Hammond v. Morrell , 33 Me. 300 ( 1851 )

Tenney, J.

— The plaintiffs hold under Jabez Bradbury, who took a joint deed from the Commonwealth of Massachusetts, and the State of Maine, dated Oct. 24, 1832, of a township of land,' situated in the County of Piscataquis, in which was reserved one thousand acres of land for public uses averaging in situation and quality, with the other land in said township.” It is admitted by the plaintiffs, that by a statute of this State, and the proceedings under it, the reserved lands, on which the timber was cut, that is the foundation of the present controversy, was located and set apart from the residue of the township: But they deny that the statute and proceedings are valid so far as they purport to affect the part of the township and the reservation therein, which belonged to Massachusetts.

It has been decided that this State is entitled to the custody and possession of the lots reserved for the support of education and public worship, in a township granted by the Commonwealth of Massachusetts, before the separation of this State, until those come into being, for whose benefit the reservation was made. State v. Cutler, 16 Maine, 349. And by the statute of this State of March 28, 1831, chap. 510, sect. 9, which was in force at the time this township was granted, the Land Agent was authorized and directed, to take care of the public lots which had been, and which should thereafter be reserved for public uses, in the several townships, until the fee should vest in the’town or otherwise, according to the force of the grant, and preserve the same from pillage and trespass. And this provision is incorporated into the R. S. c. 3, sect. 45,

The title to these reserved lands did not pass to the grantees of the. other portions of the townships. Dillingham v. Smith, 30 Maine, 370. The custody and possession of these lands being in this State exclusively, and for the purposes of securing them from depredations, there is involved the right of the State to do whatever is necessary to secure this object. This may be done in no other mode, than by a severance of the part reserved from the residue; or by a prohibition to take from the township any timber or other property, which may be thereon. The statute of 1842, chap. 33, sect. 21, has provided that these reservations may be run out and located by a committee to be appointed by the District Court in the county where the land lies, and the proceedings are to be according to the mode prescribed in the Revised Statutes, chap. 122. The location is to be preceded by a notice in some newspaper in the State, and by posting up notifications, thirty days at least prior to the making of such location.

This notice being constructively at least to all who are the owners of townships, having lands so reserved in them, they become parties to the proceedings. The land which has been granted to them is subject to the jurisdiction of this State, and a partition of the township, when portions are held in common by them and others, according to the laws thereof, to which they cannot object, must be held as binding upon their rights according to their provisions. They have the opportunity of appearing, and being heard, in the location of the reserved lands. As tenants in common, they can demand that their rights should be respected and preserved. And they are presumed to have sustained no injury.

The grantees of townships, having in them a reservation of lands for public uses, have no interest in the part reserved, and they cannot invoke the rights of those in whom the fee legally rests, to dispute the power of this State over such lands. Shapleigh v. Pillsbury, 1 Greenl. 271.

Massachusetts is not represented in the dispute now before us, and the plaintiffs cannot take the objection that her rights are abridged in the location, unless it in some way interferes with their own, in which they can now be heard. The grant to the one under whom the plaintiffs claim, was while the statute gave to the Land Agent of this State, the care of the reserved lands; there was the reservation therein of one thousand acres, in very nearly the terms of the statute of this-State, passed in 1828, chap. 393, sect. 4.

The Commonwealth of Massachusetts have indicated no intention to interfere with the location of lands, reserved in the-joint deeds given by it and this State, and as the lands are to be under the care of this State, until those to be benefited by them come into existence, it is a very remote contingency, that there will ever arise any objection on the part of Massachusetts, especially if the object intended to be secured by the law of this State, providing for the location of such lands, shall be effectual.

The plaintiffs directed the timber to be taken from the entire township, thereby depriving the Commonwealth of Massachusetts, of the power to make a location of the reserved lands, so that they can be in the condition in which they were, previous to removal of the timber.

The acts of the plaintiffs in removing the timber from every part of the township, if no division had been made, without taking the steps provided by the Revised Statutes, chap. 129, sect. 7, were unlawful, and they are not entitled to that part of the timber, which is in proportion to the whole, as the reserved lands are to the entire township. They have no title to the value of this timber, by showing, that another party, to whom they are strangers, is not concluded by the location of the reserved lands. Chambers v. Donaldson & al. 11 East, 65, wherein it is said by the Court, “if he, (one sued for trespass upon lands,) plead soil and freehold in another, he must also show, that he had authority of that other.” Merrill v. Burbank, 23 Maine, 538.

The fee of one-half of the reserved lands being in this State as trustee, and having the possession and custody of the other half, for the purpose of preserving it from pillage and trespasses, and the lands being located in proceedings, in which the plaintiffs.are parties, it is not for them to treat those proceedings as a nullity.

Plaintiffs nonsuit.