USA > Massachusetts > Essex County > Ipswich > Town annual report of Ipswich 1856-1880 > Part 26
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The committee are unable to find any thing definite in relation to Jeffrey's neck, so far as relates to the property of the town therein.
Up to 1670, the seven men, the commoners, the selectmen, the town, and the freemen, all at different times exercised control over it, and passed votes and orders as to its care and management. 1639-Fence and gate over Neck creek. 1642-Labor to stop cattle. 1650-Fell- ing of timber forbidden. 1653-Forty men ordered out to hoe up weeds. 1658-Liberty granted to Robert Roberts to build a house near the spring, the property still to remain in the town. 1662-Fence viewers chosen by commoners and confirmed by the selectmen. 1668 - Certain cattle ordered from cow commons to Jeffrey's neck. 1709- 10, March 24-Col. Samuel Appleton, Capt. William Goodhue and Mr. Jonathan Wade were appointed a committee of the commoners " to divide those parts of the lands formerly voted by the commoners, to wit : Jeffrey's neck and thatch banks and common marsh, and every ancient commoner and new commoner shall have respective lots on the neck and also on the banks and marsh, according to vote -25, 11, 1708-9." But no report from that committee appears on the records. The clam-houses have, it is believed, stood at Eagle hills, so called, for more than seventy years, no rent ever having been paid. It fur- ther appears, that in 1767 a committee of the commoners was chosen to look up undrawn rights on the neck, and they reported five old and sixteen new rights undrawn. Subsequently some rights were granted by the commoners. By the report of the above committee, it would appear that the report of a committee of the town in 1816, that eleven old and twenty-one new rights were undrawn, could not have been cor-
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rect, unless more lots were laid out after 1767. And here the subject must rest, unless the town can have recourse to the Neck or other records.
In relation to Plum island, the committee find, as early as 1650 and 1651, that the seven men order the cutting and disposal of grass. 1664 - The selectmen order the cutting of grass on Plumb and Grape islands. 1664- The town vote that Plum island, Hog island, and Castle neck be divided among such as have rights to commons ac- cording to law. 1665, April 10 - The selectmen make report of their doings in full, as annexed. [See page 11.] It appears by their report that the beaches and gall'd hills, or sand knolls, were not allotted or granted. But in the course of time deeds were given, extending from the bay across to Plum island river, viz : a deed from Stephen Emer- son to Ralph Cross, January 3, 1739-40, book 96, leaf 174. Cross held under this deed for more than thirty years, when he found himself in difficulty with the commoners in relation to the clam flats, in conse- quence of which the commoners, January 5, 1767, appointed Major John Baker a committee to treat with Mr. Cross, with full power to sell and convey, by deed of quit-claim, for a valuable consideration, the flats in dispute, which resulted in a conveyance, by such a deed, of all the flats conveyed by his former deed from said Emerson, for £4 16s., April 4, 1769, book 126, leaf 274. This appears to have been the only difficulty which the commoners ever had as regards any claim to their flats ; but it is to be presumed that an attempt was made to hold the flats as early as 1669, for, on the petition of inhabitants of Ipswich, the general court order that the common law shall be valid in relation to lines upon rivers and the sea, unless other bounds are given in the deed. This order was but four years after the laying out of Plum island, Hog island, and Castle neck, and probably grew out of some of the claims of lot-holders; it is further probable, that Ralph Cross made his purchase one hundred years after, under this order of the general court. As regards the Lower or Stage island farm, the com- mittee find by a deed from Jabez Treadwell and wife to Ebenezer Sut- ton, April 1, 1793, book 165, leaf 50, no mention is made of Plum island river, but several deeds are referred to as describing his bounds, not in possession of the committee. In the deed from E. Sutton to Joseph Gerrish, February 28, 1816, book 210, leaf 225, Plum island river is named. In the deed from Joseph Gerrish to Daniel Lord and Daniel Lummus, March 20, 1828, book 248, leaf 149, Sutton's deed is referred to in describing the estate. The deed from D. Lord and D. Lummus to Francis J. Oliver, book 252, leaf 26, is not in possession of the com- mittee. The deed from F. J. Oliver to Daniel Dole, September 22, 1834, book 278, leaf 62, bounds Mr. Dole on Ipswich bay, Ipswich river, and Plum island sound, including clam flats and sand banks. Thus the town finds itself in the same situation as the commoners were, in 1769, and the committee would recommend the same course which they pursued, viz : Appoint a committee with full power to treat with Mr. Dole for the sale, for a valuable consideration, of all the sand or sand knolls lying between the Rowley line and Bar island head, and all the beaches, sands and clam flats in Ipswich river and Plum island sound, adjoining Stage and Bar islands, that appear to be in- cluded in his deed from F. J. Oliver, as above. Sandy point is under- stood to have been annually leased by Mr. Dole for several years past. A gentleman engaged in transporting sand to Boston during the last
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summer, claimed the exclusive right of taking sand therefrom, under a lease from him, and some of our own citizens, who wanted sand, had to pay this gentleman two cents a ton for the same. The committee are informed that for the year ending March, 1843, Mr. Dole leased said Sandy point for two hundred dollars.
1757 - The commoners voted that Capt. Jonathan Fellows, of Cape Ann, have the liberty of all the sand lying in the town of Ipswich, for the space of one year, for the sum of two pounds thirteen shillings and four pence in money. And the next year after the commoners granted all their property to the town, it appears by the town records, April 20, 1789, that Timothy Bragg, deacon Nathaniel Kimball, John Manning, esquire, capt. Daniel Giddings, and Asa Smith were appointed a com- mittee to take care of and let out clam flats and sand banks. It thus appears that the commoners, and subsequently the town, had exclusive control of all the clam flats and sand banks in Ipswich and Plum island rivers.
Your committee would respectfully call the attention of the town to the report of a committee made March 2, 1840, in relation to the clam flats lying on Essex river. [See page 10.] A plan was taken at that time, estimating more than one hundred acres belonging to the town, a large part of which was considered good clam ground. It is stated by men conversant with the business, that the clams are fast diminish- ing in Ipswich and Plum island rivers, while the grounds on Essex river are trespassed upon by men from other towns, to the injury of Ipswich men engaged in the business. By underbidding, as your com- mittee are informed, men from another town supplied nearly the whole market with fresh bait during the winter of 1841-'42, reducing the Ips- wich supply to less than seventy barrels.
The committee believe the time has arrived when the town should take a decided stand in relation to their clam grounds, and prosecute trespassers to the full extent of the law recently enacted for their pro- tection. They would here refer the town to their former report, made and accepted by the town, March 15, 1841. [See page 8.] Also to the above law. [See page 11.] The law suit pending when that re- port was made has since been settled by a nonsuit of the plaintiff's, which was ordered at the June term of the Court of Common Pleas, 1841. The costs, amounting to the sum of will, when recovered, be paid into the town treasury.
In conclusion, the committee would remark, that the instructions of the town required them, in the discharge of the duties assigned them, to search the records of more than two hundred years, and examine various ancient grants, orders, decrees, and deeds, and often to confer with many of the aged citizens and others, to obtain important facts. This consideration, your committee trust, will furnish a sufficient apol- ogy for any and all delays, and now ask to be discharged.
All which is respectfully submitted.
AARON WALLIS, JOSIAH CALDWELL, CHARLES KIMBALL,
Committee.
IPSWICH, January 23, 1843.
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TO THE INHABITANTS OF THE TOWN OF IPSWICH, IN LEGAL TOWN MEETING ASSEMBLED :
The subscribers, a Committee appointed at a Town Meeting held on the 28th of April last, to take such measures in reference to a pending suit against several citizens of the town, and the protection of the Clam Flats, as they might think fit, submit the following
REPORT:
The Clam Flats appear to have been the property of the commoners until they were granted by them to the town on the ninth of June, 1788. The commoners were the proprietors of the common and undivided lands in Ipswich, being all the lands to which individuals had no title.
In 1638, June 28 - Masconnomet, Sagamore of Agawam, conveyed by deed [see p. 2,] to John Winthrop, all his right, property and claim unto all the land lying and being in the Bay of Agawam, alias Ipswich, including all his right and interest unto all the havens, rivers, creeks, islands, huntings and fishings. This purchase was made by Winthrop for himself and twelve others, who were the first settlers of this town. They were the original commoners, holding all the lands undivided which were thus purchased, and they from time to time made grants of land to individuals. Persons afterward becoming inhabitants of the town by the consent of its freemen, and receiving a grant of land, were admitted to be commoners, and had equal rights with others to all the common and ungranted lands. Thus this body of proprietors of these lands was perpetuated, having a just and undisputed right to all the lands in question, and exercising exclusive control over them. They were known in law as a body that could sue and be sued, and had the same power to maintain all their rights as the owners of property, which an individual had. The deed referred to conveyed the havens, rivers, creeks, and fishing ground, including of course the clam flats, which it appears the commoners owned as they did all other lands not specially granted to individuals. They existed as a distinct body until October 6, 1788, when their last meeting was held, and they were dis- solved, having at this meeting confirmed their grant previously made to the town of all their property, real and personal. This grant includ- ing the, clam flats, which are particularly mentioned, was accepted by the town on the twenty-third of June, 1788. The grant is absolute, and gives to the town all the powers, privileges and immunities with which the commoners were invested. It appears that previously to this grant no person was allowed to dig clams without a permit from the commoners, and for such permit a fixed price was paid, which in 1785 was two shillings a barrel, if dug to send to market. Permits were sold to persons engaged in the fishing business at a reduced price, being one shilling a barrel, as an encouragement to that busi- ness. Persons digging without a permit were deemed trespassers, and were prosecuted accordingly by a committee of the commoners ap- pointed for that purpose, who had the superintendence of the flats. Several persons are now living at an advanced age who paid for the privilege, some of whom were prosecuted for digging without a permit and settled on the best terms they could, no one ever doubting the
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exclusive right of the commoners to the clam flats. Persons not in- habitants of the town were not permitted to dig at all. Permits were sold to inhabitants only.
Of late years the flats have been more or less subject to trespassers from other towns ; perhaps, indeed, it has always been so to a greater or less extent. Many barrels of clams are annually dug by persons hav- ing no right to take them. They come to our flats from various places, and our bank, which has never yet failed, most liberally answers their drafts, though they do not even consult its directors. Regardless of the objections of any of its stockholders who may happen to be pre- sent, they take large discounts and thereby diminish its capital ; their own banks have failed, or emit only a depreciated and alloyed curren- cy, while ours affords one pure and unalloyed, whose value is known and appreciated. While theirs would not pass at fifty per cent. dis- count in the market, ours has been sought and would go quick at par. Intelligent and experienced fishermen give Ipswich bait the preference. They know its excellence. It has been sold in Boston at $5 a barrel, when Eastern bait could be had at $2,50. Those who come from other places to dig our clams have sold them at a reduced price, which operates to the disadvantage of citizens of this town engaged in the same business.
As some sixty or seventy of our fellow citizens are annually em- ployed during a part of the year in digging clams, and from one thous- and to fifteen hundred barrels of bait are annually sent to market from this town, and the clams are diminishing, it seemed to your committee highly important that the flats should be protected by law, that further trespasses might be effectually prevented. The existing laws, though intended to prevent depredations, might be and had been evaded by persons claiming the right to take clams for their own immediate use as fishermen, when in fact no such use was intended. With these views your committee deemed it their duty to present a petition to the legislature for a law which would answer the purpose. They stated that in their opinion the existing laws were evaded,-that it was of much importance to the inhabitants of the town that the flats should be protected from unauthorized depredations, and that the clams are diminishing; and they asked for a law which would effectually pre- vent the destruction of the clams, and give the sole control of the flats to the authorities of the town. The standing committee of the legis- lature on fisheries, to whom the petition was referred, after deliberate consideration, reported a bill as favorable to the town as could be ob- tained from them, which bill has become a law ; [see page 11,] and your committee are of opinion it will afford the protection required.
With regard to the suit now pending, no proceedings have been had since the appointment of the committee, except to enter an appeal at the Court of Common Pleas. The case will come in course for trial, if not settled by the parties, at an early day of the March term of the Court now sitting at Salem.
CHARLES KIMBALL, AARON WALLIS, Committee. JOSIAH CALDWELL,
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IPSWICH, March 15, 1841.
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TO THE INHABITANTS OF THE TOWN OF IPSWICH, IN LEGAL TOWN MEETING ASSEMBLED, MARCH 2d, 1840.
The Committee chosen at a legal Town Meeting held in the Court House, November 2d, 1839, to ascertain whether the Town is entitled to a cer- tain tract of clam flats, lying between flats of Humphrey Lakeman and Chebacco and Hog Island rivers, have attended to that business, and submit the following
REPORT:
Your committee have viewed said premises, and after measuring off one hundred rods from common high water mark, have surveyed said flats, and find there are more than one hundred acres of flats remaining between said one hundred rods and said rivers, and we should judge that nearly one half of said flats is now good clam ground; and your committee believe that all the flats that are more than one hundred rods from high water mark, do come under the jurisdiction of the town, for by searching the judicial reports we find in the sixth volume of the Massachusetts Reports, in the cause of Storer vs. Freeman, Parsons C. J., May term, 1810, he says, (page 438) when our ancestors emigrated to this country, their first settlements were on harbors, or arms of the sea, and commerce was among the earliest objects of their attention. For the purposes of commerce wharves erected below high water mark were necessary, but the colony was not able to build them at the public expense ; to induce persons to erect them, the common law of England was altered, by an ordinance providing that the pro- prietor of lands adjoining on the sea or salt water should hold to low water mark, where the tide does not ebb more than one hundred rods ; but not more where the tide ebbs to a greater distance. He further says, this ordinance was annulled with the charter, by the authority of which it was made ; but from that time to the present an usage has prevailed, which now has force as our common law, that the owner of lands bounded on the sea or salt water shall hold to low water mark, so that he does not hold more than one hundred rods below high water mark.
And in the thirteenth volume of Pickering's Reports, Barker vs. Bates, Shaw C. J., October term, 1832, he says, the rule of the Mas- sachusetts Colony ordinance of 1641, declaring that in all places upon salt water, where the sea ebbs and flows, the proprietors of lands ad- joining shall own the shore to low water mark, or to the distance of one hundred, if the sea ebbs further than one hundred rods ; though never extended to the colony of Plymouth as positive law, is never- theless a settled rule of property in every part of the State of Massa- chusetts. He further says, and we consider this as applying to the shores of the open sea, as well as bays, coves, and rivers ; the lan- guage of the colony ordinance being " in all creeks, coves, and other places, about and upon salt water, where the sea ebbs and flows."
And your committee believe and say, that all the flats more than one hundred rods from high water mark are under the jurisdiction of the town, for the Revised Statutes provide a penalty for any person that shall take such shell fish, more than for his family use, and that not to exceed one bushel, without a permit from the selectmen, in
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most of the towns in this Commonwealth, where such shell fish grow, and by a subsequent law the law is extended to the town of Ipswich. WILLIAM CONANT, AARON WALLIS, Committee.
ROBERT KIMBALL,
IPSWICH, March 2, 1840.
AN ACT FOR THE PROTECTION OF THE SHELL FISHERY IN IPSWICH.
Be it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same, as follows :
SECT. 1. If any person, not an inhabitant of the town of Ipswich, shall dig or take any clams from the flats owned by said town without permission first obtained in writing from the selectmen of said town, the person so offending shall forfeit, for every bushel of clams, in- cluding their shells, so dug or taken, the sum of one dollar, to be recovered on complaint before any justice of the peace for the county of Essex, to the use of said town.
SECT. 2. Any vessel, boat, or craft, being in the possession or use of any person violating the first section of this act at the time and place of such violation, may be seized, detained, and proceeded against as is provided in the fourteenth section of the fifty-fifth chapter of the Revised Statutes, [as annexed]. [ Approved by the Governor, March 10, 1841.]
SECT. 14. If any vessel, boat, or craft, shall be found within the limits of any town, and not owned therein, with any oysters on board, taken in such town without such permit, or within the limits of any of the towns, mentioned in the preceding section, and not owned therein, with other shell fish on board, taken in such town without such permit, any inhabitant of any town, wherein such vessel, boat, or craft shall so be found trespassing, may seize and detain the same, not exceeding forty-eight hours, in order that the same, if need be, may, in that time, be attached or arrested by due process of law, to satisfy the said fines and forfeitures, with costs; provided, however, that if the owner or master of any such vessel, boat or craft, shall, before the prosecution is instituted for the same, pay such forfeiture to the treasurer of the town, in which the same shall be incurred, such vessel, boat or craft, with the effects therein, shall be discharged.
APRIL 10, 1665. The Selectmen according to the towne order for the division of Plum Island, Castle Neck and Hog Island, taking a survey of the Inhabitants which according to Law and the s'd order have right to any shares of the Comon Lands and considering also the estates of the Inhabitants as valued in the last Country rate according to the s'd order, Doe find two hundred and three reckoned and allowed inhabitants that may have right to the Comons whose names or the names of their tenants at present inhabting their lands or houses are registered in a paper, whereof according to the order
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of the towne eight and twenty are to have a double share and seventie to have a share and a half, and one hundred and five to have a single share, so that the whole number of single shares are two hundred and sixty five.
And having caused the s'd Plum Island, and Castle Neck and Hog Island to be surveyed and measured, they have found in the whole about eight hundred acres of Marsh and upland besides beaches and galld hills, so that the single share will be three acres, the share and half four acres and a half, the double share six acres.
Which they have ordered to be layd out in this manner viz. one double share, next two devisions of a share and half, and then three single shares, and so to begin again, one double share, two devisions of a share and half, and three single shares, and so on, till all the" double shares be run out, and then there will remaine fourteen devisions of a share and half, and twenty one single shares, which shall be layd out in this manner namely, one devision of a share and half, and one single share, till all the share and half devisions be layd out, and then the seven remaining single shares to be layd out one after the other.
Which divisions being layd out as above s'd, It is ordered they shall be shared by lott in this manner, there shall be eight and twenty lotts for the deviding of the double shares and seventy lots to be put by themselves for the dividing the share and half divisions, and one hundred and five lotts put by themselves for the dividing the single shares.
And it is agreed that the beginning of these divisions shall be at the upper end of Plum Island next Rowley, and so downwards to the Barr, and if the said shares cannot be layd conveniently all the breadth of the Island, then the beginning shall be next the Beach and so from the upper end next Rowley downe to the Barr, and then begin againe at the upper end and so downward, and so again if the shares shall be layd in their ranges. The next shall be layd out shall be at Castle Neck beginning at the hill and so downward to Wigwam hill and the long Marsh, and if it be convenient to lay the shares in two ranges, the first shall be next the Pines and the second to begin the next Hill, and so downward by the River. The last shall be at Hog Island, beginning at the westerly end, and so to the east side thereof, and if it be most convenient to be layd in two ranges, the first shall be the southerly side, and then to begin again at the westerly end, and to divide the Northerly side of the said Island.
And it is further agreed that Cornet Whipple, Robert Lord, John Leighton, and Thomas Lovel, shall take the first opportunity to lay out the said in manner aforesaid, which having done and made knowne to the Selectmen, the Inhabitants shall forthwith be summoned to meete to take up their shares by lott as above s'd, and then those that are above appointed to lay out the divisions shall goe upon a day appointed, and then to every inhabitant his share or division, and shall deliver unto him or them the proportion thereof, he or they paying for the laying out so much as shall be appointed by the Selectmen, and no inhabitant shall claim right or propriety in or to any share or division of the land aforesaid, before he have payd for the thereof dividing, but the right of such share shall be and remaine in the towne to be disposed of as they shall see cause.
A truc Copy of record. Attest, EBEN'R BURNHAM, Town Clerk.
STATEMENT
OF THE SUPERINTENDENT
OF THE
IPSWICH POOR FARM.
IPSWICH POOR FARM contains about 330 acres of land. It is estimated that there are about 70 acres of English mowing and tillage, 130 acres of pasture, and about 36 acres of wood- land. The remainder is mostly marsh. Among the town's farms in Massachusetts, it ranks the third in size; and the natu- ral soil of it is thought to be equal to that of any other farm in the state. Although for many years past but little has been done to enrich the soil, or in any way to improve the condition of the farm, still it continues to produce good crops. But this is no reason why something should not be done to bring it into a much higher state of fertility.
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