Proprietors of Kennebec Purchase v. Laboree

• Decision Date: 01 May 1823
• Citation: 2 Me. 275
• Parties: THE PROPRIETORS OF THE KENNEBEC PURCHASE v. LABOREE & ALS
• Court: Maine Supreme Court

2 Me. 275

THE PROPRIETORS OF THE KENNEBEC PURCHASE v. LABOREE & ALS

Supreme Judicial Court of Maine, Lincoln

May, 1823

[Syllabus Material] [Syllabus Material]

THIS was a writ of entry, in which were demanded 200 acres of land in Whitefield, on the east side of Sheepscut river, 100 rods wide, and extending back from the river one mile; the demandants counting on their own seisin within 30 years and a disseisin by the tenants.

As to a part of the premises adjoining the river, being about twenty-five acres of the front of the lot, the tenants pleaded a disclaimer, which was admitted. The title to the residue was tried upon the issue of nul disseisin.

The demandants gave in evidence the patent from the governor and council of Plymouth to Antipas Boyes and others, dated October 27, 1661, and it was admitted that the demandants had all the title conveyed by that patent, which was subsequently confirmed to the demandants by the Commonwealth of Massachusetts by deed dated February 18, 1789. They also read the deposition of Ephraim Ballard, a surveyor appointed by the committee for the sale of eastern lands, and by a committee of the demandants, in 1798, to ascertain and mark the true southern boundary of the Kennebec purchase coinciding with and passing through the utmost limits of Cobbessecontee,--testifying that he did so ascertain and mark that boundary, at a red oak tree on the west bank of Kennebec river; the line running east-south-east, and west-south-west, and terminating fifteen miles from the river; --and it was proved that the demanded premises are within fifteen miles of the river, and north of the Ballard-line.

The tenants then proved that one Nathan Longfellow went upon the front of this lot 46 or 47 years ago, cleared the land, and erected a house on the part disclaimed; and about 42 years ago erected another house on the front of the part defended, where he dwelt until he sold the land in July 1794 to his son Jacob, under whom the tenants derived their title by regular conveyances; --that he continued to enlarge his improvements from year to year, so that he had cultivated and enclosed with fences about one half of the lot from the river eastward, as long since as thirty years before the commencement of the action; --that soon after Longfellow entered upon this lot, it was known that there were marked trees at the northeast and southeast corners of the lot demanded, which Longfellow claimed as the corners of his lot, and that for more than thirty years before the commencement of this action, there were marked trees on the lines running from these corners to the river, and also across the head of the lot, which he claimed as the lines of his lot; --that he cut and took away the timber on the back end of the lot, as he wanted it; and for thirty years before the action was brought, he had cut wood and timber on any part of the lot as he had occasion; forbidding others who were in that vicinity from cutting on his lot, the lines of which were well known and recognized as the bounds of Longfellow's lot; --and that he paid all the taxes assessed thereon.

The easterly half of the demanded premises had never been fenced, nor cleared.

Upon this evidence the Judge who presided at the trial instructed the jury, that if, from the facts proved, they were satisfied that the " possession, occupation, and improvement" by Nathan Longfellow of the premises defended, for more than thirty years before the commencement of the action, was, agreeably to Stat. 1821. ch. 62. sec. 6., " open, notorious and exclusive, comporting with the ordinary management of similar estates in the possession and occupancy of those who have title thereunto, or satisfactorily indicative of such exercise of ownership as is usual in the improvement of a farm by its owner; " and that the same occupancy, possession and improvement was continued by the tenant and the intermediate grantees of said Longfellow up to the time of the commencement of this action, they ought to return their verdict for the tenant. And he further instructed them that if they believed the witnesses, the tenant had entitled himself to their verdict upon these principles.

A verdict was thereupon returned for the tenant, subject to the opinion of the whole Court upon the correctness of these instructions.

Verdict set aside and a new trial granted.

The question was argued at May term, 1822, by Orr and R. Williams, for the demandants, and Stebbins and Barnard, for the tenants.

For the demandants it was contended--1. That upon the facts proved the tenants shewed no title by disseisin to any part of the lot. Their claim is not to be favoured. It was hostile in its inception. It is essential that they should shew that Nathan Longfellow entered under claim or colour of title, that his entry was not congeable, and that it was an actual ouster of the freehold. Brandt v. Ogden, 1 Johns. 156. Jackson v. Sharp, 9 Johns. 163. Smith v. Burtis, 9 Johns. 174. Jackson v. Ellis, 13 Johns. 118. Jackson v. Belden, 16 Johns. 293. Jackson v. Waters, 12 Johns. 365. These cases agree with the ancient decisions. Co. Lit. 181. a. 277. a. 2 Bac. Abr. Dissesin, A. 1 Salk. 246. 3 Bl. Com. 169. Atkyns v. Horde, 1 Burr. 61. Cowp. 689. Blunden v. Baugh, Cro. Car. 302.

2. That if the facts shew a title in the tenants by disseisin to any part of the premises, this extends only to that part of which they had the visible occupation by inclosure in fences. Jackson v. Schoonmaker, 2 Johns. 230. Prop'rs Ken. Pur. v. Call, 1 Mass. 483. Prop'rs Ken. Pur. v. Springer, 4 Mass. 416. Brown v. Porter, 10 Mass. 93.

3. That the Stat. 1821. ch. 62. sec. 6. establishing a new doctrine of disseisin, must be construed prospectively,--or it is unconstitutional, and void. No legislature has a right to declare what the law was,--but only what it shall be. If they choose to adopt the mischievous principle of putting disseisors on an equal footing with the lawful owners of land, permitting them to enter on one parcel in the name of all the vacant lands in the same county, it is a power which they can exercise only in subserviency to rights already vested, and to contracts already in force. These are beyond the control of any legislature, under any form of free government, whether protected by the express letter of the constitution or not. Yet the section on which the tenants rely is pressed into their service, to the entire subversion of the demandants' vested right to enter upon the east end of the lot, which was never fenced; which right they had enforced by this action, before the statute was enacted. 6 Bac. Abr. Statute c. Ogden v. Blackledge, 2 Cranch 272. Dash v. Van Kleeck, 7 Johns. 477, 500. Society v. Wheeler, 2 Gal. 105. King v. Dedham Bank, 15 Mass. 447. Holden v. James, 11 Mass. 396. 3 Dal. 386. The power of the legislature to confirm the doings of public officers--to suspend the operation of the general statute of limitations--to provide new remedies for the enforcement of existing rights, & c.--which has been exerted in numerous instances, rests upon other principles, and is not contested.

For the tenants it was insisted--1. That the statute was not at variance with the common law. In effect it merely declares that to constitute a disseisin, a fence is not necessary; --that possession as a farm is sufficient. It leaves to the tenant the burden of proving the extent of his possession; requiring him to shew that he conducts, in all things, as an owner conducts with his farm. Mill Corporation v. Bulfinch, 6 Mass. 234. Cutts v. Spring, 15 Mass. 135. Small v. Procter, 15 Mass. 498. 3 Bl. Com. 177. It is a statute which is to be favourably regarded. 3 Bl. Com. 168. Atkyns v. Horde, 1 Burr. 60. 3 Cruise's Dig. 564. Cummings v. Wyman, 10 Mass. 468.

2. That if the statute has altered the common law, it was competent for the legislature to exert all the power implied in its literal interpretation. Walker v. Bacon, 8 Mass. 468. Patterson v. Philbrook, 9 Mass. 151. Trull v. Wilson, 9 Mass. 154. Bacon v. Callender, 6 Mass. 303.

MELLEN, C. J. PREBLE J. did not attend at this, nor any of the succeeding terms on the spring circuit, by reason of indisposition.

OPINION

The cause having been continued to this term for advisement, the opinion of the Court was now delivered as follows, by MELLEN C. J.

The general title of the demandants to what is commonly called the Plymouth claim or patent, is not disputed. But it was urged by the counsel for the tenant, that the land demanded in this action, though within fifteen miles of Kennebec river, is not within the true bounds of the claim. The deposition of Ballard has been relied on to shew what are the utmost limits of Cobbessecontee; and of course what is the true southerly line of the patent. If the line run by him be the true line, it is admitted that the land in dispute lies north of it. The release from the Commonwealth of Massachusetts, bearing date February 18 1789, to the company, conforms to this line; and it has once or twice been decided by the Supreme Judicial Court of that Commonwealth, that this release has settled the question as to the limits of the claim. Besides there is, we may say, an almost universal acquiescence, even among the settlers themselves who are upon the tract, with respect to this point; and for nearly thirty years past the Courts have considered the question as at rest; though within that time it has, by a few individuals, been moved and briefly discussed when all other grounds of defence had failed. Without dwelling on this part of the cause, we would observe, that we consider the south line as established, and of course the title of the demandants to the premises in dispute is a valid one, unless it is defeated, in whole or in part, by...