Jonathan Wilkins owned a pasture and apple orchard on Mill Brook in Middleton, near the Great Pond. On 10 March 1762, Timothy Fuller erected a dam which on 28 March 1762 and thereafter at intervals until February 1770 caused the stream to overflow part of Wilkins' land, allegedly damaging his trees and spoiling his grass. For unexplained reasons, Wilkins waited until 1771 before bringing an action of trespass on the case for the damage. Apparently he was then suing for damage to land which he no longer owned. The writ alleged that Wilkins “on the twenty-eighth Day of February A.D. 1770 was and for nine years then last past had been seized in his Demesne as of Fee” of the land in question.1 In the Wetmore Notes under the heading “Issues November Term Salem 1771” appears the entry “Wilkins v. Fuller—case for flowing before sale,” that is, before Wilkins sold the property.2 That this was the situation is confirmed by the statement of Samuel Porter, counsel for Fuller, that “Trespass could not be maintained because the Plaintiff not now owner of the land” (Document II).

It is not clear that Adams was ever of counsel. He does not appear in the earliest phase of the case, Ipswich Inferior Court, March 1771, where the jury found for Wilkins £6 damages and costs.3 Accurate dating of Adams' minutes (Document II) has been difficult. In the manuscript, it appears on the reverse of a copy of the writ in Hoyt v. Brown, a case which was entered at the March 1771 Ipswich Inferior Court, and continued term by term to the July 1772 Salem Inferior Court, when the matter was determined on a sham demurrer.4 It is therefore possible that Document II dates from the March 1771 Ipswich Inferior Court. The docu-275mentary evidence, however, suggests a later date, either in the June 1771 Ipswich Superior Court, to which both parties appealed, or before referees later. At the June 1771 sitting, the court continued the matter to the Salem Superior Court, November 1771, at which time the case was sent to referees. Mention of the jury view in June 1771 (Document I) suggests that the case may have been partially tried at the Superior Court, although the Minute Book does not so indicate; and indeed current English practice permitted the taking of a view before the trial jury was even impanelled.5

But the most probable attribution of Document II is the referees' hearing, the likeliest forum for the sort of testimony there included. One of the original referees having died, a substitute was appointed at the June 1772 Ipswich Superior Court; the report itself is dated 2 July 1772.6

The Minute Book contains no mention of counsel, but Document II suggests that Nathaniel Sergeant and Porter appeared for Fuller, with John Lowell for Wilkins. Adams, too, may have appeared for Wilkins. In November 1772, the court read and accepted the referees' report that “there is nothing due from either Party to the other.”7

Elias Smith had also commenced an action against Fuller alleging straight trespass rather than case,8 and claiming that Fuller had built a dam on Smith's land in March 1766, “flowing” two and a half of Smith's acres. There are no minutes in Adams' hand, except the solitary title “Smith v. Fuller” in the booklet containing cases from the Ipswich Superior Court, June 1771.9 The Wetmore Notes, however, contain what appear to be minutes of certain legal points which arose at the trial in the latter term (Document III). Apparently, plaintiff tried to introduce evidence of the actual building of the dam in 1762; defendant objected 276on two grounds, first, that the dam was not built during the “continuando,” or period of continuing flowage alleged in the writ, and, second, that the applicable statute of limitations barred such evidence. From Wetmore's minutes it appears that the court sustained both objections.

The action was initially commenced at the Salem Inferior Court, July 1770, Fuller winning a verdict and costs. The case was appealed to the Salem Superior Court, November 1770 (where Adams first entered the litigation as counsel for Smith, associated with Jonathan Sewall; John Lowell and Samuel Porter appeared for Fuller), and was continued to Ipswich Superior Court, June 1771, where it was at least partly tried before a juror was withdrawn,10 probably as a result of the court's decision on the evidence questions. At the November 1771 Salem Superior Court, the case was retried, and the jury returned a verdict for Smith for £5 and £30 16s. 7d. costs.11 Fuller sought review, and the matter dragged on until 1778, when a final entry, “neither party appears,” closed the litigation.12

June 1771.

Wilkins v. Fuller. Trespass on the case for flowing land &c. Motion first day of the term for view by Jury and 4 of them sent. Officer and of each side sent.

Deed. Wm. Fuller to Jona. Wilkins.

Archelaus Fuller. Known the Place there 30 years. Wilkins mowed the Land, 1 or 2 Years. Orchard, runs down to the Edge of the Brook. 277The Water used to help the Land. But Fullers Dam and Mill there, immediately flowed this Land of Wilkins's and flowd over an high Way that we used to pass to Meeting. It flowd up into Wilkins's an Acre and ½ and round several Apple Trees—8 or 10. The Ice would tear the Turffs off, and threw it in Heaps and another sort of Grass and flaggs2 came in the room of it. A fine Apple tree, was killd by it, as I suppose. 3 Barrells of Cyder a Year. They cutt a 2d Crop, of good Hay before the flowage. There is a Load of Hay odds,3 worth 9 or 10 Pounds on an Average. The ground when the Water is drawn off is black as a Hat, and a bad Smell the latter End of May. No Mill there since my Remembrance.

Andrew Fuller. 8 or 9 Years since Fuller erected his Mill. Blue Grass before and the want of fresh Grass since. Apple trees, as good bearing Trees as ever known in an orchard. A Number of Trees gone to decay. A Sound Tree, that died. A large Body of Ice froze round it, and as the Water rose and fell the Ice rubbed the Bark off in several Places. The trees are all upon the decay, and now of little Value. Grass not half so good, as it was. Wilkins got about 2 Load, a Year. I suppose the Trees have been planted 40 Years. I remember before any of them Trees bore of apples.

Jacob Smith. Very good Grass better than 2 Load at 1st and 2d Crop. It has been flowd every Season, better than an Acre. The year before last and every Year before, I mowd it. The 1st Year after it was flowd there was little or no Hay, and very little at any Year since, not a Load. Imagine the Water kill'd the Trees. Bore 2 Barrells a Year upon an Average. A Load we put round the Edges.

Robert Pierce. The Ice tore up the Ground, about the Roots and the Tree died soon. The large Tree had the bark torn off, quite thro.

2 Witnesses about Cyder, Apples, Trees &c.

Porter. Trespass could not be maintained because the Plaintiff not now owner of the Land. Credibility of Witnesses &c.

Mr. Andrews. 69 years ago I helpd draw some Timber to that Mill dam. The Mill sawd Boards for our Meeting House and that is all I know. No Mill there these 50 or 60 years.

Mr. Chandler. It does not look as if any Thing grew on it.

Saml. Cheever.

Rob. Indian. Damages Land, to flow and not keep up the Pond all Winter.

Bart. Buxton. ½ an Acre flowd now as dam up. And the flowing the ½ Acre does more hurt than flowing the whole would all Winter.

Thos. Hart. About an Acre flowd.

Andrew Fuller. The freshit has removd a stick and Gravel and made a stop.

Porter. Persons interested not to be credited, and the most credible Witnesses to be believd.

Trees tarr'd. Denyd it.

Law regards not Trifles.

Serjeant. Uncertainty of the Witnesses about the Number of Years. Not the stench to Mr. Smith nor the damage to the High Way.

1st. as to damnifying the Grass. It may be attributed to the upper Mill. Jam4 Tree, overated.

Col. Fuller set it at 2 dollars a Year.

June 1771

Smith and Wilkins v. Fuller. Bacon Trespass 212. Continuando in trespass may be waved and evidence given of any trespass before the action.2

See 2 Barnardiston 120. Trespass for disturbance in freehold; title allow'd to be given in evidence by defendant and Comyns said that any possession longer than 7 or 8 years was evidence of it.3

This action is trespass for erecting a dam on plaintiffs land and flowing it from 1765. Evidence was offered of erecting dam in 1762, 279but objected to it as excluded by limitation Act. Answered that it's repealed. Judge Trowbridge seem'd to think it not repeal'd by the temporary law,4 and that on declaration for trespass done between 2 days certain, evidence was not admissible without5 those days.