New Hampshire Land Co. v. Tilton

• Decision Date: 11 January 1884
• Citation: 19 F. 73
• Court: U.S. District Court — District of New Hampshire
• Parties: NEW HAMPSHIRE LAND CO. v. TILTON and others.

19 F. 73

NEW HAMPSHIRE LAND CO. v. TILTON and others.

United States Circuit Court, D. New Hampshire.

January 11, 1884

W. S Ladd, A. F. Pike, D. Barnard, C. H. Burns, J. Y. Mugridge and Chase & Streeter, for plaintiffs.

H Bingham, G. A. Bingham, G. Marston, I. W. Drew, E. Aldrich A. S. Batchellor, and D. C. Remich, for defendants.

LOWELL J.

This case has occupied some weeks in the trial, and has, at the end, been submitted to me, as judge and jury, under the statute. It is a land case of much importance to the parties, and to others having similar actions now pending in the court. Notwithstanding the great mass of documentary evidence, the points in dispute are few and well defined. I will state first my findings of fact:

The plaintiffs are a corporation organized under the general laws of Connecticut, Revision of 1875, two days before the law of that state was modified by the act of 1880, which repealed the act of 1875. The defendants contend that the plaintiff corporation cannot hold lands in New Hampshire, excepting as incidental to any business which they may carry on in Connecticut; and that a foreign corporation is not authorized to deal in lands in New Hampshire as its principal business, or one chief part of its business. I find that there was no evidence that the corporation carries on any business in Connecticut. My ruling of law is given below.

Both parties claim under the state of New Hampshire. The plaintiffs demand nine twenty-fourth undivided parts of the Sargent & Elkins' grant, of about 50,000 acres, made by James Willey, land commissioner, in October, 1831. The tract is bounded by the easterly line of the town of Franconia, and by the same line extended northerly to the south-west corner of the town of Breton Woods, (now called Carroll;) thence by the south line of Carroll to Nash & Sawyer's location; thence by the same to the notch of the White mountains; thence southerly by Hart's location to land granted to Jasper Elkins and others in 1830; thence westerly to the first-mentioned bounds. The tenants claim 36 lots of 100 acres each, to which they trace a clear paper title from the state, beginning in 1796, provided the deeds from the state were valid and effectual.

In 1796 the legislature appointed Edwards Bucknam, John McDuffie, and Andrew McMillan, a committee to alter and repair the old road leading from Conway to the Upper Coos, and to make a new road from that road to Littleton, with power to sell, in lots of 100 acres each, lands of the state through which this new road should pass. Lands were sold by the committee at four different public 'vendues,' and the tenants claim under the fourth sale. The description of the lands in the deeds of the second, third, and fourth sales is by ranges and lots on a plan of Nathaniel Snow, made by order of the committee. I find that two range lines were adopted, not precisely parallel, so that when the lots were extended there was a gore of a triangular form which remained ungranted. Nearly all of what is now the town of Bethlehem was granted by this committee. The deeds are all alike, and are carefully and well drawn, and the objections which the plaintiffs take to them apply to all. They may be spoken of, for convenience, as one deed. The objections are that one of the committee acknowledged the deed after the law appointing the commission was repealed, and that the deed is void for uncertainty in its description of the land. The plan of Snow, by which all these lots are described, cannot be found at the office of the secretary of state, if it ever was returned there, and cannot now be produced. Several copies of plans by Snow have been introduced in evidence, coming from the families of persons interested in the subject, but they differ from each other in some particulars, and no testimony shows clearly how, and when, and from what, they were severally copied. I find, however, as a fact that the copy called the 'Cilley plan' contains internal evidence of having been taken from an older plan than those produced by the plaintiffs, and that it is sufficiently proved to be considered a copy of the original for the purposes of this case. I find that there was an original Snow plan by which the sales were made, and that it was made from actual knowledge of the base lines, but not from actual knowledge of the lines of the lots. I further find that the base lines being given, the lots can now be laid out upon the ground. When so laid out, the easterly part or corner will overlap the earlier grant to Nash & Sawyer; but it is not proved to my satisfaction that the committee or their surveyor knew this, but the contrary supposition is the more probable.

The grant by Willey in 1831 was made to Jacob Sargent, Jr., David Elkins, Enoch Flanders, Samuel Alexander, and John A Prescott, and they at once sold an undivided equal interest to Joseph Robbins, so that the proprietors held by undivided sixth parts. In May, 1832, it was discovered that the road committee had conveyed away, or was supposed to have conveyed away, in 1796, all, or nearly all, of the upper portion (about one-half) of the Sargent & Elkins' grant of 1831; and thereupon an arrangement was made by which Willey...