Suffolk Superior Court, Boston, August 1772
Suffolk Ss. Common Pleas. Boston January Term 1772.
Jacob Emmons Ptf. vs. William Crafts and others Defts.
And the Said William Crafts, Giles Brewer, Benjamin Richardson and Asa Stodder, come and defend &c. and as to the Force and Arms, and any Thing that is against the Peace, and also the whole Trespass aforesaid excepting the Breaking and entering the Dwelling House aforesaid, breaking and entering the Close aforesaid, and breaking down and erasing to the Foundation the brick Walls and Chimnies of the Dwelling House aforesaid, and filling up the Cellars aforesaid with Dirt, Bricks and other Rubbish, the said William, Giles, and Benjamin and Asa say they are not guilty thereof and of this they put themselves on the Country.
And the Plantiff likewise.
And as to the breaking and entering the Close aforesaid and breaking down and erasing to the Foundation the brick Walls and Chimnies of the Dwelling House aforesaid, and filling up the Cellars aforesaid with Dirt, Bricks and other Rubbish the said William, Giles, Benjamin, and Asa Say, the said Jacob, his Action aforesaid thereof against them ought not to have or maintain, because they say, <
that the Close aforesaid, and the Dwelling House aforesaid, and the brick Walls and Chimnies aforesaid, and the Cellars aforesaid are and at the Time when the supposed Trespass aforesaid is alledged to have been committed were all in a public street or high Way in the Town of Boston aforesaid, and were all then and there common Nusances to the subjects of our Lord the King. And the said Defendants further say> that by an Act or Law of this Province made and passed in the Fourth Year of the Reign of the late King William and Queen Mary, intituled “an Act for building with Stone or Brick in the Town of Boston, and preventing Fire” it is among other Things enacted “That in all void and unbuilt Places, which shall hereafter be improved for building, or when at any Time any total Consumption or Desolation shall happen in any Street or Lane within the said Town, it shall be in the Power of the < said> Justices of the Peace of said Town then in being, together with the Select Men, or the Major Part of both, to State and lay out Such Streets, Ways and Passages, as may be most for the Conveniency and Accomodation of the Place: As also where any Desolation has happened, to regulate and enlarge other narrow and crooked Lanes or Passages.”3
And the said Defendants further say that the greatest Part of the Lands from Middle Street to Ann Street in said Boston, were by the Fire which happened in said Boston on the third Day of February Anno Domini 17674 become desolate and vacant, that Paddy’s Alley So called, which run through those Lands, though very narrow, was from its Situation extremely beneficial and usefull to the Inhabitants of said Town5 and that it was on the sixteenth Day of April Anno Domini 1767, had been long before and has been ever since absolutely necessary that there should be a commodious public Street or high Way there.
And Samuel Wells, Joshua Winslow, Richard Dana, Foster Hutchinson, John Ruddock, Nathaniel Balstone, John Hill, Edmund Quincy, John Avery and John Tudor Esquires being the Major Part of His Majesty’s Justices of the Peace for the County aforesaid, dwelling in the Town of Boston aforesaid, and Joseph Jackson, Samuel Sewall, John Hancock, William Phillips, Timothy Newhall and John Rowe being the major Part of the select Men of the same Town, having met together and taken the Premisses into their Consideration, carefully viewed the said Alley and the Lands so made desolate on each side of it, and duely considered the premisses, for the Conveniency and Accommodation of that Place and of the Inhabitants aforesaid, pursuant to the Power given them by a law of this Province, made in the fourth Year of King William and Queen Mary intituled “an Act for building with Stone or Brick in the Town of Boston and preventing Fire,” did at said Boston on the Said Sixteenth day of April Anno Domini 1767, State, lay out, and establish, a Street thro the vacant and desolate Lands aforesaid, including the aforesaid alley or Part of it, in manner and Form following, that is to say beginning at the North easterly corner of the yard behind the brick Dwelling House belonging to the Heirs of Mr. Andrew Tyler deceased and running South a little westerly along by the back of the said House and across the said alley including it, nineteen Feet and Eleven Inches, which Line is at the Eastern End of the same new Street, then turning and running West more northerly making a Small bend one hundred and fifty feet and nine Inches, then running West more northerly to the House of Thomas Emmons, ninety and four Feet and Six Inches, then turning north a little Eastwardly, crossing the said Alley, Strait along by the End of Mr. Gidneys House, then occupied by William Crombay, thirty feet, which Line is at the Westerly End of the same Street then returning East, a little southerly, on the northerly Side of the same Street, ninety one Feet, then running East less southerly, Sixty five Feet, where it measures across to the south Side or Line, thirty five feet, then running East again, Something more southerly hence to the said Brick house, Eighty four feet and Six Inches then turning South a little Westerly, along by the same House to the Corner thereof, nine feet and Seven Inches, then turning the said Corner and running along by the same House to the aforesaid Corner of the Yard aforesaid Twenty Eight Feet and about Eleven Inches, where the said new Street ends. And the said Justices and select Men then and there, laid and sett off all the Lands of every Person Whomsoever included and falling within the Lines and Boundaries aforesaid into the same new Street, to remain and continue a Part and Parcell thereof forever.6
And the Defendants further say, that all that Part of the Plantiffs Close aforesaid described in his Declaration aforesaid, wherein the Brick Walls, Chimnies, aforesaid and the Cellars aforesaid mentioned in said Declaration were at the Time when the supposed Trespass was committed, was included and Fell within the Lines and Boundaries of the aforesaid new street so laid out and established as aforesaid.
And the said Defendants further say, that at said Boston on the said Thirtyeth day of April Anno Domini 1767 the Brick walls and chimmies as in the plaintiff’s declaration aforesaid mentioned being part of the [. . .] occasioned by the Fire aforesaid and in a weak and tottering condition and the Cellar aforesaid in said Declaration mentioned being left by the fire aforesaid open and uncovered, were dangerous to the Lives and Limbs of the Inhabitants of said Town, and of his Majesty Subjects in general who had right and occasion to pass and repass with their Horses and Carriages, in the new Street aforesaid and were common Nusances to his Majestys Subjects in general.
And the Said Defendants on the Day and Time mentioned in the Plantiffs Declaration aforesaid, in order to remove the said Common Nusances, and that they and their fellow subjects might pass and repass in said new street, on foot and with their Horses and Carriages, as they had right and occasion to do broke and entered the said Close, in said Declaration mentioned, and then and there broke down and erased to the Foundation the Brick Walls and Chimnies of the Plantiffs Dwelling House there standing, and did then and there, fill up the Cellars aforesaid of the Plantiffs said House, with Dirt, Bricks and other Rubbish and thereby wholly Spoil and destroy the same, as well and lawfully they might.7 Which is the Same breaking and entering, the Plantiffs House, and breaking down and erasing to the Foundation the Brick Walls and Chimnies of his Dwelling House and filling up the Cellars of his said House with Dirt, Bricks and other Rubbish and wholly Spoiling and destroying the same, whereof he complains.
And all this the said William, Giles, Benjamin and Asa are ready to verify wherefore they pray Judgment if the said Jacob his Action aforesaid thereof against them ought to have or maintain.
And the said Jacob says that the same plea of the said William, Giles, Benjamin and Asa, last above in Manner and Form aforesaid pleaded, and the Matter therein contained are not sufficient in Law to bar the said Jacob from having and maintaining his Action aforesaid against them, nor is he the said Jacob under Necessity or bound by the Law of the Land to make any Answer to that same plea in Manner and Form aforesaid pleaded; and this he is ready to verify; wherefore for want of a sufficient plea in this behalf, the said Jacob prays Judgment and his Damage by Reason of the Trespass aforesaid to be adjudged him, with Costs.
And the Said William, Giles, Benjamin9 and Asa say their plea aforesaid in manner aforesaid and the matter therein contained are sufficient in Law to preclude and bar the said Jacob from having and maintaining his Action aforesaid thereof against them which same Matter in the same plea in Bar aforesaid pleaded they the said William Giles Benjamin and Asa are ready to verify and prove when and where &c. Wherefore because the said Jacob has not answered to the same plea in Bar, or in any manner denied the same the said William Giles Benjamin and Asa pray Judgment and that the said Jacob may be barr’d from maintaining his Action aforesaid for their Costs.
2. The signature is in Sewall’s hand.
3. Act of 25 Oct. 1692, c. 13, §2, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 42.
4. Middle Street is today part of Hanover Street and Ann Street is North Street. Walter M. Whitehill, Boston: A Topographical History description begins Walter M. Whitehill, Boston, A Topographical History, Cambridge, Mass., 1959. description ends 45, 113, 130 (Cambridge, Mass., 1959). As to the fire, see Rowe, Letters and Diary description begins Letters and Diary of John Rowe, Boston Merchant, 1759–1762, 1764–1779, ed. Anne Rowe Cunningham, Boston, 1903. description ends 121–122: “February 4 . After breakfast set out for home and upon the road heard of a great fire in Boston which broke out in Bray the baker’s warehouse and spread round about the neighborhood, that it consumed more than twenty houses . . . it begun at ten of clock and continued until three in the morning.”
5. “William Paddy, a skinner and merchant, came to Plymouth in 1635, and was in Boston about 1650.” Paddy’s Alley, known today as North Centre Street, “was laid out through original land of John Jepson. After a fire in 1767 the passage was made wider.” Thwing, Crooked and Narrow Streets description begins Annie Haven Thwing, The Crooked and Narrow Streets of the Town of Boston, 1630–1822, Boston, 1920. description ends 58.
6. “April 8 . Spent the afternoon with the Justices and Selectmen about laying out a new street in Paddy’s Alley.” “April 16 . Met the Justices and Selectmen at the Hall and finished the affair of the street.” Rowe, Letters and Diary description begins Letters and Diary of John Rowe, Boston Merchant, 1759–1762, 1764–1779, ed. Anne Rowe Cunningham, Boston, 1903. description ends 128.
7. No statute gave the precise power claimed here. The Act of 6 Dec. 1693, c. 6, §5, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 137 provided that “any gates, rayles or fence upon or across any highway,” might be removed by any person, but by the Act of 4 July 1734, c. 2, §1, 2 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 711, any incumbrance upon a highway or street could be demolished at the owner’s expense by order of the General Sessions upon complaint made out before them. An Act of 20 June 1760, c. 9, §2, 4 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 378, provided for the demolition at the owner’s expense of buildings encroaching upon streets newly laid out after the fire of that year, upon order of two justices, but there seems to have been no comparable provision for the 1767 fire. At common law, however, “Any one may justify pulling down, or otherwise destroying a common Nusance,” presumably at his own expense. 3 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 57.
8. Except for a few words in the last paragraph, here ends the portion of the text in JA’s hand. The following paragraph is in Sewall’s hand and is signed by him.
9. Preceding six words in JA’s hand; remainder in unknown hand, but signature is JA’s.