197 F. 837 | D. Me. | 1912
The libelant seeks to recover for wharf-age arising from the use of Warren’s or “Dime Kiln” wharf in the town of Islesboro in this district. He alleges that the wharf was owned by Eugenia Isaacs of New York City; that on October 16, 1908, she leased the wharf to the libelant, who controls it, and is the exclusive proprietor as lessee of it, and, as such proprietor, is entitled to recover wharfage from all vessels using it; that on the same date, by a valid assignment, she set over to the libelant all claims up to that date, for use of the wharf, against all persons, associations, and corporations, including a claim against the claimant’s steamer Golden Rod; that on April 15, 1906, and during each succeeding month up to the date of the libel, December 4, 1909, the steamer Golden Rod, while in prosecution of her trips, stopped at
The claimant denies that the libelant was the proprietor of Warren’s landing; or that the wharf was owned by Eugenia Isaacs; or that it was a private wharf; or that it was wholly maintained by the libelant; or that he, as lessee, was the proprietor of it; or that as such proprietor he is entitled to recover wharfage from vessels using it; or that, by virtue of the lease, he acquired any rights in the wharf, or, by virtue of the assignment, acquired any claim against the Golden Rod. The controversy, then,, relates to the ownership of Warren’s wharf; the libelant seeking to recover wharfage, on the ground that for a part of the period named in the libel he was the lessee of it, and, as to the rest of the period, he had taken an assignment from Eugenia Isaacs, the owner and lessor, of her claim for wharfage.
The claimant further says that neither the libelant nor his lessor was ever the owner of any part of Warren’s wharf; that on January 7, 1889, George Warren, a son of Samuel Wjarren, gave a warranty deed to the North Islesboro Wharf Company of a lot of land extending from the main road across his field, to a point on the shore where a wooden pier was then located, which had been placed there by parties who contemplated the building, of a wharf at that point. It is also contended on the part of the claimant that the North Islesboro Wharf Company was a voluntary association, never incorporated; but that the deed from George Warren operated to vest the title of the real estate in the persons constituting the Wharf Company, as tenants in common; that Warren’s wharf was built off the shore of such real estate, under the terms of a legislative grant held by the Wharf Company; that it was constructed by one E. S. Whitten,’ who was in charge of the lime property, located in that vicinity, then under lease to William N. Hoag, and under a contract with the Wharf Company.
The libelant’s title to the wharf comes, as has been said, through Eugenia Isaacs, whose1 title was derived by mesne conveyances from Case and Ulmer, who got their title by warranty deed from George Warren, May 7, 1889. The claimant denies that any title to the wharf was obtained by this deed, and sets up that the title had already passed from George Warren to the North Islesboro Wharf Company by the deed of January 7, 1889, recorded April 15, 1889. The libelant says that the deed from Warren to the North Islesboro Wharf Company was not a valid conveyance, and did not vest the title to the real estate in the North Islesboro Wharf Company, for the reason that there was no legal grantee in the deed. He contends that, at the time of the delivery of the deed, there were in existence no well-ascertained persons constituting the “North Islesboro Wharf Company.” And the libelant sharply contends that the court cannot receive parol testimony to identify the members constituting the North Islesboro Wharf Company.
“Meaning to convey to said Wharf Company a piece of land from the town road to said company’s wharf one and one-half rods wide to be used as a road, also meaning to convey one and one-half rods at the north of said wharf, and one and one-half rods at the south of said wharf to be used by said Wharf Company.”
Certain testimony was offered tending to identify the persons con-' stituting the Wharf Company. A special act of the Legislature of the state of Maine, approved on the 23d day of February, 1889 (Laws 1889, c. 422), authorizing the North Islesboro Wharf Company to erect and maintain a wharf in front of.the land of Samuel Warren, was also offered; also, evidence tending to show the holding of meetings by the members of the so-called company; and the application to the Legislature by the same persons for permission to erect the wharf in question.
“The South Chelmsford Hall Association was a body well known, all the members of which could be ascertained; and, as it could not take as a corporation, the deed may properly be construed as a grant of the estate to those who were properly described by this title, especially as the grant is to the ‘Associates,’ a term deemed by the grantors to mean the same as ‘Association.’ The persons associated in the society were thus tenants in common of the land conveyed.”
It is sufficient to say that the court cannot sustain this contention. The substance of the Whitten contract has already been given. There is no pretense that Whitten, or Hoag as his principal, have ever carried out their part of the contract; and it certainly could not have been the intention of the parties that the members of the Wharf Company should, by the contract, part with their title, or with other rights in the property, without the fulfillment of the contract on the part of Hoag. It therefore becomes unnecessary to consider the effect of the terms of that contract with respect to the dedication to the public of the wharf as a free steamboat landing forever.
Upon the whole testimony, the court finds that the libelant was not the owner of the wharf in question, and had no rights as proprietor of the wharf, or as the assignee of Eugenia Isaacs, upon which to base the claim set out in the libel.
The libel is dismissed, with costs.