Town of Hampton v. Palmer
| Decision Date | 17 August 1959 |
| Parties | TOWN OF HAMPTON v. Richard PALMER et al. |
| Court | New Hampshire Supreme Court |
Perkins & Holland, Exeter, Upton, Sanders & Upton and Wesley E. Whitney, Concord (Robert W. Upton, Concord, orally), for plaintiff.
Burns, Bryant & Hinchey, Dover (Donald R. Bryant, Dover, orally), for defendants.
The issues presented are whether there was evidence to support the Trial Court's conclusion that the town of Hampton has title and holds in a governmental capacity the Fish House Area, so-called, located at North Beach in the township. The disputed plot, with the buildings upon it, consists of about an acre, bounded easterly by the Atlantic Ocean, southerly by the United States Coast Guard, property, westerly by the Ocean Boulevard, and northerly by the land of Alfred K. Nason.
New England was settled under royal grants. Concord Manuf'g. Co. v. Robertson, 66 N.H. 1, 6-7, 25 A. 718, 18 L.R.A. 679. It appears that the title to the plot as well as to all the area claimed by England and located in what was originally called the New World, was vested in the King. In 1606, King James I, by royal patents, created two colonizing companies, one of which became known as the London and the other--which concerns us--as the Plymouth Company. In 1621, the Plymouth Company was merged in the Council of Plymouth by patent issued by King Charles I to forty grantees, their heirs and assigns forever, 'for the planting, ruling, ordering and governing of New England in America' within a vast territory lying between latitude 40 and 48 from sea to sea. The settling of New England, except for the Plymouth Colony founded by the Pilgrims, lagged, and in 1628 the Council granted to a group consisting of John Endicott and others as a body corporate known as the Massachusetts Bay Company, an area extending from three miles south of the Charles River to three miles north of the source of the Merrimack. The royal charter, recognizing that some agency was needed to govern this vast territory once settlement was made, provided that the powers conferred by the charter be exercised by a governor and general court. This charter was liberally construed and formed the basis of the Commonwealth of Massachusetts for some fifty years.
After the family squabbles in England between Cromwell and the Crown had been resolved, the charter was annulled and Massachusetts became a crown colony in 1684. Meanwhile, on March 3, 1635, the General Court had, by an enactment, defined the powers of towns in broad terms, permitting the freemen of every town, or the major part of them, to have powers to dispose of their lands and woods, to grant lots and do all things necessary for the well being of their own towns.
In 1649, the General Court enlarged the governing bodies of the towns to permit the freemen, 'with such others as are allowed,' to have 'the power to dispose of their own lands and use, with all the privileges and appurtenances of the said towns, to grant lots and also to choose their own particular officers * * *' Colonial Laws of Mass. 1660, Whittemore ed., 195. The General Court, in authorizing the establishment of towns, did not define their boundaries, which were often not set up for many years. The title to lands in towns or plantations, as they were sometimes called when first founded, was vested in the town as a legal entity. Proprietors of Cornish v. Kenrick, Smith 270, 274; Cobleigh v. Young, 15 N.H. 493, 502; Commonwealth v. City of Roxbury, 9 Gray 451, 485, 75 Mass. 485, 486.
The Town of Hampton, originally called Winnacunnet, was established by an act of the General Court in 1638, whereby Steven Bachiler and others were authorized to found a 'plantation' which in 1639 became a town with power to choose officers and make orders for 'the well ordering of their towne,' and to lay out land. No boundaries then existed. In a dispute which culminated in proceedings before the King's bench in 1677, the Court decided that Hampton was out of the bounds of Massachusetts. 1 Belknap's History, 170. However, this did not affect title to lands in Hampton which, with the exception of the portions granted away, remained in the town. Willey v. Portsmouth, 35 N.H. 303, 310; Town of Hampton v. Locke, 175 Briefs and Cases, 563, Memorandum of Doe, C.J.; see Concord Manuf'g. Co. v. Robertson, 66 N.H. 1, 2, 9, 25 A. 718, 18 L.R.A. 679; Beckman v. Town of Hampton, 74 N.H. 48, 49, 65 A. 254. It thus appears that the Court's finding that title to the land in Hampton was vested originally in the town is proper and the defendants' exceptions thereto are overruled.
They contend that it is 'unnecessary, however, to go back to the founding of Hampton in this case.' They argue that if it ever did own any land, it ceased to own it upon the establishment of five divisions, title to which then vested in the proprietors rather than the town. According to the defendants, these divisions originally comprised a vast tract called the 'Cow Common,' set off at a meeting in 1645 and including all the land in Hampton, except some two hundred acres and a few plots already granted, the Easterly boundary being the sea.
The Court has found against them on these claims, and since the findings and the rulings based thereon depend to a degree upon evidence to which the defendants excepted, we shall consider their contentions. Although the record is unclear as to whether all the exceptions, which the defendants have argued in their brief were transferred, we treat them as though they were all properly before us. The evidence consisted of numerous exhibits which all fall in the same category, and therefore the exceptions to their admission may be disposed of without discussing each in detail. In general, they are records of actions taken at town meetings, covering many years, designed to improve and protect the beach bordering the Fish House Area, such as keeping horses off it except at stated seasons, forbidding the cutting of grass, directing the selectmen 'to remove or cause to be removed those buildings on the town land near the fish houses,' and forbidding the erection of structures within the area 'except for strictly bathing purposes.'
The materiality of this sort of evidence to show the exercise of dominion and control over the disputed property is apparent. Here also the town holding title to all the lands under the original grant had possession of them. Dame v. Fernald, 86 N.H. 468, 471, 171 A. 369. See also Cushing v. Miller, 62 N.H. 517, 524.
The case of Town of South Hampton v. Fowler, 52 N.H. 225, relied upon by the defendants as authority for excluding the exhibits, appears actually to support the plaintiff's position. There the Court said that had there been some evidence of possession, 'the testimony from the [town] records offered by the plaintiffs would have been competent.' Id. 231. In the case before us, there was evidence of possession.
The exhibits offered were also competent to refute the defendants' claim that the town relinquished possession of the beach property by grant or otherwise. The fact that some of the votes taken at the town meetings were in the form of ordinances goes only to the weight and not to the relevancy of the testimony, since the purpose of the ordinances was obviously to prevent appropriation of any part of the beach, as well as damage to it by individuals.
Furthermore, since the boundaries of the town were originally undefined, evidence was admissible to show over what area the town exercised dominion as bearing on the location of these boundaries. Dame v. Fernald, supra. Numerous references to 'ye sea' as the Eastern boundary are found in town votes, as well as in the action setting apart the 'Ox Common' in 1641, to be a 'common for oxen.' The location of the boundaries was a question of fact to be determined by the Trial Court. Brown v. Peaslee, 69 N.H. 436, 45 A. 234. In reaching a determination, it was entitled to consider the evidence offered by the plaintiff and objected to by the defendants, and their exceptions to this class of evidence are overruled.
The defendants, in support of their position that the Cow Common included all the land in Hampton except that...
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