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L.  Local U.S. Attorney Reminds Attorney General of 1855 Agreement (Mar 11, 1898)



Portland, Me., March 11, 1898.

To the Honorable,
The Attorney General,
Washington, D. C.


Referring to the matter of alleged trespass of government property at Baker's Island, transmitted to this office November 9, 1896, ( A. J. B. F17208, 896) and handed to me by my immediate predecessor, Mr. A. W. Bradbury, as unfinished business, I have the honor to report as follows:

This property was acquired by deed from the Baring Estate in 1827.  The deed embraced the whole island, containing about one hundred and ninety-seven (197) acres.  In 1854 the U. S. brought suits against Joseph Gilley and Elisha Gilley to recover possession of said island.  Pleas were filed disclaiming title covering so much of the locus as is embraced in a forty rod square lot.  (See accompanying paper No. 1) on which the lighthouse is erected, and denying disseizin of the remainder.

In 1855 at the September Term the Attorney of the United States accepted the disclaimer and the suits were discontinued.  At or about the same time the said Gilleys granted to the United States the right of way from the landing to the light-house and buildings of the United States and agreed that the light-house keeper and other U. S. officers and employees should have in common the right of pasturage on any and all lands on said island now used and suitable for pasturage as fully as they enjoy the same.  (See accompanying paper No. 2).

Construing the plea and action taken in the suit, together with the agreement made by the Gilleys to the Government, it seems to me that it is a fair inference that the United States waived its title to all that part of the island not embraced in the disclaimer.  I do not mean to say that it did so legally but morally.  If I am correct in this inference, it would certainly be unfair and oppressive at this late day to assert the paramount title of the Government as against the few poor and hardy fishermen living there; and if the United States has and intends to allow them peaceable possession of these scanty and sterile lands, I can see no earthly objection to allowing the town of Cranberry Isles to build a school house for the proper education of their youth.  This school-house is not built upon what is known there as the Government reservation, that part of the land, as I understand it, embraced in the disclaimer of title.  (See paper No. 1.)

So far as I can learn from observation on the spot and from inquiry in various directions, the U. S. does not need the land.  This latter consideration against dispossessing the present occupants, it is true, might have no weight if the Government is not morally bound to observe the intent of the action taken in 1855.  It is proper to add that I have not considered how far that action is legally binding upon the Government, and I do not know what defects, if any, exist in the title acquired by the U. S.  It is certain that about all those early titles of the Baring estate are more or less defective.

Therefore, without further action, I refer the matter back for your approval of this view or for further instructions if you shall deem action necessary.

I have the honor to be,
Very respectfully,
Isaac W. Dyer
United States Attorney.
2 enclosures.


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