Richardson v. The City of Boston. (who tried the case) was, that the right of property could not be taken from Richardson without compensation, and that, under the circumstances of the case, he was entitled to recover against the city of Boston whatever damages he might prove under the sixth count of his declaration. That sixth count stated the occupancy of Price's wharf by Bullard as tenant, the reversionary interest being in Richardson, and the occupancy of the Bull wharf by Lecraw & Perkins, the reversionary interest being in Richardson, and averred that the dock in front of these wharves was, and had been for a long time, a public way, slip, or dock, so as to allow a free communication between the wharves and the channel of the sea. Under this instruction of the court, the jury found a verdict for the plaintiff, and assessed his damages at $1,209.69. It was this record of the case, tried in 1853, which the counsel of the plaintiff offered in evidence in the present suit, but the judge ruled that the judgment was not admissible in evidence for any purpose, and refused to admit the same to be put in evidence; to which refusal and ruling the plaintiff excepted. The plaintiff then offered in evidence an agreed statement of facts contained in the record of the former suit, which the judge refused to admit, and to this ruling also the plaintiff excepted. The plaintiff then gave in evidence all the documents enumerated in said agreed statement of facts, together with much parol testimony relative to the premises, which it is impossible to specify particularly. The plaintiff then rested, whereupon the defendants offered the following: ORDER OF MAYOR AND ALDERMEN, JUNE 18, 1849. CITY OF BOSTON. An Ordinance constituting the Board of Health for the City. Be it ordained by the Mayor, Aldermen, and Common Council, of the City of Boston, in City Council assembled, as follows: The Mayor and Aldermen shall constitute the Board of Health of the City, and shall exercise all the powers and perform all the duties now vested in the City Council as a Board of Health, with the right of carrying into execution such powers and duties through the agency of any persons whom they may select, or in any manner which they may prescribe. In Common Council, June 14, 1849. Passed. Sent up for BENJAMIN SEAVER, President. Aldermen, June 18, 1849. Passed. JOHN P. BIGELOW, Mayor.. S. F. MCCLEARY, City Clerk. concurrence. In Board of Mayor and Richardson . The City of Boston. And without offering any further evidence on their part, did request the court to rule and instruct the jury that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff, and the violation of those rights by the defendants, such as to sustain the plaintiff's action. The plaintiff on his part did request the court to rule and instruct the jury as follows: 1. That there is evidence in the case competent to go to the jury, and to be judged and weighed by them, that, at the time of the grants by the town to Gridley & Baxter of their estates or possessions, there existed a town or public way between those possessions, for access to and from the sea in boats and vessels, upon which those possessions were bounded, and that the right to use and enjoy said way passed to said grantees by the grant of those possessions, and is an appurtenance thereto, and to their heirs and assigns. 2. That if said way, so bounded on said possessions, existed at the time of the grant of those possessions, and the title to the land thereunder to high water was in the town, but not the title to the flats between said way at high-water mark, and the sea or low-water mark; and if said title rested in the town subsequently by the ordinance of 1641, then, by and after the said ordinance, said way became shaped and restricted over the flats to the interval between the flats annexed by said ordinance to the possessions of said Gridley & Baxter, and was and continued to be an appurtenance to the possessions so granted to Gridley & Baxter, their heirs and assigns. 3. That there is evidence competent to go to the jury, and be judged and weighed by them, that at the time of the grants of liberty to wharf to Gridley, Gill, & Bull, there existed a public or town way between the possessions of Gridley & Baxter, and bounding thereon for access of boats and vessels to the sea or low water, and that such liberties to wharf were bounded by said way, and thereby the right to use said way for access of boats and vessels to and from such wharves, one or both of them, became, by virtue of said respective grants, annexed or appurtenant to said grants, and to said possessions of Gridley & Baxter, their heirs or assigns. 4. That if the jury shall find that at the time of the sta king out of said highway, October 31st, 1683, the same extended below high-water mark, and that the possessions of said Baxter bounded on said way, then by virtue of the liberty to wharf, granted at the same time to the proprietors of lands on Sea street, the right to use said way for access by boats and vessels to and from such wharf, became by virtue thereof an Richardson v. The City of Boston. nexed or appurtenant to the possession of said Baxter, his heirs and assigns. 5. That there is evidence competent and proper to be submitted to the jury, to be judged and weighed by them, that a town way or highway was laid out by the selectmen, October 81st, 1683, to the sea or low-water mark; that the estates or wharves claimed by the plaintiff were bounded thereon; that said way was a way for boats and vessels, and that, at the time of the acts complained of, plaintiff was the owner and possessed of said wharves, as stated in the declaration; and if the jury shall so find, and that defendants while said way remained, and without a previous due and legal discontinuance thereof, erected the structure alleged in the declaration, and continued the same for the time and in the manner set forth therein, and that by reason thereof the plaintiff has been deprived of the use of said way for access to and from his wharves, with boats and vessels, then the plaintiff is entitled to recover. 6. That if the jury shall find that by reason of the acts of defendants complained of in the declaration, that part of plaintiff's wharf below low-water mark, held by him under a grant of the Legislature, has been injured in the manner set forth in the declaration, then the plaintiff is entitled to recover. Thereupon his honor the judge did decline and refuse to make and give either of the said rulings and directions so prayed by the plaintiff, but did rule and instruct the jury as prayed by the defendants as aforesaid. Whereupon the plaintiff excepted, and the jury found a verdict for the defendants. The case came up to this court upon these several exceptions, and was argued by Mr. Bartlett for the plaintiff in error, and by Mr. Chandler and Mr. Loring for the defendants. The reporter regrets that the limited space which must be allotted to the report of this case will not allow him to state the arguments of the respective counsel upon the various points which arose in the case. Mr. Justice GRIER delivered the opinion of the court. This is an action of trespass on the case brought by the plaintiff in error against the city of Boston, for the erection and maintenance of a drain at the foot of Summer street, which, it is alleged, is a nuisance, and injurious to the property of plaintiff. He is owner of two wharves, called the Price and the Bull wharf, which are extended from high to low-water mark, from the lots which adjoin Summer street on each side. Richardson v. The City of Boston. The nuisance, which is the subject of complaint in this case, is the same as that in the case of Boston v. Lecraw, decided in this court, and reported in 17 Howard, 426. The declaration contains seven counts, in four of which the plaintiff, as owner of the several wharves, and having the seizin and possession, claims a right of way, as appurtenant to the same, over the "dock" or "way and dock," which constitutes the interval between the wharves; also, that his wharves are bounded on the "town dock," "town way or dock," which he alleges to have been long used as a "public dock, slip, or way." The fifth and sixth counts are for injuries to the reversion, with like averments. A seventh count avers the wharves to be bounded, respectively, "by a highway, town way, or public way, to the sea, extending from the corner of Summer and Sea streets to the channel, or low-water mark, which was duly laid out and established pursuant to law." The defendant pleaded the general issue, and on the trial the plaintiff offered in evidence the record of a former verdict and judgment rendered in his favor in an action against defendant for the erection of the same nuisance, the continuance of which is the subject of the present suit. The rejection of this evidence by the court is the subject of the first bill of exceptions. It is contended that this record was not only evidence, but conclusive of the right of the plaintiff, and prima facie evidence of the continuance of such right; and that plaintiff, having no opportunity to plead it as an estoppel, may exhibit it as matter of evidence. It may be admitted that numerous decisions may be found in many of the State courts affirming this proposition; nevertheless, it has not been universally adopted. The leading case of Outram v. Morewood (2 East., 174) establishes the following proposition, in which all concur: "That if a verdict be found on any fact or title distinctly put in issue in any action of trespass, such verdict may be pleaded, by way of estoppel, in another action between the same parties or their privies, in respect to the same fact or title." But estoppels, which preclude the party from showing the truth, are not favored. To give the verdict the effect of an estoppel, the facts must be distinctly put in issue. The plea of the general issue, in actions of trespass, or case, does not necessarily put the title in issue; and, although the judgment is conclusive as a bar to future litigation for the thing thereby decided, it is not necessarily an estoppel in another action for a different trespass. The judgment can Richardson v. The City of Boston. only give the plaintiff an ascertained right to his damages, and the means of obtaining them. These principles seem to have been adopted by the courts of Massachusetts, and applied to cases like the present. In the decision of this point, we must be guided by the decisions of the courts of that State. In the case of Standish v. Parker, (2 Pick., 20,) which was an action for a nuisance, the court say: "We think it very clearly settled that nothing is conclusively determined by the verdict but the damages for the interruption covered by the declaration. In actions for torts, nothing is conclusively settled but the point or points put directly in issue. By the plea of the general issue, the title is not concluded, because it cannot be made to appear upon the general issue that the title ever came in question." (See also 15 Pick., 564.) Nevertheless, though a verdict in such case is not conclusive, it is permitted to go to the jury as prima facie, or persuasive, evidence. (3 Pick., 288.) If the evidence of the facts involved in the first trial are still doubtful, if witnesses were then examined whose testimony cannot now be obtained, for these and many other reasons the former verdict may have the effect of highly-persuasive evidence on another trial of the same question. But if on the last trial new evidence has been discovered, or if the question of title submitted on the first trial was connected with instructions in law which have since been found to be erroneous; or if a different verdict on the same evidence would have resulted from the different instructions given on the last, it is plain that the first verdict could have but little or no persuasive effect. Title is often a question of mixed law and fact and a party is not concluded by an erroneous opinion of the court, pronounced in a former case. We are of opinion, therefore, that the court erred in not permitting the record of the former suit to be given in evidence to the jury. 2. At the conclusion of the trial, the court, at the request of defendant's counsel, instructed the jury "that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff." As it is the duty of the jury to decide the facts, the sufficiency of evidence to prove those facts must necessarily be within their province. The jury cannot assume the truth of any material averment without some evidence; and it is error in the court to instruct the jury that they may find a material fact of which there is no evidence. An instruction like this is imperative on a jury; it has taken the place, in practice, of a demurrer to evidence, and must be governed by the same rules. If there be "no evidence whatever," as in the case of |