Dillingham v. Smith , 30 Me. 370 ( 1849 )

Shepley, C. J.

— The plaintiffs caused fourteen hundred and seventy-eight pine logs to be replevied, claiming to be the owners of them, and deriving their title from the owners of township numbered three, in the thirteenth range of towships. Most of them were cut upon lot numbered one in that township.

The defendants claimed to be the owners of the same logs, and exhibit in proof of their title a copy of the record of proceedings in the District Court in the county of Piscataquis, showing, that lot numbered one was, before these logs were cut upon it, located as part of one thousand acres reserved on sale of that township for public use; and testimony to prove, that the logs cut upon that lot had been seized by the County Commissioners for that county as having been cut by trespassers, and sold to the defendants.

The plaintiff's contend, “that the proceedings had with a view to such location were null and void, through a failure to comply with the statute requisitions.” Those proceedings have been examined in the case of Farrer v. Loring, 26 Maine, 202. The objections now made to the location, so far as they were not then considered, will be noticed.

One objection, upon which many others depend, is, that eight hundred and ninety acres and eighty-six rods of land only wore designated for public use.

Whether the fact be so will depend upon the bounds of that part of lot numbered six designated for public use. It is bounded on one side by Chesuncook lake. The plan returned by the committee appointed to make the location would indicate, that the lot, being bounded upon the lake, was regarded by them as extending into the lake, so far as it would be by Sines drawn at right angles with the southerly and westerly lines of the lot until united; for those lines are extended by dotted lines on their plan. The use of the term lake as a bound does not necessarily determine, that the land conveyed is limited to the margin. That may depend upon the manner in which the collection of water denominated a lake has been formed ; and parol evidence is admissible for that purpose. Hathorn v. Stinson, 1 Fairf. 224; Waterman v. Johnson, 13 Pick. 261. The testimony reported does not show, in what manner the lake referred to was formed, whether by the enlargement of a fresh water stream or otherwise. The burden of proof is upon those who allege, that the proceedings are void by a failure to locate the required number of acres, and they fail to establish the fact.

Another and perhaps more satisfactory answer to this objection may be given. The actual location of a grant of a certain number of acres of land upon the earth, conclusively determines the extent of the grant, although there may after-wards prove to be a greater or less number of acres included within the bounds of such location, than were named in the grant. Machias v. Whitney, 16 Maine, 243. There can be no difference in principle between the location of a grant and the location of a reservation or exception from the grant.

This township having been conveyed by the State since the passage of the act approved on February 20, 1828, c. 393, the reservation was made of one thousand acres to be appropriated for the benefit of the future expected town, as the Legislature of the State might thereafter direct. A location of the one thousand acres upon the earth, in the manner prescribed by the Legislature, according to the provisions of the act approved on March 18, 1842, c. 33, <§. 21, must conclusively determine the extent of the rights preserved by the reservation. The State could never be permitted to allege that the acts of its own officers, performed in the manner prescribed, were not conclusive upon its rights. Such lands are not by the legislative act or by the conveyance appropriated. They are, in the language of the act, “ to be appropriated.” The expected town or corporation can acquire no title to any definite number of acres for any particular use, except by virtue of such appropriation. In a case like the present, it must derive such title from the State subsequent to the actual location, and must therefore be conclusively bound by the location made or ordered by thé State. The rule of law applicable to the ordinary location of grants and conveyances of a certain number of acres of land, which decides, that the location first made upon the earth conclusively determines the extent of the grant, the number of acres of land, and the rights of all subsequent purchasers, applies with equal force to a case like the present. If such rule were not applied, the location might be considered effectual and legal, or not, according to admeasurements made by different surveyors and their assistants, at different times, and with different instruments. Nothing would be finally determined. There would be opportunity for almost perpetual litigation. The application of the rule is essential to the security of the title, as well as to the peace of the community. Any losses or gains, which may result from its enforcement, are comparatively of little importance.

The arguments, that the future town would not be bound by the location already made, and that the owners of the residue of the township could not safely convey it, with covenants of warranty, can therefore have no place. Nor can the arguments prevail, that the location was not completed, that the return of their proceedings made by the committee, and the record of them, are defective, because one thousand acres have not been located. Their return states, “ said lots being set off in full, for the one thousand acres reserved in the grant of said township.”

Another consideration presented in argument is, that the location could not be legally made in two lots ; that if it could be, it might be made in one thousand lots. The act making provision for a location, does not prescribe, that the one thous- and acres shall or shall not be located in one or more lots. The manner of location is therefore left to the committee, subject to the approval of their proceedings by the District Court. Should they appear to have acted in a manner injurious to or destructive of the rights of any party interested, it would be the duty of the Court to refuse to accept their proceedings, and without its sanction, they would be inoperative.

The service having been completed by the committee before their return was made, and the persons interested in the township having been notified of their proceedings, and by law informed, when they were to be presented for acceptance, the argument, that the Court had no jurisdiction, is without, foundation.

It is contended that the fee of the whole township was conveyed to the grantees, “ for their own use forever, unless a town or plantation should hereafter grow up and become located in the tract ; upon the happening of which contingency, one thousand acres were to pass to such town or plantation.”

The language used in conveyances, is to receive such a construction, if possible, as will give effect to the intentions of the parties. The circumstances under which the conveyance was made, may be examined to ascertain such intentions. The conveyance in this case was made and received with a knowledge of the provisions of the act, approved on February 20, 1828, which declares, “ that there shall bo reserved in every township suitable for settlement, whether timber land or otherwise, one thousand acres of land.” This enactment operated upon the agent of the State, authorized to make conveyances, and it was equivalent to a direction to him, not to convey the one thousand acres. He could properly reserve such a tract to the State, only by omitting to convey it. The reservation in the deed of conveyance, taken with a knowledge of that act and of the power of the agent, must have been understood 'by the agent and by the grantees, to have been used as an exception of so many acres, from the land conveyed. The conveyance in this case, differed from those named in the cases of Shapleigh v. Pillsbury, 1 Greenl. 271, and Porter v. Griswold, 6 Greenl. 430. In conveyances or grants of the description named in those cases, the lots designed for public use are appropriated to the persons, corporations, or uses named in the grants or conveyances. In the case of Porter v. Griswold, which did not require that the legal effect of such reservations should be decided, the Court appears rather to have stated, what it believed to have “ been generally understood by all concerned, to amount to a condition subsequent, imposing on the grantees, the obligation to cause the specified proportions to be impartially set apart and assigned for the specified purposes,” than to have decided what was the legal effect of such reservations. The . case does not decide, that the fee was conveyed to the grantees of the township, in trust, for the benefit of the future cestuis que trust. The opinion does indeed state, “ if on legal principles, Mr. Rice was not the first settled minister in respect to the lot demanded, then no person has as yet existed, capable of taking the same, inasmuch, as there has never been any settled minister in Porter ; of course, the fee remains in the original grantees or their heirs, and on this ground also, the action must fail. We may go one step further, and say, that if the title to the reserved proportions, for the uses specified, remains in the Commonwealth, until grantees appear capable of taking, as some have supposed to be the law, the consequence would also be equally a decisive bar to this action.” It was sufficient for the decision of the case, that Rice was not the first settled minister of that town, and was not therefore, entitled to recover the lot. If he was not, it is not easy to perceive how it followed “ of course,” that the foe was in the grantees of the township. That must depend upon the legal effect of the reservation. While an inclination to opinion is exhibited, that the fee passed to the grantees of the township, a different opinion is stated to be entertained by some, and the true legal effect does not appear to have been either discussed or decided. The effect of such reservations was subsequently presented in the case of The State of Maine v. Cutler, 16 Maine, 349, and the decision did not determine, in whom the fee was actually vested, while it did decide, that the State in the exercise of its sovereign power might by law, take possession of such lots, and preserve them for the uses designated. It would seem difficult to conclude, that it could do so, if the fee was legally conveyed. to the grantees of the township. If it remained in the Commonwealth of Massachusetts, it might well pass to this State, on its separation from that State.

But whatever may be the legal effect of such reservations, there can be little doubt, that in this instance the one thousand acres were intended to be and were excepted from the other land conveyed. The State, by the act before named, and by the reservation contained in the conveyance, constituted itself a trustee, retaining the legal title for the use of the town and retaining the power to designate the particular uses. If the grantees acquired the legal title, the cestuis que trust could derive no benefit from it, without their action. But whatever is conveyed to the grantees is conveyed in fee for their own use, without any distinction made between the thousand acres and the residue of the township. There is no declaration of trust, acting upon the one thousand acres, or any obligation imposed upon the grantees to grant or convey the title or to designate the uses. Before the State could be considered to have conveyed the title, and to have reserved, or attempted to do so, a power to declare the uses, the grantees should appear to have acquired the title in trust, or the whole arrangement made by the statute and the conveyance for a reservation would prove to be abortive.

The act of March 17, 1835, c. 170, can have no effect upon the rights of these parties. It could be applicable only to cases, in which the grantees had acquired the right to locate the lots reserved for public uses.

As the rights of the owners of the residue of the township were not violated by a location of the reservation under the act of 1842, it will not be necessary to consider the argument respecting its constitutionality.

The objection, that parol evidence should not have been received to show, that Loring and Turner were acting County Commissioners, cannot be sustained. Lowell v. Flint, 20 Maine, 401; Doty v. Gorham, 5 Pick. 487; Potter v. Luther, 3 Johns. 431. While making seizure and sale of the logs, they were not in the performance of judicial acts, and their proceedings might be proved by parol evidence. A majority of the County Commissioners might lawfully make seizure and sale of logs cut upon lands located for public uses. Statutes, c. 1, § 3, art. 3, c. 99, § 11; act of 1842, c. 33, § 21.

It appeared in evidence, that the logs seized were designated by the letter P marked upon each log. That Brown, who was cutting and hauling logs under the plaintiffs, caused certain logs cut upon lots numbered seven and eight to be marked in the same manner and to be piled with,the logs seized. The presiding Judge decided, that the plaintiffs could not have a verdict for a proportional part of the whole number of logs thus piled together; that they must identify the logs cut, on the lots numbered seven and eight, to be entitled to maintain their action. This decision is alleged to have been erroneous. It is said, that the issue made by the pleadings was, that the logs replevied were the property of the defendants; and that according to the case of Greene v. Dingley, 24 Maine, 131, the burden of proof was upon them to make out their title. The brief statement in this case, is not like the one presented in that case. In this case, it makes two allegations, that the logs were the property of the defendants, and that they were not the property of the plaintiffs. There' does not appear to have been any counter brief statement, restricting the issue to one of these allegations. Under our system of statute pleading, or rather system without pleading, the general issue does not,, as at common law, admit the property to be in the plaintiffs, when accompanied by a brief statement denying the fact. When the pleadings do not admit the property to be in the plaintiffs, or do not present only an issue upon its being the property of the defendants, replevin cannot be maintained without proof of property in the plaintiff. Waterman v. Robinson, 5 Mass. 303; Wyman v. Dorr, 3 Greenl. 183.

It is not necessary to inquire, whether the testimony proved a confusion of goods. The rule applied in Loomis v. Green, 7 Greenl. 386, and in Lupton v. White, 15 Ves. 432, is a just one, that a person, who voluntarily mingles or intermixes his property with the property of another, must by proof distinguish his own property before he can recover the specific property. If the servant of the plaintiffs, so conducted as to render it difficult if not impossible for them to prove their own property, they, and not the defendants, must bear the loss occasioned by it.

The application for a new trial, for newly discovered evidence, must be denied. The fact, that the defendants, instead of paying in cash for the logs, secured the payment by a bond, cannot vary the rights of these parties. It can have no tendency to prove the logs to have been the property of the plaintiffs. And without such proof, as already stated, they cannot maintain the action. Nonsuit confirmed, and judgment for a return.