Page images

56 That there is not any evidence in the case which will authorize the jury to find that the supposed way or dock between the plaintiff's wharves, from high to low water mark, for the free egress and ingress of boats and vessels to and from the same, as alleged and described in the seventh count in his declaration, was ever dedicated by the town or city of Boston to the public use, either as a public highway, town-way, dock, or public way, for the access of boats and vessels between said wharves to high-water mark, or the egress therefrom to the sea. That there is not any evidence in the case which will authorize the jury to find that the supposed way or dock between the plantiff's wharves, from high or low water mark, for the egress and ingress of boats and vessels to and from the same, as alleged and described in the seventh count of his declaration, was ever duly laid out and established by the town of Boston, or the authorities thereof, pursuant to law, either as a public highway, town-way, or public way, for the access of boats and vessels between said wharves, to high-water mark, or the egress therefrom to the sea."

In accordance with this ruling, a verdict was rendered for the city; and the plaintiff took the case before the Supreme Court at Washington, where, after argument, the ruling of the Court below was affirmed, and judgment was rendered on the verdict for the city. This disposed of the second of the plaintiff's suits.

The trial of the third suit came on at Providence, in May, 1862, before Judges Clifford and Pitman. At this trial the plaintiff admitted that the city authorities had a right to build and maintain the sewer, but claimed damages on the ground that the contents of the sewer caused the water to shoal by accretion at the ends of his wharves seaward and near the same. This was the first time that this claim for damages for accretions at the end of his wharves was ever presented to a jury, and the claim was not in the original declarations at all, but plaintiff contended that it was embraced in an amendment made some time after the suits were begun. The counsel for the city took various legal and technical grounds in opposition to this claim. They contended that no such ground of damage was set forth in the writ. They contended, and offered evidence to prove, that the plaintiff had extended one of his wharves as a solid structure, without permission of the Legislature; and that, if there was any accretion, as alleged, it was mainly caused by this illegal structure. But the city denied that there was any accretion caused by the contents of this drain, and offered much evidence on that point.

The jury were instructed that the drain itself was a lawful structure, which the city had a right to make and maintain; but, if it was

“ So constructed and used as such, that the matter discharged therefrom should cause the water to shoal by accretion on the surface of the soil beneath the sea at the ends of the plaintiff's wharves, and by the sides of them below the mouth of the drain, so as to obstruct, impede, or substantially impair the public right of navigation upon, over, and through the navigable waters of that part of the harbor of Boston, it would truly become a public nuisance; and if it occasioned special injury to the plaintiff, not common to all the citizens, by obstructing, impeding, or substantially impairing the free access of boats and vessels to the foot of his said wharves, or the egress therefrom to the sea, and thereby diminished the value and rents of the same, the plaintiff would have a right of action for such special injury."


In regard to the extension of the Price wharf, below lowwater mark, the jury were instructed that it was a prima facie nuisance, and the plaintiff was not entitled to any damages for obstructions to it, and if it contributed in any substantial degree to the alleged accretion, he could not recover at all.

The jury were out all night, and were unable to agree on a verdict. It was understood that they were equally divided.

At the next trial in Newport, in September, 1862, the jury returned a verdict for the plaintiff for $1,600. The counsel for the city immediately moved for a new trial, for the reason, among others alleged, that the verdict was against the law and evidence, and the directions of the judge, and because of improper proceedings on the part of the plaintiff, when the jury came up to view the premises. This motion was granted, the verdict se taside, and shortly after the cases were all removed to the Massachusetts District where they were pending until the settlement just made.

In the latter part of 1862, and in 1863, both the city and Mr. Richardson brought petitions in the Supreme Court of this State, each asking that the other might be required to bring a writ of entry to try the title to the land covered by the sewer.

The Court decided that the city should bring the action, and it was accordingly brought and tried at the February term of the Supreme Court for Norfolk County in 1866, resulting in a verdict of the jury for the city. This verdict was set aside and a new trial ordered by the full Court on the ground of misdirection in matter of law. The decision of the Court is reported in 13 Allen, 146. A new trial was accordingly had at the February term, 1868, in the same Court, and the Judge ruled that the city failed to make out a title, directed a verdict against it, and reported the evidence to the full Court. Upon this report the case was argued before the full Court in 1869; and again by order of the Court in July, 1871. In January, 1872, a decision was rendered that the case ought to have been left to the jury, and ordering a new trial. In this position of affairs, negotiations were opened with a view to a settlement. The city has never desired anything more than the confirmation of its rights to extend its sewer over the disputed premises to the sea. It has always been ready to give up the title to the land, provided this right could be established, and all claims by Mr.

the sewer.

Richardson for damages in consequence of the erection of the sewer, and would consent to no settlement, which did not admit this right. Mr. Richardson has, heretofore, been unwilling to treat upon any terms which did not involve the payment to him of large damages for the injury done him by

The great changes which have taken place in the condition of the disputed premises, which are now no longer a dock but filled upland, partly occupied by the Boston, Hartford & Erie Railroad Company, and the aspect of the litigation, in view of the various decisions of the Supreme Courts of the United States, and the Commonwealth, have however, induced Mr. Richardson to propose a settlement upon the terms of a mutual release of the fee of the land by the city to him, and of a perpetual right of drainage, and of all claims for damages in the past by him to the city; all suits on both sides to be abandoned, each party paying its own costs. This proposition was, after careful examination of the various questions involved, accepted by the Committee on Claims, and the indenture carrying into effect the settlement agreed upon, has been executed by both parties.

The claims of the parties, who, at the time the sewer was built, occupied Mr. Richardson's wharves as tenants, remain to be disposed of, if they shall be advised to prosecute them, but nothing in the settlement with Mr. Richardson prejudices the defence of the city against his tenants.

[ocr errors]

For the Committee,






This Indenture made and entered into this fifteenth day of April, A. D. 1872, by and between the City of Boston of the first part, and Thomas Richardson of Boston in the County of Suffolk of the second part.

Witnesseth, Whereas a controversy has long existed between the said parties as to the title to a strip of land, formerly flats, but now in great part filled, lying between the Bull Wharf, so called, and the Summer street or Price Wharf, so called, at the foot of Summer street, and easterly of Broad street formerly called Sea street in said Boston; and whereas the said City of Boston in the year 1849, built upon and over said strip of flats a sewer or drain extending to the deep water, and has ever since maintained the same; and whereas the said Richardson brought his actions in the Circuit Court of the United States, claiming damages for the injury caused by said sewer or drain to his alleged right to use said strip of flats as a dock, which actions are now pending in said Court for the Massachusetts District, and whereas by order of the Supreme Judicial Court of this Commonwealth upon the petition of said Richardson the said city has brought a writ of entry in the said Supreme Judicial Court for the County of Norfolk, which writ is also still pending; and whereas all controversies between the parties as to the title and use of said strip of land have now been and are, by these presents, settled and adjusted, and the said suits have all been entered neither party.

« PreviousContinue »