The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1893-05-23


g limits of Yarmouth.
Yarmouth, but in the old North Var
mouth, which must hold the flats in
trust for the benefit of the people of the
three towns.
After quoting decisions of the court to
show that the state legislature has the
power to carve special rights out of COM
mon rights; and that subsequent general
legislation does not ordinarily interfere
with such special rights, Mr.. Libby went
on to speak of the general law under
which the town of Yarmouth acted in
passing its vote Of last march, under
which vote the two men before the court
were arrested. That law in general terms
provided that town may fix the time at
which CLAIMS may be taken within it's
limits, and may establish the prices for
which its municipal officers may dispose
of written permits. Without such per-
nit residents of towns or transient per-
sons in such towns, with some exceptions
relating to hotel keepers and fishermen,
may not take the clans.
Mr.. Libby held that this law could not
supersede the special rights guaranteed
to the people of Cumberland, Yarmouth
and North Yarmouth by former legisla-
ton.
For seventy-two years the people of
Cumberland have enjoyed unmolested
their rights in common as the legislature
said they should enjoy them, and as the
original proprietors intended.
Mr.. Libby also referred to the fact that
at it's last session the legislature refused
the petition of the people of Yarmouth
that Section of that act of separation
be repealed. Having failed in this petit
ton, they had resorted to the unusual
step which had eliminated in the pro-
ceedings in court.
He therefore asked for the discontin-
uance Of the case against the two men.
For the State
Assistant County Attorney Webb con-
tended that the right to take shell fish
was a common public right to all citi-
Zens.
Whatever right and title the King of
England may have had on this CONT
nent within the limits of this state.
ceased at the time of the Revolution,
and became afterward vested, first, in
the Commonwealth Of Massachusetts,,
and then in the State of Maine. In 1743
the proprietors of the lands of the town
of North Yarmouth conveyed to certain
persons, then selectmen of said town, all
the flats, sedge bank and muscle beds of
said town, lying below high water mark.
This conveyance was made in behalf of
and for the sole use, benefit and behoof
of the inhabitants of said town of North
Yarmouth, and of all such as may and
shall forever hereafter inhabit and dwell
in the said town, to be by said inhabi-
<tants forever hereafter used, occupied
and improved in common, with full lib
erty to Craze, feed, cut rockwell, dig all
sorts of shell fish, etc.
Inhabitants of North Yarmouth VS..
Skillings, 45 Mo. 133.1
In 1891 the town of North Yarmouth
was divided into two towns of Cumber-
land and North Yarmouth. Section of
the Act of Division provides as follows:
'"rhe privilege of using the several bury
ing grounds in common with the privil-
eye of obtaining CLAIMS and mussel mud
from the flats in said town which the in
habitants have been accustomed to use
from time immemorial, shall continue
in common as heretofore" Special law
of 1921. chapter Is, section 5.
Now it is to be observed that the rights
on the flats secured to the residents OF
Cumberland by virtue of these enact
ments, and referred to as rights which
oiOy }iuNO DOCA tbDCuctOulSti w uSS lIODl
time immemorial. are the rights which
passed by virtue of the deed to the Sc
lectmen, above cited. 1t may be as
sumed that the proprietors of the ancient
town had full title and authority, prior
to their conveyance, and that title
passed from them to the selectmen and
their successors, by virtue of this deed,
but the only title which the proprietors
could have had, and the only title whic h
it was in their power to, give was title of
the soil, jus privatum. The jus publi-
cum was at that time vested in the king,
and subsequently vested in the state.
1t was beyond the authority
OF the proprietors of the town to convey
it OF to affect it in the slightest degree
by virtue of the colonial ordinance. They
| were seized of the flats, but by virtue of
that same ordinance as well as by
| the common law of England, their title
| to the flats was subject to. the easement
enjoyed in common by all subjects and
citizens of passing and repassing over
the flats between high and low water
mark, and all fishing and fowling, ETC.,
upon them.
Therefore, the counsel for the govern
ment argued this common right had
never been impaired or changed, and re-
manned to this day to be regulated by
| town authority, as the town of Yarmouth
had regulated it.
| Judge Bonney, taking the case under