
    John Capen versus Samuel K. Glover and Others.
    Ministerial lands lying in Milton, but belonging to Dorchester, are not liable to be assessed in the town taxes of Milton.
    
    This was an action of trespass, pending in the county of Norfolk, against the defendants, assessors of the town of Milton, in that, county, for a supposed illegal assessment of certain lands lying in Milton. The parties (October term, 1805) agreed upon the following statement of facts, on which judgment was to be rendered : —
    “ That previous to the year 1659, the towns now called Dor Chester and Milton were one township, under the name of Dor Chester, and that on the sixteenth day of the eleventh month, in the year 1659, the inhabitants of the said town oí*Dor- [* 308 ] Chester, or proprietors of the common lands of Dorchester, (Dorchester and Milton being then one town,) at a legal meet ing of said proprietors, did give, sequester, and set off forever, four hundred acres of land, to the use and maintenance of the ministry of the said town of Dorchester, to wit: two hundred acres thereof for the use of the inhabitants thereof, on the north-west side of the. River Neponset, and the other two hundred for the inhabitants of Dorchester that live on the south-west side of said River Neponset. All the said lands so set off for the use aforesaid, lies in that part of Dorchester which, is now called Milton. In the year 1662, the inhabitants of Dorchester, at a legal town meeting, voted that that part of the town which was then called Unquity, or Uncataquisset, now Milton, should be a township by themselves, if the General Court should consent thereunto, under certain conditions and restrictions ; among which was the following: Provided also that all that land, or any of their estates inhabiting upon the land, reserved for ‘he maintenance of the ministry in Dorchester, both it or they shall not be charged to any common charges by our neighbors at Unquity.’ Afterwards, in the same year, the inhabitants of Unquity, by their agents, petitioned the General Court that they might be a township, according to the terms and tenor of the grant from Dorchester, to which the General Court assented. From the time of the separation of the town of Milton from that of Dorchester, in 1662, the said ministerial Jand, belonging to the inhabitants of Dorchester, for the use aforesaid, was never taxed by the inhabitants of the town of Milton, for the support of their town charges, until the year 1802, and which tax is the cause of this suit. The said town of Dorchester have always, after receiving the rents and profits of the said land, appropriated the same towards the payment of the salary they vote to give their minister.”
    It was thereupon agreed, by the parties, that if the said town of Milton could not, in the year 1802, by law, assess the occupant of the said land of the said town of Dorchester, * lying in the said town of Milton, holding the same as [*307 ] tenant for years under the said town of Dorchester, to the town taxes of the same town of Milton, then judgment should be rendered for the plaintiff to recover the sum of twenty-five dollars and forty-one cents’ damage, with costs ; otherwise, judgment should be rendered for the defendants, for costs.
    
      The Chief Justice having been of counsel for the defendants before his appointment to the bench, the cause had been continued in Norfolk for want of a competent number of judges to hear and determine it At the last October term at Dedham, it was continued 
      nisi for argument, and at this term it was briefly spoken to by Dexter for the plaintiff and Wheaton for the defendants; after which the opinion of the Court was thus delivered by
   Sedgwick, J.

This is an action of trespass against the defendants, assessors of the town of Milton, for a tax for town charges imposed on the plaintiff, as the occupant of a tract of land in that town.

When Milton was erected into a town, (having before been part of Dorchester,) which was one hundred and forty years before this tax was imposed, it was manifestly the understanding of all the parties, that the land, for which this tax was assessed, although it lay within the limits of Milton, should be exempted from taxes for town charges, it being reserved to Dorchester for ministerial purposes. This was not an unreasonable agreement. The act for the incorporation of Milton, recognizes the agreement, under the expression of the terms and tenor of their grants from Dorchester.” We think this operates the exemption claimed by the plaintiff; and we think, too, that the length of time, during which the town of Milton has forborne to tax any one for this land, is sufficient, of itself, to hjstify the plaintiff’s claim.

Judgment for the plaintiff.  