Tolman v. Hobbs

• Decision Date: 12 June 1878
• Citation: 68 Me. 316
• Parties: Eliza A. TOLMAN v. George M. HOBBS et als.
• Court: Maine Supreme Court

68 Me. 316

Eliza A. TOLMAN v. George M. HOBBS et als.

Supreme Judicial Court of Maine.

June 12, 1878

ON REPORT.

WRIT OF ENTRY, for Pickering's island, in the county of Hancock and in Penobscot bay, near Little Deer island westerly of and contiguous to the town of Deer Isle; the declaration not stating whether or not it lies within the limits of any town. The facts are stated in the opinion.

C. A Spofford & G. S. Peters, for the plaintiff.

R. S c. 6, § 42. " Lands not exempted, and not liable to be assessed in any town, may be taxed by the legislature for a just proportion of all state and county taxes."

Sect 46 provides that lands forfeited for non-payment of taxes may be advertised and sold, by the treasurer of the state. The plaintiff has the deed of William Caldwell as state treasurer, dated September 4, 1872, a valid title, the evidence showing all statute requirements complied with.

E. Hale & L. A. Emery, for the defendants.

The plaintiffs should show that Pickering's island was, in the language of the statute, " not liable to be assessed in any town." It is not enough that the legislature assumed to lay a tax thereon.

It is an inhabited island and likely to be one of those to which Williamson refers in vol. 1, p. 74, of his History of Maine, as being probably included in the town of Deer Isle. " The terms plantation, town and township, seem to be used almost indiscriminately to indicate a cluster or body of persons inhabiting near each other." Shaw, C. J., in Commonwealth v. City of Roxbury, 9 Gray 451, 485. Gray, C. J., uses similar language in Lynn v. Nahant, 113 Mass. 433, 447.

There is good reason in believing that Pickering's island was included in Deer island plantation when the town of Deer Isle was incorporated by the Massachusetts legislature. Act of January 30, 1789.

The court should take nothing for granted to prop up a tax title to a valuable island owned by the defendants and for which the plaintiff has paid but $19.59.

PETERS J.

It is claimed that the land in dispute was forfeited to the state for non-payment of taxes, and then sold by the state to the demandant. The proceedings creating such forfeiture and sale are to be strictly construed.

By § 46, c. 6, R. S., the state treasurer was required to publish in certain newspapers a list of the land to be sold, with the amount of the unpaid taxes, interest and costs, on each parcel, three weeks successively...