there cut down and peeled 50 cords of soft | A quitclaim deed, or a deed of “a right, wood or pulp wood then and there growing, | title, and interest" in land, is not prima facie of great value, to wit, the value of $250," evidence of title. Butler v. Taylor, supra. etc. Plea, the general issue, with brief state- From which it appears that Foye had no title ment that the "defendant claims to justify by deed to the premises, and conveyed none under Lucinda E. Bean and Martha E. Bart- to the plaintiff. Therefore the plaintiff's lett, who claimed title to the lot described claim of constructive possession fails. in the plaintiff's writ." At the conclusion of the evidence, the case was reported to the law court with the stipulation that "upon so much of the evidence as is legally admissible the court is to render such judgment as the legal rights of the parties may require, and, if judgment be for plaintiff, it is agreed that the damages are to be nominal only; and, in any event, it is agreed by the parties that the result of this suit shall determine the title to the land upon which the trespass is alleged to have been committed." SAVAGE, J. Trespass quare clausum. To maintain the action, the plaintiff must show that he had either actual or constructive possession of the premises at the time of the acts of alleged trespass. So, if he claims under a quitclaim deed, he must show that his grantor had possession at the time of the execution of the deed, either actual or constructive, or that he himself has since entered and become possessed of the premises. Marr v. Boothby, 19 Me. 150. If he had the legal title, in the absence of proof of actual adverse possession by some one else, the law implies that he had a constructive possession sufficient to maintain the action. Griffin v. Crippen, 60 Me. 270; Butler v. Taylor, 86 Me. 17, 29 Atl. 923. If he did not have the title, he must show actual possession; for the gist of the action is the invasion of the plaintiff's possession. Savage v. Holyoke, 59 Me. 345; Kimball v. Hilton, 92 Me. 214, 42 Atl. 394. There is no evidence that any of the prior grantors were in possession at the time they gave their deeds. But the plaintiff contends that Foye was in actual possession when he quitclaimed to the plaintiff, and that plaintiff after taking the deed entered and took possession before the trespass. If so, then the plaintiff was in actual possession, and is entitled to maintain the action, unless the defendant can show that he entered under a better title. Possession alone is a sufficient title against a wrongdoer. Hunt v. Rich, 38 Me. 195; Melcher v. Merryman, 41 Me. 601. Possession is better than no title. Moore v. Moore, 21 Me. 350; Look v. Norton, 55 Me. 103. The premises in question, the title to which seems to have been long in dispute, consist of an uninclosed lot of wild land, numbered 83 in the third division of lots in Rumford. So far as the case shows, it has never been cleared, or cut upon, or used in any manner, except that a few trees have been cut under the authority of the parties who claim adversely to the plaintiff, and these were cut, so it appears, for the purpose of bringing the dispute to a head. The case shows that Mr. Foye, who took a quitclaim deed of his grantor's “right, title, and interest" in 1894, went onto the lot to look the timber over in 1895; and again in 1904 to make an estimate of the timber; and again in 1906, having heard that someone was cutting there; and finally, in 1907, apparently moved by a similar reason. Meanwhile, in 1898, Mr. Foye, employed an agent, who lived about 200 rods from the lot, to keep watch of it. And from 1898 until Foye quitclaimed to the plaintiff in 1909 the agent, as he says, "kept track of what was going on" on the lot, looked the lot over each year for signs of trespassing, went onto the lot at all times when others were chopping, or were prepared to chop, and warned them of The plaintiff's claim of title begins in 1850 the dispute about the title, and there would with the deed of certain persons, styling be "trouble" if they persisted in chopping. themselves administrators of the estate of As evidence of the character of Mr. Foye's Joseph H. Wardwell, to Jeremiah Martin. possession, such as it was, it is shown that The deed lacked the essentials of an administrator's deed, and did not convey, and did not purport to convey, any estate which had belonged to the intestate. It was a quitclaim deed of the "right, title, and interest" of the grantors. And it is not shown that they had any. Therefore this deed conveyed no title. Coe v. Persons Unknown, 43 Me. 432. The succeeding links in the chain are quitclaim deeds of "right, title and interest" merely, until we come to the last one, which is a quitclaim deed of the land, from William on two or more occasions he personally forbade men to cut upon the lot. After the plaintiff took his deed, and before the acts of alleged trespass, he went upon the lot, and later went again and took more formal possession in the presence of a witness. The only evidence of any acts of possession by any one else during this period is the fact that a surveyor employed by the parties claiming adversely to the plaintiff ran one line of the lot in 1899, and the entries in 1907 and 1909 of persons acting un and the cutting of a few trees for the purpose of bringing the dispute to a head. The first question is, Upon this evidence has the plaintiff shown sufficient possession of the lot to be entitled to maintain this possessory action for trespass, unless the defendant defends under a better title? We think he has. We are not concerned now with the character of a possession which would avail after a sufficient lapse of time against the true owner, but of a possession sufficient to entitle the possessor to keep off trespassers. From the nature of things nothing more could have been expected to be done than was done. There was not only a possession, with continued watchfulness to keep others from entering, but there were open acts of dominion which sufficiently show the nature of the possession. We turn to the defense. The defendant justifies under the title of Lucinda E. Bean to two-thirds in common and undivided of the premises, and of Martha E. Bartlett to one-third, and it is admitted that whatever was done by the defendant upon the premises was done at the direction and under the authority of Mrs. Bean and Mrs. Bartlett. The defendant introduced Mrs. Bartlett's chain of title as follows: Quitclaim deed dated January 18, 1890, by John F. Stanley and Frank Stanley to Henry O. Stanley of "right, title, and interest" in one-third in common of lot 83; quitclaim deed dated December 31, 1894, by Henry O. Stanley to John S. Harlow, of the same "right, title, and interest"; quitclaim deed dated March 10, 1898, by John S. Harlow to Charles P. Bartlett of the same "right, title, and interest"; and devise from Charles P. Bartlett to Martha E. Bartlett. The defendant showed nothing as to title of John F. Stanley and Frank Stanley. From this it is evident, for reasons already stated, that Mrs. Bartlett has no title to the one-third claimed for her. The defendant introduced Mrs. Bean's claim of title, as follows: Mortgage, with covenants, of lot 83, dated February 18, 1892, by John F. Stanley and Frank Stanley to the South Paris Savings Bank; assignment of mortgage, February 15, 1898, by the South Paris Savings Bank to Alpheus S. Bean; foreclosure by Bean in 1898; and devise from Alpheus S. Bean to Lucinda E. Bean. A warranty deed, or a deed of conveyance, acknowledged and recorded, itself raises a presumption that the grantor had sufficient seisin to enable him to convey, and also operates to vest the legal seisin in the grantee. It is prima facie evidence of title. Blethen v. Dwinel, 34 Me. 133; Wentworth v. Blanchard, 37 Me. 14; Butler v. Taylor, 86 Me. 17, 29 Atl. 923; Ward v. Fuller, 15 Pick. (Mass.) 185. A mortgage deed in the usual form is a deed of conveyance, with a defeasance. Jones v. Smith, 79 Me. 446, 10 Atl. 254. And the same rule as to presumption of seisin applies to title held under a mortgage of conveyance. So that, unrebutted, the evidence for the defendant would show a prima facie title to two-thirds in common of the lot in Mrs. Bean. This would be a better title than the plaintiff's possession, and would defeat his suit. But the presumption of seisin arising from a deed of conveyance is only a presumption. It is a presumption of fact, and is rebuttable. Such a deed is only prima facie evidence of title. To rebut the effect of it, it may be shown that the grantor had no title. In this case, after the defendant had introduced the mortgage deed from the Stanleys to the bank, the plaintiff introduced, in rebuttal, a tax deed of the lot, dated January 13, 1886, to one Charles A. Kimball, and a quitclaim deed, dated January 17, 1890, from Kimball to the Stanleys, of his "right, title, and interest." The tax deed is admittedly invalid, and conveyed no title. Hence the quitclaim deed from Kimball to the Stanleys conveyed nothing. If that was all the title the Stanleys had, their mortgage to the bank conveyed nothing, and necessarily Lucinda E. Bean took nothing by her devise. The defendant, however, contends that the tax deed to Kimball and the quitclaim deed from Kimball to the Stanleys did not have any tendency to rebut the presumption of title arising from their mortgage to the bank. Non constat, he says, that the Stanleys did not have other title. This may be true. But the question recurs whether, if the Stanleys had other title, the defendant should not have shown it, after the invalid chain of title had been traced to them. Practically the question is where was the burden of proof at that juncture in the case. We think the rebutting evidence was enough to meet the presumption, and overcome it. The burden was then on the defendant to show that the Stanleys had other title. If this be not so, the presumption, which is merely a presumption of convenience, to take the place of proof of livery of seisin (Ward v. Fuller, 15 Pick. [Mass.] 185), might become well nigh impregnable. The sources and instruments of title are presumptively within the knowledge of those who claim under them, rather than with strangers to that title. And, if the title exists, failure to show it is significant and probative. When it is shown that the Stanleys had a paper title, though defective, and nothing else appears, we think it should be inferred that was all the title they had when they gave their mortgage. We conclude, therefore, that it is not shown that either of the parties under whom the defendant justifies had any title. The defendant was a trespasser, and, as such, cannot defend against the plaintiff's possessory title. It is agreed that the damages are nominal. This case comes up on report, and it was stipulated "that the result of this suit shall determine the title to the land." And we are tion. question of title on both sides, so far as it was necessary to a decision of this action of trespass. But since the record does not show that Mrs. Bean and Mrs. Bartlett have become parties to the suit by assuming the defense, nor that they became parties to the stipulation, we cannot prejudge their rights. It would be manifestly improper to do so. Judgment for the plaintiff for $1. Necessarily we have discussed the lot 2, range 7, so that he then owned three quarters divided of lot 2, range 6, containing 120 acres, more or less, on which the farm buildings are situated, and the south half of lot 2, range 7, containing 80 acres, more or less, and adjoining the 120 acres on the north. June 11, 1908, the defendant conveyed to the plaintiff, by deed with full covenants of warranty, "a certain lot or parcel of land situate in the town of Avon in the county of Franklin, being the home farm of said Phillips, by him occupied for at least thirty years last past, and consisting of two hundred acres more or less, one hundred twenty of which being the part on which the buildings are situate, and eighty acres being on the north farm and adjoining the said one hundred and twenty acres." The question presented is the construction of this deed. MORSE v. PHILLIPS. (Supreme Judicial Court of Maine. Feb. 1911.) 1. DEEDS (§ 93*)-CONSTRUCTION-INTENTION. In construing a deed, effect should be given to the intention of the parties if practicable as ascertained from all the language, if no principle of law is thereby violated. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 231, 232; Dec. Dig. § 93.*] 2. DEEDS ($§ 114*) · CONSTRUCTION CONVEYED. A deed describing the land as the home farm occupied by grantor for 30 years, and consisting of 200 acres more or less, 120 of which being the part on which the buildings were situate, and 80 acres being on the "North farm," adjoining the 120 acres, conveyed 120 acres of a 160-acre tract originally occupied as a homestead, 40 acres having been conveyed by him two years previously to a third person though they were never fenced or staked off, and 80 acres in a lot adjoining on the north, and did not purport to convey such 40 acres. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 316-322, 326-329; Dec. Dig. 8'114.* Agreed Statement from Supreme Judicial Court, Franklin County, at Law. Action by A. G. Morse against Charles S. Phillips on agreed statement. Judgment for defendant. Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ. D. R. Ross, for plaintiff. A. L. Fender son and Frank W. Butler, for defendant. It is agreed that the defendant prior to March 21, 1904, the date of his conveyance to Albert L. Phillips of the south quarter of lot 2, range 6, occupied the entire premises as his home farm, but that since that conVeyance he has "occupied only the remaining parts of said lots as his farm," except that he has allowed his cattle to pasture upon the south quarter since his conveyance thereof, the same not having been separately fenced. The plaintiff claims that the deed from the defendant to him included the south quarter of lot 2, range 6, to which the defendant had no title, having previously conveyed it; hence this action. In support of his claim the plaintiff contends that the language. "the home farm of said Phillips, by him occupied for at least thirty years last past," necessarily includes the south quarter of lot 2, range 6, because that was a part of the farm as occupied, at least from 1874 to May 21, 1904, the date of the deed to it was apparently a part of the farm as Albert L. Phillips, and because thereafter occupied by the defendant, no fence separating it from the rest of the farm. He contends that this language constitutes a general description of property that is plain and definite, and therefore that the subsequent words specifying the acreage cannot have the effect to control and restrict the general description. KING, J. Action for covenant broken, reported to this court on an agreed statement of facts, from which it appears: November 13, 1874, Laura J. Phillips, who was then the wife of the defendant, acquired title to all of lot 2, range 6 in the town of Avon, Franklin county, Me., containing We think the technical rule of construc160 acres, and the south half of lot 2, range tion invoked by the plaintiff that a general 7, being 80 acres, adjoining lot 2, range 6, description is not to be limited and controlon the north. April 4, 1900, she conveyed led by a subsequent particular recital is not to the defendant lot 2, range 6, and on applicable here. In Moore v. Griffin, 22 March 21, 1904, he conveyed to Albert L. Me. 354, this court said: "To give effect Phillips the south quarter thereof, contain- to the intention of the parties, general words ing 40 acres, more or less, which part was may be restrained by a particular recital staked off, but never separately fenced "and which follows them, when such recital is has been ever since owned and occupied by used by way of limitation or restriction. said Albert L. Phillips." August 30, 1906, But if the particular recital is not so used, the heirs at law of Laura J. Phillips con- but be used by way or reiteration and afveyed to the defendant the south half of firmation only of the preceding general words, such recital will not diminish the having been previously conveyed by the de- In Pike v. Monroe, 36 Me. 315, 58 Am. Dec. 751, speaking of this and other rules of construction laid down in the old books, the court said: "In modern times they have given way to the more sensible rule of construction, which is in all cases to give effect to the intention of the parties if practicable, when no principle of law is thereby violated. This intention is to be ascertained Judgment for defendant. INHABITANTS OF EDEN v. PINEO. (Supreme Judicial Court of Maine. Feb. 24, 1911.) by taking into consideration all of the pro-1. Phelps, J., in Hibbard v. Hurlburt, 10 thereof. These words should not be construed as used merely to reiterate and affirm the preceding words of the description, but as used to explain and declare and make certain the "lot or parcel of land" which had been referred to as the home farm. It is therefore the opinion of the court that the property described as conveyed in the deed of June 11, 1908, from the defendant to the plaintiff, does not include the south quarter of lot No. 2, range 6, that (Syllabus by the Court.) Towns (8 4*)--TERRITORIAL EXTENT. The body of upland of about 70 acres in extent, known as Bar Island or Rodick Island. in tidewaters in Frenchman's Bay, north of Bar Harbor, and something over 100 rods distant therefrom, is a separate island and not a part of Mt. Desert Island, though there be a bar between the two which is left bare by the tide 12 hours out of every 24. [Ed. Note.-For other cases, see Towns, Dec. Dig. § 4.*1 2. Towns (§ 4*)-TERRITORIAL EXTENT. [Ed. Note.-For other cases, see Towns, Cent. Dig. § 5; Dec. Dig. § 4.*] 3. CONSTITUTIONAL LAW (§ 70*)-ENCROACHMENT ON LEGISLATURE-MISTAKE ISLANDS. Even if it be apparent from the situation that the Legislature in incorporating the town of Mt. Desert intended to include Bar or Rodick Island, it failed to do so, and the court has no power to supply the omission. It is for the Legislature to correct the mistake, if any was made. al Law, Cent. Dig. 88 129-132; Dec. Dig. § [Ed. Note. For other cases, see Constitution70.*] 4. TAXATION (§ 252*)-PLACE OF TAXATION BOUNDARIES. Municipalities in this state are creatures of the Legislature, and cannot enlarge their boundaries or taxing jurisdiction by mere user, however long continued. The inconveniences or losses, however great, resulting from boundaries established by the Legislature, must be borne until the Legislature shall correct them. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 416; Dec. Dig. § 252.*] 5. TAXATION (§ 252*) — PLACE — REAL PROP ERTY. Though all the real estate upon Bar or Rodick Island has for 70 years or more been taxed in the town of Eden as situated in that town, and the taxes so assessed have been paid to Eden without objection, the owners are not thereby barred or estopped from denying the authority of the tax assessors of Eden to tax such real estate. [Ed. Note.-For other cases. see Taxation, Cent. Dig. § 416; Dec. Dig. § 252.*] 6. REVIEW ON APPEAL. Since in this suit for taxes upon the real estate on Bar or Rodick Island the town of Report from Supreme Judicial Court, Hancock County, at Law. Action by the Inhabitants of the Town of Eden against Flora Pineo. On report to the law court upon an agreed statement of facts. Judgment for defendant. Action of debt, brought by the inhabitants of the town of Eden against Flora Pineo to recover the sum of $591.60, the amount assessed against the defendant as her proportion of the town, county, and state taxes for the year 1909 upon her real estate, being particularly described on the books of allotment and assessment of said Eden as fourfifths of Rodick's Island and buildings there on. Plea, the general issue. An agreed statement of facts was filed, and the case reported to the law court for determination. Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ. comprised more than the island of Mt. Desert. Almost simultaneously with the incorporation of the town of Mt. Desert, but reaching its final passage a day earlier, was incorporated the town of Gouldsboro, with the following territory (after describing a tract on the mainland bordering on the east of Frenchman's Bay), "including Stave Island, Jordan's Island, Iron-Bound Island and Porcupine Islands (so called), Horn Island, Turtle Island, and Scooduk Island." So far it would seem clear that the Legislature not only did not include the 70-acre tract in question within the town of Mt. Desert, but did include it within the town of Gouldsboro. Rufus Putnam, who was sent by the commonwealth to survey the "Porcupine Islands" in Frenchman's Bay, included this tract in his survey and plan as being one of the Porcupine Islands. This was less than four years before the acts of incorporation. The survey and plan were official and presumably were known to the Legislature incorporating the two towns. One avenue of escape from this conclusion is suggested, viz., that a body of land of the John E. Bunker, for plaintiffs. Charles B. character, description, and situation of that Pineo, for defendant. EMERY, C. J. In Frenchman's Bay, north of the village of Bar Harbor in the town of Eden, is a body of upland of about 70 acres in extent with buildings thereon. It has been known in Bar Harbor as "Rodick Island," but it is named upon the U. S. Coast Survey Chart as "Bar Island," and it is now called by either name. But it was included in the survey of the "Porcupine Islands" made in 1785 by Rufus Putnam for the commonwealth of Massachusetts, and upon his plan it bears the name "Bar Porcupine." It is something over 100 rods distant from the shore of Mt. Desert Island, measuring from mean high-water mark on each shore. It is connected with Mt. Desert Island by a bar consisting of clay, gravel, and rocks very similar to the general surface of the shores of both islands in the immediate vicinity. This bar is uncovered for about 12 hours out of each 24, so that teams and pedestrians can safely pass over. in this case in tide waters, more than 100 rods from the main or a larger island, but connected with it by a bar submerged only half the time, is not a separate island, but is part of the main, or of the larger, island. No case so holding is cited to us, and after diligent search we have found none. In Babson v. Tainter, 79 Me. 368, 371, 10 Atl. 63, 64, there was a question whether a two-acre parcel was an island or part of the main. The court said: "Here the parcel is described as containing about two acres, and though it consists mostly of rocks and ledges and is unfit for the habitation of man, it must be considered as having size and permanency enough to entitle it to the appellation of island-a right to which might be obtained upon the principles of adverse possession." In that case there was no channel at low water between the island and the main, and the island was within 100 rods of the main. In the case before us, however, the territory has from time immemorial been called an island, and at the time of the acts of incor Islands, and its accepted kinship to the other Porcupine Islands is seen in the distinctive name given it, "Bar Porcupine." It was thus early recognized as a separate island, one of the group of islands called Porcupines. We find no evidence that it was at that time regarded as only a part of the island of Mt. Desert. We are not to assume that the Legislature so regarded it. Is this smaller island within the charter-poration was known as one of the Porcupine ed limits of the town of Eden? It is conceded that it is not, unless it was included within the limits of the old town of Mt. Desert, from which the town of Eden was later set off. In the act incorporating the original town of Mt. Desert, finally passed February 17, 1789 (St. Mass. 1788, c. 75), the territory is described as follows: "The plantation called Mt. Desert together with the islands called Cramberry Islands, Bartlett's Island, It is common knowledge that there are Robertson's Island and Beech Island." No many islands along our coast connected with mention is made of what was then known as other islands by bars exposed at low water, Bar Porcupine, nor of any other island. We and yet each island bearing a distinctive have no evidence of the extent of "the plan- name, so that a deed on one, eo nomine, tation called Mt. Desert," and in the absence would not convey the other. Indeed, among |