Opposition Brief — New Hampshire v. Maine

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No. 130, Origina MAY 1 1 7000

CLERK

In The

Supreme Court of the United States

STATE OF NEW HAMPSHIRE,

Plaintiff,

STATE OF MAINE,

Defendant.

BRIEF IN OPPOSITION

TO MOTION FOR LEAVE TO FILE COMPLAINT

State of Maine

ANDREW KETTERER

Attorney General

Paut STERN*

Deputy Attorney General

CHRISTOPHER C. TAusB

Assistant Attorney General

Six State House Station

Wiuam R. Stokes Augusta, Maine 04333-0006

Assistant Attorney General (207) 626-8800

Of Counsel Counsel for Defendant

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Whether New Hampshire has met its burden to have

this Court exercise its original jurisdiction to relitigate the

location of a state boundary line.

QUESTION PRESENTED

TABLE OF CONTENTS

Page

QUESTION PRESENTER: ........c. ee

TABLE OF AUTTIONIMS...... 055005 vi

STATEMENT OF THE CASE...............-.00000: 1

SUMMARY OF ARGUMENT............0..0ee00ee. 16

anette See EY,

I. NEW HAMPSHIRE’S MOTION FOR LEAVE TO

HAVE THIS COURT REESTABLISH THE

BOUNDARY LINE SHOULD NOT BE

COR APOE OUE hs ¥05 bs bck an kaeee ee Ree ee 17

Il. NEW HAMPSHIRE’S MOTION SHOULD BE

DENIED BECAUSE ITS BASIC PREMISE IS

LAPIS occ cashes tawnesa ee eke ere 19

Il. NEW HAMPSHIRE’S CLAIM TO A BOUND-

ARY LINE ALONG MAINE'S SHORE IS WITH-

OUT MERIT AS A MATTER OF LAW......... 20

IV. NEW HAMPSHIRE CANNOT CARRY ITS BUR-

DEN AS A MATTER OF LAW oi cie cc ccc eyes 27

ee RS | rer re erry rer ry ya 30

APPENDICES

Royal Commissioners Report, 19 N.H. Provincial

Papers 391-92 (Albert Stillman Batchellor ed.,

| | rr rar eeemnere err ye yy Wr ic la

New Hampshire Exceptions, 2 Laws of New

Hampshire (1913), at App. 771-72................. 3a

New Hampshire Appeal, 19 N.H. Provincial

Papers 565, 596-97 (Albert Stillman Batchellor

ek, SOAS an she eed eee eee ee eae 4a

CC ESEESE'!SSW~=~r

ill

TABLE OF CONTENTS - Continued

Page

Massachusetts’ Response, 19 N.H. Provincial

Papers 601, 627-28 (Albert Stillman Batchellor

Ce there Sc bacckv es seer veenersehecenns 6a

Order of Privy Council, 19 N.H. Provincial Papers

600 (Albert Stillman Batchellor ed., 1891) ......... 8a

Wentworth Commission, 2 Laws of New Hamp-

CE SE ee ee eee 9a

Wentworth Instructions, 2 Laws of New Hamp- x

shire (1913), at APP. Ba a ee lla

An Act for the Preservation of Fish in Piscataqua

River, Me. Private and Special Laws, 1825, c.

TUR ARDS coor ay nevis 500 ees tre sieSecseeees 13a

An Act relating to the Catching of Smelts in the

Piscataqua River, Me. Private and Special Laws,

epee ha taa pei eesébeaenes 15a

An Act to Prevent the Destruction of Smelts in the

Piscataqua River and its tributaries, Me. Private

Gre Doecems LAWS, TBF4, C. 573..... 2.02 scccccees l6a

An Act to Prevent the catching of Trout and Pick-

erel in the Piscataqua River and its tributaries,

Me. Private and Special Laws, 1866, c. 136....... 17a

An Act relating to Pilots in Piscataqua river and

Harbor, Me. Private and Special Laws, 1861, c.

ee cece eb sive oevasedeeses 18a

Resolve requiring the Inhabitants of the several

Towns and Districts in the Commonwealth, to

cause to be taken by their Selectmen .

accurate Plans of their respective Towns, and to

Lodge the same in the Secretary’s office, Mass.

ME, BU ks eke Seneecenadersccscres 19a

TABLE OF CONTENTS - Continued

Page

An Act to cede to the United States the Jurisdic-

tion of Dennet’s Island, (so called) in Piscataqua

River, Me. Private and Special Laws, 1822, c.

' it ere eee eer erie rr Cee re Ser reer eer Tere Tek 23a

Resolve respecting a Bridge between Kittery and

the Navy Yard Island in Piscataqua River, Me.

re be 0 as a uae caus wanbuveans eeaneed 24a

An Act in addition to... “An Act for Ceding to

the United States . . . One Acre and Three

Quarters of an Acre of Land... . Situate in New

Castle,” ... , 1807 New Hampshire Laws, c. 57... 25a

An Act for Ceding to the United States .. . One

Acre and Three Quarters of an Acre of Land.

... Situate in New Castle, 1791 New Hampshire

RE Eo Pha hes kccewre Hens en easiness $2400 ueness 27a

An Act for Ceding to the United States One of the

Isles of Shoals, 1820 New Hampshire Laws, c.

RET eT ULE Tee ETE TELE CECE RE OTE Te 29a

An Act Ceding to the United States the Jurisdic-

tion of certain Lands near the Mouth of Piscata-

qua River, Me. Private and Special Laws, 1827, Ty

30a

hs A A 56 one RC EE INS Obs bn make pee N ae Shes too

Resolved .. . in General Court... to Appoint two

Commissioners . . . to Renew the Dividing

Line . .. , 9 New Hampshire Laws 701 (1827)... 3la

Resolved . . . in Generai Court . . . the Dividing

Line . . . be Recognized as the True Boundary

Line .. . , 9 New Hampshire Laws 943 (1828) ... 32a

Resolve . . . Report of Commissioners Establishing

the Boundary Line between Maine and New

Hampshire, Me. Resolves, 1829, c. 30............ 33a

TABLE OF CONTENTS - Continued

An Act to Incorporate the Seavey’s Island Bridge

Company, Me. Private and Special Laws, 1854,

C. BEM 6944 vhES oui added ae

An Act Ceding Jurisdiction over certain Lands on

Seavey Island in the Town of Kittery to the

United States, Me. Private and Special Laws,

Sent Go OF vy vad a wcuanpuupeetecee eee

TABLE OF AUTHORITIES

Page

Cases |

Abbott, et al. v. State Tax Assessor, Nos. 92-553,

93-556, and 93-577 (Me. Superior Ct., June 12,

ARR Ree serine oe Pee eS eee eer 18

Afram Carriers, Inc. v. Moeykens, 145 F.3d 298 (Sth

Re Sh Vas Sai wake Cesk ebeie os aon 60 ese ba 8s 25

Alabama v. Texas, 347 U.S. 272 (1954)................ 18

Allen v. McCurry, 449 U.S. 90 (1980)..............0.. 24

Allen v. Zurich Ins. Co., 667 F.2d 1162 (4th Cir.

SE Sade ee i ee ee ee Pewee sn soe .e eee Oo 26

Arizona v. California, 460 U.S. 605 (1983).......... 22, 23

Arizona v. New Mexico, 425 U.S. 794 (1976).......... 18

Arkansas v. Tennessee, 246 U.S. 158 (1918)............ 27

Baker v. General Motors Corp., 522 U.S. 222 (1998) .... 22

Bates v. Long Island R. Co., 997 F.2d 1028 (2d Cir.),

COTE, I SR Bie Fe REMIED oo rvccaccrccaseeces 26

California v. Texas, 457 U.S. 164 (1982)............... 18

California v. United States, 457 U.S. 273 (1982) ....... 19

Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420

oe 8 ee Perr ery Terre rr Perr 25

Data General Corp. v. Johnson, 78 F.3d 1556 (Fed.

ee er ee errr Ty T? a err eerie ey 22, 25

Davis v. Wakelee, 156 U.S. 680 (1895) ...........0.06. 25

Vil

TABLE OF AUTHORITIES

Page

DeGuiseppe v. Village of Bellwood, 68 F.3d 187 (7th

ak SEE anv io ve on ar chwase skier neek eneese eat dee 25

Edwards v. Aetna Life Ins. Co., 690 F.2d 595 (6th Cir.

PUEDES A Ke bb ba do Caves ewnndeeesess sameas ceUpeoaieas 26

Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394

UP er hl dde hue sh «scan hare STA ee Renee al 22

Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107 (3rd

CUb. TFFZ) oo pee ccc cecscsscencenecsovevercccescses 25

Georgia v. South Carolina, 257 U.S. 516 (1922)........ 28

Goumas v. State Tax Assessor, 2000 ME 29, __ Me.

A Es Rk Aes bea Pee ee Pe eae 18

Hossaini v. Western Missouri Medical Center, 140

Fane. CR GU Sat CON es kop cbeccasece ohciasdes 25

Illinois v. City of Milwaukee, 406 U.S. 91 (1972)....17, 18

Illinois v. Kentucky, 500 U.S. 380 (1991)........... 21, 28

In re: Osborn, 24 F.3d 1199 (10th Cir. 1994).......... 25

Indiana v. Kentucky, 136 U.S. 479 (1890)........... 28, 29

mee ©. Tete, CGF UG. EEE osc onncscdncscicbcvs 27

Konstantinidis v. Chen, 626 F.2d 933 (D.C. Cir. 1980) .... 26

Louisiana v. Mississippi, 202 U.S. 1 (1906)............ 27

Louisiana v. Mississippi, 516 U.S. 22 (1995)........ aa, oF

Leanne ©. tomes, 176 TD. 2 GFE 66 kc cd dec cwinsden 18

Lydon v. Boston Sand & Gravel Co., 175 F.3d 6 (1st

Og Oe eee eT CETTE TES TOPE TTT oee Teer eee 26

Vill

TABLE OF AUTHORITIES

Page

McKinnon v. Blue Cross and Blue Shield of Alabama,

SSD P28 TUG (11 Cie. TOPE)... os cccvesecevcees 2€

Michigan v. Wisconsin, 270 U.S. 295 (1926)........... 29

Migra v. Warren City School District Bd. of Educ.,

DOD Tis Fe CIN a Fok ses ni syn ieedececes seusans 22, 24

Mississippi v. Louisiana, 506 U.S. 73 (1992)........... 18

Mitchell v. Washingtonville Cent. School Dist., 190

foe Gee. | Ny Cont eur avert rey re Ty 26

Montana v. United States, 440 U.S. 147 (1979) ........ 23

Morris v. California, 966 F.2d 448 (9th Cir. 1991),

Cert. GENE, SOS 12.5. GS CIPS) oc ccvccccesccicecnss 26

New Hampshire v. Maine, 426 U.S. 363 (1976)..... passim

New Hampshire v. Maine, 434 U.S. 1 (1977)....... passim

New Jersey v. Delaware, 291 U.S. 361 (1934).......... 27

New Jersey v. New York, 523 U.S. 767 (1998)....... 27, 30

Ohio v. Kentucky, 410 U.S. 641 (1973)..16, 19, 20, 21, 25

Opinion of the Justices, 373 A.2d 647 (N.H. 1977)..... 15

Patriot Cinemas, Inc. v. General Cinema Corp., 834

i @ Ff) ga Bs eer eerrrererrerer reise 25, 26

Rhode Island v. Massachusetts, 45 U.S. 591 (1846)

FELIS URS ohare nahh eh hs GL eke hae Ca bee 23, 28, 29

Rivet v. Regions Bank of Louisiana, 522 U.S. 470

SE er es errr eres rere 22

Ryan Operations G.P. v. Santiam-Midwest Lumber

Ca., Gh ROG SES Cre Che, BGG) oo occ cncewscscsecs 25

TABLE OF AUTHORITIES

Page

Stevens v. State Tax Assessor, 571 A.2d 1195 (Me.),

cert. denied, 498 U.S. 819 (1990) ........--+--+5- 15, 18

U.S. Philips Corp. v. Sears Roebuck & Co., 55 F.3d

592 (Fed. Cir. 1995)........ eee cece eee eee eees 25

United States v. 49.01 Acres of Land, 802 F.2d 387

(10th Cir. 1986)......... ee cece eee cence eee eee eees 26

United States v. Louisiana, 339 U.S. 699 (1950).....--. 19

United States v. Louisiana, 394 U.S. 11 (1969)......--. 29

United States v. Maine, 469 U.S. 504 (1985)........--- 29

Vermont v. New Hampshire, 289 U.S. 593 (1933)....... 28

Virginia v. Tennessee, 148 U.S. 503 bi . ) Rapa n npr 29

CONSTITUTION AND STATUTES

U.S. Const., Art. III, § 2, cl. 2.......---- ieeneeat es 17

1791 N.H. Laws, C. 71 ...... cece cece eee teen cence 7

2007 NL. Laws, 6. 57 «0.062 cenccccnceereesenenuoesns 7

9 N.H. Laws 701 (1827). ......--- cece eect eee eeeeeees 7

9 N.H. Laws 943 (1828). ......-- see ee cere eer eeeeees 8

— ee | Ser ermerer re Terr tor ;

Me. P&SL 1825, C. 337... ..ccccccsscrcccscccnseceeces 5

Me. P&SL 1827, c. 482......--- see eeeceercr eee rcceces 7

Me. P&SL 1854, Cc. 275........sccescccccccceecsceccees 8

Me. P&SL 1861, c. 72.....--05+ee ee: Ranch een neue eA 5

TABLE OF AUTHORITIES

Page

es eS A Meee n TTT CTT ererreric ets T! 9

ee ee aba ee cece euues 5

Re Fee, Bly Ge Sa 6 ibe obits deecavevectesrasnaen es 5

oe, Perr re reve Teer rr eT rere Tee ~

ee, ice chieebae wk ews beenteeee 6

ee un waw kaw baa Soa wed wee 8

Se re es vc kc awe wes cessed cantaann 5

MiIscett.ANEOUS

Commission of Governor Benning Wentworth, 2

Laws of New Hampshire (1913),-at App. 600 ...... 4

Concerning State Taxation of Individuals Working At

Certain Federal Facilities Straddling State Borders:

Hearing on H.R. 1953 Before the Senate Comm. On

Governmental Affairs, 105th Cong. 29-33 (1997)..... 20

Instructions of Governor Benning Wentworth, 2

Laws of New Hampshire (1913), at App. 608,

Se 5s br eer hee Use da Sn eRe eA eae sd Wake as

Massachusetts’ Response, 19 N.H. Provincial

Papers 601, 627-28 (Albert Stillman Batchellor

Og WE Seah Ob bag, Ver ea tenes keneeeda nce her ckoke 4

New Hampshire Appeal, 19 N.H. Provincial

Papers 565, 596-97 (Albert Stillman Batchellor

a) ee re er ee ee ee retry 3

New Hampshire Exceptions, 2 Laws of New

ee ee ere eeee errr

TABLE OF AUTHORITIES

Opinion of New Hampshire Attorney General

(October 15, 1969) .....-.. cece eee eee ence eens

Order of Privy Council, 19 N.H. Provincial Papers

600 (Albert Stillman Batchellor on, peers exass

Restatement (Second) of Judgments, § 27........

Royal Commissioners Report (1737), 19 N.H. Pro-

vincial Papers 391-92 (Albert Stillman

Batchellor ed., 1891)........--- cece eee eeeeeees

Robert Ll). Stern, et al., Supreme Court Practice (7th

Se IE ican y ns aa cek eee wkaren ay eo me eee ees

18 Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Pro-

cedure, § 4406 (1981).......-- 2s eee eee renee ee

18 Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Pro-

cedure, § 4407 (1981)......--- secre reer ee eeees

18 Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Pro-

cedure, § 4414 (1981).......-- see eee eee e teens

Page

passim

STATEMENT OF THE CASE

The boundary between Maine and New Hampshire is

the middle of the main navigational channel — or thalweg

- of the Piscataqua River, and has been so since at least

1740. New Hampshire’s present claim to a boundary on

Maine’s side of the Piscataqua Fiver was explicitly

rejected by the highest tribunal in the land 260 years ago,

a conclusion confirmed by New Hampshire itself as well

as by this Court. New Hampshire v. Maine, 426 U.S. 363

(1976). In opposing New Hampshire’s motion, Maine

relies upon the undisputed history of the boundary and,

in particular, New Hampshire’s own official acts.

On\the Maine side of the river, at the area in ques-

tion, is the Town of Kittery, and on the other side of the

river is the larger city of Portsmouth, New Hampshire.

(This area is generally depicted on maps found in Maine’s

Lodging in Opposition to Motion for Leave to File Com-

plaint (hereinafter “Maine Lodging”) at Tabs 16 and

31-32). The islands to the north of the main channel on

the Maine side of the river include Badger, Dennett’s,

Seaveys and Jamaica Islands. The Piscataqua River ends

at the mouth of the harbor, between Newcastle Island in

New Hampshire on the west and Gerrish Island in Maine

on the east.

On the Maine side, as a result of fill placed over the

years since 1866, Dennett’s, Seaveys and Jamaica Islands

became one island on which the Naval Shipyard is now

located. The combined island is now often referred to as

Seaveys Island. Maine Lodging, at Tabs 17 and 18.

Bridges have been constructed only frgm the Maine main-

land to these islands. (See generally, Maine Lodging, at

Tab 18). The only way one has ever been able to walk or

drive to the Shipyard islands is through Maine.!

Maine was part of the Massachusetts colony. As is

well documented elsewhere, in the early 18th century, a

boundary dispute arose involving, inter alia, the northern

boundary between New Hampshire and the Maine por-

tion of Massachusetts. New Hampshire v. Maine, 426 U.S. at

366. When representatives of the two provinces could not

negotiate a resolution, New Hampshire presented the

matter to King George II. Id. The King appointed 20

members of the Provincial Councils of New York, New

Jersey, Rhode Island and Nova Scotia to serve as Com-

missioners.

The Commissioners rendered a decision on Septem-

ber 2, 1737. The Commissioners fixed the northern

boundary between New Hampshire and Maine as fol-

lows:

[T]he Dividing Line Shall pass up thro’ the

mouth of Piscataqua Harbour & up the Middle

of the River into ye River of Newichwannock

(part of which is now called Salmon Falls) &

thro’ the Middle of the Same to the furthest

head thereof...

19 N.H. Provincial Papers 391-92 (Albert Stillman

Batchellor ed., 1891) (App. at 1a); see also New Hampshire

v. Maine, 426 U.S. at 367.

New Hampshire filed exceptions to the Commission-

ers’ decision on October 14, 1737, claiming:

1 The narrow water area between the Shipyard islands and

Kittery has been called either Crooked Lane (A Plan of an Island

Situated in Piscataqua River as a Navy Yard for the United

States, June, 1800, (Maine Lodging, at Tab 19)) or Back Channel

(New Hampshire Lodging, at 122 & 124).

(T]he whole of that River and the Jurisdiction

thereof hath Ever been in the Possession of this

Province and never Claimed by the Massa-

chusets ...

2 Laws of New Hampshire (1913) at App. 772 (App. at

3a). New Hampshire further appealed the Commission-

ers’ decision to the Privy Council in 1738, asserting:

As to the northern Boundary, the Commissioners

Judgment directs the dividing Line to pass up the

middle of Piscataqua River and through the mid-

dle of Newichwannock River; but it’s hoped that

that is wrong. . . . The Massachusets never pos-

sess‘d, or claimed, the River itself, or any part of it,

neither under their old or new Charter; nor, in

their Demand filed before the Commissioners,

did they demand half or any part of the Rivers:

So that it’s humbly hoped this part of the Com-

missioners Judgment, which in consequence

adjudges half of the River to the Massachusets

without any Demand by, or any Title in, the

Massachusets will be revers’d.

19 N.H. Provincial Papers 565, 596-97 (Albert Stillman

Batchellor ed., 1891) (emphasis added) (App. at 4a-5a).

In response to New Hampshire’s argument that it

owned all of the river and the “parts” thereof, and not

just half, Massachusetts replied:

Possession and Enjoyment have been agreeable

hereto, it being a known Truth, that from Time

immemorial the Province of Maine have and now do

possess and receive Taxes constantly from all the

Islands lying in that River, on that Side towards the

Province of Maine; and the Massachusetts aver in

the most solemn manner, That New Hampshire

have never in any one Instance exercised the

Jurisdiction of the whole River, and that the

Province of Maine have constantly possessed and

enjoyed the Islands all along their Side of the River —

the Fact being, That all the Islands in the said River

have been always considered and taxed as belonging

to that Government they lay nearest to.

19 N.H. Provincial Papers 601, 627-28 (Albert Stillman

Batchellor ed., 1891) (emphasis added) (App. at 6a-7a).

The King referred the matter to the appeal committee

of the Privy Council, which affirmed the Commissioners’

determination of the Maine-New Hampshire boundary.

19 N.H. Provincial Papers 600 (Albert Stillman Batchellor

ed., 1891) (App. at 8a). In 1740, the King “signed a decree

accepting this recommendation and, employing the

quoted language, thereby permanently fixed the Maine-

New Hampshire boundary.” New Hampshire v. Maine, 426

U.S. at 367. According to New Hampshire itself, in filings

with this Court in 1975, the “middle of the river” “consti-

tuted the boundary between the states from and after the

1740 decree, and . . . constitutes the boundary to this day.”

Exceptions and Brief of the Plaintiff, at 5, New Hampshire

v. Maine, 426 U.S. 363 (1976) [Original No. 64] (hereinafter

“Original No. 64”) (emphasis added).

In 1741, Governor Benning Wentworth was issued a

Commission and Instructions from the Crown regarding

his responsibilities over the province of New Hampshire.

The Commission described the colony as “bounded on

the North Side by a Line passing up thro the Mouth of

Piscataqua Harbour, and up the Middle of the River into

the River of Newichwannock”. Commission of Governor

Benning Wentworth, 2 Laws of New Hampshire (1913), at

App. 600 (App. at 10a). The Instructions relied upon by

New Hampshire in its Motion, at 9 n.17, summarized the

1740 resolution, reiterating the boundary to be “up thro’

the Mouth of the Piscataqua Harbour and up the Middle

of the River”. Instructions to Governor Benning Went-

worth, 2 Laws of New Hampshire (1913), at App. 608, 635

(App. at 11a). ;

New Hampshire theorizes that the Crown, Congress

and/or New Hampshire somehow moved the boundary

from the middle of the river to Maine’s mainland.

Motion, at 9-22. Maine notes that none of the material

New Hampshire refers to mentions a new boundary line.

Moreover, with a record of so vigorous a dispute over the

boundary culminating in the 1740 decree, it is inconceiv-

able that Massachusetts and Maine would have silently

sat by during this alleged usurpation of the river and

islands by New Hampshire. To the extent New Hamp-

shire relies upon some of its regulatory actions in the

area, Maine has regulated its side of the river and harbor

as well, inter alia, for fishing (see, e.g., Me. P&SL 1825, c.

337) (App. at 13a),? and for piloting (see, e.g., Me. P&SL

1861, c. 72) (App. at 18a). In any case, New Hampshire’s

recently manufactured historical hypothesis is contra-

dicted by undisputed historical fact.

In 1794, the Massachusetts General Court ordered all

towns to survey their boundaries and produce a map

thereof. Mass. Resolves, 1794, c. 101 (App. at 19a). Kittery

did so, and included in its official map the Shipyard

islands. Plan of the Town of Kittery by Actual Survey,

November, 1794 (Maine Lodging, at Tab 20).

In 1800, the Navy purchased by deed Dennett's

Island from William Dennett, Jr. The deed describes the

island as “lying in Piscataqua River, in Kittery aforesaid,”

2 See also P&SL 1921, c. 33 (App. at 15a); P&SL 1874, c. 573

(App. at 16a); P&SL 1866, c. 136 (App. at 17a).

and was registered in York County, Maine. (Maine Lodg-

ing, at Tab 1.)

On May 7, 1821, Secretary of the Navy Smith

Thompson, on behalf of the United States, requested that

Maine cede jurisdiction of Dennett’s Island to the federal

government, describing “The United States Navy Yard,

[as] situated upon Dennet'’s Island, on the east side of the

Piscataqua River, and now within the limits of the State of

Maine”. Letter dated May 7, 1821, from Honorable Smith

Thompson (Maine Lodging, at Tab 2). Maine did so in

1822, as follows:

That there be, and hereby is, ceded to the United

States the jurisdiction over Dennet’s Island (so-

called) on the East side of Piscataqua River,

within the State of Maine, now belonging to the

United States and occupied as a Navy Yard:

Provided, however, That the state shall have con-

current jurisdiction with the United States over said

Island so far as that all civil and criminal processes

issued under the authority of the State may be

executed on any part of said island, or in any

building erected on the same; and that all persons

residing thereon, not being in the military or

marine service of the United States, shall be

holden to do military duty in the militia of this State

in the same way and manner as if jurisdiction

had not been ceded as aforesaid.

Me. P&SL 1822, c. 112 (emphasis added) (App. at 23a).3 In

1826, the Maine Legislature further consented to the

United States erecting a bridge between the Navy Yard

and the mainland. Me. Resolves, 1826, c. 29 (App. at 24a).

3 As provided in the cession of jurisdiction, non-military

residents of Dennett’s Island were required to serve in Maine’s

militia, as were residents of Seaveys Island. Kittery Town

Records, June 13, 1836 (Maine Lodging,at Tab 3).

ssn scam ums ci ca uaa cecan mmm nai Bane em eas

New Hampshire was well aware of the necessity of a

state ceding jurisdiction to the United States for federal

facilities, having done so on its side of the thalweg during

this time. 1807 N.H. Laws, c. 57 (on Newcastle Island)

(App. at 25a); 1791 N.H. Laws, c. 71 (on Newcastle Island)

(App. at 27a). Maine also ceded Whaleback and Wood

Islands to the United States near the mouth of the harbor

on Maine’s side of the thalweg. Me. P&SL 1827, c. 482

(App. at 30a). (The United States conveyed Wood Island

back to Maine in 1973 (Maine Lodging, at Tab 4)).

The suggestion throughout New Hampshire’s pre-

sent motion that there has been an ongoing dispute over

this boundary is contradicted by its own official reports,

legislation, maps, and actions. On June 30, 1827, the New

Hampshire Legislature resolved “to ascertain, survey,

mark and renew the dividing line between this State and

the State of Maine, in its whole extent.” 9 N.H. Laws 701

(1827) (App. at 31a). Both states appointed two commis-

sioners, and on November 19, 1828, the Commissioners

filed their report with the Governor of New Hampshire.

The New Hampshire Commissioners Report states at the

outset that the 1737 decision of the King’s Commissioners

“determined respecting this line” that “the dividing line

shall pass up through the mouth of Piscataqua Harbour;

and up the middle of the river into the river Newichwan-

nock,” and that determination was approved by the

Crown. Report of Commissioners Appointed to Settle the

Line Between New Hampshire and Maine at 4 & 5 (Maine

Lodging, at Tab 5). The Joint Report explained that the

States’ Commissioners deemed it unnecessary to com-

mence the survey until they arrived north at the head of

Salmon Falls River because -the 1740 order had estab-

lished the dividing line below. Id. at 13. Nowhere do the

Commissioners suggest any other boundary. New Hamp-

shire, by Resolution dated December 16, 1828, resolved

that the line designated by the Commissioners “shall,

from and after the passage of this Resolution, be recog-

nized as the true boundary line between the two States.”

9 N.H. Laws 943 (1828) (App. at 32a).4 Maine’s Legisla-

ture also approved and accepted the report. Me. Resolves,

1829, c. 30 (App. at 33a).

In 1854, the Maine Legislature authorized the incor-

poration of the Seaveys Island Bridge Company to build

and maintain a bridge from Seaveys Island to the Navy

Yard on Dennett's Island. Me. P&SL 1854, c. 275 (App. at

34a). Kittery School District No. 8 acquired land for and

built a schoolhouse on Seaveys Island. York County Reg-

istry of Deeds, Book 270, Page 64 and Book 301, Page 70

(Maine Lodging, at Tab 7). Although space limitations

prevent a full review here of the tax records which show

the islands to be taxed by Kittery and not Portsmouth, we

highlight, by way of example, that in 1855, Seaveys Island

residents petitioned Kittery to build a road on the island,

which the town approved, resulting in the assessment of

a highway tax “for making the new road on Seaveys

Island (so called).” Kittery Town Records (1855, 1856,

1858) (Maine Lodging, at Tab 8).

In 1863, the State of Maine ceded jurisdiction of lands

“on Seaveys Island in the Town of Kittery” to the United

* New Hampshire Attorney General Pappagianis

concluded in 1969 that New Hampshire and Maine accepted the

“boundary line in the 1828 Report, specifically, that the

Piscataqua River boundary between New Hampshire and

Maine lies in the middle of the Piscataqua River.” Opinion of

New Hampshire Attorney General Pappagianis, at 5 (October

15, 1969) (Maine Lodging, at Tab 6).

States. Me. P&SL 1863, c. 198 (App. at 36a). No objection

was raised by the State of New Hampshire to this cession.

Opinion of N.H. Attorney General Pappagianis, at 5

(October 15, 1969) (Maine Lodging, at Tab 6). All of the

deeds of the island to the United States (including one

from the Kittery School District) describe the parcels as

being in Maine, and are recorded at the York County

Registry of Deeds in Maine (Maine Lodging, at Tab 9).

The Navy filled areas, resulting in Dennetts and Sea-

veys Islands becoming one. For the next 100 years,

although the shipyard was sometimes referred to as the

Portsmouth Shipyard, both Maine and New Hampshire

consistently placed it in Kittery, Maine.> Official New

Hampshire maps place the boundary in the middle of the

river. See, e.g., New Hampshire's Coastal Program, by

N.H. Office of State Planning and N.H. Coastal Office

(1990) (Maine Lodging, at Tab 21); Monitoring and Gag-

ing Stations in Piscataqua River Basin, by N.H. Water

Supply and Pollution Control Commission (1975) (Maine

Lodging, at Tab 22); Eastern (Seacoast Region) Rock-

ingham County, New Hampshire, prepared by the N.H.

5 We note that naval shipyards are not always named after

the town in which they are located. For example, the Norfolk

Naval Shipyard is actually in Portsmouth, Virginia, not Norfolk,

and the New London Naval Submarine Base is in Groton,

Connecticut, not New London. The Shipyard has used

Portsmouth for its mailing address because, apparently,

Portsmouth’s post office has always been larger than that of

Kittery. The United States Navy recognizes that, despite its

mailing address, the Shipyard is in Kittery. “Federal Owned

Real Estate Under the Control of the Navy Department,” 1937

(Maine Lodging, at Tab 15) (“Location - Post Office,

Portsmouth, N.H., but geographically in State of Maine.”)

State Highway Department (1937) (Maine Lodging, at Tab

25).°

The “middle of the river” boundary is fully con-

firmed by Maine and Kittery governmental maps,’ as

well as other maps depicting the area.® Further, the Ship-

yard has been included in Maine’s voting and census

districts. See, e.g., Maine House of Representatives Dis-

trict 1, prepared by Secretary of State Bill Diamond (8/93)

(Maine Lodging, at Tab 11); U.S. Department of Com-

merce, Bureau of the Census, 1990, Boundary and Annex-

ation Survey Map, Kittery, Maine (Maine Lodging, at Tab

33).

In 1969, Maine instituted a form of income taxation

affecting New Hampshire residents who worked at the

Shipyard in Maine. The controversy over the tax

6 We emphasize that this list represents a mere sampling of

New Hampshire maps showing the boundary to be the middle

of the river. See also Portsmouth, New Hampshire Street Map, by

Portsmouth Planning Department (1972) (Maine Lodging, at

Tab 23); Zoning Map of the City of Portsmouth, New

Hampshire, prepared by Portsmouth Planning Board (January,

1951) (Maine Lodging, at Tab 24).

7 See, e.g., Maine Department of Transportation (1961)

(Maine Lodging, at Tab 26); Town of Kittery, Maine, Zoning Map

(1960) (Maine Lodging, at Tab 27); Town of Kittery Water

Distribution (July, 1958) (Maine Lodging, at Tab 28); Maine

Department of Transportation (1938) (Maine Lodging, at Tab

29); A Plan of the Town of Kittery by Actual Survey, November,

1794 (Maine Lodging, at Tab 20).

8 See, e.g., Kittery, Maine - N.H., SW/4 York 15’ Quadrangle

by the United States Geological Survey (1956) (Maine Lodging,

at Tab 30); Map of the City of Portsmouth, in Portsmouth

Directory, by W.A. Greenough & Co. (1883) (Maine Lodging, at

Tab 31); Map of the City of Portsmouth, by F.W. Beers (1876)

(Maine Lodging, at Tab 32).

prompted the New Hampshire Governor and his Council

to inquire of their Attorney General:

[I]s there, in your opinion, any question as to

the geographic location of Seavey Island partic-

ularly whether or not it might lie within the

borders of New Hampshire.

On October 15, 1969, New Hampshire Attorney General

George S. Pappagianis rendered the opinion that:

Seavey Island in the Piscataqua River, upon

which the United States navy yard is located, is

territorially a part of the State of Maine...

(Maine Lodging, at Tab 6). Attorney General Pappagianis

found that the Crown in 1740 “rejected New Hampshire's

claim to ‘the whole of the River’ and sustained the report

of [the 1737 Commissioners] that the Piscataqua River

bountary between New Hampshire and what is now

Maine, was ‘the middle of the River.’ ” Id. at 3. The New

Hampshire Attorney General also noted that the Bound-

ary Commission of 1828 correctly related that the divid-

ing line was the middle of the river, concluding that:

There is no doubt that . . . both New Hampshire

and Maine, as states, accepted the boundary line

described in the 1828 Report, specifically, that

the Piscataqua River boundary between New

Hampshire and Maine lies in the middle of the

Piscataqua River.

Id. at 5. The New Hampshire Attorney General went on to

state that not only did the two states formally and offi-

cially accept the 1740 determination as the correct bound-

ary, but “neither state, as a province or a state, has ~

controverted, since 1740, that Seavey Island upon which

the United States Navy Yard is located is a part of the

State of Maine.” Id. Maine ceded jurisdiction of the island

to the United States, and the Attorney General knew “of

no objection raised by the State of New Hampshire . . . to

the underlying premise that Seavey Island is a part of

Maine territorially.” Id.°

On June 6, 1973, New Hampshire filed a motion for

leave to file a complaint in this Court over the boundary

between Maine and New Hampshire. The underlying

dispute was the fishing jurisdictions of the states, with

the area of major contention being the location of the

lateral boundary line from the mouth of the harbor out-

wards to the Isles of Shoals. Thus, whether the boundary

was in the “middle of the river” or on Maine’s mainland,

would have radically altered the division of territory

between the states. In the complaint filed by Attorney

General Warren Rudman, New Hampshire unequivocally

averred:

The description of the common boundary sep-

arating what are now the states of New Hamp-

shire and Maine is contained in an Order in

Council with respect to the Provinces of New

Hampshire and Massachusetts Bay dated April

9, 1740, which provides, insofar as is pertinent

here, ‘[t]hat the Dividing Line shall pass up

thro’ the Mouth of Piscataqua Harbour and up

the Middle of the River... ’

Complaint, at 2-3, New Hampshire v. Maine, Original No.

64.10 New Hampshire correctly stated that the mouth of

9 Subsequently, in 1972, the new Piscataqua River Bridge

was opened. The official joint Program of Events of New

Hampshire and Maine had attached to it a map showing the

boundary in the middle of the river. Program of Events,

Opening of the New Piscataqua River Bridge, November 1, 1972

(Maine Lodging, at Tab 12).

10 We have not reproduced the pleadings for Original No.

64 because they are contained in the Court’s library and New

Hampshire clearly possesses copies.

the Piscataqua River is also known “as Portsmouth Har-

bor in the vicinity of the Mouth of the River.” Id. The

State of Maine opposed, agreeing, however, that the

dividing line was set in 1740. Brief in Opposition to

Motion for Leave to File Complaint, Original No. 64 (July

31, 1973).

In its brief in reply, New Hampshire reiterated that

the “legal basis for the common boundary between Maine

and New Hampshire is the English Order in Council of

April 9, 1740” which read in pertinent part that the

“Dividing Line shail pass up thro’ the mouth of Piscata-

qua Harbour and up the Middle of the River”. Plaintiff's

Reply Brief to Defendant's Brief Opposing Leave to File

Complaint, at 2, Original No. 64. New Hampshire noted

that “the mouth of Portsmouth Harbor (. . . is also the

mouth of the Piscataqua River).” Id.

The Court granted the motion, and appointed as

Special Master Tom C. Clark who encouraged the parties

to work out a resolution. As a result of negotiations, the

states executed a Motion for Entry of Judgment by Con-

sent which confirmed that the boundary line between

New Hampshire and Maine was fixed in the April 9, 1740

Order, and:

The term[ }] ‘middle of the river’ . . . as used in

[that] Order mean|s] the middle of the main

channel of navigation of the Piscataqua

River...

Motion for Entry of Judgment by Consent of Plaintiff and

Defendant, at 2, Original No. 64 (Sept., 1974)."

11 The States’ Motion to Amend this proposed judgment, of

October 21, 1974, did not propose changes relevant to the

| present matter. ‘

eo ee ee eT ee

The Special Master rejected the resolution of the par-

ties, and opined that “middle of the river” meant geo-

graphic middle rather than thalweg. Report of Tom C.

Clark, Special Master, Original No. 64 (October 8, 1975).

Because the geographic middle was more advantageous

to it, New Hampshire abandoned its prior agreement

with Maine, and embraced the Special Master’s approach.

Exceptions and Brief of the Plaintiff, Original No. 64.

New Hampshire did file exceptions claiming that the

Special Master was incorrect as to the location of the

geographic middle at the mouth of the river, because he

had improperly determined the middle from Whaleboat

Island in Maine, rather than from Maine’s mainland, thus

resulting in the “middle” being 350 feet closer to New

Hampshire. Id. at 8-10. New Hampshire, however, reiter-

ated:

The ‘middle of the river,’ . . . constituted the

boundary between the states from and after the

1740 decree, and . . . constitutes the boundary to

this day .. . [T]he present river boundary is the

one established by the 1740 decree .. .

Id. at 5. New Hampshire filed a reply brief, reiterating,

yet again, that the Royal Commission had properly

decided in 1737 that the dividing line was the middle of

the river. Reply Brief of the Plaintiff at 6, Original No. 64.

On June 14, 1976, the Court issued its decision fixing

thalweg as the “middle,” and concluding that the two

states had appropriately located the already existing

boundary. New Hampshire v. State of Maine, 426 U.S. 363

(1976). The Court found that the history concluding with

King George II’s 1740 decree established the boundary in

the area, as expressly agreed to by both states. Id. at 367.

The Court found its approval of the Consent Decree was

a proper exercise of its judicial functions to ensure that

the proposal was well-founded in the evidence and the

law.!2 This Court’s decree stated:

The term[ ] ‘middle of the river’ . . . as used in

the [1740] Order, mean[s] the middle of the main

channel of navigation of the Piscataqua

River. ...

New Hampshire v. Maine, 434 U.S. 1 (1977).

In reaction to continuing political dissatisfaction over

Maine’s income taxation of New Hampshire residents

who work at the Shipyard, New Hampshire Attorney

General Steven R. Merrill prepared a report to the Legis-

lature on October 1, 1986, noting, in pertinent part:

Most of the unfairness perceived by New

Hampshire residents in Maine’s new tax scheme

stems from the fact that many New Hampshire

residents who work in Maine (for example, at the

Portsmouth Naval Shipyard), receive very few

benefits from Maine in return for their tax dol-

lars. :

Report of the Attorney General to the General Court, at

14 (October 1, 1986) (emphasis added) (Maine Lodging, at

Tab 13).}3

New Hampshire has now filed a motion for leave to

file a complaint that the boundary is not in the middle of

12 An effort by New Hampshire’s Legislature to supersede

the Court’s ruling was found to be without basis. Opinion of the

Justices, 373 A.2d 647, 650 (N.H. 1977).

13 In fact, the New Hampshire Attorney General proceeded

to file an unsuccessful suit on behalf of a resident of New

Hampshire who “earned income in Maine at the Portsmouth

Naval Shipyard in Kittery,” challenging the constitutionality of

Maine’s income taxation on due process, privileges and

immunities, and equal protection grounds. Stevens v. State Tax

Assessor, 571 A.2d 1195, 1196 (Me.), cert. denied, 498 U.S. 819

(1990).

the river but rather along Maine’s mainland. Complaint

at 49. New Hampshire, however, concedes in its Com-

plaint that Badgers Island is in Maine, and, in the 1976

litigation, agreed that Fishing and Whaleback Islands are

in Maine - all on Maine’s side of the thalweg.

SUMMARY OF ARGUMENT

Because the boundary between Maine and New

Hampshire has been officially determined to be the mid-

dle of the river on two previous occasions, this Court

should decline New Hampshire’s attempt to relitigate

this matter. The State of Maine should not be put to the

expense of reestablishing this boundary.

In managing its docket, this Court has broad discre-

tion to avoid needless debate and unnecessary expense.

This Court has the discretion to dispose of matters within

its original jurisdiction “at a preliminary stage,” in order

to “as promptly as possible, reach and argue the merits of

the controversy presented.” Ohio v. Kentucky, 410 U.S.

641, 644 (1973). New Hampshire’s present claim is with-

out merit, and its motion should be resolved at this stage.

New Hampshire’s claim falters at the starting gate

because it is based upon a fundamentally faulty premise

- that Maine’s dominion over the Shipyard islands is

founded on prescription. That has never been, and is not

now, the position of Maine. As is clear from the recitation

of undisputed facts above, the boundary was fixed 260

years ago, as repeatedly and fully confirmed by the two

states.

Further, New Hampshire is foreclosed and estopped

from disputing that the boundary is anywhere other than

the middle of the river. It is undisputed that 260 years

ago New Hampshire raised and lost this very claim, and

that New Hampshire has consistently and repeatedly

confirmed the 1740 Decree. To succeed, New Hampshire

would have to disprove, inter alia, the 1737 decision of the

King’s Commissioners, its own appeal therefrom, the

1740 Decree, the 1741 Commission and Instructions to

New Hampshire’s governor, Kittery’s 1794 official gov-

ernmental map, the deeds describing the Shipyard

islands as being in Maine, the 1822 and 1863 cessions of

the islands from Maine, the 1828 New Hampshire Bound-

ary Commissioners Report, the numerous official New

Hampshire and Maine maps, the 1969 Opinion of the

New Hampshire Attorney General, the 1986 report of its

Attorney General, and, most. significantly, its 1970's

pleadings before this Court and the clear language of this

Court’s decision and decree in New Hampshire v. Maine,

426 U.S. 363 (1976) and 434 U.S. 1 (1977). New Hampshire

cannot meet its burden as a matter of law, mandating

summary disposition at this stage of the proceedings

without expenditure of further Court and state resources.

ARGUMENT

I. NEW HAMPSHIRE’S MOTION FOR LEAVE TO

HAVE THIS COURT REESTABLISH THE BOUND-

ARY LINE SHOULD NOT BE GRANTED.

If there is ever a matter that should be disposed of at

this stage of the proceedings, New Hampshire’s present

motion is the one. The Court construes Art. III, § 2, cl. 2,

“to honor [its] original jurisdiction, but to make it obliga-

tory only in appropriate cases.” Illinois v. City of Mil-

waukee, 406 U.S. 91, 93 (1972). The Court’s Original

“jurisdiction is of so delicate and grave a character that it

was not contemplated that it would be exercised save

when the necessity was absolute.” Louisiana v. Texas, 176

U.S. 1, 15 (1900), quoted with approval in Mississippi v.

Louisiana, 506 U.S. 73, 76 (1992) (the Court has discretion

not to accept original cases in actions between two

states); see also Illinois v. City of Milwaukee, 406 U.S. 91, 93

(1972).

The Court has established “prudential and equitable

limitations upon the exercise of [its] original jurisdic-

tion.” California v. Texas, 457 U.S. 164, 168 (1982). In

determining whether and how to exercise its original

jurisdiction, the Court considers, in particular, the seri-

ousness and dignity of the claim.'+ Arizona v. New Mexico,

425 US. at 796; see also Mississippi v. Louisiana, 506 U.S. 73,

76 (1992). The Court will deny a motion where the claim

presented is without merit. See Alabama v. Texas, 347 U.S.

272 (1954).

The requirement of a motion for leave to file a

complaint, and the requirement of a brief in

opposition, permit and enable us to dispose of

14 An additional consideration is the existence of another

forum on the underlying issue. This Court looks with suspicion

at suits where the State is a “nominal party” actually suing on

behalf of individual citizens. Arizona v. New Mexico, 425 U.S. 794

(1976); see also Robert L. Stern, et al., Supreme Court Practice (7th

ed. 1993), at 464-465. Here, there is an appropriate forum to

attack the validity of Maine’s income tax. See Goumas v. State Tax

Assessor, 2000 ME 79, __Me.___ (May 9, 2000) (class member

barred from relitigating boundary issue); Abbott, et al. v. State

Tax Assessor, Nos. 92-553, 93-556, and 93-577 (Me. Superior Ct.,

June 12, 1998) (class action claiming Shipyard was not in Maine,

dismissed with prejudice); see also Stevens v. State Tax Assessor,

571 A.2d 1195 (Me.), cert. denied, 498 U.S. 819 (1990) (New

Hampshire residents, represented by the New Hampshire

Attorney General, filed suit in Maine state courts, challenging

the constitutionality of Maine’s tax statute).

matters at a preliminary stage. Our object in

Original cases is to have the parties, as promptly

as possible, reach and argue the’ merits of the

controversy presented. To this end, where feas-

ible, we dispose of issues that would only serve

to delay adjudication on the merits and need-

lessly add to the expense that the litigants must

bear.

Ohio v. Kentucky, 410 U.S. 641, 644 (1973) (citations omit-

ted); see also California v. United States, 457 U.S. 273, 278

(1982) (decided on motion for judgment on pleadings

without appointment of a Special Master); United States v.

Louisiana, 339 U.S. 699 (1950) (decided on motion for

judgment). This Court can and should dispose of this

matter at this stage.

Il. NEW HAMPSHIRE’S MOTION SHOULD BE

DENIED BECAUSE ITS BASIC PREMISE IS

INCORRECT.

New Hampshire’s motion fails for numerous reasons,

not the least being that it is based upon a false premise.

New Hampshire avers that the matter cannot be sum-

marily adjudicated because “Maine’s claim [is] that a

boundary in the middle of the main channel on the New

Hampshire side of the shipyard islands has been estab-

lished by prescription”. Motion, at 1 & 6; Proposed Com-

plaint, at { 13. Maine has never, and does not now, claim

the boundary was fixed in the middle of the river only by

prescription.

The cornerstone of New Hampshire’s premise is a

reference to the testimony of Maine Attorney General

Ketterer at the Senate Hearings on the effort of the New

Hampshire congressional delegation to exempt from

Maine taxation New Hampshire residents who work at

the Shipyard. Motion, at 1 n.2. Taking his comments out

of context, New Hampshire implies that Attorney Gen-

eral Ketterer claimed the middle of the river boundary

was based only on acquiescence. Id. He did no such thing.

Rather, at the hearing, Mr. Ketterer explained that the

1740 decree defined the boundary as the middle of the

river, as fully confirmed by this Court’s decision in 1976,

and by Maine and New Hampshire continuously and

consistently agreeing on and acquiescing in that bound-

ary.'5 As the fundamental premise of New Hampshire’s

motion to litigate this matter is palpably wrong, it fails.

Ill. NEW HAMPSHIRE’S CLAIM TO A BOUNDARY

LINE ALONG MAINE’S SHORE IS WITHOUT

MERIT AS A MATTER OF LAW.

In any event, New Hampshire’s claim to a boundary

along Maine’s mainland lacks dignity and seriousness

because it was rejected 260 years ago by the Crown, a

result formally confirmed by New Hampshire’s Legisla-

_. ture, Governor and Attorney General, and affirmed by

this Court.

In Ohio v. Kentucky,.410 U.S. at 650, the Court sum-

marily disposed of Ohio’s motion to add a new boundary

claim against Kentucky because the existing pleadings

allowed the resolution of the claim as a matter of law at

the preliminary stage. The Court looked to Ohio’s prior

pleadings as well as prior decisions of the Supreme Court

and lower courts, and pronouncements of Ohio’s Legisla-

ture. The Court flatly rejected Ohio’s contention that the

15 Concerning State Taxation of Individuals Working At Certain

Federal Facilities Straddling State Borders: Hearing on H.R. 1953

Before the Senate Comm. On Governmental Affairs, 105 Cong. 30-33

(1997) (Maine Lodging, at Tab 14).

historical premise of the prior cases was invalid — it was

too late in the day to readdress such issues. Id.

. The present motion provides an even more compel-

ling case for rejection at this Stage of the proceedings.

New Hampshire claims that the boundary is along

Maine’s mainland. New Hampshire took this very posi-

tion in 1737 and 1738, when it appealed the Royal Com-

missioners’ finding that the boundary is the “middle” of

the Piscataqua River. In 1740, King George II rejected

New Hampshire’s appeal. In 1828, the New Hampshire

Legislature and Governor adopted the report of their

Boundary Commissioners confirming that the boundary

line is the “middle” of the Piscataqua River. It was Maine,

not New Hampshire, that ceded jurisdiction over the

Shipyard islands in 1822 and 1863 to the United States

Government.

Official New Hampshire maps have consistently

placed the Shipyard in Maine. (See Maine Lodging, at

Tabs 21-25). In 1969, New Hampshire Attorney General

Pappagianis formally opined that the Shipyard islands

were in Maine. In the 1970’s, New Hampshire Attorney

General Rudman repeatedly confirmed in pleadings

before this Court that the boundary line was the “mid-

dle” of the Piscataqua River. This Court found and

decreed that boundary line was fixed in 1740. New Hamp-

shire v. Maine, 434 US. 1 (1977). In the 1980’s, New

Hampshire Attorney General Merrill in a report to the

Legislature stated that the Shipyard was in Maine. It is

compelling that the Attorneys General of New Hamp-

shire have repeatedly and consistently confirmed that the

middle of the river is the boundary and that the Shipyard

is in Maine. See Illinois v. Kentucky, 500 U.S. 380, 386-87

(1991). The reasoning of Ohio v. Kentucky mandates rejec-

tion of New Hampshire’s claim at this early stage.

This result is fully supported by the policies underly-

ing res judicata. The Court “does not reopen an adjudica-

tion in an original action to reconsider whether initial

factual determinations were correctly made.” Arizona v.

California, 460 U.S. 605, 623-24 (1983); see also Louisiana v.

Mississippi, 516 U.S. 22, 24 (1995) (controlling principles

of application of thalweg established in prior litigation).

“A final judgment on the merits of an action precludes

the parties .. . from relitigating issues that were or could

have been raised in that action.” Federated Dept. Stores,

Inc. v. Moitie, 452 U.S. 394, 398 (1981); see also Rivet v.

Regions Bank of Louisiana, 522 U.S. 470, 476 (1998).

The preclusive effects of a prior adjudication are

collectively referred to by commentators as the doctrine

of res judicata. Migra v. Warren City School District Bd. of

Educ., 465 U.S. 75, 77 n.1 (1984). The bar may be analyzed

further to consist of three concepts: issue preclusion (or

collateral estoppel) which binds the parties on issues of

law or fact litigated and resolved in a prior adjudication

(id.; Baker v. General Motors Corp., 522 U.S. 222, 233 n.5

(1998)); claim preclusion which forecloses “litigation of a

matter that never has been litigated, because of a deter-

mination that it should have been advanced in an earlier

suit” (Migra, 465 U.S. at 77 n.1); and judicial estoppel

which precludes a party from asserting a position in one

legal proceeding which is contrary to a position asserted

in an earlier proceeding (see, e.g., Data General Corp. v.

Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996)). The present

motion is barred by any and all of these principles.

Under issue preclusion, when matters are litigated to

a final judgment and the determination of an issue is

essential to that judgment, “the determination is conclu-

sive in a subsequent action between the parties, whether

on the same or a different claim.” Restatement (Second)

of Judgments, § 27; see also Arizona v. California, 460 U.S.

605, 619 (1983); Montana v. United States, 440 U.S. 147, 153

(1979). New Hampshire has litigated this issue twice.

First, New Hampshire specifically litigated the issue of

the location of this boundary in the 1730's, resulting in

the Crown’s establishing the “middle of the river” bound-

ary in 1740, thus binding the colonies. See Rhode Island v.

Massachusetts, 45 U.S. 591, 634 (1846). Second, in the

1970’s New Hampshire specifically raised, litigated and

had resolved the boundary in the river. The location of

the boundary between Maine and New Hampshire in the

Piscataqua River was essential to the determination of the

location of the lateral marine boundary because one end

point of the marine boundary was, according to New

Hampshire, at the “mouth of the Portsmouth Harbor

(which is also the mouth of the Piscataqua River).” Plain-

tiff’s Reply Brief at 2, Original No. 64. New Hampshire

specifically litigated the issue of the boundary in the

river, arguing that the geographic middle rather than the

thalweg was the proper border. See Exceptions and Brief

of the Plaintiff, Original No. 64. As a matter of law, New

Hampshire is collaterally estopped from reopening that

issue.

New Hampshire asserts that the 1976 decision has no

relevance because it dealt with the area “outside” the

harbor. Motion, at 25 n.59. As New Hampshire itself

argued in the 1970's, the location of the boundary at the

mouth of the river was critical to drawing the line to the

Isles of Shoals. See Exceptions and Brief of the Plaintiff,

supra. If the line began at the shore of Maine’s mainland,

a much larger area would have been included in New

Hampshire's jurisdiction. The location of the river bound-

ary was of great moment and significance in the earlier

litigation between the two states before this Court.

Claim preclusion bars a litigant from raising in sub-

sequent litigation issues on matters that should have been

raised in prior litigation. Migra v. Warren City School

District, 465 U.S. at 77 n.1; 18 Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure, §§ 4406, 4407, 4414 (1981); see also Allen v.

- McCurry, 449 U.S. 90, 95 n.6 (1980). In the 1970's, New

Hampshire presented to this Court a claim regarding the

location of the boundary in the Piscataqua River. New

Hampshire could have put forward the new claims it now

proffers that the boundary was on the Maine shore

which, if successful, would have greatly benefited New

Hampshire. New Hampshire’s failure to raise these

claims, therefore, precludes it, as a matter of law, from :

doing so-now.

New Hampshire suggests that the approval of the

Consent Decree in New Hampshire v. Maine has no preclu-

sive effect because the Court entered the Consent Decree

“without making any findings of its own on the underly-

ing facts or legal principles.” Motion, at 5 n.7, & 25 n.59.

In doing so, New Hampshire ignores its repeated insis-

tence that the “middle of the river” was the boundary,

and that it most strongly argued that the Consent Decree

could not be approved because it was founded on faulty

facts and law. See New Hampshire’s Exceptions and Brief

of the Plaintiff, and Reply Brief, Original No. 64; New

Hampshire v. Maine, 426 U.S. at 369. The Court could not ~

have approved the Consent Decree without fulfilling its

constitutional duty to adjudicate the law and facts; sim-

ply rubber stamping a settlement would violate the Com-

pact Clause. New Hampshire v. Maine, 426 U.S. at 367-69.

The Gourt was unequivocal in deciding the underlying

legal principles of the litigation:

[T]he 1740 decree, not the proposed consent

decree, permanently fixed the boundary

between the States; the proposed consent decree

does nothing except record the States’ agree-

ment upon the location of the ‘Mouth of Piscata-

qua River,’ ‘Middle of the River,’ and ‘Middle of

the Harbour’ within the contemplation of the

1740 decree.

Id. at 367-368, 370. New Hampshire’s year 2000 protesta-

tions notwithstanding, the legal principle defining the

“middle of the river” as the boundary was litigated and

determined to a resolution in 1976.

The doctrine of judicial estoppel is commonly

thought to have originated from this Court’s decision in

Davis v. Wakelee, 156 U.S. 680 (1895);'© see also Ohio v.

Kentucky, 410 U.S. 641 (1973) (relying upon Ohio’s prior

pleadings to reject new theories). The doctrine generally

precludes a party from asserting a position in one legal

proceeding which is contrary to a position it previously

asserted in another. See, e.g., Patriot Cinemas, Inc. v.

General Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987).17

'© See, e.g., Data General Corp. v. Johnson, 78 F.3d 1556, 1565

(Fed. Cir. 1996); U.S. Philips Corp. v. Sears Roebuck & Co., 55 F.3d

592, 596 (Fed. Cir. 1995); In re: Osborn, 24 F.3d 1199, 1207 (10th

Cir. 1994); Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427

(7th Cir. 1993); Fleck v. KD] Sylvan Pools, Inc., 981 F.2d 107, 121

(3rd Cir. 1992).

'7 The doctrine has been recognized by the Courts of

Appeals for the First, Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, Eleventh, and Federal Circuits. Afram

Carriers, Inc. v. Moeykens, 145 F.3d 298, 303 (Sth Cir. 1998);

Hossaini v. Western Missouri Medical Center, 140 F.3d 1140, 1143

(8th Cir. 1998); Ryan Operations G.P. v. Santiam-Midwest Lumber

Co., 81 F.3d 355, 359 (3rd Cir. 1996); Data General Corp. v. Johnson,

78 F.3d 1556, 1565 (Fed. Cir. 1996); DeGuiseppe v. Village of

The majority of jurisdictions hold that judicial estoppel

applies only if the position asserted by the party in the

previous proceeding was accepted by the court. See, e.g.,

Mitchell v. Washingtonville Cent. School Dist., 190 F.3d 1, 6

(2d Cir. 1999); Lydon v. Boston Sand & Gravel Co., 175 F.3d

6, 12-13 (1st Cir. 1999); Edwards v. Aetna Life Ins. Co., 690

F.2d 595, 599 (6th Cir. 1982). Under the minority view, it

does not matter whether the court accepted the earlier

position. Morris v. California, 966 F.2d 448, 453 (9th Cir.

1991), cert. denied, 506 U.S. 831 (1992).

Under either view, judicial estoppel applies here. As

detailed above, in the 1976 case, New Hampshire repeat-

edly asserted that the 1740 Decree established the bound-

ary between Maine and New Hampshire in the

Piscataqua River. This Court adopted New Hampshire’s

assertion that the 1740 Decree “permanently fixed the

Maine-New Hampshire boundary.” New Hampshire v.

Maine, 426 U.S. at 367. New Hampshire is estopped from

contradicting its earlier pleadings.

Bellwooa, 68 F.3d 187, 191 (7th Cir. 1995); Bates v. Long Island R.

Co., 997 F.2d 1028, 1038 (2d Cir. 1993), cert. denied, 510 U.S. 992

(1993); Morris v. California, 966 F.2d 448, 452-53 (9th Cir. 1991),

cert. denied, 506 U.S. 831 (1992); McKinnon v. Blue Cross and Blue

Shield of Alabama, 935 F.2d 1187, 1192 (11th Cir. 1991); Patriot

Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 212 (1st Cir.

1987); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.

1982); Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166-67 (4th Cir.

1982). Only the Courts of Appeals for the District of Columbia

and the Tenth Circuit have failed to recognize judicial estoppel.

United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.

1986); Konstantinidis v. Chen, 626 F.2d 933, 938 (D.C. Cir. 1980).

iV. NEW HAMPSHIRE CANNOT CARRY ITS BUR-

DEN AS A MATTER OF LAW.

New Hampshire has the burden of proving it has

wrested dominion of the islands from Maine, a burden

New Hampshire cannot meet as a matter of law.

At the outset, certain concepts proffered by New

Hampshire must be corrected. New Hampshire suggests

that it is Maine that has the burden to come forward to

show prescriptive rights to islands on Maine’s side of the

river. Motion, at 1. This Court has repeatedly held that

thalweg is the applicable rule regarding river boundaries

between states, unless changed by statute or usage over

SO great a length of time as to require a contrary result.

Louisiana v. Mississippi, 516 U.S. 22, 25 (1995); New Jersey v.

Delaware, 291 U.S. 361, 379 (1934); Iowa v. Illinois, 147 U.S.

1, 10 (1893). Thalweg will be applied to water boundaries

between all states “in the absence of usage or convention

pointing to another.” New Jersey v. Delaware, 291 U.S. at

380; Arkansas v. Tennessee, 246 U.S. 158, 170-71 (1918).18

There is no geographic dispute that the Shipyard

islands are on Maine’s side of the “middle” of the Piscata-

qua River. Thus, the onus is upon New Hampshire, and

not Maine, to come forward with evidence to rebut the

presumption of the thalweg. New Hampshire must show

by a preponderance of evidence “a long and continuous

possession of, and assertion of sovereignty over”: the

Shipyard islands, “as well as [Maine’s] acquiescence in

those acts of possession and jurisdiction.” New Jersey v.

18 The thalweg doctrine has been applied to the Treaty of

1763, which has its roots in the Treaty of 1716. Id.; Louisiana v.

Mississippi, 202 U.S. 1, 41-42 (1906); Iowa v. Illinois, 147 U.S. at 8.

Indeed, the concept of the thalw~¢ has been traced to a period

earlier than the Treaty of Munster in 1648. New Jersey v.

Delaware, 291 U.S. at 382 n.6.

New York, 523 U.S. 767, 786-87 (1998). In view of the

undisputed history in this matter, New Hampshire can-

not, as a matter of law, carry its burden.

First, New Hampshire asserted in the 1730’s that the

boundary was the Maine coastline, and not the “middle

of the river.” New Hampshire lost that argument in 1740.

Second, in 1828, the New Hampshire Legislature and

Governor accepted the report of their own Boundary

Commissioners, which stated that the boundary was the

middle of the river. See Indiana v. Kentucky, 136 U.S. 479,

512-13, 515 (1890) (“It is an admission entitled to great

weight”); see also, Georgia v. South Carolina, 257 U.S. 516,

518-520 (1922); Vermont v. New Hampshire, 289 U.S. 593,

616 (1933); Rhode Island v. Massachusetts, 45 U.S. 591, 635,

638-39 (1846). )

Third, the deeds to the United States in 1800 and 1866

all describe the Shipyard islands as being in Maine, and

are recorded in Maine.

Fourth, Maine ceded jurisdiction of these islands to

the United States in 1822 and 1863. As noted by New

Hampshire Attorney General Pappagianis, New Hamp-

shire did not raise an objection to this cession of jurisdic-

tion by Maine.

Fifth, before becoming a federal enclave, the islands

in the Shipyard were taxed in Maine, and have been

) within Maine’s voting and census districts. Kittery built a

school on Seavey Island.

Sixth, on their official maps, New Hampshire and

Maine have consistently placec the Shipyard in Maine.

See Maine Lodging, at Tabs 20-29.

Seventh, in 1969 New Hampshire’s highest iegal offi-

cer opined unequivocally that the Shipyard was in Maine,

an opinion confirmed by one of his successors in 1986. See

Illinois v. Kentucky, 500 U.S. at 386-87

Eighth, New Hampshire repeatedly pled and argued

before this Court in the 1970’s that the boundary was the

middle of the river, a conclusion confirmed in this

Court’s decision and decree.

Ninth, the only way to walk or drive to the Shipyard

has been through Maine. See United States v. Louisiana, 394

U.S. 11, 66 (1969) (Louisiana Boundary Case) (islands are

considered part of thé mainland if they “are so integrally

related to the mainland that they are realistically parts of

the ‘coast’ ”); see also United States v. Maine, 469 U.S. 504,

516 (1985).

Tenth, New Hampshire concedes that Badger, Fishing

and Whaleback Islands, all on Maine’s side of the thal-

weg, are in Maine.

Finally, Maine’s exercise of sovereignty over the

Shipyard islands is nothing new. New Hampshire has

known of it since at least the 1740 King’s Decree. The

notoriety of the “middle of the river” boundary is exten-

sively documented over the last 260 years in the States’

legislation, reports, opinions, pleadings and official maps.

New Hampshire’s delay in bringing suit for many years

challenging that boundary removes any doubt of Maine’s

rights. See Michigan v. Wisconsin, 270 U.S. 295, 318 (1926);

Indiana v. Kentucky, 136 U.S. at 510; Virginia v. Tennessee,

148 U.S. 503, 523 (1893); Rhode Island v. Massachusetts, 45

U.S. at 639.

In view of this undisputed history, New Hampshire

cannot carry its burden, as a matter of law, that Maine

acquiesced in New Hampshire’s purported dominion

over the Shipyard islands on Maine’s side of the thalweg.

After millions of dollars in expense,'? the result will be as

New Hampshire itself has formally pled:

The “middle of the river,” . . . constituted the

boundary between the states from and after the

1740 decree, and . . . constitutes the boundary to

this day .. . [T]he present river boundaty is the

one established by the 1740 decree .. .

Exceptions and Brief of the Plaintiff New Hampshire, at

5, Original No. 64.

CONCLUSION

For the reasons discussed above, the Motion for

Leave to File should be denied. The Court should sum-

marily dispose of this matter based on the pleadings

presented to it.

Respectfully submitted, -

State of Maine

ANDREW KETTERER

Attorney General

Paut STERN*

Deputy Attorney General

CHRISTOPHER C. TAuB

Assistant Attorney General

Six State House Station

Augusta, Maine 04333-0006

Counsel for Defendant

*Counsel of Record

WittiaMm R. SToKes

Assistant Attorney General

Of Counsel

19 The expense is not of mere academic concern to Maine.

The cost of the Special Master alone in the recent New Jersey v.

New York litigation was $772,000.

No. 130, Original

‘ :

In The

Supreme Court of the United States

STATE OF NEW HAMPSHIRE,

Plaintiff,

STATE OF MAINE,

Defendant.

APPENDICES

ROYAL COMMISSIONERS REPORT (1737)

19 N.H. Provincial Papers 391-92

(Albert Stillman Batchellor ed., 1891)

Hampton Sept' the 2 1737 at a Court of Commiss*s

Appointed by His Majesty’s Commission under the Great

Seal of Great Britain to Settle Adjust & Determine the

Respective Boundaries of the Provinces of the Mass? Bay

& New Hamp’ in New England then & there held. ~

* * +

And as to the Northern Boundary between the Said

Provinces the Court Resolve & Determine that the Divid-

ing Line Shall pass up thro’ the mouth of Piscataqua

Harbour & up the Middle of the River into y¢ River of

Newichwannock (part of which is now called Salmon

Falls) & thro’ the Middle of the Same to the furthest head

thereof & from thence North two Degrees Westerly until

one hundred & twenty Miles be finished from ye Mouth

of Piscataqua Harbour Afores4 or until it meets with His

majestys other Governm's and that the Dividing line shall

part the Isles of Shoals & run thro’ the Middle of the

Harbour between the islands to the sea on the Southerly

side & that the Southwesterly part of the Said Islands

Shall lye in & be Accounted part of the Prov. Of New

Hamp’ & that y* North Easterly part thereof shall lie in &

be Accounted part of the Prov. Of the Mass* Bay & be

held & Enjoyed by the Said Provs Respectively in the

Same manner as they Now do & have heretofore held and

Enjoyd the Same - And the Court do further Adjudge

that ye Cost & Charge arising by taking out the Commis-

sion as aiso of the Commiss's & their officers Viz the two

Clerks Surveyer & Waiter for their Travel® Exps & atten-

dance in the Execution of the Same be Equally born by

the Said Provs

Ph Livingston

Will: Skene

Eras: Jas Philipps

Otho Hamilton

John Gardner

John Potter

George Cornell

NEW HAMPSHIRE EXCEPTIONS (1737)

2 Laws of New Hampshire (1913), at App. 771-72

To the Honourable the Commiss‘* appointed by his

Majt*s Com’iss" under the Great Seale to Settle the

Boundarie Lines between his Majties Province of New

Hampshire, and the Province of Massachusets Bay in

New England.

* * *

3¢ly and as to the Northern Boundary: We object

against that part of the Judgm! that Says: “Through the

Mouth of Piscataqua Harbour and up the Midle of the

River” Because we humbly conceive that m* Gorges Pat-

ent, By which the Mass* Claime doth not convey any

Right to the River. For the whole of that River and the

Jurisdiction thereof hath Ever been in the Possession of

this Province and never Claimed by the Massachusets:

and this Province in order to preserve & Safeg’ard the

same have always had a Castle and maintaind a Garrison

there.

And the Com’ittee Appointed by the Generall

Assembly of this Province to Lay all papers and Evi-

dences Relateing to the Affaire of the Lines before the

Com’iss's are hereby Directed to present this Vote Imme-

diately to the Court of Commiss's for setling the Lines

And pray that the same may be Entred at Large in their

Minits and made part of their Records.

October the 14' 1737 - By Order of the House or

Representatives

James Jeffrey Clet™-Ass™

)

sane = ' . secre ——

NEW HAMPSHIRE APPEAL (1738)

19 N.H. Provincial Papers 565, 596-97

(Albert Stillman Batchellor ed., 1891)

The House of Representatives of

his Majesty’s Province of New

Hampshire, by John Thomlinson

)

) Appellants.

)

Esq.; their Agent, for and on )

)

behalf of His Majesty, and of said

Province, -

The Province of the Massachusets ‘ Respondents.

Bay... \

AND

The Governor, only, of the Province

of the MassaChusets Bay.......... Appellant.

The House of Representatives of the

Province of New Hampshire....... Respondents.

THE CASE of the House of Representatives of the

Province of New Hampshire, depending before the Right

Honourable the Lords of the Committee of His Majesty's

most Honourable Privy-Council, upon two Petitions of

Appeal presented to His Majesty in Council on the 6 of

February 1737, and 20% of July 1738, from the Determina-

tion made on the 2d of September 1737, by His Majesty’s

Commissioners for settling the Boundaries of those Prov-

inces.

* * *

As to the northern Boundary, the Commissioners

Judgment directs the dividing Line to pass up the middle

of Piscataqua River and through the middle of Newichwan-

nock River; but it’s hoped that that is wrong: For, if

recourse be had to the Grant from the Crown of the

Province of Maine, made to Sir Ferdinando Gorges, it will

appear that no part of the Rivers were granted to him, but

only Main Land, between the Rivers of Piscataqua and

Sagadahocke; consequently if he did make any Conveyance

to the Massachusets, (which has been pretended, though

not proved) he could not convey tothe-old Colony of the

Massachusets any part of either of those Rivers which he

himself had no title to. - And upon looking into the New

Charter to the Province of the Massachusets, where the

Lands which made the Province of Maine are granted to

them, it will appear that the same Land is again granted in

the same Terms, as a Portion of wain Land between the said

Rivers. - The Massachusets never possess’d, or claimed,

the River itself, or any part of it, neither under their old or

new Charter; nor, in their Demand filed before the Com-

missioners, did they demand half of any part of the

Rivers: So that it’s humblv hoped this part of the Com-

missioners Judgment, which in consequence adjudges half

of the Rivers to the Massachusets without any Demand by,

or any Title in, the Massachusets will be revers’d.

MASSACHUSETTS’ RESPONSE (1738)

19 N.H. Provincial Papers 601, 627-28

(Albert Stillman Batchellor ed., 1891)

Massachusets Bay and New Hampshire.

The CASE of His Majesty’s Province of the Massa-

chusetts Bay, touching the Dispute between that Province and

His Majesty's Province of New Hampshire, in relation to

their Boundaries on the Settlement thereof made by Commis-

sioners appointed for that Purpose, and on Cross Appeals

therefrom.

* * *

New Hampshire insist, That the \Commissioners have

done wrong in directing the Northern Line to run thro’

the Mouth of Piscataqua, and so up the Middle of the

River; insisting Gorges’s Patent doth not pass any Right to

the River, and that the Whole of that River, and the

Jurisdiction thereof, hath ever been in the Possession of

New Hampshire, and never claimed-by the Massachusetts.

By the express Words of Gorges’s Grant the line must

run thro’ the Mouth of Piscataqua, and up the Middle of

the River, it being impossible to run the Line agreeable to

the see dae of that Grant, without.

And (notwithstanding what New Hampshire have sur-

prisingly insisted on the contrary) Possession and Enjoy-

ment have been agreeable hereto, it being a known Truth,

that from Time immemorial the Province of Maine have

and now do possess and receive Taxes constantly from all

the Islands lying in that River, on that Side towards the

Province of Maine; and the Massachusetts aver in the most

solemn manner, That New Hampshire have never in any

one Instance exercised the Jurisdiction of the whole River,

and that the Province of Maine have constantly possessed

and enjoyed the Islands all along their Side of the River -

the Fact being, That all the Islands in the said River have

been always. considered and taxed as belonging to that

Government they lay nearest to.

For all which amongst many other Reasons, the Province

of the Massachusetts Bay humbly hope, their Lordships will be

of Opinion to vary the Determination of the Commissioners in

the Particulars they have appealed from; but that their Deter-

mination shall Stand and be Affirmed in all other respects; and

that the New Hampshire Appeal therefrom shall be dismissed.

J. Strange.

- R. Hollings.

ORDER OF PRIVY COUNCIL (1739)

19 N.H. Provincial Papers 600

(Albert Stillman Batchellor ed., 1891)

THE CASE

Of his Majesty’s Province of

NEW HAMPSHIRE.

Upon two APPEALS

Relating to the Boundaries between that Province

and the Province of the Massachusetts Bay.

To be heard before the Right Honourable the Lords of

the Committee of his Majesty’s Most Honourable Privy-

Council for hearing APPEALS from the Plantations, at the

Council-Chamber at Whitehall.

Wednesday 5'® March 1739. at 6, in the Evening &

again on 10** March -

Ord4 and adjudged -

That the Northern Boundarys of the Province of the

Massachusets Bay are and be a Similar Curve Line pursu-

ing the Course of Merrimack River at three Miles Dis-

tance on the North side thereof beginning at the Atlantick

Ocean and ending at a Point due North of a Place in the

Plan returned by the Commiss'® called Pantucket Falls

and a Strait Line drawn from thence due West cross the

said River till it meets with His Majestys other Governm's

And it is further Ordered that the rest of the Commiss's

Report or Determination be Affirmed -

[The date of hearing and judgment above given,

appear in manuscript on the original.]

WENTWORTH COMMISSION (1741)

2 Laws of New Hampshire (1913), at App. 600.

Commission of Governor Benning Wentworth

George the Second by the Grace of God of Great

Britain, France and Ireland King Defender of the Faith &

c. To Our Trusty and Wellbeloved Benning Wentworth

Esq’ Greeting Whereas We did by our Letters Patents

under Our Great Seal of Great Britain bearing date at

Westminster the... Day of ... in the .-. . Year of Our

Reign constitute and appoint Jonathan Belcher Esq't Gov-

ernor and Commander in Chief of Our Province of New

Hampshire within Our Dominion of New England in

America, lying and extending itself from three miles

Northward of Merrimack River, or any part thereof unto

the Province of Main, with the South part of the Isles of

Shoals during Our will and Pleasure as by the said recited

Letters Patents, relation being thereunto had may more

fully and at large appear. Now know You that We have

revoked and determined and by these Presents do revoke

and determine the said recited Letters Patents, and every

Clause Article and thing therein contained. And further

know You, that We reposing especial Trust and Confi-

dence in the Prudence, Courage and Loyalty of you the

said Benning Wentworth, out of Our especial Grace, cer-

tain knowledge and meer Motion have thought fit to

constitute and appoint, and by these Presents do consti-

tute and appoint you, the said Benning Wentworth to be

Our Governor and Commander in Chief of Our Province

of New Hampshire within Our Dominion of New Eng-

land in America, bounded on the south Side by a similar

curve Line pursuing the Course of Merrimack River at

10a

three Miles Distance on the North Side thereof, beginning

at the Atlantic Ocean and ending at a Point due North of

a Place called Pantucket-Falls, and by a strait Line drawn

from thence due West cross the said River till it meets

with our other Governments. And bounded on the North

Side by a Line passing up thro the Mouth of Piscataqua

Harbour, and up the middle of the River into the River of

Newichwannock (part of which is now called Salmon

Falls) and thro the middle of the same to the furthest

head thereof, and from thence North, two Degrees West-

erly until one hundred and twenty Miles be finished from

the Mouth of Piscataqua Harbor aforesaid, or until it

meets with Our other Governments; And by a dividing

Line parting the isles of Shoals, and running through the

Middle of the Harbour between the said Islands to the

Sea, on the Southerly side, the Southwesterly part of the

said Islands to be accounted part of our Province of New

Hampshire during Our Will and Pleasure.

+ * *

In Witness &c &c &c -

lla

WENTWORTH INSTRUCTIONS (1741)

2 Laws of New Hampshire (1913), at App. 608, 634-36.

Instructions to Governor Benning Wentworth

Instructions to Benning Wentworth Esq’ His Maj-

esty’s Governor and Commander in Chief in and over the

Province of New Hampshire in New England in America.

* * *

Boundaries settled

85. Whereas Disputes & Controversies have, for

many Years subsisted between his Majesty’s loving Sub-

jects of the Province of the Massachusets Bay and New

Hampshire in New England, in regard to the Boundaries

between the said Provinces:

+ * *

And as to the Northern Boundary between the said

Provinces, the Court resolve & determine that the divid-

ing Line shall pass up thro the Mouth of Piscataqua

Harbour and up the middle of the River into the River of

Newichwannock (part of which is now called Salmon

Falls) and thro the middle of the same to the furthest

Head thereof.

t + *

It is therefore His Majesty’s Will and Pleasure, and

you are hereby required & enjoined under Pain of His

Majesty’s highest Displeasure and of being removed from

your Government, to take especial Care that His maj-

esty’s Commands in this Behalf be executed in the most

effectual & expeditious Manner, to the End that His Maj-

esty’s good Intentions for promoting the Peace & Quiet of

12a

the said Provinces, nay not be frustrated or delayed: And

You are likewise hereby directed to communicate this

Instruction to the Council and Assembly of his Majesty’s

said Province of New Hampshire, & to cause the same to

be entred in the Council Books thereof.

* * *

13a

Maine Private and Special Laws, 1825, c. 337

An act for the preservation of fish in Piscataqua River.

Sect. 1. Be it enacted by the Senate and House of Repre-

sentatives, in Legislature assembled, That, from and after the

passing of this act, if any person or persons shall fish in

the Piscataqua river, or any of the branches thereof,

within this State, below the Portsmouth Bridge, with a

seine or net more than twelve rods in length; or if any

person or persons shall fish above said bridge, between

said bridge and the Thompson's Pond Brook, so called, in

the town of Elliot, with any seine whatever, for each and

every such offence, he or they jrall forfeit the sum of ten

dollars, to be recovered in an action of debt, in any court

of competent jurisdiction to try the same, one half to the

person prosecuting therefor, and one half to the poor of

the town, in which the offence shall have been commit-

ted.

Sect. 2. Be it further enacted, That if any person or

persons, shall fish with any trap or set line, so called, in

said river, or any of the branches thereof, within this

State, he shall forfeit the sum of six dollars, and all the

said lines and hooks of every description; to be recovered

by complaint, before any Justice of the Peace, for the

county of York, one half to the complainant, and one half

to the poor of the town in which such offence shall have

been committed.

Sect. 3. Be it further enacted, That it shall be the duty

of the selectmen of the towns of Kittery and Elliott, to

appoint annually, two or more fish wardens in each of

said towns, who shall each receive a certificate of their

appointment, and who shall be severally sworn to the

14a

faithful discharge of their duty; and it shall be the duty of

such wardens to see that the provisions of this act are

carried into effect.

Sect. 4. Be it further enacted, That the term, during

which the wardens first appointed under this act, shall

hold their respective offices, shall be from the time of

their appointment to ihe first Monday of May next; and

all laws heretofore made respecting the fisheries in said

river, are hereby repealed: Provided however, That this

provision shall not be construed, so as to extend to “An

Act for the preservation of alewives and other fish in

Salmon Falls River,” passed February ninth, in the year

one thousand eight hundred and twenty four.

[This Act passed February 23, 1825]

15a

Maine Private and Special Laws, 1921, c. 33

An Act Relating to the Catching of Smelts

in the Piscataqua River.

Be it enacted by the People of the State of Maine, as follows:

Smelts not to be taken in Piscataqua River with

seines and nets; weirs permitted for taking smelts for

home consumption. No person shall use seines or nets of

any description to catch smelts in the Piscataqua River or

its tributaries; provided, however, that nothing in this act

shall forbid any one from maintaining a weir to catch

smelts for his own personal use.

Approved March 10, 1921.

l6a

Maine Private and Special Laws, 1874, c. 573

An act to prevent the destruction of smelts

in the Piscataqua river and its tributaries.

Be it enacted by the Senate and House of Representatives

in Legislature assembled, as follows:

SECT. 1. All persons are hereby prohibited from

taking any smelts from the Piscataqua river or its tribu-

taries, in the county of York, by means of weirs, drag

nets, traps or other contrivance than hook and line.

SECT. 2. Whoever shall violate the provisions of

this act, shall, on conviction of the same before any trial

justice of said county of York, be punished by a fine of

not less than ten dollars nor more than twenty dollars, or

imprisonment in the county jail for a term not exceeding

ten days.

SECT. 3. All fines under the second section of this

act shall be divided as follows: one half to the complain-

ant, and one half to the use of the state.

Approved February 28, 1874.

17a

Maine Private and Special Laws, 1866, c. 136

An act to prevent the catching of trout and pickerel

in the Piscataqua river and its tributaries.

Be it enacted by the Senate and House of Representatives

in Legislature assembled, as follows:

If any person in the months of March, April or May

shall catch or kill any pickerel in so much of the Piscata-

qua river, or its tributaries, as are within the limits of this

state, or in the months of October or November shall, in

any of said waters, catch or kill any trout, he shall be

punished by a fine of ten dollars for each fish so caught

or killed, to be recovered in an action of debt in the name

and to the use of the county, or in the name of any person

suing therefor, one half of said fines to be paid to the

person prosecuting, the other half to the county where

the offence is committed.

Approved February 20, 1866.

18a

Maine Private and Special Laws, 1861, c. 72

An act relating to pilots in Piscataqua river and harbor.

Be it enacted by the Senate and House of Representatives

in Legislature assembled, as follows:

SECT.1. If any pilot shall speak and offer service to

any vessel except coasting and fishing vessels of the

United States of one hundred and fifty registered or

enrolled tons and under, bound into the river and harbor

of the Piscataqua, south of a line drawn east and west

from Whales’ Back Light House, or shall offer service to

any vessel bound out of the river or harbor of the Piscata-

qua, except coasting and fishing vessels of the United

States of like tonnage as above named, he shall be enti-

tled to one half of the fees specified in his warrant or

commission in case the master or owner declines to

employ him, unless said master or owner has on board of

his vessel at the time of such offer a branch pilot duly

appointed and commissioned by the governor and coun-

cil of this state; and on refusal of payment may sue for

and recover the same; and all vessels requiring pilots into

and out of the harber of the Piscataqua shall take branch

pilots, if such offer their services to inward bound vessels

south of said line, and to outward beund vessels before

they leave the wharf or mooring.

SECT. 2. All acts and parts of acts inconsistent here-

with are hereby repealed.

SECT. 3. This act takes effect when approved by the

governor.

[Approved March 13, 1861]

19a

Massachusetts Resolves, 1794, c. 101

Resolve requiring the inhabitants of the several towns

and districts in the Commonwealth, to cause to be taken

by their selectmen, or some other suitable persons, accu-

rate plans of their respective towns, and to lodge the

same in the secretary's office.

Whereas an accurate Map of this Commonwealth will

tend to facilitate & promote such information and

improvements as will be favourable to its growth and

prosperity, and will otherwise be highly useful and

important on many public and private occasions: — For

the procurement of the materials necessary for the accom-

plishment of an object so desirable, & by which the

reputation & interest of the Commonwealth will be

advanced: -

Resolved, that the Inhabitants of the several Towns

and Districts in the Commonwealth be and they hereby

are required to take or cause to be taken by their Select-

men or some other suitable person or persons appointed

for that purpose accurate plans of their respective Towns

or Districts, upon a scale of two hundred rods to an Inch,

and upon a survey hereafter actually to be made or that

has actually been made within seven years next preceed-

ing this time - and the same plans to lodge in the Secre-

tary’s Office, free of expence to the Commonwealth, on or

before the first day of June in the year 1795.

And be it further resolved, that on each of said plans

the place where any other Town of District line meets or

joins the line or any Town or District respectively, the

names and course of Rivers, the Bridges over rivers, the

20a

course of County Roads, the situation of Houses for Pub-

lic Worship, Court Houses, the reputed or actually known

and admeasured distance of the centre of the Town or

District from the shire-town of the County, and from the

Metropolis of the Commonwealth, in the several roads

usually traveled the length, and the course by the mag-

netic needle of the boundary lines of the Town or District,

the scale on which such plans shall be taken, & the time

when the actual survey was or shall have been made,

shall be inserted, specified, delineated or described: And

any lands belonging to the Commonwealth within the

limits of any Town or District or adjoining thereto in any

place unincorperated shall be particularly noted; and the

reputed or known quantity of such land specified.

And to prevent as much as may be any errors which

might arise by having the lines between Towns run at

different Times by Surveyors of different adjoining Towns

Be it further resolved that it shall be the duty of the

person or persons appointed for the purposes aforesaid

by the most ancient Town or District adjoining to any

other Town of District to give notice in writing unto the

Selectmen of such adjoining Town of District of the time

and place of meeting for running such line or lines ten

days beforehand; and it shall be the duty of the Town or

District whose Selectmen shall be so notified to appoint

and require some suitable person or persons to at‘end on

the behalf of such Town of District, with the person or

persons so notifying, for the purpose of running such line

or lines - And where the line or lines between adjoining

Towns or between adjoining Towns & Districts, is or are

unsettled & in dispute, in such Cases, there shall be

2la

specified on the respective plans of such Towns and

Districts the several lines in contest, stating accurately &

particularly the difference of such claimed lines of

boundary & division, in their distance course & bearing

from each other.

And be it further resolved that the Inhabitants of any of

the Towns or Districts aforesaid who shall neglect to take

& lodge in the Secretary's Office the plans required as

aforesaid within the time above limited therefor, shall

forfeit and pay to the use of the Commonwealth the sum

of forty pounds; which sum shall be added to such delin-

quent Town's or District’s proportion of the State Tax

which may be granted next after the first day of June in

the year 1795 aforesaid -

And it is further resolved that the Committee for the

sale of the eastern lands be and hereby are directed to

procure and furnish plans of Townships not incorporated

& such other documents as may be necessary to form and

complete a Map of the five eastern Counties commonly

called the District of Maine; And the said Committee are

hereby also authorized and directed to require of the

Grantees & Claimants of any tracts of land in the same

District to exhibit to them plans of their respective grants

and claims for the purpose aforesaid.

And be it further resolved that there be inserted delin-

eated described or specified in the several plans aforesaid

the breadth of rivers, the number and reputed magnitude

of ponds, the falls of water, mountains, manufactories,

Mills Mines ard Minerals & of what sort, Iron works &

Furnaces situated in the said several Towns & Districts

respectively.

22a

And the Secretary of this Commonwealth is hereby

directed to cause Copies of this Resolution to be for-

warded as soon as may be to the Selectmen of the several

Towns and Districts from which the plans aforesaid are

above required and also to cause the same to be pub-

lished in the several Newspapers in this Commonwealth.

And the Selectmen of such Towns & Districts respec-

tively are hereby required immediately after the receipt

of such Copies, to cause the Inhabitants of their several

Towns & Districts to assemble & meet for the purpose of

carrying into effect the foregoing resolution.

June 6, 1794

23a

Maine Private and Special Laws, 1822, c. 112

AN ACT to cede to the United States the Jurisdiction

of Dennet’s Island, (so called) in Piscataqua River.

Be it enacted by the Senate and House of Representatives, in

Legislature assembled, That there be, and hereby is ceded to

the United States the jurisdiction over Dennet’s Island,

(so called) on the East side of Piscataqua River, within the

State of Maine, now belonging to the United States, and

occupied as a Navy Yard: Provided, however, That this

State shall have concurrent Jurisdiction with the United

States, over said Island, so far as that all civil and crimi-

nal processes, issued under the authority of this State,

may be executed on any part of said Island, or in any

building erected on the same; and that all persons resid-

ing thereon, not being in the military or marine service of

the United States, shall be holden to do military duty in

the militia of this State, in the same way and manner as if

the jurisdiction had not been ceded as aforesaid.

[This Act passed February 2, 1822.)

24a

Maine Resolves, 1826, c. 29

Resolve respecting a Bridge between Kittery and the

Navy Yard Island in Piscataqua River

Resolved, That, for facilitating the intercourse between the

Island occupied by the United States as a Navy Yard, and

for other purposes, in Piscataqua river, and the mainland

on the eastern side of said river in Kittery, in this State,

the consent of this State be, and hereby is granted for the

erection, by the United States, at any convenient points

between said Island and the main land aforesaid, of such

a bridge as, by the Government of said United States,

may be deemed necessary or proper for the purposes

aforesaid: Provided, however, That the road or passage way

from said bridge to the county road in said Kittery, shall

be made and opened at the expense of the said United

States.

[Approved by the Governor, February 22, 1826]

25a

1807 New Hampshire Laws, c. 57

An Act In Addition To An Act Entitled “An Act For

Ceding To The United States Of America One Acre And

Three Quarters Of An Acre Of Land, With The Fort &

Lighthouse Thereon, Situate In New Castle,” Passed Feby

14TH, 1791.

[Approved June 18, 1807. Original Acts, vol. 19, p.

103; secorded Acts, vol. 17, p. 48. Session Laws, June

1807, p. 44. Laws, 1815 ed., p.43; id., 1830 ed., p.40 The act

referred to is printed in Laws of New Hampshire, vol.5,

p. 685.]

Whereas there remains about One Acre & one half of

an Acre of Land, belonging to this State, situate in said

New Castle, adjoining the before mentioned land, which

would be useful to and greatly accommodate the United

States -

Therefore Be it Enacted by the Senate and House of

Representatives in General Court convened, That the

remainder of the Land at said New Castle, belonging to

this State, being about one acre & one half of an Acre,

more or less, be and hereby is Ceded to and Vested in the

United States of America, with all the Jurisdiction

thereof, which is not reserved by this Act -

Provided Nevertheless, and be it further enacted,

That all writs, warrants executions and all other pro-

cesses of every kind, both civil and criminal issuing

under the authority of this State, or any officer thereof,

may be served and executed on any part of said Land, or

in any Fort or other building which now is or hereafter

may be erected upon said Premises, in the same way and

manner as though this Act had not been passed-and

26a

Provided also that if the United States shall at any time

make any compensation to any one of the United States

for the Cession of and Land which hath been or hereafter

may be made to the United States, the like compensation

be made to this State for the Land ceded by this Act in

Proportion to the Value thereof -

27a

1791 New Hampshire Laws, c. 71

An Act For Ceding To The United States Of America One

Acre And Three Quarters Of An Acre Of Land With The

Fort And Light House Thereon Situate In New Castle -

[Passed February 14, 1791. Original Acts, vol. 12, p.93;

recorded Acts, vol. 6, p. 321. Laws, 1792 ed., p. 374. See

additional act of June 18, 1807.]

Be it enacted by the Senate and House of Representa-

tives in General Court convened that one acre and three

quarters of an acre of a certain neck of Land situate in

New Castle on great Island at the entrance of Piscataqua

River commonly called Fort point to begin at the north-

easterly extremity of said point and to run southwesterly

carrying the whole width of said neck of land until a line

crossing said neck south forty degrees east shall complete

the aforesaid acre and three of an acre of Land together

with the Fort and light house thereon be and hereby are

ceded to and vested in the United States of America with

all the Jurisdiction thereof which is not reserved by this

Act -

Provided nevertheless and be it further enacted that

if the United States shall at any time neglect to keep

lighted and in repair said light house the Cession

aforesaid shall in that case be utterly void and of no

effect-Provided also that all writs, warrants, executions

and all other processes of every kind both civil and

criminal issuing under the authority of this State or any

officer thereof may be served and executed on any part of

said land or in said Fort or any other building which now

is or hereafter may be erected upon the premises

aforesaid in the same way and manner as though this act

28a

had not been passed - And provided further that if the

United States shall at any time make any compensation to

any one of the United States for the cession of any light

house, fort or land which hath been or hereafter may be

made to the United States the like compensation be made

to this State for the land, fort and light house by this Act

ceded in proportion to their respective values -

29a

1820 New Hampshire Laws, c. 15

An Act For Ceding To The United States

One Of The Isles Of Shoals.

[Approved June, 1820. Original Acts, vol. 26, p. 15;

recorded Acts, vol. 21, p. 456. Session Laws, 1815-21, p.

267. Laws, 1824 ed., p. 205; id., 1830 ed., p. 40.]

Sec. 1. Be it enacted by the Senate and House of

Representatives in General Court convened, That a cer-

tain rock or Island known by the name of White Island,

being the southernmost of the Isles of Shoals off the

entrance of Piscataqua River, and containing one acre

more or less, be and the same hereby is ceded and vested

in the United States, with all the jurisdiction thereof

which is not reserved by this act.

Sec. 2. Provided nevertheless, and be it further

enacted, that if the United States shall fail to erect and

maintain a light-house on the said Island, the cession

aforesaid shall in that case be utterly void and of no

effect. Provided also, That all writs, warrants, executions

and all other processes of every kind, both civil and

criminal issuing under the authority of this State, or any

officer thereof, may be served and executed on any part

of said Island, or any building which may be erected

thereon, in the same way and manner as though this act

had not been passed.

30a

Maine Private and Special Laws, 1827, c. 482

AN ACT ceding to the United States the jurisdiction

of certain lands near the mouth of Piscataqua River

BE it enacted by the Senate and House of Representatives,

in Legislature assembled, That there be, and hereby is ceded

to the United States, the jurisdiction of the ledge of rocks,

called Whale’s Back; and also the ledge of rocks called

Wood Island, containing about acres, both being situated

near the mouth of Piscataqua river, for the purpose of

erecting a Light House and any other buildings thereon,

which may be found expedient by the Government of the

United States: Provided however, That this State shall have

concurrent jurisdiction with the United States in and over

said territory, hereby ceded, for the purpose of executing

and serving all civil and criminal process under the

authority thereof.

[Approved by the Governor, Feb. 23, 1827.)

3la

9 New Hampshire Laws 701 (1827)

1827, June 30.

Resolved by the Senate and House of Representatives

in General Court convened, That his Excellency the Gov-

ernor by and with the advice of the Council be, and is,

hereby authorized to appoint two Commissioners on the

part of this State, who shall have power under the direc-

tion of the Governor, and in conjunction with commis-

sioners to be appointed on the part of the State of Maine

to ascertain, survey, mark and renew the dividing line

between this State and the State of Maine, in its whole

extent, and to erect thereon suitable monuments to desig-

nate it as the boundary line of said States.

And be it further Resolved, That his Excellency the

Governor of this State be requested to transmit a copy of

this Resolution to the Governor of the State of Maine, and

take such other measures as may be necessary to carry

the same into immediate effect.

[Acts, vol. 24, p. 409]

32a

9 New Hampshire Laws 943 (1828)

1828, December 16.

Resolved by the Senate and House of Representatives

in General Court convened, That the report of the Com-

missioners, who were appointed on the part of the State

of New Hampshire, pursuant to a Resolve of the Legisla-

ture, passed June 30, 1827, and who have, in conjunction

with Commissioners appointed on the part of the State of

Maine, ascertained, surveyed, marked and renewed the

dividing line between this State and the State of Maine, as

set forth in said Report, together with the surveys and

accompanying documents, be deposited on file in the

Secretary’s office of this State. And that the dividing line

as surveyed, marked out and designated by said Com-

missioners, be, and the same is hereby approved of, and

shall, from and after the passage of this Resolution, be

recognized as the true boundary line between the two

States. Providing the State of Maine do approve of, and

recognize the same.

[Acts, vol. 26, p. 595]

33a

Maine Resolves, 1829, c. 30

Resolve relating to a Report of Commissioners

establishing the Boundary Line between Maine

and New Hampshire.

Approved February 28, 1829

Resolved, That the Governor be, and he hereby is

requested to issue his Proclamation, making known to the

citizens of this State the situation and course of the

Boundary Line aforesaid, as ascertained and established

by the Commissioners, appointed pursuant to a Resolve

of thig State, passed on the twentieth day of January, in

the year of our Lord one thousand eight hundred and

twenty seven, in conjunction with certain commissioners

appointed by the State of New-Hampshire.

34a

Maine Private and Special Laws, 1854, c. 275

An act to incorporate the

Seavey’s Island Bridge Company.

Be it enacted by the Senate and House of Representatives

in Legislature assembled, as follows:

SECT. 1. Levi Prior, John Prior, Waterman K. Prior,

William Tarlton, James Trefethen, Daniel Trefethen, Sam-

uel C. Dixon, Daniel J. Prior, Cushman Prior, Charles A.

Neal and Thomas H. Abrams, their associates, successors

and assigns, are hereby created a body politic and corpo-

rate, by the name of the Seavey’s Island Bridge Company,

with power by that name to sue and be sued, to have a

common seal and change the same at pleasure; to ordain,

establish and put in execution any by-laws and regula-

tions for the management of their affairs, not repugnant

to the laws of this state.

SECT. 2. The said corporation shall have full power

and right to build and maintain a free bridge forever,

from Seavey’s Island over tide waters, to the island on

which is located the United States navy yard, for the

convenience of the inhabitants residing on said Seavey’s

Island, and also for persons who may find it necessary to

go there on business.

SECT. 3. Said corporation shall be liable for all dam-

ages to travelers happening through any known defect in

said bridge in the same way and manner that towns are

liable for defects in public highways and bridges.

SECT. 4. In case the majority of the persons named

in this act should not agree and determine upon the

location of said bridge, or the amount of damages the

35a

land owners may sustain in consequence of said location,

with said owners, it shall be the duty of the selectmen of

the town of Kittery to determine the location of said

bridge, or land damages, or both, whenever desired so to

do, in writing, by the majority aforesaid.

SECT. 5. If any person ox persons shall willfully and

maliciously take up, remove or in any way injure any part

of said bridge, or shall be known to aid or assist in any

such trespass, they shall forfeit and pay to the said com-

pany or their agent double such damages as the said

company or their agent shall, to the justice or the court

and jury before whom the trial shall be, cause to appear

that they have sustained by means of the said trespass.

[Approved March 29, 1854.]

36a

Maine Private and Special Laws, 1863, c. 198

An act ceding jurisdiction over certain lands on Seavey

island in the town of Kittery to the United States.

Be it enacted by the Senate and House of Representatives

in Legislature assembled, as follows:

Section 1. Jurisdiction is hereby granted and ceded

to the United States of America over such portion of

Seavey island in the town of Kittery, as may be purchased

for the purpose of using the same as a part of the navy

yard located in that town, and consent is hereby given to

the purchase of the same by the United States; provided

always that this state shall retain and does retain concur-

rent jurisdiction with the United States in and over all

lands hereby ceded so far as that all civil and all criminal

processes issuing under the authority of this state may be

executed on said lands and in any buildings thereon, or

to be erected thereon in the same way and manner as if

jurisdiction had not been granted as aforesaid. And pro-

vided that the exclusive jurisdiction shall revert to and

revest in the State of Maine whenever the said lands so

ceded shall cease to be used by the United Siates for the

purpose hereinbefore declared.

Section 2. This act shall take effect from and after

the purchase of any portion of said Seavey island by the

United States; the evidence of such purchase being duly

recorded in the registry of deeds for the county of York.

Approved January 10, 1863.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.