Prescott v. Keep, in which Keep, Adams' client, was the original plaintiff, began with a complicated argument on a pleading point. The defendants sought to bar the action on the ground that the plaintiff had failed to join (bring in) his cotenants as coplaintiffs. The issues which seem to have been argued were whether defendants should have raised the point at the outset (that is, by plea in abatement), and whether, having pleaded the general issue, they would at the trial be prevented from introducing evidence bearing on the failure to join. If the court followed the authority set out in Adams' minutes (Document I), the answer was that, since plaintiff's writ had not averred the cotenancy, defendants would not be allowed to raise the issue at the trial. In the related case of Prescott v. Priest, the initial question was Adams' contention that the death of one of the original plaintiffs might cause the action itself to die. As Justice William Cushing's report (Document IV) shows, the court ruled that it did not; Adams was then allowed to file an answer on the merits.

Once the technicalities clear away, the Prescott cases illustrate neatly the legal problems that could arise over the right to use flowing water, here, Stony Brook in Westford. The Prescott family had long maintained a gristmill and a sawmill on the stream, near its source.1 In 1720, old Jonas Prescott, his two sons, Jonas and Benjamin,2 and three others had formed a joint venture to erect and maintain an iron forge on land owned by young Jonas slightly upstream from the mills.3 The forge, of course, depended on water power to operate its bellows.4

By a complicated and sometimes obscure series of conveyances, a five-eighths interest in the forge had come to Jonathan Keep,5 who apparently attempted to maintain and even improve the ironworks without the consent of the Prescott interests. The latter had other plans for the use of the available water, because in 1771, according to Keep, they altered the dam previously shared with the iron works and erected a new dam some thirty or forty rods upstream.

There were several issues between the parties. First, the Prescotts insisted that the original articles of 1720 governing the ironworks ought not to be construed to permit the holder of a majority interest to keep the works in operation without consent of the minority. Second, the Prescotts impugned Keep's title to the five-eighths interest; he was, they argued, merely leasing the use of the works from the Prescotts, a relationship which could terminate if the Prescotts so desired. Finally, it appears, the Prescotts claimed that, inasmuch as title to the land on which the forge stood, as well as to the relevant part of the stream itself, remained in the Prescott family, Keep had no right to the water. Keep denied all these contentions and instituted the first of the actions documented here (Document I).

Meanwhile, Keep's apprentice, Joel Priest, had on various occasions removed the flume (or sluice) lever from the Prescotts' new dam, had shut down their mill gate (thus preventing diversion of the water), and had even broken the mill dam itself. The Prescotts thereupon sued Priest directly (Documents II–IV II, III, and IV ).

In both cases the Middlesex Inferior Court judgments resulted from sham demurrers.6 Pleadings being reopened in the Superior Court, the technical arguments were determined, and after the usual continuances the matters went to trial. Adams, with Jonathan Sewall, represented Keep and Priest. The verdict for Keep was £40, but the Prescotts moved in arrest of judgment, and the matter did not conclude until 1776 when a file paper indicates that the parties settled the action.7 In the other case the jury awarded the Prescotts damages of 40s. and costs of £19 16s. 10d.8

See 1. Inst. 200 b.2 to maintain this Action.

Litt. §315.3 Tenants in Common shall have personal Actions jointly.

2 Cro. 231. Some vs. Barwish.4 They shall join in Trespass and for Nusance.

2 Vent. 214.5

May be taken Advantage of under the general Issue.6

1 Vent. 214.7 Cant be given in Evidence unless one Tenant in common brings Action vs. another.

1 Mod. Ent. 31.8 If it appears on the Writ, Defendant may take Advantage of it under the general Issue.

Latch. 152, 3.9

Ebenr. Hadley. Worked at the framing and raising of the new forge. Only a frame in 1770. No new Wheels. The Prescotts forbid Captn. Keep from improving. About 2 foot bigger. Captn. Keep

David Goodhue. Saw Captn. Keep pay Rent. ⅛th Part. Keep and 269Prescot ballancd Accounts. Keep gave a Note. Repairs and Improvement and Forge, Land and Water. Keep has often told me that he paid Rent for the whole that he improved and had always paid Rent to Coll. Prescott, and had Receipts till this Contention and since then they would not receive it.

Oliver Parker. Keep said he had Money for the Rent of the old Iron Works. 4 years ago. Prescot came in and Keep paid him Rent for one Year 8 dollars. Prescot said he was obliged to pay it to others. Eben. and Dr. Prescott.

Caleb Woods. Keep said they had paid Rent to the Prescotts to their Satisfaction.

Tim. Prescott. Heard Captn. Keep Say he had paid Rent for ⅝ths and had Receipts. And Jona. Keep Said he had been and tendered the Rent and they would not take it.

Gershom Fletcher. Keep told of paying Rent to the Prescotts for the Water. Keep said Prescott had a Bond and he paid untill the Bond was so full, that they could enter no more.10 Then they made Receipts.

1719. Jonas Prescots deed to Jonas the Grandfather of the Defendant,11 and the Grandfather granted one half to Ebenezer.

1749. Aug. 17. Deed from Jonas Prescott to Ebenezer, one of the defendants. ½ of all my homestead. 200 Acres.12

1727. Shipley to Eb. Prescot of ⅛ of the forge.13

Putnam.14 Plaintiff has not made out his Title to ⅝ths with any certainty. Answer his fathers Deed to him is of ⅝ths.15 Kent conveys to J. Keep ¼–i.e. 2/8ths.16 Kent to Lyman ⅜ths.17 Lymans Will18 and his Widows Deed i.e. Saml. Hunt and his Wifes Deed.19

Plaintiff has not proved any Right in Hunts Wife, i.e. Lymans Widow. Answer Saml. Kent sold to Caleb Lyman. See the deed.20

B. Prescott sells all his Right.21 Dont appear what it was.

Articles.22 To be kept up so long as the Major Part should agree to carry on these Works.23 Never the design that if one Purchased more than half the shares that he should have Power to controul the rest.

The Action must be brought upon the Articles. No support of this Action.

Keep went on in opposition to other Proprietors who forbid him going on. If he can do this he can continue them forever.

The Deed produced by Us comprehends both the Dams and both the Mills.

Whoever owns the Land on both sides, owns the Land under the stream.

By the same Reason an Action would have lain, if he had put up a Dam, a mile off.

A Dam above, may be of great Advantage. Putnam knows an Instance.

Damages. Only 1½ Ton lost making. Mem. Coal lost. And our loss 24 As Priest says.

An hole in the old Dam. Nothing more.

One Witness swears that a Passage Way has been left open there for fish. Then the sluice was made by one of the owners of this Dam—some say to set up a Malt Mill. But none set up.

Law obliges the owner of Dam to keep open a passage for fish.25

Water carried to the fulling Mill, by a sluice Way or Ditch, at the End of the Dam.

Co. Lit. §324. Notes 200b. Tit. Tenants in Common. If one Tenant in common corrupts the River, the other may have his Action on his Case.26

J. Trowbridge.

2. Black. 209.27 Fee simple conditional, base or qualified fee. Tenants of the Manor of Dale.

Ld. Ray.28 Judge Powell. A Grant so long as Bow Church stands. Or so long as J.S. has Heirs of his Body.

P. Williams. Macclesfield.29 So long as such a Tree stands.

1756. Novr. Deed from Jonas Prescott to Jonas Jnr. of Gift. ¼th.

1749. Aug. 17th. from Jonas to Ebenr. ½ of all my Homestead. Free Liberty to pass and repass by Gates and Barns.

1719. Octr. 8th. from Jonas to Jonas Jnr. All my Right in an old Dwelling House, &c. excepting

1727, 8 Jany. 28. Jonas to Jonas. ½.

David Goodhue. Jonas Esq. in Possession of Part, and Prescott that is dead of another Part.

8 Mod. page 115, 16.2 Hardwick's Cases.3

Gilbert's Hist. of Common Pleas.4

Dana.5

Gershorn Fletcher. 55 Years, Prescott the Grandfather of Plaintiffs, have possessed it, and Plaintiffs since and knew they possessed the Grist mill and fulling Mill,6 Keep in Possession of the Forge where the Saw mill was.

David Goodhue.7 Priest 30 Jany. 1771. took lever out of Prescotts Gate, and tossed it into the Stream. The Gate shut down. Knows Possession 8 years. Dam broke but cant say, who broke it. Heard Priest say the dam would not stand long, a Week before it was tore up.

Jona. Pierce. Priest told me that the upper Dam would not stand, that it would be tore down—the night before it was done. Plaintiffs have been in Possession. Upper dam built in 1771. Upon Prescotts Land—about 30 or 40 Rods above the other. A benefit to all alike when let out.

Moses Goodhue. Forgot what Priest said, but think he said it would not stand long. The Forge had the longest Use of the Stream, when not Water eno. for all the Mills.

Nat. Prentice.8 A Lever, Joel kicked off into the Stream. Joel came into Mill without leave, and shut down the Gate.

Trespass quare clausum fregit—Defendant pleads in abatement that one of the plaintiffs died since the last continuance. Demurer and joinder.

Mr. Adams in support of the plea cited Gilb. prac. Com. pleas. 242. 2482—Hardwicke's cases 395.3

Dana for plaintiff—cites 8 Mod. 115. 116.4—Bac. abr. Abatement. F. p. 7.5

Per Curiam Oliver, C.J., Hutchinson, Ropes and Cushing, J. The action survives; and by 8 & 9 W. 3., Cap. 11. “where the action survives, and one of the plaintiffs dies—it shall go on and not abate.”6 Respondeas ouster awarded unâ voce.7