
    New York, New Haven & Hartford Railroad Company vs. Patrick H. Horgan.
    NEWPORT
    OCTOBER 27, 1904.
    Present: Stiness, C. J., Tillinghast and Douglas, JJ.
    (1) Evidence. Public Records.
    
    A resolution of the city council of Newport, passed in 1855, referred to a committee of the council the matter of the copying the records of the town of Newport prior to the Revolutionary War. There was no official record of the action of the committee, but it appeared in evidence that some at least of the records were copied and deposited in the office of the city clerk, and. have been since used instead of the original. The remains of the original records were deposited with the State record commissioner.
    A copy of a vote passed by a town meeting in Newport, October 29, 1739,. was sought to be proved by offering in evidence a copy, duly certified by the city clerk, of an extract from a book entitled “ Copied Land Evidence,, vol. I.” There was evidence that the book was copied from the original records in 1857 under the supervision of the town clerk, since deceased. The-remains of the original records contained no record of the town meeting in question:—
    
      Held, that, as the record had been used for nearly fifty years as the only available record of the proceedings to which it related, every presumption should be made in favor of its correctness, and the certified copy was properly admitted as being taken from a recognized public record.
    Trespass and Ejectment. Heard on petition of plaintiff for new trial.
   Douglas, J.

At the trial of this case in the Common Pleas' Division a verdict was directed for the plaintiff for the land described in the declaration.

It was contended by the defendant that this land was not-embraced in the grant by the State to the Newport and Fall River Railroad Company, which was the predecessor in title of the plaintiff, because it had previously been granted to the Long Wharf Association by vote of the town of Newport. The authority of the town to pass this vote was questioned at-the former trial, and the objections to it were considered in our opinion reported. 25 R. I. 408.

The objection npw raised is to the admissibility of the evidence by which the vote of the town is sought to be proved.

This evidence consists of a copy, duly certified by the city clerk, of an extract from a book entitled “Copied Land Evidence, Volume I,” the extract purporting to be a vote of the freemen of the town of Newport, passed at a meeting held the first Wednesday in October, October 29th, 1739.

The plaintiff excepts to the admission of this evidence, on the ground that the book from which the copy was made is itself a copy not sufficiently authenticated as a public record.

It is an historical fact that the British forces occupied the town of Newport during a part of the Revolutionary War, and that when they evacuated Newport in 1779 they carried away with them the records of the towns of Newport and Middle-town. The vessel they were in was sunk in Long Island Sound, near Hell Gate. The General Assembly passed a resolution at the December session, 1779, requesting Governor Greene to write to General Washington to use his influence with General Clinton, in command of the British forces, to return these records, v. 8, Col. Records, 641, 642, and they were subsequently returned, but in a dilapidated condition.

A resolution of the city council of Newport, passed November 20, 1855, is as follows: “Whereas, The Records of the Town of Newport previous to the Revolutionary War are now in the City Clerk’s office in a dilapidated condition, and are daily wasting away and will finally all disappear, by handling, and no record will be left of the early proceedings of Newport;

“Therefore, Resolved, That the subject matter thereof be referred to the Committee on City Property for their consideration, whether it would not be advisable to have them copied as far as it can be done, and what would be the expense thereof.”

There is no official record of the action of the committee, but it appears from the evidence that some, at least, of these records were copied into books and deposited in the city clerk’s office and now remain -therej and are used instead of the original records for public reference. The remains of the original records of the colonial and Revolutionary period have been placed in the hands of the State Record Commissioner, who is engaged in the work of preserving and restoring them. He was called as a witness in this case, and testified that they contain no record of the town meeting of October 29, 1739.

William P. Sheffield, Jr., for plaintiff.

Frank F. Nolan and Amasa M. Eaton, for defendant.

There was further evidence tending to show that the book now in the city clerk’s office was copied from the original records in 1857, under the supervision of the town clerk, who is now dead. It has been used as the only available record of the proceedings to which it relates for nearly fifty years, and we think every presumption should be made in favor of its correctness.

In these circumstances, we are of the opinion that the presiding justice properly admitted the certified copy of the vote as being taken from a recognized public record.

In the trial of the former petition for a new trial in this court, our attention was not called to the fact that the lot which defendant occupies extends northerly of a line forty-five feet north of the old long wharf, by which line the grant from the town of Newport was bounded. As to that portion of the land, the former opinion does not apply, and the plaintiff is apparently entitled to possession of it. The declaration, however, does not clearly include any land north of the line laid down in the grant. It begins at the long wharf and runs northerly to “other land of the plaintiff,” without stating the distance.

To conform the declaration to the evidence in the case and the issue between the parties, it should be amended by defining the length of the easterly and westerly lines of the lot of land intended to be claimed, and judgment should be entered for the plaintiff for possession of so much of said lot as lies northerly of a line north of and parallel to the northerly line of long wharf, and forty-five feet therefrom. The plaintiff, however, should not be allowed costs, as we have found the defendant entitled to the greater part of thé land in dispute.  