Prescott vs. Keep.
See 1. Inst. 200 b.2
to maintain this Action.
s in Common shall have personal Actions jointly.
Cro. 231. Some vs. Barwish.4
They shall join in Trespass and for Nusance.
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.
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
. Saw Captn. Keep pay Rent. ⅛th Part. Keep and
Prescot ballancd Accounts. Keep gave a Note. Rep[ai]
rs and Improvement and Forge, Land and Water. K[eep]
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. K[eep] 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. K[eep] Said he had been and tendered the Rent and they would not take it.
. 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
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
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.
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 of[f].
A Dam above, may be of great Advantage. Putnam knows an Instance.
Damages. Only 1½ Ton lost making. Mem. Coal lost. And our [loss?]
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
2. Black. 209.27
Fee simple conditional, base or qualified fee. Tenants of the Manor of Dale.
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.