Who Owns the Common

Trustees vs. New Castle Residents

Below is a Letter to the Editor published in the New Castle Weekly (10/12/2022) by Trustee Thomas Wilson, presumably representing the Trustees of the New Castle Common. Mr. Wilson offers the following challenge:

If there are special interest groups or individuals that contend the Common belongs to the citizens, I demand they prove this. Show us in writing when this happened,

This challenge was accepted by a former Trustee whose response is published following Mr. Wilson’s letter.

The following response was provided by Anne Dorsey Fiske, Trustee from December 16, 2006-December 16, 2018.

I assume that Mr. Wilson’s letter, headed “The Truth about the Land Owned by the Trustees of the New Castle Common,” is an official document approved by the Board of Trustees, as when I was a Trustee, we were requested not to make individual public statements about the Trust.
            Unfortunately, his letter has a number of inaccuracies, beginning with the title.

1. The Trustees do not own the land or any other assets that belong to the Trust. The 1764 Charter directs the Trustees “To HAVE AND TO HOLD [capitals in the Charter]” the land “in trust…To and for the use of the…Inhabitants…And to no other use, intent or purpose whatsoever.“

             The New Castle residents are all beneficiaries of the Trust. According to the Delaware Code, a beneficiary is someone with an interest under any trust arrangement under which a trustee holds legal or record title to personal or real property. The Trustees’ responsibilities are to hold title and manage the Trust property under the terms of the Trust Charter for the inhabitants of New Castle, the beneficiaries; they do not “own” Trust property.

            All beneficiaries of a trust have the right to monitor trust activity and take legal action if they suspect the trustee has breached his/her fiduciary duty. When I was on the Board, Andrew Taylor, our lawyer, told us that every resident of New Castle has the standing to sue the Trustees. The fact that the Trustees refuse to respond to FOIA means that residents don’t have access to the information we need.

2. Mr. Wilson says that he and the other board members are “appointed.” They are not; they are elected by those Trust beneficiaries who have registered to vote in the Trustee elections. In 1764 the two Penn sons appointed 13 trustees with the proviso that in the future Trustees would be elected, as they have been ever since.

3. He claims that In 1792, an act of the Delaware General Assembly made the Trustees a corporation. The Trustees were already incorporated in the 1764 Charter. The 1792 Act stated that the Trustees:

are [currently] vested with corporate powers merely adequate to the regulation and protection of the said inhabitants [of New Castle] in the use and enjoyment of the said tract of land as a Common…