1 R.I. 106 | R.I. | 1848
The first count substantially sets forth, that the plaintiff, before and at the time of committing the acts of grievance, was lawfully possessed of a certain farm of one hundred and fifty acres of land, with the appurtenances, situate in the town of South Kingstown, and by reason thereof had, among other commonable rights, common of sea-weed, or a right of taking sea-weed or sea manure in a certain place or common, called the "common lot," situate in said town, every year and at all times a year, as to the said farm with the appurtenances belonging and appertaining. Yet the said defendant, well knowing the premises,c., entered in and upon the common lot aforesaid, with his oxen and teams, and unlawfully gathered together, took and carried away from said common *107 lot, and converted to his own use, an hundred loads of seaweed and sea manure, which before had been drifted and deposited and made on the common lot aforesaid, by the action of the sea and tides; and which ought to have remained thereon, to be used for the purpose of nourishing, manuring, and enriching the grass and herbage of said plaintiff's farm, with certain others, c.
The second count sets forth, that the plaintiff, at the time of committing the grievances, was lawfully possessed of one of the Sewall farms, of one hundred and fifty acres of land, with the appurtenances, and by reason thereof had, among other commonable rights, common of sea-weed or sea manure in a certain place or common, called the "common lot," laid out and platted as a common lot, on a plat of the sale of the Sewall farm, situate in South Kingstown, containing ten acres, more or less, as a common lot, for the use of the Sewall farms, so called, sold and platted into several farms, for the use of the purchasers of said Sewall farm, their heirs and assigns, c. Yet the defendant, with his servants, horses, oxen, carts, c., trod down and destroyed the grass and tore up the soil on said common lot, c.
The third count was similar to the first.
The defendant filed two pleas in abatement to this action.
1st. That it appears from said plaintiff's writ and declaration, that certain others, (owners of the estate called the Sewall estate,) and not named as plaintiffs in said action, and whose names are unknown to the defendant, are jointly entitled and have a joint legal claim with said plaintiff in the common and commonable rights, for the disturbance of which and the recovery of damages to which, said plaintiff's action is brought, who ought to have been named in said writ, as plaintiffs with said plaintiff, c.
2d. That it appears from said plaintiff's declaration, that *108 the right of common in the common lot, described in said declaration, for the disturbance of which right and for damages, to which said action is brought, is a right appurtenant to a certain farm or estate in South Kingstown, called the Sewall farm or estate, and belongs to and amongst all the purchasers of said estate; and that ____ are part owners of said estate, of parts thereof, and jointly interested in said common and sea-weed thereon and taken therefrom, with said plaintiff. And that said plaintiff, at the time the several grievances set forth in his said declaration are supposed to have been committed, had nothing in said common or commonable rights, unless jointly and undivided with the said ____, c.
To these pleas there was a demurrer and joinder.
And the defendant also pleaded substantially in bar to this action, that the common lot mentioned in the plaintiff's declaration is bounded south on the sea, or on the salt water of an arm of the sea; and that the same has ever been used by the inhabitants of this state as a public landing-place, to land and receive cargoes from vessels and boats. And that said defendant and all other persons citizens and residents of this state had, at the several times when the acts and grievances set forth in the plaintiff's declaration are supposed to have been committed, for the period of twenty years and more, and from the time whereof the memory of man is not to the contrary, have had, and have been used and accustomed to have, and of right ought to have, a right of common in said lot to take the sea-weed lying on the shores of said lot, and to carry the same away to their own lands, c. And that the defendant being at the time, c., a citizen of the town of South Kingstown in this state, and the occupant of a farm therein, entered in and upon said close or common lot, and took therefrom sea-weed lying on the shores thereof, c. *109
To this plea there was also a demurrer and joinder.
And the defendant also pleaded the general issue.
