Boynton v. Rees
Massachusetts Supreme Judicial Court
This was trespass qu. cl. fregit for entering the plaintiffs’ dose and pulling up and tearing away his dam across Williams’s River. The defendant pleaded, 1. the general issue, which was joined : 2. that the locus in quo, which he described, was his soil and freehold, being on the west side of the river. The plaintiffs replied to the second plea, that before the defendant had any estate, viz.
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This was trespass qu. cl. fregit for entering the plaintiffs’ dose and pulling up and tearing away his dam across Williams’s River. The defendant pleaded, 1. the general issue, which was joined : 2. that the locus in quo, which he described, was his soil and freehold, being on the west side of the river. The plaintiffs replied to the second plea, that before the defendant had any estate, viz. August 21, 1794, Elijah Williams was seised of the land described in the plea, and on that day, by his deed, granted to John Newall junior the right to erect and maintain a dam across the river and over…
1Opinion of the Court
Parker C. J.
delivered the opinion of the Court. This case cannot be decided, we think, without a trial by jury, in order to ascertain some facts in controversy, which are essential to a correct view of the case.
In the first place, as to the plaintiffs’ title to the locus in quo, it depends first upon the conveyance by Williams to Newall, of the right to lodge his dam upon the west side of the stream. This instrument, we think, gave the right to fix the dam anywhere within the limits mentioned in the instrument ; and the change of its original position, acquiesced in by the proprietors of the…
2Cases cited2 opinions
- Trull v. BigelowMassachusetts Supreme Judicial Court · 1820
- Jack v. DoughertySupreme Court of Pennsylvania · 1834
3Cited by2 opinions
- Pennsylvania Water & Power Co. v. ReigartSuperior Court of Pennsylvania · 1937
- Hogg v. BaileySuperior Court of Pennsylvania · 1897