Blake v. Bangor Savings Bank , 76 Me. 377 ( 1884 )

Walton, J.

It appears that township No. 11, Range 17, W. E. L. S., in Aroostook county, contains 29,941 acres.

In 1864, January 8, in pursuance of a resolve of the legislature, 23,040 acres, on the easterly part of the township, were conveyed to four academies, and by subsequent conveyances became the property of the Bangor Savings Bank.

In 1875, October 28, the remainder of the township, except two hundred and thirty acres reserved for public uses, was conveyed to the plaintiffs; and also the right to cut and can-y away the timber and grass on the lands reserved for public uses.

In 1880-1, the Savings Bank "permitted” timber to be cut from that part of the township owned by the Bank, and received pay therefor.

The plaintiffs claim to recover of the Bank a portion of the money thus received on the ground that, although no lands were reserved for public uses on that part of the township to which this "permit” applied, still, a thousand acres ought to have been reserved, and that they are entitled to a ratable portion of the money received for stumpage, the same as if a thousand acres had in fact been reserved.

We do not think this claim can be maintained. It seems to us that the plaintiffs’ license to cut and carry away timber and grass from the lands reserved for public uses, applies only to such lands as were in fact reserved, and not to lands not reserved, even if it should be admitted that a further reservation • ought to have been ihade. Fairly and rationally construed, it seems to us that the language of the plaintiffs’ deed can be applied only to existing facts, —that is, to lands already actually reserved, — and not to lands which, if it be admitted that they ought to have been reserved, were not. On that part of the township conveyed to the plaintiffs, such a reservation had been made. On that part owned by the Savings Bank, such a reservation had not been made. We think the plaintiffs’ deed applies only to the former and not to the latter. And it is the opinion of the court that if public lots must be regarded as reserved upon this township, they must be located upon the portion last conveyed, and not upon the portion first conveyed, and, consequently, that it is the plaintiffs’ lands, if any, that must bear the burden, and not the lands of the defendants. We do not think the plaintiffs have, or ever had, a right to cut° timber or grass on that part of the township now owned by the Savings Bank. Consequently, they are not entitled to any portion of the money received by the Savings Bank for stumpage.

Other objections to the plaintiffs’ right to recover, are urged in defense; but it is unnecessary to consider them, as the one already referred to, is, in the opinion of the court, fatal to a recovery.

Plaintiffs nonsuit.

Peters, C. J., Daneorth, Libbey, Emery and Foster, JJ., concurred.