Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised November 23, 2007
|
|
Duncan research files of |
1830 Waldo Co. ME Census
Pg.335 Kingsbury Dunkin 1100,01 - 0010,01 Lincolnville
(MAD: 1820 Hancock Co. ME census)
Ingrum Dunkin 2001,01 - 0000,1
340 William Dunkin 0210,1100,1 - 2100,11
345 Samuel Dunkin 0210,001 - 0000,1 Northport
394 Abel G. Duncan 0000,1 - 1001,01 Brooks
(MAD: 1840-1850 Plymouth Co. MA census)
446 John Dunkan 0010,001 - 0111,01 Belmont
1840 Waldo Co. ME Census
Pg.349 Wm. Duncan 0102,101 - 2012,001 Lincolnville
Ingraham Duncan 1120,101 - 0000,11
Kingsbury Duncan 1111,001 - 0000,101 (next to Ingraham)
352 Jno. Duncan 0000,1001 - 0001,1001
436 Samuel Duncan 1300,0001 - 1000,01 Northport
1850 Waldo Co. ME Census
Lincolnville
Pg.211, #154, K.W. DUNCAN (m) 28 ME farmer $1200
Mary J. 22 ME
George 3 ME
Pg.211, #155, Kingsbury DUNCAN 56 ME farmer
Nancy 53 ME
Thomas 17, Lucius (m) 12 ME
Pg.212, #159, Wm. DUNCAN 58 ME farmer $700
Polly 54 ME
John F. 29 ME sailor
David J. 27 ME carpenter $400
Nathan 19 ME sailor
Lydia B. 14, Maria 12, Henry W. 5 ME
Flora E. 3, David W. 1/12 ME
Pg.212, #160, Wm. K. DUNCAN 30 ME carpenter $500
Olive C. 27 ME
Pg.226, #345, Ingraham DUNCAN 54 ME farmer $1000
Rebeca 40 ME
Wm. J. 21, Charles C. 20 ME calkers
George W. 16 ME calkers
Alfonse 12, Hudson 8, Ferdinand 4 ME
Eldera A. (f) 1, Lovina L. 1 ME
(MAD: George M. Duncan in 1860 Knox Co. ME census)
Pg.226, #349, John DUNCAN 31 ME sailor $300
Nancy 28 ME
Northport
Pg.236, #143, Saml. DUNCAN 62 ME farmer $500
Carmelia 40 ME
Robert E. 18, Esocar W. (m) 17 ME
Joseph J. 15, George W. 14 ME
Lucy P. 11, Lydia D. 9 ME
Julia A. 8, Elisha P. 5 ME
Phebe R. 3 ME
Hannah M. 1, Ester M. 1 ME
(MAD: she & ch. in 1860 Whiteside Co. IL)
1860 Waldo Co. ME Census
Lincolnville
Pg.289, #108-125, Kingsbury DUNCAN 66 ME farmer $2500-$390
Nancy 63 ME
Lucius H. (m) 22 ME calker
Sybbel J. (f) 19 ME
Medora A. SHERMAN (f) 14 ME
Pg.289, #109-126, John W. DUNCAN 31 ME calker $300-$125
Louisa 29 ME
Charles A. 6, Edgar H. 4 ME
A Infant (m) 8/12 ME
Pg.289, #110-127, William K. DUNCAN 41 ME merchant $1200-$1340
Olive K. (f) 37 ME
Ephraim D. COOMBS 15 ME
Pg.290, #113-130, Isaac COOMBS 29 ME master mariner $1500-$8400
Almira 27 ME
Pg.290, #113-131, Nathan K. DUNCAN 28 ME ship carpenter $500-$500
Agnes N. 21 ME
(MAD: Agnes N. Duncan, wife of N.K. Duncan, 11/25/1838 - 8/4/1878, bur. in Pleasant Center Cemetery, Butler Co. KS, from DAR Cemetery Records on FHL film 851,234 item 5; Nathan K. Duncan, 48, mar. Mrs. Sarah S. Osborne, 41, on 6/7/1880 in Butler Co. KS, from DAR Marriage Records, Butler Co. KS, Book 2, on FHL film 851,234 item 9; indexed on 1880 Butler Co. KS census)
Pg.294, #146-165, Kingsbury W. DUNCAN 39 ME fisherman $1000-$235
Mary J. 32 ME
George C. 12, Frank E. 9 ME
Wallace (m) 5, Leslie (m) 2 ME
(MAD: Kingsbury Duncan, 1/19/1821 - 4/20/1891, and wife Mary J. 1/18/1828 - 4/17/1907, bur. in McGill Cemetery, Butler Co. KS; from DAR Cemetery Records on FHL film 851,234 item 4; indexed on 1880 Butler Co. KS census)
Pg.294, #147-166, David J. DUNCAN 37 ME ship carpenter $1000-$135
Sarah J. 33 ME
Fred. J.L. (m) 8, Nanette M. (f) 5 ME
Edabelle (f) 2 ME
Pg.294-5, #150-169, John DUNCAN 2nd 39 ME calker $300-$75
Susan 31 ME
Henry W. 15, Flora? A. (f) 12 ME
David W. 10, Ellen J. 7 ME
Justin H. 4 ME
Laforest (m) 9/12 ME
1870 Waldo Co. ME Census
Town of Lincolnville
Pg.175, #11-12, DUNCAN, John 53 ME seaman $0-$0
Nancy 43 ME house keeper "none" (in first $0 amount)
Edgar T. 11, Henry H. 8 ME at school
Pg.177, #39-41, DUNCAN, Kingsbury (m) 49 ME fisherman $300-$200
Mary J. 42 ME house keeper
George C. 22, Frank E. 19 ME seaman
Jefferson D. 8 ME at school
DRAKE, Metilda (f) 4 ME at school
Pg.177, #49-52, DUNCAN, Wm. K. 50 ME variety store ret. $1,000-$800
Olive (f) 46 ME house keeper
HOLT, Nellie C. (f) 12 ME at school
Pg.180, #86-92, DUNCAN, Nathan 40 ME seaman $400-$100
Agnes 29 ME house keeper
Mabel 2 ME
Pg.180, #93-100, DUNCAN, David I. 47 ME carpenter $1000-$500
Sarah J. 43 N.Brunswick house keeper (not par. of for.birth)
Fred J. 18 ME seaman mother of foreign birth
Nanette M. (f) 15 ME at home, mother of foreign birth
Ida B. 12 ME at school, mother of foreign birth
Angie C. (f) 8 ME at school, mother of foreign birth
Ernest A. 6 ME at school, mother of foreign birth
Fannie A. (f) 2 ME, mother of foreign birth
Pg.180, #95-102, DUNCAN, John 49 ME master seaman $500-$800
Susan 42 ME house keeper
Henry W. 25, David W. 20 ME seaman
Ellen J. 16 ME at home
Justin H. (m) 14 ME at school
Laforest L. (m) 10 ME at school
Nellie M. 8 ME at school
Carrie E. (f) 1 ME
Morrill
Pg.241, #93-93, MAL, Isah C. (m) 66 ME farmer $3000-$1500
Ardra (f) 54 ME keeping house
Edwin L. 26, Emma 18, Walter P?. 13 ME
MERRIAM, Sophia 31 ME (blank)
Grace W. 5 ME
JOHNSON, Arabine (f) 28 ME (blank)
DONKINS, James L. 21 Richmond, VA BLACK (blank)
Town of Northport
Pg.248, #71-70, DUNCAN, Lucious (m) 33 ME farmer $1000-$500
Sybil (f) 30 ME house keeper
Myra (f) 8 ME at school
Nancy 72 ME boarding
"Reports of cases argued and determined in the Supreme Judicial Court of the State of Maine" Vol.I, by John Shepley, Counsellor at Law; ("Maine Reports") Vol.13, pgs.417-420 (California State Law Library, Sacramento, 12/2003)
SAMUEL DUNCAN vs. GILMAN SYLVESTER & al; Supreme Judicial Court of Maine, County of Waldo; 13 Me. 417; July, 1836, Decided.
THIS was an action of trespass originally commenced in the Court of Common Pleas, in which the plaintiff declared in two counts, first, quare clausum, and second, de bonis asportatis, and was brought into this Court by demurrer. The plaintiff on his motion, by leave of Court, struck out his second count, and proceeded to trial on the first only.
It was proved at the trial before Parris, J., that the plaintiff and defendants were tenants in common of the close and salmon fishery described in the declaration, each party owning a moiety thereof. Both parties had placed nets for taking salmon on the common privilege, and the defendants entered and cut away, or cast off and set adrift, the plaintiff's nets. The Judge ruled, that this action of trespass, quare clausum, could not be maintained on these facts. The plaintiff's counsel then moved for leave to restore his second count, and again renewed it, for the consideration of the Court, at the argument.
(MAD: Arguments of counsel omitted here)
The action was continued nisi, and the opinion of the Court was afterwards drawn up by WESTON, C. J. -- The plaintiff had a right to place his net where he did; and the defendants in cutting or casting it off and turning it adrift, were guilty of a trespass. But it is contended, that the plaintiff cannot maintain trespass quare clausum, for the injury. The objection is a technical one; and, furnishing no defence to the merits of the case, we have not been disposed to regard it with favor. But upon consideration, we are of opinion that it is sustained by authority. (MAD: more omitted here)
It is submitted to the Court, whether if the plaintiff's count, de bonis asportatis, should be restored, he would be entitled to judgment upon that count only. If the action cannot be maintained upon the count as it stands, it ceases to be an action of trespass quare clausum, which alone justified the demurrer in the Common Pleas, under which it was brought into this Court. To decide otherwise would have the effect to justify an evasion of the statute, by the insertion of a formal count of this sort, in cases where it is not warranted by law. As it is brought before us, we cannot sustain it, as an action, de bonis asportatis.
"Reports of cases argued and determined in the Supreme Judicial Court of the State of Maine" Vol.I, by John Shepley, Counsellor at Law; ("Maine Reports") Vol.13, pg.438 (California State Law Library, Sacramento, 12/2003)
SAMUEL DUNCAN vs. GILMAN SYLVESTER; Supreme Judicial Court of Maine, County of Waldo; 13 Me. 438; July, 1836, Decided.
THIS was an action of assumpsit, commenced before the passing of the act prohibiting appeals from the Court of Common Pleas in civil actions. The damages demanded exceeded one hundred dollars. On the trial in the Court of Common Pleas, the plaintiff recovered but nominal damages, and he appealed to the S. J. Court, where on trial, he obtained a verdict for twenty-eight dollars.
W. G. Crosby, for the defendant, cited the stat. of 1829, ch. 444, being the "act additional to an act to establish a Court of Common Pleas," and contended, that the plaintiff was not entitled to recover any costs, but in the Court of Common Pleas, and there but one quarter part as much costs as damages. If there had been no appeal, the plaintiff could have had no more, and he is not entitled to increase his costs by any transactions in the S. J. Court. As he did not recover one hundred dollars, we are entitled to recover our costs in the S. J. Court by the provisions of that statute.
(opinion) Per Curiam. Under the statute cited by the counsel for the defendant, in a case not coming within the exceptions, the plaintiff appeals from a verdict in his favor at the peril of losing his own costs and paying costs to the defendant, unless he recover in this Court over one hundred dollars. In the case before us, the appeal vacated the judgment of the Court of Common Pleas entirely, and the verdict in this Court shows how much the defendant was indebted to the plaintiff. As the amount found to be due is more than twenty and less than one hundred dollars, the plaintiff is entitled to full costs in the Court of Common Pleas, and the defendant to costs in this Court.
"Reports of cases argued and determined in the Supreme Judicial Court of the State of Maine" Vol.IV, by John Shepley, Counsellor at Law; ("Maine Reports") Vol.16, pgs.388-392 (California State Law Library, Sacramento, 12/2003)
SAMUEL DUNCAN vs. GILMORE SYLVESTER; Supreme Judicial Court of Maine, County of Waldo; 16 Me. 388; July, 1839, Decided.
THIS was a petition for partition, wherein the petitioner claimed an undivided moiety of the land described in the petition, by virtue of a conveyance to him by Abner Knight, by deed dated July 19, 1819, conveying to him an undivided moiety of a tract of land of which the premises are part. The respondent denied the seizin of the petitioner.
At the trial, before WESTON C. J. the respondent offered to prove, that one George Knight was tenant in common with the petitioner by virtue of a conveyance to him by the same Abner Knight, by a deed of warranty to him, dated July 18, 1817, of the other undivided half of the whole tract of land; that before July 18, 1823, George Knight and the petitioner made a division of the tract by metes and bounds, causing the land to be surveyed, but the division was merely by parol, no deeds being exchanged; that from the time of the division the petitioner and those claiming under him, and said George Knight and those claiming under him, have severally inclosed, occupied and improved the portion so set off to them respectively; that after the parol division, on July 18, 1823, the petitioner conveyed by deed of warranty to Jones Shaw, by metes and bounds, that portion of the land assigned to him by the survey and the parol partition as his half; that George Knight by his deed of warranty, June 20, 1833, conveyed to the respondent, by metes and bounds, that portion of the land which was so set off to him as his half, the last described tract being that of which partition is claimed in this process; and that since the conveyance by George Knight to the respondent, he had occupied the same openly, exclusively, and adversely to the petitioner and all others. A default was entered by consent, which was to be taken off, if in the opinion of the Court, the evidence offered by the respondent would be sufficient to disprove the title of the petitioner, and the case stand for trial; otherwise judgment was to be rendered thereon. (MAD: Arguments of counsel omitted here)
The opinion of the Court was drawn up by WESTON C. J. -- Assuming, for the purpose of determining its legal bearing, that the testimony offered by the respondent had been received, it appears that in July, 1819, one George Knight and the petitioner were tenants in common of a tract of land, of which the part described in the petition was understood to constitute one half. In July, 1823, Knight and the petitioner caused the whole to be surveyed, and thereupon made a parol partition of the same by metes and bounds, in pursuance of which the parties and those claiming under them, have since occupied in severalty. In the same month of July, the petitioner conveyed, by a deed of warranty, the part assigned to him, to Jones Shaw, by metes and bounds. And in June, 1833, Knight also conveyed, by deed of warranty, the part assigned to him, by metes and bounds, to the respondent.
Neither the parol division, nor the subsequent corresponding occupation, nor the conveyance by each of the purparty assigned to him, operated as an effectual legal partition. Knight and the petitioner were seized per mi et per tout, and neither could invest the other with a separate title to a portion of the tract, without the formality of a deed. Each therefore may avoid the conveyance of the other, so that it may not interpose an obstacle to a just and equal partition. The tenancy in common, embracing the whole tract, neither can, by his own act, exclude the other from any part of it. The petitioner has elected to avoid these proceedings, as far as he can do so, and he now claims partition of that, which he had assigned by parol to his co-tenant.
The statute authorizes partition to be made between those who are interested in the estate, and requires that all persons so interested should be notified. Knight has the same interest in the part, which the petitioner conveyed to Shaw, as the petitioner has in the part conveyed by Knight to the respondent; and both Shaw and the respondent are interested in that part of the estate, which may finally enure to them, by force of the estoppel, arising from the deeds to them respectively. The respondent therefore having an interest in the land, and being privy in estate with Knight, has the same right to require that in the partition, the conveyance made by the petitioner should be disregarded, as the petitioner has to insist, that the conveyance made by Knight should be disregarded. The result is, that to make the partition legal and effectual, it should be made of the whole tract. And this is the reason why conveyances made by one co-tenant of a part in severalty, or of his interest in a part, may be avoided by the other co-tenants, when they take measures to effect partition at law. It is a violation of this principle, to attempt to do it piecemeal. If two are tenants in common of an hundred acres of land, eligible for the scite of a village, and each sells in severalty a few small house lots, constituting but a small proportion of what each is entitled to, it would be most inconvenient to sustain a separate petition for partition of each of these small lots. In such case the co-tenant, who petitions, should describe and aver his interest in the whole tract, and it would then be easy, as it would be most equitable and just for the commissioners to make partition in such a way, as to quiet the several grantees of each.
In Miller v. Miller & al., 30 Mass. 237, 13 Pick. 237, it was decided by the Court, "as a well settled rule of law, that a tenant in common cannot enforce partition of a part of the common tenement, by metes and bounds." And we are of opinion, that the default must be taken off; and if the petitioner would maintain his process, he must so amend, as to include the whole tract. And if upon the appointment of the commissioners, they should find the former partition just and equal, as there is much reason to believe they will, they will make it in the same manner; the effect of which will be to vest the title in the respective grantees in severalty, by estoppel. And in this mode, the attempt of the petitioner, after having enjoyed and actually sold one half of the land, to get away a part of the residue may, and should be defeated.
"Reports of cases determined in the Supreme Judicial Court of the State of Maine" Vol. XI, by John Shepley, Counsellor at Law; Maine Reports, Vol.XXIV; ("Maine Reports") Vol.24, pgs.482 to 490 (California State Law Library, Sacramento, 12/2003 and 1/2004; also cited as 41 Am. Dec. 400)
SAMUEL DUNCAN versus GILMORE SYLVESTER & al; Supreme Judicial Court of Maine, County of Waldo; 24 Me. 482; July, 1844, Argued, 1844 Decided.
TRESPASS on the case against the defendants for cutting away the plaintiff's nets, and depriving him of his rights of salmon fishery from 1834 to the date of the writ in 1840.
To show his title, the plaintiff introduced a deed from Abner Knight to Samuel Duncan, dated July 19, 1819. It appeared also, that Sylvester was the owner of one undivided half of the premises, claiming under a deed from Abner Knight to George Knight, dated July 18, 1817, and a deed from George Knight to him, dated June 20, 1833, and that the plaintiff and said George had occupied and enjoyed the salmon fishery jointly, from July, 1819, to June, 1833, there being privileges for two strings of nets only.
The plaintiff proved, that on May 19, 1834, he went to said salmon fishery, and attempted to set his net; that the defendants were first there, and forbid the plaintiff from setting his net, and denied his right to any part of it; that Sylvester had two strings of nets set; that the plaintiff proceeded to set his string of nets between those of Sylvester, "making them fast in the usual way by grapplings to the shore and moorings;" that the defendants cut the plaintiff's nets adrift; and that the defendants had occupied the whole privilege since.
Testimony was introduced on each side in relation to the income of the fishery and the damage.
The descriptive part of the deed from Abner Knight to George Knight, is given in the opinion of the Court. The deed from Abner Knight to the plaintiff, was of an undivided half of the same premises described in his deed to George Knight.
At the trial, before SHEPLEY J. the counsel for the defendants contended, that the conveyance from Abner Knight to George Knight included the whole of the salmon fishery. The Judge instructed the jury, that it conveyed only an undivided half.
The counsel for the defendants further contended, that although the plaintiff's action might be maintained, to recover damages for the wrongful act by which the defendants dispossessed and ousted him, he was not entitled to recover in this action damages for withholding the possession, until he first regained the possession by entry or otherwise.
And the defendants' counsel further contended, that the conveyance from George Knight to Gilmore Sylvester, being by metes and bounds, although voidable by Duncan, yet that the present action was not maintainable, unless Duncan had first elected to avoid said conveyance, and given Sylvester notice of his election, by entry or otherwise.
The Judge instructed the jury, that if they were satisfied from the evidence, that the defendants dispossessed the plaintiff, the foregoing positions of the defendants' counsel constituted no objection to the recovery by the plaintiff of damages for the whole period of time for which he was kept out by the defendants from the occupation of his undivided half of said fishery.
The verdict was for the plaintiff, and the defendants filed exceptions, which were allowed. (MAD: Counsel's arguments omitted here)
The opinion of the Court was drawn up by SHEPLEY J. -- This bill of exceptions presents three questions for consideration. 1. Whether the deed from Abner Knight to George Knight conveyed the whole or an undivided half of the salmon fishery. 2. Whether a conveyance made by one tenant in common of a portion of the common estate by metes and bounds be void as against a co-tenant, or valid until he give notice to the grantee, that he elects to avoid it. 3. Whether the plaintiff be entitled to recover damages for being kept out of the occupation of any portion of the salmon fishery, after he was deprived of it, without having first regained possession by entry or otherwise.
1. The description of the estate conveyed by the deed from Abner to George Knight, is "one undivided moiety or half part of a certain lot or tract of land situate in Northport aforesaid, and butted and bounded as follows, viz.;" it then proceeds with a particular recital of the metes and bounds of the lot, and concludes with these words, "containing fifty-two acres and eighty rods and no more, and including the salmon fishery contiguous to said land." Was the fishery included in the lot, half of which was conveyed, or included in the conveyance as a distinct portion of property? There is no indication of an intention to convey two distinct pieces of property, the one being an undivided half of the lot, and the other the entire salmon fishery. The grammatical arrangement of the language is opposed to such a construction, and is suited to convey an undivided half of the fishery as a right appertaining to the lot. The word containing, is clearly connected with the word lot, or tract, as its substantive, showing, that the whole lot contained a certain number of acres and rods. The word including, is coupled to it, and must have the same antecedent, showing, that the lot included the fishery. No other construction can be admitted without doing great violence to the language.
2. It appears to have been held, in the case of White v. Sayre, 2 Ohio 110, that a tenant in common could legally convey a particular part of his undivided share of the estate. If this were admitted to be the established law, the other tenants in common, without any fault of their own, would be deprived of their right to enter and occupy every portion of the common estate, and of their right to have any portion of it thus conveyed, assigned to them on a partition of the common estate. Nor can the co-tenant justly be required to give notice to the grantee. If he were, he might become a trespasser, before he was aware of the existence of such a conveyance. He may entirely disregard it, and proceed to occupy any portion of the estate as freely as before such a conveyance, because it can have no legal effect upon his rights.
3. For the purpose of ascertaining, what damages the plaintiff may be entitled to recover, it may be well to determine, what right or property he had in the salmon fishery. The deeds, from which both parties claim to have derived their rights, assume to convey a salmon fishery as contiguous to the lot of land, which adjoins the Penobscot Bay. The verdict in this case, founded upon the testimony introduced, shows that such a fishery may be a valuable property, if it can have a legal existence. The State may regulate its navigable waters, and the fisheries within them; yet all the citizens are entitled as of common right to the fish in those waters; while each is bound to use this common right as not abusing it; and no one can unnecessarily interfere with or injure another in the use of the same right. It does not, however, follow, that each will be entitled to enjoy precisely the same or equally valuable rights. The owner of the land adjoining tide waters becomes, by the ordinance of 1641, the proprietor of the flats to low water mark, not to exceed the distance of one hundred rods, subject to the free fishing of each householder in the waters covering them. But the householder, or citizen, does not thereby become entitled to place weirs, or other permanent erections, upon those flats, or to set his nets or seines, "making them fast in the usual way by grapplings to the shore." These are advantages often of great value, which the riparian proprietor has over others. Having a common right with others to fish in those waters, he may, without any unreasonable exercise of that right, or improper interference with the rights of others, avail himself of these superior advantages. This is believed to be the foundation, upon which the valuable private rights or privileges of fishery, often conveyed and leased by one to another for no inconsiderable amount of money, rest. And their existence as private rights, appears to have been recognized in the legislation respecting the fisheries. The fishery in this case, described as contiguous to the land, appears to have been occupied since 1819, if no longer, as a privilege for two strings of nets only, which were made fast by grapplings to the shore. Since the year 1833, Ingraham Duncan and Gilmore Sylvester appear to have been the owners in common of the tract of land, to which this fishery was contiguous. In the month of April or May, 1834, Ingraham Duncan leased one-half of that fishery to the plaintiff. This would convey to him the right, in common with the owner of the other half, to use the privilege with the advantage of fastening his nets by grapplings to the shore. This right, so secured to him by lease, may be properly denominated an incorporeal hereditament, which is described in the books as a right issuing out of a thing corporate, or concerning, or annexed to, or exercisable within, the same. Thus a right of common, being a profit which one has in the land of another to pasture his cattle, to catch fish, to dig turf, to cut wood, to travel over, and the like, is an incorporeal hereditament. The lease or conveyance of a right to make grapplings fast to the shore, for the security of nets, can no more be considered as conveying title to any portion of the estate, than a conveyance of a right of way, or a right to dig turf could be. If one, who had a private fish pond upon his own land, should grant a piscary out of it with the right of fastening nets to the bank, such right or privilege would still be but an incorporeal hereditament. They would be properly so denominated, because in none of these cases would any title to the land pass to the grantee. They are rights merely, incorporeal, intangible, incapable of a pedis possessio; and properly speaking, one cannot be dispossessed of them; for they are always considered to be in the possession of those having a right of possession or enjoyment. Of course, although one may be disturbed, or prevented from enjoying them, he can make no entry to regain possession; or maintain any action to regain possession of that, which the law adjudges to be already in his possession, and of which it declares, that he cannot be dispossessed. The objection cannot therefore be a valid one, "that he was not entitled in this action to recover damages for withholding the possession, until he first regained the possession by entry or otherwise." And the authorities relied upon to support it cannot be applicable to this description of property. An action on the case is the proper remedy for one injured by the disturbance or deprivation of the enjoyment of an incorporeal hereditament. It may be maintained by a tenant in common of such a right, and he may recover damages against his co-tenant for a continued disturbance or deprivation of the enjoyment of it.
The case of Atkinson v. Teasdale, 3 Wil. 278, was an action on the case for the disturbance of a common of pasture by a tenant in common against his co-tenant. The declaration alleged a disturbance on a particular day, "and on divers other days and times between that day and the suing forth of the original writ." The plaintiff obtained a verdict, and judgment was entered upon it. The case was much contested and twice argued, but no objection was taken to the plaintiff's right to recover for the continued wrong. The case of Blissett v. Hart, Willes, 508, was a like action for the disturbance of a ferry, against one who had set up another ferry near to it. The declaration alleged the injury on a certain day, and continued on divers other days and times. The plaintiff had judgment. This also was a case much contested and twice argued on a motion in arrest of judgment. The forms for the disturbance of such rights in the best precedents for declarations, contain a clause for a continuance of the wrong. And there is little reason for requiring numerous actions to be brought for each disturbance, when entire redress may be obtained by one without a violation of any rule of law. It is difficult to perceive any sufficient reason for the application of a different rule to actions of this description from that, which prevails in actions on the case for other injuries, and in actions of trespass. And it is well settled, that entire damages may be recovered in the latter class of actions for a repetition and continuance of the injury, as well as for the first injurious act. The case of Winsmore v. Greenbank, Willes, 577, affords a remarkable instance of such a recovery in an action on the case, for enticing away the wife of the plaintiff, and inducing her to conceal herself from him, and for a continuance of the injury from August 8, to December 24, 1742. The plaintiff obtained a verdict for heavy damages. The case was argued on a motion to set aside the verdict as against the evidence, and for excessive damages, and on a motion in arrest, and without success. The arguments to set aside the verdict do not appear in the report of the case. That it could not have escaped their notice, that damages were given for a continuance of the injury is apparent, for the opinion states a distinction in this respect between the commencement and the continuance of a nuisance; that notice was required for its removal, before damages could be recovered for its continuance; and that such a rule was not applicable to that or other actions on the case for a different injury, "because every moment that a wife continues absent from her husband, it is a new tort." Indeed it would seem to be more reasonable to require one, who had been injured by several distinct acts of trespass, committed at different times by the same person, to commence different actions of trespass to recover his damages, than it would to require the plaintiff to commence several actions on the case for each separate injurious act, showing a continued deprivation of his right to enjoy the same fishery.
The policy of the common law and of our legislature is to prevent a multiplication of suits, whenever it can be done without introducing confusion of rights, surprise upon parties, or practical inconvenience, or injustice. And none of these results will be produced by allowing the plaintiff in this case to recover for a continued deprivation of the enjoyment of his rights.
It is further insisted in the argument for the defendants, that the plaintiff cannot recover against both the defendants for such a continued disturbance. It might be sufficient to observe, that such a point does not appear by the bill of exceptions to have been made during the trial. It is obvious, however, that if made, it must have presented a question of fact for the decision of the jury, whether both of the defendants continued to act together and to deprive the plaintiff of the enjoyment of his rights. And it does not appear, that any incorrect instructions were given respecting it, or that any requested, were refused. The bill of exceptions does not recite the testimony introduced in the case. There is no motion to set aside the verdict as against the evidence, and if there were, the Court has no means for determining, whether the jury were authorized by the testimony to find, that both the defendants were alike guilty. The jury were required by their instructions to find, that the plaintiff was kept out of the occupation of his half of the fishery by the defendants, not by one of them, during the whole time, for which the damages were assessed. There is nothing in the case authorizing the Court to determine, that they were not fully justified by the testimony in coming to that conclusion.
Judgment on the verdict.
1865 "History of Thomaston, Rockland, and South Thomaston, [Knox Co.] Maine : from their first exploration, A.D. 1605 : with family genealogies" by Cyrus Eaton, pub. Hallowell Me.: Masters, Smith & Co., printers (HeritageQuest image 2/2007, Local History Reel/Fiche Number 7560)
Vol.II, pg.206: DUNCAN, John, m. r. & d. in Northport [Waldo Co.], Me. Of his ch. 1,Ingraham, b. ab. 1796, in Northport; m. Rebecca N. Perry, r. Rock., a caulker, &c. 2,Samuel, m., r. & d. Northport. 3,Capt. George W., b. Feb., 1802; m. Hannah Simonton, Jan. 26,'30; r. Rock. and died Dec. 7, 1851.
Ingraham's ch. 1,John W., m. Louisa Rooks of Linc. 2,Capt. Charles C., b.ab. 1830; m. Hattie P. Farrow of Belfast; r. Rock. & d. April,'61, drowned at the stranding of his vessel on Squam Beach. 3,George Merrill, b. ab.'33; m. Ellen Thomas, Nov. 1,'59, r. Rock., a caulker, &c. 4,Alphonso A., b.ab.'37; r. Rock., a caulker, &c. 5,Hudson, b.March 15,'43, d. July 11,'56. 6,Ferdinand P., b.ab.'46. 7 & 8, twins, b.ab.'49, Lorana L., r. Rock., Eldora, d.young.
Of Samuel's ch. Capt. Samuel, m. Lucinda Achorn, Sept.24,'40; r. Rock., rem. New York.
Capt. George W.'s ch. 1,George I., b.ab. 1831; m. Sarah E. Knowles, Jan.11,'53, 2d, Loraine Simonton, July 22,'62; r. Rock., a mariner. 2,Albion K.P., b.Feb. 28,'36, died, lost at sea, June 20,'58. 3,Hazen Franklin, b. April 26,'38. 4,Delora E.L., b.Nov.16,'40; m. Frank T. Coombs; r. S.Th. 3,Freeman S., b ab.'43; r. Rock. 4,Mary A., b.ab.'46. 5,Isaac S., b.May,'51, d March 31, 1852. (MAD: children's numbers as given)
Capt. Charles C.'s ch. Hattie P., b.ab. 1860.
Capt. Samuel's ch. b. in Rockland. Orrin C., b. July 2, 1842.
George I.'s ch. by 1st wife. Etta E., b. May, and d. Oct. 18, 1855.
DUNCAN, James, of a different family, b.ab.1811, in Deer Isle [Hancock Co.], Me.; m. 1st, Lucretia Lane, 2d, Jane E. Low, Feb. 7,'56; r. Rock. His ch. by 1st wife. 1,Lavinia E., b. ab. 1832; m. Greenleaf Childs, March 28,'62; r. Rock. 2,Susan, b.ab.'40. 3,James E., b.ab.'43; r. Rock., a mariner. 4,Willis, b.ab.'53. The mother d. May 12, 1854. By 2d wife. 5,Lucretia, b.ab.'56. 6,Mary F., b.'58. 7,Vesta, b.Aug.24,'60, d. Sept. 11,'61. 8,Simon L., b.June 20,'62, d. Aug.20,'64.
1883 "History of the State of Kansas : containing a full account of its growth from an uninhabited territory to a wealthy and important state; of its early settlements; a supplementary history and description of its counties, cities, towns and villages, their advantages, industries and commerce, to which are added biographical sketches and portraits of prominent men and early settlers" ed. by William G. Cutler, A.T. Andreas; pub. Chicago : A.T. Andreas (FHL book 978.1 H2hi 1976 & v.2; FHL film 982,248 items 1-2)
Pg.1449: Butler Co., Plum Grove Twp. N.K. DUNCAN, farmer and stock raiser, Section 22, P.O. Ayr, is a native of Maine, and was born in Waldo County, December 29, 1831, was there educated, reared, and resided until the autumn of 1871, when he came to Kansas, settling in Butler County. Mr. Duncan has been largely identified with the agricultural and stock interests of this township. Officially has been associated with school matters; has been Justice of the Peace, and is at present Trustee of the township. He has been twice married; first, in Maine, to Miss Agnes M. Drinkwater, whose death occurred in Kansas. By this marriage has two children -- Mabel A. and Alfonso W. His present wife was formerly Mrs. Osborne, widow of W.L. Osborne, Esq., an early settler of Plum Grove Township. Of the Osborne children there are six -- Ida, Willits, Herbert, Clinton, Susie, and Winnifred.
END
Return to Index to Duncan Research Files in Maine
Return to The Genealogy Bug's Home Page