Roberts v. Richards

• Decision Date: 02 June 1891
• Parties: ROBERTS et al. v. RICHARDS et al.
• Court: Maine Supreme Court

24 A. 425

84 Me. 1

ROBERTS et al.

v. RICHARDS et al.

Supreme Judicial Court of Maine.

June 2, 1891.

(Official.)

Report from supreme judicial court, Hancock county.

Writ of entry by Tobias L. Roberts and another against Fred. E. Richards and another. On report of evidence. Judgment for defendants.

Deasy & Biggins, for plaintiffs.

Nathan & Henry B. Cleaves and Wiswell, King & Peters, for defendants.

VIRGIN, J. Writ of entry to recover possession of Round Porcupine island, situated in Frenchman's bay.

The plea admits the defendants to be in possession of the whole island, claiming a freehold therein. Upon this prima facie evidence of title the defendants may confidently rely until the plaintiffs shall affirmatively show that possession to be wrongful as against themselves. The case is before the court on a report of the evidence; and the question is, which of the parties does this evidence show to have the better title to all or any part of the demanded premises. Rev. St. c. 104, § 10; Wyman v. Brown, 50 Me. 139; Stewart v. Davis, 63 Me. 539, 542.

The plain tiffs' record title comes through five mesne conveyances from Richard Higgins, whose deed of December 15, 1849, to his grantee, after describing the island in controversy, specifies the source of his title, as follows: "Being the same which was forfeited to me, the said Richard Higgins, by paying the taxes and cost of advertising agreeably to the statute," mentioned and then in force. The taxes paid by him were assessed in 1845 and 1846 on the island by the assessors of the town of Eden. The island, however, was never in that town, but in Gouldsborough, as is shown by the acts of incorporation of the towns named. Higgins, therefore, obtained no legal title by the payment of taxes assessed without authority of law, and his deed of warranty could convey-none.

The defendants derived their record title through the state of Maine from the commonwealth of Massachusetts, which the parties admit held the title at some time prior to the separation. By force of the act of separation of June 19, 1819, incorporated into the constitution of this state, one half of the lands belonging to Massachusetts, situated in Maine, became the property of Maine,—Append. Rev. St. 1003; Const. Me. art. 10, (see Rev. St. 1857, p. 43,) —and the other half by deed of October 5, 1853. And on December 28, 1876, the state of Maine, by its land agent thereunto duly authorized, conveyed "all the riglit. title, and interest of the state"in Round Porcupine island to the defendants and one Bluffum, whose interest was conveyed to the defendants on October 2-V 1882.

The plaintiffs challenge the source of the defendants' record title, contending that Massachusetts had parted with her title prior to the separation, in 1819.

The report shows that on July 23, 1688, certain officers of Louis XIV. granted to one Cadillac "the place called 'Donaquec,' consisting of two leagues on the seashore and two leagues in depth, viz., one league on each side of Donaquec [now Jordan's] river;" together with "the island of Mt. Desert and other islands which are on the forepart of said two front leagues ;" which grant, on May 4, 1689, was confirmed by the king, specifying the land on the main land, but omitting all mention of any islands whatever.

Prior to November 6, 1786, the French grant became the property of Massachusetts. On that day, Marie Therese do Gregoire (granddaughter of Cadillac) and her husband petitioned the general court of Massachusetts, for reasons stated in the petition, to confirm to them the territory covered by the grant. On July 6, 1787, the general court, by resolve, granted to the De Gregoires "all such parts of the island of Mt. Desert, and the other islands and tracts of land particularly described in the grant of Louis XIV. to Cadillac, which now remain the property of the commonwealth ;" the committee to equitably quiet all claims of title in such parcels, conformable to precedents; the Gregoires not to take possession until their naturalization, which took place November 2, 1787.

Among the first questions which confront the parties is, where upon the face of the earth is located so much of the grant as is material to this case? or, in other words, did the grant include Round Porcupine?

It is not a question of construction relating to "flats" between adjoining owners of land situated on tide waters, but of islands described as located "on the fore part of two front leagues," definitely fixed and well known, extending along the shore, and divided in the middle by the banks of a river. Had the grant been made within the lifetime and memory of recent generations, its boundaries could be readily ascertained. But it is idle to undertake to ascertain what islands lay "on" the forepart of said two front leagues" two centuries ago, by making it depend upon the precise curvature of the banks of the river where it now empties into the sea. The Gregoires and the commonwealth, with whatever facilities they had and painstaking they exercised, practically established the exterior lines of the grant in a manner satisfactory to themselves, as is amply shown by their contemporaneous, followed by their respective subsequent, acts, which are much more convincing than anything of a mere speculative character. Knowles v. Toothaker, 58 Me. 172.

On November 23, 1787, a few days after the Gregoires' naturalization, the general court, on their petition, by a resolve appointed one Samuel Thompson "to join with them in opening and establishing the lines between the lands granted to them by this court and the lands belonging to the commonwealth." The parties proceeded to the locality with a surveyor, and ran out the lines on the main land, finding the east line to be a due north and south course. Thompson made his report on August 13, 1789. And, after describing the exterior lines on the main on both sides of Jordan's river, the report adds: "Respecting the Islands lying in front, I do not remember the names of allot them, but Hog island, whereon one Bartlett lives, [now known as 'Bartlett's Island,'] I well know, and remember that it lies on the front of the aforesaid patent, with Hopkins and Cranberry islands and a number of others."

Hog, or what is now known as "Bartlett's," island, lies west of Mt. Desert island; and if Thompson's vivid recollection that that island lies in the front of the aforesaid patent be correct, then Round Porcupine will fall three or more miles east of the east line of the grant.

That Round Porcupine was not in the grant to the Gregoires is made morally certain by the fact that on August 2, 1792, they conveyed to one Jackson all the territory, including the islands as well as the main land, (with certain immaterial specified exceptions,) which Massachusetts conveyed to them, specifying 13 islands, each of which is named, with the number of acres of each, including Bartlett's and the Cranberry islands, all of which lie south and west of Mt. Desert island, and the one furthest east being more than a mile west of Round Porcupine, which was not named. This deed was executed within three years of the time when they went with Thompson and his surveyor, and ascertained the extent and location of their property. And the fact that their deed to Jackson, purporting to convey all the land (with the exceptions named) which Massachusetts conveyed to them, did not mention any of the Porcupines or other islands east of Mt. Desert, coupled with the additional fact, testified to by the register of deeds, that the registry of Hancock county contains no record of any deed from the Gregoires of Round or any other Porcupine island, shows most conclusively that they did not own the island in controversy.

That the authorities of Massachusetts entertained the same view is as conclusively shown by a resolve of the general court of that commonwealth, passed in January, 1814, authorizing one Meagher to locate 500 acres of land, under the direction of the agent for the sale of eastern lands, on the lands of the common wealth, "or on Iron Bound island, or Porcupine islands, in Frenchman's bay."

And finally, in June, 1820, Massachusetts conveyed to one Parrott four of the six Porcupines, which it would not have done if it had previously conveyed them to the Gregoires, which the latter never pretended, so far as their acts disclose.

If the report of Leonard Jarvis to the general court, made while the petition of the Gregoires was pending, and before the conveyance to them, might seem to conflict with Thompson's report, made after actual survey, and the conveyances by the Gregoires and the commonwealth la 1814 and 1820, its force must yield to the more conclusive character of the latter; especially as the general court never took any action upon Jarvis' report, but based all subsequent acts upon Thompson's.

The plaintiffs' record title comes through five mesne conveyances from Richard Higgins, whose deed of December 15, 1849, as before seen, conveyed no title to his grantee. But, without relying solely upon their record title, the plaintiffs claim that their predecessors in interest have held the island by open, notorious, exclusive, adverse possession continuously for more than 20 years prior to the state's conveyance to the defendants in 1876; and that consequently they have a good, indefeasible title by adverse possession.

Assuming that such a title might be acquired against Massachusetts and Maine before the repeal of the statute bar in this state in 1885, the question remains, did the plaintiffs' predecessors acquire such a title?

Higgins' deed to the plaintiffs' father, Tobias Roberts, in 1849, conveyed no legal title, the grantor himself having none. But it constituted a semblance or color of title which the law recognizes as legitimate evidence on the question of adverse possession; the general rule being that an instrument, purporting by apt words to convey lands therein...