Farnum v. Blackstone Canal Corporation. the riparian proprietors, can exempt himself from damages to the full extent of all the injury done, when the obstruction is completed. Then, again, it has been said, that the reason for the total silence of the indenture on the subject of raising Woonsocket dam is, that it was a part of the antecedent agreement, of which there was already a part-performance by the location of the levels of the canal, and the transfer of the route to the west side; and therefore it was unnecessary to stipulate respecting it. But no such antecedent agreement is established in point of fact, of which the indenture constituted an unexecuted fragment. On the contrary, the indenture proceeds upon the admitted fact, that the canal was already staked out on the west side of the river; and the whole scope of the covenants on each side is for reciprocal benefits and advantages consequent upon that fact. The covenants do not allude to it, as the consideration for the covenants of the plaintiffs; but these covenants are "in consideration of the covenants and grants herein contained to be performed and made by the corporation." And where there have been antecedent negotiations on a subject, which have ended in a written agreement, there is no small difficulty in considering them as still a subsisting part of the agreement. Many of the mischiefs growing out of the admission of parol evidence to explain, control, or add to written instruments would be thus immeasurably extended. If there are any cases, in which this may be done, they are cases of a peculiar character, where fraud, or some other equivalent ingredient, is presented to the consideration of a court of equity. Nothing short of the most clear and convincing proofs would justify the engrafting of such a parol contract upon the terms of a written instrument. The very silence of the present indenture is most significant against the presumption of such a pa Farnum v. Blackstone Canal Corporation. rol contract and part-performance; since the very groundwork of the argument rests on the supposition, that it was the main consideration of entering into it. There could be no part-performance, until the dam was actually located and raised; or until there was some release of all claim to future damages therefor by the plaintiffs. Until some act of this sort was done on either side, with the assent of the other, the agreement must remain executory; and its fulfilment could be absolutely secured only by incorporating it into the very substance of the indenture. If, then, the written agreement does not touch the case; if notice cannot, per se, confer any right on the corporation, or bar any claim for damages by the plaintiffs; if no parol contract, operating to bind the plaintiffs, as a matter of fraud upon the corporation, is established, we are driven back upon the Acts of incorporation for a justification; and these, as has been already shown, under the circumstances, furnish none. The consequence is, that the corporation have no right to do the act; and if the raising of Woonsocket dam has been injurious to the plaintiffs, by flowing back the water, to the obstruction of their mill wheels, they are entitled to relief. The remaining inquiry then is, whether, as matter of fact, the injury, stated in the bill, has been occasioned by the raising of Woonsocket dam. And I am of opinion, that it is so established by a strong and decisive preponderance of the evidence. I do not go over the particulars. But the result is that, which has been announced. What then is the relief, to which the plaintiffs are entitled? All claims for damages in this form of proceeding are expressly abandoned by the plaintiffs, and therefore need not be made matter of discussion. The relief must be specific. The nuisance, to the extent of the injury, must be abated, and a perpetual injunction awarded against any future raising of Farnum v. Blackstone Canal Corporation. the dam, or keeping up its height to the injury of the plaintiffs. For this purpose, it will be necessary to refer it to a master, to ascertain, how much the dam ought to be lowered, not exceeding the two feet, in order to remove the injury to the plaintiffs; and upon his report coming in, further proceedings must be had, to give full effect to the decree of the Court. An interlocutory decree for this purpose will be accordingly entered. CIRCUIT COURT OF THE UNITED STATES. Spring Circuit. MAINE, MAY TERM, 1831, AT PORTLAND. BEFORE Hon. JOSEPH STORY, Associate Justice of the Supreme Court. THE BRIG NESTOR, THOMAS MERRILL, CLAIMANT. The Admiralty has jurisdiction in rem for supplies furnished by material-men to foreign ships in our ports, to our ships in foreign ports, or in the ports of other states. The giving credit for a fixed time for the supplies does not extinguish the lien for the supplies; nor the allowing the ship to depart from the port on her voyage without payment. The fact, that the master and owners are personally liable for the supplies, does not destroy the lien; for the party may trust to the credit of the ship, the master, and the owner. THIS was the case of a libel in rem brought by a materialman for certain supplies, and especially for a cable furnished to the brig Nestor. The articles, amounting to the value of $168.46, were furnished at Alexandria in the District of Columbia, by the libellant, Lincoln Chamberlain, a resident merchant there, at the request of the master of the brig, then lying in that port, but belonging to the port of Portland in the state of Maine, and bound on a voyage from thence to The Brig Nestor. other ports. In the District Court there was a decree in favor of the libellant, charging the vessel with the value of the cable, and rejecting the claim for the other supplies. From that decree the respondent appealed to this Court; and the question here was of course narrowed down to the point, whether the cable was necessary; and, if so, whether under all the circumstances the proceeding in rem could be maintained. At the argument, the necessity of the cable seemed not susceptible of doubt; and the controversy turned almost entirely on the other point. The case was argued by William Pitt Fessenden for the libellant, and by Daveis for the claimant. STORY J. In respect to the right, in point of jurisdiction, of maintaining this suit in rem in favor of material-men, it does not appear to me, that there is any well-founded objection. The Admiralty has, as I conceive, a clear jurisdiction to maintain such suits, whenever the supplies have been furnished to the vessel in a foreign port; and every port is foreign to her, which is not in the same State, to which she belongs. So the doctrine was laid down in the case of The General Smith (4 Wheaton R. 438,) and it has never, to my knowledge, been in the slightest degree departed from.1 Upon principle it appears to me equally clear. If ever an occasion should require it, I should not shrink from the duty of vindicating this doctrine in its full extent. But until the Supreme Court has justified me in sustaining a doubt, I shall content myself in following the doctrine, which it has deliberately avowed, as a duty most appropriate for one, who is called upon to administer the law under its guidance. 1 See also the case of The St. Jago de Cuba, (7 Wheaton R. 409, 415, 416, 417.) Abbott on Shipp., P. II. ch. 3, § 15, note (1.) of Am. editor, p. 115, 116. See also 1 Bell, Comm. 525, 526, 527. 2 Bell, Comm. 39. |