Adams’ Minutes of the Trial1
Middlesex Superior Court, Cambridge, October 1773
Prescott vs. Keep.
See 1. Inst. 200 b.2 to maintain this Action.
Litt. §315.3 T[enant]s in Common shall have personal Actions jointly.
 Cro. 231. Some vs. Barwish.4 They shall join in Trespass and for Nusance.
2 Vent. 214.5
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.
Latch. 152, 3.9
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
David Goodhue. 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.
Gershom Fletcher. 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
Putnam.14 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 Lymans Will18 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.
Articles.22 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?]24 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.
Ld. Ray.28 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.
1. In JA’s hand. Adams Papers, Microfilms, Reel No. 185.
2. “If two several owners of Houses have a River in Common between them, if one of them corrupt the River, the other shall have an action upon his Case.” Coke, Littleton description begins Edward Coke, First Part of the Institutes of the Lawes of England;or, Commentarie upon Littleton, 2d edn., London, 1629. description ends 200b, §323.
3. Coke, Littleton description begins Edward Coke, First Part of the Institutes of the Lawes of England;or, Commentarie upon Littleton, 2d edn., London, 1629. description ends §315: “By this it appeareth that Tenants in Common shall have personal Actions jointly. And it is to be observed, that where damages are to be recovered for a wrong done to Tenants in Common ... and one of them shall dye, the survivor of them shall have the action.”
4. Some v. Barwish, Cro. Jac. description begins George Croke, Reports of Cases in King’s Bench and Common Bench. Part 2, James, London, 1683. description ends 231, 79 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 200 (K.B. 1610): “Where a Nusance is made to the land of two Tenants in Common, ... they shall joyn in the Action; for it is personal.”
5. Apparently an inadvertence for 1 Vent. description begins P. Ventris, Reports in two parts. Part I containing cases in the King’s Bench with three learned arguments ... Part II containing cases in the Common Pleas with special Pleadings in the same; together with ... cases in the Court of Chancery, London, 1696. description ends 214; see note 7 below.
6. This does not relate to the preceding citation, but the state of the MS suggests that it may pertain to the citation to Mallory, Modern Entries description begins J. Mallory, Modern Entries in English; being a select collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also all kinds of Writs, with readings and observations on the cases in the Reports, London, 1734–1735; 2 vols. description ends , note 8 below.
7. Anonymous, 1 Vent. description begins P. Ventris, Reports in two parts. Part I containing cases in the King’s Bench with three learned arguments ... Part II containing cases in the Common Pleas with special Pleadings in the same; together with ... cases in the Court of Chancery, London, 1696. description ends 214, 86 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 144 (K.B. 1673): “In Trespass Quare clausum fregit ’tis a Plea in Abatement to say, That the Plaintiff is Tenant in Common with another: But cannot be given in Evidence upon Not Guilty, as it may where one Tenant in Common brings Trespass against the other.”
8. 1 Mallory, Modern Entries description begins J. Mallory, Modern Entries in English; being a select collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also all kinds of Writs, with readings and observations on the cases in the Reports, London, 1734–1735; 2 vols. description ends 31: “If there be two Tenants in Common, and one only brings an Action where they ought to join; if this appears by the Plaintiff’s own shewing, the Defendant may take advantage of it upon the General Issue, but if it does not appear, then it ought to be pleaded in Abatement. Latch 153.”
9. Harman v. Whitchlow, Latch description begins John Latch, Plusieurs tres bons Cases, come ils estoyent adjudgees es trois premiers ans du raign du feu Roy Charles le Premier, Bank le Roy, London, 1622. description ends 152, 82 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 321 (K.B. 1627): If one joint tenant or tenant in common brings an action alone, and general issue pleaded, and the tenancy in common appears by the verdict, judgment for the plaintiff; the plea should have been in abatement.
10. The witness refers to the entry of payments on the back of the bond (or lease). This document is not in the file.
11. Deed, Jonas and Mary Prescott to Jonas Prescott Jr, 8 Oct. 1719; Middlesex Reg. Deeds, Lib. 19, fols. 456–457; SF 148227.
12. Deed, Jonas Prescott [Jr.] to Ebenezer Prescott, 17 Aug. 1749; Middlesex Reg. Deeds, Lib. 48, fols. 621–622; SF 148227.
13. A receipt for this deed, John Shipley to Ebenezer Prescott, 21 Oct. 1727, is in SF 148227.
14. James Putnam, counsel for the Prescotts.
15. Deed, Jabez Keep to Jonathan Keep, 22 May 1771; Middlesex Reg. Deeds, Lib. 72, fol. 1; SF 148227. JA was noting that this deed answered Putnam’s argument.
16. Deed, Samuel Kent to Jabez Keep, 19 Nov. 1729. Middlesex Reg. Deeds, Lib. 71, fols. 56–57; SF 148227.
17. Deed, Samuel Kent to Caleb Lyman, 20 Mar. 1735. Middlesex Reg. Deeds, Lib. 36, fol. 120; SF 148227.
18. Will, Caleb Lyman, dated 18 March 1737. SF 148227.
19. Deed, Samuel and Susanna Hunt to Jabez Keep, 11 Sept. 1770. Middlesex Reg. Deeds, Lib. 72, fol. 317; SF 148227.
21. Deed, Benjamin Prescott to Samuel Hartheway, 29 June 1728. Middlesex Reg. Deeds, Lib. 72, fols. 479–480; SF 148227.
22. Articles dated 6 Feb. 1720, between Jonas Prescott, Jonas Prescott Jr. Benjamin Prescott, John Shaple, John White, and Caleb Trowbridge. The parties agreed “to build, Erect and set up, a Good strong Sufficient and Substantial Forge, Building or Works for the making of Iron by one Fire on, or by, the Brook called Stoney Brook in the Township of Groton almost at the same Place where the said Jonas Prescott has a sawmill not long in standing.” SF 148227.
“We the Parties above-named do Covenant consent and agree that when and so soon as the Greater part of the Owners abovesaid their heirs, or Assigns shall conclude and agree to Let alone and cease Improving of the said Forge, or Iron Works for the Use aforesaid. The Irons, other Tools and materials, shall be sold and the money that shall be received for them shall be Divided, and Shared betwixt us, our heirs &c. In Proportion, to what Each one is to Pay, as aforesaid or Otherwise disposed of as the Major Part of us shall Agree and conclude upon.” SF 148227.
24. MS unclear. But probably in response to Putnam’s argument that the damages were only the iron lost when the bellows stopped, JA contended that the damages ought to include the value of the wasted fuel and (possibly) the lost profits.
27. Probably this should be 2 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *109: “A base, or qualified, fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is intirely defeated.”
28. Presumably this refers to a case in Lord Raymond’s Reports, and to a dictum by John Powell (1645–1713), puisne judge of the Court of Common Pleas (1695) and the Court of Queen’s Bench (1702). DNB description begins Leslie Stephen and Sidney Lee, eds., The Dictionary of National Biography, N.Y. and London, 1885–1900; 63 vols. plus supplements. description ends . The editors have not been able to identify the case.
29. This also is from an opinion, presumably printed in Peere Williams description begins W. Peere Williams, Reports of Cases, Court of Chancery, and of some special cases, King’s Bench, London, 1740–1749; 3 vols. description ends ’ Reports, which the editors have not been able to identify. Thomas Parker, first Earl of Macclesfield, was Lord Chief Justice (1710) and Chancellor (1718). DNB description begins Leslie Stephen and Sidney Lee, eds., The Dictionary of National Biography, N.Y. and London, 1885–1900; 63 vols. plus supplements. description ends .