The power of the propriety, to make partition of the common lands amongst the proprietors, does not exclude the right of the proprietors, as tenants in common, to have partition by process of law against their associates; but the proprietors are under no obligation to suspend their proceedings in dividing their lands, to enable one of their number to obtain partition by process of law; and, notwithstanding the pendency of such a suit, their voluntary partition will be valid and binding, provided the suit does not go to judgment.1

5. It was no uncommon thing for proprietors to set apart by vote a lot or tract of land for public or pious uses, as for a training-field, a public square or common, for public buildings, or a meeting-house." Where land is thus dedicated for a public square or common, and individuals purchase lots bordering thereon, under an expectation, excited by the proprietors, that it shall so remain, the proprietors cannot resume the land thus dedicated, and appropriate it to another use;3 nor can the town reclaim land, thus set apart and used by the public for a number of years, or convey a right to the exclusive possession of any part of it. The public, in such a case, have only an easement in the land, and any proprietor of the undivided lands in the town may, it seems, maintain ejectment against one who is in the exclusive possession of land thus set apart. But where the proprietors of a town, having set apart a piece of land as a common for public uses, made a division of lands consisting of one acre lots about the common,

'Mitchell v. Starbuck et al. 10 Mass. R. 20; Oxnard et al. v. Kennebeck Proprietors, 10 Mass. R. 179; Chamberlain v. Bussey, 5 Greenl. (Me.) R. 171; Folger v. Mitchell, 3 Pick. (Mass.) R. 396; Williams College v. Mallett 3 Fairf. (Me.) R. 401.

2

Wellington v. Petitioners, 16 Pick. (Mass.) R. 98.

3 Abbot v. Mills, 3 Vermont R. 521; Emerson v. Wiley, 10 Pick. (Mass.)

R. 310.

·

Pomeroy v. Mills, 3 Vermont R. 279; State v. Trask, 6 Vermont R. 355; Stiles v. Curtis, 4 Day (Conn.) R. 328; Mayo v. Murchie, 3 Munf. (Virg.) R. 358.

* Pomeroy v. Mills, 3 Vermont R. 279.

which were distributed to the proprietors, one to each right; it was held, that a purchaser of one these lots had no right to the fee of the common in front of it, and could not maintain trespass against one, who had erected a building thereon near his lot. The proprietors of a township appropriated land for a meeting-house, which was subsequently built thereon; the town was afterwards incorporated, and assumed the charge of all parochial matters, and the land around the meeting-house was called "the common, &c." and was always open, was intersected by roads, and used for the site of horse sheds, and for all the ordinary purposes incident to a place of worship, and also for a training field, and the first parish in the town, as the successor of the town in its parochial character, and in actual possession, maintained trespass against a mere stranger for ploughing up a portion of the land thus appropriated, though after the appropriation the proprietors had voted to sell a part of it, and had exercised other acts of ownership over other portions of it.2

§ 6.' There never was a question but that proprietors were authorized to sell portions of their common lands, as a corporation, to one not a member of the propriety, and a fortiori to one who was, for the purpose of defraying their incidental expenses, and bringing forward, settling, and improving their other lands." In some of the proprieties it was usual when a half or quarterright-man, as he was called, in distinction from a proprietor entitled to a full right, had, in a division by drafts, drawn a particular lot, to a part of which only he was entitled according to right, to give him a right of preemption to the remainder of the lot, the proceeds of the sale going into the common stock.* Neither can there be any doubt but that a deed, signed and acknowledged on behalf of the corporation, by the clerk or other agent duly authorized by vote, with the corporate seal

Ferre v. Doty, 2 Vermont R. 378.

'First Parish in Shrewsbury v. Smith, 14 Pick. (Mass.) R. 297.

34 Dane Abr. 120.

This was the custom amongst the Proprietors of the Providence Purchase in Rhode Island.

attached, would be a competent and very proper mode of conveying, lands on the part of the propriety in case of a sale; and in modern times, this mode is frequently, if not usually, adopted.' A vote of proprietors, authorizing a committee to sell the common lands, empowers them also to make deeds in the name of the propriety; and in executing such deeds one seal is sufficient, though the committee may consist of several persons. But where proprietors authorized their clerk, as clerk, to make a deed of a piece of their land to an individual in their name, it was decided that the grantee took no title." In Maine, however, a similar deed, executed by the clerk, under a vote directing him to convey "agreeably to the usual forms in like cases practised," was sustained, on the ground, that, by a general order of the proprietors, the form of the proprietary deeds was to be such "as the standing committee should judge necessary," for the purpose of granting and conveying the lands of the company, "to be approved of by at least two of the committee, and expressed on the same in writing under their hands;" and that, as the deed in question was thus approved, and conformed "to the usual forms, in like cases practised," it was good; proprietors being empowered to prescribe the forms of their conveyances.* It is not necessary that deeds, made by proprietors' committees, should contain recitals of their authority and proceedings in the sale; such recitals not being evidence of the facts."

It was long a question, whether proprietors could sell their common lands, merely for the purpose of turning them into money. It being found, however, that the practice had been general, and that large estates were held under such sales, the

'Coburn v. Ellenwood, 4 New Hamp. R. 99; Atkinson v. Bemis, 11 New Hamp. 44.

2 Decker v. Freeman, 3 Greenl. (Me.) R. 338.

3 Coburn v.

Ellenwood, 4 New Hamp. R. 99.

Thorndike v. Barrett, 3 Greenl. (Me.) R. 380.

Inman v. Jackson, 4 Greenl. (Me.) R. 237; Powell v. Brown, 1 Tyler (Vt.) R. 286.

courts affirmed this practical construction of the statutes, enabling proprietors "to manage, divide, and dispose of their lands, in such way and manner as hath been or shall be concluded and agreed on by the major part of the interested;" and decided in favor of such sales.'

A much more serious doubt once entertained was, whether proprieties could by mere vote, without deed, or even location, convey their lands to one not a member of the propriety; and it was remarked by an American writer on Land Titles, in the beginning of this century, that such a grant "of any part of them by the voice of the majority, to the disinherison of the proprietor of such part, or a grant by the vote of all the proprietors, to convey the whole, without deeds in legal form, cannot, from any precedent yet established, be justified." 2

There were, however, some instances, previous to that time, where, without objection and solemn argument, the Supreme Court of Massachusetts allowed such votes of land to strangers to have the same effect against co-tenants, as deeds of bargain and sale from one individual to another would have had.3 When, however, the question came directly before the courts for decision, so many and so large estates were found to depend upon the validity of this mode of conveyance, and so long had been the period during which it had been used, that the use was regarded as a practical construction of that portion of the statutes, which empowers proprietors to manage and "dispose of their lands in such a way and manner as shall be agreed by the major part, &c. ;" and such conveyances were held good. It will be found that the earlier cases speak

14 Dane Abr. 12; Rogers v. Goodwin, 2 Mass. R. 475; Commonwealth v. Pejepscot Proprietors, 7 Mass. R. 399.

2 Sullivan on Land Titles, 123.

3 Ibid. 123.

Adams v. Frothingham, 3 Mass. R. 360; Codman v. Winslow, 10 Mass. R. 150, 151; Inhab. of Springfield v. Miller, 12 Mass. R. 415; BaFales, 16 Mass. R. 497; Inhab. of Rehoboth v. Hunt, 18 Mass. R. 224; Thorndike v. Barrett, 3 Greenl. (Me.) R. 380; Thorndike v. Richards, 1 Shepley (Me.) R 430; Coburn v. Ellenwood, 4 New Hamp. R. 99.

ker v.

as if possession must accompany such a grant, and, though they affirm the ancient doings of the proprietors of this sort, express doubts, whether such a proprietary conveyance made at the present day would be supported.' We do not well see, however, with what consistency a different construction can be given to the same words in a statute, according as the transaction to which they are applied is new or old; the statute itself intimating no such difference. As proprietors could in this way convey a definite portion of their land, so they could convey an undivided interest in their common lands in the same way. In early times this was very common, upon payment of so much money into the common stock, and was sometimes done in recompense of important services. A grant of land made by vote of proprietors can no more be rescinded by a subsequent vote, even at an adjournment of the meeting, at which such vote, was passed, than if made by deed; and the exhibition of the first vote, as the ground of his title, by no means precludes the grantee from objecting to the subsequent proceedings of the proprietors in vacating it.*

$7. The form of proprietary votes intended to operate as grants, and the ceremonies attending them in order to their completeness, vary in the different proprieties; each, as we have seen, by the construction put upon the enabling acts, being entitled to adopt its own mode of disposing of its common lands," In some it was by mere vote; in others by a vote, followed up by a location and survey allowed by a committee, and recorded upon such allowance by the clerk. In

1 Same authorities.

2

Dr. John Clarke, of Newport, R. I., is said to have been voted in a proprietor of the Providence Purchase for his distinguished services in procuring

the charter of the Colony of Rhode Island from King Charles II.

Rehoboth v. Hunt, 1 Pick. (Mass.) R. 224; Shapleigh v. Pilsbury, 1 Greenl. (Me.) R. 271; Pike v. Dyke, 2 Greenl. (Me.) R. 213.

Pike v. Dyke, 2 Greenl. (Me.) R. 213.

• Thorndike v. Barrett, 3 Greenl. (Me.) R. 385, 386, per Mellen, C. J.

6

Adams v. Frothingham, 3 Mass. R. 360; Williams v. Ingell, 21 Pick. (Mass.) R. 288.