acts had been passed regulating the fishing in the pond, the same applied to almost every pond in the state that in sundry papers the land in dispute was called Easton's Beach, that the proprietors' rights were distinct from the rights of the freemen at large: that old Nicholas Easton, and afterwards his son, were governors, and therefore could not be supposed to have arrogated rights they never had, and the question was asked "would Jonathan Easton have been continued governor, if he had willed away the town rights?" Jonathan Easton, it was asserted, must have known his father's rights, and as he conveyed the beach, it must be taken for granted he had a right.

These were the leading arguments of the plaintiff's counsel, who gave in the course of debate, a history of old religious controversies (no minutes, unfortunately, of this part of the debate have been preserved) and they explained the want of consistency on the part of the last Nicholas, in sometimes claiming and at other times relinquishing the right to the pond, marsh and beach, by asserting that at such times he had been governed by party considerations.

The defendants took up the act of incorporation, the distribution of lands to the original proprietors, and the laying out of highways. It was declared that the beach had never been conveyed or disposed of, but had ever remained a commonage, the same as the freemen held Fort Island, Coasters Harbor (written Coarse Harbor) and the Powder Housethat the rights of corporations cannot be lost by possession or continued claims of others, and that the argument that Jonathan Easton would not have been continued as governor if he had willed away the town rights, was absurd; for his will could not be known till he was dead, and, as the counsel pertinently remarked, "it would have been curious indeed to have chosen him governor after his death, or to have turned him out." It was further shown that Nicholas Easton petitioned for the right to put up a gate on land now claimed to be the property of the plaintiff, as follows:

"At a quarterly meeting of the Freemen of the Town of Newport, Jany. 29, 1706; the governor chosen moderator

"Whereas, there was a petition presented to this quarterly meeting by Capt. N. Easton that he might have liberty granted him and his heirs forever, to hang and maintain a gate across the way leading to Settuest Beach; the meeting, debating the matter, think it not convenient to grant it to him and his heirs forever; but, upon further consideration, it is voted and ordered that the petition be granted for seven years from the date hereof.

"P. BARKER, Clerk."

And it was further shown that in 1716, Stephen, Peter and Nicholas Easton asked permission to open the Creek, they agreeing, should the petition be granted, to build and maintain a bridge across the Creek at their own expense, as herein set forth.

"To the Honorable Moderator and the rest of the Freemen of the Town of New Port, at a quarterly meeting held for said town the 25th April, 1716, the petition of us the subscribers humbly showeth to this meeting

"That whereas, there is a place in this Town, commonly called Easton's Pond, and a river passing out of said Pond, through said Beach, into the main sea, in which river several sorts of small fish come in and out of the sea into said Pond, and repass again, and so, being sometimes beneficial for the town by catching of them; but sometimes the river is shallow and sometimes shut up for a long time, so that it keeps the fish from passing in and out of the Pond, and by that means is a damage to the Inhabitants. Now your petitioners are desirous that you will encourage fishing in the Pond by granting liberty to us that we may cut a passage or let out a river out of said Pond through said Beach into the main sea at the hither end of said Beach, which we believe will draw in the fish into said Pond. And if this meeting see cause to grant us our request to cut or dig a river through said Beach, we, your petitioners, will build a bridge over said river, at our cost, oblige ourselves to maintain it and keep it in good repair, so long as we may keep said river open when made, and if filled up, to fill up the channel that they shall dig, and for which favor and liberty to your petitioners, if granted, as in duty bound will ever pray.

"Signed by us

"STEPHEN EASTON, "NICHOLAS EASTON, "PETER EASTON.

"At a Quarterly Meeting, April 25, 1716, the foregoing petition is allowed upon the above conditions, to be fulfilled, and was voted in Quarterly Meeting.

"W. CODDINGTON, T. C."

It was also shown that fishing in the pond was regulated by an act in 1713: that by a vote horses were not allowed to stray on the commons and that the citizens held the freehold to the beach as tenants in common: that in the conveyance to the original Nicholas no mention is made of the beach, either in the original grant or in the disposition of the remaining sixty acres, for the proprietors did not consider the beach as land to be conveyed that the conveyance of the marsh by Peter, in his will, was no evidence of ownership, and that in no papers but those of the claimant is the beach called Easton's Beach.

Witnesses were called-Bliss P. Peckham and William Weeden-as to the boundaries and the uninterrupted use of the beach by all the inhabitants, and the following depositions were

read:

"I Caleb Gardner, of Providence in the county of Providence, Esq., being engaged according to law do testify and say that about forty years ago my father filled and completed the wharf in Newport, now owned by Mr. William Langley, with gravel and sand brought from Easton's Beach, so called, and ever afterwards repaired said wharf with gravel from said Beach; and further say, that I have frequently brought sand from said Beach, have known Mr. Jacob Barney, Senior, to bring kelp from said Beach, almost every year while I resided at said Newport. I also know that my late brother-in-law, Benjamin Sherburne, deceased, brought large quantities of gravel and sand from the said Beach, and that the inhabitants of Newport in general, while I resided there, brought the principal part of the gravel and sand they made use of from the Beach aforesaid, during all of which time I never knew or heard of any of the Easton family laying any claim to the fee of the said Beach, excepting the present Nicholas Easton, since his uncle's death or that any person was interrupted in bringing any thing off the said Beach, but always understood and supposed that the said Beach belonged to the town of Newport.

"CALEB GARDNER."

"The deposition of Joseph Peckham, of Middletown, in the county of Newport, and .state of Rhode Island, of lawful age, in his solemn engagement testifieth and saith that he the depo

nent used to cart seaweed from the Town Beach in Newport without any molestation, for a number of years, and that he always understood that the said Beach was the property of the Town of Newport. Moreover, the deponent saith that when he used to cart from there, that old Mr. Nicholas Easton was so far from being disturbed at it, that he, the deponent used to leave his cart and utensils at the old gentleman's, and always found them in good order. And many others, and indeed everybody that chose to cart sand, seaweed and any thing else from said beach, without any molestation. The deponent further saith that he and others did cart since the death of old Esqr. Easton without any hindrance from the present Nicholas Easton further the deponent saith not.

"JOSEPH PECKHAM.”

"Questions by Nicholas Easton's Attorney.

"Did you ever ask my Brother Nicholas' leave to cart seaweed from said Beach?

"Ans. Yes, but I never carted afterwards.

"Quest. Did my brother Nicholas grant you liberty?

66 'Ans.

66

Yes.

Quest. Did you never ask leave of old Esqr. Easton ? "Ans. No, for I never heard that he laid any claim to it? "Quest. Did you ever know any inhabitant of the Town of Newport to mow or improve any part of the Salt Marsh, now in the possession of the present Nicholas Easton ?

"Ans. No.

"Quest. Did you ever hear of any contention between Thomas Hassard, tenant to the late Nicholas Easton, Esq. and some of the inhabitants of the town of Newport, about carting sand and gravel and seaweed off from the Beach aforesaid ? "Ans. No.

"Questions by the Committee.

"Can you remember how much that salt marsh, heretofore mentioned, has increased for thirty or forty years past? "Ans. No.

"Quest. Don't you remember a wharf on the Pond side? "Ans. Yes, very well.

"Quest. What use was made of that wharf?

"Ans. To scow seaweed across the Pond.

"Quest. By whom was the seaweed scowed.

66 'Ans. By any body that found it convenient.

"Quest. Do you mean the Inhabitants of Newport ?
"Ans. Yes, a number of them used it.

"Questions asked by the present Nicholas Easton's Attorney. "Do you remember how long it is since that wharf was erected?

"Ans. I do not justly remember the time.

"Quest. Do you remember whether it was by the consent of the late Nicholas Easton, Esq., or by the present Nicholas

Easton ?

"Ans. I don't suppose it was by the consent of any body, for I always understood the said beach to belong to the town? "JOSEPH PECKHAM."

Other depositions, of a like tenor were read, and I found with these papers the following letter, which is not out of place here:

"SIR. It can do no injury to the cause depend'g between Easton aud the Corporation, to notice to the Gentlemen referees that every house built in the Town, from the first settlement to ye present time, was with sand from the Beach, and many of them was supplied with shells for the lime; besides, many of our streets and yards are paved with gravel from thence for more than a century back. Fishermen have taken and cured, I may venture to affirm, near 1000 bbls. upon an average, for 50 years past, together with the immense quantities of sea-weed and sand for manure, all taken and brought off without (in a single instance) even asking any of the Easton family's permission. All the advantage they ever derived from this business was in common with other teamsters. Those were no doubt employed that worked ye cheapest. These thoughts have occurred to me this even'g; perhaps all of them may not have been taken up by you.

I am most respectfully
Yr H'ble Servt,

Sunday Even'g 23d Apl.

H. MARCHANT ESQ.1 1

W. VERNON.”

The case was finally left with the Referees, and they reported as follows:

"To the Honorable Court of Common Pleas next to be holden at Providence, within and for the County of Providence.

"The Subscribers, to whom was submitted and referred by a rule of your honors, at your session holden at Providence, within and for the County of Providence, on the 3d Monday of (1)In this letter we find what is probably the gist of the whole thing. The sea yielded an unlimited supply of fish, for which there was always a great demand, particularly for the W. I. trade. Easton daily saw the fishermen landing and curing large quantities of fish on the Beach, and he first coveted and then grasped at the revenue the Beach yielded to the citizens generally. The citizens failed to recognize his claim, hence the suit to establish what he deemed his right.