The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1869-01-05
The Deering and WiswelI Case.


was delivered Monday morning, and, as will
be seen, sustains the claim Of the complain
ants:
HARRIET DEERING & AIS. u.s. WILLIAM NJ. WIS.,
WELL.
This is a complaint under the process of
forcible entry and detainer, for the purpose,
on the part of the compliments, of obtaining
possession of a certain lot of land on Munjoy
Hill, of which they allege they have been un-
lawfully and forcibly disseized by the respond
emit
The respondent pleads the general issue, and
files brief statement of title in himself
To the brief statement the compainants re-
ply that it is frivolous and intended for de-
lay" and TO this replication the statute limits
the relative strength of the parties to title. II
the respondent has any rights worthy of con-
sideration. then the case must be RENTED to
another tribunal.
The claim of the respondent is based upon
the following facts. Enoch Wiswell, his
ted an inhabitant of Falmouth, by paying ten
pounds. Sept 10, 1927, he received from the
town grant of a one-acre house lot on what
is now York street, where he erected house
and resided, and where some of his descend
ants were born; and some time thereafter
from 60 to 100 acres without the present limits
OF Portland, as testified to by Hon. William
willis.
Dec 10, 1927. a three-acre lot was granted
him by the town, east of Sandy Point, being
the northerly extremity of Munjoy, near Tu-
keys bridge and about mile from the prem
| ises in question. This was one of six grants
made to different individuals by the town of
Falmouth on Munjoy; but none of them COW
| cred the land now in dispute.
1t, however, appears by the evidence that
Munjoy Hill was then held by a title far more
| ancient than any the town could have. The
| grants, by the town, OF land on the hill, were
in violation of these ancient rights, and in con-
| fict with the provisions of the town charter,
| with lands thus held.
The proprietors OF the Hill brought an ac-
| ton against some of the persons who had set
| tied upon these grants from the town, to estab-
| lish their rights and recover possession. The
| Court decided in favor of the original proprie-
| tors, and a writ OF possession was ordered to
| issue. The case was decided in 1871, several
| years after the above named grants by the
| Town, as appears by copy of the Record in
| evidence. Hon. William Willis, the historian
| of Portland, whose accuracy in the early rec
| Oras of our city is universally admitted, testi.
| fed that this decision determined finally the
| title to Mupjoy, the whole of which has been
ever since held under it.
Upon this decision the town voted that all
persons holding lands by grants of the town
| upon Munjoy, should remove, and some of them
received grants in other localities described in
| the Falmouth Records, as Sin lieu of former
grants upon lands held under ancient titles"
From these facts it appears that the grant
| to Enoch Wiswel, the respondents ancestor
| and under whom he claims, was an illegal
| grant when made; that it was so decided by
the Supreme Court of the Province upon ap.
| peal by the defendants from the Court of Com.
mon Pleas; that the decision was accepted and
acted on by the town in its corporate capacity
| and that the locality of the grant was mile
| from the premises in question.
| The proprietors of Munjoy continued there
after peaceably and without interference to
| hold the land in common, having organized
themselves into proprietary under the name
| of "the Proprietors Of Munjoy." In 1893 they
| agreed to and did divide, and a copy of the
| plan of division was offered and used in evi.
dence.
From this plan it appears that the last lot in
| the division, being Glass II, Lot H. and con.
| tanning II 1-6 acres, was set off in common to
three persons in the following proportions
Enoch Ilsley acres; John Fox 8 acres; limo.
| thy Pike acre; and unknown 1-6 acres
| 1t is to this 1-6 acres the respondent lays
claim, and which he is charged in this com
plant as having dissezed. He produces no
evidence of title through his ancestor; makes
| no pretence even that his ancestor was one of
the ancient proprietors of Munioy; but offers
| in evidence quitclaim deed executed by his
fathers sister, Mrs. Abigail Wood, to Henry
Wiswell, of any interest she may have in the
| premises, and one from his brother Mr.. Henry
/
4 16 acres; the deeds being dated Sept ~,
| 1857, and Oct. q, 1868.
| These grantors, however, are not shown to
| be connected in any way with the property in
| question, nor to have had any previous title to
| it, nor to be interested in the remotest manner
with the proprietors of Munjoy. The deeds
| convey nothing, and have no more force than
would a quitclaim to the whole property OF
| Portland by person who did not own square
| foot in it.
| IS
They first offer deed embracing nine acres,
more or less, and especially describing these
1-6 acres set off in the division as unknown "
| This deed is from the executors of the estate
| of Enoch Ilsley to James Deering, and de-
elares that 1lsley died seized OF the premises
They also produce another deed from Parker
Ilsley to James Deering Of three acres made at
| the same time. These deeds were executed in
| 1915, and recorded, and Mr. Deering and his
| descendants have held under them ever since,
| some ffty-three years.
| They also offer the deed of Mary Pike
daughter Of Timothy Pike, to James Deering,
dated Sept. Is, 1897, of the one acre set off to
| said Timothy Pike
They also produce deed to James Deering
| from the United States, dated Feb. "A, 1S4S, of
| one acre.
1t was shown in evidence that Mr.. Fox had
his three acres set off to him in 1873
1t thus appears that Mr.. Deering had pur-
chased IA 1-6 acres Of the original II 1-6 acres
| 4uo = 1-O dCrCS III dispute he naQ purchased
| In 1915 at public auction, and had held under
1t some thirty years undisturbed.
1t 10 also conclusively shown in evidence
that Mr.. Deering had once fenced the lot; had
frequently visited it; had exercised at various
times acts of ownership over it; had sold it as
early as 1895 by deed of warranty and after
wards bought it back; had conveyed various
lots from 1t by deeds of warranty; and had
paidthe taxes on the unsold portions of it ev-
cry year till he died. with the execution of a.
aftap he had cold hafor L,
repurchased it. His heirs have held it ever
ever since; have had it lotted and graded /:
have conveyed portions of it by deeds of war
| ranty, and have paid the taxes on it.
In addition to these muniments of title, and
evidences OF long possession, there is another
consideration, which strikes me as conclusive
in relation to the four and half acres. Mr..
Deering purchased the title of one of the pro-
prietors of Munjoy, who held his share as ten
ant in common, and who claimed these unas-
signed acres. 1t is well-recognzed legal
principle that tenant in common has a good
| title as against strangers to the estate. No
body can disturb him except co.tenant;
and even CO tenant cannot GUST him. until
division is made. 1t does not appear that the
ownership of these four and one-sixth acres
was ever disputed by any of the CO. tenants of
Lot No. IL; or by any of the proprietors of
Munjoy; or by any of their descendants; and
Mr. Ilsley's title was good as against every body
else. Purchasing it under these circum-
stances, and holding it so long. makes, as it
seems 10 me, good title in Mr. Deering, the
ancestor of the compliments y
But the respondent claims that he has dis
turbed the possession of these premises since
184O, having in that year fenced it. Admitting
the act to have been done at that time, about
which, however, the evidence throws doubt,
am unable to perceive that it gives
him shadow of right; for it was simply
the act of an entire stranger to the title.
That be had no confidence in such claim may
be inferred from the fact, in evidence, that he
brought suit after 1910 against Elias Mount
tort to recover the three acres described in the
original grant 10 his ancestor, Enoch Wis.
well, located at Sandy Point. This case was
nonsuited in 1S47, after the case had been put
to the jury by the plaintiff, the respondent
showing no title.
After the case was thus disposed of, the re-.
spondent put fence around the premises in
question, and gave a deed of portion to Mr..
Uriah Furlong, who moved house on it,
Thereupon Mr.. Deering commenced two &C.
tons OF trespass Quare cldusuna against them,
aud recovered Judgment. 1t is clear to my
mind, from the evidence, that the respondent
then promised pever to cause further trouble
| if Mr.. Deering would not enforce his execu.
ton. To this Mr.. Deering assented, and the
respondent went to California.
After his return from California, in 1857 he
again erected fence on the premises. Anoth.
er suit for trespass was brought, and Judgment
was again rendered against The respondent.
In 1860, Mr.. Wiswell again fenced in the
premises, and still another suit was commenced
against him by the heirs OF Mr.. Deering This
was discontinued by agreement, the respon-
dent giving a quitclaim deed of whatever in
serest he might be supposed to have In the
premises, with the promise, as testified to by
Hon. William P. Fessenden and others, that
10 far ho fha,,, i