The Matter of the Evanescing Habendum

The Matter of the Evanescing Habendum

Captain Noonan, the “Bearded Holmes” of the Sandersonville Police Department, was in the process of explaining the importance of a paper trail in the prosecution of a crime when Harriet, the office manager and common sense Il Duce, interrupted the tête-à-tête with Billy-Bob George “Handsome” Weasel, his second in command. Weasel was pleased with the interruption; Noonan not so much.

“Perhaps you can tell him,” Harriet said pointed to Weasel, “how 640 acres can disappear.”

“Disappear?” The question caught Noonan by surprise.

“Yeah,” Harriet said with an I-know-something-you-don’t-and-I’m-going-to-make-you-work-on-figuring-it-out look. “As in ‘poof,’ here and gone. 640 acres.”

“T-h-a-t,” weasel said, “would be very hard to do.”

“All in the paperwork,” Harriet said and allowed her fingers to spider-walk upwards like smoke disappearing into the atmosphere. “And,” pointing at Weasel, she said, “today is your lucky day. We’ve got a two-fer. A loo-loo call for each of you. The poof” (again with the spider-walking fingers), “or the disappearance of a cast of crabs, three of them, 75 pounds each.” She leaned forward into the tête-à-tête. “Missing acres on Line One and the cast of crabs on Line Three.”

“I’ll go for the crabs,” Weasel said quickly reaching for the phone. “I love seafood.”

“Great,” Noonan said flatly. “I’ll see if can find the missing …” spider-walking his fingers, “640 missing acres.”

* * *

“Noonan.”

The voice on the line was shrill, high pitched, ancient and not pleased. “I know you will consider odd calls, sir, and this, I’m sad to say, is one of them.”

“The world has many oddities, Ma’am. And to whom am I speaking?” Noonan was CCC; calm, cool and collected. During the pause, he pawed through the pile of paper on his desk looking for a notebook with at least one blank page.

“Miriam Zyscovich Alexandrea Nelson.”

“That’s quite a name. I’ll need you to spell it out for me.”

“Of course, sir. That’s what everyone says.”

“Fine. And I’m Heinz until a crime has occurred. Even my father wasn’t a ‘sir.’”

“Mine was but that was in Russia in the days before the Revolution. Well, (pause), Heinz, here’s the spelling.”

After Noonan finished writing out her name, he asked where she was calling from.

“St. Petersburg, Florida. Actually, outside of St. Petersburg. I always say St. Petersburg because it’s part of my heritage, my sir name anyway.”

“Let me guess, Nelson is your married name.”

“Oh, you are so clever. I was told you were clever. That’s why I’m calling you.”

“OK, Ms. Nelson. What can I do for you?”

“640 acres of my land have disappeared.”

“Disappeared? As in vanished?”

“You got it. I owned it. My family, actually. Then, one day we didn’t. The ownership vanished.”

Noonan was writing furiously. “I’ll need some more details.”

“Of course. But the story gets very convoluted very quickly.”

“That’s the problem with the truth. It is never easy.”

“I’ll try to make the story as simple as possible but it requires a bit of understanding of American history. It might get complicated quickly.”

“Tell me as much as you can and I’ll do some research.”

“Fine. Let me take you back to the Civil War. Right after the election of Abraham Lincoln, Florida left the Union and joined the Confederacy. That was in January of 1861. Then there was Civil War and Florida was allowed back in the Union in 1868, during Reconstruction ended. Now it gets complicated.”

“I’m all ears.”

“In between the time Florida left the Union and it returned, the United States Congress passed the Homestead Act. In 1862. That act allowed any adult citizen who was not bearing arms against the United States to claim 160 acres of surveyed federal land as a homestead. The land became yours if you lived on it for five years and improved the land.”

“But Florida was not part of the Union in 1862,” Noonan noted as he wrote furiously.

“Yes, no and maybe.”

“I hate answers like that,” Noonan said flatly.

“I told you this would get complicated quickly. We were Quakers and we do not believe in war. We were lucky. The Confederacy was going to lose. It was only a matter of time. Had we not been Quakers, there is no way of knowing if the men in the family would have survived the war. But the key point here is Quakers did not bear arms against the United States so we were eligible to homestead surveyed federal lands.”

“But Florida was not in the union,” Noonan noted.

“Again, yes, no and maybe. It was a gamble. There was a lot of surveyed federal land in the St. Petersburg area and my family claimed 640 acres.”

“But the Homestead Act only allowed for 160 acres.” Noonan cut in.

Nelson cut him off. “True, but the Homestead Act allowed single women to apply. There were three adult children in my family at that time. My grandfather applied for 160 acres, two brothers applied for 160 acres each and my grand aunt, who was single, applied for another 160 acres. They built four cabins on the four corners where the properties met and proceeded to grow cotton. It wasn’t lucrative but it was profitable.”

“Fine,” Noonan added. “But it could not be your land because Florida was not part of the Union.”

“Back to yes and no answers. Just in case Florida went back into Union, we needed to register the land with the Union. That was a bit tricky because if word leaked were secretly dealing with the Union during the Civil War, well, things would have gone terribly wrong quite quickly.”

“OK, so how did you legitimize your claim?”

“My grandfather was a very clever man. He claimed the land with Confederate authorities in 1862, right after Homestead Act passed. He didn’t say it was a homestead filing, just a raw land filing. Then, five years later, after we had improved the land, in 1867, the Civil War was over.”

“But Florida was not a state again until after Reconstruction, in 1868.”

“Correct. And the South was in turmoil. No one knew who owned what with a lot of Southern landowners killed which opened up a lot of property for squatters and sharecroppers and out-and-out land thieves. No one knew what the new form of state government would be. And again, had anyone known we were dealing with the federal government during Reconstruction, we would have been considered traitors — at the very least. So my grandfather, the wily old man that he was, took a steamship to Mexico City and registered our land with the American Consulate. He got an American lawyer in Mexico City to certify the land documents we had filed with the Confederate land office in 1862 and showed him five years of cotton receipts along with some legal documents showing we had lived on the land. My grandparents authenticated my aunt’s residency and she authenticated theirs.”

“Let me guess,” Noonan cut it. “Your two uncles did the same thing.”

“Yes, sir. We had everything we needed on legal paper to acquire the land. And the water rights. There’s a large pond inside the 640 acres and a stream that runs through it. So we could get our cotton to market on a waterway, not a trail. That was important in those days. The American Consulate in Mexico City sent the papers to Washington D. C. and by the time we received title to the land, Reconstruction was long over. Then we owned the land under both Florida and United States law.”

“Did anyone else do the same thing?”

“I doubt it. Maybe. But they would have had to have been as clever as my grandfather.”

Noonan was writing carefully. “So you owned the land. How did it disappear?”

“Now the story gets short. In the 1880s, America developed a spiderweb of railroads. As the railroad tracks extended across America, so did the rights of the railroads. One of those was easements. Do you know what an easement is?”

“Sure do. Part of my land here on the Outer Banks has an easement. It’s a swath of land you own but an electric company or, in your case, a railroad can use. Like for a sidewalk or to use to cut down tree branches that threaten to topple powerlines.”

“Correct,” Nelson said sadly. “We had railroad easements on all sides of the property. As the need for transportation increased into the 1920s, all the land around our property was bought up by the railroad. We were an island of cotton, so to speak. It was good because now we could get our crop to a railroad siding right next to our property.”

Noonan shook his head sadly. “But the downside was ….”

“You have it right. There was a downside. When the railroads — three of them, one after another — went belly-up during the Depression, the railroad lands and the easements went unoccupied. Then, with the start of the Second World War, the United States government seized all the railroad land and easements for the war effort. It was a win for the government because the land had no owner so there was no one to buy out. Suddenly we were in-holders. Do you know what an in-holder is?”

“Oddly, having an Alaskan wife, I do. It’s when someone owns land inside government land. Like a gold mine that was operating when the area was turned into a national park. It’s private land inside government land.”

“You are amazingly well-informed.”

“No, I’ve been in this business a long time. Go on.”

“Well, after the Second World War, the land around us was turned into a massive storage yard for railroad cars and warehouses for railroad repair. It was still federally-owned but there was no thoroughfare, if you know what I mean. The land was simply the storage yard at the end of several rail lines. That lasted until the 1960s when the airplane took away the bulk of the passenger service from the rail industry. The railroads did not disappear, they just switched their business model. Instead of marketing for passengers, they became cargo transport specialists. This transformed the land around us from being a railway storage yard to a transportation hub where teamsters could onload rail cargo onto trucks. With three rail lines terminating in our area, traffic — both rail and teamster — increased substantially. Then, when COVID-19 struck, America went on the mail-order binge. Suddenly the cargo tonnage traffic took a massive jump upwards as did the need for trucking. Mail order was the order of the day and no one sees that changing. With the massive influx of cargo, mail and shipping, our 640 acres in the middle of an expanding transportation hub became a hinderance.”

“Uh-oh,” Noonan said. “Let me guess, suddenly the government and the railroad and the teamsters want you gone.”

“You got it. One morning, a week ago, a bulldozer plowed right across our land. It was making a roadway from what used to be the end of the three railroad tracks to the planned high-speed rail terminal down the road from us. We were in the way.”

“Why didn’t they just buy you out?”

“That,” Nelson said with exasperation, “is why I’m calling you. Everyone is saying our property does not exist. That it never did and we are not even squatters.”

“…and the reason?”

“A handful. First, even if we had homesteaded in 1862, Florida was not a state at that time so that nullified the initial claim. Second, even after Reconstruction, the filing of the homestead claim was invalid because it was done in Mexico. Third, even if the homestead filing had been made, the boundaries were unclear. My grandfather did not have the benefit of specific, scientific metes and bounds. The boundaries of the 640 acres were based on landmarks that no longer exist. So, even if the homestead filings were legal, there is no way of knowing where they are because the corner marks were never established with what are today standard surveying delineations. And we were not squatters because we had never filed for squatters’ rights and even if we had they have been denied as we were within what were once federal transportation corridors and easements. Further, we could not continue to grow cotton on the land because the ownership of the land and therefore the cotton was in dispute.”

Noonan looked at the ceiling and shook his head sadly. “Let me guess. Out of the blue, someone offered to buy your alleged land for a dime on the dollar and if you didn’t agree you’d be in court for years — without your land or the income from your cotton.”

“You’ve been reading my mail.”

Noonan sighed. “OK, let me think about it. I’m going to give you a list of questions. I’ll need the answers when I call you back in a day or two. Do you have a pen and paper?”

“At the ready.”

“Who, specifically, is making the offer to buy you out, when is the terminal for the high-speed rail expected to be operational, who has the contract to make the high-speed rail line, is anyone else an in-holder in the area, what has the United States Department of Transportation said about the high-speed rail line, is anything being moved on the dirt road that was plowed through your cottonfield, is there any other activity on your land or around your land that affects your cotton growing, where are the nearest power lines, how will the high-speed rail be powered and that’s, that’s, all I can think of at this moment.”

“And you are going to call back when?

“When I do. I need some think time.”

* * *

Noonan was about to go to his two tried-and-true sources of information — history and the local papers — when Billy-Bob George “Handsome” Weasel came into his office and sat down. “Just checking in, boss. Wanna give you an update on the crabs.”

“Crabs?”

“Crabs. You know,” Weasel did a spider-walk with his fingers. “The three, 75-pound crabs that disappeared.”

Noonan did the spider-walk back at Weasel. “The vanishing crustaceans. OK.”

Weasel looked at his notes. “The crabs were part of a fundraising campaign. A dozen crabs, all of them 75 pounds of metal, were given to local artists. Each artist painted the crabs in their own special way. Then the crabs were attached to wood pallets and arranged in a vacant city lot. They were to be left out for a week for people and businesses to view. Then there was going to be — will be if the three crabs are found — a public auction. It’s all an effort at publicity for the community. Tourism, you know. It’s a seaside community and lives and dies on the tourist traffic. Tourism is down because of COVID-19 so the city is going public as a crab-friendly city. We are talking T-shirts, gag gifts and all the bars in town are offering crab-itinies, Crusty Bloody Mary’s and Six-Legged-Bourbon-Walkers. The Chamber of Commerce even added a logo to its stationery; a blue crab with large eyes dripping teardrops. Underneath it reads, “The Blue Crab Community. And the locals refer to themselves as living in Crabtown and have adjusted the words of the song ‘Camptown Races’ to ‘Crabtown Races’ and are blitzing the radio airwaves.”

Noonan chuckled. “The crabs to be auctioned off, were they just sitting in the vacant lot?”

“Yup. All on pallets. That will make it easy for them to get hauled away after they are bought.”

“And three vanished.”

“Correct. Vacant lot, no surveillance,” Weasel did another spider-walk with his fingers. “Poof and gone. It will be hard to hide the three because everyone knows the artwork on them.”

“Anything in the local papers give you a clue as to why crabs….” Noonan let the sentence hang as he did the spider-walk.

“Not yet, Chief. I’m just checking in. Letting you know the basics. History first. The newspapers are the next step,”

“You are learning well.”

“Yes, Kemosabe. I will return with an answer when I have one. In the meantime,” he did another spider-walk with his fingers as he exited Noonan’s office.

* * *

When it came to the history of St. Petersburg, Florida, Noonan had little hope of finding anything significant. It was one of the oldest city in North America — that is, European city. It was founded, if that was the correct term, Noonan mused, in 1528 when 300 Spaniards explored the new land. Only four survived. Fast-forwarding to 1875, in the closing days of Reconstruction, two men purchased the land that was now St. Petersburg — John C. Williams and Peter Demens — for the railway they were building, the Orange Belt Railway. Legend has it the two men flipped a coin to see who would name the city. Demens won and named the city after St. Petersburg, Russia, where he had spent time as a youth. It was basically a railway city, one where people passed through rather than resided in. By the turn of the century, its population was about 300. A century later it was still a tiny community by United States standards, 260,000. Clearly, railroads were still a large part of the St. Petersburg landscape. Further, having been established so late, it missed the drama of Andrew Jackson’s invasion of “the Floridas,” and any action during the Civil War. It was, basically, a latecomer in American history even though it was the site of the first arrival of the Spanish.

If the history of the formation of St. Petersburg was lackluster, Noonan’s investigation of land titles was mind-boggling. It was a dive into a maelstrom of legal minutia. Land sales required a Ph. D. in both English and Law just to understand the vocabulary. When he came out of the ocean of terms, the only one which made sense was the habendum clause which meant a document which defined the rights of the two parties. If there were only two parties. And only if said property had no other assets, potential assets or perceived assets such as oil, water, natural gas or minerals. Basically, and specifically for homestead acreage, the homesteader had all mineral rights.

To Noonan, what was happening to the Nelsons was simply a large company squeezing them legally to get their land for peanuts. It wasn’t a case of a crime, just bullyboy tactics. Getting a lawyer was an expensive option.

When he called Miriam Zyscovich Alexandrea Nelson back, he asked if anything had changed since their last conversation.

“Just that Shenandoah Rail Enterprises, Ltd. is expanding the width of the dirt road through our cotton fields,” Nelson said. “We’re expecting heavy equipment any day now.”

Noonan shook his head sadly. “OK, now, the answers to my questions.” He heard paper rustle as Nelson began responding to his questions.

“Here goes. The company involved is the Shenandoah Rail Enterprises, Ltd. and it was established about five years ago. From the research we did, it is a land acquisition subcontractor for a railway association. Again, from our research, it goes after private land railways’ need for expansion and low-balls the owners. Those who don’t pay get dragged into court. Some of the cases are still in court even though the railway has already run rails through their property. It uses the power of eminent domain as the excuse to move the landowners out. In many of these cases, all that was taken was the railway corridor so people ended up with a rail line in the middle of their property with no access across the rail lines.”

Noonan gave kind of a ‘humm.”

Nelson continued. “There is no firm date for the high-speed rail terminal. Bonds are in the process of being sold but it will be years before the first shovel goes into the ground. There is no specific rail company that will own or operate the high-speed line at this date. We assume the rail line will have it’s own power source, we are the only inholders in the area and the feds have not said anything about the high-speed rail line and have no part in the discussion with the Shenandoah company. There are no transmission lines across our property, only the powerline to our buildings. We use cell phones so the telephone line is defunct. At this time there is no traffic on the dirt roadway but we can see dump trucks on the far side of our property so we expect them to be moving at any time.”

Noonan looked at his notes then he asked. “You said you had a lake in the center of your 640 acres. How large is it?”

“Modestly sized. I don’t know the acreage.”

“How about the streams into and out of the lake?”

“Not the Mississippi River but they are wide enough and deep enough for small barges. That’s what the family used to get the cotton out for a century.”

And the gong in Noonan’s cerebellum chimed loudly.

* * *

“I’ve learned from the master,” Billy-Bob George “Handsome” Weasel said as he sat down in the vacant chair in Noonan’s office two days later. “I’ve solved the Cast of Crustacean Caper. You like the literation?”

“Clever. Why the literation?”

“For my memoir! I’m going to write a book someday.”

“Best of luck there,” Noonan said. “Books don’t solve crimes. Tell me about the,” and he spider-walked his fingers, “Cast of Crustacean Caper.”

“Simple. I read the local papers, just as my mentor suggested,” he said as he gave Noonan a nod, “and followed the divorce proceedings of the richest man in town.”

“Go on.”

“He and his wife were arguing over who got the home. She won and he had 30 days to remove all of his belongings. So, with five days to go — he’s in the construction business, by the way — with five days to go he absconded with the painted crabs.”

Noonan cut in. “Let me guess, he installed them in strategic locations around the home he was living.”

“Yes siree bobcat. One in the driveway. Another smack dab in the middle of the walkway to the house and the third in the backyard blocking the backdoor. He cemented them in.”

“And his soon to be ex-wife is hopping mad,” Noonan said flatly.

“Yes siree bobcat again. And with now, three days to go, the cement is solidifying so it will be difficult to get the crabs out of the ground.”

Noonan thought for a moment. Then he said, “. . . and you told the local authorities. . .”

“I’ve learned from the master,” Billy-Bob George “Handsome” Weasel said as he indicated Noonan with his two hands. “I told them there was no law being broken. The crabs had been placed where they would be visible for members of the public see them and bid on them. There was nothing illegal about moving the crabs. Everyone can still see them and anyone can still buy them.”

Noonan gave Billy-Bob George “Handsome” Weasel a ‘go on’ look.

“I know what you’re thinking, boss. Yes, the ex-hubby is expected to drive up the price bidding on crabs he will leave in place. The papers are going to love the drama.”

“No fake news there.”

“Now,” Billy-Bob George “Handsome” Weasel said as he spider-walked his fingers. “Tell me about the evanescing acreage.”

“More grist for your memoir?”

“I’m still learning from the master.”

Noonan harumphed. “It was all about a habendum clause. You can look that up in Wikipedia. Even more important, it’s a matter of perception.”

“I am listening, oh wise one.”

Noonan chortled. “It’s good to hear the younger generation listening. Weasel, far too often in this business, and in life, you get maneuvered into a place where both choices are bad. In the old days — old even for me — it was called being on the horns of a dilemma. Either choice you make is bad. In the case of the missing acreage, the land wasn’t missing. It was just who was claiming it.”

“As in some big company is muscling in on the action.”

Noonan thought for a moment and then nodded. “That’s a good way of looking at it. This left the landowner with a choice: spend lots of money on legal fees or take what she can get. The horns of a dilemma, both choices being bitter tasting.”

“So, what’d she do?”

“I don’t know. Not yet. But this is an education moment, Weasel. There are always alternatives. If you lock your mentality to the two choices, the horns of the dilemma, you are defeated. It is an ancient adage and that’s where it should stay. Today there are so many other options.”

“Like?”

“You expand the horizon of possibilities. You change the battlefield.”

Weasel gave a ‘Huh?’ look.

Noonan gave an avuncular smile. “Weasel, as long as you look at a problem as being one choice or the other, you have locked yourself into a loss. What you need to do is be creative. Rarely is it a Plan A or Plan B choice. There are always other options. It’s just most people don’t want to think about the other options. Or don’t have the backbone to take advantage of the other options.”

“OK, well, in the case, the one with the missing acreage, as I understand it, the big boys are muscling in. They plowed through the land, said the acreage was not legal and offered a dime on the dollar. Plan A is an expensive fight in court. Plan B is to take the money and run. I don’t see a Plan C.”

Noonan chuckled. “Think creatively, Weasel. Stop thinking like the victim; think like a hunter.”

“How’s that?”

“Be creative. What I told the landowners was to block the road. It crosses their property. The Shenandoah company can only cross someone’s private property if it is there is no other access to their land on the other side. In this case there is. There is a waterway. I told the landowners to file a cease and desist for the road and then sue for the damage to their property. It only costs a few hundred dollars to file the lawsuit. Then ask for jury trial. You don’t need a lawyer to file a lawsuit. Let the big bad boys go to court. Let them spend the money fighting the landowners. All it is going to cost the landowners is the time to research how to use the system against the bad boys. The only advantage the big bd boys have is the lack of understanding of the laws by the landowners. Most just give up. That’s why large corporations win.”

Weasel shook his head. “I’m not sure I understand. How can you take a large company to court?”

“That is the point, Weasel. Anyone can file a lawsuit. It’s the follow-up that’s important. There is Discovery and Admits and you can appeal and appeal and appeal. Even without a lawyer. It only takes one person to upset the applecart. Bill Cosby sexually abused women for years. Into the 50s at last count. But one woman said ‘no,’ and that’s what sent him to jail.’

“So the landowners should fight the large corporation?”

“No, the court does the fighting. In the eyes of the court, both parties are equal. Money can buy a razzle-dazzle lawyer but it won’t change the facts. All the landowner has to do is stick with the facts. That turns the table on the corporation. Now it is stalled. If the corporation really wants the land, it will settle out of court. And quickly. And for a lot more than a dime on the dollar.”

“Do you think the corporation will settle out of court?”

“Do you think the soon-to-be-ex-wife of the man who snatched the crabs in the,” Noonan spider-walked his fingers, “Cast of Crustacean Caper is going to fight her ex-husband in court?”

Weasel was silent for a moment. “It will take me a while to think this conversation through.”

“Good for you, Weasel,” Noonan chortled. “And in the future, keep the crabs in mind. Sometimes the best way to move forward is to walk sideways.”

Heinz Noonan novels can be found at www.authormasterminds.com/steve-levi

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