USA > New Hampshire > Merrimack County > Concord > Annals of the town of Concord, in the county of Merrimack, and state of New-Hampshire, from its first settlement, in the year 1726, to the year 1823 > Part 8
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actual seisin and possession of the whole. Though they also say, that this as to the purpose of giving them the seisin, is ex abun- danti, for the grantees by operation of law, were seized imme- diately upon the executing: their charter. But this entry and survey were especially designed that they might know and dis- tinguish their township from others. That as they were thus seized of the whole by consequence of the premises demanded, as these are confessed to be within the aforesaid bounds. That about five years after this, they enclosed a parcel of this land, on the easterly side of Merrimack river, by conjecture about three miles square. All which facts, they prove by sundry tes- timonies in the case. Four of which amount to nothing more of any consequence than is declared in the return of the said survey. But take them altogether, the plaintiffs allege, they prove an ac- tual entry on and possession of part, which they say is construc- tively a possession of the whole, and that continued so for the term of five or six years ; and from that time to this, (about a year) they have been improving of part of said land, which gives them a right to oust any person, who has entered and possesses any part within the bounds of their charter, in any other right or claim.
What they further offer, is either by way of reply to the defend- ant's objections, or as objections to the defendant's title.
Now to this title the defendant objects, and urges sundry con- siderations. In the first place he submitted, and would again, upon a new trial, be glad to submit the point to be adjudged, whether the plaintiffs have proved their declaration. They de- clare, " that on the 12th day of June, 1727, they were seized of the premises, with others their common lands in said town of Bow, in fee, taking the profits thereof to the value, &c. and con- tinued to be so seized thereof for one year then next ensuing, and ought now to have quiet and peaceable possession thereof ; yet the said John, within 23 years last past hath, without judg- ment of law, entered into the premises demanded, disseized the plaintiffs thereof," &c. To say nothing of the peculiarity of this declaration, the seisin which the plaintiffs allege they had, must mean (if it has any meaning) a seisin in fact, for no person ever took the profits by virtue of a seisin in law only. Now they nev- er sat a foot on the lands contained within the bounds of their charter, till the aforesaid survey, and how their seisin on the 12th of June is proved by an entry above twenty months after, is difficult to conceive. Besides this, the settlers of the planta- tion, called Pennicoke, which comprehends the lands in question, had been in possession of it above a year before the date of this charter, (as will appear beyond dispute, when we consider the defendant's title,) at present, only observe what is proved by sundry testimonies produced by the defendant, viz. That the April and May before the date of Bow charter, there were fifty men at work on the said plantation, clearing land, hewing tim- ber for a meeting-house, and pursuing other measures, in order
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to settle a town there. That they prosecuted the affair with, such vigor, as to have a minister ordained and a church gather- ed in the year 1730. But they were clearing the land there. almost two years before any of the proprietors of Bow had seen their land ; and all they did, when they entered, was only to run a chain, and mark some trees, at a great distance, round these laborers. They never so much as saw the land now demanded, where the settlers of Pennicoke were at work. And it appears, that they began to clear the land in question, when they first en- tered, because it is one of their house-lots, or home-lots, as they are commonly called, and in the nature of the thing, that should be first done. This possession has been continued without in- terruption to this day ; and indeed may well be computed (by the plaintiffs' rule of possessing land by walking round it) from two years before April above mentioned.
Now upon these facts, concerning the manner of entry and possession of these parties, it is easy to see with what propriety the plaintiffs could declare upon their own seisin ; and with what regard to truth it can be said to be proved.
But to proceed. Upon supposition the lands which the plain- tiffs claim were the King's, at the time their charter was made, (which was not the case in fact) yet the plaintiffs have not de- rived that right to themselves, for this obvious reason-The Governor's authority to grant the King's lands was limited by the right of jurisdiction, and that, by the commission to that part of the province of New-Hampshire, lying and extending itself from three miles northward of Merrimack river, or any part thereof, to the province of Maine, (now the county of York) which is the easterly boundary of the commission. The wester- ly boundary of which, is the line running three miles northward of Merrimack as aforesaid. Now the land demanded by the plaintiffs in this suit lies on the westerly side of Merrimack riv- er, more than three miles without the Governor's jurisdiction, by this commission, and consequently, he had no power to grant it ; for if it should be supposed he might grant the King's lands, out of his jurisdiction, where should he stop ? by what limits could he be restrained ? From the reason and necessity of the thing, therefore, it must be allowed, that the right of govern- ment, and the granting of lands was limited to the same ter- ritory. And the words of the commission necessarily imply, it did not extend over all that was called New-Hampshire. If it is conceded, then, that these lands are within the province of New- Hampshire, and were so at the date of the plaintiffs' charter, yet that concession will avail the plaintiffs nothing in this case.
Another objection to the plaintiffs' demand arises from the manner of their running out the bounds of their township. By their charter they were to begin on the south-east side of the township of Chichester. Instead of that, they began on the south-west side, as their return sets forth. Now what could jus- tify their proceeding in this manner ? If the land where they.
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were to begin was appropriated before, that could not authorize them to be their own carvers, to take what they are pleased to estimate an equivalent, without a new grant, which they never bad, nor did they ever make a return to the authority from whence they derived their title, for confirmation of what they had thus unwarrantably assumed ; for by their running, they take in a considerable tract of land, really without their charter, and which belongs to others. And if there was a mistake to their prejudice in the bounds given them, that is no new thing-the King himself is sometimes deceived in his grants. In such a case they should have applied to the grantor for redress. They allege they could not begin on the south-east side of Chichester, because it joined to Nottingham on that side ; but if it was so, what necessity of going four miles on Chichester before they began their measure ? Their return, indeed, says, they were directed to leave four miles, &c. ; this is no more than their own tale, for nothing appears to discover by whom, when, or where, this direction was given. But a verbal direction was not suffi- cient in this case ; they should have taken their land according to their grant ; and 'tis as probable as any thing they say as to this matter, the true motive for making this leap, (not'in the dark) was to get better land. Now the defendant avers it to be fact, that if they had run as they ought, from the southerly cor- ner of Chichester, they would not have reached the land de- manded.
But now to come closer to this title, as derived from the Crown, the defendant says that the right to all the lands the plain- tiffs claim as contained in their charter, was long before granted by the council of Plymouth, in whom the right of the Crown to them was vested, to Capt. John Mason, (if there had been no preceding grant from said council) which was confirmed by King Charles I., and has been recognized by every crowned head to King George I., from whose time till lately nothing was said of it, by reason of the absence or minority of the heir. By all which it appears that this right of Mason was always adjudged good. Now as the said lands were all waste or unimproved, ex- cept what the settlers at Pennicoke had done upon that which they claimed of them, they, beyond all question, belonged (agree- able to Queen Anne's orders and the concession of the Assembly here) to those who had Mason's right. And if this was the case, the Governor's grant could be of none effect as to these lands ; for the power of the Governor extends only to the right of the Crown, of which the Crown was long before divested. Hence it follows, the plaintiffs' title under the government cannot serve them, of which the defendant may take advantage ; for it is a well known rule that a defendant may plead any man's title against the plaintiff.
And here the plaintiffs agree with the defendant, and allow the right was Mason's, and that they cannot avail themselves of the charter aforesaid, only as a description of what they claimed, and
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were in possession of ; but say, they have that right, for that Mr. Mason's heir sold to Theodore Atkinson, Esq. and others, by deed, dated the 30th of July, 1746, and that the purchasers, by their deed of release, dated 31st of July aforesaid, conveyed their right to the plaintiffs, among others. And here the defendant, not willing to be in arrears, will in his turn at present agree with the plaintiffs, that they have Mason's right to their lands, and make no question whether the right of Capt. John Mason is now in his heirs or Allen's. But then must quere how a right, ac- quired in 1746, could give an actual seisin of the lands, the right to which was then purchased, so long before the purchase as 1727 ; that is, whether a man, by virtue of a deed made to-day, could be in actual possession of the land conveyed by it nineteen years ago ? Moreover, the defendant must deny a right was con- veyed by this release to the lands demanded, and whatever else is within the bounds of Rumford, that is the plantation of Pen- nicoke, for this reason. It is common learning on this subject, that a release operates only to those in possession, and the plain- tiffs' own declaration shows they have been out of possession above twenty years. What benefit then have the plaintiffs by this release as to the lands aforesaid ?
But now if we look into the release, we shall find it is made as much to the defendant as any person whomsoever. For he is an inhabitant of Bow, as the plaintiffs themselves style him, and this release is made to the inhabitants as well as to proprietors, of what they possess ; and as the defendant had possessed so long in his own right, he must of necessity be quieted by this release, if it has any effect at all, and it would be doing the greatest vio- lence to the words of it, to give them any other construction as to this point ; and if so, it is submitted whether the plaintiffs or defendant has Mason's right. But what may further be objected to the plaintiffs on this head, and indeed is what first occurs, it is a well known point of law, a chose in action or a mere right cannot be transferred, and Mason's title was no more, as to all the lands in the possession of those who were not parties at the time of making the said deed to Atkinson and others. 'The lands demanded, as well as all the plantation of Pennicoke, had been near twenty years in the possession of entire strangers to that transaction. And then what title can the plaintiffs derive to themselves under this conveyance to the lands in question ? This, and much more, the defendant conceives may well be offered in his defence, sufficient to defeat the plaintiffs' action, upon sup- position he had no title. But that is not the case .- We shall now „consider the defendant's title.
In the year 1725, upon the petition of Benjamin Stevens and others, a tract of land of seven miles square, at a place called Pennicoke, by the government of the Massachusetts Bay, was appropriated for a township, the bounds of which were as fol- lows, viz. " To begin where Contoocoke river falls into Merri- mack river, thence extending east seventeen degrees north three miles, and west seventeen degrees south four miles, which
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is the northerly bound of said township ; and from the extreme parts of that line southerly at right angles till seven miles are ac- complished from the north bounds." Now it is agreed on all hands, that within these bounds the lands demanded are contain- ed. And as the proprietors of Bow have run the bounds of the lands they claim, they take in something more than two-thirds of what is contained within the bounds above described. And, there- fore, as they have recovered part, they expect to recover the whole that lies within what they are pleased to call their limits ; for other parcels of which there are several other actions now pending. And here it may not be amiss to take notice of the vexatious method they take to recover what they claim, by prosecuting a great number of actions, each for a small parcel of land, that they may prevent an appeal home, and that they may have the advantage of the ignorance and prejudice of com- mon juries. And with a view to weary out and dishearten the defendants, who live at a great distance from Portsmouth, where all the courts are held, with the expense of charges occasioned to them by such a number of suits. Whereas they might as well have taken an action for all that lies in common, in the name of the proprietors of Bow, against the proprietors of Rumford, as well as the action against the present defendant, and others of the like kind. But to return. Among those who were to settle this town, is the name of the defendant and one Nathaniel Page, under whom he purchased a part of what is sued for. In the year 1726, a division of lots of upland and interval was laid out to the settlers, to hold in severalty, among which was the land demanded, part of which is that the defendant purchased of one Joseph Davis. These settlers prosecuted the settlement with such vigor, that in the year 1730 they had a minister settled, and a church gathered in said township. And in the year 1733, they were incorporated into a town, by the name of Rumford, (it not being the custom in this government to incorporate a tract of waste land without an inhabitant, but first to settle the land, and then make the settlers a corporation.) The act, by which this corporation was made, was confirmed by the King after- wards, in the year 1737. And notwithstanding their distance from other settlements, within, and none without them, the diffi- culties and hardships which necessarily attend those who first set down upon land in a perfect wilderness, where there is not the least sign that ever English foot had trod the ground before them ; and especially the danger, expense, and fatigue of an " Indian war, which they encountered .* Notwithstanding all these and other discouragements, these settlers have stood their ground ever since their first entry ; have persevered in their resolution, have planted a fine town, supply themselves and many
* Besides an actual war, they have been frequently driven into garrisons, and kept in continual fears for years together, or at least the whole summer season, which was occasioned again the next, by the threats and surly temper of the Indians.
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others within them with provisions, afford other places both de- fence and sustenance, and are likely to be a great advantage to the province of New-Hampshire in general. Yet these are the people the proprietors of Bow would eject ; would oust, not only of their all, but of that all they have thus dearly purchased. For what the said proprietors claim takes in all (within a very trifle) of the said improvements, which they would now cruelly, (I may say) ravish from them, after they themselves, with folded arms and indolence, have stood by a long time, and seen the others, with the greatest toil and expense, make these improvements. And the only reason that can be given for it is, they want some- thing of this kind, and having none, they have made of their own ; they take this as the shortest way of obtaining it. For to this day these proprietors of Bow have not settled five fam- ilies within their whole township ; and there is a great part of it clear of any dispute, and that part too which is nearest to the settlements within, yet nothing is done there, but they must needs overlook that, to come at this, the mark at which their whole view was directed. In short, they have not in the run of twenty years done as much towards settling a plantation, as they might, and as the others did, in two years ; yet they are so par- tial to themselves, so blinded by interest, as to think, that be- cause they once run a line round this land, &c. above twenty years ago, they have an indefeasible right to it, which yet they are unwilling to have brought to the test, and decided fairly in the cheapest way, but endeavor, by piece meal, to destroy the possessors. In fine, it seems they have set their eyes and hearts upon this vineyard, and perfas aut nefas they must have it ; for the actions they have recovered (which are several) have been against common right, the common known principles of law, and plain common sense. So much do they find their account in, and means to obtain juries, entire strangers to these things, or under the influence of a principle worse than ignorance.
But the plaintiffs object to the defendant's title several mat- ters. That which they pretend to be very material is first- The land called Rumford lies not within the bounds of what is now the province of the Massachusetts Bay, according to the last settlement of the line, the defendant himself will own ; and that settlement was not a new boundary now first made, but is to be considered in this view, viz. A declaration of his Majesty, of what was always the true boundaries of these provinces, that the province of New-Hampshire was always supposed to join to the Massachusetts, wherever the dividing lines should be fixed, and the lands now under consideration, lying in New-Hampshire, the government of the Massachusetts had no jurisdiction, or, which amounts to the same, if these lands were out of their jurisdiction, (" and the right of granting of lands was limited to the right of jurisdiction") their grant was void ab initio ; and therefore the settlers under them could derive no title to them-
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selves, but must be looked upon as, or actually were, disseisors. But as their entry was recent when Bow was granted, the pro- prietors might lawfully enter upon them ; especially considering the government of New-Hampshire had forewarned and forbid the committee, who were on the business of beginning the set- tlement of Pennicoke, to proceed in the name of the govern- ment of New-Hampshire. So there was really nothing in the way of the proprietors of Bow, any more than if there had been nobody there.
Before notice is taken of the principal objection, it cannot escape the most superficial observer, how weak it is for the plaintiffs to lay stress on this forewarning, by order of the gov- ernment of New-Hampshire, and in the next breath, as it were, to confess, that the government had nothing to do with it ; that the land was private property to which this related, an hundred years before. But as to the grand objection the defendant re- plies-When the land was appropriated as aforesaid for a town- ship, the government of the Massachusetts had the jurisdiction in fact. Suppose it not to be de jure, to whom were they answer- able for mal-administration ? not to the proprietors of Bow, nor even the government of New-Hampshire, for that government, by the commission then in force, did not reach to the place now under consideration, by several miles, as was hinted before ; then they could have nothing to do or say in the case. Who then was to correct this usurpation ? The King was so far from charging them with any imputation of that kind, that he approv- ed and confirmed the act by which the inhabitants of this planta- tion were incorporated ; and as to the proprietors of Mason's right, they were glad they had such good neighbors, for every acre these inhabitants cultivated, doubled the value of as many acres of those proprietors. Moreover, the government of the Massachusetts exercised all the powers and authorities of govern- ment, both legislative and executive, over all places, to the line three miles northward of Merrimack aforesaid, till the said last settlement, which were never annulled, or declared to be void, as must have been the case, had this notion been entertained, which these plaintiffs advance, that the said settlement of the line was only a declaration of what was always the true bounda- ries of these provinces ; or that all which the Massachusetts had done in this regard, was a mere nullity. And if the King has not seen it proper to nullify all those acts of government, what have the plaintiffs to do in the case ? It seems necessary that all should be deemed valid, or all void ; or by what rule can a distinction be fixed ? Besides, the settlement of this line, was on- ly to settle the jurisdiction, and not to affect private property ; nor was it ever designed to furnish a rule whereby that should be determined. And the acts done by either government with- in their respective limits, as exercised and used before the set- tlement, must be held valid to all intents, to avoid that confusion which the contrary notion would necessarily introduce, and
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which arises from connecting ideas which have no necessary con- nexion. That is, that the rights of government and the rights of property are always united, or that the latter has a necessary dependance on the former ; which, with respect to this very line, has in fact stirred a multitude of suits. If this opinion was true, the jurisdiction of a government ought never to be altered, without first hearing all parties whose properties would be thereby affected, which must be all those who have any real estates between the old and new line. And in what case of this nature was this ever done ? And yet if settled without it, that is without hearing such parties and determining their respective rights, this position would, in case of such alteration, (which frequently happens) be productive of the greatest mischief to private persons, not only by exposing them to suits, but by the ruin of those who held under the government whose jurisdic- tion should be contracted. Suppose the alteration in this case (as it might) had been, by fixing the line ten or twenty miles further castwards, would the notion that such a settlement was only a declaration of what was always, &c. then have prevailed ? and that all the real estates lying westward of the line must be- long to the inhabitants of the Massachusetts, and the old posses- sors be sent a grazing, or to look out and subdue new lands, and perhaps by that time they should be well settled, the like event might happen. Besides, where shall we stop ? Many or most of the ancient inhabitants within the towns of the same govern- ment, have derived their estates from town grants, which are laid out on any of the commons not before laid out in severalty, or appropriated. And by this rule, upon an alteration of the bounds of any two towns contiguous, there must arise the like transmutation of property and endless controversies ; for these towns are to many purposes distinct governments, and the gov- ernments are only larger corporations. Now the cases here put are the same in kind, and differ only in degree. From all which considerations, and many more that might be added, it follows, that the grants made by the government of the Massachusetts, before the settlement of the said line, within the jurisdiction they then had in fact, as well as other acts of government, must be held good, and the grant under which the defendant holds among the rest. Besides all this, with respect to the property of the soil, there is another matter to be considered. It appears by the present charter of the Massachusetts, that the property of the soil from forty to forty-eight degrees of north latitude, was granted to the council of Plymouth, and is a fact so well known, it is needless to offer evidence of it. It also appears by the re- cital in said charter, that the said council by their decd, dated the 19th of March, the third of Charles I. granted to Sir Henry Roswell, and others there named, their heirs and assigns, and their associates forever, all that part of New-England, &c. com- prehending the whole tract of land, which was called the Colony of the Massachusetts Bay, under the old charter. That about a
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