Legal Papers of John Adams, volume 1
This case and Nos.
Like Wilkins v. Fuller, No. 20, the instant litigation arose from the flooding of plaintiff's meadow by back water from defendant's dam, this one being across Pudding Brook in Pembroke. Here, however, there was no pleading issue to delay the proceedings. The action was entered at the Plymouth Inferior Court in March 1768,1 and was continued to July 1768 where, after a jury view of the land in question, Adams won a “Verdict for Defts.” with costs, and a fee of 28s.2 We have no Adams minutes of the Inferior Court trial, but Robert Treat Paine's notes include 243the former's argument (Document I). Adams' own minutes (Document II) date from the Plymouth Superior Court, May 1769, where once again his clients won.3
The writ is endorsed “Otis,” SF 142297, although Paine seems to have tried the action. A note on JA's list of cases for this term reads: “I have promised to be for Defts. Reed. 12s, Reed. 22s. Continued.” JA, Docket, Adams Papers. Counsel of record in the SCJ were Paine and Otis for plaintiff, JA and Leonard for defendant. Min. Bk. 82, SCJ Plymouth, May 1769, N–2. See also Clark v. McCarney, p. 68 above.
JA, Docket, Adams Papers.
SF 142297; Min. Bk. 82, SCJ Plymouth, May 1769, N–2; SCJ Rec. 1769, fol. 183. Costs were £13 8s. 10d.
Mr. Adams. The grass was good till it was pastured and the bushes grew up; if the mill had not been built, his neglect would have filld up the natural Course and spoil'd the Meadow.
Why did not he bring his action in the time of it?2
He has no damages for what he bought 5 years ago.3
The fall of water. I knew a meadow.
The writ alleged the flooding to have commenced five years prior to 24 March 1768 (the date of the writ) and to have continued until that date. The applicable statute of limitations was five years. Act of 7 July 1740, 2 A&R 1020. Compare No. 20.
Last two words unclear in MS.
Francis Egerton, 3d Duke of Bridgwater (1736–1806), commissioned James Brindley (1716–1772) to construct a canal from Worsley to Manchester. The canal was one of the major engineering achievements of the century.
Keens Witnesses.
Ed. Thomas. Known Georges Meadow 30 Years. Carted the Grass 2 Years. It was a very good Piece of fresh Meadow. I went in with a full Team without miring. Last August I saw it. The Meadow very much altered. The Meadow wet. Ditching and clearing the Brook could not wholly prevent the Damage.
Wm. Cox. Deposition. Vid.2
Elisha Barker. Both Sides lay open to a Pasture 7 Years. Sold it since the Mill was built.3 Liable to great freshets.4 All a Pond. My 244father who owned the Meadow consented to sett up this Mill. Mills 100 Years. Drand off 10. Apl.
Saml. Tayler. 1764, 5, 6. I got the Hay. One Year it Spoilt the Hay. I understood that Turner said he would stop his Mill one day. But at Night let it go.
Amos Witherel. Subject to freshits, the Water grows the Weeds. I cant tell whether, occasiond by the Mill.
Wm. Hetherd. Ditto.
Mr. Soper. Brook worn away. Meadow much damaged by the Water, coming repeatedly upon it.
Eliazer Hamlen. Boggy Land, bad fodder. Mill set agoing and I saw the Channell fill, and overflow the Meadow. Water has not so good a passage as it might have. Must dig lower than the Bottom of the Brook.
James Cox. The Brook not filled by the natural Stream.
Isaac Keen. Deposition. Vid.5
Fra. Keen. Deposition. Vid.6
Leonard. Our Witnesses. An unfavourable Case.
Coll. Turner. 1738, 9, 40, 41. I hird it. I was told I must be carefull and watch my Time. Once I went after a Rain and my Cocks7 were half leg deep in Water. It is rather wetter, than it was when I cutt it. It was miry from End to End. A great deal more Grass now 245than when I had it. Next the Brook as good. The rest not. The Brook might be easily cleared so as to convey all the Water off.
Aaron Sole. Of Opinion the Meadow is betterd by the flow. I have some Meadow that grows worse without overflowing. The Saw Mill went Winter and summer many Years.
Barker. Very full. The flow an Advantage. Ton to an acre last Year, glad to cutt by Halves.
Mr. Hatch. Viewed it, and the Brook. My opinion that the Brook cleard out and Meadow ditched, the flow would be a great Advantage. Offer to clear it out. Answerd that would not Answer any Purpose. 2 Men in a day would clear the Brook, and by stopping a few Places in the Banck, one Rod would not be flowed.
Seth Briggs. Logs across the River, almost buried in sand. A bridge about 30 Years, furrd8 with Sand, so that Weeds grow quite across the Brook. A good Crop last Year and good Grass. 4 foot fall, in 40 Rod.
Barnab. Briggs. Juror.9
David McGoon. Offered to help clear the Brook.
Jno. Chapman Jnr.
Mr. Palmer. Such Meadows generally as good again for the water.
Jno. Turner Jnr. 5. Bushells in 24 Hours.
In JA's hand. Adams Papers, Microfilms, Reel No. 185.
This deposition is not in the file. “I hired it 2 or 3 yr. ago. 20 or 30 yr. ago. Good crops and good grass next to English.” Paine Law Notes.
On the significance of this evidence, see 2 Blackstone, Commentaries
*403: “If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current.” Blackstone may not have accurately stated the English law. Compare Wiel, “Waters: American Law and French Authority,” 33
Harv. L. Rev.
133 (1919), with Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?”, 10 Public Policy 109 (1960).
Sudden flooding, as from rain or melting snow.
“Isaac Keen of full age testifieth and saith that I have been well acquainted with a certain piece of meadow called by the name of George's meadow, lying upon a brook called Pudding Brook, and a little below the grist-mill called Turner's mill and have been acquainted with said meadow this forty odd years past, and have mowed in the meadow for a great many years past, and then the meadow was hard enough to go in with a cart, and the grass very good, a large burden and very good fodder, and never knew any failure till since the abovesaid grist-mill was set up, and since that I have been across it very often, and I look upon the meadow is much damaged by reason of the above said mill being there, which occasions the meadow to be much overflowed, and very difficult working in it, it being to miery, and the hay that is cut of but very little value, and further saith that the bank of the meadow very much broke away by reason of said stream. Isaac Keen. Sworn to in open court.” SF 142297.
This deposition, which substantially duplicates that of Isaac Keen, was also sworn to in open court. SF 142297.
Hayricks.
“Fur.” “3. To coat or cover with fur or morbid matter. To fur up: to stop up or 'clog' with this.”
OED
.
“A Juror who is a Witness, must be also sworn in open Court to give Evidence, if he be called for a Witness; for the Court and Council are to hear the Evidence as well as the Jury.” 2 Duncombe, Trials Per Pais
384. See No. 12, notes