The Somerset reporter. [volume] (Skowhegan, Me.) 1868-1909, 1908-01-23
Justice Savage's Decision
Continued nom page one. !

the ownership and managem ent OF
many large tracts of tim be rlands III
Somerset and Franklin counties and
elsewhere AS well as in the operations
for cutting timber on the same. Many
of these tracts of land stood in the
name of Abner Coburn alone, who
seems to have been more especially
the business manager of the firm.
And in the various transactions to be
hereafter related, concerning No. 4 in
Range 3, in some cases the firm name
was used, but in most cases the name
of Abner Coburn. After the death of
Philander Coburn in 1875, Abner Co.
burn continued to manage the entire
properties until his deato, Jan. 4, 49,
IS.
Prior to Sept. /, 1867. E. B. Hill had
been an owner in common and undi-
vided with AZ p. Coburn in equal
shares in certain tract in the north
half of No. 4. R. west from the Ken
nebec river, in the million acre Bing-
ha~, Kennebec purchase, so. called
and in tract called the pray tract
in 8, r. 5, and in tract called No.
TO- in 4, r. 5. Hill and the Coburns,
or the Coburn heirs and devisees con-
tinued to own these tracts until the
death of Hill.
1.-THE bill seeks to establish and en-
force trust in certain lands in the
north and in all of the south half of 4,
R. 8, growing out of certain alleged
agreements between Hill and the Co
burns on Sept. l, 1857"
After tracing the early develop
ment of the title to various portions
of the township, the finding of fact as
to the ownership of the disputed ter
ritory on Sept. l, 1857, is as follows:-
''The south half to the Stewart line
and the mountain strip between the
Moulton tracts, being all of the origi-
/ nal Colby tract, were owned as fol
/ lows
Four thousand five hundred acres
in common and undivided by the Co.
burns.
Two thousand five hundred and
seventy five acres in common and un
divided by the heirs or assigns Of
William K. Eastman.
Three thousand two hundred and
I twenty five acres in common and un-
divided by the heirs or assigns Of
Abraham Colby.
II make this finding without con-
sidoring the effect of State tax sales.
The opinion then procee eds to trace
the various tax sales to the Coburns
and declares them all invalid to con
vey any title. 1t then traces minute.
ly the evidence introduced from the
books and minutes of Abner Coburn
showing as claimed by the plaintiffs
that E. B. Hill was constantly regard
ed as q cotenant with Coburn in the
various parcels. 1t then proceeds:
"The entry on the books of A. &
P. Coburn was "Tax title to one hall
timber" The plaintiffs claim that IL
should be construed to mean a title
to one half of the timber land de-
seribed; the defendants that it should
/ be construed to mean a tax title to
timber, literally as it reads.
Hill an Equal Owner.
The Coburns held a tax title to
timber land, but not to timber alone.
True, they might sell timber alone,
but was that the intention in his case
Was the word timber used in its
specific sense, or was it used in the
sense of tim Der tract, timber being in
the mind of the writer, all that was of
value, the principal thing. They had
and were asserting tax titles to the
whole of the Colby tract, which in
cluded their $500 acres. l should not
look for exact phraseology in an en-
try of this kind. And taking the sit
uation az it was in 1857, taking the
admissions of the Coburns in the lists
of 1881 and 1884, considering the
prices paid in the light of the values
affixed by Governor Coburn in the
1881 and 1884 lists; taking the gener-
al conduct of the Coburns and their
successors for more than thirty years,
in which Hill was treated as an equal
owner, not of the timber merely, but
of the land, and especially the equal
division of the taxes upon the entire
tract, including the $500 acres OF
which the Coburns held record title
for the same period, | am led to be-
lieve, and l therefore find that it
was the intention of the Coburns to
sell to Hill an undivided equal inter
est with themselves in the south hall
and the mountain strip in the north
half, and that Hill should be an equal
owner with them in all of the Colby
tract, including their $500 acres
They we're claiming the whole, and !
think intended to sell one half of the
whole. And if SO, the defendants
now hold in trust for the plaintiffs the
equitable title thus created for Hill,
and the trust can be enforced in this
proceeding.
"What was the extent of that title?
The Coburns had then no valid title
whatever to any of the territory, ex
cept their 45U0 acres through the
deed, Colby to James Smith. The
rest Of the territory belonged to the
heirs or assigns of Colby and East
man. And it belongs to them OF
their assigns now unless their titles
have become forfeited, or barred,
under the provisions of the laws OF
1895, Chap. 1862"
Statutory Possession Not Proved.
The opinion then proceeds to hold
that title has not been obtained by
twenty years possession under the
statute referred to, not having been
under recorded deed, and not being
accompanied by such acts of owner
ship or possession AZ the statute con
templated 81 think" says Judge
Savage, "the statute conte mplates an
actual possession of some kind. 1t
need not be as continuous as the pos :
session of farm would be expected
to be, but there should be some kind
of continuity. A gap of more than
25 years is too long. therefore find
that the statutory of possession has
not been proved. 1t follows that the
only title affected by the trust is the
$500 acres originally owned by the
Coburns, less 100 acres sold in 1884
The bill will be sustained with costs,