
    WASHINGTON COUNTY.
    Daniel S. Knowles vs. Benjamin S. Knowles.
    The General Assembly of Rhode Island in A. d. 1784 appointed a committee to lay out and plat for sale certain confiscated lands at Point Judith. The committee platted the upland into lots, apportioned to each lot certain marsh lands, and laid out a strip of shore as a “ common lot,” to which access was provided from each lot. The committee’s report accompanied by a plat was submitted to the legislature and approved. Sales of the lots were made, and, pursuant to legislative authority, deeds were given by the General Treasurer of the State. These deeds differed in form and language, but were all made by virtue of the same legislative proceedings and referred to the committee’s plat.
    It appearing that no rights were sold with one lot which were not sold with every other:
    
      Held, that an omission in one of the deeds to recite in full the proceedings of the legislature was immaterial.
    
      Held, further, that although one of the deeds contained no words sufficient to create a new incorporeal right, yet that by the reference to the plat and legislative proceedings made in the deed an intention to create and convey such incorporeal right was shown.
    
      Held, further, that such incorporeal right, being in this case an easement to take seaweed, passed with the dominant lot conveyed.
    The Supreme Court of Rhode Island, A. D. 1851, held that the grantee of one of the lots took no easement to gather sea-weed from the “common lot; ” and, also, A. d. 1852, that the grantees of other of the lots took no such easement. The Circuit Court of the United States held, A. d. 1856, that the grantee of another of the lots took such an easement in the servient “ common lot.”
    
      Held, that the construction of the Circuit Court was preferable to that previously given by tlie.state court. Kenyon v. Nichols, 1 R. I. 411, and Knowles v. Nichols, 2 R. 1.198, being overruled so far as they are inconsistent with Knowles v. Nichols, 2 Curt. 571, which is approved.
    Trespass on the case. Heard by the court on an agreed statement of facts.
    The facts involved in the present controversy are stated, in the opinion of the court.
    The proceedings of the General Assembly, affecting the sale of the Sewall or Point Judith farm, are concisely given by Brayton, J., in 2 R. I. 202 sq. They may also be found in R. I. Colonial Records, vol. 10, pages 60, 71. The plat accompanying the committee’s report is annexed here. It appears from the agreed statement of facts that lot No. 2 of the Sewall farm, which the committee reported sold to Matthew West, was, pursuant to a later resolution of the General Assembly, conveyed to Simeon Potter, he paying the purchase-money.
    
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      Potter’s deed of lot No. 2 is as follows:
    “ To all people to whom these presents shall come, Joseph Clarke, Esq., General Treasurer of the State of Rhode Island and Providence Plantations, for and in behalf of said State, sends Greeting.
    “ Whereas the General Assembly of the State aforesaid, at their session holden at Newport on the fourth Monday of June, in the year of our Lord one thousand seven hundred and eighty-four, appointed by their vote and resolve, then and there made, a committee to lay out the Point Judith Farm so called into such a number of farms and lots as might enable that State to sell the same, to their best advantage and that of the purchasers, and that the said committee should make a regular survey thereof, and report to them at the next session ; and whereas, at the session of the same General Assembly holden at South Kingstown, on the fourth Monday of August following, the said committee reported, that on the ninth day of the same August they repaired to the said farm, first causing a survey to be made, and then divided the same into six lots, the marsh excepted, four of which extend from the sea to the pond, and that they had also run a dividing line between the upland and salt marsh, and had bounded the said lots with stakes and stones at the corners thereof, and also numbered each lot, and entered the quantity of acres it contains on their plat. That they had assigned unto each of the lots numbered one, two and three, two ninth parts of the said salt marsh, and that they had also laid out a highway, partly through the said farm, beginning at the west side of the Bar-way at the end of the stone wall, which is the line between the said farm and the Walcut Farm; thence South, twenty-two degrees west, two hundred and ninety-six rods, where they fixed a stake and stone; thence South, one hundred and thirty-two rods, to the Northeast corner and the Northwest corner of the two Southernmost lots, laying all the said way, two rods wide on the East side of the bounds; that they had also laid a highway of eight rods wide, and forty rods long, on the South side of the lot numbered three to the fresh pond, that every lot may have free access in case of drought, and a lot of about ten acres on the South side of the marsh adjoining the sea and beach for a common, and laid out a driftway, beginning at the West side of the highway, at the di~ Tiding line between the lots numbered three and four, thence to run across the lot numbered four and across the corner of the lot numbered five to the elbow corner adjoining the salt marsh, and across the corner of the marsh, that every lot might have free access to the marsh and to the common lot, which report was then and there accepted; and it was further voted and resolved, that the said tract of land should be sold at public vendue, or private sale, for specie, or any of the public securities of the State, in separate divisions or lots, agreeable to the said plat. That on the payment of the purchase money into the general treasury, the General Treasurer was thereby directed and empowered to execute unto any and every of the purchasers of the said lots a deed conveying unto said purchasers an estate of inheritance in fee simple, with warranty. And whereas, at the sessions of the same General Assembly holden at Providence, on the last Monday of October then next following, the committee aforesaid reported that they had met on the premises aforesaid, and sold said farm in lots, agreeable to the plat, and among others the lot numbered two, containing two hundred acres, and also twenty-seven acres and one ninth part of an acre of marsh therewith, at seven pounds ten shillings per acre, which amounted to the sum of seventeen hundred and three pounds six shillings and five pence; when and where the report being considered it was Voted and resolved that the same should be, and thereby was, accepted. All and every whereof, by the records and proceedings of the said General Assembly, reference being thereto had, will more fully and at large appear.
    “ Now Know Ye that I, the said Joseph Clarke, as General Treasurer as aforesaid, for and in virtue and by force of the said several in part recited acts and doings of the General Assembly aforesaid, and for and in consideration of the sum of seventeen hundred and three pounds six shillings and five pence lawful money, to me in my said capacity, before the ensealing and delivery hereof, well and truly paid by Simeon Potter, of Swansey, in the County of Bristol, and Commonwealth of Massachusetts, Esquire, the receipt whereof I do hereby acknowledge, and myself as General Treasurer as aforesaid therewith fully satisfied, contented, and paid, and thereof and of every part and parcel thereof do exonerate, acquit, and discharge the said Simeon Potter, his heirs, executors, administrators, and assigns forever, by these presents, have in my said capacity by force and virtue of the said several acts and doings of the General Assembly aforesaid given, granted, bargained, sold, aliened, enfeofEed, conveyed, and confirmed, and by these presents do as General Treasurer as aforesaid fully, freely, and absolutely give, grant, bargain, sell, alien, enfeoff, convey, and confirm unto him, the said Simeon Potter, his heirs and assigns forever, all and singular that lot, tract, or parcel of land situate, lying, and being in Point Judith, in South Kingstown, in the County of Washington and State aforesaid, numbered two, and which was late part and parcel of the Sewel Farm, so called, consisting of and containing by ad-measurement two hundred acres of upland, and twenty-seven acres and one ninth part of an acre of undivided salt marsh ; the two hundred acres of upland are bounded Northerly on the lot numbered one, being part and parcel of the said Sewel Farm, so called, struck off to Nathan Kenyon ; Westerly on the salt pond, so called; Southerly on the lot numbered three, being part and parcel of the same Sewel Farm, so called, struck off to the same Nathan Kenyon; and Easterly on the sea or salt water, through the which hereby bargained premises there is a road or highway; for a further and more complete description of the aforesaid two hundred acres of upland, as well as the twenty-seven acres and one ninth part of an acre of undivided salt marsh and the common lot of ten acres, reference being had to the map or plat thereof, the same will fully appear, together with all the ways, waters, rights, liberties, privileges, improvements, hereditaments, and appurtenances whatsoever, unto the hereby granted premises belonging, or in any wise appertaining, and all the estate, right, title, inheritance, use, possession, property, claim and demand whatsoever, of the State aforesaid in and to the premises hereby granted and every part and parcel thereof.
    “To Have and to Hold all and singular the herein before granted and bargained premises, together with all and singular the rights, profits, privileges, hereditaments, and appurtenances, to the same belonging, or in any wise appertaining, unto him, the said Simeon Potter, his heirs and assigns, forever, to his and their only proper use, benefit, and behoof forever, as a good, perfect, and absolute estate of inheritance in fee simple, free and clear of all incumbrances whatsoever, which might in any measure or degree obstruct or make void this present deed. And I, the said Joseph Clarke, as General Treasurer as aforesaid, do in behalf of the said State covenant, promise, and grant to and with the said Simeon Potter, his heirs and assigns, that by force and virtue of the said several acts and doings of the General Assembly aforesaid I have good right, full power, and lawful and absolute authority, to grant, bargain, sell, convey, and confirm the said premises, in manner as aforesaid ; and I do hereby further covenant and engage in my said capacity forever to warrant, secure, and defend the said bargained premises unto him, the said Simeon Potter, his heirs and assigns, against the lawful claims and demands of all persons whatsoever.
    “ In witness whereof, I have hereunto set my hand and seal, the eighth day of December, in the year of Our Lord One Thousand Seven hundred and eighty-five, and in the tenth year of American Independency.
    “ Joseph Clarke, G-eneral Treasurer. [Seal.]
    “ Sealed and delivered in presence of
    “I. Grelea.
    “Robert Lawtoh.
    “ Newport, Ss. At Newport, on the day and year of the date within contained, the within named Joseph Clarke, Esq., in his proper person, cometh and acknowledgeth the within contained instrument of bargain and sale as his act and deed.
    “ Before I. Grelea, Warden.”
    
    The deed to Cooke and Irish is as follows:
    “ To all People to whom these presents shall come, Joseph Clarke, Esquire, General Treasurer of the State of Rhode Island and Providence Plantations, in New England in America, for and in behalf of the said State, sendeth Greeting: Know Ye that I, the said Joseph Clarke, as General Treasurer as aforesaid, for and in behalf of the said State, in virtue and by force of an act of the General Assembly thereof, and for and in consideration of the sum of Three Thousand four hundred and twenty-four pounds thirteen shillings and one penny half penny lawfull money, to me in hand paid in my capacity of General Treasurer as aforesaid, before the ensealing and delivery hereof, by John Cooke, of Tiverton, Esq., and George Irish, of Middletown, Esquire, both in the County of Newport and State aforesaid, the receipt whereof I do hereby acknowledge, and myself in my said capacity therewith fully satisfied, contented, and paid, and thereof, and every part and parcel thereof, do exonerate, acquit, and discharge them, the said John Cooke and George Irish, their heirs* executors and administrators and assigns forever, by these presents Have given, granted, bargained, sold, aliened, enfeoffed, conveyed, and confirmed, and by these presents do freely, fully, and absolutely give, grant, bargain, sell, alien, enfeoff, convey, and confirm unto them the said John Cooke and George Irish (in my said capacity and for and in behalf of said State), and to their heirs and assigns forever, three certain lots, tracts, or parcels of land, together with three tracts or parcels of marsh thereunto apportioned, being numbered four, five, and six, situate in South Kingston, in Washington County, in the State aforesaid, upon the Southermost part of Point Judith point, which was late part and parcel of the Estate and Inheritance of Samuel Sewall, and which became forfeit, the whole containing, in upland and marsh, four hundred and twenty-one acres, and eleven eighteenths of an acre, of which forty acres and two thirds of an acre is marsh land, which premises are butted and bounded Northerly on Nathan Kenyon’s land, Easterly and Southerly on the sea or salt water, and Westerly on Point Judith Breach partly, and partly on the undivided marsh land, late the estate of the said Samuel Sewall, together with all and singular the ways, waters, rights, libertys, privileges, improvements, hereditaments, and appurtenances whatsoever unto the hereby granted premises belonging or in anywise appertaining, and all the estate, right, title, interest, inheritance, possession, property, claim, and demand of the said Samuel Sewall of, in, and to the same, and every part and parcel thereof, to have and to hold the said granted and bargained premises, with all the hereditaments, appurtenances, privileges, and commodities to the same belonging, unto them, the said John Cooke and George Irish, and to their heirs and assigns forever, to their only proper use, benefit, and behoof forever, as a good and perfect Estate of Inheritance in fee simple, free and clear of all incumbrances, whatsoever, which might in any measure or degree obstruct or make void this present deed. And I, the said Joseph Clarke, as General Treasurer as aforesaid, do in behalf of the said State covenant, promise, and grant to and with the said John Cooke and George Irish, their heirs and assigns, that by force and virtue of the said act I have good right, full power, and lawful authority to grant, bargain, sell, and convey said premises in manner as aforesaid. And I do hereby further covenant and engage, in my said capacity as General Treasurer as aforesaid, forever to warrant, secure, and defend the said granted and bargained premises unto them, the said John Cooke and George Irish, and to their heirs and*assigns, against the said Samuel Sewall, his heirs and assigns, and against the lawfull claims of all men.
    “ In Witness whereof, I, the said Joseph Clarke, as General Treasurer as aforesaid, and in behalf of the said State, have hereunto set my hand and seal the thirteenth day of March, in the year of our Lord One Thousand seven hundred and eighty-seven, and in the eleventh year of American Independency.
    “ Joseph Clabke, General Treasurer. [Seal.]
    “ Sealed and delivered in presence of “Abr’m Booth Chapman.
    “ Jiro. Handy.
    “Newvokt, March 13, 1787.
    “ Newport, Ss. In his own proper person cometh the above named Joseph Clarke, Esq., General Treasurer, and acknowledged this instrument of writing, by him signed, to be his free act and deed.
    “ Before Jno. Handy, Warden.”
    
    In Kenyon v. Nichols, A. d. 1848, 1 R. I. 106, the Supreme Court of Rhode Island, per Haile, J., decided that a customary right in all the citizens of the State to take sea-weed from the “ common lot” could not be sustained.
    In the same case, A. D. 1851,1R. I. 411, the court, per Greene, C. J., decided that the grantee of lot No. 3 had no easement to take sea-weed from the “ common lot,” lot No. 3 being the lot bounded by No. 2 and No. 4. 1 R. I. 415.
    In Knowles v. Nichols, A. D. 1852, 2 R. I. 198, the court, per Brayton, J., decided that the grantees of the Cooke and Irish deed took neither the “ common lot ” nor any easement in it, stating, p. 209, that “ in point of fact the committee sold neither the fee of the ‘ common lot ’ nor any right of common or other interest in it.”
    
      In Knowles v. Nichols, A. D. 1856, 2 Curt. 571, tbe Circuit Court of the United States, per Curtis, J., beld that tbe grantee of lot No. 2 took an,easement to gather sea-weed from tbe “ common lot.”
    
      July 26, 1879.
   Providence,

Dtjkfee, C. J.

This is an action on the case for injury to tbe plaintiff’s right of common of seaweed on the “common lot,” so called, in South Kingstown. The plaintiff claims the right as appurtenant to his farm, which was formerly a part of the confiscated Sewall estate in South Kingstown. The injury alleged is that the defendant took sundry, to wit, two loads of sea-weed from the “ common lot,” which had drifted there, and which ought to have been left there for the use of the plaintiff on his farm. The defendant admits that the plaintiff has a right of common of sea-weed on the “ common lot,” as appurtenant to his farm ; but claims that he also has a right to take séa-weed from the “ common lot,” either because he is the owner of the fee of the lot, or because he is entitled to the right as appurtenant to his farm, which, like the plaintiff’s, was formerly a part of the Sewall estate. The case is tried to the court on an agreed statement of facts in which it is stipulated that if the defendant has the right of taking sea-weed from the “ common lot,” judgment shall be entered for him for costs ; and that if he has not the right, judgment shall be entered for the plaintiff for one dollar damages and costs.

Whatever right the defendant has to take sea-weed on the “ common lot,” he has under a deed executed March 13, 1787, by Joseph Clarke, General Treasurer of the State of Rhode Island. The deed purports to have been executed for and in behalf of the State, in pursuance of an act of the General Assembly. It purports to convey in fee simple to John Cooke and George Irish, the predecessors in title of the defendant, “ Three certain tracts or parcels of land, together with three tracts or parcels of marsh therewith apportioned.” The deed does not designate the “ common lot ” by name, but in describing the land conveyed, it gives boundaries which, it is said, include the “ common lot.” The defendant therefore claims that he is entitled to it.

In Knowles v. Nichols, 2 R. I. 198, decided in 1852, this court held that the deed to Cooke and Irish, considered as a conveyance of the “ common lot,” was ineffectual, because the General Treasurer under the act of the General Assembly had no authority to convey it. The case was precisely the same as that now before us. We see no reason to dissent from the conclusion at which the court then arrived, though we- are not quite so clear as the court of that day seem to have been that the conveyance, fairly construed, can be held to have included the “ common lot.”

The defendant contends that if he is not entitled to the “ common lot ” itself, be is entitled to common of sea-weed in it. He claims the right as appurtenant to the three parcels of the Sewall farm conveyed to Cooke and Irish. The Sewall farm originally included the “ common lot ” as a part of it. A conveyance therefore of a part of the Sewall farm would not carry a right of common in the “ common lot ” as a previously existing appurtenance to it. If the right exists under the conveyance, it must have been created de novo by the conveyance.

The Sewall farm was sold under the direction of the General Assembly in six parts. A large tract of marsh land was left undivided, but apportioned among the six parts and sold with them. The “common lot” was not sold. No rights, commonable or other, were sold with any one part which were not sold with every other. Lot No. 1, with marsh apportioned, was sold and conveyed to Nathan Kenyon. In Kenyon v. Nichols, 1 R. I. 411, decided in 1851, it was held that Kenyon did not acquire by his deed any right of common of sea-weed in the “ common lot.” Lot No. 2, with marsh apportioned, was sold and conveyed to Simeon Potter. It now belongs to the plaintiff. In Knowles v. Nichols, 2 Curtis, 571, decided in 1856, it was held that Potter did acquire by his deed a right of common of sea-weed .in the “ common lot.” The later case contains no reference to the earlier one. We therefore do not know whether the eminent judge who decided the later case considered it to be in conflict with the earlier or distinguishable from it.

It appears from the report of Kenyon v. Nichols, 1 R. I. 411, that the deed to Kenyon professed to be executed for the State, by authority of an act of the General Assembly, but contained no other reference to the proceedings under which the land conveyed had been sold. It conveyed the land not by number, but by description, “ with all the buildings, ways, privileges, and ap-pnrtenances to the same belonging.” 1 R,. I. 413. The court held that the words were apt to convey rights already existing, but not to create them de novo.

The deed to Potter, as appears by the report of Knowles v. Nichols, 2 Curt. 571, was prefaced by a yery full recital of the proceedings of the General Assembly, from which it appeared that the Sewall farm was surveyed and platted by a committee of the General Assembly into lots, with certain rights designated for the several lots, the commonable rights in the “ common lot ” being among them ; that the committee made report thereof to the General Assembly, which thereupon appointed a committee to sell the farm “ in separate divisions or lots agreeable to the said platthat the General Treasurer was empowered to execute to each purchaser a deed conveying an estate of inheritance with warranty; and that the committee of sale afterward reported that they had sold as instructed, naming the purchasers, which report was accepted. The deed as executed conveyed lot No. 2, and the marsh apportioned to it, “ together wdth all the ways, waters, rights, liberties, privileges, improvements, and appurtenances whatsoever to the hereby granted premises belonging, or in any wise appertaining.” It refers to the map or plat for a more complete description of the upland, marsh, and common lot.

The court held that the deed was to be construed in the light of the proceedings recited or referred to, and that, inasmuch as it appeared by the proceedings that the several lots were platted for sale, with commonable rights in the “ common lot ” designated to be appurtenant to them, and were sold agreeably to the plat, and the deed was made to carry the sale into effect, therefore when the deed conveyed lot No. 2, with its appurtenances, it was to be construed to have conveyed not only such appurtenances as had previously existed in fact, but also such as had been designated by the report and plat to go with the lot, thereby annexing them de novo to the lot conveyed, for otherwise it would not carry the sale into effect. The construction was accomplished not without effort, but we cannot say that the effort was misapplied, inasmuch as it was applied to effectuate the manifest intention of the legislature.

Now, admitting what the parties themselves seem to admit, that the construction given to the deed to Potter was correct, the question here is whether the same construction is to be given to the deed to Cooke and Irish, under which the defendant holds. The two deeds should receive the same construction, unless they are materially different.

The deed to Cooke and Irish conveys “ three certain lots, tracts, or parcels of land, together with three tracts or parcels of marsh thereunto apportioned, being numbered four, five, and six,” describing them and identifying them as “part and parcel of the estate of Samuel Sewall which became forfeit,” &c., “together with all and singular the ways, waters, rights, liberties, privileges, improvements, hereditaments, and appurtenances whatsoever unto the hereby granted premises belonging or in any wise appertaining.” The operative words are as broad in the one deed as in the other. The deed to Cooke and Irish differs from the deed to Potter in that it contains no recital of the proceedings of the General Assembly or of its committees, and but slight references .to them. If it is less effectual than the deed to Potter, it is so because of these omissions. But is it less effectual on this account ? It professes to be made by the General Treasurer for and in behalf of the State, “ in virtue and by force of an act of the General Assembly.” Now if we consult the act to which we are thus referred and trace out the authority of the General Treasurer, we must read in doing it the entire record which is recited in the deed to Potter. What greater effect then is given to the deed to Potter by the recital than is given to the deed to Cooke and Irish by the reference ? None, that we can perceive unless the recital is ingrafted into the operative words, in -some manner peculiar to itself, so as to enlarge their operation. There is no such ingraftment. There is no magic in mere juxtaposition. The recital simply saves the trouble of looking up the record. The reason why the deed to Potter was held to convey common-able rights in the “ common lot ” was because it was apparent that the deed was intended to carry into effect the sale of lot No. 2, and lot No. 2 was sold with those rights to go with it. But it is just as apparent that the deed to Cooke and Irish was intended to carry into effect the sale of lots Nos. 4, 5, and 6', and lots Nos. 4, 5, and 6 were likewise sold with commonable rights in “ common lot,” to go with them; why then is it not as legitimate to hold that the words of conveyance are as effectual to carry them in the one deed as in the other. We see no reason for any distinction.

Peabody Grafts, for plaintiff.

N 0. PeeJcham, Jr., for defendant.

The case at bar is not, in our opinion, distinguishable from the case of Knowles v. Nichols, 2 Curt. 571. Neither is it distinguishable, in our opinion, from Kenyon v. Nichols, 1 R. I. 411. We are therefore put to the alternative of choosing between the two cases. We choose the former. The construction elaborated by Judge Curtis has the great recommendation that it carries out the manifest intention of the General Assembly, and it ought to be followed unless there are insuperable objections to it.

In accordance with the agreement under which the case was submitted we give the defendant judgment for his costs.

Judgment for defendant for costs.  