State v. Peckham and Others

9 R.I. 1

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1868
• Status: Published

Opinion

Durfee, J.

1. The locus of the alleged nuisance is described in the indictment as “ a certain common and public highway and landing place in the town of Portsmouth, in the aforesaid county of Newport, commonly known and called by the name of the Common, lying west of the highway leading through a portion of said Portsmouth from the town of Middle-town, in said county, to Bristol Perry, so called, and extending from said highway to the shore, in a westerly, direction.”

The Attorney G-eneral claims that this description is correct, according to the plat and documentary proofs in the case, and, consequently, that the defendants should not have a new trial under their first exception. He claims that the highway referred to as “leading through a portion of said Portsmouth,” &c., terminates at a point designated on the plat as “ Borden’s Corner,” and that thence “ extending to the shore in a westerly direction,” is “the common and public highway and landing place,” mentioned in the indictment.

This view presents two difficulties. First, a highway terminating at “ Borden’s Corner,” is not ostensibly a highway leading to Bristol Ferry; for, strictly speaking, a highway connects with a ferry only at the water’s edge, and Borden’s Corner is some distance from the water. It may be, that the .open space between “ Borden’s Corner ” and the water goes by the name of Bristol Ferry : but if so, it is not a fact which is apparent on the record before us, and, therefore, not a fact of which we can have judicial knowledge. Second. The area marked on the plat as “ Common at Bristol Ferry,” does not lie West of the highway, even if Borden’s Corner could be taken as its terminus, nor does it extend precisely in a westerly direction, but rather in a direction between northwest and north, from such terminus to the shore. Therefore, we cannot overrule the first exception, without straining both these points in favor of the State. This we do not-feel at liberty to do, and must therefore sustain the first exception, and grant the defendants a new trial.

Eor the guidance of the court in any new trial which may be had, we will also express our opinion on the other questions raised by the exceptions.

2. "We think the ruling covered by the second exception was correct. The committee appointed to divide the undivided lands in Portsmouth, as stated in the exception and documents referred to, made report of their action to the town, giving therein a list of highways, which, in making the division, they had laid out for the convenience of the public.

In the list the committee use the following language, describing what is now called the Common at Bristol Perry, to wit., “And the piece of land near Abiel Tripp’s house, adjoining to the ferry against Bristol, is left for the convenience of the public, in importing and transporting of cattle, sheep, horses, wood, rails, &c., and is bounded,” &c. On this report the town voted, “ That all of the high road, highways, lanes and driftways in the township, as are set forth in a list of the same in the 63d, 6éth and 65th pages in this book, (meaning thereby the list aforementioned,) are allowed and confirmed,” — with the exception of a lane expressly named.

Neither the vote nor the report make mention of any common or landing place by name, but inasmuch as the locality now known as the “ Common at Bristol Perry ” was included by the committee in their list of highways, we have no doubt that it was understood and intended to be likewise included in the allowance and confirmation of that list, by the vote of the free.men of the town.

3. The third exception is not entirely clear in its meaning. If it means, as we understand it to mean, that the plat and deeds are to be preferred to the report as evidence of the action of the committee in the matters to which they relate, merely because they were recorded before the report was made, we do not think the exception well taken; if it rests on other grounds, the defendants will have the benefit of another trial to bring those grounds more distinctly before the court.

4. We also overrule the fourth exception. If the public were entitled to an easement in the locus in quo, either as a common, a highway or a landing-place, the town had no authority to bind the public in regard to the extent of such easement, by submission to arbitration.

New trial granted.