UNITED STATES SUPREME COURT DECISIONS ON-LINE

The decisions of this Court in the cases of the City of Boston v. Lecraw, 17 How. 426, and Richardson v. City of Boston, 19 How. 263, referred to and explained.

Indictments against the City of Boston, in 1848, for permitting unhealthy vapors and exhalations to arise in that part of the city which the sewer in question was erected to remedy were admissible in evidence on the part of the city to show that the conduct of the city did not tend to oppression, and as part of the history of the case. An instruction of the court below was correct, viz., that a former verdict and judgment, though admitted in evidence, should have little or no weight on the decision of the case, because it was founded on erroneous instructions on the law.

So also an instruction was correct which told the jury that there was no evidence in the case which would authorize them to find that the City of Boston had ever dedicated to the public use a public highway, town way, dock, or public way between the wharves in question for the access of boats and vessels between said wharves to high water mark or the egress therefrom to the sea.

These instructions were in conformity with the previous decisions of this Court.

This was an action for the continuance of an alleged nuisance from 13th September, 1850, to 15th April, 1852. It will hereafter appear why the first of these dates was named.

The nuisance charged is described in two preceding cases, viz., 58 U. S. Lecraw, 17 How. 426, and Richardson v. City of Boston, 19 How. 263. Without noticing at present the first-named case, it may be proper to give the history of the present one.

The action was brought by Richardson in the Circuit Court of Massachusetts to October term, 1850. clubjuris

Page 65 U. S. 189

1851, March. General issue pleaded, and special plea; plaintiff demurs to special plea.

1851, April. Plaintiff has leave to amend his declaration by adding two counts.

1851, May. A statement of facts submitted.

1851, October. Agreement of counsel that the case should be carried to the Supreme court.

1852, May. Plaintiff has leave to amend declaration.

1852, October. Boston files petition to remove the case, because Mr. Justice Curtis had been counsel and judge Sprague was interested; removed to Rhode Island.

1853, June. Argued before judge Pitman on the agreed statement of facts; verdict guilty; damages and costs, $2,026.87 up to 13th September, 1850; judgment on sixth count; motion for new trial; pending which, the case of Lecraw v. City of Boston was decided by this Court, as reported in 17 How.; case continued by agreement.

1855, June. New trial granted; plaintiff amends writ and declaration by adding a count, which is the subject of comment by this Court in the present opinion; verdict not guilty; plaintiff sues out writ of error, and brings the case up to this Court to December term, 1855.

1856, December term of this Court. Case tried, and reported in 60 U. S. 19 How. 263; judgment reversed.

1857, November term of circuit court. Mandate from this Court presented; new trial ordered.

1858, June term. Plaintiff amends writ and declaration by striking out the words constituting the ad damnum in said writ, as the same now stands, and inserting in lieu thereof the words following, viz., "ten thousand dollars."

"By S. BARTLETT, his Attorney."

"And now, by agreement of parties, and with the leave of the Court here, plaintiff amends the several counts of his declaration by striking therefrom such parts thereof as claim damages for the injury to the ends of his wharves by material deposition near the same, by means of the structure complained of."

The case then went on to trial before Mr. Justice Clifford clubjuris

Page 65 U. S. 190

and Judge Pitman. Under the instructions which were given by the court, the jury found a verdict for the defendant, and the plaintiff again brought the case up to this Court by a writ of error.

The bill of exception was very long, and included the record of the former case, together with a vast quantity of other matter. The instruction of the court, admitting this record in evidence, was as follows:

"That the record of the former verdict and judgment is admissible in evidence, but inasmuch as it appears that the verdict was found by the jury under an erroneous instruction given by the court, the judgment is entitled to very little weight upon the question of the right to recover in this case, and none whatever upon the question whether the supposed way or dock before described was duly laid out and established by the town of Boston, or the authorities thereof, pursuant to law, either as a public highway, town way, or public way, for the access of boats and vessels to high water, or the egress therefrom to the sea, as is alleged in the seventh count of the plaintiff's declaration."

"By his Honor judge Pitman"

"The record above referred to was in a case decided by me upon an agreed statement of facts, which was excluded in this case. It was therein admitted by the defendant that the place between the said wharves was 'an ancient public dock or highway.' This fact, and the case having been submitted to judge Sprague and decided by him in favor of the plaintiff before the case was sent to the Rhode Island District, I was disposed to decide the same way unless I saw it was manifestly erroneous. It was to be determined under the law of Massachusetts, with which I believed he was much better acquainted than myself. I did not, therefore, so critically examine the documents in the case, and their legal effect as I have since done. Since the decision of the Supreme Court of the United States in the case of Lecraw v. City of Boston, I have considered the opinion erroneous which I then delivered, and the judgment as entitled to no weight for that reason as evidence to a jury, and therefore I excluded the judgment

Page 65 U. S. 191

from the consideration of the jury in the former trial. I am now of the opinion that it is entitled to no weight, though it be admissible."

"I did not decide that the supposed way was laid out as a way for boats and vessels by the town of Boston or its authorities. I instructed the jury that the plaintiff was entitled to recover upon the sixth count of his declaration, the one on which he rested his case, and they found a verdict accordingly."

"JOHN PITMAN"

"District judge U.S., R. Island District"

"SEPTEMBER 16, 1858."