Bow v. Allenstown

34 N.H. 351

Opinion

Bell, J.

*

It has been settled by the decisions of the Superior Court in the case of New-Boston v. Dunbarton, 12 N. H. 409, and 15 N. H. 201, that in a case where no charter or act of incorporation of a town can be found, it may be proved to be a town by reputation, or it may be shown to have claimed and exercised the powers of a town, with the knowledge and assent of the legislature, and without objection or interruption, for so long a period as to furnish evidence of a prescriptive right.

All the evidence which may properly bear upon the second of these points, is also evidence proper to be weighed under the first.

The case was tried by the court and by the counsel upon these assumptions, and the questions we are now called to decide relate to the admissibility and effect of certain parts of the evidence-offered, and to the propriety of the instructions given by the court to the jury.

I. It was held that the act of 1831 did not raise any conclusive presumption that the town was not before incorporated, but that it was evidence to be weighed by the jury. It is contended that it was conclusive evidence that the town was never before incorporated.

Presumptions of fact are inferences from evidence, and they may be resisted by evidence leading to an opposite conclusion. As matters of fact they are to be submitted to a jury. This is not the point raised here. Legal presumptions are artificial rules, established by the law, upon considerations of public policy or public convenience, against which no evidence is received. We have not been referred to any work of the law, where the presumption contended for here is recognized, and we are aware of none. There is nothing in the history of local corporations to justify the presumption. Towns in England were ordinarily incorporated by royal charters, and in disturbed times they often solicited new charters to avoid the risks of forfeitures. If a corporation by accident or neglect became disorganized, it could be restored only by a new charter, and some of the kings are charged with extorting money from corporations by compelling them to take new charters, for which they were obliged to pay large fees and heavy fines. 8 Hume’s Eng. 132 ; 1 Macaulay’s Eng., ch. 2; 12 Lingard’s Eng. 341. It is a settled principle that a new charter does not extinguish old privileges. Hadduck’s Case, T. Ray 439; Vent. 355; 6 Vin. Ab. 267, 283; and Corp., I. 3; Reg. v. Ipswich, 2 Ld. Raymond, 1239; Com. Dig., Franchise, E, 9 ; which could not be true, if the presumption insisted upon was admitted. The case of The King v. Stratford is a direct authority against this position. 14 East 360.

II. The deeds offered on the one side and the other were competent evidence, though of no great weight. The principle upon which oral declarations are admitted in matters of general and public interest, as a means of proving traditionary reputation, applies to documentary and all other kinds of proof denominated hearsay. If the matter in controversy is ancient, and not susceptible of better evidence, any proof in the nature of traditionary declarations is receivable, whether it be oral or written, subject to the proper qualifications. Thus deeds, leases and other private documents have been admitted as declaratory of the public matters recited in them. 1 Greenl. Ev., sec. 139; 1 Phill. Ev. 249. Such evidence was received without objection in New-Boston v. Dunbarton, 15 N. H. 201, before cited; Adams v. Stanyan, 4 Foster 405. The deeds introduced to prove as well as to disprove the fact of incorporation, were of persons heretofore resident in Allenstown. One which was offered, of land in that town, but excluded between parties residing at a distance, was rejected. It was properly excluded. In subjects interesting to a comparatively small portion of the community, as a city or a parish, a foundation for admitting evidence of reputation, or the declarations of ancient and deceased persons, must first be laid by showing that from their situation they probably were conversant with the matter of which they were speaking. 1 Grreenl. Ev., sec. 136; 1 Phill. Ev. 255.

Upon this principle the evidence of what was said by Judge Idvermore, who is not shown to have been conversant either with the place or the affairs of Allenstown, was properly rejected.

The verdict and judgment in Pembroke v. Allenstown was admitted as evidence of reputation, though it was objected that the suit was commenced a year after Allenstown was incorporated by statute, in 1831, and for a claim accrued partly before and partly after the act of incorporation. It would of course have been objected to for that cause, if the recovery had been upon a claim arising after the incorporation alone. We must, therefore, assume that the recovery appeared to be for a cause arising before that date. The question involved must have been a settlement acquired by at least four years’ residence before the first charge. It had no tendency to prove an incorporation before 1816, which the plaintiffs were bound to establish, but was admissible to rebut the position taken by the defendants, that the town was not incorporated till 1831. The circumstance that the verdict was post litem motam, does not affect its admissibility, is the rule laid down by 1 Grreenl. Ev., sec. 139, for which he cites many authorities.

The fact that Pembroke subsequently maintained the same pauper for whose support a recovery was had in that action, had no tendency to rebut the effect of the verdict as evidence of reputation of the corporate and town character of Allenstown.

Evidence showing that no charter or incorporation of Allenstown as a town could be found in the State records, being introduced, it was competent for the plaintiff to show that the records were not so complete that it could be inferred that there had never been any such charter or incorporation. As tending to show this, evidence that the house of the Secretary of the Province was burned in 1736, and many public records and papers destroyed, was properly admissible. The copy of the private act reciting these facts, which are to be established as matters of history of public and general interest, seems to have been properly admitted. It cannot be presumed that the legislature would have passed an act containing a false recital as to such a matter. The history of the same fire, given in the 5th N. H. Historical Society’s Collections, by the late Richard Bartlett, Esq., former Secretary of State, is entitled to as high credit as any history. Mr. Bartlett was well known as an able lawyer, and a gentleman of high personal character. The article in question bears striking evidence of the diligence and care which were habitual to him. It is admissible on the ground of reputation. The fact of the burning of the Secretary’s house and of a part of the public records is recited in the public statute, 26 Geo. 2., Prov. Stat., 1771, p. 175; of which the court may properly take notice ex officio.

The evidence of the search for charters of other towns was admissible also, to show the records incomplete. And it is not material that in some instances other explanations of the fact may be given than the loss of the records. Dover, Exeter, Hampton and Portsmouth were doubtless incorporated or recognized as towns, during the period when the government of New-Hampshire, in the time of the great rebellion in England, was usurped by Massachusetts. Others were probably incorporated as districts and parishes, and have been made towns by the operation of general laws conferring the character of towns on such districts or parishes.

The records of Allenstown were all admissible, whether they tended to show such acts as a town alone could do, or such acts as an unincorporated place might equally do. The mere fact that acts were done which any unincorporated place might rightfully do, would have no tendency to prove the place a town, but the manner of doing them must generally carry evidence that they were done in the character of a town, or otherwise. The material question is whether the people of the place assumed to act in the character of a town, and their records must almost néeessarily have a distinct bearing, either negatively or affirmatively, upon this point.

The book containing the taxes and accounts, though not properly a town record, was yet a public book, containing entries made by the officers of the place, of their doings as such, and the same remark applies to the school-book and pauper-book. They were of the character of declarations, or admissions, of the place itself; made by its officers in the course of their business, and almost necessarily giving character to the action of the people, as claiming to be a town, or a place not incorporated.

Taxes for State and County purposes might be rightftdly assessed in unincorporated places under general laws passed as early as 1789; Laws 1789, p. 211; and for the support of schools after 1808. Laws 1815, p. 38. But at no time for highways or paupers, according to the decision in Hillsborough v. Deering, 4 N. H. 86. Whether the action of the place or its officers was legal or not, as to the method of proceeding, is not material to the inquiry, since the inference is equally strong as to the character in which they assumed to act, whether they proceeded legally or otherwise. If the people in their meetings voted to raise taxes for purposes for which unincorporated places could not raise money, as for the building of highways and the support of paupers, and the proper officers proceeded to assess, collect and appropriate such taxes, it is evidence that they claimed to exercise the peculiar powers of a town, though the proceedings might not be conformable to law. Though not conclusive, it would be evidence to be weighed by a jury.

That they are not certified by the town-clerk is not material. They are not records requiring his attestation. They are original minutes of the acts done by the officers of the place, in the course of their official duties, and of the nature of admissions of the place by its officers. The same facts might be shown without any books, by the testimony of any person to whom they were known.

Considered as the written statements of persons conversant with the place and its affairs, they were admissible as evidence of reputation.

The character of the acts of the legislature offered in evidence is somewhat various. The acts of the Convention of 1775 being of a revolutionary character, ought not to be of much weight; but these, and the acts of the legislature which speak of Allenstown incidentally, as if it were a town, may be properly weighed by the jury, as evidence of the general impression of the community at those times that Allenstown was a town. They may stand on the same ground as the deeds to which we have before referred, and as the venires for jurors. The latter are without weight as a recognition, because the courts cannot confer corporate power. They may, however, take judicial notice of towns, as the public bodies from which jurors are to be drawn, and to whose officers their writs for jurors are to be sent. It is not suggested that unincorporated places before the Revised Statutes were authorized to draw jurors, and we are aware of no statute which gave them that authority. That they were required by the courts to return jurors, is evidence that Allenstown was reputed to be a town. And it is evidence that the place assumed to act as a town, that jurors were drawn and returned to the courts.

The acts of the legislature, incidentally recognizing the town of Allenstown as a town, are evidence of their.knowledge of the claim and of their acquiescence in the assumption, if it was such, of the corporate powers of a town, which it would be necessary to show, together with the continued exercise of such powers for the period of twenty years, either to establish their title to be a town by prescription, of to authorize the jury to presume the existence and loss of a town charter.

Besides the statutes to which we have referred, we find among the documents put in evidence in this case, two acts of the legislature, which are not simply evidence of recognition, or of the reputation of Allenstown as a town. The first is a joint resolution of the legislature, passed June 21,1811, upon the petition of the selectmen of Allenstown, signed also by a majority of the voters, praying the legislature “ to empower said town of Allenstown to elect a representative.” This resolution provides that “the town of Allenstown have leave to send a representative to the general court of this State till the legislature shall otherwise order.”

In the case of New-Boston v. Dunbarton, 12 N. H. 409, it was held that evidence that Allenstown had been classed for the choice of a representative, is not a fact of a character to be submitted to the jury on which to find an act of incorporation, inasmuch as unincorporated places are usually classed for that purpose. By the Constitution, the power to elect representatives without classification is confined to towns. By section 9 of Part Second, “ every town, parish, or place with town privileges, (those of the last being in effect towns, and now by law declared to be such; acts of 1792 and since,) having one hundred and fifty ratable male polls, of twenty-one years of age and upwards, may elect one representative,” &e.

By section 10, “ such towns, parishes or places, (omitting all reference to town privileges,) as have less than one hundred and fifty ratable polls, shall be classed by the general court for the purpose of choosing a representative.”

It then proceeds, sec. 11, “ whenever any town, parish, or place with town privileges, as aforesaid, shall not have one hundred and fifty ratable polls, and be so situated as to render the classing thereof with any other town, parish or ¡dace, very inconvenient, the general court may, upon application of a majority of the voters in such town, parish or place, issue a writ for their selecting and sending a representative to the general court.”

The power of electing a representative under a resolution of the general court is here expressly limited to towns, and places with town privileges, which are really towns. No others were capable of acting under such an authority.

The second is an act passed June 22,1815, entitled an act for disannexing lands owned by Robert Buntin, &c., from the town of Bow, and annexing them to the town of Allenstown. This act recites a petition to annex the lands to the town of Allenstown, and provides that the land, &c., be disannexed from the town of Bow, and is annexed to and made part of said town of Allenstown, as fully aud amply as though contained in, &e., the original grant, charter or incorporation of said Allenstown.

It cannot be questioned that no particular form of words is ever required to constitute a corporation. It was so expressly held in the case of Sutton’s Hospital, 10 Co. 30, and is so laid down in Kyd on Corp. 62; 2 Kent’s Com. 27; 1 Rolles’ Abr., Corp., F. 1.

Wherever it is apparent that the intention of the legislature will be defeated if certain parties are not found to possess corporate powers, they will be held to be created a corporation. Dyer 100, a, p. 70; Russell v. Men of Devon, 2 D. and E. 672; Stebbins v. Jennings, 10 Pick. 183; North-Hempstead v. Hempstead, 2 Wendell 109. In the last case it is said that it had been decided in Jackson v. Corly, 8 Johns. 386, that the people of Otsego county could not take by a grant, because they are not a corporation; and in Hornbeck v. Westbrook, 9 Johns. 73, that the town of Rochester could not take, for the same reason; yet if those grants had been made by the State, the grant itself would have conferred a corporate character. And the like principle was held, that the grant of the State gives to the grantee a capacity to take land, when otherwise incapable, as in the case of the heir of an Indian, Goodall v. Jackson, 20 Johns. 706; of a foreigner, Jackson v. Etz, 5 Cowen 314; and of a slave, Jackson v. Lervey, 5 Cowen 397. In State v. Fourth N. H. Turnpike, 15 N. H. 162, it was held that if acts of the legislature recognized the subsequent and continued existence of a corporation, such recognition will be a waiver of any forfeiture previously incurred; and the same doctrine was held in People v. Manhattan Co., 9 Wendell 382, and by Cowen, J., in People v. Kingston Turnpike, 23 Wendell 193.

It is on this principle that it has always been held in England that a writ of summons to a commoner to attend the house of lords, if acted upon, makes the party a peer, because none but peers can hold a seat in that body. 3 An. Dig. 157, &c.; and a charter or statute granting a right to elect representatives in parliament makes the place a borough.

And it is on this principle, so far as we can discover, that the grantees of common lands in this State under royal or legislative grants, have always acted as corporate bodies, and been recognized as such.

It must be taken, we think, that the legislature, by their resolution of 1811, intended to recognize Allenstown as a place entitled to all the powers of a town, and to confer them upon it, if it had them not already; and there seems no reason to doubt that by the act of 1815 the legislature intended to annex the lands described to the town of Allenstown, to a town and not to an unincorporated place. This act is therefore not only a recognition of Allenstown as a town, but it must be construed to confer the powers of a town in future, if it had not been before incorporated.

These acts being regarded by us as conclusive of the fact in controversy, most of the questions raised in the case are rendered immaterial.

The charge of the court as to the right to send a representative, was, upon the views we have stated, sufficiently favorable to the defendant, and not open to any exception by them. So the instructions relative to the mode of considering the evidence relative to the acts of Allenstown, and of the State, was suitable and proper. A. & A. on Corp. 57, 58.

The charge of the court as to the powers of unincorporated 'places seems entirely correct. By statutes passed in 1789, 1791, and afterward, certain corporate powers were conferred on what were then and still are called unincorporated places. An extended examination of the statutes, by the aid of the counsel, shows that the places called unincorporated had all the powers of towns, as to State and county taxes, as to schools, as to elections of State and county officers, except representatives, and of members of Congress; as to the choice of selectmen, assessors, and town-clerk, collectors, fence-viewers, and measurers of wood, and as to perambulations, and that their officers had the powers of the like officers in towns as to licenses, strays, the small-pox, fences, bounties, attachments, records of deaths, &c., and as to the taxation of non-residents’ lands, and such places were subject to extents like towns ; while they had not the powers of towns as to highways, nor, by the decision in Hillsborough v. Deering, as to paupers, nor as to jurors, tything-men, mills, pounds, floating timber, watchmen, sealers of weights and measures, fire-wards, nor as to arms for soldiers, nor as to representatives.

The condition and powers of these so called unincorporated places, have been gradually approximating to those of towns, so that under the Bevised Statutes, which provide, chap. 1, sec. 4, that the word “ totun” may be construed to extend and be applied to any place incorporated, or the inhabitants of which are required to pay any tax, it may well be doubted if any substantial difference now exists between them.

The question between New-Boston and Dunbarton, which related to a settlement gained before 1796, was very materially different from that presented in this case, which relatés to a settlement commenced in 1816.

The charge that the unquestioned user of the franchise of a town for twenty years without interruption, and with the assent of the government, furnished a conclusive presumption of a grant from the State, is in accordance with repeated decisions of our courts. Watkins v. Peck, 13 N. H. 360; Wallace v. Fletcher, 10 Foster 434, and others; 2 Greenl. Ev., sec. 539.

In Wallace v. Fleteher it was held that though in England a prescription must have existed beyond time of legal memory, yet here, by analogy to the statute of limitations, an uninterrupted user of an incorporated hereditament, under a claim of right, for twenty years, as between parties under no disability, with the knowledge and without interruption of those adversely interested, affords conclusive evidence of a grant or a right, as the case may be. Such user and enjoyment may be used as proof of a deed or record, which has been lost by time or accident, or of a prescriptive right, which always presupposes a grant. Such a title may be well called a prescription, agreeably to the ancient use of that term, though it depends upon a period of twenty years, and has no connection with the time of legal or actual memory. Dare v. Heathcote, 36 E. L. & E. 564.

The rulings of the court below being sustained, there must be

Judgment on the verdict.

Perlet, C. J., and Bowler, J., having been counsel, do not sit.