Full opinion text
LEAHY, District Judge. The United States condemned more than 1000 acres of land near Cape Henlopen in Sussex County, Delaware, by the Hon. Henry L. Stimson, Secretary of War, filing a declaration of taking, under the authority of 46 Stat. 1421, 40 U.S.C.A. § 258a and Acts amendatory thereof, 26 Stat. 316, 40 Stat. 241, 40 Stat. 518, 50 U.S.C.A. § 171 and the Act of Congress approved September 9, 1940, Public No. 781 — 76th Cong. 54 Stat. 872. Parties claimant appeared and filed answers. The government deposited $43,118 in the registry of the court as consideration for the land taken. All respondents insist the final award should be, at least, $100,000. After several pretrial conferences the parties agreed that, first, title to the condemned land should be determined and, second, later ordinary procedures should be followed to ascertain the adequacy of the price proffered by the condemner. C. A. Southerland, Esq., of the Delaware bar, was then appointed Special Master, by agreement of all parties, to ascertain the persons who at the time of the taking owned or had any interest in the condemned lands. Claimants, (a) The first of the parties claimant are the Levy Court of. Sussex County on the one hand, and the County Treasurer and Receiver of Taxes of Sussex County on the other. Each assert, “that Sussex County, Delaware, is the owner in fee simple of the lands” condemned. The Special Master confessed he was unable to grasp the legal — or factual —basis upon which this claim was advanced. In Delaware, the three counties (New Castle, Kent and Sussex) as such do not hold legal title to real estate within their boundaries without legislative permission. Various agencies of the State have sometimes been vested with legal title to land situate within a county, e.g., the New Castle County Workhouse (the jail) is situated on land the title to which is vested in a Board of Trustees. Revised Code of 1935, sec. 4142. While there are statutes which define the boundaries of the three counties, there is no intimation that they are to be considered as corporations. Id., c. 2, secs. 7 and 8. The Special Master properly rejected the claim filed by these parties as they had no interest in the lands in suit. (b) H. H. Ward, Jr., Esq., Trustee ad litem, asserts: “ * * * the Inhabitants of the Town of Lewes and County of Sussex in the State of Delaware are entitled to certain Rights of Common in Cape Henlopen under or by virtue of a grant by the Court held at Lewes for the County of Sussex and by the King’s Authority and by Commission from William Penn, Proprietary and Governor of Pennsylvania and Territories thereunto belonging on the 9th, 10th and 11th days of the 11th month (January) 1682.” Admitting a fee in the state, the trustee asserts that it is subject to a perpetual right of common as fixed in the Warner Grant, for the benefit of inhabitants of the Town of Lewes and the County of Sussex. Both the Attorney General for the State and the trustee ad litem argue that the various acts of the legislature (see footnote 22 infra) which attempt to place control over the lands in suit in trustees or the Commissioners of the Town of Lewes, thereby limiting the exercise of the rights of common of all the inhabitants of Sussex County, are “encroachments and inoperative”. This argument was rejected by the Special Master, together with the Lrustee’s subsidiary contentions. The treatment of these matters will appear later. (c) The State of Delaware asserts the lands in condemnation “are the property of the State of Delaware”. With the exception of the claim just discussed, all claimants .concede the fee to the condemned lands was in the State as sovereign. The State joins, however, with the trustee ad litem that the fee title is in the State, subject to a right of common as defined in the Warner Grant. For present purposes, then, the Special Master is affirmed in finding the fee in the State of Delaware. (d) The Town of Lewes (actually the Commissioners of Lewes, a municipal corporation) first asserted title in fee but later abandoned this position, admitting fee simple title in the State of Delaware, and contends that, by various acts of the legislature, the Town has exclusive jurisdiction over all the lands in question, including the right to sell sand and gravel, and enter into leases with respect to the condemned lands, and use the revenues therefrom for corporate purposes of the Town. Its contentions are: (1) The Warner Grant for the use of the inhabitants of the Town of Lewes and the County of Sussex is by way of “exception” or “reservation” and, since a person not a party to a deed can not take anything by it (except a remainder) the reservation is void, for it creates no estate known to the law; (2) as the grant is'to an indefinite and fluctuating class, it is void, not having been made by the sovereign, because, through William Penn, via his Court, it is not a Crown grant; and, finally, (3) any rights created by the. Warner Grant have been lost by adverse possession. Six lessees of the Town of Lewes — Cape Henlopen Surf Club, Sussex Sand Company, Lewes Sand Company, Delaware corporations, Rehoboth Trust Company, executor of the Estate of William T. Tappan, deceased, and Martin Black and Harry R. Draper — in addition to Mark T. McKee, who claims an option granted to him by Lewes Sand Company of one of the leases of that company from the Town of Lewes — allege fee simple title in the State of Delaware, but contend that, on the day of the government taking, their valid leaseholds were and are now compensatory in this action. These leases cover defined portions of the Cape lands, with various tenures, and for the purposes, among others, of removing sand and gravel. The leases stand or fall on the Town’s claim. The trustee ad litem alone has filed exceptions to the Special Master’s Report. These exceptions will be treated herein. The parties rest on title records, factual data and written and map exhibits contained in a MS. treatise entitled “Cape Henlopen”, written by Houston Wilson, Esq., of the Delaware bar. The Special Master has denominated this writing as “Exhibit 2” or, sometimes, as “Wilson’s Report”. It consists of ten parts embodied in eleven typescript pamphlets. The contending parties filed cross-claims to dismiss their adversaries’ answers for failure to state a claim. The Town of Lewes moved to strike various portions of the Wilson Report, challenging certain expressions of opinion, interpretations and inferences drawn from the ancient records relied on by the author. The .Special Master refused to consider such expressions as evidence of probative value. Blit, the existence or nonexistence of title records and other documents referred to by Mr. Wilson (as well as the textual accuracy of written and map exhibits) were unchallenged by the parties and accordingly accepted by the Special Master. 1. Cape Henlopen. The public use for which the lauds were taken was the establishment of harbor defenses of Delaware Bay, near Cape Henlopen, and to provide sites for seacoast batteries and related military purposes. For obvious reasons, it is highly inappropriate to describe further, in detail, the land taken or the use to which it is to be put by the armed forces of the United States of America. 2. The basic title to the land and waters of the State of Delaware rests on two deeds of feoffment from James, Duke of York, to William Penn, each date'd August 24, 1682. One deed conveys a tract of land lying within a circle of twelve miles from the Town of New Castle; the other includes a tract of land extending south from New Castle. These deeds contained covenants for further assurance. On March 22, 1682/3 letters patent of Charles II under the Great Seal of England were issued to the Duke of York for the same lands and waters described in the former deeds of feoffment from York to William Penn. “There is no doubt that these letters were delivered to the Duke” ; later delivered to Penn; and were never thereafter surrendered or abandoned. The letters gave “powers of government and other proprietary and seignorial rights” to York “along with ownership in fee.” Whether Penn enjoyed governmental powers under the deeds of feoffment or they passed to him by estoppel from York is immaterial since later letters patent of August 20, 1694, from the Crown to Penn confirmed his title to such powers. In reviewing Penn’s struggles to maintain his government, Mr. Justice Cardozo once wrote: “There were, it is true, intermittent challenges both of the proprietary interest of Penn and his successors and of their governmental powers. As to these last, the most serious challenge was one that followed the accession of William and Mary in February, 1689, after the deposition of James II as the result of the ‘Glorious Revolution.’ Penn, who had been a favorite of royalty during the reign of James, was for a time under a cloud. In 1692, he was removed from the Government of Pennsylvania, including the New Castle county, and his place given to a successor. But he was soon restored to power, and, it seems, to the royal confidence. In August, 1694, there was an Order in Council by which he was reestablished in his former office. In the same month letters patent issued under the Great Seal of State restoring him in the most formal way to the administration of the government of the ‘said province and territories’, and revoking any other appointment inconsistent therewith. “This patent, it would seem, had settled for all time the validity of his exercise of governmental powers, however much it may have left in doubt his title to the land. Mutterings of uncertainty, however, continued to be heard as to his rights and powers in both aspects. In 1701, he had correspondence with the Board of Trade which showed itself restless on the subject of his ownership. At intervals during the reign of Anne and afterwards he was required to sign a declaration that the approval by the Crown of his governmental acts, such as the appointment of a deputy, was not to be construed in any manner to diminish ‘her Majesty’s claim of right to the said three lower counties.’ But the claims of right thus reserved were never admitted by Penn to be valid, nor were they ever pressed by the Crown. Not even the petitions of jealous rivals, egging the Crown on, were of avail to wake it into action. Thus, in 1717, the Earl of Sutherland applied for a grant of the three Lower Counties, asserting that he was ready to prove that the title was in the Crown. The Attorney General issued a summons to Penn to be present at a hearing, but Penn, who had suffered a stroke of apoplexy, was unable to appear, and the proceeding was allowed to lapse. A like fate awaited similar petitions submitted in later years. Reservations of the royal claims might continue to be made by cautious scriveners. By the time of the Revolution they were little more than pious formulas. A title, good of record when reinforced by the ¡talent, of 1683, had been confirmed by a century of undisturbed possession. When the Treaty of Paris was signed in 1783, the land within the circle was part of the territory of Delaware, and the title was in ihe Penns or in persous claiming under them.” Returning to Penn’s early efforts to organize a government for Delaware, we find he reorganized or recommissioned the Court “for the County of Whorekill alias Deale” (now Sussex County) by a commission issued November 25, 1682. Penn issued a directive which stated: “First, That you, in open Court, shall receive all peticons from the time that may be made by such persons as designe to take up Land among you and that you grant them a Warrant to the Surveyor to ad-measure the same, provided always that you exceed not three hundred acres of land to a master of a family, nor a one hundred acres to a single person, at one single penny per acre or value thereof in the produce of the country, which done, that the Surveyor make his returne into Court and that the Court make thereon returne unto my secretary’s office.” 3. The Warner Grant is the base of this litigation. The Sussex County Court, sitting in Lewes, on January 9, 10 and 11, 1682/3, issued the grant, viz., “Upon the petition of Edmond Warner the Court grant unto him the land of the Cap Commonly Called Cape Inlopen lying on the North East side of the Creek formerly called the Whorekill to make a Coney Warrin on and Liberty to Build a House and seat a Warriner upon the said land upon condition that the Timber and feed of the said land, and marshes thereunto Belonging be and forever hereafter Lye in Common for the use of the Inhabitants of the Town of Lewes and County of Sussex, as also free liberty for any and all of the Inhabitants of the said County to fish get and take of there oyster & cockel shells and gather plums crambereys and Iiucklebureys on the said land as they shall think fitt always provided that no person whatsoever shall not hunt or kill any Rabbits or hares on the said land without the Leave and consent of him the said Edmond Warner his Executors Administrators or Assigns * * * ” There is no map exhibit of the location of the land with respect to the “land of the Cape”. Comparison of a government map exhibit with those contained in the Wilson Report shows the lands to be northeast of Lewes Creek (formerly the Whorekill) and are, upon the stipulation of the parties, a part of the lands contained in the Warner Grant. The question for decision calls for a construction of the Warner Grant with respect to the rights in common created therein, and the effect of certain acts of the General Assembly of the State of Delaware relating to the grant. 4. As the court adopts the findings of the Special Master and as it is impossible to improve on his expert analysis of the questions contained in the reference, liberal quotations will be utilized in adopting his views, in construing the Warner Grant. “Southerland, Special Master. “I. The Construction and Validity of the Warner Grant. The wording of the grant is unusual, but it seems reasonably clear that it was intended to create two rights or privileges, viz., a right in Edmond Warner to establish a coney or rabbit warren and a right of common in the inhabitants of the Town of Lewes and County of Sussex. The words ‘upon condition that’ which join the two parts of the grant would ordinarily indicate an intention to create an estate upon condition. Such an estate is defined by Blackstone as one ‘whose existence depends- upon the happening or non-happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated.’ II Blackstone’s Commentaries 152. The function of the condition is to define the event which affects the granted estate. In the instant case, however, it seems clear that' the purpose of the clause following the phrase ‘upon condition that’ was to create concurrently another and different estate. Because of the language employed, this second grant might be considered as also embodying a condition precedent to the vesting of the first estate. But this is of no moment; the important consideration is the clear intention of the grant to create a right of common in the Cape lands for the benefit of the classes of persons defined in the grant. Any other construction renders the language meaningless. “The invalidity of the grant is, however, asserted by the Town of Lewes on two grounds, as above stated. “(a) Realizing the difficulty of construing the latter part of the grant as nothing more than a technical condition in law, the attorneys for the Town of Lewes nevertheless argue that the clauses of the grant referring to the right of common constitute either a ‘reservation’ or ‘exception’ in the grant; that a reservation or exception in a deed must be to the grantor; and that a reservation or exception in favor of a person not a party to the instrument is invalid; citing II Blackstone’s Commentaries, p. 299; 26 C.J.S., Deeds, § 137. ‘T am unable to agree with this contention. The latter authority (18 C.J. 340) defines a reservation as follows: ‘A reservation is a clause in a deed whereby the grantor reserves some new thing to himself out of that which he granted before. It differs from an exception which -is ever part of the thing granted and of a thing in esse at the time.’ “It is apparent that the right of common contained in the Warner grant is not a right reserved out of the estate granted to Warner, because the Warner estate is not a fee simple or even a freehold estate in the land out of which the right of common could be carved; it is merely a right to take and kill game. That the grant is so limited is clear from the grant of ‘Liberty to Build a House and seat a Warriner upon the said land’ — language wholly superfluous if a grant of a freehold estate had been intended. The right to take and kill game, even if granted by the Crown, is, at the most, a franchise, and, as such, an incorporeal hereditament. Halsbury’s Laws of England, Vol. 15, p. 415; Vol. 6, p. 582, note (n). In the instant example, the absence of words of inheritance might reduce the grant to a mere personal license; cf. Thompson on Real Property, Vol. I, Sec. 227; but it is unnecessary to determine the point. “It seems clear that the Warner grant contains two grants, concurrent even if they be not wholly independent, one a franchise or license to take and kill game, and the other a right of common — both (at the most) incorporeal rights. “(b) The second objection urged by the Town is, as above stated, that the grant is to an indefinite and fluctuating class of persons, and that such a grant is void, at least unless made by the sovereign. The cases relied on in support of this contention are those dealing with grants made by private persons or municipalities, and not by the sovereign. Counsel for the Town concede, as I read their brief, that such a grant, if made by the sovereign, is valid, since the sovereign has the power to create corporations, and the grantees will be treated as a corporation quoad the grant. Willingdale v. Maitland, L.R. 3 Eq. 103. “Since a grant to a fluctuating class is conceded to be valid if made by the sovereign, we may inquire whether the Warner grant was so made. It seems clear that it was. Counsel for the Town assert that it is ‘not a grant from the Crown, but is alleged to be a grant from William Penn, through his duly constituted Court.’ But in constituting' a Court, and in conferring upon it power to receive petitions and grant lands, it can hardly be doubted that Penn was not merely granting lands which he owned in fee, but was also exercising the powers of government which had been granted to him by or through the Duke of York, and which he and his successors, as proprietaries, continued to exercise until the Revolution. [State of] New Jersey v. Delaware, supra, [291 U.S. at page] 370 [54 S.Ct. 407, 78 L.Ed. 847], If it be objected that he did not expressly confer upon the Court the authority to. create corporations, the answer would seem to be that the commission to his Court necessarily carried with it all powers necessary to implement and make fully effective the powers expressly granted. “And it is to be noted that at least two other similar grants were made by the Proprietaries, that of the ‘Great and Beach Marshes’, and that of the New Castle Commons (see the case of New Castle Commons v. Megginson, 1 Boyce, 361, 24 Del. 361, 362, 77 A. 565, Aim.Cas.1914A, 1207, hereinafter discussed), the validity of which appears never to have been questioned. “One other point is urged by counsel for the Town, viz., that the absence of words of inheritance in the Warner grant prevents an inheritable estate from passing. If it be assumed that the use of the phrase ‘heirs and assigns’ is indispensable to create an incorporeal hereditament passing on death of an individual to his heirs at law, yet the rule clearly has no application to the Warner grant, which, as hereinafter shown, creates a species of trust or equitable use. ‘The word “heirs” is not, it seems, necessary for the creation of an equitable fee simple * * *.’ 1 Tiffany Real Property, Sec. 29. “In conclusion, it is to be observed that, all other considerations apart, the legislative recognition of the grant, now to be considered, renders invalid all of the foregoing objections, as well as all other technical objection thereto.” 5. The Special Master then proceeded to treat the various legislative acts dealing with the Cape lands by discussing three questions: (a) the charge of “encroachment” ; (b) the limitation of the beneficiaries to the inhabitants of Lewes; and (c) the enforceability and constitutionality (Delaware State Constitution) of the Act of May 21, 1941, re-incorporating the Town of Lewes. To continue with the Special Master’s Report: “II. Legislation Affecting the Grant, (a) The charge of ‘encroachment’. The scries of legislative acts dealing with the lands of the Cape and the right of common therein has been set forth in footnote 22. Beginning with the Act of January 24, 1799, which embodies an express recognition of the validity of the Warner grant, the General Assembly from time to time passed 'measures designed, as I read them, to protect and make effective the rights of common embodied in the grant. Thus the Act of February 15, 1814, authorizes the appointment of trustees ‘to táke charge of, and secure the rents’ of the Cape lands, which were to be paid to the County Treasurer ‘for the use of Sussex County only’. The Act of February 20, 1837, is similar in intent and scope. It is true that the Act of February 19, 1841, which transfers supervisory powers to the Commissioners therein named, appears to ignore the rights of the beneficiaries of the grant, since it refers to the Cape lands as ‘belonging to this State’; but this ‘encroachment’ (if it be one) was withdrawn by the Act of February 15, 1849, which substituted the words ‘inhabitants of the town of Lewes, in the County of Sussex’ for the words referring to the State of Delaware. The effect of the language appearing to limit the beneficiaries to the inhabitants of Lewes alone is hereinafter considered; at this point I merely indicate the. legislative recognition of the Warner giant and the adoption of measures designed to make it effective. “By the Act of March 2, 1857, jurisdictioii over the lands of the Cape was transferred to the Town of Lewes. The language employed for the purpose, viz., ‘That the Commissioners shall also have the general supervision and trustship of the public land * * * called “the Cape”,’ is of significance, emphasizing, as it does, the trust or equitable use attaching to the land. The proceeds of leases and sales are directed to be expended for municipal improvements. “From 1864 to 1871 jurisdiction over the Cape lands was vested in the ‘Commissioners of the Great and Beach Marshes’, and receipts from sales to ‘public improvements about Lewistown’; but by the Act of March 2, 1871, such jurisdiction (as well as jurisdiction over the Great and Beach Marshes) was conferred upon the Town of Lewes, with which it has at all times since resided. At all times from the passage of the Act of March 2, 1871, to date, the revenue from the lands is required by applicable statutory provision to be applied -to ‘improvements’ of the Town of Lewes. “Now, these Acts, which on their face have from the first evidenced a recognition of a use or trust attaching to the Cape lands, are claimed by the trustee ad litem to constitute ‘encroachments’ on the supposed unrestricted privileges of inhabitants of Sussex County to avail themselves of the several rights of common conferred by the Warner grant. This view appears to be acquiesced in by attorneys for the Town of Lewes, who, in referring to the legislative acts, assert that — ‘Adverse possession over the lands in question has been consistently maintained by the State and its various agencies continuously for a period of at least 150 years.’ “I naturally hesitate to dissent from a view apparently acceptd by counsel for both parties; yet it seems to me clear that it is unsound. The legislative acts assailed as encroachments upon or as adverse to the rights of the beneficiaries of the grant are, I repeat, acknowledgments of the existénce of such rights and attempts to regulate them, realize upon them and make them effective. This is so because the scope of the rights granted is, on the face of the grant, unlimited in respect of time, number or quantity, and it is difficult to see how, except through legislative measures such as appear in the instant case, the rights of the beneficiaries of such a grant could be enforced or protected, or how otherwise the grant could be made productive with any semblance of equality or equity among the beneficiaries. “Before developing further this aspect of the matter, viz., the propriety of legislation to insure an equitable distribution of benefits conferred by the Warner grant, it is in order to examine more closely the nature of the estate created by the grant and the principles of law applicable thereto. “The estate created by the grant purports to be that of a right of common in gross. “With respect to the scope or extent of the right, the Warner grant includes ‘the timber and feed’ of the land and marshes, and ‘also free liberty * * * to fish get and take of there oysters & cockel shells and gather plums crambereys and Huckelbureys * * *.’ “The trustee ad litem treats the grant of a right to take ‘timber’ as a common of estovers, or wood to be used to heat or repair the commoner’s house (Halsbury’s Laws of England, Vol. 4, p. 551) ; the right to take feed as a common of pasture for cattle (Halsbury’s Laws of England, Vol. 4, p. 532 et seq.), as well as the right to cut grass and hay, and the right to use the marshes as probably a common of digging in the soil for minerals. As to the timber and feed at least, this would appear to be correct. But it is to be noted that the grant contains no language prescribing the time or times during which the rights may be exercised or fixing the amounts or quantities of timber, feed, game, etc., which may be taken. The grant is, on its face, of rights of common unlimited in any respect. “It appears that such a right of common does not exist at common law. The trustee ad litem cites Blackstone’s Commentaries, Vol. 2, p. 34, as authority for a common of pasturage ‘without stint’. The cited passage reads: ‘All these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which Inst all the year.’ “It would appear, however, that even this eminent authority has slated the rule too broadly. Appended to the quoted sentence is the following note by Chitty: ‘The notion of this species of common is exploded. A right of common without stint cannot exist in law. Bennett v. Reeve, Willes, 232. 8 T.R. 396-Chitty.’ “Another eminent authority says: 'Common of pasture appurtenant may either he for a number certain, or the measure may be referred to leva.ncy and couchancy; but it is now clearly settled that there must be some limit to the right. * * * The expression “common sans nombre”, which is frequently met with in the early cases, or “common without stint”, means common for beasts levant and couchant, it being uncertain how many there are in any particular year, and does not mean common for any number of beasts. It is used in distinction to “common for a number certain”, and is a common certain in its nature, because id certum est quod certum reddi potest.’ Halsbury’s Laws of England, Vol. 4, p. 539. ‘Common of pasture in gross may be either for a certain or sans nombre, which, as has already been explained, does not mean without limit.’ Id. p. 543. “The foregoing authority cites, inter alia, the case of Benson v. Chester, 8 T.R. 396, 101 Eng.Rep. 1453, decided by the Court of King’s Bench in 1799, from which I quote the syllabus: 'A claim of a right of common without stint as annexed to an ancient messuage, without law, cannot, as such exist by law. An ancient deed of feoffment granting the wastes of a manor to feoffees, in trust to permit the tenants and inhabitants, &c, to use and enjoy the same as they had formerly done or been accustomed, to do must be taken to mean such a right of common as may by law exist, namely, a right of common restricted by levancy and couchancy.’ “The same rule is stated in respect of common of estovers. ‘A claim to estovers, in order to be valid, must be made with some limitation or restriction, either by reference to the necessities of the tenement in respect of which it is claimed, or by defining the quantity of the profit to be taken, as, for instance, a right to take so many cartloads of fuel.’ Halsbury’s Laws of England, Vol. 4, p. 554. “Again with respect to the right of digging for sand (if the grant may be construed to include such a right, as contended), it is said: ‘The right of digging for sand, stone, coals, minerals, etc., has also been recognized as a right of common from early times. It is similar in nature to the commons of estovers and turbary, and may be appurtenant or held in gross, * * * Prescriptions for these rights must fall within the usual rules. The right must be claimed by persons capable of taking by grant, must be reasonable and certain in its nature, * * *.’ Halsbury’s Laws of England, Vol. 4, pp. 557, 559. “Thus in Clayton v. Corby, 5 Q.B. 415, 114 Eng.Rep. 1306, a plea in an action of trespass of a right of common to dig and carry away so much of the clay of plaintiff’s close as should be required by defendant for making bricks at his brick kiln was held unreasonable and bad. The Court said: ‘The nature of the tenement (so called), a brick kiln, leads to no conclusion, one way or the other, as to the extent of the claim and demand upon the soil of the plaintiff. It may have been, at the time of the trespass, of any dimensions and capacity. It may have been, during the thirty years of alleged enjoyment, continually varying; and consequently the quantity of clay required for the purpose of making bricks thereat may have varied also. There is no limit. No amount of clay (measured by cartloads or otherwise) “required”, no number of bricks (estimated by hundreds or thousands) claimed to be made, is given or attempted. What is it, therefore, but an indefinite claim to take all the clay “out of and from the said close in which, &c”, or, in other words, to take from the plaintiff, the owner, the whole close?’ “I am far from suggesting that the grant here under examination was beyond the power of the Proprietary to make. But I do say that the foregoing authorities establish that the rights created by the Warner grant, though no doubt, broadly speaking, rights of common, are different in important respects from the ordinary examples of such rights which were recognized by the common law and protected by the courts at the suit of the commoner. The Warner grant appears to create rights which, by their very nature, call for supervision and control by the public authorities, in order that the benefits which the grant seeks to confer may be equitably enjoyed. If such control be lacking, the benefits will be lost, since unrestricted use will defeat the very purpose of the grant. Can it be supposed, for instance, that the first man to go upon the common lands may take all the timber and feed for himself? And if not, how much? And if it be answered — ‘a reasonable quantity’, then how is such a quantity to be ascertained, and how is the limitation to be enforced? “The trustee ad litem seems to concede that the State may control the administration of the Cape lands if such control ‘does not restrict any of the Rights of Common’. But how can control or administration of such lands exist at all if the exercise of such rights of common is not to be controlled or regulated? “The necessary consequence of the consideration above set forth is, it seems to me, that the rights of common created by the Warner grant are public or collective in their nature and not individual, and, if not enforceable only through governmental authority, are certainly a proper subject of governmental control as constituting a species of charitable use or trust for the benefit of an indefinite group or class. Cf. State v. Griffith, 2 Del. Ch. 392, 409. The term ‘commons’, or ‘common lands’ has been frequently applied to lands dedicated to public use for recreation or similar purposes, 3 Tiffany, Real Property, Sec. 934; and the rights created by the Warner grant, so far as concerns their unrestricted nature, are somewhat similar. The right of public authority to regulate the use of such land is unquestioned. “In this State the history of New Castle Commons is instructive, and certain litigation relating thereto affords a persuasive precedent for the decision of the case at bar. The facts appear in the case of Trustees of New Castle Common v. Megginson, supra, which presented the question whether the common lands were exempt from taxation as the property of a corporation for charitable uses. It appears that in 1701 William Penn issued the following warrant: “ ‘William Penn, Proprietary and Govr. of the Province of Pennsylvania and Counties annexed. Pennsylvania (L.S. “ ‘For the accommodation of the Inhabitants of the town of New Castle These are to require thee forthwith to survey or cause to be surveyed to the only use and behoof .of the said Inhabitants to lie in Common one thousand acres of Land adjoining or near to the said Town hitherto reputed called New Castle Common in one convenient Tract, and if there proved more than the sd. number of Acres lay out the residue in one convenient piece to me and for my use and make returne thereof into my Secretary’s office. Given under my hand and seal at New Castle the 31st day of 8ber 1701. “ ‘Wm. Penn.’ “ ‘To Edward Pennington, Surveyor General of the Province of Pennsylvania and Territories.’ “The tract was thereafter duly surveyed. Nevertheless the lack of any supervision or control over such common lands tended, apparently, to be destructive of the purposes of the grant, for in 1764 the then proprietaries executed and delivered a charter appointing thirteen trustees as a body corporate to hold the lands for the use of the inhabitants of New Castle as a common forever. This charter recited in part: “ ‘ * * * that in pursuance of said warrant of said William Penn, there was surveyed and laid out on the tenth day of April, A.D. 1704, to the inhabitants of the town of New Castle in the County of New Castle, a tract or parcel of land adjoining or near to the said town containing 1068 acres, as and for a common, for the use, behoof and accommodation of the inhabitants of said town of New Castle; that the inhabitants of said town had represented to said Proprietaries and Governors that, notwithstanding said warrant and survey and the many benefits and advantages the said William Penn had intended the inhabitants of said town should reap and enjoy great quantities of said land, surveyed as a common, had been enclosed by the owners of tracts of land lying contiguous thereto and by them tilled and cultivated and that the said inhabitants were remediless for want of legal power to sue and implead the wrongdoers; and that the said inhabitants had requested the said Proprietaries and Governors to incorporate a certain number of them and give them perpetual succession and confirmed to them the said tract of land in common for the use of all the inhabitants of the said town, * * *.’■ “Now, I do not see how it could be suggested that the charter of the Proprietaries was an ‘encroachment’ upon the rights granted to the inhabitants of New Castle by the warrant of 1701. It is true that the Penn warrant contained no specific grant to take timber, feed or other produce of the common; but in respect of lack of an administrative body to safeguard the enjoyment of the rights granted, the situation developing in the two cases was the same. See the Act of January 24, 1799, which is entitled: ‘An Act to prevent trespasses being committed on the lands on the north east side of Lewes Creek, called the Cape, in the County of Sussex.’ “Upon the question whether the New Castle Commons was the subject of a charitable trust, the Supreme Court of Delaware held that the revenues received by the Trustees had been devoted to municipal public purposes, and said (though not deeming this fact controlling) that the actual uses to which the revenue had been put ‘were those which distinctly belong to charitable uses.’ 1 Boyce [376] 24 Del. 376 (77 A. 571, Ann. Cas.1914A, 1207). Finally, the Court held as follows: ‘The conclusion of this court, therefore, is that the gift by William Penn of the land in question constituted a charitable use or trust, and that that land held and owned by the defendant, a corporation created for the purpose of administering that trust, was real property belonging to a corporation for charitable uses, and therefore exempt from taxation for public purposes.’ “I am of opinion that the holding of the Supreme Court in the Megginson case is applicable here, and that the Warner grant of 1682, creating unrestricted rights of common in the inhabitants of the Town of Lewes and of Sussex County, constituted a species of charitable use or trust. The very uncertainty of the grant, both in respect of the extent of the rights granted and the ascertainment of the individual beneficiaries, is an essential characteristic of such a trust. State v. Griffith, supra, [f this conclusion be sound, it follows without question that the administration of the trust is under the plenary control of the sovereign in the exercise of its powers as parens patriae. Charitable uses form one of the well-known instances of the exercise of such power. See concurring opinion of Taney, C. J., in Fontain v. Ravenel, 17 How. 369, at page 392, 15 L.Ed. 80, in which he says: ‘But the power which the chancellor exercises over donations to charitable uses, so far as it differs from the power he exercises in other cases of trust, does not belong to the court of chancery as a court of equity, nor is it a part of its judicial power and jurisdiction. It is a branch of the prerogative power of the king as parens patria:, which he exercises by the chancellor.’ “Holding that the Federal Courts, sitting in equity, exercise only judicial powers, he further says (17 How. at page 393, 15 L.Ed. 80) : ‘These prerogative powers which belong to the sovereign as parens patrice, remain with the states.’ “I am accordingly further of the opinion that the series of legislative acts, including the existing statute vesting jurisdiction over the Cape lands in the Commissioners of Lewes, were enacted by the General Assembly in the exercise of its power as parens patrice, and are (subject to the further objections now to be considered) valid and constitutional. “The two remaining points bearing on the conclusion just reached now require discussion. “(b) The apparent limitation of the beneficiaries of the Warner grant. It is to be noted that originally, from 1814 to 1841 (Acts of February 15, 1814 and February 20, 1837), the net rents from the lands were paid over to the County Treasurer ‘for the use of the County of Sussex only’. From 1841 to 1857 (Acts of February 19, 1841, and February 3, 1847), one-third of the revenues from the Cape lands were applied to drain the marsh and two-thirds to the making of a canal to improve the navigation of Lewes Creek. “It has already been pointed out that the Acts of 1841 and 1847 referred to the Cape lands as belonging to the State of Delaware. This error (if it be such) was sought to be corrected by the amendatory Act of February 15, 1849, which, however, in referring to the ownership of the lands substituted the phrase ‘the inhabitants of the Town of Lewes, in the County of Sussex.’ The Warner grant is for the use of ‘the Inhabitants of the Town of Lewis and County of Sussex.’ (Emphasis supplied.) “Under the Act of March 2, 1857, the revenues are to be applied to various public purposes within and near Lewes; by the Act of August 10, 1864, and the act of which it is amendatory, they are to be expended upon ‘public improvements about Lewistown’; and by the Act of March 2, 1871, and all subsequent acts down to the present time, they are to be applied ‘to such improvements of the Town of Lewes as they [the Commissioners] may deem proper.’ “It thus appears that whereas in the earlier days of administering these public lands the revenues were devoted to Sussex County, for the last 70 years, at least, they have been used solely for the benefit of one group only of the two specified in the Warner grant, viz., the inhabitants of Lewes. “What bearing has this fact upon the issues in the instant case? I cannot see that it has any relevancy whatever. Possibly what has happened is that the General Assembly, faced, first, with a question of construing a curiously worded grant, and second, with a possible problem of apportionment of revenues which, originally at least, must have been very small, determined that the most effective and convenient way to deal with these questions was to confide the administration of this public trust to the municipality most nearly concerned, viz., the Town of Lewes, and to direct the application of its revenues to the public purposes of that municipality. “But we are not required to speculate upon the matter. Whether the administrative provisions of the various legislative acts embody such a substantial departure from the original terms of the trust, either because of the unjustified exclusion from its benefits of the inhabitants of Sussex County residing elsewhere than in Lewes, or because of unjustified prohibitions or restrictions upon the use of the lands by the public, and whether, if so, the Attorney General, as representing the beneficiaries of a charitable use, may have relief therefrom in a Court having jurisdiction of the administration of the trust (if such there be), I do not attempt to say. As I view the case, these are questions with which this Court is not concerned. The issue before this Court, as I understand it, is simply this: Plow stands the title to the land? The determination of the questions above suggested can throw no light upon the question of title. If the general conclusion above reached be correct, viz., that the General Assembly has power to appoint trustees to manage and care for the Cape lands as the subject of a charitable trust, it can, of course, choose the trustee; and since it has chosen the Town of Lewes for that purpose, it necessarily follows that this Court is required to give recognition to the trustee so appointed. “Questions relating to the administration of the trust and the disposition of the income therefrom do not, in my opinion, affect the standing of the Town of Lewes, as such trustee, before this Court. Accordingly, such questions will not be further considered.” 6. A substantial portion of the Wilson Report is devoted to discussion of Delaware’s failure to keep the original right of commons for the benefit of the inhabitants of Sussex County. Wilson suggests that since 1796 no court action or legal steps have been taken to establish the claim of the general public in the Cape lands. He suggests that large sections of the Cape lands have come into the possession of private individuals, corporations and certain public agencies, whose possession is, of necessity, opposed to the claim that the lands are public common. He shows that about 150 years ago the inhabitants of the county were opposed to certain legislative action which established a land office for the sale of all vacant and uncultivated lands in Delaware insofar as it touched the Cape lands. Act of 1793 (2 Laws of Delaware 1160). This statute provided procedures for persons desiring to take up vacant land within the state; and whenever differing claims arose a caveat could be entered before the recorder of deeds. An administrative agency then denominated as a board of commissioners was created to hear disputes, with appeal to the Supreme Court. On February 7, 1794 (2 Laws of Delaware 1174), the statute was again amended. Any patents or ancient warrants and grants made by James, Duke of York, to the proprietaries in Maryland and Delaware, at any time prior to January 1, 1760, were deemed to be valid in law. The amendment also provided for appeal from the Board of Commissioners to the High Court of Errors and Appeals. This court was created by the Constitution of the State of Delaware, done in convention on June 12, 1792 (1 Laws of Delaware 44). On February 9, 1796 the statute was again amended (2 Laws of Delaware 1292). And by the Act of January 11, 1798 (3 Laws of Delaware 3) it became unlawful for the recorder of deeds of any county to thereafter issue any warrant for the survey and location of any lands whatever. By the Act of February 2, 1807 (4 Laws of Delaware 86), all general warrants issued by the recorder of deeds of Sussex County after June 19, 1793 and prior to January 11, 1798, were declared valid. By the Act of January 23, 1843 (9 Laws of Delaware 454) (1) all general warrants issued by the recorders of the several counties not specifying the lands intended to be surveyed or located were vacated, (2) continued, uninterrupted, and peaceful possession of any lands for the space of 20 years would enure as a complete bar to any claim of title on the part of the state to said lands, and (3) whenever any woodland, meadow land, or marsh land, to which the state otherwise would have had title, which had been held in common, by two or more persons, in uninterrupted possession for 20 years, then any of the parties interested could petition the Chancellor of Delaware to have the lands partitioned in the same manner as partition of lands held in joint tenancy and not in common. This seems to be the original act providing for adverse possession against the state. Wilson reports that after the Act of 1793 (2 Laws of Delaware 1160), as amended by the Act of February 7, 1794 (2 Laws of Delaware 1174), a recorder of deeds of Sussex County issued a land warrant to Nicholas Ridgely, Theodore Wilson, Rhoads Shankland, Jr., and Thomas Marsh for a parcel of vacant land (not exceeding 200 acres) lying between Lewes and Rehoboth Hundred. On the same day the recorder issued a similar -warrant to William Russell for vacant land not exceeding 200 acres. The next day, June 16, 1796, a like warrant was issued to William Perry, Peter and John Marsh for a similar piece of land; and, on June 21, 1796, another similar warrant was issued to a William Coleman. These lands, it would appear, formed a part of Cape Hculopcn. The Perry and Ridgely mentioned were, at the time, practicing attorneys. Ridgely afterwards became Chancellor. Caveats were filed by Caleb Rodney (afterwards Governor of Delaware) against the returns upon the warrants issued to Ridgely et al. These caveats were con-tinned from time to time; hut on July 19, 1797, the one against Russell was heard and the Commissioners did “order, judge and decree that agreeable to the laws of the State of Delaware, it is considered that the said Russell take nothing by his said warrant, and that the said William Russell shall not he permitted to hold the land contained in his said survey.” We are not told the reason for the decision. Appeal was taken to the High Court of F,rrors and Appeals. The recorded history of this litigation is, however, lost. The case is not found in Delaware Cases 1792-1830, supra. Here, Wilson suggests the reason for the continuance' on the other caveats was because the parties might possibly have agreed to make the original Russell warrant the test case. If this be so, it appears the High Court of Errors and Appeals had reversed the finding of the Commissioners, because the Caveat Docket shows that, on April 21, 1829, the caveats previously filed against Ridgely, Wilson, Shankland, Marsh, Perry, Coleman and Peter and John Marsh were “struck off by order of the Board [of Commissioners].” Wilson suggests the High Court of Errors and Appeals had affirmed the Commissioners’ holding in the Russell case. He refers to a petition executed by 69 citizens of the Town of Lewes to the Senate and House of Representatives of the Delaware General Assembly, dated January 6, 1817. See Wilson’s Report, Part III, Exhibit AN. Wilson concludes this petition shows the rights of common created by the original grant of 1682 were considered valid as late as 1817 and that the citizens of the Town of Lewes challenged the right of any individual to become possessed of any of the Capí; lands free of the right of common. He points out that four of the subscribers, at one time or another, were Governors of the State of Delaware; and he insists that it is unlikely that men of this type would have lightly executed the petition, which reads: “The Petition of the Subscribers, Citizens of I,ewes, respectfully represents: “That the lands and Marshes on the North East side of Lewes Creek called ‘Cape Hculopcn’ were granted to them as a Common in the year 1682 the validity of which was not questioned until after the passage of ‘An Act to Open and Establish a Laud Office’ in the year 1793. Soon after said Act was passed six or eight of the most influential men of the County, among whom were two lawyers, procured Land Warrants & laid them on said lands & marshes, these warrants were Caveated by th.e Inhabitants and decisions were had before the Board of Commissioners, the Supreme Court, and the High Court of Errors and Appeals, all of which established the validity of the Grant to the inhabitants as a Common. In this Grant an indefeasible Right to the timber & feed is given to the Inhabitants as Commoners. Notwithstanding the rights of your Petitioners has been thus established and at a considerable,expense in carrying on the Law suits for the protection of those rights, yet they perceive with regret a Law passed Feby 15th, 1814, intitled ‘An Act Authorizing the Court of General Sessions of the Peace & Gaol delivery of the State of Delaware to appoint Trustees to take charge of and secure the rents of the Land and Marsh commonly called Cape Henlopen for the use of the County of Sussex’ which prohibits them from the enjoyment of their rights of Common in the afs’d Lands & Marshes. “Your Petitioners believe that exclusively of their Constitutional rights in Common with all other citizens to the protection of their property, that the Law above recited has had no beneficial effect whatsoever, while on the other hand it makes a Sinecure for three Trustees, Subjects innocent individuals to the expense and trouble of carrying on Lawsuits in defense of their just Rights while those suits are carried on against them at the public expense, and violates two great principles of Constitutional and natural rights by preventing people from using their rights as commoners, and by making it penal to turn out cattle to Roam over & feed on a place which has no enclosure. “Your Petitioners therefore pray your Honours to Repeal the Act above recited that was passed Feby. 15th, 1814. Lewes Jany. 6th, 1817.” Apparently the petition had little, if any, effect for the legislature proceeded on its course for over the next hundred years practically regulating the right of' com'inon out of existence. See footnote 22, supra. Wilson was unable to find what happened to the estate or license of Edmond Warner. Apparently, he never executed any deed, bill of sale, or assignment pertaining to the lands, and left no will wherein he attempted to dispose of his interests. In commencing Part IV of his report, Wilson writes: “Should the reader or a court of competent jurisdiction find it impossible to relegate the conflict at all points, as a broad general statement it may be said that the municipal governing body of the town [of Lewes], as well as those claiming by, through and under it, have one strong point in their favor. With untiring effort and a rather high degree of skill they have practiced the old adage that, if an untruth is repeated often enough, or a false position is assumed long enough, there is every chance that such untruth might be accepted at its face value and such false position might be recognized as sound.” With respect to the legislative acts found in footnote 22, supra, Wilson states that four factors should be considered: (1) That the early acts of the legislature carefully divorced any measure of control of the Cape lands from the Town of Lewes; (2) that from an early date the Town endeavored to gain legislative recognition of its claim to control these lands; (3) that the Town, after a hundred years of effort, succeeded in obtaining complete legislative recognition of its claim; and (4) that'the Town, as well as those claiming under it, have never received judicial sanction for the control which has been delegated to it by the Delaware legislature. See Wilson’s Report, Part IV, pp. 71-104, for the author’s discussion of legislation other than that referred to in footnote 22, supra, dealing with the control of the Town of Lewes over the Cape and marsh lands. The Delaware courts have never come in contact with the question sub judice. However, in four Delaware cases, they have approached the periphery of the problem. In Lewes Sand Co. v. Commissioners of Lewes et al., 22 Del.Ch. 21, 191 A. 821, and in Lewes Sand Co. v. Graves et al., 1 Terry, 189, 40 Del. 189, 8 A.2d 21, 22, the Court was concerned with certain “Lewes leases”. In the first case the complainant sought to enj.oin the Commissioners of Lewes from granting to Graves a lease of a portion of a sand hill located on the “Common or Cape” at Lewes, with the privilege of taking sand therefrom. The Chancellor did not pass on the question of the power of the Commissioners to grant an exclusive right for the taking of the sand. In fact, the question was not before the Chancellor. He said (191 A. at page 821): “It will be assumed, without deciding, that the Commissioners have the power to grant such an exclusive right as the complainant alleges was granted to it.” It is clear fi-om a reading of the case, as well as from the record and pleadings, that the question before the court was a limited one. In the second case an action of trespass was brought by Graves against the Lewes Sand Co. for digging sand within an area formerly leased to Graves. Lewes Sand Co. defended its right on a certain reservation that it would have “the privilege or right to use, sell, ship or deliver sand from the Sand Hill”; and that Graves took his lease subject to the reservation. It should be particularly noted that in the course of the Court’s opinion, Judge Rodney said: "The State of Delaware held a large tract of vacant land contiguous to the Town of Lewes and reaching to the seashore, on which land are large deposits of sand in the form of sand hills or sand dunes;” and, in his concurring opinion, the present Chief Justice of Delaware said: “The lands in question, belonging to the State with a certain jurisdiction of them vested by statute in the municipality of Lewes, contain large deposits of sand in the form of hills or dunes.” These are the only two recent Delaware cases where the courts have intimated that the Cape or marsh lands belong to the State of Delaware with a certain delegated administrative function running to the Town of Lewes. Two early Delaware cases, however, seem to have approved the first Land Office Acts. In Teagles’ Lessees v. Waller, 1797, 1 Del. Cases 132, the Act of February 7, 1794 (2 Laws of Delaware 1174, 1175) was recognized as valid by the Supreme Court of Delaware. This was an ejectment action. From the scanty report (Wilson’s Red Book 155) it is impossible to discover whether the questions raised in the case at bar were argued there. The precise holding of the case is that title to lands taken under a warrant issued pursuant to the Act of February 7, 1794, is good. The Court said (1 Del. Cases at page 133): “Plaintiff originates his title with a patent granted by this state, which is founded upon Acts of Assembly (2 Del. Laws 1175), which plaintiff says he has complied with. Plaintiff has also shown the foundation of his title, which he says satisfied the commissioners with regard to it. He has shown as a part of it a sheriff’s deed under judgment and execution against defendant. The Court think the plaintiff’s title good, and it is incumbent on defendant to show the Delaware Acts did not attach upon these lands, and that they were not sufficient to authorize the issuing of the patent.” As stated, nothing in the case discloses whether the lands in question were part of the Cape lands. The year before the High Court of Errors and Appeals in Wright v. Scotten, 1796, 1 Del. Cases 403 (Bayard’s Notebook 148 and Wilson’s Red Book III) decided that v here a person was in possession of a warrant at the time of the passage of the Act of February 7, 1794, and nothing had occurred to void the grant, he was entitled to a patent from the Land Office. The case is obviously inapposite to the questions presented here, as it involved warrants issued from the proprietary of Maryland, dated February 11, 1759, and from the proprietary of Pennsylvania on December 3, 1734; and the lands in question lay on the borders of Maryland and Delaware. Power to control and administer the Cape lands vested by the Delaware legislature in the Commissioners of Lewes would seem subject to the condition that such authorizations should be exercised iri such a manner so as not to eradicate the original rights of common. Yet the State, as owner of the fee, can delegate to the Commissioners of Lewes or to any other state agency the duty of administering public and vacant lands subject to a charitable trust. However, as the Special Master points out, the question here is not whether there has been a breach of a charitable trust with the attendant and troublesome question of whether there should be a resulting trust or whether the inhabitants of Sussex County have the present right to seek court or legislative protection of their right of common. These and allied questions will be discussed later. 7. In disposing of another contention of the trustee ad litem, the Special Master proceeded: “(c) The enforceability and constitutionality of the Act of May 21, 1941. It is contended by the Trustee ad litem that the description of certain lands referred to in the present town charter of Lewes (Act of May 21, 1941) is so vague that ‘it is not possible to determine the territory outside the corporate limits of the Town of Lewes over which the Commissioners of Lewes were given jurisdiction * * “The description, the certainty of which is thus assailed, is that relating to the so-cal'led ‘vested lands’ of the Town of Lewes. No criticism is made of the description relating to the Cape lands generally, although the latter would seem the more vulnerable to such attack. “It will be recalled that since 1871 the Commissioners of Lewes have been given ‘full and exclusive authority and control over the Great and Beach Marshes, Cape and Cape Marshes, near Lewes’. Since that date the Commissioners have also had jurisdiction over certain public lands called ‘vested lands’. At first these comprised only public and vacant lands within the Town; but beginning with the charter of 1907, such jurisdiction was extended beyond the Town limits. “The present charter provision (Act of May 21, 1941, Sec. 9), respecting jurisdiction over the ‘vested lands’, is, so far as here pertinent, as follows: ‘All the public and vacant lands lying within the corporate limits of said town