Woody v. Harrison

2 Rec. Co. Ct. 651

• Court: New York County Court, Suffolk County
• Decided: January 25, 1675
• Status: Published

Opinion

Richard Woody plaint. agt John Harrison Defendt in an action of reveiw of an action commenced agt the sd Woody at a County Court held in Boston January .1674. by the sd Harrison who complained that the sd Woody did injuriously cut down his Fence upon the land of the sd Harrison claiming an interest in the sd Land calling it common Land, pretending Town order to make it common to the damage of the sd Harrison at Least £.200. in which case the sd Woody was cast to his damage about £.200. in regard the sd Woody is deprived of a sufficient highway to his pasture upon the Fort-hill whereby the rent & improuement of the sd Land hath been lost about two yeares with other due damages according to attachmt dat. January. 19° 1675. [357]. . . . The Jury . . . founde for the Defendt costs of Court being ten Shillings & six pence. The plt appealed from this Judgemt unto the next Court of Assistants & himselfe principall in £.10. Capt Wm Hudson & mr John Lake Sureties in £5. apeice acknowledged themselues respectiuely bound to . . . prosecute his appeale . . .

[A review of Harrison v. Woody at the previous January session; see above, p. 528. In S. F. 1432.7 is a deed from Richard and Grace Gridley to John Harrison, dated 5 November 1666, of a tract of land “for a Ropefeild” near Fort Hill, Boston, and in S. F. 1432.8-14 are depositions affirming the passage across which Harrison had erected a fence to be a public way. Most of the deponents are old men, and one of them testifies (S. F. 1432.14) to the road’s being “reputed a Town highway.” This illustrates the custom of calling old men to testify as to neighborhood reputation concerning ancient boundaries.

Woody’s Reasons of Appeal (S. F. 1432.4) and Harrison’s Answer follow:

Richard Woody His Resons of Appeale From the Judgt of ye County Courtt Held Att Boston Janry 25: 1675.

Imprs: The First Reson of my Appeale Is because my Case was not Rightly vndrstood I humbly Conceaue Att the Last County Courtt; For my Complaintt against the Defendt Last Courtt was For the great Injory and Damage In ye County Courtt Before as I Doe Apprehend When the Defendt Sued me for Cutting Down the fence he had Sett vp vpon the town High Way, By vertue of Which he stoppeth me outt of the Injoymt of the High Way that Leadeth to my Land vpon Forthill Which my prdcessor and I haue Injoyed aboutt forty yeares and neuer was stopped o[ut] of nor Molested In ye Injoyment off, till the yeare 1674: which was After my [prede]cessor (mr Belcher) was Dead: Which High Way being stopped Caused me to loose [torn] Rentt and Am Dayly Damnifyed Which I sufficiently proued at ye Last Courtt, [torn] that the Jury Notwithstanding soe many plaine Euidences Cast me Contr[ary] to Law Title Possession Which make Me Come to this Honord Courtt For Releife.

2: The Town From Time to Time Made Orders For the Conueniencies of m[en] to Come to there Lands & thatt High Wayes should be laid outt For Euery man in ye towne to Come to his Lott as Appeares by A Town Order made in ye yeare 1635: and to this lott of mine the Land in Controursy was laid outt as a High Way aboue forty yeares agoe & quiatly Injoyed till ye yeare 1674.

. 3. This High Way was there Laid outt by the townes order As is Testifyed by Cap[*] James Johnson & Richd Wayte who mentions the prsons thatt Were appointed for thatt end, & Riehd Wayte also Testifyes that he Drew the Chaine before mr John Oliuer to Lay outt this as a High Way where y® Defend* makes Roapes: and that this Land in Controursy is A High Way & that it was soe Laid outt by ye towne Order aboue Forty yeares since, and Neuer Disanulled by any .Town Act is Testifyed by Elder Ransford, John [0]dlin, Thomas Matson sen1, Francis Hudson, Edmond Jackson, Hugh Drury & seuerall Others.

4 Because The Court Did nott see good to Admitt ye Testimony of Gemaliell Wayte which I Judg Was very prtinent to my Case, Who Testifyes that the Way in Controursy he knew to bee a high way this forty two yeares, and in ye yeare 1639 Elder Leuerett & Elder Oliuer wentt wth him to ye Water side & did shew him this pease of Land to bee A High Way & it was laid outt by ye towne; & ye Good[man] Gridley 35 years agoe had shewed him ye Land yt was laid outt as A High Way (as the Elders had shewed him before) & told me it was laid outt as A High Way to goe vp to ye fortt hill: and also testifyes that flue men might March A brest in ye High way Which Testimony I hope this Honord Court Will Accept of that soe the truth of the Whole matter may be vnderstood:

5 As to the Defendts Pretence of A Rightt to the Land In Controursy he neur had any, neither Cold he Claime any prtended legall Right till ye yeare 1666. as per his Deed Appeares, nor an Interpritat nor Acknowledgment of his deed tell ye year[e] 1672: and to the Land In Controursy he neur had any, neither Cold Good: Gridley sell him any: For ye Land in Controursy was A High Way Laid outt by the townes Order Forty two yeares agoe; and that Many yeares before Good Gridly had a Right the[re] and If Good Gridley had pour to sell part of ye Land in Controursy to Collonell [S]earle & others Sure itt Cold not be ye Defendts butt Good Gridley had no Right to sell the Land In Controursy to ye Defendt nor any othrs Butt in all G: Gridleys Deed he Mentions A High Way to A [barr] Gate vp Fort Hill:

6 As to His Euidences He Brought in Against me: which I Conceaue the Jury Cast me vpon the Last Courtt: they are very Imprtinentt Euidences to ye Case For one of them (vizt Deeon Allin) is only a Hearesay: and the other you Will Finde makes an Interpritation of his Euidence in his Addition vizt Abell Porters Two Euidences Compared together; Butt were there Euidences possitiue which they haue giuen how Can any man sware that another mans Land he liues vpon is his own Except he Were at ye Bargain Making or was a Wittness to the Deeds or see ye Deeds. But ye Land Cold not bee the defendts by there Euidences as to his Injoying of itt 28 or 30: yeares as his owne are very vnsafe For he had no Deed till the yeare 166[6] and nott Confirmed till the yeare 1672. Butt the Land in Controursy was Laid outt as a High Way Aboue forty yeares Agoe, and If Good[man] Gridly had sold it to ye Defendt & made it neur soe sure by Deed, it Wold signify nothing, For it was none of his to sell, & If the Defendt hath any Damage Done him he may seek his Remedy of ye prsons Estat yt sold it to him; Butt this Action of the Defendts is only to Couett the Land laid outt by ye town as A High Way to Benifit himselfe and is A breach of that Command thou shalt not Couett: Butt this High way was Laid outt to the plantiffs Land there being noe other place for A High way to this Plts Land butt this wch the Towns Order saith there shall be a high Way too:

7 This High Way which ye Defendt Claimes was Euer A High Way to ye Fort hill For Samll Sindall & Robt Sandford Carted that Way Without any Molestation by ye Defendt because ther is no other High Way Laid out By ye townes Ordr to the Fort Hill, also mr Robt Gibbs when he built his house Carted that Way and Challenged it for A town high Way: and For the Defendt to stopp vpp ye High way ye leads into ye plts pasture, which he & his prdecessor hath Injoyed For this Forty yeares, is Contrary to ye Law Title Possession, which land the Defendt neur made any Demand of or Claime to as his own till the yeare 1674. and that after he had gott his Deed With the Interpritation Entered & Recorded and then begins to Grumble & Disturb & molest me In ye Injoyt of ye High Way to my Pasture, neither was there any Fence sett vp by him Nor Good Gridley; (to Hinder ye Free passage into my Land) till the yeare 1674. Butt what fence or Barr that was sett were sett vp & Mainteined by my prdesessor & myselfe:

8 As To His prtence of His Right in The Towne High way as his own & to take itt away by Forse. I hope ye Honrd Court Will Considr that he Neuer Claimed it till the yeare 1674, thatt he Stopped my Barrs vp: For they allwayes Were open for any man to pull vp & Down till that time & had A free passage Without Disturbance Neither Was his Claime Euer Entered In any Record, as yett to Thatt high Way or Land In Controursy

Lastly The Land Within Fence Was First Capt Morris Land & then Elder Leueretts butt the Land In Controursy, butt the Land In Controursy Was neuer there land Butt Was Laid outt For a Town High Way For ye vse of the Towne to goe vp Fort Hill, and Laid outt by Elder Leuerett himselfe as A town High Way and he neur Did Dispose of it to Good[man] Gridley nor any other as it did [E]ur yett appeare Butt I haue Sufficiently proued that sd Gridly owned there Was a High way vp the Fort Hill where sd Harrisons Rope yard now is: and the High Way or Land laid outt for a High Way Was Laid Outt by the Townsmen and by the ordr of the Town, and that According to or Law Title High Wayes Sect the Second, and you Will not find there that the towne are Bound to Record the townes High Wayes: Soe there plea as to that Article is of Litle validity Butt Wee haue sufficiently proued First that the High Way was Laid Outt by the Towne & thatt this Land In Controursy is the High Way: 2ndly thatt itt was laid outt aboue forty yeares agoe: 3rdly. Thatt I and my prdecessor Haue Jnjoyed it Without any Molestation till ye yeare 1674 about Forty yeares, All Which J shall leaue To the Honord Courtt And Gentlemen of ye Jury Seriouly to Considr off nott Doubting Butt they Will see Just Cause to Reuerse the Formr Judgt and Grauntt Mee my Just Damages Susteined

Richard Woodde

These Reasons were received pr° Martis. 1675.

per Isa Addington Cler

S. F. 1432.6

John Harrison his Answer to Richard Woodys Reasons of Appeal from the Judgment of ye County Court held at Boston Jan: 25: 1675

Allthough the Plantiffe make a Large declaration of his case by many assertions which if true, might seeme to have some reason in them, yet being examined will appeare but false pretences to darken the truth of ye case, but time will not permitt So to enlarge haveing more awefull things vpon my heart then willingly to contend for land when desolations are Soe many. But to his first ye Plantiffe saith the Jury cast him contrary to ye law of possession, the contrary is evident for ye Jury cast him according to ye law possession as hath & shall be made appear.

To his Second what orders the Town made is not my worke to inquire after, but the Plant: no where alledgeth much lesse proveth that any was laid out through the Defendts Land, to ye Plant: Land, or that the Land in controversie was laid out for a Highway for any such end

To his Third if this way were so laid out as is affirmed, yet it reacheth not ye plant: case, but of the truth of that wee doubt, for Capt: Johnson wee concei[ve] not capable to take an Oath, Another Testyfies & Sweares, it was done by the Select men & committe of Militia, allthough there was no Committe of Militia in being or any such power in military officers tell some yeares after, Select men & military officers might doe something for the present occasion, but nothing appears Legally that they did act as Select men or Committe of Militia

To his Fourth Gamaliel Waite speaking of other persons who in there lives were honourable & in there death blessed Had they themselves declared in open Court & not given Oath it would not a been Legall testimony, then why another hearing them Speake (it is like some thing of what was done) his oath should reach our case wee doe not vnderstand, but much of that ye Defend will not deny, for he was not here, but this reacheth not ye Plant: or his interest, sd Waite Speaks onely of a way to Fort hill & Souldiers march thither, now ye Towne hath laid out a way thither many years since, which is within a Stones cast of ye Defend land, & need not to come vpon ye land in controversie

To his Fifth ye Plantiffe greatly mistake himselfe to affirme ye Defendt hath no Legal right (calling his right a pretended right) tell ye yeare 1666 intimateing our Law must be of no force but as it sutes the Plant: Interest whereas the law is exspress, Title possession page 123, & after vpon a question in ye yeare, 72, it is answered in the affirmative if a person possesse & have no deed it shall remaine ye possessors, now this Land by virtue of that law is yeLegall right of ye Defend4, in ye yeare, 62, allthough ye Plant: affirmeth not pretended tell, 66, What he meaneth by Gridlyes Selling to Col: Serle wee vnderstand not, no such act appearing.

To his Sixth If positive testimony of possession presented, help vs not, Then the Law is vseless, & no man can know his owne, but for his asserting, one is á hearesay if soe it is good proofe as he inserts in his Fourth Reason & would demonstrate ye whole matter, but doubtlesse there Testimony remains Firme, many more might be produced both in Towne & Country of ye Defend: possession if Two were not sufficient Testimony, much is Spoken & reitterated of its Laying out 40 or above 40 years since, to which wee Say little, but if Law be Law this Land is ours now, for besides the invitation given me by the Townsmen of Boston the same which ye Plant: affirmes laid out this highway, did procure to ye Defend4 the land now in controversie of Gridle, & in ye yeare 42 I honestly bought & paid for ye Said Land as by his Deed appears, acknowledged in 66 confirmed in 72 the Law title possession give it fully to the Defend4 quietlie inioying the Said land before, 52, & the Plantiffe intimated no question about it tell, 74, but ye plant: seemes soe religious to charge ye Defend4 with the breach of ye 10th commandment, but himselfe passe over ye 9th & boldly affirms there is no other place for a high way, to ye Plant: Land which he doth or may know is absolutely false for there is a highway to Fort hill & Towne land lyeing faire to ye Plant: Land, which the Defend4 earnestly desires The Jury to walke to ye place to see for there owne satisfaction

To ye Seventh, wee Answer who did Cart that way in former times the Defendt knowes not, but sure he is he hath inioyed it as yt Law directs if it be possible Soe to doe, for he hath built vpon part of it, & set downe stakes vpon it from end to end & worked dayly vpon it not onely in seed time & harvest but in all seasons of the yeare, soe as no cart can passe that way but his Stakes must be first pulled downe, which none did soe as to weaken the Defendt Title, if any at any time have transgressed, his title notwithstanding remaines, if any improve my oxe Cow or horse that doth not give title, if any goe into a mans Shop or ordinary without askeing leave I suppose ye Plant: knowes this gives no title, it Sutes well with the Defendt trade that men passe by that way, & his predecessor never desired more; yet he did oft travel ye way that is now laid out. For ye Fence setting vp wee Say that mr Belcher did make & maintaine it & ought soe to doe but now ye plant: supposeing to get the Defendt Land thereby have laid downe Said Fence, wherevpon to prevent Strife ye Defendt hath set it vp & maintains vpon his owne charge,

To his Eighth It Seemes Strange any man should be Soe bold Soe oft to affirme it is the Townes Land & accuse ye Defendt to take it by force which he abhors ye Law being allwayes open, & he had no occasion to make any claime of that which he did quietly possesse, & ye Plant: ones there was allwayes Barrs, to ye Fort hill, & therefore not an open high way, as hee [would] to ye Said Hill & ye plantiffs Land, & to yr ye Defendt entred no claime & how many doe or will enter a claime of that he quietly possesss & no man questions

To his Ninth what Storyes he tells whose this land was is not my worke to demonstrate, wee may affirme the Land was Elder Leverets & Sould to Gridley but wee have proved to ye satisfaction of the Law & two Courts & Juryes that the land is now ye Defendts, some thing he tells as by heare Say that Elder Leveret himselfe laid out ye way which he himselfe sould to Gridley; But his assertion that the Towne is not bound to Record there highwayes, veryly no, wee owne it, nether when they have laid them out are they vnalterable, but they may lay downe one & take another more convenient, in ye Towns Land, To his conclusion that this Land was laid out a high way about 40 yeares agoe & that his predecessor had inioyed it without any molestation tell ye yeare 74 wee Answer as his predecessor did Soe may ye plantiffe travel at any time yt way without Lett or disturbance, Therefore wee hope this honoured Court & Jury will see both reason & Law to give there verdict & Judgment soe, as the Defendt shall not allwayes be constrained, to Travel through a fire of contention to inioy his iust Right.

John Harrison

The Court of Assistants (Records, i. 60) reversed the lower court, awarded Woody 2s damage and 5l 3d costs, “and the Highway . . . to be as formerly.” ]