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.
MR. JUSTICE GRIER delivered the opinion of the Court.
This is an action of trespass on the case brought by the
plaintiff in error against the City of Boston for the erection and
maintenance of a drain at the foot of Summer Street, which, it is
alleged, is a nuisance and injurious to the property of plaintiff.
He is owner of two wharves, called the Price and the Bull Wharf,
which are extended from high to low water mark, from the lots which
adjoin Summer Street on each side.
Page 60 U. S. 267
The nuisance which is the subject of complaint in this case is
the same as that in the case of
Boston v.
Lecraw, decided in this Court and reported in 17
How. 426.
The declaration contains seven counts, in four of which the
plaintiff, as owner of the several wharves, and having the seizin
and possession, claims a right of way as appurtenant to the same
over the "dock" or "way and dock" which constitutes the interval
between the wharves; also, that his wharves are bounded on the
"town dock," "town way or deck," which he alleges to have been long
used as a "public dock, slip, or way."
The fifth and sixth counts are for injuries to the reversion,
with like averments. A seventh count avers the wharves to be
bounded, respectively,
"by a highway, town way, or public way, to the sea, extending
from the corner of Summer and Sea Streets to the channel, or low
water mark, which was duly laid out and established pursuant to
law."
The defendant pleaded the general issue, and on the trial the
plaintiff offered in evidence the record of a former verdict and
judgment rendered in his favor in an action against defendant for
the erection of the same nuisance, the continuance of which is the
subject of the present suit. The rejection of this evidence by the
court is the subject of the first bill of exceptions.
It is contended that this record was not only evidence, but
conclusive of the right of the plaintiff, and
prima facie
evidence of the continuance of such right, and that plaintiff,
having no opportunity to plead it as an estoppel, may exhibit it as
matter of evidence.
It may be admitted that numerous decisions may be found in many
of the state courts affirming this proposition; nevertheless it has
not been universally adopted. The leading case of
Outram v.
Morewood, 2 East. 174, establishes the following proposition,
in which all concur:
"That if a verdict be found on any fact or title distinctly put
in issue in any action of trespass, such verdict may be pleaded, by
way of estoppel in another action between the same parties or their
privies, in respect to the same fact or title."
But estoppels, which preclude the party from showing the truth,
are not favored. To give the verdict the effect of an estoppel, the
facts must be distinctly put in issue.
The plea of the general issue in action of trespass or case does
not necessarily put the title in issue, and although the judgment
is conclusive as a bar to future litigation for the thing thereby
decided, it is not necessarily an estoppel in another action for a
different trespass. The judgment can
Page 60 U. S. 268
only give the plaintiff an ascertained right to his damages and
the means of obtaining them. These principles seem to have been
adopted by the courts of Massachusetts and applied to cases like
the present. In the decision of this point we must be guided by the
decisions of the courts of that state.
In the case of
Standish v. Parker, 2 Pick. 20, which
was an action for a nuisance, the court said:
"We think it very clearly settled that nothing is conclusively
determined by the verdict but the damages for the interruption
covered by the declaration. In actions for torts, nothing is
conclusively settled but the point or points put directly in issue.
By the plea of the general issue, the title is not concluded,
because it cannot be made to appear upon the general issue that the
title ever came in question."
See also 15 Pick. 564.
Nevertheless, though a verdict in such case is not conclusive,
it is permitted to go to the jury as
prima facie, or
persuasive, evidence. 3 Pick. 288. If the evidence of the facts
involved in the first trial are still doubtful, if witnesses were
then examined whose testimony cannot now be obtained, for these and
many other reasons the former verdict may have the effect of highly
persuasive evidence on another trial of the same question. But if
on the last trial new evidence has been discovered, or if the
question of title submitted on the first trial was connected with
instructions in law which have since been found to be erroneous, or
if a different verdict on the same evidence would have resulted
from the different instructions given on the last, it is plain that
the first verdict could have but little or no persuasive effect.
Title is often a question of mixed law and fact -- and a party is
not concluded by an erroneous opinion of the court pronounced in a
former case.
We are of opinion, therefore, that the court erred in not
permitting the record of the former suit to be given in evidence to
the jury.
2. At the conclusion of the trial, the court, at the request of
defendant's counsel, instructed the jury "that there was not
sufficient evidence in the cause to authorize the jury to find the
rights claimed by the plaintiff."
As it is the duty of the jury to decide the facts, the
sufficiency of evidence to prove those facts must necessarily be
within their province. The jury cannot assume the truth of any
material averment without some evidence, and it is error in the
court to instruct the jury that they may find a material fact of
which there is no evidence. An instruction like this is imperative
on a jury; it has taken the place, in practice, of a demurrer to
evidence, and must be governed by the same rules. If there be "no
evidence whatever," as in the case of
Page 60 U. S. 269
Parks v.
Ross, 11 How. 393, to prove the averments of the
declaration, it is the duty of the court to give such peremptory
instruction. But if there be some evidence tending to support the
averment, its value must be submitted to the jury with proper
instructions from the court. If this were not so, the court might
usurp the decision of facts altogether and make the verdict but an
echo of their opinions.
The court below seems to have considered the decision of this
Court in the case of
Boston v. Lecraw as requiring them to
give the instruction demanded by the defendant. The action in that
case was for the same alleged nuisance by a tenant of the present
plaintiff. But the plaintiff in that case claimed no other right of
way over the lands of defendant save the public right of
navigation, and this Court decided that the public right of
navigation between high and low water mark was defeasible at any
time by the owner of the subjacent land. That as the space between
the plaintiff's wharves had been converted into a dock by the
accident of its position, so long as it remained unreclaimed, every
person had a right to pass and repass over it. The exercise of this
public right for any length of time whatever would therefore form
no grounds of presumption either of a public dedication or a
private grant to the owners of the adjoining wharves. While it
remains unreclaimed, it is a public highway or dock by a paramount
but defeasible title. The adjoining wharves may receive much more
advantage than others from the use of it, but they cannot convert
it to a private use, under color of a public right.
The public officers of a town have no right to lay out a town
way between high water and the channel of a navigable river, or
appropriate the shore or flats to the use of the inhabitants of a
town in the form of a way or road. 1 Pick. 179; 5 Pick. 494. But in
the present case the City of Boston is owner of the land, and has
the same right to reclaim their flats which other owners have.
Before they are so reclaimed, the public and the adjoiners may
exercise their paramount right of navigation. But if the city
elects to reclaim its portion of the shore and extend Summer Street
to low water, it has a right so to do. And if the street should be
less beneficial to the adjoiners in this form than when they could
use it as a dock under the public right of navigation, they cannot
complain. The absence of these advantages may be a loss to them,
but if incurred by the defendants' exercise of their own rights, it
is no wrong to them.
But if the city has determined to reclaim this land, and has
laid out a street thereon or continued Summer Street to low water
mark, the right to use it as a street or highway on land
Page 60 U. S. 270
becomes appurtenant to the property of the adjoiners. It may be
the duty of the city to make drains along or under the streets, but
they cannot construct them so as to hinder the public use of them
as streets, or erect thereon a nuisance to the adjoiners. If Summer
Street be extended to low water, the plaintiff has a right to pass
along and across the same, and anything which obstructs such
passage is a nuisance, and injurious to his rights.
The seventh count of plaintiff's declaration claims a right of
way as appurtenant to his land or wharves on the ground that Summer
Street extends to low water. In support of this allegation, the
following entry in the town records was given in evidence:
"October 31, 1683. The selectmen all met this day, staked out a
highway for the town's use on the southerly side of the land
belonging to the late John Gill deceased, being thirty foot in
breadth from the lower corner of said Gill's wharf next the
sea."
It is the duty of the court to construe written instruments, but
the application of their provisions to external objects described
therein is the peculiar province of the jury. Whether this document
describes Summer Street as it was afterwards laid out from high
water mark; whether "the lower corner of Gill's wharf next the sea"
was at that time in 1683 at low water mark; whether this street was
staked out to low water, were questions which should have been
submitted to the jury. The fact that the learned counsel differ so
widely as to the situation of the points called for as the boundary
of the street next the sea shows conclusively that it is a question
for the jury, and not for the court.
Moreover, the court were requested by plaintiff's counsel to
instruct the jury,
"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."
There was some evidence that the drain constructed by defendant
was not carried out sufficiently to discharge its contents so as to
be swept off by the tides, but that it caused an accumulation of
matter at the outer end of the plaintiff's wharves, insomuch that
vessels could not approach them with the same depth of water as
formerly. If this be so, it was an injury to the plaintiff, for
which he was entitled to recover damages.
This question should have been submitted to the jury, and this
instruction given, as requested by plaintiff's counsel. The
Page 60 U. S. 271
others are disposed of by the opinion of this Court in
Boston v. Lecraw.
For these reasons the judgment is
Reversed and venire de novo awarded.
