State of Maine v. Adams

• Decision Date: 27 February 2009
• Docket Number: Record No. 080987.
• Citation: 672 S.E.2d 862,277 Va. 230
• Parties: STATE OF MAINE v. Richard L. ADAMS, Jr.
• Court: Virginia Supreme Court

672 S.E.2d 862

277 Va. 230

STATE OF MAINE v. Richard L. ADAMS, Jr.

Record No. 080987.

Supreme Court of Virginia.

February 27, 2009.

Thomas A. Knowlton, Assistant Attorney General for the State of Maine (Christopher M. Day, on briefs), for appellant.

Robert K. Richardson (Odin, Feldman & Pittleman, on brief), Fairfax, for appellee.

Present: All the Justices.

OPINION BY Justice BARBARA MILANO KEENAN.

This appeal concerns an action to quiet title to a copy of the Declaration of Independence (the Declaration) that was printed in July 1776. We consider whether the circuit court erred in holding that a Virginia resident who purchased this document had superior title than that claimed by the State of Maine, which contended that the document was a public record owned by the Town of Wiscasset, Maine.

In July 1776, after the Second Continental Congress approved the Declaration of Independence, each of the colonial delegations was charged with informing its residents about the colonies' decision to separate from England. The Massachusetts Executive Council (the Executive Council), an entity that shared governing responsibility with the Massachusetts legislature, issued an order directing that copies of the Declaration be printed and delivered to the ministers of all churches in Massachusetts so that the document could be read to the ministers' congregations.¹

The Executive Council commissioned E. Russell, a private printer in Salem, Massachusetts, to print these copies of the Declaration. Such copies of documents intended for widespread distribution were commonly referred to as "broadsides."

The broadsides that Russell printed contained the Declaration's text and the Executive Council's order directing distribution and promulgation of that document. The broadsides also included the Executive Council's additional order requiring that the ministers, after reading aloud the Declaration, deliver the broadsides to the town clerks. The order directed the town clerks to record the Declaration's text in their respective town record books "to remain as a perpetual Memorial thereof." Neither the Executive Council's order nor any other law directed the town clerks regarding the proper disposition of the broadsides after their contents were transcribed in the town record books.

The broadside at issue in this case (the print) bears a handwritten notation on its reverse side stating that the print was delivered to the Reverend Thomas Moore in the Town of Pownalborough and read to his congregation. An additional notation indicates that the Reverend Moore later delivered the print to the Reverend John Murray, pastor of a church in Booth Bay, Massachusetts, about 11 miles from Pownalborough.

Also appearing in handwritten text on the reverse side of the print is the following notation:

To [Pownalborough] Town Clerk according to the with in [sic] Authority having read the within Proclamation. I return it to you to be Recorded as ye law directs. Thos. Moore. Pownalborough October 19th, 1776.

On November 10, 1776, Edmund Bridge, the town clerk of Pownalborough, transcribed the text of the Declaration into the official town book in accordance with the Executive Council's order.

There is no direct evidence regarding the location of the print in the years immediately after Bridge recorded the text of the Declaration. However, certain handwritten entries on the reverse side of the print state: "from 1776 to 1784 Warrants [etc.]," "Town Warrants [etc.]," "Pownalborough," "Declaration of Independence, July 1776," and "Loose Papers no Taxes."

The location of the print remained unknown until 1995, when Harold Moore, an auctioneer hired by the estate of Anna Holbrook Plumstead (Anna), discovered the print in the attic of Anna's home in Wiscasset, Maine. The print was folded in a box containing minutes from a Pownalborough town meeting held in 1795, personal family receipts, and other papers unrelated to town business. Wiscasset, Maine (the town) was formerly known as Pownalborough, Massachusetts. The town's name was changed from Pownalborough to Wiscasset in 1802, and Maine became a state in 1820.

Anna was the daughter of Solomon Holbrook, who served as the town clerk from 1885 until his death in 1929. Pownalborough and Wiscasset have had a total of 41 town clerks during the period between 1760 and the date of trial, and Holbrook was the 28th clerk in order of service to hold that position. Although Holbrook once owned Anna's house where the print was found, Holbrook never lived in that house.

After Harold Moore discovered the print in Anna's house in 1995, Seth Kaller of Kaller Historical Documents, Inc. purchased the print at auction for $77,000. In 2001, Kaller sold the print to Simon Finch, a rare book dealer in London, England, for $390,000. In 2002, Richard L. Adams, a Virginia resident, purchased the print from Finch for $475,000.

In 2005, the State of Maine (Maine), on behalf of the town, sought to recover the print from Adams based on Maine's assertion that the print was a public record owned by the town. Adams filed an action in the circuit court to quiet title to the print contending that he was its lawful owner. The case proceeded to a bench trial.

The evidence at trial showed that until 1967, the Pownalborough and Wiscasset town clerks performed the duties of their part-time position from their homes. In 1967, the town began conducting its business from a public town office. The current town clerk testified that although a library was built in the town in 1805, it is unknown when the library began storing certain town records that now are housed there.

Jonathan S. Kiffer, Senior Vice President of Sotheby's, testified as an expert on the subject of rare documents created around the time the print was made. Kiffer stated that broadsides like the print in question were printed as news releases or bulletins and were in the category of documents referred to as "ephemera," or items produced to serve only a brief purpose. According to Kiffer, once the news contained in a broadside was disseminated, the broadside had fulfilled its purpose and could be discarded.

Maine presented the expert testimony of Albert H. Whitaker, Jr., a former Massachusetts State Archivist who was familiar with colonial records. Whitaker stated that in his opinion, the standard practice for a town clerk in 1776 would have been to retain the print as a town record. Whitaker testified that he based his opinion on the fact that the print was directed to the town clerk's attention and the town clerk actually received the print.

Whitaker also testified that a town generally would retain a document whose contents were recorded in a town book because the original document was considered a superior form of written instrument. However, Whitaker stated that this particular town's record keeping was inconsistent regarding documents other than those relating to births, deaths, marriages, real property, elections, and town meetings.

In his testimony, Whitaker also discussed the handwritten entries appearing on the reverse side of the print. As set forth above, those entries stated: "from 1776 to 1784 Warrants [etc.]," "Town Warrants [etc.]," "Pownalborough," "Declaration of Independence, July 1776," and "Loose Papers no Taxes." According to Whitaker, these entries indicated that the print continued to "reside" with the town's clerks for "at least a short period of time" after 1776. However, Seth Kaller, the dealer in rare documents who purchased the print at auction in 1995, testified that these particular entries suggested "endless possibilities" regarding who made these entries and when they were made.

After considering the evidence, the circuit court issued a letter opinion explaining its ruling in favor of Adams. Addressing Maine's argument that the print was a "public record" under Maine statutory law, the circuit court held that the 1973 statutory definition of that term was inapplicable because it did not have retroactive effect.² However, the circuit court also addressed the merits of Maine's statutory argument, ruling that even if that statutory definition did have retroactive effect, Maine failed to establish that the town "maintained" the print as required by that statutory definition.

In addition, the circuit court determined that the print did not meet the common law definition of a "public record" because a public officer did not create the print. The circuit court also found that Maine failed to prove that the town "kept" the print as a town record.

Finally, the circuit court concluded that Maine failed to prove that even if the town clerk had once possessed the print, the print later was converted. The circuit court found that Maine presented no evidence that the print was wrongfully removed or converted. The circuit court stated that any conclusion regarding when and how the print left the town's possession would be conjecture.

Based on these findings, the circuit court held that because Maine failed to establish ownership of the print, Adams had superior title to the print as a bona fide purchaser and the party in possession of the print. The circuit court entered a final judgment order incorporating its letter opinion. Maine appeals.

Maine argues that the circuit court erred in ruling that Adams established superior title to the print. Maine begins its analysis by arguing that the circuit court erred in failing to apply a preponderance of the evidence standard and in assigning Maine the burden of proving "conclusively" that the print was kept or maintained by the town. Maine contends that, to the extent that it had a burden of proof, Maine proved that the town is the true owner of the print because the print meets the definition of a "public record" under Maine statutory law.

In the alternative, Maine asserts that the print qualifies as a public record under the common law. Maine contends that the evidence demonstrated that the...