Chap. 0168 An Act concerning the Plantation of Herring Pond.

BE it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same, as follows :

Sect. 1. A partition shall be made of the following described lands, belonging to the Herring Pond Indians, and situated in Plymouth county, namely:-all the lands lying to the eastward of a line drawn from off the head of the Springs, so called, and running to the dwelling-house of Caleb Raymond; and also, all the land belonging to said Herring Pond Indians, to the eastward and southward of

Great Herring Pond, so called, and lying in the easterly part of the town of Plymouth, in the county of Plymouth, and the westerly part of the town of Sandwich, in the county of Barnstable.

Sect. 2. The commissioner of the district of Marshpee, together with two discreet and disinterested persons, to be appointed by the governor, by and with the advice and consent of the council, shall be commissioners of partition, with full powers to make the partition herein provided for. They shall be severally sworn to the faithful and impartial discharge of the duties devolved on them by this act; and the compensation of said commissioners, not exceeding two dollars and fifty cents per day, to each, for every day of actual service rendered by each commissioner, shall be ascertained and adjusted by the governor and council, and the amount paid out of the treasury of the Commonwealth ; and the governor is hereby authorized to draw his warrant therefor; and all other expenses incurred, in carrying this act into effect, shall be paid by the said Herring Pond Indians.

Sect. 3. It shall be the duty of the said commissioners, as soon as may be, to ascertain, by the best evidence the nature of the case will admit, the names and number of the legal adult proprietors of said Herring Pond Plantation, male and female, who shall be of the age of eighteen years, or upwards, on the last day of December, in the year eighteen hundred and fifty, and in addition to the evidence which shall establish such proprietorship, in the judgment and decision of a majority of the commissioners, according to the customs, usages, descent, inhabitancy, or general acquiescence, in such proprietorship, heretofore recognized and practised upon in said plantation, among the said Indians and their descendants; all other persons, of the age of eighteen years, or upwards, at the time aforesaid, shall be held as proprietors, who are of Indian descent, born in the counties of Plymouth or Barnstable, and who shall have married a proprietor of said Herring Pond Plantation, and were inhabitants of, and permanent residents in said plantation, on the first day of January, in the year eighteen hundred and fifty: provided, however, that no person shall be considered a proprietor, who shall have received, or shall be entitled to receive, by inheritance, any lands, or apportionment of lands, in the District of Marshpee, under and by force of an act entitled " an act concerning the District of Marshpee," passed the third day of March, in the year eighteen hundred and forty-two, or any act in relation to the

partition and inheritance of lands in said District of Marsh-pee. And it shall be the duty of said commissioners, before determining and recording the list of proprietors, to give public notice, and to hold meetings, in such manner as shall enable the inhabitants of said plantation, and all persons claiming to be proprietors, to present their claims, and to be fully heard thereon. And, upon such list being so made out by the commissioners, the same shall be presented to the proprietors, in a meeting called for that purpose ; at which meeting the commissioners shall be present, and hear such representations, and make such explanations, as may be desired, with reference to the claims of any person named in said list, or excluded therefrom; and thereafter, the commissioners shall carefully revise said list, and shall make it as accurate as possible, and the same shall be duly certified and recorded in a book of records, to be kept by the commissioner of Marshpee, and each proprietor may also record his allotment with the registry of deeds for the county of Barnstable. And in determining and passing upon the claims to proprietorship, if any case shall arise, not distinctly provided for in this act, which, in the unanimous opinion of the commissioners, shall so come within the spirit and meaning of this act as to constitute a manifest, equitable, and just claim to proprietorship, the same shall be submitted by the commissioners, to the proprietors, in a meeting duly called for that purpose, and if the commissioners shall decide that the claim is well founded, and ought to be allowed, and a majority of the adult proprietors, present in said meeting, shall, by vote, assent to the admission of such claim, the same shall be allowed. And, to remove any doubt as to the lands of Cynthia Attaquin, wife of Solomon Attaquin, of Marshpee, the said Cynthia having been a proprietor of, and domiciled in said Herring Pond Plantation, before her marriage, and not having, nor being entitled to any land in Marshpee, it is provided, that the said Cynthia shall be entitled to a home lot, and also, to her share, as a proprietor, in the rest of the lands to be divided, she releasing, with her husband, all claim to any other land or lands in said Herring Pond Plantation, which she now holds or claims.

Sect. 4. After so ascertaining, and making up the list of proprietors as aforesaid, the commissioners shall apportion, divide, allot, and set off the lands, described in the first section of this act, in the following manner:-To every family domiciled in, and occupying any house or tenement in said plantation, and who were so domiciled on the

first clay of January, eighteen hundred and fifty, there shall be set off and alloted, as a home lot, fifteen acres of land : provided, that no family on said plantation shall receive such allotment, unless one, at least, of said family shall be a proprietor. And, in allotting said fifteen acres, as a home lot, the title thereto shall be vested in all the members of said family who are proprietors, as tenants in common, or in the member of said family who is a proprietor, if there be but one proprietor in a family : provided, however, that no such allotment, nor any provision of this act, shall affect or change the rights of property and ownership, which any proprietor now has in or to any dwelling-house, tenement, or building now erected, and being situated on any land in said plantation. In determining what constitutes a family, within the meaning of this act, the commissioners shall be governed by the usages and customs of said plantation, and the exercise of their sound discretion, whether the person or persons, claiming to be a family, shall occupy one or more tenements, or whether there shall be more than one family in the same tenement. And if, in any case, more than one family shall live in one house, then each family shall be entitled to an allotment of fifteen acres. The remaining lands to be apportioned by this act, after setting off of said home lots, shall be apportioned, divided, allotted, and set off, in a just manner, by said commissioners, to each and every one of the proprietors of said Herring Pond Plantation, who shall be of the age of eighteen years, or upwards, on the last day of December, 1S50, in equal proportions, to each proprietor, including all who have received, in addition thereto, their home lot; and in making such division, the commissioners shall not be restricted to the quantity of land apportioned to each, but may take the value, convenience, and quality into their estimate, to produce, as near as may be, an equitable distribution.

Sect. 5. When such partition shall have been made as aforesaid, the commissioners shall cause the same to be recorded, by metes and bounds, in the proprietors' book of records, to be kept as before provided, and each proprietor shall be furnished with a copy of the record of his allotment.

Sect. 6. All the remaining lands in said plantation, not divided and allotted by force of this act, shall be, and remain the common land of said plantation, and shall be so held and reserved exclusively for the use of the said plantation, the proceeds to be appropriated solely to the necessary and legal expenses of said plantation; and the com-

missioner of the district of Marshpee shall have the care and management of the said common land, in the same manner as is now provided by law.

Sect. 7. The lands set off in severalty to the proprietors, and all other lands held or acquired by them, shall have all the incidents of estates in fee, except the right of transfer, conveyance, or devise, to other than a proprietor, and excepting further, that the said lands shall not be liable to be taken in execution ; and no devise, or conveyance, shall defeat the inheritance of any children of the devisor or grantor, who were within the age of eighteen years, on the aforesaid last day of December, eighteen hundred and fifty; nor shall any proprietor, who shall receive an allotment under this act, be entitled to receive or take any more land, as heir to a deceased proprietor, nor shall he inherit any portion of the land of his father or mother, living at the time he received such allotment: provided, there is any surviving brother or sister of such proprietor, who was under the age of eighteen years, at the time such proprietor received his allotment under this act, but such surviving child or children shall take, to the exclusion of any brother or sister, who shall have received an allotment, under this act; and no land, belonging to a married female proprietor, or which she may hereafter acquire or inherit, in her own right, shall, without her consent, be conveyed or leased, or the wood sold therefrom; and all contracts therefor, by her husband, in which she does not join, shall be void: provided, also, that, upon the death of any proprietor, leaving no heirs, all his interest in the lands of the plantation shall escheat to the proprietary.

Sect. 8. The court of probate for the county of Barnstable, shall have jurisdiction in all probate matters, in said plantation, concerning the proprietors thereof, and in the appointment of guardians to minors, insane persons, and spendthrifts, in the same manner as is provided by law for the citizens of this Commonwealth in like cases.

Sect. 9. The Legislature may, at any time hereafter, amend or repeal this act at their pleasure, except so far as rights of property, in severalty, may have been acquired, under its provisions.

Sect. 10. This act shall take effect from and after its passage.   [Approved by the Governor, April 6, 1850.]