THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Rhode Island, to which it had been removed from the district of Massachusetts.
It 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 the city of Boston v. Lecraw, (17 Howard, 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 (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.
JOHN P. BIGELOW, Mayor.
A true copy. Attest: S. F. McCLEARY, City Clerk. 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.