CHAPTER VI.

OF PROPRIETORS OF COMMON AND UNDIVIDED LANDS.

$1. WHEN Our ancestors first came to America, it was usual, in some of the New England States, for the legislatures to grant a township of land to a certain number of proprietors, as grantees in fee, to hold as tenants in common; and a great proportion of the lands of Massachusetts and Plymouth colonies were originally granted by the colonial legislatures in this way.' Much larger tracts in Massachusetts under grants from the Council at Plymouth, in England, from the General Courts of the colonies of Massachusetts and Plymouth, and from the Indians, were claimed by proprietors; the Kennebeck proprietors claiming about three millions of acres; the Pejepscot proprietors about as many more; the Waldo proprietors about a million of acres; the Pemaquid proprietors about ninety thousand acres; and upon settlement of rights and boundaries with the State, these proprietors retained nearly one half of what they thus claimed and held. Other large tracts were also held and claimed under Indian titles recognized by the legislatures. In Rhode Island, which was originally settled by persons persecuted from other colonies, and who had at first no charter of government, the proprietors acquired their lands wholly by purchases from the Indians,

12 Dane Abr. 698.

3

4 Dane Abr. 70; Sullivan on Land Titles, 39, 40, 44 to 48.

Sullivan on Land Titles, 40 to 46. The letter of Governor Winslow, of the Plymouth Colony, of the 1st of May, 1676, states, that before King Philip's war, the English did not possess one foot of land in that colony, but what was fairly obtained, by honest purchase, from the Indian proprietors, with the knowledge and allowance of the General Court. Hazard's Collection of State Papers, vol. 2, p. 531 to 534; Holmes's Annals, vol. 1,

p. 383; 3 Kent Comm. 391.

subsequently confirmed by the General Assembly organized under the charter of Charles II. Thus, in almost every town in New England, there was a body of proprietors, distinguished from those inhabitants who had no interest in the grants and purchases referred to. As, in early times, the lands were of little money value, this latter class of inhabitants formed a very insignificant number; so that a town and proprietors' meeting would be composed of nearly the same indi

'See Preamble and Act of 1682; R. Island Laws, Dig. 1730, p. 30, 31. In speaking of Rhode Island in this connection, we exclude those portions of the State over which the Massachusetts and Plymouth Colonies, and when united, the Province of Massachusetts Bay, once exercised jurisdiction. Upon settlement of the boundary line of Rhode Island on the east, and by concession on the part of Massachusetts on the north, the former State became possessed, and for the first time, of much of the territory included within her chartered limits; whereupon, by act of the General Assembly of Rhode Island, in 1746, the grants made by the late Colonies of New Plymouth and Massachusetts, or the Province of Massachusetts Bay, were confirmed. The title to the Providence Purchase originated in a deed from Canonicus and Miantinomo, uncle and nephew, Narragansett Sachems, to Roger Williams, of "all the lands and meadows on the two fresh rivers, the Moshasuck and the Woonasquetucket;" the same lands being more definitely bounded in a subsequent deed from the same Sachems to the Founder of Rhode Island. Between 1636 and 1638, Roger Williams, by a deed, which has been lost, communicated his title thus acquired to his twelve associates, thereby giving "equal right and power of enjoying and disposing of the same grounds and lands" to his friends, the said associates, " and such others as the major of us shall admit into the same fellowship of vote with us." This was the commencement of the Proprietors of the Providence Purchase, whose very title contemplates that it was to be shared with those who might settle in the colony, and who, from that time forward, always acted as if incorporated, disposing of their lands in the same way they transacted their town business, by mere vote. The evidence of the original "twelve men's deed," as it is commonly called, is found in a subsequent deed from Roger Williams to the same effect, (though very much and very interestingly expanded by a complete history of the circumstances attending the settlement and purchase,) and in a memorandum concerning the lost deed left by him. All the land titles in the Providence Purchase rest on this foundation, supported by the Charter of Charles II., and the act of 1682.

viduals. Hence, it is by no means uncommon, in the earlier records, to find the doings of the towns and proprietors confounded; the same clerk usually acting for both, and attributing to the one body the appropriate transactions of the other.' It was early found that the proprietors, in many cases, were too numerous and dispersed to manage their lands as individuals; since, without incorporation, they could never, as a body, legally act even by majorities, so as to bind their dissenting associates; nor make a lease or sale of their lands, without the concurrence of every proprietor in the execution of the deed. Accordingly, in the old digests of all the New England colonies, acts are found prescribing the mode in which their meetings shall be called, and empowering them to choose officers, pass orders relative to the management, division, and disposal of their common lands, — and, in some of the colonies, to assess and collect taxes from their members; in short, communicating to them all the incidents of a corporation aggregate, without giving them that name. In some of the colonies

1 2 Dane Abr. 698. This confusion is found in the early records of Providence, R. I.; the records of both town and proprietors being kept in the same book until 1717-18.

* In Rhode Island, and not improbably in some of the other States, before any act was passed enabling them so to do, and in fact whilst the settlements themselves were acting under a voluntary compact of government merely, the proprietors were accustomed to assemble and pass votes and orders relative to their common property, in the same manner as if incorporated; admitting members into the propriety, upon payment of a certain sum towards the common stock, by mere vote; and in the same simple way, from time to time, dividing their lands amongst those entitled, according to their rights. As all the colonists were alike interested in the validity of such proceedings, there was then probably as little danger of their being impeached, as there would be at the present day of interference with a squatter in the western country, when bidding at a public sale for government lands which he had occupied without title. A similar course was taken in the colony of New Plymouth while under their famous compact. See Laws of the Col. of New Plymouth, 29, and onwards.

3 4 Dane Abr. 70, 71, 72, and Sullivan on land titles, 122, 123, for Mass. Acts, being Acts of 1636, 1692, 1712, 1735, 1741, 1753, 1783. Laws of the Colony of New Plymouth, 197, 198, 223; Inhab. of Springfield v. Miller,

these powers were granted to them, one by one, in successive statutes; and in others, at once, by a single act of legislation. As the proprietors sold and set off their lands in severalty, they remained proprietors in common only of the residue; until at last, in some of the towns of the earlier settled States, there is a small portion only of such lands left, and in most of them, none at all. In some of the States, they have therefore become obsolete for want of something to act upon; their lands being all sold or divided, and settled; and their former existence is known only by tradition, and by their records to be found in the public offices, or in the hands of some "Proprietor's Secretary" of antiquarian taste, who, since his appointment, has never been troubled with any proceedings on the part of his constituents. In other States, they remain in the exercise of their powers to the present day, - some newly organized, and almost all having yet something to do; but it requires not prophecy to foretell, that the fast and far spreading settlements of our country, will soon gather in the last of this early growth of corporations in the soil of New England.

2. By the acts before referred to, it will be found that proprietors' meetings were called by warrant or order, issued at the request of some, or a specified number of the proprietors by a magistrate, as a justice of the peace; the warrant, we believe, in all the colonies, being required to set forth the occasion of the meeting. When met, the proprietors were also empowered to choose a clerk, surveyors, and other officers, who, in some of the colonies were required to be sworn. They could not legally act upon the business of the propriety, unless at a meeting warned according to the statute enabling them to assemble in a corporate character.' But, though the vote of proprietors appointing an agent for a special purpose may not, for such

12 Mass. R. 415; Thorndike v. Barrett, 3 Greenl. (Me.) R. 380; Thorndike v. Richards, 1 Shepley (Me.) R. 430; Coburn v. Ellenwood, 4 New Hamp. R. 99; Farrar v. Perley, 7 Greenl. (Me.) R. 404; Woodbridge v. Proprietors of Addison, 6 Vermont R. 204, 206; Stiles v. Curtis, 4 Day (Conn.) R. 328; Laws R. I. Dig. 1730, p. 30,

31.

1 Woodbridge v.
v. Proprietors of Addison, 6 Vermont R. 204, 206,

a cause, be legal when passed; yet, if the proprietors acquiesce in the appointment, receive the benefit of his transactions, knowing that he acted for them, and take no measures to show their dissent to his proceedings, they so far ratify his doings, that they will be as binding upon them, as if he had been legally appointed. ' In a suit brought by the proprietors themselves, they were required to prove the warrant of the justice calling a meeting only twenty years before, for the purpose of reorganizing the propriety;2 but not to prove a warrant for calling a first meeting held seventy years before. And after the lapse of forty years, and long exercise of corporate rights, a regular warrant calling the first meeting may well be presumed.* Thus, where persons assumed to act as a propriety more than forty years ago, and having accomplished the purpose of their association, had ceased for more than thirty years to act in that character, it was held, that a stranger, as one claiming under a residuary devisee of a proprietor, could not dispute their capacity thus to associate, nor controvert rights derived from and held under them. Copies of ancient proprietary grants are admissible in evidence, without proof that the meetings at which they were made were legally assembled. If the records of a proprietors' meeting state that it was legally warned and held, this has been deemed prima facie, evidence of the fact,' and that the articles of business acted upon at such meeting were inserted in the warrant. In Maine it has been decided, that a first meeting of a propriety of that State will not be treated as illegal and void, because called by the magistrate to be held

8

1 Woodbridge v. Proprietors of Addison, 6 Vermont R. 204; Abbot v. Mills, 3 Vermont R. 528.

* Proprietors of Monumoi Great Beach v. Rogers, 1 Mass. R. 159.

Ibid.

Copp v. Lamb, 3 Fairf. (Me.) R. 312; Pitts v. Temple, 2 Mass. R. 538.

'Copp v. Lamb, 3 Fairf. (Me.) R. 312.

Pitts v. Temple, 2 Mass. R. 538.

Stedman v. Putney, N. Chip. (Vt.) R. 11; Codman et al. v. Winslow, 10 Mass. R. 150, 151.