MEMORANDUM In re acceptability of certain proposed deed of conveyance to United States of lands on Mt. Desert Island, in the State of Maine, pursuant to Act of Congress approved June 8, 1906 134 Stats225 .,) intended to provide for preservation of national antiquities, places of historic interest or great scenic beauty. MEMORANDUM In rolation to authority of Department to accept certain conveyance tendered by Hancock County Trustees of Public Reserva- tions, conveying lands on Mt. Desert Island, in Maine, pursuant to act of Congress of June 8, 1906 (34 Stats. 285. Mr. Bond: I have had referred to me your request for an opinion concerning the acceptability of a deed of conveyance tendered by the Hancock County Trustees of Public Reservations, a corpo- ration of the State of Maine, intended to invest the United States with the title to certain lands on lit. Desert Island, in that state, to the end that they may be maintained as a national park, or monu- mont, in accordance with the Act of Congress approved June 8, 1906, (34 State. 225) The deed in question appears to have been prepared in a pro- fessional manner and is sufficiently artificial in form as well as legally executed. No objection may arise from that quarter. Whatever doubt may exist would come from provisions by which the title taken by the United States would be lettered by restrictions affecting the use and occupancy of same of the lands, and attended by covenants obligating the grantee to co-operate with certain naund persons and corporations "for the fostering and protection of bird and other life upon said lands and of fish life within its waters, and for the protection of the area thereof from any human injury to its public pleasantness and scenic beauty, from woodland fires or tree and plant diseases." What might be the exact nature and extent of the obligation which would be assumed by the government, by this covenant, is to my mind quite uncertain. If it merely means that the government would throw around the timber growing on these lands and the bird and animal life inhabiting then such protection'as is commonly provided for all that grows or dwells in National Parks, then no objection to the deed ought to be asserted on that ground. On the other hand, if the protective programme is to be one conceived in whole or in part by the covenantee, necessitating some considerable expendi- ture of money, it is manifest that the Department can not safely or at all commit the government to that undertaking. I assume, however, that this covenant would not bind the United States to anything that it would not naturally and in the absence of such a covenant desire to do , and that the Department would be permitted to formulate and execute its own design in that connection. Per- haps the deed ought to be so framed as to make this a reasonably certain provision, however, avoiding uncertainty as to just what is to be expected of the government in this behalf. A more objectionable restriction is that one designated Restriction D, by which the government would be forbidden to make any use or permit any occupationof certain lands there described which the directors of the Seal Harbor Water Company may "deem a menace to the purity of its water supply". I do not quite fancy the idea of & title held by the government of the United States to lands the use of which must be subservient to the whim or caprice of a smell body of men constituting the directate of a private corporation, I can not assume for a moment that the United States would wish to do anything that might result in contamination of a public or private water supply; but that whether a proposed use would or would not be likely to accomplish that result should be left tothe judgment and discretion of the Secretary and those who will advise him concerning the manage- ment of the park. I am obliged to presume, however, that the grantor in this proposed conveyance holds its title subject to the same restriction, and that it could not do less than insist upon it in any conveyance which it may execute. Lastly, the title and estate which would be secured by this deed would be terminated by an abandonment by the government of said lands as a National park, and this abandonment may be actual and real, as by a complete and entire surrender of possession, or constructive, as by devoting the lands to some use or occupation inconsistent with its use as a park. Whether the Secretary of the Interior has been empowered to accept a conditional estate such as this would beis to my mind extremely doubtful. On principle, it would seem that his authority is limited to the acquisition of absolute and unconditional estates in lands desired for such purposes as those contemplated by the statute. One made the agent of another for the purposo of purchasing a horse would not be justified in buying a mule or a jennet, neither would he be warranted in purchasing any animal the title to which would be forfoited if employed in any other manner or service than such as the seller might arbitrarily limit or pre- - scribe. In this connection I have examined the deed made on December 26, 1907, by William Kent and wife, conveying to the United States, pursuant to this same statute, the Redwood grove in California known as "Muir Woods" . That conveyance was made upon no condition whatever and without any menner of reservation restriction, or covenant. Although the habandum and tenendum clause recites that the United States is to have and to hold the property "for the public good and as a national monument for- ever," that recital does not amount to a condition (Kilpatrick -V- Mayor of Baltimore , 48 AM. St. Rep. 509, 511) Another consideration in this connection is this : that this property is now held and possessed by a public quasi- municipal corporation for purposes very much the same as those for which it would be taken and held by the government, if this deed should be accepted. Does the statute intend this ? It is true that it does not specifically exclude such gifts, but was it not the intent of the act to secure a public use, in per- petuity, of what is now private property and subject to destruction at the will of the owner ? This may be a doubtful imputation of intent, but again it may be worthy of examination. In any event it may have some important bearing on a determina- tion as to the advisability of accepting the conveyance. I recommend that the matter be submitted to the Secretary for his judgment as to the propriety of taking over this property and, if that inquiry be answered in the affirmative, then 8.8 to now the acceptability of the conveyance as it is restricted and con- ditioned. Very respectfully, W. B. Push. DEPARTMENT 07 THE INTERIOR GENERAL LAND OFFICE Washington June 6, 1914. Chief Law Clerk: Please have the attached papers examined and memorandum prepared, advising as to a proper form for a doed to the United States under the provisions of the act of June 8, 1906, entitled, T E "An Act for the Preservation of American intiquities". A deed transferring thoseportions of Mt. Desert Island, Mai ne, included within the red line upon the attached blue print, is submitted herewith. description of these boundaries is contained in the form for deed. I advised those interested that this form for a deed contained certain restrictions and obligations to be assumed by the United States which I did not think would be considered; that in my judgment the deed would have to be a straight gift without qualifications, except possibly that if in the future should a time arrive when this land was no longer used for National Monument purposes the title should revert at once to the donors. In this connection I have sent down to Div. "I" and secured the original deed of William Kent, giving to the United States under the above act the tract of land which was created the Muir Woods National Manument, California. I would like such advice as will enable me to instruct the Mt. Desert people just what a satisfactory deed should contain. I assume, of course, that an abstract of title should accompany this deed of gift, and will require this in case the Department approves of the creation of a reservation. Frank Bond Chief Clerk. edf 0885 at atnt OTLIDET 11 i w bru ,1119 20 book eldt 8 10 nottsore onl Io ENVOICES toino COPY. May 6, 1916. My dear Mr. President: Mr. borr brought the matter of the proposed National Monument on Mount Desert Island, Coast of Vaino, to my at- tention two years ago. when be first anno on to consult the Department of the Interior with regard to it. I then made the statement to him which I now confirm that the summit of the Mount Desert hills. unique in elovation on our cosat and commanding broadly the entrence to the Bay of Fundy and eastern approaches to Penobacot Bay. with a government coal- ing station in its rear, and a magnificent land-locked harbor in the upper bay, forms a strategic point of great value for the nation to possess, particularly 00 a cosstal observation station in connection with the operation of linos of information, of aeroplanes, and other aircraft, and of moana of defense generally. I believe that the offer of this gift should be acceptad. Very truly yours, George P. Seriven Brigadier General, Chairman, Inter-Departmental Bourd on Constal Communication. The President, The White House, Washington, D.C. COPY. SMITHSONIAH INSTITUTION WASHINGTON May 5, 1916. My dear Hr. President: I wish to add a word of personal and signed endorse- mont to the plan for the oreation of a National Monument upon Mount Desert Island, laid this week before you by Mr. Dorr on behalf of the Hancock County, Maine, trustees of Fublic decorvationa. Mr. Dorr has consulted no upon the matter at various tizes during the past two years. and the locality itself I have beon familier with since student days. The opportunity io certainly a great one, in various depoots, from the public point of view and the example set of liboral and public spirited action in seeking national control of such s spot I fool to be important. Tory truly yours. (Signe&) CHARLESD. WALCONT The President, The White House. Washington, D.C. COPY THIS SECURITARY Oil THE INTERIOR kisshington May 2, 1916. My dear Nr. President: I am familier with President Eliot's and Mr. Dorr's very interesting plan to present to the United States an important traot of land on Mt. Desert Island. I have discussed it with Mr. Dorr and his patrictic pro- jeet has my warm approval. The setting asido of this land as a national monument seems eminently proper and I trust I will be able to lay it before you shortly in a formal shape for your approval. Cordially yours. (Signed) Franklin K. Lane. The President The White House. To the Secretary of the Interior, Washington, D.C. Sir: On behalf of the Hanoook County Trustees of Public Reservations, State of Eaine, I have the honor to offer in free gift to the United States a unique and noble tract of land upon our eastern seacoast, for the establishment of n National Monument. The trnot offered in rich in historic associa- tion, in scientific interest and in landscape beauty. Approximately five thousand aures in extent. it contains within itself the only heights that immediately front the open sea with mountainous character upon our enstorn coast. It contains also. owing to past glacial action and its own variously resistent rooky structure, an extraordinary var- iety of topographic feature which unites with the olimate caused by the surrounding sen to fit it beyond any other single locality in the east for the shelter, growth and permanent proservation of a wido range of life. both plant and animal. It forms a striking and instructive goologic record. And it constitutes the dominant and characteristic portion of the first land, Hount Desert 2. Island, to be visitor, doscribod and ninned by Champlain when sailing under de Monts' ordere in exploration of the New England coaut. The papara I onclose horewith will explain in more detail the thought and purpose of the offored gift, with the reasons which led us to conviction of its excep- tional public value and worthiness to be accepted. She bound volumen of report upon the deeds by which the offered landa are held represent the long labor of one of the most compotent and woll Torand legal firms in Kaine, whose thoroughness of investi- gation may be relied upon with safety. I remain, Sir, with respect, Sincerely yours, May 3. 1916. COPY H. C. Lodge, Chairman, 8. 2. Clark, Clork. UNITED STATES SENATE. Committee on Private Land Claims. Personal. May 22 1916 My dear hr. Dorri- I heard from Mr. Ford this morning in regard to the pass- age of the resolutions by the Society in favor of your gift and expressing the Society's interest in it. I have written Mr. Ford that I thoroughly approved of it and should be only too glad to append my name, 88 president. to the resolutions. It is B. most interesting as well as a very noble gift, and anything that I can do to help it here - if any holp is neodor - will be done with pleasure. I am also indebted to you for sending me the little book containing the original commissions of the King. with kindest regards, I an, Very truly yours, H. C. Lodge (signod) George B. Dorr, Rsq., 18 Commonwealth Ave., Boston