Blanchard v. Inhabitants of Cumberland , 18 Me. 113 ( 1841 )

The opinion of the Court was by

Weston C. J.

It appears to us, that upon a fair construction of the eighth section of the act, dividing the town of North Yarmouth and creating the town of Cumberland, the right of election there given to persons dwelling upon lands adjoining the division line, can operate only upon lands owned by such persons, at the time the act took effect. Thus limited, some judgment could be formed of the extent, to which it might be carried. But if the line might be subject to further fluctuation, by subsequent sales and transfers, a new element of vagueness and uncertainty is introduced, which, in our judgment, the language used does not require. The period of ninety days, within which the certificate of election was to be filed, in the office of the Secretary of State, was intended to afford to those, to whom the privilege was extended, a reasonable time to make up their judgment with due deliberation. It was not intended to afford opportunity to bring, by subsequent purchases, other lands within the influence of this principle; but it was a condition, upon which the right given was made to depend.

Notwithstanding the extraordinary manner, in which Joshua and William Blanchard, father and son, managed with regard to the part of the gore in dispute, in which legal rights appear to have been lost sight of, under the influence of parental authority on the One hand, and filial acquiescence on the other, we are of opinion that the right of election was in the father, and not the son. The former certainly dwelt, at the time, on lands adjoining the division line. Prior to 1795, he had erected a house and other buildings on this land, which he continued to occupy, and which it does not appear that the son had ever claimed. The fee of the land the son had acquired, not with a view to disturb, but to quiet the. father. He did not first enter under the son, nor had he ever recognized his right to dispossess him. In 1804, he resisted his claim, and persisted in the exclusive.enjoyment of the land, in defiance of his son, who appears to have acquiesced in bis pretensions. Under the peculiar circumstances of this case, we are of opinion, that the father, at the time when the town was divided, had an interest as owner in the buildings and improvements, which might have been sustained at law. The privilege of election, given to those who bordered upon the line, was yielded to their personal wishes and predilections. If conceded to the son for this property, be would have a right not only to elect for himself, but to transfer his father also to Earth Yarmouth, although he might be better satisfied to remain in Cumberland, which embraced lot number eighty-three, of which he was the undisputed owner, being the greater part of his land. If he made no election on his part, and it does not appear that he did, it is evidence that he acquiesced, as far as he was concerned, in the line established by the legislature. So the line must be regarded as remaining, unless it has been made to appear affirmatively, that it was changed,- as it respects this part of the gore, by the election of William Blanchard. And this, we are of opinion, could not be exercised, to this extent, under the act, without violating or impairing the rights of Joshua Blanchard, the father.

Exceptions overruled.