Who Owns Baker's Island? Background Trespass Case   Return to Baker Island
Return home_
Index

A  B  C  D  E  F 

G  H  I  J  K  L  M  N  O  P  Q 

R 

O.  U.S. Circuit Court, Maine, Issues Final Settlement (May 26, 1909)

REPRODUCED AT THE NATIONAL ARCHIVES

UNITED STATES CIRCUIT COURT.
DISTRICT OF MAINE.       AT LAW.
No. 53.

United States of America,  vs.  Joseph W. Gilley et als.

FINDINGS AND CONCLUSIONS OF COURT.

The parties to the above entitled action, by their respective attorneys of record, having filed with the clerk a written stipulation waiving a jury, the same came on to be heard by the Court without the intervention of a jury, on this twenty sixth-day of May, 1909, the United States being represented by Honorable Robert T. Whitehouse, United States Attorney for District of Maine, and the defendants being represented by Benjamin Thompson, their attorney; and after hearing the evidence offered by the respective parties and the arguments of their counsel, and fully considering the same, it appearing to the Court that the facts set out in the defendants' plea are correct, viz:-

That in certain actions in the nature of writs of entry, returnable at the September term, 1854, of this Court, brought by the said United States against Alfred Gilley, Joseph Gilley and Elisha Gilley, in which the United States sought to recover possession of the whole of Baker's Island, so called, pleas of disclaimer were filed by each of said defendants to that part of said Island, and the appurtenances thereto belonging, bounded and described as follows:

"Beginning at a point on a certain fence as it stood on said Island on the second day of October, 1854, enclosing the field, which point was seventeen rods from the barn then occupied by Elisha Gilley, and as the fence then ran, and from that point running to the end of a stone wall existing at the time aforesaid on the small enclosure, so called, and on the

[next page] 459-186   -2
same course until forty rods are completed, said bound being nearly in an easterly direction; thence running at right angles with the first bound forty (40) rods; thence at right angles with the second bound forty (40) rods; thence at right angles with the third bound forty (40) rods to the bound begun at, together with the right to enjoy without let or hindrance the right of way and passage from the landing on said Baker's Island used for boats and landing to the Lighthouse and buildings of the said United States, as such way was laid out as a Town way and used and traveled on the 29th day of September, 1855, to be forever thereafter kept open as an easement for the use of said United States, its servants and officers; and the further easement for the said United States by its Lighthouse keeper and all and every of the officers and persons enployed by the said United States on said Island as keepers and laborers in and about the business of said Light, to have in common the right to pasturage on any and all the land on said Island used on said twenty-ninth day of September, 1855, and then suitable for pasturage as fully as said Elisha Gilley and one Joseph Gilley then enjoyed such pasturage:"

And as to all the rest and residue of said Island with the appurtenances, the said defendants pleaded that they did not disseize the said United States in manner and form as the said United States had alleged;

And thereafter on the second day of October, 1854, said United States accepted the disclaimer so filed by said Alfred Gilley, (one of the predecessors in title to the defendants in the present action): and on the eighth day of December, 1854, a writ of possession issued to the said United States as the plaintiff in said suit; and thereafter on the twenty-ninth day of September, 1855, said United States discontinued

[next page] 459-186   -3
the other two actions then pending against said Joseph Gilley and Elisha Gilley, and contemporaneously with such discontinuances, and as a part of the consideration thereof, the agreement set out in the brief statement to the defendant's plea in the present proceeding was made; and for more than forty years thereafter the understanding and agreement stated in such brief statement was recognized and carried out by both parties,- the Court thereupon finds and rules that the said United States is estopped to claim any other or further rights than it acquired by the aforesaid entries in said actions against Alfred Gilley, Joseph Gilley and Elisha Gilley, and by virtue of the agreement between said Joseph Gilley and Elisha Gilley and the said United States at the time of the dicontinuance of the actions against them.

It further appearing that the United States now has the full and undisputed possession of that part of said Island hereinbefore described, and is enjoying the benefit of said easements, with the exception of that relating to pasturage, which both parties hereto concede is impracticable of being carried out; and both of said parties having requested that in the disposition of the present action, said easement as to pasturage shall be modified so that the said shall be enjoyed by the United States and its Lighthouse Keeper and all and every other of its officers and persons by it employed on said Island as keepers and laborers, in and about the business of said Light, in common with the inhabitants and occupants of said Island, in, on, and to, all of the lands on said Islands which may from time to time be used for said pasturage purposes, other than the lot hereinbefore specifically disclaimed; and said defendants conceding that the said United States, in addition to its ownership, rights and interest in, on and to,

[next page] 459-186   -4
said Island, which have hereinbefore been enumerated, shall forever hereafter own in fee simple the land near the shore upon which its boathouse, at the date of the disposition of this action, actually stands; both parties assenting and agreeing that the boat landing, so called, shall forever hereafter be kept open and used in common for landing purposes by said United States, and its servants and officers, and all other persons now or hereafter interested in said Island;

It is Ordered (counsel for both parties assenting and approving) that the present action be disposed of by the following entry, viz:- Judgment for the United States,- a writ of possession to issue for the following described real estate, and the appurtenances thereto connected, viz:-

Beginning at a point on a certain fence as it stood on said Island on the second day of October, 1854, enclosing the field, which point was seventeen rods from the barn then occupied by Elisha Gilley, and as the fence then ran, and from that point running to the end of a stone wall existing at the time aforesaid on the small enclosure, so called, and on the same course until forty rods are completed, said bound being nearly in an Easterly direction; thence running at right angles with the first bound forty (40) rods; thence at right angles with the second bound forty (40) rods; thence at right angles with the third bound forty (40) rods to the bound begun at, together with the right to enjoy without let or hindrance the right of way and passage from the landing on said Baker's Island used for boats and landing to the Light house and buildings of the said United States, as such way was laid out as a Town way and used and traveled on the 29th day of September, 1855, to be forever thereafter kept open as an easement for the use of said United States, its servants and officers; and the further easement for the said United States

[next page] 459-186   -5
by its Lighthouse keeper and all and every of the officers and persons employed by the said United States on said Island as keepers and laborers in and about the business of said Light, of the right of pasturage in common with the other occupants and owners of said Island, in, on, and to, all the land on said Island which may from time to time by used by the owners and occupants thereof for pasturage.

The Court finds that the United States is the owner of said lot of land, and entitled to the possession thereof as tenant of the freehold; and as such owner is entitled without lot or hindrance to have and enjoy the right of way and passage from the landing on said Island used for boats and landIng, to the Lighthouse and buildings of said United States, as the same was laid out as a Town way and used and traveled on said 29th day of September, 1855, to be forever kept open as an easement for the use of said United States and its servants and officers, as well as for all other persons and travel whatsoever; and that the said United States and its Lighthouse keeper and all and every other of its officers and persons employed by the said United States on said Island as keepers and laborers in and about the business of said Light are entitled to the right of pasturage in common with the other occupants and owners of said Island in, on and to, all the land on said Island which may from time to time be used by the owners and occupants therefor for pasturage.

The Court further finds (counsel for both parties assenting, and approving) that the United States is, and shall forever hereafter be, the owner in fee simple of the land near the shore upon which its boathouse actually stands at the date of this entry; and the boat landing, so called, shall forever hereafter be kept open and used in common for landing purposes by said United States and its servants and officers, and all other persons now or hereafter interested in said Island.

[next page] 459-186   -6
The United States, however, is not entitled to any other or further ownership of, or easement in, on, or to, said Island.

It Is further Ordered that the conclusions of this Court, and the aforesaid entry, be made a part of the record of the disposition of this action; and that the Clerk be, and hereby is, directed to forward a certified copy of the same to the Registry of Deeds for the County of Hancock, and procure the recording of the same by such register.

By the Court,
L.S.     James E. Hewey
Clerk of the Circuit Court of the
United States for the District of
Maine.

I, James E. Hewey, Clerk of the Circuit Court of the United States for the District of Maine, hereby certify that the above is a true and correct copy of the Findings and Conclusions of the Court in the acttion [sic] at law, in which the United States of America is plaintiff, and Joseph W. Gilley et als, defendants, and numbered 53 on the docket of said Court, April Term, 1909.

In Witness Whereof I hereunto set my hand and affix the seal of said Court this twenty-sixth day of May, 1909.

Court Seal

James E. Hewey,
Clerk.
Rec'd June 2, 1909 at 8h. 21m. A.M., and entered by,
Wm. 0. Emery, Reg'r.

 

next section (P)
^top