The Portland daily press., 1893-12-21
THE cusHINes ISLAND CASE.
The Jury's Trip-The Hotel Company a
Party TO the Proceedings.

Cushing's Island by the government for
Notifications, went to Cushing's Island
in steamer With them went Strout &
Gage, Hon. Isaac W.Dyer, United States
District Attorney Thomas Talbot, Jr.,
Mr.. Snow of Symonds, Snow d Cook,
and Mr.. Cushing. The jurors were not
directly addressed by the district at
torney or the other leading memb ers OF
the bar present, but their attention was
called to the points it was desired they
should see, by communicating with
them through the United States mar
shall. The party found scrambling
through the snow of the island a hard
work, and appreciated the kindly warn
ing Judge Webb gave them to be ready
for whatever might come They viewed
the entire island, giving particular at
tention to the portion where in few
months more or less will be works de-
signed to help protect Portland harbor.
They viewed the island and returned in
time to be in court in the afternoon,
although as it turned out there was
little for them to do at the afternoon
fact coming up. Divested of the legal
way of putting things, it may be stated
that parties holding deeds from Mr..
Gushing of portions of the island feel
that they have rights that are likely to
be invaded. They were promised and
that they should have the. benefit of all
the impro vements made at the time of
fI,a,,, -
ments to be made in accordance with
the plans made by the famous landscape
gardiner, Frederick Law Olmsted. They
were to have the benefit of roads made
through the island .and of other
roads to be built. To be sure
if the government takes possession
of, and closes up the present highway,
Mr.. Gushing will be obliged to lay out
another, but that won't do. The govern
ment will hold possession of the seashore
and Mr.. Cushing's road will be further
inland. The first question was therefore,
whether other persons besides Mr.. Cush-
ing and Mr.. Re binson should be allowed
to come in and show cause why they
should be paid for what they were likely
to lose. Mr.. Talbot appeared for the hotel
company, and Mr.. Snow for Cecil Rush.
Mrs. S. W. Thaxter waived all her rights
in the CASE and will not be party to
the proceedings. Mr.. Talbot asked to be
allowed to come in, and Judge Webb
seeing legal fight ahead directed the
jurors to withdraw until this morning
at 10 o'clock. The regular instruction
was given them not to talk, about the
case, or allow any one to talk to them
about it. The jury having retired the
questioned if the company or other
parties had any rights in the case. He
read from deed given by Mr.. Gushing
which reserved to that gentleman the
right to make changes in roads, and the
like, as might be found necessary in
developing the island. He pointed out to
the court that the hotel company will
have the use of the road that Mr.. Gushing
will have to build if the government
closes the present road, and made the
point :" they will be paid for the dis
carded road and still have the use of the
one to be built. The United States pro-
poses to close up the road but the
United States does not propose to take
below high water mark. The shore
rights will be left as BEFORE He argued
that the word assigns" which appeared
in very out of the way place in the
deed exhibited, had no meaning what
ever. He made strong presentation of
his side of the case, which was that
the only parties likely to be injured by
the coming condemnation of the land
will be Mr.. Gushing and Mr.. Robinson.
Then Mr.. Talbot described the island
and rocks along the shore, and turned
his attention to the Gushing deed quoted
by Mr.. Strout. He argued with Mr..
Strout that the word assigns" had no
business in the paragraph where it APP
peared, but he did not admit that Mr.
Cushing's reservations would be found
good in.law He said the reservations
were as broad as the grant ITSELF in
other words everything that was granted
was also reserved. This being the case.
| the reservation is void. He argued that
| the right'to use the bank, shore road,
path and like easements" must be re-
garded as belonging to the hotel COM
pany, and to other parties without re-
gard to the Gushing reservation. Mr.
Cushing granted certain rights, and they
are as much part Of the grant as the
land itself. He read the clause under
| which Mr.. Gushing claims that he can
alter all the roads and paths as he may
find it necessary in the carrying out of
his plans for the development of the
| island.
Mr.. Talbot claimed that IL case had
| been made out sufficiently to warrant
| admitting the parties he represented to
show that they had rights likely to be
invaded, and that they should be paid
for. the taking away of their rights I'M
der their deeds. Judge Webb suggested
| that Mr.. Gushing did not reserve the
right to fortify the island, but to i'm
prove it. When the government closes
| one road, Mr. Gushing is not bounds to
| V,,lo Wn1, 1nI