Editorial Note
Editorial Note
Prescott v. Keep, in which Keep, Adams’ client, was the original plaintiff, began with a complicated argument on a pleading point. The defendants sought to bar the action on the ground that the plaintiff had failed to join (bring in) his cotenants as coplaintiffs. The issues which seem to have been argued were whether defendants should have raised the point at the outset (that is, by plea in abatement), and whether, having pleaded the general issue, they would at the trial be prevented from introducing evidence bearing on the failure to join. If the court followed the authority set out in Adams’ minutes (Document I), the answer was that, since plaintiff’s writ had not averred the cotenancy, defendants would not be allowed to raise the issue at the trial. In the related case of Prescott v. Priest, the initial question was Adams’ contention that the death of one of the original plaintiffs might cause the action itself to die. As Justice William Cushing’s report (Document IV) shows, the court ruled that it did not; Adams was then allowed to file an answer on the merits.
Once the technicalities clear away, the Prescott cases illustrate neatly the legal problems that could arise over the right to use flowing water, here, Stony Brook in Westford. The Prescott family had long maintained a gristmill and a sawmill on the stream, near its source.1 In 1720, old Jonas Prescott, his two sons, Jonas and Benjamin,2 and three others had formed a joint venture to erect and maintain an iron forge on land owned by young Jonas slightly upstream from the mills.3 The forge, of course, depended on water power to operate its bellows.4
By a complicated and sometimes obscure series of conveyances, a five-eighths interest in the forge had come to Jonathan Keep,5 who apparently attempted to maintain and even improve the ironworks without the consent of the Prescott interests. The latter had other plans for the use of the available water, because in 1771, according to Keep, they altered the dam previously shared with the iron works and erected a new dam some thirty or forty rods upstream.
There were several issues between the parties. First, the Prescotts insisted that the original articles of 1720 governing the ironworks ought not to be construed to permit the holder of a majority interest to keep the works in operation without consent of the minority. Second, the Prescotts impugned Keep’s title to the five-eighths interest; he was, they argued, merely leasing the use of the works from the Prescotts, a relationship which could terminate if the Prescotts so desired. Finally, it appears, the Prescotts claimed that, inasmuch as title to the land on which the forge stood, as well as to the relevant part of the stream itself, remained in the Prescott family, Keep had no right to the water. Keep denied all these contentions and instituted the first of the actions documented here (Document I).
Meanwhile, Keep’s apprentice, Joel Priest, had on various occasions removed the flume (or sluice) lever from the Prescotts’ new dam, had shut down their mill gate (thus preventing diversion of the water), and had even broken the mill dam itself. The Prescotts thereupon sued Priest directly (Documents II, III, and IV).
In both cases the Middlesex Inferior Court judgments resulted from sham demurrers.6 Pleadings being reopened in the Superior Court, the technical arguments were determined, and after the usual continuances the matters went to trial. Adams, with Jonathan Sewall, represented Keep and Priest. The verdict for Keep was £40, but the Prescotts moved in arrest of judgment, and the matter did not conclude until 1776 when a file paper indicates that the parties settled the action.7 In the other case the jury awarded the Prescotts damages of 40s. and costs of £19 16s. 10d.8
1. Westford was until 1730 a part of Groton. “’June 15, 1680, on a training day, granted unto Jonas Prescott, that he should take up a piece of land at Stony brook, in reference to the setting up of a mill there.’” “’At a general town meeting at Groton, June 13, 1681: Then granted to Jonas Prescott liberty to set up his corn mill at Stony brook.’” “’An agreement made between Jonas Prescott and the town of Groton, that he, the said Prescott, have liberty to set up a saw mill at Stony brook, and to have the use of the stream ... always provided, the saw mill do not hinder the corn mill.’” Caleb Butler, History of the Town of Groton 37–38 (Boston, 1848). Later, it seems, a fulling mill was added. Deposition of Nathaniel Prentice, SF 148100.
2. Father of William Prescott (1727–1795), who commanded troops at Bunker Hill. Samuel A. Green, Three Historical Addresses 105–107 (Groton, 1908).
3. Young Jonas (actually he was 42 years old at the time) played the major role in and took the major profits from the enterprise, which was “the fourth or fifth of the kind in New England. The ore used was the variety known as bog-iron, and was procured in Groton. The ’Groton iron,’ produced at the forge, was not of very good quality, being brittle, and it was not extensively used. The business was carried on until the year 1865, when the Forge Company ceased to exist.” Edwin R. Hodgman, History of the Town of Westford 243 (Lowell, Mass., 1883). The JA materials here set forth seem to refute Hodgman’s thesis that during the life of the company its control rested in the hands of old Jonas’ descendants. The articles of association are preserved in the file papers of Prescott v. Keep, SF 148227.
4. See the description of a contemporary ironworks, in which “The bellows ... are very large, and moved by water.” John Harris, Lexicon Technicum, tit. Iron (London, 1736).
5. Andrew Oliver prepared a list of forges and furnaces in Massachusetts in 1758, which shows the forge at Westford to be in the possession of “Keep.” Arthur C. Bining, British Regulation of the Colonial Iron Industry 126 (Phila., 1933).
6. SF 148100, 148227.
7. Min. Bk. 96, SCJ Middlesex, Oct. 1773, C–13; SF 148227. No record reference has been found.
8. Min. Bk. 96, SCJ Middlesex, April 1773, C–20; SCJ Rec. 1773–1774, fols. 18–19.