Monday, July 7, 2008

Jamaica Pond Goes To Court

In the year 1693, the Freemen and other inhabitants of the Town of Roxbury granted Mr Joseph Belknap permission to draw water from from Jamaica Pond to run a mill for grinding grain. The amount of water to be taken was to be decided at a later date, and Mr Belknap was required to maintain the road where he would dig (The only place that water from Jamaica Pond could drain down hill would have been towards Ward's Pond, so we can assume that the road referred to was the one now known as Perkins street, which was laid out in 1662).

In 1739, a petition to the selectmen complained that the mill erected to grind corn for families of Roxbury and Brookline was being used to grind large quantities of wheat from Boston, and requested that Mr Belknap and his grantees and heirs cease drawing water from the pond to grind grain coming from outside Roxbury and Brookline. The selectmen met and wrote a report recommending that the grantees of Mr Belknap be required to post bond and cease grinding wheat from Boston. At the annual town meeting held in May of the following year, the report was accepted and confirmed by vote.

In 1783, another petition from Roxbury land owners claimed that large quantities of water had been drained from the pond in recent years, causing the selectmen to order the proprietors of the mill to cease taking water from the pond until conditions could be ascertained.

The year 1788 brought the pond back to the notice of the town. Following a petition of the current mill proprietor Mr. William Marshall, a committee consisting of Selectmen William Heath, Dr. Eliphalet Downer, David s. Greenough and Martin Brimmer was to consider conditions regarding the pond, the mill and nearby wells. The committee recommended that the mill sluice be set such that the level of the pond could be drawn down no more than six inches lower than its existing height. The report and its recommendations were put to a vote and rejected. A motion was then put forward to allow Mr Marshall to draw down the pond to the same level as was allowed to Joseph Belknap in 1698. That motion passed.

In 1791, an action by William Marshall against Martin Brimmer was referred to arbitration, the arbitrators ruling for Mr Marshall, with a recommendation that the drawing of waters from the pond be regulated by the selectmen in the future.

All of which leads us to the legal case of the Inhabitants of West Roxbury vs. Enos M. Stoddard & another. A report by the Massachusetts Supreme Judicial Court describes the case, argued in October, 1862, as "Tort for breaking and entering the plaintiff's close, described in the writ as Jamaica Pond, and carrying away eight thousand tons of ice, the property of the plaintiffs, for the purpose of selling the same." Mr Stoddard owned the ice house at the south side of the pond, and stood accused of stealing the watery property of the town!

Along with the preceding history, the plaintiffs (the Town of West Roxbury) introduced a remonstrance submitted to the legislature in 1795 by the selectmen of Roxbury against the incorporation of the Jamaica Plain Aqueduct Company. The selectmen claimed that the town of Roxbury should have exclusive rights to the waters of the pond, having never granted use of the pond's water except for the use of the mill discussed above.

The town went on to show that a part of the pond had been reclaimed in 1856, and a walk built along the eastern shore, with a policeman stationed during the day to prevent bathing. In January of 1860 the town posted a notice near the defendants ice houses giving boundaries within which ice could be cut. The defendants were informed by the town that there would be a charge for cutting ice. The defendants then cut and took away about eight thousand tons of ice from the pond, selling it outside the town of West Roxbury. The town then presented the defendants with a bill at a rate of three cents per ton.

In their legal argument, the Town of West Roxbury asserted the following: that an act of 1636 had granted the territory which includes Jamaica Pond to the town of Roxbury; that a 1647 ordinance granting the public access to all "great ponds" (those larger than 10 acres) for "fishing and fowling" did not dispossess the Town of Roxbury of its possession and control of the pond; that the act of separation between Roxbury and West Roxbury in 1851 had passed possession of the pond and its contents to the plaintiffs; and that the town had sufficient title to support a charge of trespass against the defendants.

The court was required to decide whether the 1636 grant, giving possession of Jamaica Pond to the town of Roxbury, took precedence over the ordinance of 1647, which guaranteed citizens access to great ponds for fishing and fowling, by statute, and for swimming, watering animals, and harvesting ice, by practice.

The court decided that the ordinance of 1647 made public all great ponds not previously granted to a single individual.The town of Roxbury had no possession adverse to the rights of the public to access the pond for accepted activities, including boating, bathing, skating, taking water for domestic or agricultural purposes, and for the cutting and taking of ice. The town could adopt by-laws that regulate unreasonable or excessive use of such liberties, and if such by-laws were insufficient, the only resort the town had was to be found in the legislature.

So, the town's case for breaking and entering against Enos M. Stoddard in 1862 failed. The town could regulate the use of Jamaica Pond as a commercial source of ice, but it could not prevent it through criminal charges. While the court seemed to support the rights of citizens to use great ponds for swimming, bathing, skating, etc., the rights of communities to regulate such uses seem to have overtaken and overridden the initial promise.

Perhaps the most interesting information coming from this case was the long history of corn and grain grinding at Jamaica Pond. Between 1693 to 1791, a mill was operating at the pond. The incorporation of the Jamaica Plain Aqueduct Company in 1795 puts a late limit on the operation of the grist mill at the pond. Maps from the 19th century show building owned by the Aqueduct company along Perkins street between Jamaica and Ward's ponds, at the same spot where the mill must have taken water from Jamaica Pond.

As more legal decisions from our state's past come online, we may learn more about Jamaica Plain that has lain hidden in dusty court records.

Source: Reports of the Cases Argued and Determined in the Supreme Judicial Court of Massachusetts - Volume VII

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