Richardson v. City of Boston
60 U.S. 263 (1856)

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U.S. Supreme Court

Richardson v. City of Boston, 60 U.S. 19 How. 263 263 (1856)

Richardson v. City of Boston

60 U.S. (19 How.) 263

Syllabus

In Massachusetts, a former verdict and judgment in an action on the case for a nuisance is not conclusive evidence of the plaintiffs right to recover in a subsequent action for the continuance of the same nuisance.

The plea of the general issue in actions of trespass or case does not necessarily put the title in issue.

But the former verdict, though not conclusive, is permitted to go to the jury as prima facie or persuasive evidence.

Where there is some evidence tending to establish a fact in issue, the jury must judge of its sufficiency.

It is the duty of the court to construe written documents, but the application of their provisions to external objects is the peculiar province of the jury.

[MR. JUSTICE CURTIS, HAVING BEEN OF COUNSEL, DID NOT SIT IN THIS CAUSE]

This was an action of trespass on the case brought by Richardson against the City of Boston for the continuance of a nuisance which is described in the case of City of Boston v. Lecraw, 17 How. 426. He was the owner of two wharves between which the drain in question was erected, whereby the access to his wharves by boats or vessels was very materially interrupted. The case was tried at June term, 1855, and resulted in a judgment for the defendants. The bill of exceptions taken by the counsel of Richardson will be mentioned hereafter.

As one of the important questions in the case was whether or not the record of a former case between the same parties could be given in evidence, it is proper to see what that record was.

At June term, 1853, a case was tried between the same parties, having also been removed from the District of Massachusetts to Rhode Island. The opinion of the district judge

Page 60 U. S. 264

who tried the case was that the right of property could not be taken from Richardson without compensation, and that, under the circumstances of the case, he was entitled to recover against the City of Boston whatever damages he might prove under the sixth count of his declaration. That sixth count stated the occupancy of Price's wharf by Bullard as tenant, the reversionary interest being in Richardson and the occupancy of the Bull wharf by Lecraw & Perkins, the reversionary interest being in Richardson and averred that the dock in front of these wharves was, and had been for a long time, a public way, slip, or dock, so as to allow a free communication between the wharves and the channel of the sea. Under this instruction of the court, the jury found a verdict for the plaintiff, and assessed his damages at $1,209.69. It was this record of the case, tried in 1853, which the counsel of the plaintiff offered in evidence in the present suit, but the judge ruled that the judgment was not admissible in evidence for any purpose, and refused to admit the same to be put in evidence, to which refusal and ruling the plaintiff excepted.

The plaintiff then offered in evidence an agreed statement of facts contained in the record of the former suit, which the judge refused to admit, and to this ruling also the plaintiff excepted.

The plaintiff then gave in evidence all the documents enumerated in said agreed statement of facts, together with much parol testimony relative to the premises, which it is impossible to specify particularly.

The plaintiff then rested, whereupon the defendants offered the following:

"ORDER OF MAYOR AND ALDERMEN, JUNE 18, 1849"

"CITY OF BOSTON"

"An Ordinance constituting the Board of Health for the city"

"Be it ordained by the Mayor, Aldermen, and Common Council of the City of Boston, in City Council assembled, as follows:"

"The Mayor and Aldermen shall constitute the Board of Health of the city, and shall exercise all the powers and perform all the duties now vested in the City Council as a Board of Health, with the right of carrying into execution such powers and duties through the agency of any persons whom they may select, or in any manner which they may prescribe."

"In Common Council, June 14, 1849. Passed. Sent up for concurrence."

"BENJAMIN SEAVER, President"

"In Board of Mayor and Aldermen, June 18, 1849. Passed."

"A true copy. Attest: S. F. McCLEARY, City Clerk"

Page 60 U. S. 265

And without offering any further evidence on their part, did request the court to rule and instruct the jury that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff, and the violation of those rights by the defendants, such as to sustain the plaintiff's action. The plaintiff on his part did request the court to rule and instruct the jury as follows:

"1. That there is evidence in the case competent to go to the jury, and to be judged and weighed by them that at the time of the grants by the town to Gridley & Baxter of their estates or possessions, there existed a town or public way between those possessions, for access to and from the sea in boats and vessels, upon which those possessions were bounded, and that the right to use and enjoy said way passed to said grantees by the grant of those possessions, and is an appurtenance thereto, and to their heirs and assigns."

"2. That if said way, so bounded on said possessions, existed at the time of the grant of those possessions, and the title to the land thereunder to high water was in the town, but not the title to the flats between said way at high water mark, and the sea or low water mark, and if said title rested in the town subsequently by the ordinance of 1641, then, by and after the said ordinance, said way became shaped and restricted over the flats to the interval between the flats annexed by said ordinance to the possessions of said Gridley & Baxter, and was and continued to be an appurtenance to the possessions so granted to Gridley & Baxter, their heirs and assigns."

"3. That there is evidence competent to go to the jury and be judged and weighed by them that at the time of the grants of liberty to wharf to Gridley, Gill & Bull, there existed a public or town way between the possessions of Gridley & Baxter, and bounding thereon for access of boats and vessels to the sea or low water, and that such liberties to wharf were bounded by said way, and thereby the right to use said way for access of boats and vessels to and from such wharves, one or both of them, became, by virtue of said respective grants, annexed or appurtenant to said grants, and to said possessions of Gridley & Baxter, their heirs or assigns."

"4. That if the jury shall find that at the time of the staking out of said highway, October 31, 1683, the same extended below high water mark, and that the possessions of said Baxter bounded on said way, then by virtue of the liberty to wharf, granted at the same time to the proprietors of lands on Sea Street, the right to use said way for access by boats and vessels to and from such wharf became by virtue thereof annexed

Page 60 U. S. 266

or appurtenant to the possession of said Baxter, his heirs and assigns."

"5. That there is evidence competent and proper to be submitted to the jury, to be judged and weighed by them, that a townway or highway was laid out by the selectmen, October 31, 1683, to the sea or low water mark; that the estates or wharves claimed by the plaintiff were bounded thereon; that said way was a way for boats and vessels, and that, at the time of the acts complained of, plaintiff was the owner and possessed of said wharves, as stated in the declaration, and if the jury shall so find, and that defendants while said way remained, and without a previous due and legal discontinuance thereof, erected the structure alleged in the declaration, and continued the same for the time and in the manner set forth therein, and that by reason thereof the plaintiff has been deprived of the use of said way for access to and from his wharves, with boats and vessels, then the plaintiff is entitled to recover."

"6. That if the jury shall find that by reason of the acts of defendants complained of in the declaration, that part of plaintiff's wharf below low water mark, held by him under a grant of the legislature, has been injured in the manner set forth in the declaration, then the plaintiff is entitled to recover."

Thereupon his honor the judge did decline and refuse to make and give either of the said rulings and directions so prayed by the plaintiff, but did rule and instruct the jury as prayed by the defendants as aforesaid.

Whereupon the plaintiff excepted, and the jury found a verdict for the defendants.

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