*1 CUSHING, R. et al. Charles Maine, et al.
STATE of
Supreme Judicial of Maine. Court
Argued May Aug.
Decided *2 Hand, Hand, Lynwood E.
Severson & Hоulton, Corp. Nekoosa for Great Northern Scribner, Allen,
Pierce, & Smith Atwood (orally), Lancaster, Port- M. Amero Gerald land, appellees. all Goodall,
Lund, Wilk, L. Martin Scott & Wilk, Sp. (orally), Augusta, Atty. Asst. Gen. of Maine. and State defendants Gen., E. Atty. Rufus Tierney,
James E. Gen., Evans, Brown, Attys. R. H. Asst. Kay Augusta, for defendants. GODFREY, WERNICK, NICH-
Before ROBERTS, JJ. OLS and ROBERTS, Justice. brought an plaintiffs1 May declaratory judgment
action for Court, to 14 County, pursuant Kennebec adjudi- seeking an M.S.R.A. 5951-5963 §§ as succes- and status rights cation of their of deeds sors-in-interest Maine, State of between rights cut timber conveying Their suit lots. from the reserved “Sehepps the so-called prompted by Department Report,” issued That January Attorney General Attor- Cushing; the state are North- Named as defendants were Plaintiffs Charles Great Commissioner, General, Paper ney Corporation; Forest ern state Nekoosa International Department Company; of Con- Company; the Commissioner of the Prentiss & Carlisle Wellman, Wheaton, servation, Bureau of and Pe- and the Director Bradford Richard infra, Seamans, explained the State As ter as trustees of a Public Lands. B. trust. joined party. as a since been Maine has species of all sizes and related to concerning rights reрort expressed conclusions other issues2 They reserved all trees. aspects rights several of the State’s of Facts Agreed into an Statement entered powers respect than 1,000 more pages and comprising over lots, including opinion evidentiary hear- days Two 250 exhibits. grass deeds ex- conveyed under timber and *3 his issued held. The Referee ings were also trees, species certain and cluded sizes and 1979, deciding both issues May report in the “distinct possibility” Court Superior The plaintiffs. favor of the at the expired had since timber in existence objections, ac- the defendants’ overruled cut. time of the had all been entered cepted Report the Referee’s culminat- ensuing proceedings, The recom- plaintiffs for the judgment ed in October with an order of remand The defendants by the Referee. mended Court, greater from this are described appealed.3 Me., Cohen, Cushing detail in 420 A.2d judgment we vacated the appeal, On opin- explained As we in that Superior Court the case to and remanded ion, to the first filed a motion defendants the whether proceedings to determine for complaint, asserting dismiss the the statе’s defendant; to party a of Maine was State sovereign immunity grounds as one of the was an indis- the determine whether State filed an for dismissal. The defendants later and, so, formal to take party if pensable seeking a declara- answer and counterclaim and to party; a join action State tory judgment sought by converse to preclud- was whether the action determine plaintiffs. pleading responsive This immunity. sovereign by the ed State’s to, subject stated that it was filed Cohen, Me., 927-28 420 A.2d Cushing v. to dismiss. waiving, without the motion as a designated The of Maine was State by remand, stipulation to a pursuant On though even it had not counterclaimant ordered Superior Court parties, party original been named ac- as a indispens- joined as an of Maine to be State tion. No action was taken to have to deal the action.4 In order party able to M.R. party pursuant State added as a immuni- sovereign bar of possible with the Subsequent pleadings by 21. filed Civ.P. moved, to M.R. pursuant plaintiffs ty, plaintiffs naming avoided the State of 41(a)(2), voluntary dismissal Civ.P. Subsequent party Maine as a defendant. grant- Superior Court complaint. The their pleadings pleadings filed and amended “That ordered the motion and further ed agencies am- State continued leave (including counterclaims of Defendants biguous was Attorney whether the General pending remain Maine) shall the State of party de- undertaking to make the a State Superi- adjudication.” independent fendant and whether he intended to aban- sovereign then determined that or Court immunity. protection sovereign don the counter- applicable to the immunity was not parties agreed In October 1974 the “affirmatively had claims because referee, pursuant submit the case to a ad- independent voluntarily sought an By stipulation, M.R.Civ.P. 53. judgment entered again judication,” two issues: narrowed the submission to in accordance plaintiffs favor On De- whether or not the Referee. original report of the filed the 22, 1980, related to timber in existence at the defendants cember judgment. appeal from that time of or not those instant and whether ap- complaint. plaintiffs’ then The defendants 2. See Part II infra. again, pealed in November attempted appeal, defendants’ first Superior September was remanded to the previously named as the State was 4.Since Court, 54(b), pursuant because M.R.Civ.P. counterclaimant, stipulation interpret we judgment had not been entered on the counter- party joinder defend- as a order to result remand, Superior claims. On that Court and counterclaimant. ant judgment entered a on the counterclaims adjudication reflect made on the same may be made which have been or sovereign immu- located issue of State’s Legisla- is no nity longer before us. The Massachu- by the said Commonwealth [of ture, February approved a Resolve on Dis- separation of said setts], before the 18,1981, immediately, gave its and effective hav- place, and trict shall take [of Maine] thereby consent to this suit5 and waived the said effect within or to have presented bar that have been force, after District, in full shall continue sovereign this action immunity. Due to separate shall become the said District Legislature, we need not determine hereafter grants and in State. ... validity Court’s determina- State, of made, by unlocated either sovereign inapplica- tion that immunity District, same said land within the action, opinion ble to the express for the benefit be made reservations shall thеreon. Schools, as have Ministry, *4 usual, by made grants in heretofore been I this ... Commonwealth. ap- of
Before we address the merits of peal, part a brief of the of Articles history public requirement, reserved This is in a lots order.6 Before Maine became into Separation, incorporated state, policy Massachusetts maintained a of Maine Constitution.8 reserving, grants public from of domain its responded 1824, Legislature In the Maine uses, lands, public lots certain for named pro- by requirement to constitutional including ministry the use and the viding: Me., Opinion Justices, schools.7 See every in there be reserved That shall 253, (1973). 308 A.2d 270 be- When Maine settlement, one suitable for township, state, Separation, came a the Articles of land, average thousand acres Seventh, required Item reservations similar land the other quality and situation with to be all grants made in of unlocated land township, appropriated in such be within Maine: uses, exclusive benefit for the public franchises, grants land, All immuni- town, Legislature of such as the ties, corporate rights, or other and for, grants yet contracts land not hereafter direct. Resolves, Township, (1981) provides: each 1 be оut of that there reserved twenty acres of three hundred four lots Legislature. Consent of Resolved: That wit, uses, each, public one for use for Legislature extent that consent of the forever, public one for of a Grammar School necessary Attorney a General to seek Ministry, first one for the the use of the adjudication presented final of the issues Minister, benefit of and one for the Cushing settled the State for v. determination general, Cohen, 81-31, public General Education Law Court Docket No. Ken. hereby granted. direct. such consent is ney Attor- Court shall hereafter Maine, General, on behalf of the State of Ninth, pro- Separation, Item discretion, 8.The Articles of proceed, is authorized to in his suit, prior vided: with such and all involvement proceedings, forth, State both in conditions, set as here These terms and Court, County, Ac- Kennebec Civil sepa- a become the said District shall when 1740-73, tion Docket in the Law No. State, shall, ipso Independent facto rate and Court, 81-31, is Docket Ken. Nos. 79-31 into, incorporated and be a become be part hereby confirmed and ratified. other, Constitution, any provisional or pro- said of the Government under posed background 6. For infor- further historical and hereafter, State, shall, any time at Justices, Me., Opinion 308 mation see of the however, administered; subject be modi- (1973); Schepps, Lots: A.2d Maine’s Public agreement fied, or annulled Trust, Emergence L. Public 26 Me. of a States; Legislature of both said (1974). Rev. 217 body power or whatsoever. adopted of arti- as section The Articles were example, 7. For of Massachu- Acts and Resolves 1821, P.L. Constitution. cle X of Maine setts, 9, 1786, 1786), (November ch. 40 estab- Justices, I, Opinion of the Vol. at 45-50. See lishing lottery fifty townships sale for the Me., 268-69. 308 A.2d at County, provided: in Lincoln Morrell, (1851); also
P.L.
33 Me.
see
8.9 The
§
provided
Co.,
also
townships
that as
became in-
Lumber
Ship
Mace v.
Pond Land &
corporated,
public
title
reserved
Me.
19.P.L. 2 deleted the § Department the of Conser- Public Lands within organized plantations” “or and “or is oth- into charged with the Bureau is now vation and the parted replaced language erwise It with.” the control, care, responsibility custody, and incorporated, organized,” “until with “un- so or “public management reserved lands.” of the incorporated til Resolves of into a town.” 339; 552(1)(A) 12 M.R.S.A. § P.L. (Supp.1980). provided: ch. 319 public Management re- of the agent That the land ... is authorized and by governed 30 M.R.S.A. lands is also served convey directed to sell at auction and 4162. lands, remaining the interest all and began, approximately of the state in all held in fee litigation timber lands 22. When this unconditionally 320,000 dispute. Through the state not heretofore and settle- acres were in State, appropriated, reserving plaintiffs otherwise negotiations the the ment cash, right approxi- relinquished uses. ... Also for the their claims have since mately currently 145,000 plaintiffs cut timber and on lands reserved for all acres. The 175,000 uses, conveyed; rights said acres not heretofore on a total claim public plaintiffs have also to continue until the in which The reserved lots. respectively of the issues determination said lands are organized situated shall indicated that the plantation incorporated proceeding tax conse- will affect the into a or this quences arrangements. their settlement into a town. the unambiguous” 2. “clear and cutting Whether or not the lot rights granted above, statute, of Maine and concluded quoted during period 1850-1875 related to right to had received species and cut conveyed only right to cuttings of all forest make successive sizes of trees at the time considered might existing or growth that was then grant to be suitable and merchant- organization existence before come into able for prevailing pur- then commercial township. While incorporation or limitation, as, poses, such build- without statutory language finding not ships, or or being squared houses off con- reinforced this ambiguous, the Referee beams, rafters, cut planks into legislative pur- finding clusion board, hand, or on whether the other also enacting supported the statute pose in rights to all or sizes related other and all present and sell the to all an intent to other species of trees.23 also found growth. future The Referee parties The further stipulated “all subsequent performance issues” reserved24 and that: Agents lent purchasers and the State agreed It is expressly understood interpretation. support further his estoppel, acquies- that such doctrines as reasoning of Superior Court endorsed cence, waiver, laches, prescription, for the judgment the Referee and entered plaintiffs might raise wish to in a his plaintiffs in accordance with recommen- subsequent case ... are not issues in this dation. proceeding. therefore, present- we are appeal, On this entry Referee recommended they ed with these narrow issues only following judgment: by the and the Refer- parties were framed 1. cutting rights lot now deciding present We are ee.25 plaintiffs granted owned by which were con- rights parties light of their by the during period State of Maine over the predecessors of their duct and that conveyed 1850-1875 related to and We whether past years. consider to cut timber which was exist- accepting Court erred in Superior at ence the time of as well as was con- of what Referee’s determination to cut timber coming thereafter during the originаl grantees veyed to the existence, into period from 1850 1875. That said related to conveyed the sizes reviewing the Court’s species of trees. invi judgment, the defendants’ we decline independent recommendation, engage To in our own arrive at tation Ref- presented eree interpreted what he found to be the evaluation of evidence convey- during agreed being period upon “public after the 23. The into place. rights” any cutting De- as a neutral term for the inter- took ance before being plaintiffs. timber, ests claimed pending could definition of it qualify too small to also trees that were include Ordinarily might approve such an conveyance but on the date of as “timber” artificial isolation of the Since issues. cutting. grew marketable size before ordinary private parties not an seeking suit between however, report, it clear makes The Referee’s declaration their under *8 suc- second that term includes the ordinary attempting deed or contract while generations come that have of trees cessive foreclose of raised their consideration issues cutting. complete being аt one into after least subsequent performance, why understand matter, ex- practical is no need to As there a complexity uniqueness subject the of the coming plore timber distinction between the parties proceed matter in this man- led the conveyance after into the existence ner. cutting. par- coming after a into existence phrasing 25. We are concerned that the of the agreed that under either characteriza- ties have parties’ stipulation in issues the and in the tion, “timber land is timber now on the judgment may Court be unclear. coming existence.” into thereafter coming term “timber into existence” thereafter be that could read to refer to trees came 494 expressed parties intention of the fact consists is the
Referee. The that the record inten entitle “It is the documentary evidence does not the instrument itself. merely sur appellate expressed, parties effectually the to a trial novo on not de tion 108, Paper Emmons, Dunton Me. Penley review. See v. Eastern Fine v. 117 mised.” Co., Me., 512, (1980). 972, Sargent 423 A.2d v. (1918). 514-15 102 A. 973 See Moreover, (1979). on this Me., the raised critical issue 1344 Coolidge, 399 A.2d the appeal significance is not ambiguous factual language of the deed is If the documentary evidence, legal signifi- doubt, but the parties and the intention the cance of documents in real granting of con then to rules may the court resort proper appellate It is a part estate. of our light examine the deed struction accuracy question legal function the surrounding its extrinsic circumstances interpretation the Referee’s of those docu- See, Worces g., Gillespie e. v. execution. Worcester, Me., Gillespie ments. See v. 93, 95 ter, Me., Company C (1974); A.2d (1974); Giguere, A.2d 93 Bank Maine v. Westbrook, Me., A.2d City of v. Me., (1973). 309 A.2d 9, 14-15 45 Me. Cressey, Bradford v. Ill conveyance the each The Referee the statute stated plain now claimed must controlling was the document Land tiffs, by the conveyed the interest interpreted be because Agent was: thereby con authority could exceed away the carry cut Agent agree ferred. We the Land grass the reserved timber and authority delegated could not exceed the ., carry away said . to cut and . said Legislature. Bragg him the v. Bur until to continue leigh, 61 Me. For incorpo- be ship town or tract shall said reason, statute, language as well of the pur- rated, organized for Plantation deed, [or language as the of the must be con longer.26 and no poses] Chase, Abbott sidered. See (1883). Nevertheless, must interpretation conclusion disagree the Referee’s We begin—as in an transaction be ordinary convey language that this was sufficient private parties—with tween at cut trees in existence long the instrument of As conveyance. conveyance. time Agent acted within the bounds subject statutory of his authority, A conveyances is not the Land everything this conclu- appears The Referee to base Agent convey every was or authorized to was not a there sion on the observation that thing to authorize intended se, rather a grass per of timber and sale convey, him to but only what he succeeded cut go land and right to sale of the conveying by actual instrument away timber—a carry conveyance. prendre profit characterized as a practical are find frequently repeated gross. We have We unable to of ex- interpretation legal the cardinal rule of deeds distinction between or statute, statutory ing which au- 26. Due to a dur- amеndment in effect during year Agent to sell: thorizes and directs the Land omitted, by away carry the timber handwritten modification to cut and form, printed ..., language. right to For con- bracketed lands from off veyances during township made 1874 and the Land shall or continue until tract printed pur- organized plantation used a new in which the incorporated form phrase final said poses. “until ... incorporated shall be phrase, tract into a town or or- changes in the final Aside from ganized plantation longer.” into a and no operative language printed was not form *9 changes subsequent in the reflect language modified to of is virtual- wording authorizing ly language statutes. identical to the authoriz- of the first
495
third,
second,
and
outright
cutting
sale
to continue
cutting
right
elusive
and an
existing
growths
after
of
Either
de-
successive
timber.
characterization
See,
M.
g.,
& I.
is exhausted.27
e.
scribes
interest
is a
land. Neither
Mines, Inc.,
Hope
v.
Timber Co.
Silver-Lead
incorporeal
right.
mere easement or
See
638,
(1967) (grant
428
of
Idaho
P.2d 955
91
Rossi,
534,
532,
Beckwith v.
157
175
Me.
any and
right
privilege
and
to remove
“the
732,
(1961)
prendre
A.2d
734
(profit a
prendre
and
profit
timber” created
a
gross is treated as an
land
interest
in the
at time
only timbеr
of
included
in existence
237, 239,
itself);
Shores,
Emerson v.
95 Me.
growth after
conveyance and not future
1051,
(1901)
49
(growing
A.
1052
timber
is
most,
harvested).
grant
a
been
At
that had
part
Lord,
83,
realty);
48 Me.
Hill v.
from the
cutting rights,
distinguished
of
(1861) (right
100
to
take seaweed from
itself,
been construed
of the timber
has
sale
of
a
land
another
not an easement but
scope
coming
timber
within
to include
right
profit
soil);
Thomp-
to take a
1
conveyance
after
date
by growth
son,
Property
(1980).
Real
136-37
Our
§§
cutting takes
conveyance
any
of
but before
previous
grant
decisions have
spoken of
Lumber
place.
McMillan v. Gurdon
right
of a
to cut
to a
equivalent
timber as
(for
Co.,
628,
(1934)
189 Ark.
74
631
S.W.2d
grant of the timber
Brown v.
itself. See
229).28
dissenting opinion, see 75 S.W.2d
272,
724,
Bishop,
105 Me.
727
74 A.
in existence on
only
timber now
Since
(1909);
Lincoln,
Walker v.
45 Me.
70
not in that cate-
reserved lots is
Small,
v.
Small
growth,
interim
but consists
suc-
gory of
(1853).
trees,
construc-
generations of
cessive
case
No
has been
attention
called to our
provide
adopted
tion
in McMillan would
support
theory
to
cut-
that a
recognizing
a
a distinction
basis for
ting rights
conveys
case.29
—without more —
rely
reject
plaintiffs’
primarily
contention that the
Plaintiffs
29.We
on two California
Hoefling, Cal.App.2d
recognized
Legislature
cases.
In
Crain
a distinction
(1942),
conveyance
authorizing
respect
Agent,
496 They argue “standing” timber. B “on,” “now any terms such omission of indefinitely Referee also relies on,” upon” supports “being growing
long
sup-
duration of the
was not
grant
that the
Referee’s conclusion
right
was a
port his conclusion that there
existing timber.
limited to
cut
come into ex-
growth
whatever
should
or “now
terminating
“standing”
event. This
istence before the
terms as
While such
in timber
reasoning
because it fails
set forth
upon”
frequently
is erroneous
are
of a timber
recognize
deeds,
the twofold character
is not sufficient
their absence
Emmons,
right
117 Me.
a
Penley
conveyance
deed.
v.
a
make the deed
case has
(1918),
emphasized
No
102 A.
973
not then in existence.
cut trees
a tim-
a court
scope
the distinction between the
in which
to our attention
come
duration,
e.,
such
grant
grant
ber
and its
i.
between
to include
interpreted a timber
finding
words
may
grant”
“what
be cut
growth
under
without also
future
clear
right
may expire.”
cut
Here
“when
in the instrument
intent
right
expressed
it is clear that
to cut continued
unambiguously
ly and
timber
terminating
incorporation
until the
than the
something more
to include
event —
organization
township.
grant.
If that
at the time of
in existence
(10th
Rozelle,
event
far in the future or never took
Cir.
497 this dis- background of historical See, case. The e. in existence. yet anee of timber not in the Co., language used as well as Byrd-Matthews pute, Lumber g., Vandiver v. convey- of (1916) (“nothing in instruments 146 90 960 and in the Ga. S.E. statute Therefore, appro- it seems parties ance, intend unique. the deed to indicate that the example for cultivation of set nursery ed to establish a follow priate to Tuttle, the lan- saplings”); Putnam v. find sprouts Although we do not Referee. extrin- (10 Gray) (1857) (right to trees 76 Mass. we will examine ambiguous, guage of growing on the date intent to other than those might manifest factors that sic in right plain- in effect a conveyance “would be now asserted convey itself”); Lilley, v. 238 N.C. the soil Hardison Me. 9 Cressey, 45 v. Bradford tiffs. See (1953) (court would not S.E.2d to create presume that the intended cultivation
an easement in the land for the A Newton, trees); v. growth Bragg of authorizing of 102, 126 (1924) (adopting reason A. 494 Yt. it differs extent that legislation, to the Tuttle). of Putnam v. instruments language of the from the ordinarily We conclude that a timber Leg that the suggest does not conveyance, deed, form a deed of the whether in the the sale to authorize islature intended convey outright or in the form of growth. existing than the anything more timber, ance of the to cut and remove form Agent’s printed the Land Whereas cut operate convey does not to grass to cut timber conveys the growth; of words future the absence statute lots, the 1850 reserved “from” the include clearly manifesting an intent cut timber sales of authorized more, conveys only the deed lots. off” the grass “from conveyance. еxistence at the time did printed form language in the While the Reading light Agent’s the Land deeds statutes later 1850 to change not from rule, manifesting such we see no words grass “timber referred Therefore, clearly an intent.30 these deeds 32the grass “timber and on” thereon”31 convey were ineffective to an interest perceive not We do reserved lots. any timber that was not in existence on mani statutory phrases of these conveyance. date sale of intent to authorize fests an land. in existence timber not then IV to the significance attached The Referee any express In the absence of lan directing the provision statutory guage, surrounding extrinsic circumstances on unlocat- sell the Agent to prove ordinarily would be sufficient not public reserved ed something expressly not in may or who shall persons or person cluded the Referee ob in the deed. As same township, at the or such tract own served, however, this is indeed case or as the tract per rate acre impression. novel While we endorse for, making how- have sold jurisdictions, shall general rule followed in other for the ever, deduction such reasonable circumstanc no other case involves facts or agent should opinion of this soil as roughly analogous even to those es grass” the “and not consider plaintiffs argued do inclusion tions. We 30.The manifestation grass—an crop—pre- portion to be a clear of the deeds annual “crops” convey being successive limited to intent vents the of an Although par- both timber then in existence. timber. suc- ties have assumed that the deeds included merely crops grass, Statutes, 5; cessive annual ch. P.L. Revised 31. existence, question grass has then in parties agreed not been raised or decided. The primarily as food was valuable 319; ch. 51. P.L. Resolves of timbering opera- for the draft animals used sold, there would be provided, purchaser be made: cut that tract township may purchase elect to It is nothing left to steal from the State.34 such right.... conclude, as did the Refer- necessary ee, intended also Bradley, Coe 2. See relinquish over what- permanently control The Referee concluded *12 might public “a clear indication in the on the grow was ever future prices that both one de- reflected common reserved lots. nominator, grоwth, the to cut future The Referee’s conclusion that the State forever, one in case until other case convey future must have intended to might occurrence an event which that growth part in on his statement rests very occur in the future distant or never.” Legislature “must deemed to have be not, however, The Referee’s is conclusion that in most instances Planta- been aware only rational interpretation pro- of this delayed for organization tion would be argue, vision. theAs defendants it is also might instances many years many reasonable to that conclude the “common that argue never occur.” The defendants was denominator” the value the timber finding that support the evidence does in existence at the purchase. time of Legislature thought townships equation Referee’s also does not take into Legislature would never be settled. public cutting account the fact that the lot only be re- provided had that rights, unlike the interest held the owner townships for settle- served “suitable of the township, subject taxa- were not to ment,” provided ch. had P.L. tion during period 1875.33 from 1850 to for separate accounts to be maintained for Furthermore, we draw would hesitate to incorporated. until township each it any subject conclusion about 6. This circumstance statutory provision from a that event, appears, relate not to any to applied only unlocated lots. scope of its duration. See III-B, supra. It reasonable Part seems
B grants of all the scope conclude that The Referee concluded that even if ambi- same, though was intended to be the even guity existed the statute’s language, the depending on vary the duration would surrounding circumstances its enactment when, ever, organ- township if became show Legislature’s would purpose Although pur- incorporated. ized or “only be served if all future rights in a town- chaser of conveyed.” were (Emphasis original.) organized would ship that never became parties agree Legislative pur- have in which to remove more time pose problem was a desire to deal with the timber, it he was also unlikely seems trespass of timber however, lots. intended to receive more timber than argue, The defendants the trespass problem only purchaser organ- timber in a that became involved then in existence conveyance. and that once the ized soon after I Resolves of first would recommend that licenses cut tim- made the provision township, granted be on “valuation of timber and ber each sufficient protect trespassers, purpose on the reserved lands ... it from even if such pursuant taxation.” A is valuation made to that licenses be continued until then, adopted wholly away, resolve was Resolves as there will taken danger depredation, longer be nothing pilfer— being left the fact of there retained, till its intrinsic the soil be 34. The attitude of the times is in an reflected known, properly appreci- worth better Report to the Massachusetts ated, readily agricul- be sold for then it can from the Land to Public Lands in Maine purposes. recommending tural that if certain lands re- Documents, Legislative unsold, Massachusetts Senate mained granted: licenses to cut timber should Doc. No. at 7 destroyed before it was that, in the timber unless the value suggested The Referee well ownership equally to be completely relinquished appeared by trespass State have had to growth, all future it would conveying accomplished by of foresters" to army maintain a “veritable in existence. then and ascertain police reserved lots cutting only the tim- purchasers C conveyance. ber in existence at the time of sug report Even if the would have needed such Finally, the Referee’s “army” subject need subsequent about contemporaneous gests that —a speculate would not need is evidence performance —the later presented many years itself until be used therefore can their intent and marketa- when reached subsequent conveyances. meaning of the construe the significant ble size. This factor cannot be to the conduct apply only approach This can *13 intent in determining Legislature’s for the actually participated parties the who of that any in the absence of evidence conduct to original conveyance the —not contemplated possible the this future State subsequent many years by later Moreover, problem. sug- enforcement of to the holders by successors gestion Legislature that the was aware of Railroad and Auburn offices. Lewiston See begs the need for future enforcеment Co., Me. Railway Trunk Co. Grand Legislature actu- question by assuming the indication As an 54 A. ally of contemplated generations future understanding of contemporaneous of marketable timber. us to con parties, plaintiffs urge Legislature The Referee that the stated Agent con where the Land sider instances years “was of course aware that over future townships veyed public lot generations crops and even of successive stripped of tim substantially that had been grow upon valuable forest would through cutting permits prior ber under Legislature may the lots.” have While argue that The defendants trespass or fire. had a that there common-sense awareness of completely devoid of lots was none these pre- growth, would second it cannot be by received prices the low timber and that sumed that later Legislature knew of a small reflected the sale the Land growth, after the removal trees a sale of rather than of timber amount old, were then hundreds of would years defendants growth. The potential future argue ever be valuable. The defendants Reports Agent’s argue the Land also demonstrates, that the evidenсe to the con- prices received demonstrate that trary, yield that reforestation and sustained based on always cutting rights were sale of forestry and there were not known in 1850 standing on timber then the value of the a mar- pulpwood industry provide was no to record in the the evidence land. While any young ket for trees. In the absence of indication see no clear equivocal, is we indication that the entertained cutting rights on Agent ever sold the Land any of valua- thought generations of future completely were lots that public reserved timber, ble we find no clear manifestation that he indication and no without timber convey it intended to such timber fu potential to rights expressly sold ever away. price determined growth or ture findings about these factu- Referee’s potential. of such basis circumstances, sup- even the extent al to parties’ indication further As evidence, uniformly ported by the do not “practical construction” urged invariably point to the conclusion failure deeds, mentions the Referee the Refer- plaintiffs adopted by attempt ever agencies the various state to be ee. We considеr these circumstances challenge rights or to cutting resell the inter- equally consistent with the narrower cutting of successive purchasers’ pretation advocated the defendants. respect action with any objective salvaging growth. Since legislative ed. (4th 64.07 subsequent Statutory land Construction generations of trees have would 1974). sovereign presumed been will be generations taken subsequent officials, away than neces- conveyed landowners and such action have no more See, g., cannot be e. sary purpose. inaction considered determina- its to achieve States, tive intent of who actual- 321 F.2d Box v. United Co. ly participated conveyances. in the original 1963). (9th Cir. Similarly, attach no signifi title The State holds cance to the tax of the public treatment and is constrained reserved lots trustee cutting rights reserved lots. The preserve “pub hold and subjected any not taxation until contemplated by lic the Articles uses” after supra. 1887. See note Subse Justices, Separation. Opinion of quent tax valuations and assessments which Me., light A.2d tend to treat the perpetual restriction, we should constitutional interests are not еvidence of what the State convey assume that the State intended to originally convey. intended to The defend impair such an interest the land as would ants point plaintiffs also out ability pro for the indefinite future its they
been taxed on basis of what them management re vide for the own, selves claimed to not on determi express any served lots. While we do nation made The record State officials. limits of the opinion on the ultimate State’s nothing reveals else conduct *14 public re in the power convey interests parties during period question in that that private parties, lots to note served unequivocally an intent to in manifests report recognize the Referee’s fails clude growth conveyances future The possibility of such limits. Referee’s cutting rights.35 surrounding circum examination of the exclusively on the stances focused State’s V manage to its reach a solution desire to If this were an ordinary transaction be- ment not consider problems, did tween private parties, we would not be trus aspects responsibility as of the State’s willing convey infer an intent future impor lots. The tee of the reserved growth, where such intent is not manifеsted trustee, duty tance as State’s by the language of the deed. We are all duty, are incon awareness of that State’s the more reluctant to allow that inference conclusion sistent with the Referee’s to be grantor drawn here where the was the statutes purpose required the State’s the sovereign acting special capacity in a nar given interpretation. The be a broad trustee reserved lots. by the defend urged rower interpretation ordinary The rule that deed is consistent equally ants to be appears against most strictly grantor construed purpose the State’s as ascertained grantee, and in g., favor of the e. Rusha v. other extrinsic the statutes and language of Little, Me., (1973), 309 A.2d 870 does circumstances, avoiding exposure while also not apply when the is from the sover ex consequences of grave possibly to the eign purely and is not a commercial trans limits upon ceeding the constitutional action. Sawyer, Donworth v. power as trustee. State’s 47 general A. The rule grants is that land are to con VI favorably government. strued Superior Court United Dam Authori We conclude that States Grand River 229, 235, 1134, 1138, answer ty, adopting the Referee’s erred U.S. S.Ct. be- Sands, posed parties, question L.Ed.2d the first Suther- laches, waiver, prescrip- pel, acquiescence, express opinion question no We agreement— tion, parties’ effect, any, subsequent parties’ if con- are — proceeding. estop- in this duct have under not at issue such doctrines as a deed under such grantee interpreta- (1903), cause the Referee erred in his held the here conveyance. tion of the instruments of at issue those incorpo- lots “until proper interpretation of the timber and timber on the suggestion grass township” deeds leads to the conclusion that the with no ration of the or his conveyed only grantee, to cut trees in by our Court conveyance. It interest, existence on the date of the limited successor ques- necessary grant.1 is not to address the second existing at the time tion, e., i. whether or not “timber” included we should individual view that my It is species all sizes and trees. The Superior Court. judgment affirm the matter, that, practical have conceded as a agree that the interests At the outset all all forest that was in existence on the several conveyed by in thе reserved longer the date of the no Plaintiffs derived under which these deeds Therefore, regardless existence. of wheth- prendre.2 á profits their titles were original conveyances er or not the included ambiguity is no majority agrees there trees, to cut all species sizes and The contro- instruments. language of these everything that was included in those con- then, timber in- versy, is over whether the veyances has now been exhausted. limited to tim- thereby terests created entry is: respec- in existence at the time of ber Judgment Court vacated. grants. tive Judgment declaring to be as fol- entered were not so I submit that the interests lows: The lot cutting rights granted limited. period during State of Maine notwithstanding that place, In the first 1850 to 1875 conveyed to cut tim- timber,” standing upon “standing “timber ber not in existence on the date of the stand- and “trees or such real estate” conveyance. familiar on such lands” were growing conveyancers legislators terms GODFREY, JJ., WERNICK and concur- significant I it long ago day,3 find ring. *15 of 1850 in authoriz- neither the NICHOLS, J., dissenting. Agent the Land ing grants these nor State NICHOLS, Justice, dissenting. them chose to limit making grants lan- the broad standing Here timber. join I judgment cannot in the grant was: guage of the majority day. announced this tim- carry away the cut and right persuaded logic Report I am by the lots ... from the reserved ber and of Referee that he reached the correct re- said until the ... to continue said sult. I by am buttressed in that view incorporated shall be Township or tract that, Report circumstance his was after purposes for Plantation organized Court, challenged Superior that court longer. accepted Report adopted his the Refer- continued, submit, only not I ee’s conclusions. I am That reinforced harvest- v. standing was in State timber then view our Court’s statement until the terminat- ed, Mullen, the occurrence of 331, 338, 841, but until 97 Me. 54 A. appurtenance It years to other land. as an held 1. At issue in that case some 50 decided coupled Re- was the with an easement. after the enactment of our 1850 statute is a license (1944); statement, 399(b) Property to cut timber on the reserved lots after a 3 H. Tiffa- § portion incorporated 1939). (3d seq. had been Property, ed. et ny, § Real as the of town Millinocket. (1808); 3.See, Clap Draper, g., Mass. 266 v. e. profit prendre right by a 2. A á a one to take is Plummer, 7 Me. Erskine v. part produce of the soil or of the land of аnoth- 38; 8, 41; R.S., § §§ 532, 534, Rossi, er. Beckwith v. may personal It be a A.2d right, may gross, be a and therefore held in or it incorporation organizing given predecessors event —the were to their the deeds obviously municipality. may A few be in interest. trees Vastly may obviously that old. more trees interpretation an Such of the instruments trees young growth. In between stand be is consistent with the Massachu- rule of the apparent of which not so age is setts case which was books already on the controver- subject well be of which when the Land series Agent gave would are sy. These difficulties Clap Draper, deeds. 4 Mass. judgment under the avoided In that case was of Court. carry to cut and all trees away “standing on said growing place, fourth I am troubled In the through land Speaking forever.” Chief attempt appears what almost to be Parsons, Justice Massachusetts court era in history that turbulent rewrite language effectively ruled that such com- and meadow Maine woods. Timber prehended merely and timber the trees being were lost grass on thousands of acres standing then “all the trees and fires, origin. forest not all of natural standing growing close forever.” trespassers these reserved lots Pillage of commonplace. The State was place, interpret the second as we selling in a market be- competitive was language of the controversy deeds in least, cause, Massa- early period in this at must in- look four corners of each the lands in was still disposing chusetts possible In a to reach eagerness strument. to that common- belonged Maine which only part a result we cannot a consider wealth, being made from and sales were language and rest. To- disregard tracts, Bingham large as the day’s majority concludes was, the Referee The State purchases.4 under these deeds successors in and their noted, get practica- far as eager to title as only interest were a entitled to harvest might be able private parties into who ble single crop. they Do to a limit these continuing with the effectively to deal more single crop grass? they say When Nevertheless, trespassers. fixes, terminating scope, problem not the event experienced majority’s opinion implies that conveyed by but the duration of the interest deed, ready to period they suggesting are businessmen crop of timber grass conveyed crop good money single then in exist- pay ence, up- with a view grantee might single crop grass, but that optimum century crop? harvesting crop ward of a It each at harvest that season, period of sever- say suffices to but sometime over a the same used instrument with reference al decades. grass.
the timber and the in P.L. Neither majority’s I am Finally, disturbed *16 given by nor in the deeds declaring is distinction drawn rights be- conveys without more inter- between the two We should crops. existence, and then crop then in yond event in pret provision terminating this of a proposition citing one Idaho case for crop is a manner that for one rational rule majority would make which the it is for the other. Hope case. M. & I. Timber Co. 638, 640, Mines, Inc., 91 Idaho place, In the third over I am concerned Silver-Lead Plaintiff in the difficulties a result of the 428 P.2d ahead as case, however, deed majority’s conclusion the timber claimed under that of all standing In the deeds timber.” standing now on the reserved “all there at bar being interpreted own in the case the Plaintiffs the timber standing- or to time limitation to timber grass which was in at the was no existence 1861-1960, Maine, Wood, “Lumbering Lumbering History and Land A 4. See R. Maine, 1820-1861, III “The Timberlands” Sales —1860-1890” Smith, Lumbering History A D. grass growing at the times of the several
grants.
To me the grant, broad above,
set forth unambiguous. clear and
I give plain would it its meaning. Peter B. re Petition of THOMAS.
Supreme Judicial Court of Maine.
Argued June Sept.
Decided