Proprietors of Common & Undivided Lands in Ipswich v. Herrick

75 Mass. 529

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

cited “ Charter, last page; ” ‡ and “ Old Colony Laws, [ed. 1672] page 90, Tit. Liberties Common,” being the ordinance of 1647, Anc. Chart. 148; ante, 465 note.

This report, except the head note, is copied from the records in the custody of the clerk of the supreme judicial court at Boston. Rec. 1772, fob 90, 91

On file are copies of a vote of the proprietors in 1769 as to the mode of calling meetings; of a request, in the required form, to the clerk to call a meeting on the 13th of February 1771; of the return thereon; and of this vote passed at that meeting: “ Voted, that Ensign John Patch, Capt. Isaac Smith, Mr. Isaac Dodge be a committee jointly or severally to prosecute in the law all persons that have or shall trespass in diging clams on the commoners’ clam banks, and pursue the trespassers to finall judgment and execution.”

Also the following paper: “ It is agreed in y8 action Patch fyc. vs. Herrick, that the appearance of one of the committee be admitted for all.

Writ on file, dated March 7th 1771.

On file is a certified copy of this vote of the proprietors at a meeting on the 8th of August 1751: “ The commoners’ committee with Mr. Lufkin have viewed the state of the land at Bull Island, and settled the bounds with said Lufkin, beginning with the southeast side of Bull Island, at the stake and stones between Mr. Thompson’s grant and the Thatch Lott No. 441, so to run on a strait line, as by the compass, northeast and by east, towards Corn Island: To which Mr. Lufkin consented in open meeting.”

Pleas on file.

In the court of common pleas the verdict was for the defendants generally, a copy of which is on file.

Among John Adams’s notes, in the possession of his grandson, Mr. Charles Francis Adams, are the following minutes of the evidence at this trial at Salem at November term 1771.

“ Pynchon. Grant of Ipswich or rather jurisdiction between the towns from Glocester town book 1642, and from the Province Secretary.

“ 1767. Perambulation from Glocester between them and Ipswich.

“ Wm. Choate. The line a mile in the nearest place I should think. People freely dug.

“Lufkin. Freely dug. People on shore, with the commoners and their assigns. Have been mowing. Talk about three years about digging. Never forbid till within these years, and never knew of people’s asking leave.

“ Lufkin. 5 canoes, 15 persons, Cape Ann people. Knew John and Israel Herrick. We said nothing, nor they to us. 4 barrells of meat, 100 bushels in shells. 4 dollars a barrell. Never knew prohibited.

“ Jacob Davis. Went from Cape Ann 5 years ago, and forbid, and we went off. They threatened to prosecute.

“ July 29, 1744 to 1760. Thatch banks, and all the knobs at Bull Island. Leases. 20s. &e. and 2s.

Among the papers on file are certificates of the attendance as witnesses at this and other terms of Jacob Story, William Choate, Thomas Choate 3d, Daniel Lufkin, Nathaniel Lufkin, Jacob Davis and William Butler.

On file are agreements determining the bounds between Ipswich and Cape Ann in May 1642, from the Ipswich and Gloucester town records; an order of the town of Ipswich of March 15th 1659, that “no house henceforth erected shall have any right to the common lands of this town, nor any person inhabiting such house make use of any pasture, timber or wood growing upon any of the said common lands, upon pretext of any right or title belonging to any such house hereafter built, without express leave and allowance of the town first had and obtainedand perambulations of the bounds of Ipswich and Gloucester by the selectmen in 1767 and 1769.

The' only evidence of this is the recognizance, on file, to prosecute the appeal from the inferior to the superior court, which is executed by Porter as attorney of the plaintiffs, and by Farnham and Sargeant as sureties.

“ Provided also, and our expresse will and pleasure is, and wee doe by theis presents for us, our heires and successors ordeyne and appoint, that theis presents shall not in any manner enure, or be taken to abridge, barr, or hinder any of our loving subjects whatsoever, to use and exercise the trade of fishing upon that coast of New England in America by theis presents mentioned to be graunted; but that they and every or any of them shall have fulle and free power and liberty to continue and use their said trade of fishing upon the said coast, in any the seas thereunto adjoyning, or any arms of the seas or saltwater rivers where they have byn wont to fishe, and to build and sett up upon the landes by theis presents graunted, such wharves, stages and workehouses as shalbe neeessarie for the salting, drying, keeping and packing up of their fish to be taken or gotten upon that coast; and to cutt downe and take such trees and other materialls there groweing, or being, or shalbe needefull for that purpose, and for all other necessarie easements, helpes and advantage concerning their said trade of fishing there, in such manner and forme as they have byn heretofore at any tyme accustomed to doe, without making any wilfull waste or spoyle, anything in theis presents conteyned to the contrarié notwithstanding.” Massachusetts Colony Charter, 1 Mass. Col. Bee. 19 ; Anc. Chart. 16, 17. The Province Charter contained a precisely similar proviso, except in limiting the common right of erecting wharves, stages and workhouses, and cutting trees, to “ places lying waste and not then in possession of particular proprietors.” Anc. Chart. 36, 37.