Gould v. James

Curia, per Savage, Chief Justice. The first question is as to the competency of Cogswell. Courts have lately inclined strongly to the rule, that nothing but an interest in the event of a cause, shall disqualify a witness as interested. Phillips, in his treatise on e vidence, (1 vol. 47,) Says, when the issue does not affect any common right ; but is merely on a right of common, claimed by prescription, as belonging to the estate of A, one who claims a prescriptive right of common in right of his own estate, may be a witness ; for though A may have such a right of common, it does not follow that B has ; nor would the terdict in the action of A, be evidence in J?’s action. And Buller, J. in Walton v. Shelly, (1 T. R. 302, 3,) says, if the issue be on a right of common,pvhieh depends on a custom pervading the whole manor, the evidence of a commoner is not admissible ; because, as it depends upon a custom, the record in that action would be evidence in-ar [374] subsequent action brought bj that very witness to try the' same right ; therefore,, there is a good reason for not receiving his testimony in such a case. But the same reason ^oes no^ where common is claimed by prescription in right of a particular estate ; because it does not follow, if A has a prescriptive right of common belonging to his estate, that B, who has another estate in the same manor, must have the same right. Neither would the judgment for A, be evidence fori?; and yet there are cases which lay it down as a general rule, that one commoner is, in no case, a witnes for another. This dictum of Mr. Justice Buller, is not exactly applicable to the question upon Cogswell’s competency. Here is no right of common in controversy ; but a claim by prescription is made by the plaintiff, of a right as belonging to him in common with the inhabitants, or rather proprietors of Lloyd’s Neck. The witness is, therefore, interested in the question ; but not in the event of the suit. He is interested in establishing the prescription ; but this may be proved as to the plaintiff, and perhaps not as to any other proprietor of Lloyd’s Neck, in the town of Oysterbay. A verdict for the plaintiff, therefore, could not be used by the witness, in a suit which he might afterwards bring, for a similar trespass upon his fishery. I think the court below erred in rejecting this witness. Did they err also in receiving the defendant’s witnesses ? The objection to those witnesses was, that they were brought to establish a right of fishery in the inhabitants of Huntington, they being themselves inhabitants of that town. The rule seems to be well established, that an inhabitant of a particular place cannot be sworn to prove a prescriptive right in all the inhabitants ; because that would be swearing to give himself a right there. (1 Ld. Raym. 731. Doug. 374. 1 East, 357.) In the case of Jacobson v. Fountain, (2 John. 175,) Thompson, justice, who delivered the opinion of the court, lays down the rule with great precision. “ A commoner,” says he, “ is inadmissible to prove a right of common, unless the common be claimed by prescription in right, of a particular es375 fate.” In that case, the witnesses were excluded, because the right of fishing was claimed by them, not in their individual capacity, but as inhabitants of Staten Island. The right set up by the defendants, if it existed at all, depended on residence exclusively. And hence the distinction between all the cases cited, and this case. There is here no right of common, no right of fishery in the inhabitants of Huntington, any more than those of any other town in the state. The right set up by the defendant is claimed by him in his individual capacity. It does not depend at all on residence. These witnesses were no more interested than any other citizens of the state, or of the United States. So far, then, the court below was correct in admitting them. But were they not interested to defeat the plaintiff’s action ; as, by their own testimony, it appears they were liable to an action themselves, if the plaint '’s right should be established ? They would then come within the case of The Carpenters v. Hayward, (Doug. 374,) where several persons were introduced to disprove the existence of a custom in favor of the plaintiffs, that none but the members of their company should work in Shrewsbury, by shewing that the witnesses had worked there as carpenters, without the company’s license. Lord Mansfield said, “ if the company had failed in establishing the custom, they would have been discharged from actions to which they were liable for the breach of it.” The most forcible objection to these witnesses is, that they were interested to discharge themselves from actions to which they were liable as trespassers, if the plaintiffs right was established ; and yet the verdict against the defendant could not be used in an action against the witnesses. The general rule is, that a verdict cannot be evidence for either party, in an action against one who was a stranger to it ; who had no opportunity to examine witnesses, or to defend himself, or to appeal against the judgment. (1 Phil. Ev. 247. 14 John. 80, 1.) I think this case is not an exception to that rule, [376] The witnesses were, therefore, no otherwise interested than any other persons, in the event of the suit; and, of course, were competent. The award, I think, was properly excluded as irrelevant. It purported merely to establish the line betwmen Lloyd’s Neck and Huntington, which, in my judgment, was immaterial. The court below having erred in rejecting the testimony of Cogswell, the judgment must be reversed, and a new trial granted ; unless, indeed, as it is contended for the defendant, the plaintiff, from his own shewing, cannot recover upon a further trial. It is urged by him, that the plaintiff cannot recover, because the locus in quo is an arm of the sea, where the tide regularly ebbs and flow's ; and because, in such case, the right of fishing is common to all. The law on this subject, is truly laid down by lord Mansfield, in Carter v. Murcot, (4 Burr. 2164.) “In rivers not navigable, the proprietors of the land have the right of fishery on their respective sides ; and it generally extends ft d filum medium aqua. Butin navigable rivers, the proprietors of the land on each side, have it not; the fishery is common ; it is prima facie in the king, and is public. If any one claims it exclusively, he must shew a right. If he can shew a right by prescription, he may then exercise an exclusive right, though the presumption is against him, unless he can prove such a prescriptive right.” This is the acknowledged law of Great Britain, and of this state. (3 Caines, 318. 2 John. 175. 10 id. 236. 17 id. 210. 20 id. 98,) So in Connecticut. (1 Conn. Rep. N. S. 384. 2 id. 483.) The case of Jacobson v. Fountain, is an instance in which the plaintiff proved a prescriptive right to the fishery opposite his soil. Such a fishery may be the subject pi a grant. Of course, it may be claimed by prescription. The plaintiff is bound, in such case, to make out his right. Every presumption is against him. Pie must, therefore, establish his prescriptive right by satisfactory prpof before he can recover. Judgment reversed, and a yenire de novo awarded.