Sullivan et ux. v. Winthrop et al. is founded in reason, and has the authority of such extraordinary Judges, as Lords Eldon and Redesdale, to support it. My opinion, therefore, is, that whatever interest or income accrued within the year upon the nine thousand dollars invested or lent on account of Mrs. Sullivan, she is entitled to, and it does not fall within the residuum. The decree will be framed upon these principles; and it will then be referred to a master to settle the amount due in conformity thereto. Under all the circumstances, I shall apportion the costs equally between the plaintiffs and the defendants, and that portion, which falls on the executors, is to be paid out of the estate. CIRCUIT COURT OF THE UNITED STATES. Fall Circuít. MASSACHUSETTS, OCTOBER TERM, 1830, AT BOSTON. Hon. JOSEPH STORY, Associate Justice of the Supreme Court. UNITED STATES v. RICHARD D. HARRIS. Where the Legislature by a special act authorizes a street or highway to be laid out, and bars any action for possession or damages after the laying out, and provides for the damages in a special manner, the owner is still entitled to the fee, subject to the easement. Such special acts are to be construed in conformity to the general highway acts, unless the Legislature use words, which show, that the fee of the lands taken is intended to pass from the owner. The laying out of a highway at the common law and under the highway acts of Massachusetts does not deprive the owner of the fee, but only subjects it to the ease ment. THIS was an action of trespass brought by the United States to determine the title to a piece of land situated within the limits of the Navy Yard at Charlestown in Massachusetts. The principal facts, as agreed upon by the parties, were as follows. In October, 1781, the Legislature of Massachusetts passed an act, entitled an act for widening and amending the streets, United States v. Harris. lanes, and squares, in that part of the town of Charlestown, which was lately laid waste by fire. The act, after reciting, that a committee was appointed by the town for regulating the streets, lanes, and squares in that part of the town, which was so laid waste, and that the committee had accordingly proceeded to lay out the same, a plan of which had been laid before the court and was then deposited in the secretary's office, proceeded to enact "that the proceedings of the committee be and they are hereby confirmed; and all actions, that shall be brought for recovering possession of any land lying within any of the streets, lanes, squares, &c., laid out as aforesaid, or for damages sustained or occasioned thereby, shall be utterly and forever barred." It further enacted, that no buildings whatsoever be so erected as to encroach upon any street, lane, or square, by them so laid out as aforesaid; and reciting, that some persons may suffer damage by laying out the streets, &c. according to the plan aforesaid, and others may receive benefit and advantage thereby, provided, that the value of all lands and buildings and other materials, taken from any person by virtue of the act, should be ascertained by appraisers chosen in the manner pointed out by the act, and that the town should be held and obliged to pay to the person interested in the land, buildings, and materials aforesaid, the sum at which it may be appraised. In like manner persons benefited by the proceedings were to be assessed a proportionate sum, which their estates were subjected to pay. It does not appear who, at this time, were the owners of the land now in controversy before this Court, upon the special case agreed by the parties. But John Harris, the ancestor of the defendant, became owner thereof by deeds executed to him of various portions in 1791, 1792, and 1793, by various grantors. Although the plan of the committee was United States v. Harris. thus confirmed, no street was ever in fact laid out and opened over the premises until 1795 or 1796, when the town of Charlestown laid out a street over a part thereof, called Battery or Water Street, for which a full compensation was paid to Harris by the town, by an award under the act of 1781. And again in 1798 or 1799, another street was laid out by the town, over another part thereof, called Henley or Meeting-House Street, for which the town also paid a full compensation to Harris. Both streets were however marked out in the plan, and were finally laid out and opened, in conformity thereto. In this posture of affairs, the Legislature of Massachusetts in June, 1800, passed an act consenting to the purchase by the United States of a tract of land in Charlestown for a Navy Yard, and ceding jurisdiction of the tract, not exceeding sixty-five acres. By that act, the value of the land so taken, when not agreed by the parties, was to be ascertained by a jury in the manner prescribed by the act. And accordingly the value of the land of Harris included in the Navy Yard was, upon the petition of Aaron Putnam, Agent of the United States, so ascertained, and the amount paid to Harris by the United States in November, 1800, and February, 1804. In the proceedings under this inquest, five different parcels of land of Harris were set forth by abuttals as taken by the United States, and separately valued. One of these (No. 1) was on the north side of Henley or Meeting-House Street, abutting thereon; another (No. 2) on the south side of the same Street, and abutting thereon, and also on Battery or Water Street; the other three (Nos. 3, 4, and 5) were on the south side of Battery or Water Street and abutting thereon. Nothing material occurs in the description of either lot, ex * Act of 17th June, 1800-2 Mass. Laws (1807), p. 940. United States v. Harris. cept that in No. 2 the description begins as follows; "One other lot of land with the appurtenances, containing one half of an acre, &c." There were at that time three wooden buildings on No. 2, and no buildings on either of the other lots. In January, 1801, the town of Charlestown, for the accommodation of the Navy Yard, by vote declared, that such parts of the following streets and passages belonging to the town, as are included in the limits of the Navy and Dock Yard be granted for the sole use of the United States; and that their termination from the Main Street be as follows, &c., describing certain lines across Henley or Meeting-House Street, and across Battery or Water Street. Harris being present at this town meeting protested against the grant "on account of his rights to the advantages of the said streets." The premises in controversy constitute the land of the said street so discontinued, and granted to the United States. The defendant claims the premises under Harris by devise and heirship. Upon these facts (which are the most material to be stated) the question arose, whether the United States had acquired any title to the premises in controversy, which are now included within the sixty-five acres and visible bounds of the Navy Yard. Dunlap (District Attorney) for the United States. It is contended that Putnam's petition shows what land was wanted, and taken for the use of the United States, that is John Harris's " lots," over which the roads had been laid out, which covered the places demanded on the part of the heirs of John Harris. This petition is broad enough to embrace the freehold of the roads, as was manifestly intended, being parts of those "lots." The jury were merely to value, not to bound the tract taken by the United States. Massachusetts Act of June 17, 1800, $2. |