United States v. 1,010.8 ACRES, ETC.

• Decision Date: 24 June 1944
• Docket Number: No. 2.,2.
• Citation: 56 F. Supp. 120
• Parties: UNITED STATES v. 1,010.8 ACRES, MORE OR LESS, SITUATE IN SUSSEX COUNTY, DEL., et al.
• Court: U.S. District Court — District of Delaware

56 F. Supp. 120

UNITED STATES v. 1,010.8 ACRES, MORE OR LESS, SITUATE IN SUSSEX COUNTY, DEL., et al.

No. 2.

District Court, D. Delaware.

June 24, 1944.

COPYRIGHT MATERIAL OMITTED

William Marvel, Asst. U. S. Atty., of Wilmington, Del., for the United States.

James R. Morford, Atty. Gen., for the State of Delaware.

Herbert H. Ward, Jr., of Wilmington, Del., trustee ad litem.

Isaac D. Short, 2d, of Georgetown, Del., for Levy Court of Sussex County.

James B. Carey and James M. Tunnell, Jr., both of Georgetown, Del., for Commissioners of Lewes, Martin Black and Harry Draper, Mark T. McKee, Lewes Sand Co., and Sussex Sand Co.

David S. Keil, of Wilmington, Del., for Cape Henlopen Surf Club.

LEAHY, District Judge.

The United States condemned more than 1000 acres of land near Cape Henlopen in Sussex County, Delaware, by the Hon. Henry L. Stimson, Secretary of War, filing a declaration of taking, under the authority of 46 Stat. 1421, 40 U.S.C.A. § 258a and Acts amendatory thereof, 26 Stat. 316, 40 Stat. 241, 40 Stat. 518, 50 U.S.C.A. § 171 and the Act of Congress approved September 9, 1940, Public No. 781 — 76th Cong. 54 Stat. 872. Parties claimant appeared and filed answers. The government deposited $43,118 in the registry of the court as consideration for the land taken. All respondents insist the final award should be, at least, $100,000. After several pretrial conferences the parties agreed that, first, title to the condemned land should be determined and, second, later ordinary procedures should be followed to ascertain the adequacy of the price proffered by the condemner. C. A. Southerland, Esq., of the Delaware bar, was then appointed Special Master, by agreement of all parties, to ascertain the persons who at the time of the taking owned or had any interest in the condemned lands.¹

Claimants. (a) The first of the parties claimant are the Levy Court of Sussex County² on the one hand, and the County Treasurer and Receiver of Taxes of Sussex County on the other. Each assert, "that Sussex County, Delaware, is the owner in fee simple of the lands" condemned. The Special Master confessed he was unable to grasp the legal — or factual — basis upon which this claim was advanced. In Delaware, the three counties (New Castle, Kent and Sussex) as such do not hold legal title to real estate within their boundaries without legislative permission. Various agencies of the State have sometimes been vested with legal title to land situate within a county, e.g., the New Castle County Workhouse (the jail) is situated on land the title to which is vested in a Board of Trustees. Revised Code of 1935, sec. 4142. While there are statutes which define the boundaries of the three counties, there is no intimation that they are to be considered as corporations. Id., c. 2, secs. 7 and 8. The Special Master properly rejected the claim filed by these parties as they had no interest in the lands in suit.

(b) H. H. Ward, Jr., Esq., Trustee ad litem,³ asserts: "* * * the Inhabitants of the Town of Lewes and County of Sussex in the State of Delaware are entitled to certain Rights of Common in Cape Henlopen under or by virtue of a grant by the Court held at Lewes for the County of Sussex and by the King's Authority and by Commission from William Penn, Proprietary and Governor of Pennsylvania and Territories thereunto belonging on the 9th, 10th and 11th days of the 11th month⁴ (January) 1682." Admitting a fee in the state, the trustee asserts that it is subject to a perpetual right of common as fixed in the Warner Grant, for the benefit of inhabitants of the Town of Lewes and the County of Sussex. Both the Attorney General for the State and the trustee ad litem argue that the various acts of the legislature (see footnote 22 infra) which attempt to place control over the lands in suit in trustees or the Commissioners of the Town of Lewes, thereby limiting the exercise of the rights of common of all the inhabitants of Sussex County, are "encroachments and inoperative". This argument was rejected by the Special Master, together with the trustee's subsidiary contentions. The treatment of these matters will appear later.

(c) The State of Delaware asserts the lands in condemnation "are the property of the State of Delaware". With the exception of the claim just discussed, all claimants concede the fee to the condemned lands was in the State as sovereign. The State joins, however, with the trustee ad litem that the fee title is in the State, subject to a right of common as defined in the Warner Grant. For present purposes, then, the Special Master is affirmed in finding the fee in the State of Delaware.

(d) The Town of Lewes (actually the Commissioners of Lewes, a municipal corporation) first asserted title in fee but later abandoned this position, admitting fee simple title in the State of Delaware, and contends that, by various acts of the legislature, the Town has exclusive jurisdiction over all the lands in question, including the right to sell sand and gravel, and enter into leases with respect to the condemned lands, and use the revenues therefrom for corporate purposes of the Town. Its contentions are: (1) The Warner Grant for the use of the inhabitants of the Town of Lewes and the County of Sussex is by way of "exception" or "reservation" and, since a person not a party to a deed can not take anything by it (except a remainder) the reservation is void, for it creates no estate known to the law; (2) as the grant is to an indefinite and fluctuating class, it is void, not having been made by the sovereign, because, through William Penn, via his Court, it is not a Crown grant; and, finally, (3) any rights created by the Warner Grant have been lost by adverse possession. Six lessees⁵ of the Town of Lewes — Cape Henlopen Surf Club, Sussex Sand Company, Lewes Sand Company, Delaware corporations, Rehoboth Trust Company, executor of the Estate of William T. Tappan, deceased, and Martin Black and Harry R. Draper — in addition to Mark T. McKee, who claims an option granted to him by Lewes Sand Company of one of the leases of that company from the Town of Lewes — allege fee simple title in the State of Delaware, but contend that, on the day of the government taking, their valid leaseholds were and are now compensatory in this action. These leases cover defined portions of the Cape lands, with various tenures, and for the purposes, among others, of removing sand and gravel. The leases stand or fall on the Town's claim.

The trustee ad litem alone has filed exceptions to the Special Master's Report. These exceptions will be treated herein.

The parties rest on title records, factual data and written and map exhibits contained in a MS. treatise entitled "Cape Henlopen", written by Houston Wilson, Esq., of the Delaware bar. The Special Master has denominated this writing as "Exhibit 2" or, sometimes, as "Wilson's Report". It consists of ten parts embodied in eleven typescript pamphlets.⁶

The contending parties filed cross-claims to dismiss their adversaries' answers for failure to state a claim. The Town of Lewes moved to strike various portions of the Wilson Report, challenging certain expressions of opinion, interpretations and inferences drawn from the ancient records relied on by the author. The Special Master refused to consider such expressions as evidence of probative value. But, the existence or nonexistence of title records and other documents referred to by Mr. Wilson (as well as the textual accuracy of written and map exhibits) were unchallenged by the parties and accordingly accepted by the Special Master.⁷

1. Cape Henlopen. The public use for which the lands were taken was the establishment of harbor defenses of Delaware Bay, near Cape Henlopen, and to provide sites for seacoast batteries and related military purposes. For obvious reasons, it is highly inappropriate to describe further, in detail, the land taken or the use to which it is to be put by the armed forces of the United States of America.⁸

2. The basic title to the land and waters of the State of Delaware rests on two deeds of feoffment from James, Duke of York, to William Penn, each dated August 24, 1682. One deed conveys a tract of land lying within a circle of twelve miles from the Town of New Castle; the other includes a tract of land extending south from New Castle.⁹ These deeds contained covenants for further assurance. On March 22, 1682/3 letters patent of Charles II under the Great Seal of England were issued to the Duke of York for the same lands and waters described in the former deeds of feoffment from York to William Penn.¹⁰ "There is no doubt that these letters were delivered to the Duke";¹¹ later delivered to Penn; and were never thereafter surrendered or abandoned. The letters gave "powers of government and other proprietary and seignorial rights" to York "along with ownership in fee."¹² Whether Penn enjoyed governmental powers under the deeds of feoffment or they passed to him by estoppel from York is immaterial since later letters patent of August 20, 1694, from the Crown to Penn confirmed his title to such powers. In reviewing Penn's struggles to maintain his government, Mr. Justice Cardozo once wrote:

"There were, it is true, intermittent challenges both of the proprietary interest of Penn and his successors and of their governmental powers. As to these last, the most serious challenge was one that followed the accession of William and Mary in February, 1689, after the deposition of James II as the result of the `Glorious Revolution.' Penn, who had been a favorite of royalty during the reign of James, was for a time under a cloud. In 1692, he was removed from the Government of Pennsylvania, including the New Castle county, and his place given to a successor. But he was soon restored to power, and, it seems, to the royal confidence. In August, 1694, there was an Order in Council by which he was reestablished in his former office. In the same month...