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The spot where the settlement was made was at the east and north end of the island.

The following spring, their numbers having increased materially, some of the members removed to the southern and western side of the island and formed a new settlement. It was stated by counsel, in the course of the debate growing out of this suit, that the movement to the southern end of the island, was planned and led by Nicholas Easton, who gave the name of Newport to the new township. The island was called Rhode Island in 1644.

At the latter end of 1637-8, Mr. Coddington was elected leader of the little band, and Nicholas Easton, John Coggeshall and William Brenton were appointed elders.

In 1640 it was voted that the chief magistrate should be called Governor, and the next in rank Deputy Governor. At this time four members out of the two towns of Newport and Portsmouth, were chosen Assistants. The officers were William Coddington, Governor; William Brenton, Deputy Governor; Nicholas Easton, John Coggeshall, William Hutchinson and John Porter, Assistants. The next year, 1641, R. Harding was chosen in Mr. Easton's place, and William Baulston in place of Mr. Hutchinson. It was asserted at the trial of the suit, Easton vs. Sanford, that in 1640 Nicholas Easton was fined five shillings for a breach of order, and that the following year he was left out of office. The next year, 1642, he was again elected Assistant, and held the office till a Patent of Incorporation was obtained.

The land within the township was divided into plots-a plot to each proprietor. Nicholas Easton's portion is described as follows, in a paper signed by Joseph Terry, Town Clerk, December 5, 1662:

"Upon the 5th day of February, 1644, the old Freemen of the Town of Newport were called together for the disposition and ordering of the Town lands undisposed of, and by computation finding not above sixty acres, they jointly did agree that in regard the Town was indebted to Nicholas Easton, that he

should have that parcel unto him and his heirs, in part of satisfaction of the debt, at two shillings per acre, according to cus

tom.

"To Mr. Nicholas Easton we appoint his farm to begin on the East side of the Mill Pond, in the middle of the Valley, and so, in a straight line, to extend Eastward to the marked tree at Stony River, and by that river side to the falls, and from thence by the verge of the hill to the sea, to the edge of the rocks, and so, bounded by the sea south and west to the middle of the hill, between the issuing out of the Pond and the Cartway, and from thence about by the pond side to the aforesaid valley likewise on the southwest side of the Pond, bounded by the highway on the back side, to over against the house, and so, by marked trees, unto a small tree over against Mr. Brenton's line, and by that line through the swamp unto the verge of the Pond, a part of Mr. Brenton's marsh intervening, as also two acres of pasture and one cows hay, near Aqueduct Point; with his house lot and six acres of upland and six acres of fencing copse lying between Mr. Bracey's farm and Henry Bull's meadows-all which parcels of land is laid forth for his proportion, 369 acres, allowed by order, with twenty also by order, allowed for the mill, in proportion of acres, more or less to him appointed.

"Whereas, according to certain orders, made for the establishing and giving assurance of the lands unto such who shall be therein observant, be it known, therefore, Mr. Nicholas Easton, having exhibited his bill, under the Treasurer's hand, unto the session held the 10th day of March, 1640, wherein appears full satisfaction to be given for the number of 369 acres of land, more or less, lying within the precincts of such bounds as by the Committee by order appointed, to wit: to begin at the east side of the Mill Pond, in the middle of the valley, and so in a straight line to extend eastward to the marked tree at Stony River, and by that river-side to the falls, and from thence by the verge of the hill to the sea, at the bottom of the rocks, and so bounded by the sea, south and west, to the middle of the hill, between the issuing out of the Pond and the Cartway, and from thence along by the pondside to the aforesaid valley: likewise on the southwest side of the pond, bounded by the highway on the back side, to over against the house, and so by marked trees unto a small tree over against Mr. Brenton's line, and by that line through the swamp unto the head of the Pond, a parcel of Mr. Brenton's marsh intervening the Pond; as also two acres of pasture and four acres of fencing copse, lying between Mr. Bracey's farm and Henry Bull's meadows-all which parcels of land, set forth for his portion; these, therefore, doth evidence and testify that all these parcels of land aforementioned, amounting to the aforesaid number of 369 acres, and 20 allowed

by order from the town in payment for the mill, for his part: all which parsels of land amounting to the number of 389 acres, more or less, fully appropriated to the said Mr. Nicholas Easton and his heirs forever.

These are true copies, as attested

Jos. TERRY, Town Clerk. 1662 Decb 5.

With the above, abstracts of wills were read, showing how the property had subsequently been transmitted from generation to generation, till it had come into the hands of the plaintiff. The will of the first Nicholas was dated 1675. He made his son John residuary legatee.

John, in his will, dated 1699, made his grandson, Peter, residuary.

Peter, in his will, dated 1721, gave to Nicholas all the marsh, to high water mark. This is the first conveyance of the

marsh.

Nicholas, in his will, dated 1763, gave the farm to his sons, Nicholas and Jonathan; and in 1767, in a partition deed, Jonathan gave Nicholas the marsh and beach to high water mark.

The will of Nicholas (the last will prior to the litigation, which will was drawn by Henry Marchant, one of the opposing counsel) makes no mention of either marsh or beach. This will is dated 1770.

Sundry leases of the beach were produced-one toDavis, 1739; one to Pike, 1768; and one to Joseph Southwick, 1772-3. And the following depositions were offered by the plaintiff :

"Samuel Dyre, of Newport, in the County of Newport, Esq. aged fifty-six years, being duly sworn, on his oath saith that in the life time of his late uncle, Samuel Dyre, deceased, he was often times sent by his said uncle, with whom he lived, for sand: but was always ordered by him to ask liberty of Nicholas Easton, Esq., uncle to the present Nicholas Easton, who gave it upon request. The deponent also saith, that since the decease of his said uncle, Samuel Dyre, he hath often times carted sand from the beach, called Easton's Beach, to his own farm, but ever asked liberty. That, for about thirty five years past, he hath known and been familiarly acquainted with the farm called

Easton's Farm, in Newport, now in the tenure and occupation of the present Nicholas Easton, of Newport, together with the pond, beach and marsh thereto adjoining, while the same were severally in the tenure, occupation and improvement of Nicholas Easton, the uncle of the present Nicholas Easton, and the now Nicholas, and that, as well the beach and marsh as the upland, were included within the same enclosure and under the immediate improvement, as well of the said Nicholas the uncle, as the present Nicholas, and that the deponent's uncle, Samuel Dyre, deceased, was born in the year sixteen hundred and eightyeight, as this deponent hath seen registered in a family bible, and now stands engraved on his tombstone.

Signed SAMUEL DYRE."

"James Coggeshall, of Newport, in the County of Newport, yeoman, one of the people called Quakers, being duly engaged, on his solemn affirmation, saith that he is seventy-five years of age, in February next, and when he was about ten years of age, he was used to ride with his father to old governor John Easton's, and had often passed over the beach, now in dispute between the town of Newport and Nicholas Easton, at which time there was a fence at the west end of the beach, with a gate for travellers to pass through, and that his father usually set him down to open the gate, and both beach and marsh were at that time enclosed; and since that time, in the life of Nicholas Easton, grandfather to the present Nicholas Easton, he well remembers a gate and fence kept erected at the east end of the beach, by a division between the late Peter Easton and the said Nicholas; and that, as well the beach and marsh, as the uplands, were included within the farm enclosure and under the immediate improvement of Nicholas Easton, the grandfather, and Nicholas Easton, the uncle of the present Nicholas Easton.

"Questions by the Committee of the town of Newport. "Have you frequently known the inhabitants of the Town of Newport to fetch sand or seaweed from the Beach, in old Nicholas Easton's time?

leave.

"Ans. I have: but when I fetched sand I always asked

"Have you any knowledge of a wharf built on the side of the beach, into the pond, and for what purpose?

"Ans. I remember a little sort of a scaffold, built for the fishermen to go wash their fish; but by what liberty I do not know. I saw it there.

"Did you know of a scow being kept in the pond?
"Ans. Yes, I think the Bliss's had a scow there.
"Did you ever see them load the scow with seaweed?

66 Ans. I saw them load their carts, but not their scow. I heard tell of it.

"Did you know of a canal being cut from the beach into the pond, to let the salt water in?

"Ans. No: it was before my time.

66

"JAMES COGGESHALL.”

Joseph Arnold, of Newport, in the County of Newport, Esq., being duly sworn, on his oath saith that he was an inhabitant of Newport seventy years past, and at that time, and ever since that time, never remembers to have heard the Beach and Pond, which lay adjoining to Mr. Nicholas Easton's land, and in common with it, called by any other name than Easton's Beach, and Easton's Pond, until the dispute between Mr. Easton and some of the inhabitants of said Newport, and very well remember to have heard the people of Newport say, during that time, that they had been or were going to fish for perch in Easton's Pond; and in the winter season, that they had been or were going skating on Easton's Pond; and had often heard the inhabitants say they were going or had been to catch clams on Easton's Beach.

"Questions by the Committee:

"Ans.

"Have you lived any part of the time out of Newport? I lived in town here, was put to school here, and here continued to live, till I was grown up a young man, and then I went to Jamestown, and while I lived in Jamestown, I spent more than half my time in Newport, till I removed here with my family.

"When did you hear of any dispute between some of the inhabitants of Newport and Mr. Easton, about the Beach. "Ans When the lawsuit was commenced between Nicholas Easton and Giles Sanford, and never heard of any dispute till that time.

"Question by Easton.

"Do you remember in my grandfather's days, as well as my uncle, that the cows and horses that were put to pasture upon his land, went down to feed upon the beach and marsh that lay in common with the upland adjoining?

"Ans. They did: for, from the gate by the street at John Easton's corner, there was a driftway to the Beach open, and nothing to stop them.

"JOSIAH ARNOLD."

These depositions were all properly acknowledged before a justice of the peace.

It was further claimed by the plaintiff, that if the right to the beach had not been conveyed to the original Nicholas, it was still in the original proprietors, and the town must fail: that immemorial usage could not affect the freehold that if

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