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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0006-0007

Wilkins v. Fuller; Smith v. Fuller

DocGroupNo:

1771–1772; 1770–1778

Docno: ADMS-05-01-02-0006-0007-0001

Editorial Note

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• { 275 } mentary 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 { 276 } on 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
1. SF 132243.
2. See Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184. If the quoted phrase means instead that the flowing occurred before a sale to Wilkins in 1770, his declaration may reflect an effort to evade the familiar common-law rule that a person who came to an established nuisance had no cause of action. See 2 Blackstone, Commentaries *402–403; 7 Holdsworth, History of English Law 331. Such a reading seems unlikely, since proof of the title pleaded was necessary to maintain the action. See Shipman, Common Law Pleading 209–210. A deed of the property to Wilkins was put in evidence (Doc. II) but it has not survived in the file of the case.
3. SF 132243.
4. SF 132296. An appeal was taken, but not prosecuted, at the Nov. 1772 Salem Superior Court.
5. Min. Bk. 93, SCJ Ipswich, June 1771, N–2, N–3; Salem, Nov. 1771, C–12, C–13. On the English practice, see Buller, Nisi Prius 300–301: “[W]here it shall appear to the Court to be proper the Jury should have a View, the Court may order special Writs of Distringas or Habeas Corpora to issue, by which the Sheriff shall be commanded to have 6 out of the first 12 of the Jurors named in such Writs, or some greater Number of them, at the Place in Question some convenient Time before the Trial, who shall there have the Matters in Question shewed to them by Persons appointed by the Court.... [W]here a View shall be allowed, 6 of the Jurors who shall be named in such Panel, or more who shall be mutually assented to by the Parties, or in Case of their Disagreement, by the proper Officer of the Court, shall have the View, and shall be first sworn to try the Cause before, drawing out of the Box.” For the Province statute, see Act of 28 June 1746, 3 A&R 300, periodically renewed.
6. See the rule and report in SF 132243.
7. Min. Bk. 93, SCJ Salem, Nov. 1772, C–7, C–8; SF 132243.
8. For the classic formulation of the distinction between trespass for an immediate injury and case for a consequential injury, see 1 Chitty, Pleading 126: “[W]here the damage or injury ensued not directly from the act complained of, it is termed consequential or mediate, and cannot amount to a trespass.... So if a person pour water on my land, the injury is immediate; but if he stop up a watercourse on his own land; or if he place a spout on his own building, in consequence of which water afterwards runs therefrom into my land, the injury is consequential.” See also Reynolds v. Clarke, 2 Ld. Raym. 1399, 92 Eng. Rep. 410 (K.B. 1726).
9. Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184.
10. Min. Bk. 93, SCJ Salem, Nov. 1770, N–8; SCJ Ipswich, June 1771, C—14. SF 132061. On withdrawing a juror, see No. 10, note 7.
11. Under the heading “Issues November Term Salem 1771” in the Wetmore Notes appears the entry: “Smith v. Fuller. Trespass for Flowing Land.” See SCJ Rec. 1771, fol. 194.
12. Min. Bk. 102, SCJ Ipswich, June 1774, N–1; SCJ Salem, Nov. 1777, C—10; SCJ Salem, Nov. 1778, C—7. SCJ Rec. 1778–1780, fol. 47.

Docno: ADMS-05-01-02-0006-0007-0002

Author: Wetmore, William
Date: 1771-06

Wetmore's Minutes of the Wilkins Trial1

Essex Superior Court, Ipswich, June 1771

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.
1. Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184. This minute appears in the MS several pages after the minutes of Smith v. Fuller, Doc. III below.

Docno: ADMS-05-01-02-0006-0007-0003

Author: Adams, John
Date: 1772-07

Adams' Minutes of the Referees' Hearing in Wilkins' Suit1

Middleton, July 1772

Wilkins. vs. Fuller
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. { 277 } The 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 a[n]y 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.
{ 278 }
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.
C[ol.?] Fuller set it at 2 dollars a Year.
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185.
2. Presumably the marsh plant known as cattail.
3. “Oddments” or “more or less” are equally valid interpretations.
4. MS is fairly clear, but the meaning remains obscure.

Docno: ADMS-05-01-02-0006-0007-0004

Author: Wetmore, William
Date: 1771-06

Wetmore's Minutes of the Smith Trial1

Essex Superior Court, Ipswich, June 1771

June 1771
Smith and Wilkins [v.] Fuller. Bacon Trespass 212. Contin[uand]o in trespass may be waved and evidence given of any trespass before the action.2
See 2 Barn[ardisto]n 120. Trespass for disturbance in freehold; title allow'd to be given in evidence by defendant and Com[yn]s 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, { 279 } but objected to it as excluded by limitation Act. Answered that it's repealed. J[udge] Trowb[ridge] seem'd to think it not repeal'd by the tempo[rary] law,4 and that on declaration for trespass done between 2 days certain, evidence was not admissible without5 those days.
1. Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184. The minutes seem to refer only to Smith's case. The reporter's title, “Smith and Wilkins [v.] Fuller,” suggests, however, that he deemed the cases to be related. The relationship is borne out by the fact that the Wetmore minutes of Wilkins' case (Doc. I) appear in the MS several pages after these minutes.
2. 5 Bacon, Abridgment 212: “If the Trespass charged in this Action is laid with a Continuando for the whole Time, from a Day on which the first Trespass is charged in the Declaration until a subsequent Day therein mentioned, it is not necessary for the Plaintiff to prove a Continuance of the Trespass for this whole Time: But he must prove a Trespass within it; unless he chooses to waive the Continuando entirely, in which Case he may give Evidence of any one Trespass committed before the Action was brought.”
3. Baynes v. Reeves, 2 Barn. 120, 94 Eng. Rep. 394 (Lent Assizes 1732), tried before Baron Comyns.
4. The Act of 7 July 1740 had set limitation periods for various personal actions; that for “trespass upon lands” was five years. 2 A&R 1020. A clarifying Act of 1 Feb. 1749 established a four-year limitation period for “actions of account, or upon the case, grounded on any lending or contract.” 3 A&R 444, 445. In a series of “temporary” Acts, subsequent legislatures successively extended the deadline for existing causes of action. Act of 5 June 1752, 3 A&R 609; Act of 19 April 1754 3 A&R 727; Act of 31 Oct. 1755, 3 A&R 886; Act of 31 Aug. 1757, 4 A&R 26, 27; Act of 16 Jan. 1760, 4 A&R 280. And in 1767, the limiting date was made 1 July 1770. Act of 20 March 1767, 4 A&R 920. But the legislature did not consider the problem again until the fall of 1770, at which time it passed an Act repealing every previous limitation statute and providing that “all actions of trespass quare clausum fregit; all actions of trespass [de bonis asportatis] ...; all actions of account and upon the case, other than such accounts as concern the trade of merchandize” brought after 1 Dec. 1770 should be commenced as follows: “the said actions upon the case (other than for slander), and the said actions of account, and the said actions of trespass [d.b.a.] ... and trespass [q.c.f.], within six years from [1 Dec. 1770], or within six years next after the cause of such actions or suits, and not after.” Act of 20 Nov. 1770, 5 A&R 109–110.
The “tempo[rary] law” referred to by Trowbridge in the minute was apparently the 1770 Act. According to Lieutenant Governor Thomas Hutchinson's letter transmitting the legislation of the session just concluded to England for approval, the 1770 Act was “not a Temporary Law but placed among them [i.e. in the compilation of all laws passed at the session] through inattention which must be corrected.” Hutchinson to Lords of Trade, 21 Dec. 1770, in 5 A&R 143 note. The plaintiff seems to have argued that under the 1770 Act matters arising at any time prior to 1 Dec. 1770 were not barred until 1 Dec. 1776. Trowbridge's point was probably that the 1770 Act did not repeal the 1740 Act as to causes of action on which suit had been brought before 1 Dec. 1770. Since the 1740 limitations on trespass q.c.f. had not been among those extended by later legislation, the 1762 evidence was clearly barred when this action was brought in 1770. For JA 's role in the passage of the 1770 Act, see p. lxxxvii, note 204, above.
5. That is, “before or after.” The comma following “certain” has been supplied.