THE STATE OF NEW HAMPSHIRE
Rockingham, ss. -- May Term, 1959
Town of Hampton
Richard Palmer, Ruth Palmer, Philip Palmer,
Shirley MacRae, Chester Marston, Winthrop
Blake, Arthur Sherburne, Edmund Langley, Jr.,
Lillian Randall, Kenneth W. Langley, Pauline A.
Langley, Alice E. Norton, and Myron I. Norton
BRIEF FOR THE DEFENDANTS
By their Attorneys
Burns, Bryant & Hinchey,
Donald R. Bryant.
STATEMENT OF THE CASE
This is a bill in equity brought by the plaintiff to establish and quiet title as against the defendants. The plaintiff had first brought actions at law against the various defendants. The plaintiff's right to maintain the present action in equity rather than at law was sustained by the Supreme Court. Hampton v. Palmer, 99 N. H. 143. The case was tried before the Court who made findings of fact and rulings of law. The defendants excepted to the admission and exclusion of evidence, denial of motions, denial of requests for findings of fact and rulings of law, to various portions of the Court's findings of fact, to all portions of the Court's rulings of law and decree, and to the granting of certain of the plaintiff's requests for findings and rulings (Record, page 1). The case is before this Court on a reserved case. The material facts will be stated during the course of the Argument.
1. The Court erred in failing to find that the land occupied by the defendants was formerly a part of the First Division, and also owned by proprietors of the First Division rather than by the Town of Hampton.
Hampton was settled in 1638 by various individuals authorized by the Massachusetts Bay Colony to enter the area. Thereafter, Massachusetts claimed jurisdiction over the settlement, which was first called Winnicunnet and later Hampton. The territorial bounds of Massachusetts extended only three miles north of the Merrimack River. Massachusetts claimed that this entitled her to claim land as far north as Endicott Rock on Lake Winnipesaukee, which would be three miles north of the source of the Merrimack. The controversy was later decided, however, by the highest English authorities against the claim of Massachusetts, and the northerly line was established three miles north of the mouth of the Merrimack. This was southerly of the Town of Hampton, which then fell in the Province of New Hampshire. (R. p. 282, 1. 27-42).
The plaintiff introduced various exhibits of colonial laws of Massachusetts authorizing towns to apportion land. Actually, Massachusetts had no authority over the territory included in Hampton. The plaintiff claims that de facto recognition must be given to acts accomplished under authority of Massachusetts. There is, however, no actual grant of any land to the town by Massachusetts. The town was, at most, recognized as an agent to allot the land, but not as an owner of the land. It is submitted that the town was not the owner. South Hampton v. Fowler, 52 N. H. 225, 230, 232.
The defendants consider it unnecessary, however, to go back to the founding of Hampton in this case. The action of the town established certain divisions of land and put ownership of these divisions in commoners of Hampton. If the town did own any land at this time, it ceased to become the owner on the establishment of divisions. In our particular case, the land at North Beach, where the fish houses are now situated, was part of the First Division. This division was owned by the Proprietors of the First Division. They were a separate and independent body from the Town of Hampton. They owned the common land of the First Division as individuals. (R. p. 294). They never transferred their ownership of any common land to the Town of Hampton. If valid claims of adverse possession have not been established, then the land still belongs to the heirs of the Proprietors of the First Division, and the Town of Hampton has no claim to it. The Town itself has never been in possession of this property.
It will be noted in reviewing the records that there is at times some confusion between meetings of commoners and meetings of inhabitants of Hampton. All persons who inhabited the Town were not commoners. Those persons were commoners who owned a share in the Cow Commons. The Cow Commons was established for the benefit of the early settlers giving them rights of pasturage, etc. in certain common lands. Their descendants inherited their rights in these lands, Dow, History of Hampton, p. 154 (Ex. 138). In the early days, all the male inhabitants of the town were commoners. As time went on and new persons came to the settlement, there came to be a distinction between those who were commoners and those who were not. In the early days, business of the commoners was often transacted at town meeting by the commoners. Oftentimes, a vote of the commoners would be taken at a meeting of the town or a meeting of the freeholders. It became necessary to pass a vote, which will be referred to hereinafter, prohibiting persons who were not commoners from voting on commoners' affairs. The population having increased we find in the 18th Century that there is more reference to meetings of the commoners than there was formerly. Commoners held meetings separate from the town in dividing and allotting land and doing other business. It is quite probable that the business of the commoners was always conducted by themselves alone, either at a town meeting or at a commoners meeting. Unfortunately, where it was done at a town meeting, the books sometimes have reference to action of the town when in reality action was taken by the commoners.
Judge Elwyn L. Page, a retired Justice of the N. H. Supreme Court, testified for the defendants on this branch of the case. Judge Page has done considerable research on records of the Town of Hampton and has also had experience in a variety of other historical research. He found that on December 23, 1645, it was voted that all of the land in Hampton should be divided into 147 shares, excepting a tract of 200 acres and parcels of land already granted. (R. pp. 283-4). These 147 shares were called Shares of Common and were allotted to the proprietors of house lots. A list was made of the owners of the shares. (R. p. 283). Judge Page found from the records that this common land was also referred to as the Cow Commons. The territory divided into 147 shares included all the land which fell into what later became known as the Five Divisions. (R. pp. 289-290) . The First Division of these included the land on the seacoast in our area.
On November 30, 1722, a list was made by the proprietors of the five divisions in Hampton, showing the original 147 shares and the persons who then owned them. This list is preceded by the statement:
"Whereas the Commoners or Proprietors of certain land called the the Cow Common in Hampton did agree to divide the Common into five parts, or divisions, and chose the subscribers to decide any differences that might arise concerning what persons should belong to each division, as may appear by a vote bearing date of the 26th of October, 1722, and likewise we were empowered by a vote bearing date of the fifth of November, 1722, to settle the original right of the shares in each division, pursuant to which vote we have divided the original right into as many parts as there are claimers ... " (R. p. 289).
This vote of the proprietors of the Cow Common shows that all the land in the five divisions of Hampton was included in what was known as the Cow Common. The listing of the then owners of the original 147 shares shows conclusively that the land in these five divisions was part of the land that was divided into these 147 shares in 1645. (R. pp. 302-303) . This proves, as conceded by the plaintiff, that the land in the First Division was owned by the commoners of Hampton, and not by the Town, from the year 1645.
The distinction between freeholders and commoners was emphasized by the meeting of November 18, 1700. It was there voted that a fine should be levied against "any person that shall presume to vote for the disposal of any land that is not a commoner according to the first grant of shares in the Cow Common in the Town." (R. p. 316). This vote was necessary because lands were sometimes disposed of at town meetings. On such matters only commoners were supposed to vote. As a result of violations of this rule, the above fine apparently had to be levied. On July 5, 1714, a vote was taken for the Town Clerk to hold certain money belonging to the commoners to be kept by him "for the use of the commoners." On the same date, there was a vote for the Town Clerk to hold certain bills due to the commoners. (R. p. 288). On December 5, 1720, there was a vote ordering the Town Clerk to put no returns of lands laid out by any lot layer "unless ordered by the proprietors or commoners to lay it out and the return approved of by the said commoners." At another meeting of the proprietors of undivided lands on June 1, 1738, it was voted to have a committee to get the return of laying out certain lands on the town book. (R. p. 288). There are also other votes of proprietors providing for certain returns and drawings of lots to be set forth on the town books.
In 1722 the First Division was laid out by the "proprietors of ye common land", and described, "ye First Division to begin att. Benja: Moulton's Sen.& straight to Benj : Lamprey's Junior & then North until it comes to ye Old North Division."
An issue developed during the trial of the case as to whether the First Division went to the sea. The defendants contend that the Court erred in finding that the First Division did not go to the sea. The North Division lay on the seacoast just north of the First Division. (Exhibit 5). The bounds of this division state that it is bounded easterly by the sea. (R. p. 286, 1. 18). This indicates that the First Division, which was established at about the same time and is contiguous to the North Division, is also bounded by the sea. There are several references in the records to the "owners and proprietors of the First Division of lands next the sea". (Exhibits MM-11 and MM-12; R. p. 291). This indicates that the First Division lands extended to the sea. There is a grant to Joseph Philbrick in 1722 of a tract of land bordered by the sea. (R.p. 291, 1. 35-371.
In the return of the First Division in 1738, there is laid out "a highway beginning at the main road on the first hill and running over the lower way of Nilus where the carts go over and continues until it comes to the north end of the Little River Green and east to the sea." (R. p. 295). This highway formed the northerly border of what was known as the Little River Green, which is Lot 37 in the layout of the First Division. (R. p. 295) . This lot is immediately north of the fish house area since its south border is the fence from Tuck's Mill to Little River Green.
Directly to the south of the First Division was the tract of land known as the Great Ox Common. This tract was owned and controlled by its proprietors. This was one of the earliest parcels of land occupied in Hampton. It was established in 1641 as bounded on one side by the sea. (R. p. 285, 1. 3). The commoners owned and controlled the beach. A vote in 1738 speaks of the "beach .. . belonging to the owners of the Great Ox Common." (R. p. 285, 1. 31-43).
There are other votes of the commoners exercising control over the beach. A committee of the commoners was given power to lot out the beach. (R. p. 286, 1. 1). These votes confirm that the Great Ox Common went to the sea and that ownership of the beach was in the commoners.
Since the North Division is directly to the north of the First Division and the Great Ox Common is directly to the south, and both went to the sea, the First Division also must have gone to the sea. This is confirmed by the description of the owners of the First Division as owners "of lands next the sea", by the fact that a highway was laid to the sea, by a grant to the sea and by other factors, including certain votes of the proprietors of the First Division and of Huckleberry Flats.
In 1733, the proprietors of the First Division voted to dispose of the flats lying south of the line from Tuck's Mill to Little River's mouth to those men who would build and maintain a fence on that line, "so as to stop the cattle from coming that way on to the beach forever." (R. pp. 291-292). The land was given to twelve men in equal parts. In 1738, these men gave a bond to the proprietors of the First Division to maintain this fence. (R. p. 292).
In 1747, the twelve proprietors of this tract of land, called Huckleberry Flats, divided the land between them into twelve lots. A drawing of the lots was held and confirmed. It was also voted by these proprietors:
"That not any person or persons on any account what so Ever shall cut any grass or anything Else that grows East ward of the Line that is the Eastly buttlement of the said twelve Lots of Marsh or flats as they are now Laved or shall grow between said Line that is on the Eastly Ends of said Lots and Beach with out the consent of the Major part of said Proprietors for Ever ... Votes." (Exhibit 7). (R. p. 292). This vote shows that the proprietors of Huckleberry Flats considered themselves as owning the land to the sea. The fence was constructed to Little River's old mouth. The mouth had to be the point where the bed of the river met the sea. The proprietors, in dividing the lots, reserved their rights over the beach as in the above quoted vote. The proprietors of Huckleberry Flats gave a bond to the proprietors of the First Division to maintain the fence and keep cattle from coming onto the beach. This shows that the beach was considered to be in the First Division.
Judge Elwyn Page, a scholar of New Hampshire history, testified that the First. Division went to the sea. (R. p. 292, 1. 23 - p. 203, 1. 34). He said that the title to any beach property that has not been granted is in the proprietors, rather than in the Town of Hampton. (R. p. 294, 1. 6-33). He held to the same opinion after cross examination. (R. p. 320, 1. 1-5). The plaintiff produced no expert, though the plaintiff had the resources to obtain one if an expert could be found to support the plaintiff's contentions. Even Attorney Batchelder who professed considerable research and information regarding Hampton lands was not asked to testify for the plaintiff on this issue.
Along with the other evidence, the fact that the proprietors of the First Division, and later of Huckleberry Flats, voted to take measures to control the beach shows that the beach was included in the First Division. The only right which private individuals had to control the beach rested on ownership. There was good reason for inclusion of the beach in the First Division. Erosion of the beach would tend to damage land behind it, owned by the proprietors. They were the persons primarily concerned with maintenance of the beach. They had a much greater interest in it than did the townspeople as a whole. It was only natural that when they acquired their marsh lands, flats, or pasture lands, that they also acquired the means to protect them. The Town of Hampton covered considerable area, as the plaintiff has pointed out. Many inhabitants lived at great distances from the beach and had little interest in it. It is unreasonable to suppose that the proprietors of the Cow Commons, and later of the First Division, were required to obtain the assent of a majority of the townspeople in order to take measures for their own protection.
The fact that grants of land at the Ox Common, or at Huckleberry Flats, did not go to the sea is immaterial. The proprietors in such instances reserved the beach to themselves for the protection of their lands behind it. Lack of ownership by one person simply proves ownership by many. There were some instances, though, of grants to the sea, which confirm the ownership of the proprietors to the sea. (R. p. 291, 1. 30-37; R. p. 319, 1. 2-14; R. p. 322, 1. 19, 1. 28: R. p. 326, I. 16-19; exhibit Q, exhibits 0-1, 0-2). One of these deeds used the terms "sea" and "beach" alternatively as meaning the same thing, and another the terms "beach hill" and "high watermark". (R. p. 325, 1. 13-43).
It is clear that the proprietors, or commoners, as they were also called, held the land in their individual capacities. They allotted it by vote. When they deeded a lot each signed the deed. (R. p. 304, 1. 16-25; Exhibit P).
The later votes of the Town after 1755 and in the 19th and 20th centuries relating to cutting of grass, etc. on the beach, if admissible, do not justify a finding that the First Division did not go to the sea. They were votes by a public body holding certain police powers. Since the town had the right to pass such votes by virtue of its police power, the votes do not indicate that the Town was claiming to own the land. The plaintiff has cited laws passed by the Legislature relating to the beach (R, p. 9, 1. 41, p. 10, 1. 1; Ex. 136). The plaintiff does not contend that the passage of these laws meant that the Province or State owned the land.
These votes of the Town aided the Proprietors by assessing penalties for violation of the votes. The votes were exercises of the Town's police power to protect the inhabitants. Private rights were restricted for the general good. They no more indicate that the Town owned the land than does a zoning ordinance or any similar exercise of the police power. Knowles v. Dow, 22 N. H. 388; South Hampton v. Fowler, 52 N. H. 225.
Also, these particular votes above stated did not apply to the land occupied by the fish houses. Since the fish houses were on the land there was no possibility of cattle or horses roaming there. The structures on the land protected it and prevented the sand from drifting away. The beach grass votes had no application to this area.
The rights of proprietors are recognized by our decisions and laws. Coburn v. Ellenwood, 4 N. H. 99; Atkinson v. Bemis, 11 N. H. 44. They were allowed to sue and be sued, and their acts disposing of land were given legal effect. Where land is owned by proprietors, their ownership is presumed to continue until a grant from them is shown. Cobleigh v. Young, 15 N. H. 493, 502. Where a town is incorporated, the act of incorporation does not give it title to ungranted lands within the town. South Hampton v. Fowler, 52 N. H. 225; Seabrook v. Fowler, 67 N. H. 428.
The Town has the burden of proving that it has title to the land in dispute. We submit that the evidence does not justify the Court's finding (R. p. 30, 1. 40-43; p. 35, 1. 4-5) that the First. Division did not include the beach. Nor does the evidence sustain the Court's finding (R. p. 35, 1. 6-8) that the fish house area was not part of the land divided into 147 shares in 1645. Nor that the fish house area was reserved by the Town. (R. p. 35, 1. 24-27).
The Court found
"The grants of the Cow Common and Ox Common did not include the beach and the inhabitants of the Town never relinquished the rights of the Town in and to the beaches from the mouth of the Hampton River to the North Hampton line as evidenced by the protective actions taken at many town and proprietary meetings."
This finding shows that the Court's decision that the beach was not part of the First Division is based in part on the action taken to control the beach at meetings of the proprietors of the First Division. Any action taken by the proprietors shows that the beach was owned by them as individuals and not by the Town. Such action certainly does not support a conclusion that the beach was owned by the Town. Since the Court's ruling is based in part on evidence that does not sustain it, the ruling must be set aside.
The defendants respectfully submit that the findings and rulings of the Court referred to above should be set aside, and that the defendants' requests numbers 2, 3, 4, 5, 6, 7, 8, 9, and 10 (R. p. 2) should be granted.
II. The exceptions of the defendants to the admission of evidence of various votes of the Town concerning the beach should be sustained.
The plaintiff offered evidence of certain votes of the Town concerning the cutting of grass on the beach, running of cattle on the beach, care of gates to the beach, taking of seaweed, etc. to which the defendants excepted. (R. p. 206, 337. exhibits 36, 38, 41, 44, 45, 47, 48, 49, 52, 78, 79, 80, 135 A-H). This evidence should not have been admitted. In the case of South Hampton v. Fowler, 52 N. H. 225, 231, the Court held that such votes, not accompanied by possession of the Town, were inadmissible in evidence. There is no evidence of possession by the Town of any beach lands until the town laid some of the beach (not including the fish house area) out into lots in 1909. The numerous votes prior to 1909 should not have been admitted in evidence. The Court erred in admitting the evidence, and in basing his decision on it. (R. p. 35. 1. 11-15).
The Court also held in South Hampton v. Fowler that the beach lands (which were formerly part of Hampton) were held by the Town of South Hampton in a private capacity and not as a municipal corporation. Also, these votes did not, relate to the fish house area, which was occupied by fish houses. No cattle could run there, and it was covered by buildings rather than by growths of beach grass and peas. These votes do not support an inference that the Town claimed the fish house area. The Court, however, admitted them, considered them, and denied defendants' requests 9, 10, and 11 asking that they be not considered. The findings and rulings of the Court, being based in part on these votes, should not be sustained.
The Court also admitted evidence that certain beach land, not including the fish house area, had been divided into lots and leased by the Town. Also, a quitclaim conveyance by the Town to the United States of the Coast Guard station area in 1898, and quitclaim deed by the Town to the State of New Hampshire of certain beach land in 1933. The defendants excepted to this evidence. The Court considered this evidence and referred to it in its findings. (R. p. 32, 1. 30-40). None of this evidence related to the fish house area. The defendants' exceptions to its admission and to the findings of the Court relative thereto, and based thereon, should be sustained.
III. The various findings and rulings of the Court that the fish house area has long been held, and is now held, by the Town in a governmental capacity should be set aside.
The Court found that the Town has held the fish house area for common use by commercial fishermen, farmers, and other inhabitants. (R. p. 34, 1. 44, p. 35 1. 3). The Court ruled that the Town has held the area in a governmental capacity (R. p. 35, 1. 16-18) . The Court, in view of these findings, made no findings of fact with respect to the defendants' claims of adverse possession, since individuals cannot gain adverse possession of lands held by the town in a governmental capacity. (R. p. 36, 1. 10-14). The defendants submit that. the evidence does not sustain these findings and rulings.
There were numerous witnesses called by the plaintiff to testify to going to the beach to obtain seaweed. These witnesses uniformly agreed that they went to the beach over certain definite driveways. (R. p. 41 (Elroy Shaw), 47 (Charles Blake), 63 (Edward Batchelder), 101-102 (Arthur Sherburne), 109-110 (Frank Leavitt - "rights of way"), 127 (Ernest White), 135 (John Ryder), 146 (Chester Marston), 162 (Lewis Mace), 181 (Winthrop Blake), 190-191 (Philip Palmer), 196 (Myron Norton), 201 (Fred Blake), 209 (Maude Irish) , 215 (Henry Hobbs). One of these ran north through the present Nason property to the shore on Plaice Cove. Two or three others ran between the fish houses in the area. These driveways were also used by hunters transporting boats to the beach. The fact that members of the public did use these passways does not indicate that the public was claiming any rights in the whole area. The fish house owners uniformly denied that the public would picnic near their houses or occupy the land immediately around them. The fish house owners had no objection to the use of certain driveways by the public. This is far from showing, however, that any rights in the remainder of the property have been acquired by the Town. Furthermore, the fish house owners were only too glad to be rid of the seaweed, since it got in their way. (See above record citations).
In Knowles v. Dow, 22 N. H. 388 (1851) the defendant established a right to take seaweed from the shore in Hampton, but it did not defeat the plaintiff's ownership of the property which he had acquired by adverse possession.
It is noteworthy that witnesses testified that seaweed would also be obtained on the shore in Plaice Cove, which is agreed to be private property formerly in the hands of the Leavitt family. Bathers would also cross the Coast Guard property to get to the beach. (R. p. 267, 1. 32-38). Neither of these actions are claimed to give the public any rights either in the Plaice Cove property or in the Coast Guard property. Neither have any rights been acquired by the public in the area under dispute except for certain passways. Barker v. Company, 78 N. H. 160, 165.
The plaintiffs introduced evidence that in the late fall hunters are accustomed to use their boats from in front of the fish houses. They went to the beach through the passways previously described. (R. p. 81, 90, 182). They were normally there at a time of year when no one was occupying the fish houses. (R. p. 84, 202, 203). Some of these hunters were friends of the fish house owners. Only three to six boats would ever be left at the fish house area during hunting season. (R. p. 200).
Hunters made a similar use of Boar's Head, which the Town does not claim to own, and is acknowledged to be private property. (R. p. 40, 66-67, 90-91, 186, 280). They drew their boats up on shore there during hunting season.
This limited use of the fish house area for hunting, during a time of year when the buildings were generally unoccupied, does not justify an inference that the Town owned the area. At most the public had only an easement.
The Court also found that the area was used by the public for bathing. Bathing is carried on below high water mark. The defendants do not claim to own the land below high water mark, so use by the public beyond this point is immaterial. The bathers used the driveways to get to the beach. (R. p. 211). The area was never used much for bathing, which was not very good there. Bathing was generally carried on at the Coast Guard Station lot, or south of it. R. p. 156, 195, 267).
Boating during the summer was confined almost exclusively to the fish house owners, and those using the fish houses with their permission. There have never been more than three or four boats of the general public there. (R. p. 89). They were taken down the driveways. (R. p. 89). The fish house owners gave permission and were always willing for these few boats to be moored in front of their properties. (R. p. 82, 106) . Some were left at the driveway between buildings 11 and 12. This evidence establishes only certain rights of way through the area, and certain permissive uses. These uses for bathing and boating were so slight and incidental, in any event, as not to justify any inference that the Town owned the land.
The Town has never exercised any dominion or control over the fish house area with one small exception. This exception was when Edmund Langley, Jr. sought to erect a building between No. 11 and No. 12, in 1935. He moved it at the Town's request because he was unable financially to fight the matter at that time. Nevertheless, Harry Munsey, selectman, told him then that he (Munsey) was not aware that the Town had any authority over the area. (R. p. 76, 1. 20-26). Munsey did not deny this when he appeared on the witness stand. This act by the Town does not show any claim of right to the whole area. The area between No. 11 and No. 12 was used as a passway to the sea by the public. The Town's act is only evidence that the Town sought to keep this passway open. It is no evidence that the Town was asserting any right over the property occupied by the buildings.
All the fish house owners testify that the Town has never disturbed them in their possession of the premises. They have never asked permission of the Town for anything they have done there. The Town has never occupied the area or interfered with their use of it. (R. p. 52, 66, 91, 96-97, 106, 153, 176, 183, 192, 241). Elroy Shaw, selectman from 1914 to 1950, testified that the Town had never occupied any part of the fish house area. (R,. p. 41, 1. 19-33). No fish house owner ever asked his permission as a selectman for any use the owners made of the area or of their fish houses. (R. p. 42, 1. 15-27). Edward Batchelder, selectman from 1935 to 1947 (R. p. 62, 1. 30-32) said that he knew during his term of office that the fish houses had been changed, altered and enlarged at different times. He knew that none of the owners were asking permission for what they were doing. No one ever asked permission for use of the buildings for recreational purposes or for dwelling purposes. Permission was not asked with respect to use of the fish markets or any other use of any of the properties. (R. p,. 68, 1. 20, p. 69, 1. 9). This evidence indicates a lack of any claim or interest in the land on the part of the Town. It also demonstrates the adverse nature of the claims of the occupants.
In 1947 the Town brought suit to prevent one Alfred K. Nason, owner of a shore lot adjoining the fish house area on the north, from appropriating some unoccupied land at the north end of the fish house area. This was not a claim by the Town to land occupied by fish houses. Moreover, the claim is too recent to be material in determining the status of the land in past decades.
Though the Town has not controlled the area or shown any claim to it through the years the various fish house owners have. The defendants introduced many deeds and probate records showing former owners claimed to own the land. Though the Court did not reach the issue of adverse possessions these deeds and records are significant to show that the Town was not occupying the area or holding it in a governmental capacity. We shall refer briefly to the defendant's claims to the various lots. These are discussed in detail in the brief submitted to the Superior Court on pages 23-60.
No. 2—Shirley MacRae. This is the most northerly of the fish house properties. Mrs. MacRae claims through her great grandfather, Arthur Blake, who lived from 1844 to 1931. There was testimony that Arthur Blake and his descendants claimed the land, though permitting others to temporarily erect a camp there. (R. p. 99-100, Harold Blake (testimony not printed).
No. 3—Chester Marston and Winthrop Blake. These men have occupied this same lot since 1905 when they placed a building there. They claim the land and have never asked permission for anything they have done there. (R. p. 150, 183).
No. 4—Arthur Sherburne. This building was first a lobster house, then an ice house, and later a store house. The fish house and lot were deeded by George W. Brown to Randolph Delancey in 1909 (Ex. H). It was listed in 1913 as real estate in the probate of Delancey's estate, and inherited by Ellen, his wife. At her death in 1917, it was acquired by Randolph's brother, Curtis Delancey, for debts owed him by the estate. In 1924, he deeded it to Frank E. Leavitt and Amos T. Leavitt (Ex. D). Amos T. Leavitt, Jr. inherited his father's interest in 1938. In that year Amos Jr. deeded his interest to Frank (Ex. G). Frank deeded the "fish house lot, with the buildings thereon" to Sherburne in 1945, who has since claimed title to the land. (R. p. 106).
No. 5—Edmund Langley, Jr. Langley acquired this property from Charles Blake in 1946. He did not ask for a deed. Charles inherited it from his father, Levi, who had inherited it from his father, Moses Blake. Though Charles said he claimed no title to the land, he was unable to say that Levi and Moses made no such claims. He never asked for permission for anything he did there, which included altering and rebuilding his property. (R. p. 49-50, 52).
No. 6—Lillian A. Randall. The earliest record on this property is a warranty deed from Theodate H. Godfrey to Randolph P. Delancey (Ex. K) dated in 1886, and recorded. The Randolph Delancey estate is discussed supra under property number 4. Subsequently it came into the possession of George Purington, and his only heir, Jacob Purington. Bertram Randall purchased it from .Jacob in 1932, receiving no deed. He occupied it till he died in 1950, and his mother, Lillian Randall, his heir, has possessed it since then. There was evidence that .Jacob Purington said he was selling the land as well as the building. Bertram claimed title to the land, as has Mrs. Randall. Bertram improved the property and prevented others from using it. (R. pp. 172-177, 208-209).
No. 7, 8—Kenneth and Pauline Langley. The earliest record is a deed from David and Mary Garland and Charles and Mary Lamprey to Randolph Delancey in 1872 of a "fish house and lot." (Ex. V). The property followed the Delancey chain of title, previously described, ending in ownership of Frank and Amos Leavitt, Jr. In 1938 Frank deeded his interest in these lots and buildings to Amos, Jr., conveying his interest "in a certain Fish House Lot with the buildings thereon." (Ex. E). The deed states this lot was bounded in the rear "in part by common land". This shows that Frank Leavitt distinguished between common land and the land occupied by the fish houses. Amos, Jr. was not a fisherman and lived in Number 8 from 1926 to 1946. In 1946 he gave a warranty deed to numbers 7 and 8 to Kenneth and Pauline Langley, claiming to own the land. (R. p. 96, Ex. 58). They have improved it, paid taxes on both land and buildings, and claimed title to the property. (R. p. 94-95, 96-97).
No. 1, 11—Ruth Palmer, Philip Palmer, Richard Palmer. No. 1 is the Palmer fish market and No. 11 the fish house. The earliest record of No. 11 is a warranty deed from Dearborn Shaw to Josiah Palmer dated 1861. (Ex. 73). This deed is particularly significant since it was witnessed by and acknowledged before Uri Lamprey, an attorney and representative of the Town of Hampton. He was once chosen to serve on a committee to ascertain ownership of land in the beach area. (R. p. 323-324, Ex. 50). He doubtless prepared this deed. He certainly would have had no part in this transaction had he believed that the Town owned the land on which this fish house rested. The property descended from Josiah Palmer, to Henry Palmer, to Charles Palmer, husband of Ruth, and father of Philip and Richard. Charles died in 1946 and the inventory of his estate shows the market and fish house listed as real estate. (Ex. VV). There was considerable evidence that Charles claimed the land around these buildings. (Winthrop Blake, Maude Irish, Ruth Palmer, Philip Palmer—evidence not printed) . The market stands on land formerly used by Charles and previous ownersfor fish flakes, nets, etc. (R. p. 191, 1. 6-17).
No. 12—Myron and Alice Norton. The chain of title begins with a deed from Miriam Palmer, Administratrix of the estate of Joseph Palmer to .John C. Palmer in 1863. (Ex. 83). She conveyed by virtue of a license to sell real estate (Ex. SS). The property was inherited by his sons, George and Harry, who used it for fishing. Harry died a single man and George conveyed the land and buildings in 1944 to the Nortons by Quitclaim deed. There was much evidence that. George and Harry Palmer claimed the land. (R. p. 175, 265-266, testimony of Winthrop Blake, Philip Palmer, Myron Norton, Maude Irish, Harold Blake, Ashton Norton not printed). The Nortons have improved the property and claim title to the land.
Delancey deeds. In addition to the deeds previously mentioned Randolph Delancey acquired deeds to certain fish house lots now vacant at the north end of the property. (Ex. S, T, U) . Randolph prepared a plan of lots, some of which were then vacant, listing the owners. (Ex. 65). He staked out boundaries around his property. (R. p. 182, 1. 20-28). He lived in No. 8 for several years. ( R. p. 67, 182, 262, 265, 271).
Frank E. Leavitt. Leavitt's deposition was taken shortly before he died in 1952. His cross-examination was not adequate in view of later acquired information. In 1922 he took 3 deeds from various Leavitt heirs to a fish house and land. (Ex. 63, RR, PP) . He acquired fish houses and lots from Curtis Delancey (Ex. 1)), together with Randolph Delancey's plan of lots (Ex. 65). Some of the lots conveyed were then vacant. He also took the old deeds to these lots from Curtis. He conveyed lots as previously described. There was direct testimony that Frank Leavitt claimed the land as well as the buildings. (R. p. 105-106, 264, 268, 274-275). He was accustomed to dealing in real estate and personal property and knew the difference between a deed and a bill of sale. R. p. 266).
There are certain deeds in the place chain of title not mentioned herein since Mace was represented by other counsel. (Ex. 56, 57, 64, from Frank E. Leavitt). I See too Ex. TT, AAA, BBB).
The plaintiff attempts to make much of the lack of boundary markers at the area. This is not significant in this type of property. Fish houses were moved occasionally, but to other land which had been occupied and used by the owners for fish flakes, drying nets, keeping boats, etc. (R. p. 144, 172, 183, 191, 196-197, 215, 263, 267). All the land was occupied by the fish house owners, not by the Town.
The fact that the fish houses are on posts does not imply that the occupants laid no claim to the land. Many beach cottages rest on posts to permit the sea to pass under them in storms, instead of washing them away.
Most of the fish houses have been used for general recreational purposes for over 50 years. Some have been used incidentally for fishing, and a few solely for fishing. The testimony is clear that the owners used the property as they wished without asking permission or consent of the Town. The Town was not in possession or control of the property. If it had been, there surely would have been a reference in some deeds to the buildings being on Town land. The many deeds passed, together with the use and occupancy of the area by the owners, are a denial of any land rights in the Town. The defendants respectfully submit that the Court's rulings that the Town held the land in a governmental capacity should not be sustained.
IV. If the Town owns the land the defendants are still entitled to maintain their buildings on it for fishing purposes.
The Court found that Harold Mace and Arthur Doggett were entitled to maintain their buildings for commercial fishing purposes. If this is so, then all the other owners have a similar right. If they do not wish to so use them they may sell their property to others who wish to make such use of it. To deny them this right would be to discriminate against them, and prevent them from obtaining fair compensation for their property. Indeed, No. 11, the Palmer fish house, is still used for fishing purposes. (R. p. 190, 192, 263). No. 12, the Marston fish house, is still used to some extent for commercial fishing. (R. p. 194, 196, 278-279). Arthur Sherburne has used No. 4 for commercial fishing to a degree. I R. p. 103).
This section of the brief is presented as an alternative argument.
The defendants respectfully submit that their exceptions should be sustained.
By Donald R. Bryant,
Counsel for the defendants