Inhabitants of North Yarmouth v. Skillings

The opinion of the Court was drawn up by May, J.

Trespass quare clausum against the defendant, an inhabitant of the town of Yarmouth, for breaking into and en *139 tering upon certain flats, or sedge banks, situate in said town of Yarmouth, and cutting the grass growing thereon. The alleged act of trespass is admitted, but the defendant justifies it as the servant of said town of Yarmouth, and as an inhabitant thereof, and also as having been an inhabitant of the town of North Yarmouth, before, and at the time when that part of it on which he now lives, was incorporated into the town of Yarmouth.

The incorporation of Yarmouth was Aug. 8, 1849, and it is admitted that the whole title to the locus in quo was in the town of North Yarmouth, up to that time, and still is, unless it has been affected by the Act incorporating said town of Yarmouth. The territory composing the new town was taken wholly from the town of North Yarmouth, and the Act of incorporation provides that “ the inhabitants of said towns shall continue to hold and enjoy, in common, all the rights and privileges hitherto belonging to the inhabitants of North Yarmouth, in any and all public landings, cemeteries, gravel-pits, muscle beds, flats and fisheries of every kind, within the limits of said towns.” Private Laws of 1849, c. 264, § 5.

The deed under or through which the plaintiffs claim the flats or sedge banks, upon which the defendant entered, bears date May 25, 1743. A copy or record of it, found upon an ancient book of records, purporting to be the book of records of the original proprietors of the town of North Yarmouth, is made a part of the case. It recites, among other things, “ that, in consideration of the sum of five shillings, paid us by Messieurs Cornelius Soul, Jonas Mason and Edward King, selectmen and trustees of said town of North Yarmouth, there be and hereby are given, granted and sold to the said Cornelius Soul, Jonas Mason and Edward King, selectmen and trustees as aforesaid, in behalf of, and for the sole use, benefit and behoof of the present inhabitants of said town of North Yarmouth, and of all such as may or shall forever hereafter inhabit and dwell in the said town, all and singular the flats, sedge banks, muscle beds, and all other conveniences whatsoever in the said town of North Yarmouth, lying and being be *140 low high water mark, with all the privileges and appurtenances thereto belonging, (except the salt marshes on Small point,) to be by the said inhabitants forever hereafter held, used, occupied and improved, in common, and that all and every the said inhabitants shall and may forever hereafter have free and full liberty to graze, feed, cut rock weed, and dig all sorts of shellfish, on or by any other way or means to use and improve the said granted premises,” &c. Whether this original deed is to be regarded as a conveyance to the three individuals therein named, or to the town of North Yarmouth, as a municipal corporation, it is not now material to inquire. It is apparent, from the whole phraseology of the deed, that it was intended, by the proprietors of the territory of North Yarmouth, as a conveyance in trust, for the benefit of those persons individually who then were or might subsequently be inhabitants of the town of North Yarmouth. The idea that that town might subsequently be cut up into several distinct towns having other corporate names did not, probably, occur to the grantors. Their purpose, undoubtedly, was to grant the specific rights and privileges referred to in the deed, for the use of such inhabitants as then lived upon, or should afterwards, in all coming time, reside upon the territory of which they had been, or were then, the proprietors, and which they had conveyed or might subsequently convey to their grantees within the limits of their propriety. But whether the rights and privileges to be enjoyed, so far as the intention of the grantors can be gathered from the deed, were intended to be incident to, and dependent upon a residence within the limits of the town of North Yarmouth, as they then existed, or as they might afterwards be made to exist, it may not be essential to determine, because the case finds that the whole legal estate was in the town of North Yarmouth at the time when that portion of its territory was incorporated into the new town of Yarmouth, upon which the defendant resides. A construction that should regard all persons, resident within the old town when the new town was incorporated, as cestui que trusts, under the original grant, cannot be deemed inequit *141 able; and, if so, whether it was competent for the Legislature to cut off any portion of the cestui que trusts from the enjoyment of their individual rights and privileges, without their consent, would deserve grave consideration.

In the case before us, they have not attempted to do so. The whole purpose of section five of the Act incorporating the town of Yarmouth, before recited, was to secure to the inhabitants of both towns the continuance and enjoyment of the same rights and privileges, in regard to all public landings, cemeteries, gravel-pits, muscle beds, flats and fisheries which they had before enjoyed in common, within the limits of said towns; and, it is conceded by the learned counsel for the plaintiffs, that if the Legislature had the constitutional authority to enact that section, and the same is valid and binding, then the plaintiffs cannot prevail.

The law is now well settled that, “ in respect to public corporations which exist only for public purposes, as counties, cities and towns, the Legislature, under proper limitations, have a right to change, modify, enlarge or restrain them, securing, however, the property for the uses of those for whom it was purchased.” 2 Kent’s Com. 305; Angell & Ames on Corp., 3d ed., page 28, and authorities there cited; and such has been the uniform practice of the Legislature of this State, from its earliest existence. And the reason why this power exists, is, because the Acts by which such corporations are created are not contracts within the meaning of the constitution of the United States, or of the constitution of this State. The public good evidently requires that such corporations should be subject to legislative control. The Legislature, therefore, as the trustee of the public interests, is properly invested with unrestrained power over the existence of all public corporations.

It is also well settled that towns are public corporations. Inhabitants of Gorham v. Inhabitants of Springfield, 21 Maine, 61, and the authorities cited in defence fully establish the position that, where a town owns property, or is liable for outstanding debts, it is within the province of the Legislature, *142 at the time of the division of any such town, or the incorporation of a new town out of a part of its territory, to provide for an equitable appropriation or enjoyment of such property by the inhabitants of the old and new towns, or to impose upon each the payment of a share of the corporate debts. The exercise of this power, in this State and Massachusetts, has been so long continued, and so frequent, and so often acted upon by the highest judicial tribunals, as within the legitimate scope of legislative authority, that we feel no hesitancy in coming to the conclusion that the exercise of such power is constitutional and valid.

It is true that, without some legislative action in relation to the property and existing liabilities of the old town, upon its division, or the incorporation of a new town out of its territory, the old town will be entitled to the entire property, and solely answerable for such liabilities. It is said, by Parsons, C. J,, in the case of the Inhabitants of Windham v. Inhabitants of Portland, 4 Mass. 384 , that “a town incorporated may acquire property, real or personalit enjoys corporate rights and privileges, and is subject to obligations and duties. If a part of its territory and inhabitants are separated from it by annexation to another, or by the erection of a new corporation, the former corporation still retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties, unless some new provision should be made by the Act authorizing the separation.” The same doctrine is reiterated by C. J. Parker, in the case of the Inhabitants of Hampshire County v. Inhabitants of Franklin County, 16 Mass. 86 .

In the present case, such new provision seems to have been made, and made, too, in terms plainly indicative of the legislative will, that this defendant, and all others resident within the limits of North Yarmouth, as it then existed, should continue to enjoy, so far as relates to the flats and sedge banks in question, the rights and privileges to which he had been accustomed prior to the incorporation of the new town of Yarmouth.

*143 We do not find, in view of the fact, that the town of North Yarmouth, at the time of the incorporation of Yarmouth, held these flats and sedge banks in trust, solely for its own inhabitants, any thing which prevented the Legislature from providing by law, upon the separation, that all the inhabitats of both towns should enjoy the rights and privileges to which they were then entitled as cestui que trusts, in the same manner as if no separation had taken place; or, in other words, we see nothing in the circumstances that could restrain the Legislature from providing that, for the purposes of justice and equity, both towns should be regarded as North Yarmouth, so far as should be necessary in order to give efficacy to all the rights and privileges to which all the inhabitants were then entitled, and would have continued to be entitled by virtue of the trust, if the new town had not been created. And this is in effect what has been done. Eor the enjoyment of these rights and privileges, provision was made that the tenancy in common which then existed, under the trust, between the inhabitants upon the whole territory of both towns, should continue in the same manner as if no separation had occurred. So far, then, as the Act of incorporation of the new town related to these rights and privileges, no separation did in fact take place, or, if it did, the old town must be regarded as holding the legal estate in trust for the inhabitants of both.

This case is wholly unlike the case between these parties, reported 34 Maine, 411, and cited for the plaintiffs, on which much reliance is placed in the argument. The distinction between the two cases is very clear. In that case the corporation which held the funds in trust was a private corporation, and, for that reason, not subject to legislative control. The attempt of the Legislature to change the direction and application of funds, so held, was very properly regarded as unconstitutional. It is very apparent from the reasoning and authorities cited in that case, that the Court would have come to a different result, if the funds, which were attempted to be divided by the Legislature, had been in the hands of the town, and not in the hands of a board of trustees, to whom they *144 had been conveyed in trust for specific purposes, by an Act of the Legislature of Massachusetts, passed in 1806. That case turns wholly upon the fact that the trustees of the fund were a private, and not a public corporation.

In view of all the facts in this case, we are of opinion that the defendant has established his justification, and is, therefore, entitled to a judgment in his favor. Plaintiff nonsuit.

Tenney, C. J., Hathaway, Goodenow, and Davis, J. J., concurred.