Trustees of New Castle Common v. Megginson

• Decision Date: 21 June 1910
• Court: United States State Supreme Court of Delaware
• Parties: TRUSTEES OF NEW CASTLE COMMON, defendant below, plaintiff in error v. JABEZ FRANK MEGGINSON, late Collector of Taxes for New Castle Hundred, plaintiff below, defendant in error

77 A. 565

24 Del. 361

TRUSTEES OF NEW CASTLE COMMON, defendant below, plaintiff in error v. JABEZ FRANK MEGGINSON, late Collector of Taxes for New Castle Hundred, plaintiff below, defendant in error

Supreme Court of Delaware

June 21, 1910

[Copyrighted Material Omitted]

Supreme Court, January Term, 1909.

WRIT OF ERROR to Superior Court, for New Castle County.

Action by Jabez Frank Megginson, late Collector of Taxes for New Castle Hundred, against the trustees of New Castle Common. Judgment for plaintiff, and defendant brings error. Reversed and judgment entered for defendant.

The case in the Court below was an amicable action of assumpsit upon a case stated, of which the following is a copy, the immaterial parts being omitted:

AND NOW TO-WIT this tenth day of July, A. D. 1907, it is agreed by and between the attorneys, for the plaintiff and the defendants in the above stated cause, that the following case be stated for the opinion of the Court, in the nature of a special verdict, either party to have the right to sue out a writ of error on the judgment to be entered in the cause.

STATEMENT OF FACTS.

That the above named plaintiff was the collector of taxes for New Castle Hundred in the year 1903, duly appointed by the Levy Court of New Castle County, and as such collector authorized empowered and directed to collect the taxes assessed upon and against the property of the above named defendants.

That William Penn, Proprietary and Governor of the Province of Pennsylvania and the Counties annexed, in the year A. D. 1701, made a certain warrant directed to Edward Pennington, Surveyor General of the Province of Pennsylvania and Territories in the following words, to-wit:

"William Penn, Proprietary and Govr. of the Province of Pennsylvania and Counties annexed.

Pennsylvania

(L. S.)

"For the accommodation of the Inhabitants of the Town of New Castle These are to require thee forthwith to survey or cause to be surveyed to the only use and behoof of the said Inhabitants to lie in Common one thousand acres of Land adjoining or near to the said Town hitherto reputed called New Castle Common in one convenient Tract, and if there proved more than the sd. number of Acres lay out the residue in one convenient piece to me and for my use and make returns thereof into my Secretary's office. Given under my hand and seal at New Castle the 31st day of 8ber 1701.

WM. PENN."

"To Edward Pennington, Surveyor General of the Province of Pennsylvania and Territories."

That by virtue of a warrant directed to George Dakeyne, Surveyor, bearing date the twenty-third day of the tenth month, 1701, commanding him to survey and lay out to the inhabitants of New Castle to lie in common for their accommodation and to their only use and behoof, 1000 acres of land adjoining or near to the town of New Castle reputed always to be common and to make return of the same unto the General Surveyor's office at Philadelphia that he had resurveyed said tract of land, and that the same contained 1068 acres.

That Thomas Penn and Richard Penn absolute Proprietaries and Governors in Chief of the Counties of New Castle, Kent and Sussex on Delaware and Province of Pennsylvania by their Charter dated October 31st, 1764, under the hand of John Penn, Esq., Lieutenant Governor and Commander in Chief of the Counties of New Castle, Kent and Sussex on Delaware and Province of Pennsylvania and the Great Seal of the Government of said Counties, (which said Charter recited that in pursuance of said warrant of said William Penn, there was surveyed and laid out on the tenth day of April, A. D. 1704, to the inhabitants of the town of New Castle in the County of New Castle, a tract or parcel of land adjoining or near to the said town containing 1068 acres, as and for a common, for the use, behoof and accommodation of the inhabitants of said town of New Castle; that the inhabitants of said town had represented to said Proprietaries and Governors that, notwithstanding said warrant and survey and the many benefits and advantages the said William Penn had intended the inhabitants of said town should reap and enjoy great quantities of said land, surveyed as a common, had been enclosed by the owners of tracts of land lying contiguous thereto and by them tilled and cultivated and that the said inhabitants were remediless for want of legal power to sue and implead the wrong-doers; and that the said inhabitants had requested the said Proprietaries and Governors to incorporate a certain number of them and give them perpetual succession and confirmed to them the said tract of land in common for the use of all the inhabitants of the said town), favoring the request of said inhabitants, nominated, constituted and appointed thirteen trustees in said charter named wherein and whereby said trustees and their successors were in corporated as one body corporate and politic by the name of "Trustees of New Castle Common" and by such charter said trustees and their successors forever became seized of all the aforesaid tract or parcel of land, together with all the woods, waters, pastures, feedings, ways, rights, privileges, advantages and appurtenances whatsoever thereunto belonging or in anywise appertaining; to have and to hold said tract of land with the appurtenances unto the said Trustees and their successors, in trust nevertheless and to and for the uses, intents and purposes following, that is to say: to and for the use of the present inhabitants of the said town and those who shall hereafter become and be inhabitants of the said town of New Castle and dwelling within the bounds and limits thereof as a Common forever, and to no other use, intent or purpose whatsoever. To be holden of the said grantors their heirs and successors, Proprietaries of the said Counties of New Castle, Kent and Sussex on Delaware, in free and common socage, by fealty only, in lieu of all other services; with the proviso that said Trustees or said successors, shall not have nor shall be deemed or construed to have any right, power or authority to grant, bargain, sell, alien, convey, release, or confirm the hereby granted premises or any part thereof to any person or persons whatsoever; but that the same shall be and remain and be held and enjoyed by them for the use of a common for the inhabitants of the town of New Castle and to no other use, intent or purpose whatsoever; and further provided that if the said Trustees or their successors shall at any time grant, bargain or sell the said tract of land or any part thereof or dispose of the same to any other use than that of the common for the inhabitants of the said town of New Castle or its said Trustees shall by any means be dissolved, then the grant so made shall cease and determine and become absolutely void to all intents and purposes whatsoever, and all and singular the granted premises with the appurtenances shall revert to the said Thomas Penn and Richard Penn, their heirs and assigns forever;

That John Penn, of Stoke Pogis, in the County of Bucks, and John Penn, of Dover Street, in the County of Middlesex, (heirs at law of Thomas Penn and Richard Penn, aforesaid and reversioners under the deed made by them,) late Proprietaries and Governors of Pennsylvania in America, by their deed dated July 7th, A. D. 1791, (wherein it was recited that Thomas Penn and Richard Penn, who in their lives were absolute Proprietaries and Governors in Chief of the Counties of New Castle, Kent and Sussex on Delaware and Province of Pennsylvania, by charter dated October first, A. D. 1764, did grant and convey unto thirteen trustees, the hereinbefore mentioned tract of land as and for a common, for the use behoof and accommodation of the inhabitants of the town of New Castle, which tract in pursuance of a warrant from William Penn was surveyed and laid out April 10th, A. D. 1704, for the uses aforesaid; and wherein it was recited further that the restrictive terms of said grant do now prevent the inhabitants of said town of New Castle from deriving all those benefits and advantages which would result from a free and absolute grant thereof; and that the said last mentioned Trustees of said Common have solicited the said last mentioned grantors to grant the free and absolute property of, in and to the said premises, to them and their successors, to and for the use of the inhabitants of the said town of New Castle, and that the said last mentioned grantors were willing to promote the prosperity of said town and desired to benefit the descendants of the inhabitants of the said town for the regard, honor and respect always exhibited on the part of the predecessors of said inhabitants to the ancestors of said grantors), granted, bargained and sold unto Isaac Grantham, Robert Clay and William Lees and to the survivors of them, all the aforesaid tract or parcel of land, with the appurtenances to have and to hold the same with the appurtenances to the said Isaac Grantham, et al., the survivor and the heir of the survivor of them, to and for the use and behoof of the said Isaac Grantham, et al., and the survivor and heirs of the survivor, forever in trust, nevertheless, to and for the use, benefit and behoof of the inhabitants of the town of New Castle to be conveyed, transferred and set over by the said Isaac Grantham, et al., or by the survivor or heirs of the survivor, in trust, unto the present or future trustees of said tract and their successors or of such future trustees and their successors as may be chosen or appointed by virtue of an act of incorporation when the same may be passed by an Act of General Assembly of the State of Delaware to and for the use and behoof of the inhabitants of the said town of New Castle forever to be appropriated in such manner as a majority of ...