Stacie McCall Whitaker - Stone Coast, Maine

Non Compos Mentis

Written By: Keith Fentonmiller

Exhibit A, In re The Hon. Francis Fortescue, Commission on Judicial Disabilities and Tenure








               Civil Action No. 2019 CA 094368 RP
               Judge Francis Fortescue


Even the most pedestrian legal dispute may rest on a foundation of unprovable or even impossible facts.[1] The following hypothetical is illustrative. Suppose, as a Catholic priest steps into a confessional, his foot breaks violently through the wooden floor, and he incurs a grievous ankle injury—torn flesh, snapped sinews, Commandment-breaking expletives, etc. Suppose the priest then sues his employer for negligence, and the evidence shows that, although barely a year old, the confessional is riddled with dry rot because the Archbishop had secretly instructed the carpenter to construct it from cheaper, reclaimed wood. Perhaps the Archbishop used the savings to purchase a new ecclesiastical hat, despite already possessing three perfectly good ecclesiastical hats. The judge or jury would not have to resolve whether there is an all-knowing deity with the power to spare penitents a hellish eternity (the confessional’s raison d’etre). Rather, the parties would stipulate to those facts. If they didn’t, they may as well be saying that confessionals do not exist, which would be paradoxical, given that the priest had obviously mangled his foot in one. The point is, the fact that the priest’s lawsuit would arise in part from the presumed divine efficacy of a devotional cabinet would not preclude a court of law from adjudicating the case. Litigants operate in the domain of human justice, where hobbled priests have the legal right to seek redress from heartless archbishops, especially those with insatiable hat fetishes.

As in the above hypothetical, the instant matter blazes no new jurisprudential trails. It ostensibly requires a straightforward application of long-settled property law. The plaintiff, Ms. Elouise Severson, asserts she is entitled to a right-of-way (a “prescriptive easement”) across a ten-acre parcel co-owned by the two eldest heirs of Mr. Lynwood Marley. She avers that (1) she and three companions have regularly traversed the Marleys’ Georgetown estate for well over the minimum statutory period of fifteen years, (2) prior to his death, Lynwood Marley was aware said use was hostile to his possessory interests, yet he nevertheless acquiesced to it, and, therefore, (3) Ms. Severson is entitled to a judicial decree formally granting her the right to traverse the Marley estate in perpetuity.

These rather unremarkable allegations readily satisfy the legal standard for a prescriptive easement. Delve deeper into their evidentiary underpinnings, however, and this matter proves to be anything but unremarkable. Indeed, it is nothing short of fantastical—to wit, the plaintiff testified in open court that, until six months ago, she had crossed the Marley estate once a month, every month, for 170 years. The number 170 is not a typographical error. As far as the Court knows, no human being has lived more than 123 years, and mainstream biological science does not substantiate the potential for anything close to a two-century lifespan. How, then, can her testimony possibly be true? Quite simply, she maintains she is a disembodied spirit—a ghost—and, therefore, immune to the ravages of Time. Astonishingly, Marley’s heirs agree. Again, this is no typographical error. Moreover, the heirs take the plaintiff’s contention a step further by admitting to “warding” the estate—reciting ancient Latin phrases, carving symbols into trees, applying rock salt along the property line—to keep spirits like Ms. Severson away.

The Court cannot simply dismiss this case because of the plaintiff’s idiosyncratic nature. First, the Rules of Civil Procedure do not explicitly preclude a ghost from filing suit, nor does case law from this or any other jurisdiction.[2]

Second, the undersigned swore an oath to “administer justice without respect to persons … So help me God.”[3] Strictly construed, this oath prohibits the Court from denying a party judicial access on the ground that she is not a natural, but rather a supernatural, person. The undersigned committed to this nondiscrimination principle by invoking a deity, who, like Ms. Severson, is said to be invisible and insubstantial. How ironic it would be, then, to deny the Almighty God His day in court on the ground that He too is a supernatural person.[4] And the plaintiff most definitely is a person. She asks and answers questions. She expresses emotion. Although she lacks material substance—the Court’s gavel passes through her like a hand through a beam of light—flesh and a heartbeat have never been conditions precedent for access to the courts. If they were, corporations, which, like ghosts and gods, are not natural persons, could not sue or be sued. The Court cannot deny the plaintiff her day in court without reverting to the prejudiced reasoning that gave rise to Dred Scott.[5] This it will not do. Thus, we proceed to the merits.

Situated on ten acres in the Georgetown neighborhood, the Marley estate extends from 28th St. N.W. to a steep slope that terminates at Rock Creek. After eccentric Englishman Sebastian Marley purchased the land in 1798, he constructed a modest rectangular house from locally-quarried boulders. Over time, ivy meandered between the mortared joints and draped over windows and doorways, transforming the house into what his neighbors likened to a massive animal den. Marley later acquired five large mastiffs, prompting him to build an open-air addition with three walls and a roof to shelter them. The following year, he acquired five more dogs, spurring an addition to the addition. Marley repeated this pattern annually, eventually assembling a telescoping, segmented loggia that snakes nearly one hundred feet from the main residence.[6] Marley also installed a thirty-foot-diameter pool guarded by a marble wolf statue: a nod to the family crest, which features the animal. Due to the estate’s “feral” architectural style, the drove of menacing dogs, and the lupine sculpture, neighbors began referring to the Marley estate as a “wolf’s burrow,” an appellation they eventually contracted to “Wolfsburrow.”[7]

Sebastian Marley died before the birth of his son, Lynwood, in 1811. Afflicted with albinism, Lynwood’s ghost-white skin and pale blue eyes, which glowed red in candlelight, made him a pariah long before he grew into his lanky, six-foot-six adult frame. By the 1840’s, Lynwood was acquiring slaves regularly from markets in Alexandria, Richmond, and Charleston. By all accounts, Marley did not employ these slaves for agricultural purposes, nor were there signs of manufacturing activity on the property, such as fires for smelting metal, or men milling about with tools and materials. Just as soon as the slaves arrived at Wolfsburrow, they were gone. This mystery, combined with Mr. Marley’s alarming visage, spawned the outrageous rumor that he was a werewolf and he ate his slaves for sustenance.

Marley’s heirs concede that their ancestor was a werewolf but argue there is no evidence he ever ate or even nibbled on a human being. They say he suffered from lycanthropy, a condition that can trigger both psychological symptoms (extreme fury, delusions, bloodlust) and a physical transformation (thick body hair, red eyes, elongated canines). Mr. Marley’s lycanthropy supposedly could manifest only during the new moon, not during the full moon (as commonly depicted in popular culture), and also contributed to his preternaturally long lifespan. Most relevant herein, the heirs argue that this condition rendered him non compos mentis—i.e., incapable of handling his personal affairs or functioning in society. They claim he had what was tantamount to a mental disability, which precluded him, as a matter of law,[8] from discovering Ms. Elouise Severson’s trespasses over the 170-year period. As a consequence of this disability, they argue, Ms. Severson’s non-permissive crossings of Wolfsburrow could not have begun to count against the estate until Mr. Marley’s death, which was only six months ago, far short of the fifteen-year statutory minimum.

This dispute boils down to what Mr. Marley knew or should have known about Ms. Severson and her companions’ activities on his property, and what, if anything, he did in response. If he was in his werewolf form during their trespasses, then he lacked the mental capacity to discover their presence. If, however, Mr. Marley (a) remained in human form during their trespasses and (b) acquiesced to them, then the plaintiff might prevail. Unfortunately, Mr. Marley is unavailable to testify about his knowledge on these critical questions. According to the heirs, Mr. Marley has permanently “crossed the veil,” rendering him forever outside the mortal realm and, of course, beyond the Court’s jurisdiction. Further, Ms. Severson’s ghostly companions have evaded her attempts to serve them with subpoenas for their testimony.[9] Although the Court issued bench warrants, these witnesses are incorporeal, and the marshals are at a loss as to how to apprehend them.[10] The Court therefore must rely on the circumstantial evidence as well as testimony from the only available witness who knew Mr. Marley: the plaintiff.[11]

Ms. Elouise Severson was born January 9, 1840, in the City of Alexandria, then part of the District. After the plaintiff’s mother, Mathilda, died from excessive blood loss during childbirth, she was reared by her father, Isaac, a Duke Street slave trader who made a small fortune with his partner, Nelson Armbruster of New Orleans.[12] Isaac conducted his business on the first floor of a three-story brick building on Duke Street, while a Haitian slave named Marie Abellard minded Ms. Severson in the second-floor nursery, which overlooked a sizable yard bounded by a tall wooden fence. The plaintiff elaborated as follows: “From the window, I could see Negro men in black top hats and red silk vests. There were women in cotton dresses and head scarves of yellow, orange, and ochre. The children were doll-like versions of their mothers and fathers. The atmosphere was so festive. But when I begged Marie to let me join them, she grabbed my shoulders roughly. She pulled my face close and leaned her forehead, wrapped in an indigo scarf, against mine. Her walnut-brown eyes burned with such severity. She said that Negro slaves were not people but chattel, my father’s chattel. She said Father acquired them on the cheap from destitute planters who could no longer afford them. Then he bathed them, fattened them with bread and boiled meat, and dressed them in tailored clothing to command higher prices at auction. The children with whom I wished to play soon would be sold off, their fine clothes and days of merriment exchanged for rough burlap and brutality in the searing cotton fields.”

The plaintiff recounted her horrified reaction to her nanny’s words. She ran downstairs and burst into the study, where Isaac was showing three children to an extremely tall gentleman cloaked in black. The young Ms. Severson clung to her father’s leg and wailed inconsolably about the soon-to-be-orphaned children. Isaac promptly ushered Ms. Severson to the library, where he reassured her he would never separate slave children from their parents. He placed a hand over his heart and promised as much.

Ms. Severson further testified that, later that evening, Isaac told her about the cloaked man, Lynwood Marley: “Father said, ‘Not a surlier rogue have I encountered in my thirty-five years. Teeth blacker than coal, whites of his eyes so bloodshot, they eclipse his blue-gray irises. Under his hood, his hair is a mass of tangled snakes so hideous that Medusa herself envies him. His nose is a pockmarked landscape, more cratered and ashen than the moon. His breath reeks of the festering meat pies and turned wine that passes his cracked, pale lips … Mr. Marley sought to purchase those slave children to serve his dark purposes. Not for labor. Not to harvest tobacco or maintain the household. Rather, to feast on their flesh. He’s a cannibal. He sets his mastiffs on the trembling Negroes, then sups on their blood and tattered flesh, relishing in the moans and death gurgles spilling from those poor souls like a civilized man enjoys Mozart … I was about to turn Marley away, when you barged in. Few men are as wicked as he, but many in my trade come close. From now on, it will be safer for Marie to watch you at our Princess Street home whilst I tend to business with the unseemly ilk on Duke Street.’

“With the benefit of two centuries of hindsight, I now realize Father was trying to scare me so I would no longer want to accompany him to Duke Street and disrupt his business. He succeeded. The following morning, I feigned a chill and said I should remain in bed, lest I become seriously ill. Father left for Duke Street without me, and I would not visit him there for another ten years.”

On July 31, 1856, the plaintiff, now age sixteen, had just returned from a month-long trip to Paris and wished to surprise her father at Duke Street. Upon entering the building, she spied her father in the study with three other men. With them was a slave woman embracing a boy and a girl, neither older than six years of age.

Ms. Severson testified, “Father called the slave woman Maisy. He said Maisy was twenty-two, a washerwoman and cook who also had proven an excellent and faithful nurse for sick persons. Maisy begged the men to buy all three of them, which confused me because Father didn’t sell children apart from their parents. Why didn’t Maisy know this? Why hadn’t Father explained this to her? It all seemed so unnecessary. The other men began shouting numbers. Three hundred. Three-fifty. Four hundred. Maisy cried aloud. She pulled at her hair and wailed like a dog abandoned in the cold. Father then grabbed Maisy’s shoulders, I thought to reassure her, but it was just the opposite. ‘You shut your mouth now!’ he spat. He threw her hard against the wall. After she slid to the floor, her children rushed to her side, and the girl said, ‘Don’t worry, Mama. Rufus and I will be good. We promise.’

“I felt sick to my stomach. I burst into the study and seized Father’s lapels. I shook him, saying, ‘Tell me I’ve misunderstood. Tell me you are not separating mother and child. Tell me you haven’t broken your promise.’ But Father wouldn’t tell me these things because they weren’t so. He freely admitted he had been selling children apart from their parents for decades. It was high time I knew the truth, he said. Large or small, young or old, Negroes are not people. He likened slave children to pups separated from their mother before their sale to new owners. There was no cruelty in that.

“Never had I felt such fury, such murderous rage. I slapped Father. I scratched at his face. Who was this devil within? ‘Get out, vile spirit. Get out!’

“I said I wished I had died with Mother at birth so I would not have to live to see his damnation. That sent Father into a rage of his own. I dare say something kindled in his eyes. He ordered everyone out of the room but me. He interlaced scolding words with snarls and moved toward me with menacing steps. Just then, Marie, my former nanny, threw open the doors, momentarily distracting Father. I backed away. I should’ve looked where I was going because … because, I don’t know, I must have stumbled and hit my head. It is the only explanation, for, before everything went black, I had a nightmarish vision of Father. He’d changed into an abomination. It couldn’t have been real.

“I awoke in the infirmary, Marie at my bedside, tamping a cool rag on my brow. She bore a terrible cheek bruise where Father had struck her. My head ached awfully, and my wrist was wrapped in a heavy bandage. Marie said the physician had performed a bloodletting in hopes of reducing swelling on my brain. I asked for Father, but Marie did not know his whereabouts. I then realized his absence was a stroke of good fortune. Because Maisy would not be claimed by her new owner until the morn, there was time to rescue her and her children. Marie urged me not to intervene because there was no telling when Father might return and how he might react. She suggested I forget about Maisy. There would be other mothers and children to rescue. Also, it was a new moon, so there would be no light to guide our escape.

“I knew Marie was only trying to protect me, yet her words triggered a choler like none I’d ever felt before. How dare she stand in the way of freedom for a mother and her children! I had to check myself from swooping upon her like a vulture onto a fresh carcass. I demanded she divulge the best route to freedom for Maisy and her children. Reluctantly, Marie told me I should cross into Georgetown at Wolfsburrow and then proceed to the Montgomery Street Baptist Church.

“Later, when all was quiet at Duke Street, I entered the women’s cellblock and woke Maisy. She was disoriented, and I had to waste precious minutes explaining the rescue. So frustrated I grew, I snapped at her, which startled her into lucidity. She gathered the children, and we secreted ourselves outside. We then paid a redskin man for a canoe and crossed the Potomac River. Heeding Marie’s warning about slave patrols, we did not land at Georgetown’s wharf but instead canoed up Rock Creek. It proved difficult, because the summer drought had depleted the water level, necessitating long stretches of portage. Eventually, we arrived at an elm tree with a drinking gourd hanging from one of its massive arms. Marie had said this was where we should climb the hill.

“With soggy feet and two exhausted children in tow, Maisy and I ascended the steep slope. Once at the top, we began our dash across the expansive lawn, toward 28th Street. We did not get far. The boy, Rufus, tripped and fell on a rock, and started wailing. A dog growled in the distance. Though I had never owned a canine or had occasion to learn a thing about them, somehow I understood that this particular growl meant the dog was still asleep. Rufus’s scream merely had roused it to a state of twilight awareness. The hound would drift back into deep slumber as long as we made no more noise. I told Maisy to hush the boy. She cradled and shushed him, but he would not quiet. Maisy said his ankle was badly twisted, perhaps broken.

“My heart pounded so hard, the vessels in my neck throbbed and my vision took on a reddish hue. My wrist wound seemed poised to explode like cannon fire. Meanwhile, Rufus continued to cry, which instigated another growl, this one louder and deeper. The dog was nearly awake! I ordered Maisy to silence the boy, even if it meant striking him. Maisy’s face contorted in horror and confusion. When I inquired, she responded with gibberish. Just chirps and grunts. What was wrong with her? This was no time for such nonsense! She picked up Rufus and ran away with her girl at her skirts. Where the devil were they going? As I feared, the slaves’ carelessness had fully roused the dog, which was now growling so viciously I could feel its rumble in my own throat.

“Suddenly, there was a light shining in front of the main house. Someone was approaching with a lantern. Quickly. I recognized this man’s cloak, his stooped posture, his loping gait, and somehow—in the dimness and over the vast distance—I also could discern his face’s pallid, cratered skin and glowing red eyes. That monster, Mr. Marley, was coming for us. Although Maisy and the children were fifty yards beyond, I deduced their direction by scent—the saltiness of Maisy’s perspiration, the rendered animal fat in which they’d washed their clothes. In no time, I caught them … that is, I mean to say, I caught up to them. Maisy screamed. What a fool! Why give our location away to Marley and his hound? Stupid, stupid woman!

“We were caught. Marley’s ghastly fist struck my cheek. As I reeled, I caught a refracted image of his face in the lantern’s glass—eyes rheumy and red, fangs protruding and sharp. There was growling, too—not from Marley but from his dog, though I still could not see it. Where was the vicious hound? It was circling me, seemingly everywhere and nowhere. Round and round I turned, trying to track it, to no avail. And then … a searing pain in my back, like a hot poker … and then darkness.”

The plaintiff testified that she awoke, disoriented, near Rock Creek’s shore, under the elm tree. At the time, she assumed she had fallen asleep and suffered a nightmare, though she could not fathom why she would have slumbered in the midst of a slave rescue. The drinking gourd hanging from the branch looked different. No longer was it a dried, hardened fruit husk but an ornate crystal glowing with a strange, murky light. Ms. Severson dismissed the mystery, roused her companions, and led them up the steep slope. She was astonished at how little effort the climb required. She felt light, unburdened by fatigue, hunger, or any other bodily urge. They then crossed the Marley estate without incident, headed down 28th Street, and went to the church. But when the church doors opened, a brilliant light overwhelmed Ms. Severson, and she drifted into another dreamless slumber.

The plaintiff and the others again awoke under the elm, only this time the trees had shed much of their foliage, and the leaves were tinged with orange, yellow, and crimson. All of a sudden, it was late autumn. Puzzled but compelled by an irresistible urge to press on, they re-ascended the hill, crossed Wolfsburrow, and made it to the church. Once again, however, they awoke at the creek, this time surrounded by snow. It was then Ms. Severson realized that she and her companions were ghosts, condemned to reenact the failed journey across Wolfsburrow with each new moon. And that they did for the next 170 years, until Lynwood Marley died, and his great-great-great-great-grandchildren, represented by the two heirs, inherited the estate and warded the property against ghosts. Although this action severed the plaintiff’s connection to Wolfsburrow, it did not eliminate her compulsion to cross the land, forcing her to seek legal redress in this Court.[13]

After Ms. Severson vacated the witness stand, a surprise witness appeared in her stead. Dressed in a gingham dress and indigo head scarf, the woman spoke with a West Indian accent and identified herself as Marie Abellard. She claimed to have spent thirty years as a slave for the Severson family of Alexandria, part of that time as Elouise Severson’s nanny. She said she had come to “confess a great sin” so she could “finally cross the veil.” The Court granted her request.

Ms. Abellard testified that she and her daughter Ondine had been slaves in Hispaniola until 1792, when Isaac Severson purchased them from a sugar cane farmer. Thereafter, Marie served as Isaac’s house slave in Alexandria, while Ondine, who was talented with the needle, crafted ornate fabrics for the Alexandria elite. One day, Mr. Severson sold Ondine to Philadelphia textile maker Solomon Fortescue, who, years earlier, had purchased his own freedom and now was seeking a talented person of color as an apprentice. A man of meager means, Mr. Fortescue lacked sufficient capital to purchase both Ondine and her mother. Ms. Abellard had no legal recourse, because Ondine was Mr. Severson’s property, just as she was.

Years later, when Mathilda Severson was pregnant with the plaintiff, Ms. Abellard consulted her grandmother’s book of Vodou spells, one of which purportedly could transform a man into a “Jé rouge” (“red eyes”), a werewolf spirit that preys on the flesh and blood of young children. With this particular spell, the transformation would occur only during the new moon and only when the afflicted person experienced heightened emotion. Ms. Abellard cast the spell on Isaac Severson, assuming his exhilaration over fatherhood would change him into a werewolf at the moment of the plaintiff’s birth. Her assumption proved correct. After Mathilda Severson gave birth, Isaac burst into tears of joy. But then his ebullience turned to madness, his eyes flamed red, he sprouted fangs, and he flew into a violent rage. He tore the midwife’s throat to shreds and then his wife’s. He would have killed Marie as well had not the infant Elouise’s cooing distracted him, prompting him to flee the carnage.

Although the eve of the plaintiff’s birth marked Isaac Severson’s first transformation into a werewolf, it was not his last. Fifteen years later, on July 31, 1856, Isaac got into a heated argument with his daughter, pushed her down, and then bit her wrist as she lay unconscious. He would have killed her had Ms. Abellard not struck him unconscious with a candelabra. “When Miss Elouise awoke,” Ms. Abellard further testified, “she was talking about rescuing Maisy and her children. But I knew she couldn’t go that night. Not under a new moon. Miss Elouise got so upset when I hemmed and hawed. Her voice was like a wild animal’s, eyes filled with bloodlust. I was so scared, I told her the route to the Railroad through Wolfsburrow. I sent word to Mr. Marley that a grave danger was coming his way, but it didn’t help none.”[14]

After excusing Ms. Abellard, the Court announced the following findings of fact and conclusions of law: Mr. Marley not only permitted, but welcomed, runaway slaves to cross his property as they traveled the Underground Railroad. Isaac Severson infected his sixteen-year-old daughter Elouise with lycanthropy on July 31, 1856. As Ms. Severson crossed Wolfsburrow under the new moon, the great emotional stress triggered her transformation, whereupon she pounced on Maisy and her children. Hearing the struggle (perhaps already on notice of the danger), Mr. Marley rushed to the scene and attempted to fend off Ms. Severson, but she was too strong in her werewolf form.[15] Somehow, Mr. Marley managed to kill Ms. Severson (perhaps impaling her with a sharp branch), but not before she had bitten him and slaughtered Maisy and her children.

Because the law provides that either the owner’s permission to use his property or affirmative opposition to said use undermines a claim for a prescriptive easement,[16] Ms. Severson’s initial attempt to cross the estate, which Mr. Marley violently opposed, does not support her lawsuit.

There still remains the issue of the plaintiff’s subsequent, monthly crossings as a ghost, which spanned some 170 years. There is no evidence that Mr. Marley, though infected with lycanthropy, was non compos mentis on those occasions. He did not automatically transform into a werewolf with every new moon; he had to be provoked. Thus, it is possible that Mr. Marley was fully aware of the plaintiff’s regular monthly crossings and did not grant permission for any of them. If so, and if he did not object to or otherwise try to halt these trespasses, she would be entitled to her easement.

To resolve this outstanding issue, the Court opted to inspect the spot along Rock Creek where Ms. Severson and the three slaves first ascended Wolfsburrow on the night of July 31, 1856. The elm tree the witnesses referenced had not yet succumbed to the blight that has eradicated most elms in the District. Dangling from a branch was a dimly-glowing, crystalline gourd, as Ms. Severson had described. Moreover, the gourd had been etched with the image of a wolf whose fierce features were identical to those on the marble statue near the main house.[17] It soon became obvious that the plaintiff and the gourd were interconnected. As dawn neared, the gourd gradually dimmed in direct proportion to the fading of her ghostly essence, and by sunrise, both had vanished entirely. The only reasonable conclusion is that Mr. Marley commissioned the enchanted crystal gourd and hung it on the elm as a standing invitation for Ms. Severson to cross his property with the new moon. This fact eviscerates the plaintiff’s case, for, as noted,[18] a permissive use of another’s property defeats a claim for a prescriptive easement.

For the foregoing reasons, the plaintiff’s petition for an easement across Wolfsburrow must be and is hereby DENIED, and her lawsuit is DISMISSED WITH PREJUDICE.

So Ordered.[19]

Dated: August 2, 2019

[1] E.g., Collins v. Henman, 676 F. Supp. 175, 176 (S.D. Ill. 1987) (accepting habeas petitioner’s assertion that he was the very same prophet Muhammed who had died in the year 632 because “it is not the place of a federal court to decide which is the true faith or who is a true prophet”); accord United States v. Ballard, 322 U.S. 78, 86-87 (1944) (“Men may believe what they cannot prove…Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law.”). (Return)

[2] A judge in a California paternity case presumed that Casper the Friendly Ghost would lack legal standing because “[t]here’s no real person.” In re Baby Boy V., 140 Cal. App. 4th 1108, 1113 (2006). This statement, however, was an off-hand comment by a trial court about an obviously fictional character. The appellate court ultimately reversed the decision on other grounds. (Return)

[3] 28 U.S.C. § 453.(Return)

[4] This, of course, assumes that the Good Lord were to pay the applicable filing fee and subordinate His divine will to the rules of civil procedure.(Return)

[5] See Dred Scott v. Sandford, 60 U.S. 393, 404-05 (1856) (holding that descendants of African slaves are not “citizens” under the Constitution and, therefore, do not have the right to sue in federal court) (Return)

[6] During a hearing earlier this year on the heirs’ application to raise these structures and subdivide the estate, a representative from the Historic Preservation Review Board described the house and addition as resembling “a hovel under attack by a monstrous centipede.” (Return)

[7] Local historian Linda Goldfarb, Ph.D., of Georgetown University, submitted an expert report that provided invaluable historical context. Other background facts derived from contemporaneous accounts reported in The George Town Hatchet, a local newspaper of the day. With the parties’ consent, the Court waived the hearsay rule under D.C. Code § 14-102(b). (Return)

[8] See Restatement (First) of Property § 460 cmt. c (2016). (Return)

[9] Plaintiff’s counsel devised a novel approach to effect service on these long-dead witnesses (a mother and her two young children). He retired to bed each evening with the subpoenas under his pillow until the witnesses appeared in a dream. According to counsel’s affidavit, Maisy, the mother, advised him that she and her children would not get involved with Ms. Severson’s legal dispute. She refused to elaborate and then ran off. When counsel attempted to pursue her, he found he could take only small, slow steps, as if his legs were moving through honey. After realizing he was dressed only in his underwear, he awoke. (Return)

[10] The Court attempted to serve the bench warrants by publication. Cf. D.C. Super. Ct. R. Civ. P. 4-I. Normally, publication in a newspaper or periodical with sufficient circulation would suffice. Maisy and her children, however, reportedly are illiterate. Thus, even if ghosts in general have access to The Washington Post or The Georgetown Current (a dubious proposition), these particular ghosts would have had no ability to read them. To deal with this dilemma, on the eve of the new moon in June, the Court’s two law clerks took separate positions on the Marley estate—one near Rock Creek, the other on the lawn—and kept a lookout for ghosts amidst the swarming mosquitoes and biting ticks. Both held flashlights and copies of the bench warrants, and were prepared to read the warrants aloud should the ghosts appear. Alas, Maisy and her children stayed away. The day before this opinion’s publication, Georgetown Hospital reported that both clerks are now free of the Zika virus and their Lyme Disease antibodies have declined to near-undetectable levels. (Return)

[11] Logistical obstacles necessitated modification of the Court’s standard scheduling order. According to plaintiff’s counsel, Ms. Severson’s “spiritual condition” causes her to appear in the earthly realm only at moonset the day before the new moon and then vanish at moonrise the day after. Thus, the order specified that the heirs could notice Ms. Severson’s deposition only during this roughly thirty-six-hour period. Consistently, the Court set the trial between moonset on July 31 and moonrise on August 2. (Return)

[12] Nelson Armbruster resettled in the District after the Civil War ended his slavery business. Although he faded into obscurity, his descendants subsequently rose to some local prominence. See Alexander Barrington, Former New Orleans Slave Trader Found Naked, Dead outside Negro Brothel, Daily Nat’l Intelligencer, Nov. 1, 1868, at 2; Simon Polk, Commissioner Armbruster Denies Embezzlement Charges: Claims He’s a Victim of a “Secret Negro Conspiracy,” Washington Evening Star, Oct. 18, 1954, at A1; Helen Snyderman, Armbruster Appointed to Superior Court: Weathers Racial Discrimination Charges against Former Law Firm, Washington Post, May 4, 2012, at B1; and Isaac Mendoza, Head of Alt-Right Think Tank Elevated to Chief Judge over Civil Rights Icon Fortescue, Washington Post, June 10, 2018, at B1. (Return)

[13] The plaintiff tracked down Gordon Severson, Esq., a distant relative, surprising him in his bathroom while he was shaving. As he stemmed the bleeding from multiple cuts, he agreed to take on her case pro bono. (Return)

[14] Although Wolfsburrow remained a transfer station on the Underground Railroad, after Ms. Severson bit Mr. Marley, he no longer permitted runaway slaves to cross during the new moon, when he was susceptible to his lycanthropic fevers. (Return)

[15] The monstrous face Ms. Severson testified seeing in the lantern likely was her own reflection. Further, there is no evidence that Mr. Marley kept any dogs on his property. Thus, the alleged growling of Mr. Marley’s mastiff, whom Ms. Severson testified hearing but not seeing, likely emanated from Ms. Severson herself as she transformed into the beast. (Return)

[16] Restatement (First) of Property § 458(b) cmt. c (2016). (Return)

[17] The Court appreciated counsel’s willingness to offer his right thigh as a makeshift ladder and his shoulders as a perch, which made it possible to inspect the gourd closely. (Return)

[18] See supra note 16. (Return)

[19] Following Ms. Severson’s vanishing, Marley’s heirs agreed to honor their ancestor’s unspoken wish by establishing a permanent, non-warded right-of-way through the dense privet hedge running along Wolfsburrow’s property line. In this way, Ms. Severson and her ghostly companions shall be able to continue their monthly crossings without disturbing the rightful owners’ right to quiet enjoyment. (Return)

About the Author

Keith Fentonmiller - Non Compos Mentis

Keith Fentonmiller is a consumer protection attorney for the Federal Trade Commission in Washington, D.C. Before graduating from the University of Michigan Law School, he toured with a professional comedy troupe, writing and performing sketch comedy at colleges in the Mid-Atlantic States. His debut novel, Kasper Mützenmacher’s Cursed Hat, will be published in March 2017 by Curiosity Quills Press. Book One of the Life Indigo Series, the novel is a fantastical family saga about tradition, faith, and identity, set during the Jazz Age, Nazi Germany, and the Detroit race riots of 1943.

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