Lufkin v. Haskell

¶1The opinion of the Court was read as drawn up by

¶2The first question is, whether the inhabitants of Gloucester were competent witnesses to prove a right in each and all of the inhabitants, to dig clams in the soil of the plaintiff, admitting it to be his soil.

¶3By the common law they were not competent, each inhabitant being interested in the right contended for, and the verdict upon the custom in question being, as we suppose, evidence against the plaintiff in all future controversies with any inhabitant upon the same point. We do not know any other principle upon which they could be excluded, for other wise they are interested in the question only, not in the suit, *359tod would be good witnesses. And it seems by Jacobsen v. Fountain, 2 Johns. R. 176, — Hockley v. Lamb, Ld. Raym. 731, — and Reed v. Jackson, 1 East, 355, that a verdict against one claiming a right of common as an inhabitant, &c., is good evidence against other inhabitants on the same point. In the case of Reed v. Jackson, Lord Kenyon says, “ The record was admissible evidence, though between other parties, as to the finding upon the right to the public footway, which was negatived. The defendants in both cases stood in the same relative situation.” In the case of customary commoners, a verdict in an action for or against one is evidence for or against another claiming in the same right.

¶4Then the question is, whether by St. 1792, c. 32, the witnesses are made competent ; and clearly they are not, for inhabitants &c. are, made competent only where “ the town, district, &c. is a party or interested in the event of a suit.” The town of Gloucester, as such, is not interested in the event of this suit; no corporate property or right is in question ; it is a personal privilege „ to individual inhabitants, and their interest is personal, and so not within the purview of that statute, which was intended to apply to inhabitants in cases where there was no personal interest.1

¶5Whether the custom set up in defence, is good at common law, or not, it is unnecessary to decide ; for we think upon another ground the case is with the defendants. We see no legal proof of title in the plaintiff. He claims under a right originally from the town, of a thatch bank. It is found that the locus in quo, is a gully covered by the sea when the tide is up, where no thatch can grow. We do not think this gully passed by the deed or vote, for nothing more would pass, than would satisfy the terms. The object was to enable the plaintiff to cut thatch. Nor is this a grant of upland which will carry with it flats to the channel. Thatch is not upland, but flats on which grass grows, and a grant of a piece of flats will not be extended beyond the intention expressed in the deed.

¶6The case of Adams v. Frothingham is not like the one before us. There the grant was of shore, or land between high and low water mark, and for purposes which could not be fulfilled without the privilege of the water to the channel. The case here is different, and like a grant of an acre out of a large marsh, for salt hay. No one would take this to be a grant of upland which would carry all the remaining marsh to the water, and so to the channel.1 It appears by ancient records, statutes, &c., that the right of soil in all the flats was in the inhabitants of Gloucester, and we see no evidence of their having parted with it.

¶7 Judgment for the defendant.