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on an agreed statement "to be decided by | are intended, so that he may intelligently prosaid law court in like manner and with like tect his rights by pleadings or disclaimer. results as is provided in the case of appeals, He, not the sheriff, is the party needing a the law court to render such judg- clear description in order that he may not be ment as to the legal rights of the parties re- obliged to act in the dark. A study of the quire." original statutory provision leads to no other conclusion.

The point at issue is the sufficiency of the description in the writ, viz. "the lot of land in Norway Village Corporation which is known as the Fordyce McAllister place."

Applying this test, we find that the defendants themselves have admitted the adequacy of description. They had no difficulty in determining what property was covered by the declaration, because on the second day of the return term they did not ask for a nonsuit because of indefinite description, but filed a

The criterion as to definiteness in description is fixed by the statute governing real actions. "In such action, the demanded premises shall be clearly described in the declaration, otherwise the court may direct a non- disclaimer, in which they say that they were suit." R. S. c. 109, § 21.

not, on the date of the plaintiff's writ, nor

freehold therein described, and that they were not in possession of the premises described in the plaintiff's writ when said action was commenced, and they disclaim any right, title, or interest therein." The description was sufficiently clear to enable the defendants to comprehend what premises were meant, and to declare that they were not in possession of them. That is sufficient.

If this should be construed to mean that at the time of disclaimer, "tenant of the the premises must be so clearly defined that the officer having the execution in his possession may find them, we think in the case at bar that requisite is met. It is not expected that the officer can identify them, any more than he could identify a stranger whom he is directed to arrest, without inquiry. Willey v. Nichols, 59 Me. 253, 254. On inquiry this lot could be readily found. It is "the" lot, not "a" lot, thereby implying that there is only one. That one is known as the Fordyce McAllister place, and is situated in Norway Village Corporation. This description falls well within the rule followed in Willey v. Nichols, 59 Me. 253, supra, and Bragg v. White, 66 Me. 157.

"If the officer fails to find it, the tenant will receive no harm. We apprehend the fear is that he may find it"-is the trenchant language of Chief Justice Appleton in the case last cited.

If, however, the true test of clearness of description is that stated in the original statute of which the sentence above quoted in our present revision is a condensation, we reach the same conclusion. The words of the original statute are these:

Under the broad powers given by the agreed statement, the entry will be: Judgment for demandant, with costs.

(118 Me. 356)

HARRIS v. CITY OF SOUTH PORTLAND.
(Supreme Judicial Court of Maine. Nov. 25,
1919.)

1. DEDICATION 18(2), 29-EASEMENTS
12(1), 26(1)-REFERENCE TO PLAN SHOWING
LOTS AND STREETS.

ther the grantor nor his successors could reincipient dedication of the streets which nei

Deed referring to a plan of plotted lots and streets, and bounding the lots conveyed by one of the delineated streets, carried to the grantee right of way in the street which neither "The premises demanded shall be so defined the grantor nor his successors in title could deand described in the declaration, that the de-stroy or interfere with, and to the public an fendant may know, with reasonable certainty, what lands and tenements are demanded; otherwise the court, before whom any such action shall be pending, shall, on motion of the defendant, direct a nonsuit against the demandant, with costs of suit; unless they shall, for sufficient reasons, see fit, on equitable terms, to order an amendment." Pub. Laws 1826, c. 344, § 1.

This was preserved in almost its entirety in Revision of 1841, c. 145, § 24, but was condensed to its present form in Revision of 1857, c. 104, § 21, and this condensation has been since maintained.

We think the test therein prescribed is the correct and reasonable one by which to judge the sufficiency of the description. It must be such as to enable the defendant to know with reasonable certainty what lands or tenements

voke.

2. DEDICATION 31-NECESSITY FOR ACCEPTANCE TO IMPOSE BURDEN ON CITY.

Where a landowner plotted lots and streets, and conveyed lots bounding them by one of the delineated streets, incipient dedication of the street to the public was incomplete, or only a proposition to dedicate, and imposed no burden on the city until the street was duly accepted by competent authority, or the public had used it for at least 20 years.

3. ADVERSE POSSESSION 8(2)-HOLDING OF PLATTED STREET AS AGAINST SUCCESSORS OF GRANTOR.

Where lots were conveyed as bounded by a street shown on a plan made by the grantor, and the grantee and his successors, the city failing to accept or the public to use the prof

(108 A.)

fered street, appropriated and used the part of the street opposite their lots, and continued to hold such part for 43 years, their adverse possession ripened into title as against the grantor's successors, who had the fee to the streets subject to the inchoate easement of travel in the public; the rule as to adverse possession of streets not applying.

4. DEDICATION 34-ACCEPTANCE OF STREET

BY MUNICIPALITY WITHIN REASONABLE TIME.

A proposition to dedicate land for a public street, as by selling lots by reference to a plan showing streets, must be accepted by the municipality within a reasonable time in order to be effective, what constitutes a reasonable time to be determined by the facts and circumstances of each case, but 43 years, particularly in view of Rev. St. c. 24, § 106, being beyond any such period.

Agreed Statement from Supreme Judicial Court, Cumberland County, at Law.

Proceeding for damages for the taking of land for a street by Louis W. Harris against the City of South Portland. From a decision of the municipal officers refusing to award damages, petitioner appeals. On agreed statement of facts for the Supreme Judicial Court. Appeal sustained, and judgment directed for petitioner.

Argued before CORNISH, C. J., and HANArgued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

Between 1863 and 1866 Day sold about 90 lots, all with reference to the same plan, and they conveyed the balance of the tract as an entirety by warranty deed, without reserving any of the streets plotted on said plan, but excepting the lots previously sold. No lots

have been sold since that time. The entire tract, with no streets opened, remained practically unchanged until 1918.

In 1869 one James Merriam, complainant's predecessor in title, received title and possession by warranty deed of said lots 35 and 36, block 20, and at some time prior to 1875 erected a fence inclosing said lots and that part of Adams avenue described in complainant's petition as being a strip 112 feet in length and 36 feet in width, thereby annexing to his purchased lots that portion of Adams avenue lying opposite thereto and using the whole as one lot. Merriam and his successors in title ever afterward kept and maintained said fence continuously, and used that portion of Adams avenue as a part of their garden, having open, notorious, continuous, and exclusive possession thereof and exercising dominion and control over it as thus fenced, until the laying out of the new street by the city in 1918. Merriam himself so retained and used both the lots and the

disputed tract for a period of over 34 years or until March 29, 1909, when he conveyed all of said property, including the disputed piece, by warranty deed to one Hutchins, and

Frank H. Haskell, of Portland, for plain- on the same day Hutchins conveyed all by tiff.

Edward H. Wilson and William A. Connellan, both of Portland, for defendant.

CORNISH, C. J. This is an appeal from the decision of the municipal officers of the city of South Portland because of their refusal to award any damages for the taking of certain land in said city in 1918 for a street. The proceedings are all admitted to be regular. The single point at issue is the title or interest of the petitioner in the land taken.

From the agreed statement of facts it appears that in 1863 one Day owned a large tract of land in the town of Cape Elizabeth, now South Portland, of which the premises described in the complainant's petition were a part. In that year he plotted the land into several hundred lots, and caused a plan thereof to be made, with several streets or avenues delineated thereon, said plan being marked as "Day's plan of East Portland." One of the said streets was named Adams avenue. At the time of the original plotting in 1863, Day sold several lots by reference to the plan, five of said lots abutting on Adams avenue, of which the complainants' were two, Nos. 35 and 36 in block 20. The plotted streets were never accepted nor laid out by the town of Cape Elizabeth, nor by the city of South Portland until 1918.

warranty deed to the plaintiff, and their possession has been of the same character and to the same extent as Merriam's.

Under this state of facts did the complainant acquire title to that portion of the premises which had been originally delineated on the plan as a part of Adams avenue? If so, he was entitled to damages, which the parties have agreed should be $400; if not, then the decision of the municipal officers awarding no damage should be sustained.

[1] Concerning the legal effect of the conveyance of lots 35 and 36 by Day in 1863 there can be no doubt. His deed referring to the plan of the plotted lots and streets, and bounding the lots conveyed by one of those delineated streets, carried with it to the grantee a right of way in the street which neither Day nor his successors in title could afterwards destroy or interfere with, and to the public an incipient dedication of the streets which neither the grantor nor his successors in title could afterwards revoke. Bartlett v. Bangor, 67 Me. 460.

[2] So far as the public is concerned, this constitutes, however, only an incomplete dedication or a proposition to dedicate on the part of the owner, and imposes no burden upon the municipality until the street is duly accepted by competent authority or the public has used it for at least 20 years. In this

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal sustained, with costs.
Judgment for appellant for $400.

case neither of these events happened. There | ed seasonably to accept the gift from the was no acceptance by the town or city, nor dedicators. was there any use in fact by the public. The land constituting the proposed street remained the same as when the plan was drafted except that from 1875 at least the portion opposite these two lots was appropriated and used by the grantee and his successors, and so continued to be used by them in connection

(118 Me. 360)

STANLEY v. PRINCE et al.

1919.)

with the lots until 1918, a period of 43 years. (Supreme Judicial Court of Maine. Nov. 26, [3] Such adverse possession ripened into a title as against the successors in title to Day, in whom was the fee to the streets sub- 1. LIBEL AND SLANDER 7(13)—WORDS IMject to the inchoate easement of travel in the public. Camp-Meeting Association v. Andrews, 104 Me. at page 349, 71 Atl. 1027, 20 L. R. A. (N. S.) 976.

PUTING LARCENY.

The words, "A. S. larceny, culvert, $50," printed in town report required by Rev. St. c. 4, § 45, held to impute a crime, and to be libelous and actionable per se.

2. LIBEL AND SLANDER 5-NECESSITY OF ACTUAL MALICE WHERE WORDS IMPUTE A CRIME.

In action for libel committed by the printing of words imputing a crime, actual malice need not be proved; malice in law being sufficient.

TION OF MALICE.

[4] So far as the municipality is concerned, the doctrine of adverse possession does not apply, because the municipality had not taken possession nor exercised any dominion over the land. Their inchoate rights growing out of the incipient dedication were lost under another rule of law, which is that a proposition to dedicate land for a public street, which is at best only an inference of law 3. LIBEL AND SLANDER 101(1)-PRESUMPfrom the mere fact that sales are made according to a plan, must be accepted within a reasonable time in order to be effective. Dorman v. Bates Mfg. Co., 82 Me. 438-449, 19 Atl. 915; Kelley v. Jones, 110 Me. 360, 364, 86 Atl. 252. What is a reasonable time must be determined by the facts and circumstances of each particular case. A period of 43 years with no movement whatever on the part of the town or city toward acceptance either by formal vote or by user-that is, either by word or by act-is certainly beyond what could be deemed reasonable on the part of the municipality.

In fact, the city evidently took the same view, because it did not proceed to establish this way by accepting the offer of dedication, but laid out the street in accordance with the usual practice by metes and bounds, and recited the names of the five owners of the land thus taken, among whom was the complainant.

Under R. S. c. 24, § 106, rights of way in streets which have been actually laid out and the damages for which have been paid by the municipality may be lost by adverse possession arising from the erection and maintenance of buildings or fences for more than 40 years. It would hardly seem reasonable to allow a longer time than that for the municipality to determine whether or not it will accept the gift of a street that has been offered by the proprietor of plotted land.

It is the opinion of the court that, in view of all the facts and circumstances, the appellant had acquired title to the premises in question by adverse possession against the owners of the fee, and that the city had no right of passage therein because it had fail

Defamatory words imputing a crime are presumed to have been uttered maliciously. 4. LIBEL AND SLANDER 54-TRUTH OF PUB

LICATION.

Under Rev. St. c. 87, § 45, the truth of words imputing a crime is a complete justification, unless the publication originated in corrupt and malicious motives.

5. LARCENY 3(1)—TAKING OF CULVERT FROM TOWN WITHOUT PERMISSION OF SELECTMEN.

Construction engineer who asked selectmen of town for a metal culvert without receiving a definite reply, and who thereafter took culvert delay in giving permission was due to uncertainwithout permission of selectmen, thinking the ty as to whether culvert should be given free of charge or compensation asked therefor, in view of fact that many other citizens had received culverts from town without paying therefor, was not guilty of larceny.

6. LARCENY 3(2, 4)—NECESSITY OF "FELONIOUS INTENT.

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In order to constitute larceny there must be not only a taking and a carrying away of the goods of another but there must also exist contemporaneously the felonious intent on the part of the taker which means a taking without excuse or color of right with the intent to deprive owner permanently of his property and all compensation therefor.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Felonious Intent.]

7. LIBEL AND SLANDER 44(1)—PRIVILEGED PUBLICATION; "QUALIFIED PRIVILEGE."

A publication is conditionally or qualifiedly privileged, where circumstances exist or reasonably believed to exist which cast on him the duty of making a communication to certain

(108 A.)

other persons, to whom he makes such com- | the defendants in their capacity as selectmen `munication in the performance of such duty.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Qualified Privilege.]

of the town of Sangerville and in the performance of their official duty. A verdict for the plaintiff in the sum of $1,500 the defendants ask to have set aside on a general mo

8. LIBEL AND SLANDER 42(2), 501⁄2-LIBEL tion. No exceptions were filed.

IN REPORT OF TOWN SELECTMEN NOT PRIVI-
LEGED PUBLICATION.

Words "A. S. larceny, culvert, $50," printed in report of town selectmen, were not a privileged communication, though selectmen were required by Rev. St. c. 4, § 45, to make the report, giving detailed account of indebtedness and resources, since indebtedness of A. to town for culvert could have been otherwise expressed in report, in which case it would have been privileged, and such privilege did not justify selectmen in charging him with crime of lar

ceny.

9. LIBEL AND SLANDER

FOR CHARGE OF LARCENY.

The following facts appear from the record:

The plaintiff is a construction engineer in the employ of the Old Colony Woolen Mills Company of Sangerville. Mr. L. J. Coburn is vice president, assistant treasurer, and manager of that company. In September, 1917, the plaintiff, who had been engaged in superintending the remodeling of Mr. Coburn's residence, had a crew of men constructing a concrete driveway from the garage, past the side of the house to the main street. He needed 121(1)-DAMAGES a metal culvert at the ditch, and asked Mr. Coburn where he could secure one. Mr. Coburn said he could obtain one from the town, as he understood it was customary for the town to furnish them.

Where town selectmen in their printed report distributed among voters and deposited in office of selectmen or clerk, under Rev. St. c. 4, § 45, and filed in state library under chapter 3, § 15, charged a reputable citizen holding important position with crime of larceny, verdict of $1,500 in libel action against town selectmen was not excessive.

10. LIBEL AND SLANDER 15-PRINTED DEFAMATION.

At that time the town had two metal culThe plaintiff asked Mr. verts on hand. Prince, the first selectman, if he could have one for Mr. Coburn's driveway. Mr. Prince replied that he would take the matter up with the road commissioner and the other

Printed defamation is more potent than selectmen, and the plaintiff testifies that Mr. spoken, because more permanent.

11. LIBEL AND SLANDER 120(2)-PUNITIVE

DAMAGES FOR CHARGE OF LARCENY.

Where selectmen of town in printed report charged reputable citizen with larceny, and in action for libel defended by setting up the truth in the pleadings by way of justification, and adhered to contention that charge was true, even after the citizen had been discharged from arrest under such charge, the citizen was entitled to punitive damages if jury saw fit to grant them; there being strong inferences of actual malice.

Prince also said that "it was customary, but not compulsory, to let people have culverts." Mr. Prince's account of this interview is that the plaintiff said "he was putting in a driveway for Mr. Coburn, and wanted to know if the town furnished driveways or culverts for folks, culverts to put under driveways. * * I told him we had in some cases, and some they had not." There is no material difference in these two statements.

Within a day or two the plaintiff spoke to Mr. Prince again about the matter, and Mr. Prince told him that he had been busy and

On Motion from Supreme Judicial Court, had not seen his associates. When the work Piscataquis County, at Law.

Action by Arthur Stanley against Elmer J. Prince and others. Verdict for plaintiff, and defendants move to have verdict set aside. Motion overruled, and judgment rendered on verdict.

had progressed so far that the culvert was needed immediately, the plaintiff went to the town hall, where the culverts were stored, took one, carried it to the Coburn residence, placed it in the ditch, and embedded it in concrete. The road commissioner, Mr. Hill,

Argued before CORNISH, C. J., and HAN- shortly after this asked the plaintiff if he

SON, DUNN, MORRILL, and DEASY, JJ.

C. W. Hayes, of Foxcroft, and Hudson & Hudson, of Guilford, for plaintiff.

W. R. Pattangall, of Augusta, J. S. Williams, of Guilford, and H. E. Locke, of Augusta, for defendants.

CORNISH, C. J. Action on the case for libel. Plea, general issue, with brief statement, alleging that the words complained of were true, and also that they were qualifiedly privileged because written and published by

had taken the culvert, and he told him that he had and the reason for so doing.

The next step was a consultation between the three selectmen, the road commissioner, and their attorney, followed by a letter from the attorney, the original of which was not in evidence, and the tenor of which the parties did not agree upon. The plaintiff says the letter demanded $50 in payment of the culvert within three or four days; otherwise the plaintiff would be arrested. The defendants contend that it stated that unless adjustment was made within 48 hours the at

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

torney would proceed as he understood the, which means a taking without excuse or collaw. No reply was sent.

or of right, with the intent to deprive the . A week later, the plaintiff was arrested for owner permanently of his property and all larceny, was tried before the municipal court, compensation therefor. This felonious intent and found guilty. An appeal was taken to is the very gist of the offense. Here that esthe March term, 1918, of the Supreme Judi-sential element is entirely lacking. The cial Court for Piscataquis county. At the plaintiff had a justifiable excuse. He testiconclusion of the evidence at that term the fied that he had no purpose to deprive the presiding justice ordered the jury to return town of their compensation. He expected a verdict in favor of the respondent, Mr. that Mr. Coburn would pay for the culvert if Stanley, and he was accordingly discharged. the town officers exacted pay; or, if they did In January, 1918, the plaintiff was arrest- not require compensation, that Mr. Coburn ed on a special writ in a civil action brought would receive it, as had many other citizens by the selectmen in the name of the town to under like conditions. recover the value of the culvert placed at $50, and gave bond for his release. This suit was settled at the same term the criminal trial was held.

We come now to the alleged libel which was contained in the town report of Sangerville, prepared and published by these defendants for the municipal year 1917-1918, and presented at the March meeting, 1918. On page 18 of that report the defendants incorporated under the list of assets available these words, "Arthur Stanley larceny, culvert, $50."

All the circumstances bear this out. The jury were justified in finding that the delay or hesitancy on the part of the chairman of the selectmen did not arise over the question of allowing Mr. Coburn to have the culvert, but whether he should have it free of charge. That was undoubtedly the idea in the mind of Mr. Stanley, and theft was farthest from his thought. To take an article of the size of this metal culvert, 18 feet long, transport it in broad daylight through the streets from the town hall to the Coburn residence, leave it there overnight, and then the next day to

This charge forms the basis of the pres- embed it in the concrete driveway at the ent action.

A

The law of libel is so well established and so familiar that it needs no discussion. succinct statement of the several principles involved in this case is sufficient.

[1-3] It cannot be doubted that the printed words impute a crime and are libelous and actionable per se. No other reasonable inference can be drawn by the reader of the report than that Arthur Stanley was guilty of the crime of larceny in stealing a culvert from the town of Sangerville, the value of which was $50. Actual malice need not therefore be proved. Malice in law is sufficient. Defamatory words imputing a crime are presumed to have been uttered maliciously. If the case stopped here the only question would be one of damages.

ditch, in the face and eyes of Mr. Prince, the chairman of the board, who lived directly. across the street from the Coburn residence, hardly comports with the crime of larceny or the practices of a thief. The jury must have found that the defense of truth could not be sustained, and their conclusion is clearly correct.

2. In the second place the defendants claim that, believing the charge of larceny to be true, they published it in their report as selectmen without malice toward the plaintiff, and that therefore it was privileged.

[7] "A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person

We come therefore to the points raised in to whom he makes such communication in defense.

[4] 1. In the first place the defendants pleaded the truth of the allegation, and persisted in the contention before the law court. Such a plea if established was a complete justification under the statute "unless the publication is found to have originated in corrupt or malicious motives." R. S. c. 87, § 45; Pierce v. Rodliff, 95 Me. 346, 50 Atl. 32; Pease v. Bamford, 96 Me. 23, 51 Atl. 234.

[5] The defendants urge that the plaintiff was guilty of larceny under the legal definition of that term. This contention we cannot indorse.

[6] In order to constitute a larceny there must be not only a taking and carrying away of the goods of another, but there must also exist contemporaneously the felonious intent,

the performance of such duty." 17 R. C. L. p. 341. That is the settled rule. Bradford v. Clark, 90 Me. 298, 38 Atl. 229; Sweeney v. Higgins, 117 Me. 415, 104 Atl. 791.

It is the duty of town officers charged with the expenditure of money to make a full and detailed report of all their financial transactions in behalf of the town, with a full account of receipts and disbursements, of indebtedness and resources, together with a list of all delinquent taxpayers and the amount due from each. This is required by statute. R. S. c. 4, § 45. A report published within the requirements and spirit of that statute would doubtless be regarded as privileged. The defendants complied with that statute, and were free from blame, when under the heading, "Financial Statement," they itemiz

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