwealth of Massachusetts to Stetson French and Lapish, as assignees of James Budge an original settler; and which the tenants claimed under a prior deed from Budge to M'Glathry. The description in each of the deeds is recited hereafter in the opinion of the court. The tenants offered to prove that the tide at this place ordinarily rises sixteen or eighteen feet; that the water is so fresh as to be generally used by mariners as any other fresh water; that the flats are about eight rods wide; that the bank is elevated from three to five feet above the ordinary high-water mark; and is of solid earth; that at high water, vessels, boats and rafts have constantly passed over these flats; and that no person has ever been forbidden to take fish there. All which the demandant conceded. The tenant offered in evidence the Waldo patent, the Massachusetts charter granted by William and Mary, and the act incorporating the town of Bangor. He also offered the deed of the Commonwealth conveying to Henry Knox the township of Bangor, except a hundred acres reserved to each settler; for the purpose of disproving both the title and seisin of the demandant. But as the tenant claimed nothing under this deed the chief justice rejected it; and upon the whole evidence he instructed the jury to find for the demandant, for whom they found accordingly; but he reserved the law of the case for the consideration of the court. It was agreed that all the deeds and documents mentioned in the cases of Lapish v Wells, 6 Greenl. 175, and Dunlap & al. v. Stetson, 4 Mason, 349, might be considered in the decision of this cause. The other facts will be found in the opinion of the court.

Judgment on the verdict.

W. D. Williamson argued for the tenants, that as the demandant was bounded by the bank, in his title deed, his claim to the flats must arise under the colonial ordinance of 1641. But this ordinance could extend no farther than the limits of the colony which passed it, and therefore never had any operation eastward of Merrimack River. These flats, then, belonged to the sovereign. Commonwealth v. Charlestown, 1 Pick. 182. Commonwealth v. Chapin, 5 Pick. 201. Charter Jac. 1, Nov. 3, 1620. 1 Haz. Coll. 103. Ancient Char. 34, 35. 2 Dane's Abr. 691.

But as the colony afterwards surrendered its charter to the king, it could not, on any principle, apply to grants made after the surrender. And if it could, it would avail nothing to the demandant, as it extends, by its terms, only to the shores and arms of the sea, and to " salt water rivers; " whereas the Penobscot at Bangor is merely a fresh-water river, though its waters are raised and driven back by the influx of the sea.

Allen, on the same side, to the admissibility of the deed to Knox, cited Wolcot v. Knight, 6 Mass. 413. And he argued that as M'Glathry was cestui que trust of the acre, he, and not the demandant, was entitled to the flats in front of it, by the ordinance of 1641. He also contended that the case showed a sufficient title to the flats in the tenants, by disseisin. Pray v. Pierce, 7 Mass. 382. Kennebec Proprietors v. Laboree, 2 Greenl. 295. Lansing v. Smith, 4 Wend. 9.

Greenleaf and Sprague, for the demandant, cited Adams v. Frothingham, 3 Mass. 352, as reported by Mr. Dane, 2 Dane's Abr. 697. Storer v. Freeman, 6 Mass. 435. Hatch v. Dwight, 17 Mass. 289. Dunlap v. Stetson, 4 Mason, 365. Handly's Lessee v. Anthony, 5 Wheat. 374. Morrison v. Kean, 3 Greenl. 474. Lunt v. Holland, 14 Mass. 149. King v. King, 7 Mass. 496. Howard v. Chadbourne, 5 Greenl. 15. Knox v. Pickering, 7 Greenl. 106. 7 Pick. 521. Rex v. Smith & al. Doug. 441. 2 Dane's Abr. 693, § 14.

OPINION

MELLEN, C. J., delivered the opinion of the court, at the ensuing July term in Waldo.

By the report of the judge who presided at the trial, in connection with the resolves and documents therein referred to, the following facts appear.

The premises demanded are situate in Bangor, consisting of upland and flats. The demandant having entered a nolle prosequi as to so much of the premises defended as lies above high-water mark, with the privileges of water and landing in front of the same, the title to the flats is the only subject in dispute. The acre of land, of which two eighth parts are demanded, commonly called the McGlathry acre, is a part of a one hundred acre lot of land, commonly called the Budge lot, on which James Budge formerly lived, and occupied the same as a settler prior to January 1, 1784. The flats in question are claimed by both parties, as belonging to and composing a part of the Budge lot; but whether they belong to, and compose a part of the McGlathry acre, is one of the controverted points. The tenants claim to hold them as a part of the acre in virtue of the deed from Budge to McGlathry, bearing date April 19th, 1798; the description of the land conveyed by that deed will be particularly examined in its proper place. The demandant contends that the flats were never conveyed by that deed to McGlathry, and of course that they were conveyed to Lapish, French, and Stetson, as the assignees of Budge, in virtue of the deed to them from the committee of the commonwealth, bearing date March 2, 1802. Whatever estate or property passed by Budge's deed to McGlathry, has, by regular conveyances, become vested in the tenants. We now proceed to the examination of the titles relied on by the parties, and the statement of the principles and facts, more particularly, on which they are alleged to be legally founded.

The resolve of March 5, 1801, declares " That all the settlers in the town of Bangor, or their legal representatives, who actually settled before the first of January, 1784, be entitled to a deed of their respective lots of one hundred acres each, by paying into the treasury of this Commonwealth, eight dollars and forty-five cents." The resolve further provides that the committee for the sale of eastern lands should cause the several lots in the town of Bangor to be surveyed and run out by metes and bounds to each of the settlers in said town by some faithful surveyor. Those preliminary measures were adopted in regard to the lot on which James Budge had settled, as before mentioned, and they are recognized in the deed of March 2, 1802, to Lapish, French, and Stetson. They are the legal representatives of the said Budge, as to all the lot, excepting what he had before that time conveyed to McGlathry. In the case of Knox & al. v. Pickering, 7 Greenl. 106, we have decided that the flats in front of, and adjoining to, the settler's lots in Bangor, belong to and compose a part of those lots respectively. See also Bussey v. Luce, 2 Greenl. 367.

In the view we have taken of this cause, we consider the Waldo Patent, the Charter of the Massachusetts Bay, and the act incorporating the town of Bangor as unimportant. They can have no influence on our decision. The same remark is also applicable as to all those facts relating to the height of the tide, the width of the flats, the quality of the water, the height of the bank and the nature of the fishery, which the tenants offered to prove and the demandant admitted.

The above examination of the facts shows, that the principal question in the cause is, whether, by the...