Supreme Court of Rhode Island, 1868

State v. Peckham and Others

Supreme Court of Rhode Island · Decided March 6, 1868 · Durfee

9 R.I. 1

Counsel

To all these rulings and refusals to rule, the defendants excepted, and the exceptions were argued in writing by Sheffield, for the defendants, and by the Attorney General, Horatio Rogers, Jr., Esq., for the State. Sheffield, for the defendants: — I. The first question is that of the variance between the proofs and the indictment, as to the description of the locus in quo. In criminal cases, description is either a matter of venue or of the essence of the offence. This indictment was for obstructing a particular highway, common and public landing place, which is attempted to be particularly described in the indictment. So the action is local in its character, made so especially by the mode in which it is described. In local actions, allegation of place is material and must be strictly proved if put in issue. Greenleaf's Ev. § 62, Roscoe's Crim. Ev. 103, and n. 1, 111 and 112. The rule is the same in criminal as in civil cases. Greenleaf's Ev. 65. If the offence is described with unnecessary particularity, the particular description must nevertheless be proved. 1 Greenleaf's Ev. § 61. United States v. Porter, 3 Day, 283. II. The committee appointed by the town of Portsmouth, in the year 1714, had no authority to lay out a common. The plat offered in this case, though made by John Mumford, Surveyor, purports upon its face to have been made by order of the committee, and as there is manifestly a variance between the plat and the report which was made some three years subsequent to the plat, the latter, because it was made by the surveyor and upon the ground, would be much more liable to be correct than a report of that survey made three years afterwards, and at all events, records have priority according to their date. III. The plat made by the committee was made out and recorded by May 28, 1714. The deeds conveying the land on either side of the alleged common were recorded, and the rights of the proprietors adjoining to the common were fixed, before the report of the committee setting forth the dimensions of the common in 1717. A prior record complete in itself should be permitted to have complete effect, and a subsequent record made by the same grantor should not be permitted to qualify it. IV. The fee of this common being in the town of Portsmouth, it was competent for that town to submit the question of the extent of the "common" as it was laid out, to arbitration and award, and in the manner and form in which it was submitted by the town of Portsmouth and the abutting proprietors to referees. Their award was not only binding upon the town and the abutting proprietors as to the extent of the alleged common as it was laid out, (if it was laid out at all) but also upon those who had easements out of that original common. The public had at most but an easement in this parcel of land. The fee, the greater estate, was in the town. The mere incident to the fee was limited by the fee itself. Horatio Rogers, Jr., Attorney General, for the State : — I. The common and public highway and landing place which is alleged (in a certain part of it) to have been obstructed, is not the highway that leads from Middletown to Bristol Ferry, but a different one, namely, one that extends from said last mentioned highway, westerly to the shore. The highway leading from Middletown through Portsmouth to Bristol Ferry, terminates at "Borden's corner" and at this terminus commences the "Common" or the common public highway and landing place, a portion of which is alleged to have been obstructed. The fence is neither north, south, east nor west of the highway and landing-place alleged to be obstructed, but is on it, and the plat and proofs show conclusively that the obstructed highway extends westerly to the shore from the highway terminating at Borden's corner. II. The term common is a name, an appellation, applied to the locus in quo since it was laid out, to designate it from other highways, as the term Market Square is applied to a highway in the City of Providence, laid out as a highway and not as a market. It was set apart for the convenience of the public and not of the town merely, and that makes it a highway, after being approved and confirmed as such by the town, as this one was. If a highway extends to tide-water, as it clearly does in this case, then the public have a landing place, but whatever else the locus may be, it is clearly laid out as a highway. III. In establishing a layout, the report of the Committee making it is the very essence of it, and to virtually exclude that report would be to deny the layout. If there was any error on the part of the committee, the whole evidence should be taken together, that the jury may decide. IV. After a highway has been dedicated or laid out, and accepted or confirmed as such, the owner of the fee has no power to affect the boundary of the highway. His sole right in the land is in the reversion after it shall be abandoned as a highway, and it makes no difference whether an individual or a town is the owner of that reversion. Angell and Durfee on Highways, §§ 167, 168, 321. The only manner in which a town can affect a highway is by declaring it useless.

Opinion of the Court

Durfee, J.

1. The locus of the alleged nuisance is described in the indictment as “ a certain common and public highway and landing place in the town of Portsmouth, in the aforesaid county of Newport, commonly known and called by the name of the Common, lying west of the highway leading through a portion of said Portsmouth from the town of Middle-town, in said county, to Bristol Perry, so called, and extending from said highway to the shore, in a westerly, direction.”

The Attorney G-eneral claims that this description is correct, according to the plat and documentary proofs in the case, and, consequently, that the defendants should not have a new trial under their first exception. He claims that the highway referred to as “leading through a portion of said Portsmouth,” &c., terminates at a point designated on the plat as “ Borden’s Corner,” and that thence “ extending to the shore in a westerly direction,” is “the common and public highway and landing place,” mentioned in the indictment.

This view presents two difficulties. First, a highway terminating at “ Borden’s Corner,” is not ostensibly a highway leading to Bristol Ferry; for, strictly speaking, a highway connects with a ferry only at the water’s edge, and Borden’s Corner is some distance from the water. It may be, that the .open space between “ Borden’s Corner ” and the water goes by the name of Bristol Ferry : but if so, it is not a fact which is apparent on the record before us, and, therefore, not a fact of which we can have judicial knowledge. Second. The area marked on the plat as “ Common at Bristol Ferry,” does not lie West of the *9 highway, even if Borden’s Corner could be taken as its terminus, nor does it extend precisely in a westerly direction, but rather in a direction between northwest and north, from such terminus to the shore. Therefore, we cannot overrule the first exception, without straining both these points in favor of the State. This we do not-feel at liberty to do, and must therefore sustain the first exception, and grant the defendants a new trial.

Eor the guidance of the court in any new trial which may be had, we will also express our opinion on the other questions raised by the exceptions.

2. "We think the ruling covered by the second exception was correct. The committee appointed to divide the undivided lands in Portsmouth, as stated in the exception and documents referred to, made report of their action to the town, giving therein a list of highways, which, in making the division, they had laid out for the convenience of the public.

In the list the committee use the following language, describing what is now called the Common at Bristol Perry, to wit., “And the piece of land near Abiel Tripp’s house, adjoining to the ferry against Bristol, is left for the convenience of the public, in importing and transporting of cattle, sheep, horses, wood, rails, &c., and is bounded,” &c. On this report the town voted, “ That all of the high road, highways, lanes and driftways in the township, as are set forth in a list of the same in the 63d, 6éth and 65th pages in this book, (meaning thereby the list aforementioned,) are allowed and confirmed,” — with the exception of a lane expressly named.

Neither the vote nor the report make mention of any common or landing place by name, but inasmuch as the locality now known as the “ Common at Bristol Perry ” was included by the committee in their list of highways, we have no doubt that it was understood and intended to be likewise included in the allowance and confirmation of that list, by the vote of the free.men of the town.

3. The third exception is not entirely clear in its meaning. If it means, as we understand it to mean, that the plat and deeds are to be preferred to the report as evidence of the action *10 of the committee in the matters to which they relate, merely because they were recorded before the report was made, we do not think the exception well taken; if it rests on other grounds, the defendants will have the benefit of another trial to bring those grounds more distinctly before the court.

4. We also overrule the fourth exception. If the public were entitled to an easement in the locus in quo, either as a common, a highway or a landing-place, the town had no authority to bind the public in regard to the extent of such easement, by submission to arbitration.

New trial granted.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.