F 89 
 
 
 .P9 G79 
 
 Copy 
 
 1 
 
 ^a®^m ©jFiiri®ir 
 
 RICHARD W. GREECE, ESQ. 
 
 QUESTION 
 
 TOWN'S INTEREST 
 
 ANCIENT GRIST MILL. 
 
 FROVIDZSITCZ:. 
 
 H. H. BROWN. ...PRINTER. 
 1830. 
 

 7'T 
 
OPINIOIV. 
 
 I HAVE examined the Documents, subtaitted to me, by the Commit- 
 tee, and have resorted to th« Records, and other sources of information, 
 relative to the interest of the Town, in the Grist Mill, and thfe follow- 
 ing is the result of the investigation. 
 
 The right of the Town depends upon the terms of the grant, in Jan- 
 uary, 1646, and upon the agreement of 1649, entered into by the Town! 
 and Mrs. Smith, the widow, and John Smith, the heir and administrator 
 of John Smith, the originail grantee, each of which I Will consider sep- 
 arately. 
 
 If the lands Xvere Criginally granted Upon the condition that the 
 grantees should keep up a Mill, for the accommodation of the Towny 
 then upon a refusal by the heirs of the grantee to perform the c6hdition, 
 the Town have a right to proceed by ejectment for the land* as forfeit- 
 ed for a breach of the condition. The present proprietors hold th^ 
 lands either by title or possession ; if by the former, the evidence toi 
 establish the title, shews the condition on which it was granted ; if by 
 the latter, the evidence vfrhich proves the possession, proves also the 
 condition which has accompanied and qualified it. Many objection* 
 have beert urged against the right of the ToWn, both under the grant of 
 1646, and the agreement of 1649. 
 
 The grant of 1646, is in these words: — "At our Monthly Court 
 Meeting, as also being warned, according to order, the 1st of the 1st 
 month, 1646, so called, it was agreed that John Smith shall have the 
 valley, wherein his house stands, in case he set up a Mill" — and copied 
 the 4th of January, 1667, "per Shadrach Manton, Town Clerk." 
 Recorded per Richard Ward, Recorder. 
 
 It is said, the inference from this record is, that the ToAVn, twenty - 
 one years after the vole or grant to John Smith, by the proprietors, 
 thought proper to have in its own books convenient reference to a paper 
 in which the Town had an interest, so far forth as ittost of its cor- 
 porators were also proprietors. 
 
 That this record is not admissible, for fh'6 purpose of shewing the 
 terms of the original grant, because it is a copy made by the Town 
 Clerk, twenty-one years after the original vote. This objection is 
 founded on the idea that the Town and the ^I'o^rietors were separate 
 bodies. This was not the case. The first settlers vv61*e all proprietor* 
 of the lands purchased of the Indians, and the affairs of the Company 
 were all managed in town meeting, both rrtafters Of police and matter* 
 of property. The mode of conveying the Company or common lands, 
 was by vote in town meeting, and the vote passed the title. As all the 
 Freemen were originally proprietors of the common lands, they voted 
 in town meeting in a two-fold capacity ; as a Town, regulating its own' 
 municipal atTairs, and as a Company of individuals, Managing and set- 
 tling tli^eir joint property. 
 
 They acted in both capacities, indiscriminately, as occasion might 
 require ; and this just as much, after the charter of incorpoYation, (which' 
 #as granted in 1648,) as before. They had but one clerk, and the' 
 fight to control ot sell the common land, belonged to the Freemen in' 
 town meeting, and was exercised by them, as much as the right to" 
 i^cgulat^ the municipal affairs of th« Town. The riglrty t^«refore^ Iso' 
 
4 
 
 sell and to manage tlie common lands, belonged to the Town of Provi- 
 dence, as such, as much as the right to regulate its own police ; and 
 the acts of the Town in relation to these lands and the record of these 
 acts, are binding upon all the Arorld. There were no other records 
 made of the grants of common lands, except what were made by the 
 Town Clerk, as such ; nor was the distinction between Town and pro- 
 prietors known or recognized, until 1682. In that year, the General 
 Assembly established the proprietors as a separate body, and author- 
 ized them to act as such. But in Providence, they did not hold their 
 meetings separately until 1717. 
 
 In order to understand the certified copy of the record signed by Sha- 
 drach Manton, it is necessary to recur to an order, made by the General 
 Court in 1641, whereby " It is ordered that each town shall provide 
 a town book, wherein they shall record the evidences of the land by 
 them impropriated, and shall also have power to give forth a copy 
 thereof, which shall be a clear evidence for them and theirs to whom it 
 is so granted." 
 
 By another law, passed in 1644, it is ordered, that forasmuch as ac- 
 cording to divers orders by General Courts, formerly made, that all such 
 lands as were granted to any, they sliouJd be recorded in the State 
 book, which should be their evidence to perpetuity. And it now ap- 
 pearing to this present Court, that such lands have been granted, unto 
 divers persons who have made sales thereof, and have neglected to 
 record their lands so granted, or past on, so and so to persons purchas- 
 ing the same lands, and some have gone away or departed Irom this 
 jurisdiction, so that original records cannot be made in due form. Be 
 it now established and decreed by this Court, that all who hath made 
 or shall make of any such lands, and shall sutficiently evince, either by 
 writings, bargains, contracts or other testimony of the purchase of any 
 such land or lands before any one Judge of the Court and the Clerk of 
 the Peace, that the Secretary shall hav« lull power to record the same 
 lands in the State book to the purchaser, and in his name, then holding 
 said land, which record shall be as authentick to him or them, their 
 heirs, executors or assigns, as if the said lands had been originally 
 granted, and according to that tract in all points observed." 
 
 These orders are found in the manuscript records of the early pro- 
 ceedings of the Colony. 
 
 The order, providing that all such lands as were granted to any, 
 should be recorded in the State book, which should be their evidence to 
 perpetuity, and which are referred to in the law above recited, cannot be 
 found. But the recital of such orders by the General Assembly of the 
 Colony, is satisfactory evidence of their existence. From these two 
 laws, "the one of 1641, and the other of 1644, it appears, that the towns 
 were directed to keep records of the lands by them impropriated, and 
 that the Town Clerk was authorized to give forth a copy thereof, which 
 copy was conclusive evidence of the grant. There is no time sj)ecified, 
 Avithin which the copy must be granted. It also appears that the Sec- 
 retary of State was the recorder of land evidences for the whole Colo- 
 ny ; and that his record was conclusive evidence of the grant. 
 
 And where the grantors had neglected to have the deed recorded, 
 the purchaser might sufficiently evince the purchase by writings, bar- 
 gains, contracts or otiier testimony, before a Judge of the Court, and 
 Clerk of the Peace, and that thereupon,, he was entitled to have his 
 deed recorded. 
 
 Upon tliis view of the matter, it appears to me clear, that the copy 
 granted and certified by Shadrach Manton, T. C. and recorded in 
 the records of the Secretary of State, who in the early laws is called 
 
the recorder, is conclusive evidence of the original grant, and the con- 
 dition anexed to it. 
 
 It was in strict compliance with the existing laws of the Colony. 
 
 It is objected tliat admitting the grant fully proved by the record, 
 still the words of the condition do not import any obligation to keep 
 the Mill up, but merely to erect it, and tliat when John Sinitli, had 
 built the Mill, the estate became absolute in his hands, by a perfor- 
 mance of the condition. 
 
 To support this objection, the construction put upon the covenant to 
 build, has been referred to. In answer to this, I contend, in the first 
 place, this grant was not a deed, but a mere vote of a Company, and 
 cannot be supposed, particularly considering the period when it was 
 made, and the circumstances, to contain that fulness and technical pre- 
 cision of language, in which deeds are usually drawn. It would seem 
 absurd to apply to this vote of a Company of sturdy larmers, who nei- 
 tlier knew or desired to know the technicalities of the common law, the 
 same narrow and technical rules of construction, which have been ap- 
 plied to the elaborate and verbose deeds of an English Conveyancer, t 
 
 In the construction of this grant, we must consider the circumstan- 
 ces, in which the parties were placed, and the object of the Town j^i 
 making it. .^''' 
 
 The object of the Town, plainly was to provide for the Inhabit'anls, 
 the permanent convenience of a Mill "sufficiently and timely to o-Hnd 
 tlieir corn," and this not only for the first settlers, but for those who 
 were to come alter them. 
 
 They knevv that the Mill could not run for any length of time, 
 without repairs, any more, than they could make meal without torn.. 
 And to suppose that when they were providing themselves, with tlie 
 convenience of a Mill, they would neglect to provide for the keep- 
 ing it in repair, is to impute to them a degree of folly, altogether in- 
 consistent with the general tenor of their conduct. 
 
 If the words "sot up" are of the same import with the words "to 
 build," and we are to be confined to the strict literal meaning of the 
 words, then the grant to Smith, would be of no avail whatever to the 
 Town; for the words to build a Mill, import no obligation to run it. 
 And Smith when he had erected the Mill, was under no obligation to 
 grind the corn, for a single inhabitant of the Town. 
 
 But the words "set up," do of themselves import, more than the 
 mere physical erection of the building ; they mean to establish, to keep 
 up; further, it is a well established principle, that a usage may be ad- 
 mitted to explain a written instrument, and still more, that it may be 
 explained by the acts of the parties under it, for a long course of years. 
 
 This Mill has been kept in repair, by John Smith and his heirs, for 
 the use of the inhabitants of the Town ever since it was built, a period 
 of nearly two centuries, and this upon the ground of claim made by the 
 Town, and admitted by the Smiths, that they were bound to do so, by 
 the condition of the grant. The occasional instances of committees 
 appointed by the Town, to see to the rights of the Town, and that the 
 terms of the grant were complied with, were caused by the neglect of 
 the owners to keep the Mill in sufficient repair. 
 
 And the appointment of such a committee was usually sufficient to 
 induce the owners to correct the evil complained of, without having 
 recourse to any other measures. The general course of things, was 
 that of a full wnjoymcnt by the inhabitants, of the benefit of the condi- 
 tion, acquiesced in and admitted by the owners of the INIill. 
 
 It appears to mc, therefore, that the words of this grant, to wit, " to 
 set up a Mill," mean to keep it in repair; that this is the plain import 
 
6f tJiP words ; Ihat this construction is strengthened, by considering th6' 
 object and circumstances of the parties, and fully confirmed by theif 
 subsequent conduct, which is totally irreconcilable Avith the idea, that 
 Smith and his heirs were not to keep this Mill in repair. 
 
 In support of this objection, we are also referred to the vote of 11th 
 fnonth, — 51, by which it was "Ordered, that John Smith, the miller, 
 shall have a six acre lot which was William Harris' by new bridgey 
 upon the Mill account." It is said, if the original grant was for keep- 
 ing up a Mill, why grant any more land. In answer to this, I contend 
 that this vote does not sho\\ that more land was granted. The original 
 grant was of the valley where hit house stands. From the agreement 
 of — 49, it appears, that the quantity intended to be granted was one 
 hundred and fifty acres, whereof fifteen acres meadow ground with 
 common proportionable. But this whole grant was not located and 
 surveyed until sometime aiterwards, and the location was in different 
 parcels, and at difierent times, as appears from the return of Arthur 
 Fenner of •27th May, 16G7. The fair inference from the record is, that 
 this six acre lot was a location of a part of the one hundred and fifty 
 acres originally granted, and therefore is said to be on the Mill account. 
 
 It is further objected, that admitting the original grant sufficiently 
 worded, and that the condition obliged the Smiths to keep up a Mill, 
 still that the vote of 1673 is an enlargement of the original grant, and a 
 release of all conditions. 
 
 The vote, however, contains no release of any conditions, but is a 
 simple recognition of the title of John Smith. The lands having been 
 originally granted, upon the terms, that Smith should keep up a Mill, 
 (and this objection admits this,) a matter of vital importance to the 
 Town at the time this vote was passed, it would seem, if they intended 
 to discharge Smith from the condition, they would have said so. 
 
 It is true, as a principle of the common law, that if A. grants lands 
 to B. upon a condition to be performed by B. and afterwards conveys 
 the same lands to B. absolutely, and without any condition, it is an im- 
 plied waiver of the condition. 
 
 But this rule of the common law is founded upon the idea, that the 
 party could have no other object in making the second deed, excepting 
 to discharge the estate of the condition. 
 
 But it seems to me unjust and absurd, to apply this rule of the com- 
 mon law, relating to grants of land by deed, to this vote of the men of 
 Providence. 
 
 They knew that the condition appeared of record, and of course felt 
 safe upon that point ; and when the lands granted had been surveyed, 
 and the survey returned, they were willing to recognise the title of 
 Smith to those lands as surveyed. In fact, as the original was not of 
 •o much common land, but of a specific tract, (the land in the valley^ 
 about where the house stood,) it was perhaps necessary, and at all 
 events just and proper, in the Town to vote, that the lands surveyed, 
 were the lands originally granted. 
 
 Such a vote may be considered as necessary, to perfect the title of 
 Smith to the lands surveyed, but it would be monstrous injustice, to 
 cause this act of the Town, — by which they merely meant to say, that 
 the survey was in conformity to the grant — to work a forfeiture "to the 
 Town of "all their rights under the grant. It is incredible that the Town 
 would have passed such a vote, if they had so understood it, and the 
 subsequent conduct of the parties, shows clearly, that neither of theni' 
 did so understand it. It appears to me, therefore, that if the present 
 owners claim under the original grant, they must perform the condilioiv 
 annexed to it. 
 
But siippose they claim by possession, if this be sufficiently made 
 tout, it Avill bar the right of the Town, as well as of an individual. 
 
 But the possession must be uninterrupted, accompanied hj a claim 
 of the absolute estate, in fee simple. 
 
 Can such a possession be proved by (he present owners 1 On the 
 contrary, the statements of the oldest inhabitants of the Town, amd 
 those who have paid much attention to this subject, are, that the con- 
 dition has always accompanied the possession, and qualified it ; tlie 
 Town claiming the benefit of the condition, and the owners acquiescing 
 in the claim. 
 
 As late as 1764, Mr. Elisha Brown came into Town Meeting, and 
 engaged to use his endeavours to save sufficient Avater for the Grist Mill, 
 and to repair the same as soon as conveniently may be. 
 
 " Whereupon, a committee was appointed to ascertain the usual 
 quantity of toll taken in the Colony, (which is the rule established by 
 the agreement of 1649,) which quantity when found, shall be the quan- 
 tity to be taken by Mr, Elisha Brown, at his Grist Mill, agreeable to 
 the original grant of setting vp said Mill." 
 
 There is one gentleman, now living, who was present at this Town 
 Meeting, and recollects what was then done. 
 
 It is said that nothing appears from the records, in relation to the 
 Mill, from May 8th, 1G73, to 1764, when Mr. Elisha Brown appeared 
 in Town Meeting, as before stated, and that during all that time, the 
 Mill estate was holden free of any condition. 
 
 I ask, is this credible 1 If, during all that period, the estate had been 
 holden free of any condition, Elisha Brown must have known it ; and 
 is it to be believed, that knowing this, be would have charged his es- 
 tate with a condition, from which it was then freel The fact is, that 
 ordinarily, the condition was fairly performed by the Smiths. So long 
 as this was the case, nothing would appear of record, in relation to the 
 Mill, because there was nothing to record. 
 
 But when they neglected to save the water, or to keep the Mill in 
 sufficient repair, then the Town took the matter up, and then the re- 
 cords show their proceedings. A request on the part of the Town, or 
 the appointment of a committee, was sufficient to meet the evil com- 
 plained of, and the Town have never, in any instance, found it neces- 
 sary to resort to a Court of Justice. 
 
 Another ground on which the right of the Town rests, is the agree- 
 ment of 1649. 
 
 This agreement confirms to Smith the lands, originally granted to 
 him, and contains provisions which define with clearness and precision, 
 the rights of the Town, and of Smith. 
 
 The original grant was general, many things were loft unprovided for, 
 such as the rate of toll, which Smith was to take. 
 
 Under the original grant, as there was no agreement upon the rate 
 of toll. Smith would have been entitled to take a reasonable toll. 
 
 It may be proper to remark here, that although the agreement pro- 
 vided for the keeping up a Mill forever, yet it does not add to the quan- 
 tity of land already given, but merely confirm! Smith's title. This 
 shews that the proprietors meant, by the original grant, to oblige Smith 
 and his heirs to keep up a Mill at all times ; for if the understanding 
 had been, that Smith was merely to build, it is hardly probable, that 
 the Committee would have " assayed" the Widow Smith with apropos 
 sition to increase to so great an extent, the labor and expense of the 
 Mill, without any increase of consideration. 
 
 This agreement is a covenant running toith the land, and whoever 
 becomes the owner of the land, whether by descent or purchase, i« 
 
8 
 
 bound lo pertorm it, and if he neglects or refuses so to do, an action 
 will lie lor damages. 
 
 The remedy of the Town, upon this agreement, would not be by eject- 
 ment to recover the land, as forfeited, by a breach of the condition, 
 but would be an action of covenant to recover damages. 
 
 It is objected to this agreement, that it appears from the record of it, 
 that it was never executed. 
 
 This inference is drawn from the fact, that the record does not con- 
 tain tlie seals and signatures of the parties. But this inference is 
 abundantly refuted by the usage which prevailed at that time of record- 
 ing instruments witliout the seals or signatures of the parties. This 
 usase is particularly referred to by the Town's Committee, who de- 
 rive^l their information from an actual examination of the records. 
 
 It is not easy to imagine for what purpose this agreement was re- 
 corded, unless it was deemed a valid and binding contract. 
 
 The' solution — that the Committee, twenty years after they had 
 attempted to get it executed, caused it to be recorded, in order to leave 
 a written monument of their zeal and fidelity to the Town — seems 
 quite too fanciful and far-fetched. 
 
 If this had been the object of the Committee, one would suppose 
 they would have so reported, or at least, caused some memorandum to 
 be put on the record, by which their object might appear; at all events, 
 it is not to be supposed, that they would have caused a record to be 
 made which was false, and which went to render that valid and binding, 
 which the parties had never consented to ; neither is it to be supposed, 
 that the Town Clerk would have lent his official aid, to so unjust and 
 unlawful * procedure. 
 
 ^ The Widow Smith, too, and her son John, we have good reason to 
 believe would have objected to the recording an instrument, which 
 they not only had never executed, but had positively refused to execute ; 
 or at least that they would have caused to be entered on the record 
 their protest against it. 
 
 Yet nothing of this kind appears. 
 
 To suppose that this agreement was never executed, is to suppose, 
 that the Town, the Town's Committee, the Town Clerk, and the Re- 
 corder, have wilfully caused that to be recorded as binding, which the 
 parties' had refused to consent to, and that the widow and her son, 
 after having been in vain urged to assent to the agi-eement, had quietly 
 and without protest or objection, permitted it to be recorded. 
 
 And this consideration derives great weight, from a reference to the 
 Orders of 1641 and '44, by which a copy of a grant, given out by the 
 Town Clerk, and recorded in the State Book, was made conclusive 
 evidence of grants, superseding the necessity of proving the original. 
 
 It will be perceived that the grant, and the agreement were both 
 copied by the Clerk at the same time, and recorded in the State Book. 
 
 Under these Orders, it may well be contended, that the record, as it 
 now stands, is conclusive evidence of the original. 
 
 We must take the practice under these laws, as we find it ; and if 
 the usage was to record instruments without recording the signatures 
 or seals of the parties, then this record of this agreement, is conclvsive 
 under the law. 
 
 It is said, there was no law in 1649 or 1667 requiring the recording 
 of a deed, to give it validity ; this assertion is contradicted, by the Or- 
 ders, which have already been recited ; at least, these Orders, if they 
 do not require the record of the deed, to give it validity, make the record 
 valid, without the deed, and a substitute for it. 
 
 The objection that this agreement is without date, is not founded on 
 
fact ; and if it were, it could be of no avail in law. Twc date is no 
 part of a deed, which takes effect from delivery, and not from its date. 
 It is equally binding, whether there be no date^ or an erroneous one. 
 But the year is given, though not the day and month on which it was 
 executed. 
 
 It is objected that this is a more personal contract, on which the 
 remedy is by action of assumpsit ; and that it derives no raoi'e validity 
 from being recorded, than any otlier personal contract. 
 
 On examining this agreement, it will be found to contain the exact 
 technical words, which in law make a covenant; the parlies covenant 
 with each other, to perform the thmgs agreed to be done. 
 
 But this is not only a covenant, but a covenant running with the 
 land, operating as a charge upon it, into whosever hands it may pass ; 
 it relates to the reality, as much as an easement, and an action upon it 
 is local. 
 
 It was necessary therefore, that it should be recorded, and as the 
 gi'ant is the consideration of tlie covenant, and both compose one entire 
 contract, it appears to me, that under the Orders of 1641 and 1644, the 
 copy given out by the Town Clerk, and recorded in the State Book, by 
 the Recorder, is conclusive evidence of the entire agreement. 
 
 Certainly it can be no objection to the validity of the record of this 
 agreement, that the Town was a party to it. 
 
 If the Town purchase or sell real estate, it is as needful to record 
 the deed, as if an individual had bought or sold it, and the i-ecord is as 
 valid in the one case as in the other. And the same may be said of 
 any agreement relating to land which is required to be recorded, and 
 to which the Town is a party. But the certificate given by Manton, 
 was the precise document authorized by the Order of 1641, being of 
 lands impropriated by the Town ; and then there is a further record in 
 the State Book, under the Order of 1644. 
 
 It is said the original ought to be produced. 
 
 It is perhaps a sufficient answer to this, that under the then existing 
 laws, the record was a substitute for the original, and superced the ne- 
 cessity of producing or proving it. But if this were not so, one would 
 think the lapse of time would be a sufficient excuse for not producing 
 the original ; more especially when the parties had caused a full record 
 to be made of it, which was doubtless understood by them to be perma- 
 nent evidence of the contract. 
 
 Besides, here is not only this ancient record, but the acts of the par- 
 ties, in conformity to it, ever since it was made. 
 
 A deed, thirty years old, accompanied with possession, pi-oves itself. 
 
 It would seem that this ancient record, if it were not made conclusive 
 by the then existing laws, yet being accompanied with the possession, 
 and enjoyment by each party of their rights under it, would be sufficient 
 evidence of the execution of the original. 
 
 Neither is there anytiiing unreasonable in this agi'eement, or different 
 from the terms of the original grant, which were very general, and the 
 object of the agreement was to supply by exact provisions, what was 
 generally expressed in the first grant. 
 
 It confirms to the Smiths, the lands originally granted, and the Mill 
 and its rights ; it provides for the rate of toll of the different kinds of 
 grain, and for the repairs ot the Mill by the Smiths ; and tliat no other 
 Mill should be set up to take toll, with the consent and authority of the 
 Town, Avhile the Mill of the Smiths should be sufficient to grind the 
 corn of the inhabitants. If is, in fact, just such an agreement, aa the 
 parties would have made, at the time of the original grant, had their 
 meaning been fully and exactly reduced to writing. 
 
 Nor have the Town forfeited their rights, by the fact that other Mills 
 
 2 
 
10 
 
 have been erected within the Plantation. The contract is, that no 
 other Mills shall be built within the limits ot the Plantation, to be au- 
 thorized by the Town to take toll, wliile the Mill of the Smiths is suf- 
 ticient to grind all the corn ot the inhabitants. 
 
 Now in the tirst place no more Mills have been built within the limits 
 of the Plantation, than were fairly called for, by the necessities of the 
 people, to grind what the Mill ofthe Smiths could not grind. 
 
 In the next place, the Mills wliich haxe been built have not taken 
 toll by the authority of the Town. 
 
 But suppose the Town had broken this part of their agreement, this 
 could be no bar to their action against the Smiths, for a violation of 
 their part of the agreement. 
 
 These covenants are independent. 
 
 The violation by one jiarty of his covenant, can have no efiect to bar 
 tlie right of such party, to sue ibr a breach by the other. 
 
 The performance by one, is not made the condition, precedent to or 
 concurrent with a performance by the other; each undertakes positive- 
 ly to perform, and the remedy for each, in case of a breach, is by ac- 
 tion. 
 
 It is also objected to this agreement, that it was executed by the Ad- 
 ministrator and Widow of John Smith. At the period when this agree- 
 ment was executed ; an Administrator in Rhode Island, represented the 
 real as well as the personal estate; he could maintain ejectment to re- 
 cover possession of the lands of his intestate, could lease them, and was 
 entitled to the rents and profits. 
 
 The Widow, therefore, was competent to represent her life estate, 
 and the Administrator the fee. But if the Administrator had not been 
 authorized, still this objection could not prevail ; for two reasons — first, 
 the subsequent conduct of the Smiths is a full ratification of the act, 
 and renders it as binding as if the most ample authority had been given 
 to execute it. Second — John Smith, who was the Administrator and 
 executed this agi-eement, was sole heir at law as well as Administrator. 
 If he was not authorized to make this agreement as Administrator, then 
 he is bound in his individual capacity as heir. Uniting in himself the 
 rights both of Administrator and heir: it is not for him, or those who 
 claim under him, to say, that what he did as Administrator, though un- 
 authorized, shall not bind him as heir and owner of the fee. 
 
 But admitting, for the sake of the argimient, that this agreement 
 could not be established, as binding on the heirs of John Smith, still the 
 right of the town to proceed by ejectment for the forfeiture, remains. 
 If the agreement be good, then the Town have an election, either to 
 proceed for the forfeiture, under the grant of 1646, or by covenant for 
 damages, under the agreement of 1649. It is said, that the right of the 
 Town is barred by the vote of February 2, 1826, the proceedings of the 
 committee under that vote, and the approval of those proceedings by 
 vote of June 10, 1S26. The charter of the Blackstone Canal Company 
 studiously guards the Mills then erected, from any injury by diversion 
 of the water, or otherwise, by the Company, in the construction of the 
 Canal. "^ ^ 
 
 Without recurring in detail to the provisions of the charter, I will 
 merely refer to the amendments passed January Session, 1826, by 
 which, among other things, it was enacted, " That said Corporation, 
 in addition to the powers of reserving and diverting the flood water, as 
 aforesaid, are hereby authorized and empowered to detain, reserve, in- 
 terrupt, or divert any part of the usual run of said river, and of the 
 Moshausuck river, their branches, feeders, and tributary streams, pro- 
 vided, they do not flow back on the wheel of any mill, or any dam, now 
 built on said river, in this State." 
 
11 
 
 And throughout the chartor the Corporation are prohibited from di- 
 verting or using the natural run of the waters, when the same shall be 
 needed by Hie mills then erected. 
 
 Now it seems a strange construction to say, that this charter, which 
 denies to the corporation, in the most unequivocal terms, the right to 
 use a bucket of water, when needed by a mill, or in any case to How 
 back on the wheel ol a mill, nevertheless authorizes the company to 
 tear the mill down, or to remove it. This would indeed be a most 
 convenient way to avoid all those provisions in the charter which were 
 intended to protect the property of the mill owners. 
 
 The corporation have but to tear a mill down, or remove it, and they 
 are free from all the provisions of the charter, which were intended to 
 protect it. 
 
 Such a construction reminds one of the morals of the Roman soldier, 
 who murdered his general, in order to get rid oi' his oath of obedience 
 to him. 
 
 It dods appear to nie, therefore, that the location of the Blackstone 
 Canal across the site oi' this Mill was void, being against the plain in- 
 tent and meaning of the charter. 
 
 What was originally void, is so still, so far as the rights of the Town 
 are concerned. The committee of the Town had full powers, it is true, 
 to contract with the corporation, and to release all the Town's interest 
 in the Mill, but they did not exercise their powers. 
 
 I never knew, that the mere making an attorney bound the constitu- 
 ent to tlie full extent of the powers given, whether the attorney exer- 
 cised his powers or not. The committee were authorized to release 
 the corporation from all damages ; they have not done it. They were 
 authorized to contract in relation to the rights of the Town ; they have 
 not done it. They merely appeared before the commissioners, ap- 
 pointed to appraise damages, and claimed damages ; none were award- 
 ed, and the committee, though authorized so to do, did not appeal. 
 
 Does this make that valiil which was originally void ■? The Town 
 had no estate in the land, until after a forfeiture of the condition. They 
 could not maintain ejectment against the corporation to recover pos- 
 session of tlie Mill site, or trcss>as?5 for removing the Mill. The legal 
 title was in the heirs of John SniiLli, and they are the proper persons to 
 resist this unauthorized act of t!ie corporation. 
 
 If they have failed to do this, because they are satisfied with damages 
 awarded to them, or from any other cause, certainly the rights of the 
 Town are not thereby forfeited. It docs not even appear for what, the 
 committee claimed damages, whether for an entire destruction of the 
 Mill to the Town, or for the delay and inconvenience attending the 
 erection of a new one, on the premises originally granted, there being 
 several other sites equally convenient for all parties. But admitting, 
 for the sake of the argument, that tlie location was valid, and the re- 
 moval of the Mill lawful, still it does not follow, that the right of the 
 Town is barred. 
 
 The terms of tlie grant are, that John Smith shall have the valley, 
 where his house stands, in case he set up a Mill. 
 
 The valley contains several sites for a Mill, equally convenient for 
 the Town, and the Mill owners ; and the condition does not specify 
 any particular site. If, therefore, the corporation were authorized to 
 remove the Mill, (which most clearly they were not,) and have done 
 so, and have paid t'.ic owners damages caused by the removal, then it 
 is the duty of the owners to operate the Mill on another site, on land 
 originally granted. 
 
 It is true^that when an estate is granted upon a condition subsequent, 
 which becomes impossible by Ihf act of God, or the performance is 
 
12 
 
 prohibited by statute subsequently enacted, the estate becomes abso- 
 hite in the hands of the a^antee. 
 
 But in the present case, the condition has not become impossible, 
 nor is the performance of it against law. The Mill may be removed ta 
 another site, on the premises originally gi-anted, equally convenient for 
 all parties, and tlie owners have claimed and received damages, caused 
 by the removal by the corporation. 
 
 Suppose the Mill, instead of being removed by the authority of the 
 commissioners, had been destroyed by flood, and the site so washed 
 away, as to render it impossible" to rebuild the Mill there again. There 
 would seem to be no doubt, in such a case, that the owners would be 
 bound to build on another site, on land originally granted, if such could 
 be found. • 
 
 John Smith selected the site originally, and not the Town ; the de- 
 struction of the Mill is at his risk, and still more strongly is he bound, 
 to rebuild, when he receives compensation in damages, for the taking 
 of the old site. 
 
 In fact, the present Mill has been removed, not destroyed, and may 
 be put in operation, on another site, equally convenient for all parties. 
 Upon any view oifhc case, which I have thus far taken, it does ap- 
 pear to me, that the rigid is with the Town ; and although tlie case ex- 
 hibits many facts which are novel, and tbc books do not furnish us with 
 precedents upon all the points involved in the case, yet I should be of 
 opinion, that this right might be enforced in a Court of Justice, either 
 by ejectment for the lands, or covenant for damages. 
 
 But there is another view to be taken of the case, which after the 
 most attentive considenition I have been able to give to the subject, 
 appears to me to throw some doubt upon the claim of the Town. 
 
 Have the Town of Providence such an interest in the land, as to 
 enable them to maintain ejectment for a breach of tlie condition, or 
 covenant upon the agreement 1 The right to enter for breach of a 
 condition can only belong to a grantor, his heirs or assigns, and if a 
 corporation be the grantor, to their successors or assigns ; and so of 
 the right to sue upon the covenant. 
 
 If, therefore, the Town of Providence were not the owner of the 
 lands granted, it can have no right to sue for a breach of the condition, 
 nor upon the covenant, the consideration of whicii was the grant of the 
 lands. The first charter for the Colony, was obtained of llie long Par- 
 liament, and bears date March 14th, 1643. The Town of Providence 
 was incorporated by the General Assembly of (he Colony on the 14lh 
 March, 11)48. 
 
 At the time of making the agreement, therefore, the Town had been 
 incorporated ; still, as before this, they had associated tlicmsclvcs to- 
 gether as a political body, and owned the land as such, and had granted it 
 as such, I do not consider the fact, that they had obtained a charter, be- 
 fore the agreement was executed, as giving the Town of Providence any 
 greater right under the agreement, than it has under the original grant. 
 Tlie first settlers were all proprietors of the lands purchased of the 
 Indians, and the affairs of this political body, both matters of police and 
 matters of property, were all managed in town meeting. 
 
 But the property, or common land, belonged to the political body or 
 Town, and was subject to its control as such. 
 
 In the course of events, this body clianged in some degree its char:u'- 
 
 ter, the terms of admission into it were altered, and many persons were 
 
 admitted Avho had })aid no consideration for an interest in the common 
 
 land, and who conse(iucn(ly ought not to have any control over it. 
 
 By this means this political or corporate body, the Town of Provi- 
 
13 
 
 dence, which originally was composed of those, who all had an interest 
 in tlie common land, came to be composed oi those who had not, as 
 well as those who had, an interest in the common land ; still the right 
 to sell and regulate the common land belonged to the town, and was 
 exercised by the freemen in town meeting, to the same extent, and in 
 the same manner, as upon its original organization. 
 
 In 16S2, tlie General Assembly established the owners of the com- 
 mon land as a distinct body Irom the Town, and empowered them to 
 meet and act as such. In 1717, they began to hold their meetings se- 
 parately from the Town, and have since continued to do so. Now the 
 question is, whether these owners of the common land, when they seced- 
 ed from the Town, took the right under this grant and agreement with 
 them. In the first place, it is obvious, that the object of this grant 
 was the benefit of the Town as a political body. All the inhabitants 
 were to have their corn ground at this Mill, as well those who were 
 not proprietors of common land, as those who were ; in fact, the benefit 
 was to be open to all the inhabitants without discrimination. 
 
 There was, therefore, nothing proprietory in the object of this gi-ant. 
 There was a political body owning land, and making a grant of it, for 
 the benefit of this body, and to ensure the benefits of this grant, reserv- 
 ing certain conditions to be performed by the grantees, upon the breach 
 of which the grant was to become void. 
 
 If the Town had a right, by virtue of ownership, to grant the estate, 
 and has granted it, it would seem that the right to enter for a breach of 
 condition, must belong to the Town, unless the Town have transferred 
 it. Had the statute of 1682, not been passed, there could have been 
 no doubt but that the right would have been in the Town. 
 
 That statute authorizes the owners of common lands to meet and 
 transact business by themselves — in fact incoi-porated them for the pur- 
 pose of managing common lands. Now, upon this division between 
 Town and proprietors, it seems to me, the Town is entitled to retain 
 all rights which relate to the benefit of the Town, as a political body ; 
 and that the proprietors take with them all rights which relate to them 
 as individual owners of a joint property. That the Legislature did not 
 mean to say, by this act, that where a Town had made a grant for its 
 own benefit, reserving conditions to insure tliat benefit, that the pro- 
 prietors, when they secede, should strip the Town of the rights under 
 this grant, and appropriate it to themselves ; although at the time of 
 the grant every Freeman was a proprietor, and the grant was made of 
 common land. 
 
 If the grant was made before the act of 1682, it appears to me, that 
 to decide to whom the rights uuder it belong, we must consider the in- 
 tent and object of the grant. 
 
 If it be for the benefit of the Town, as a political body, then the right 
 should be retained by the Town if it be for the benefit of the proprie- 
 tors, as such, then the right belongs to them. 
 
 Upon any other principle, all the rights and benefits which the Town 
 of Providence may have secured to itself, by grants of common land, 
 would be transferred to the proprietors, and rendered wholly unavailing 
 to the Town. 
 
 This would be the necessary result of the principle, that the proprie- 
 tors, when they seceded, took with them all rights created and growing 
 out of the grants of common land. 
 
 Another view may be taken of this subject. 
 
 At the time this grant was made, all the Freemen of the town were also 
 proprietors of the connnon land; they united in themselves the double 
 right of corporators and proprietors. Now it appears to me, that by elect- 
 
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