Ham v. Sawyer , 38 Me. 37 ( 1854 )

Tenney, J.

—By an Act of the Legislature of Massachusetts passed on March 3d, 1809, entitled an Act to rectify and establish the line between the towns of Monmouth and Leeds in the county of Kennebec, it was provided, that the line between those towns shall hereafter be as follows, viz beginning at a stake and stones about fifteen rods west of the Bog stream, so called; thence running south 9 degrees West to a beech tree on the south line of Monmouth.

It is admitted by the parties that prior to the passage of the Act referred to, the line between the territory of Monmouth and of Leeds was west of the line established by that Act, and was the west line of the Plymouth patent, was a crooked, irregular line, and included in Monmouth the disputed territory; and if the west line of Monmouth is to be run straight to the south 'line thereof, it will exclude from that town the plaintiff’s land.

The town of Monmouth was incorporated on January 20th, 1792, and is bounded thus, “beginning at the southeasterly corner of Winthrop on the west side of Cobbossecontoe great pond; thence running south southwest six miles to a heap of stones erected for a corner; thence west northwest about five miles to the westerly line of the Plymouth patent; thence northerly on the westerly line of said patent about six miles, until it intersects a line running west northwest from the southeasterly corner of Winthrop aforesaid; thence east southeast by the southerly line of Winthrop to the first mentioned bounds.”

Leeds was incorporated on February 16th, 1801, and by the Act of incorporation is bounded on the town of Monmouth from the northeast corner thereof to the town of Greene. The northerly line of the town of Greene at its eastern extremity was northerly of the south line of Monmouth by the original Acts of incorporation, the town of Greene having been incorporated on June 18th, 1788.

The part of the town of Monmouth which by the Act of March 3d, 1809, was excluded therefrom, and was south of the south line of Leeds became a part of the latter, and not of the town of Greene.

By the Act of March 3d, 1809, the line thereby established was a straight line. Under that Act, and the admissions in this case, the farm of the plaintiff became a part of the town of Leeds.

It is however contended that the town of Monmouth in its «corporate capacity, and the officers thereof, having extended their municipal authority over the territory in question for more than twenty years, and this authority having been acquiesced in by the town of Leeds in their corporate capacity, and by the inhabitants residing on this territory, it has established the legal right of Monmouth to treat it as a part of that town, and the inhabitants thereon as its citizens.

The boundaries of towns are created by Acts of the Legislature. The inhabitants thereof cannot by direct corporate Acts change those boundaries, and it is difficult to see in what manner the Acts and the acquiescence referred' to, can produce a more effectual alteration.

By the statutes of 1821, c. 114, § 8, the bounds of townships were to remain as before granted, settled and established, and in R. S., c. 5, § 24, is a similar provision.

The Legislature has authority to change the boundaries of towns at pleasure. And the provisions referred to in the statutes of 1821, and in the Revised Statutes, have prevented the acquisition by Monmouth of the prescriptive rights contended for, if such could by possibility be in any manner obtained.

The plaintiff not being a subject of taxation in the town of Monmouth for his poll, his real estate or personal property, the tax was unauthorized and void. And the taking of his property was a trespass in the defendant.

The only criterion for the damages is the value of the property when it was taken. This is shwon to have been the sum of $100. But it appears that a balance of the avails of the sale of the horse remained, after the appropriation of a sum sufficient to discharge the tax against the plaintiff and costs, which was paid to him. This balance should be deducted from the valúe of the property taken.

Defendant defaulted.

Shepley, C. J., and Rice, Appleton and Cutting, J. J., concurred.