judge: Robert Roberts Bishop
11
seems to have been their literal interpre tation of the statutes of the seminary without paying proper attention to former prevailing customs and to prec edents regarding similar boards. The court held the function of visitors to be judicial and that in passing upon the acts of the trustees as the administrative board, or their agents who were the pro fessors, such board necessarily is a party to the proceedings and must be granted a hearing." This decision defining the function of a visitatorial board, while a distinct addi
fixed the ownership of the flats in one Samuel Maverick “to the ordinary low water mark,”” and in later years much
tion to our jurispmdence, effected a far
turned on the construction of this phrase.
greater result. An acrimonious discus sion between discordant factions for several years had been waged at Andover, and the right to freedom of thought and reasonable utterance of views on religious topics won a signal triumph. All de nominations throughout the country watched the progress of this controversy
If in 1640 “ordinary low water mark” meant an average low tide, neither very high nor very low, the flats in question
with interest, and it was felt that the result would not be without influence upon other institutions of sacred leam ing, and so it proved. To-day probably no similar contention could be begun with any hope of success, so rapidly has tolerance of different religious opinions spread throughout the country. Considering the number of cases tried before him. remarkably few were ever
appealed or overruled. The instance of the East Boston Company, petitioner, v. Commonwealth of Massachusetts, may be cited." This case involved the ques tion of ownership in certain flats con taining about forty acres and running
from East Boston out into Boston harbor in the direction of Apple Island.
In
1640 East Boston was called Nocldle's Island and so continued to be known "Sir Frederick Pollock submitted an inion for lhecourl's consideration. James Bryce 2E0 agreed 2 the ti d'ng was Suffolk. ' 3, oint of law. mla'SuperiZr’Cmzrt 106, third jury B5500. March. 1907.
until 1833, when the East Boston Com pany acquired the property and began
its enterprise of transforming the exist ing farm with its one house and some outbuildings into a residential section
of the city.
In 1640 the settlers in this
vicinity gathered from the flats in ques
tion great quantities of oysters and other shellfish, and several times famine in the
little colony was staved off by this means.
During 1640 a colony order
belonged and still belong to the Common wealth, but if in 1640 the parties to the grant understood the term to mean dead low water, that is, the lowest of the
monthly tides unaffected by storms or accidental causes, then the flats would belong to the East Boston Company as successors of the original grantee."
In 1895 it seemed best that the loca tion of proposed docks and watercourses about Boston be considered by a special legislative commission, and in accord ance with its report the Commonwealth undertook to seize large tracts of land including that along the East Boston shore. Hence arose the question of what portion of these flats were private,
what public property. In presiding at the trial, important because of the time involved and the novelty of the questions considered, as well as the amount of property at stake and the difficulty of obtaining and prop erly presenting a great mass of evidence to the jury, judge Bishop ruled on ques tions of jurisdiction, of evidence and "A t of May 13, 1640.
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‘7 The dispute did not affect flats within the 100 rod limit.
