Ezra Trull et al. versus Woodhouse L. Wheeler et al., 19 Pick. 240

Shaw C. J. It is manifest, we think, that by the very precise words used in the act, adopting Ward 5, “ as the same is now defined,” the legislature must be considered as having had reference to the actual laying out, and description of the ward, by the selectmen, in March 1822 ; and whether the selectmen, in making that distribution of the city into wards precisely pursued their authority, or executed their whole authority, or not, is immaterial to the purposes of the present inquiry.

It is certainly a matter of some surprise, that the whole territory of the city is not included in some of the wards, or in other words, that the aggregate of the territory of all the wards as described, is not coextensive with the whole territory of the city ; but it seems manifest, that it is not. It seems that the common is not included in any ward, portions of the flats, waters and uninhabited lands, are not included ; and the same is probably true of some of the squares and open spaces. And it may admit of question, whether the territory of streets adopted as boundaries of wards, are included.

To ascertain what Ward No. 5 was, as then defined, we must resort to the particular description by which it was so defined. That description is set forth in the report. The terms on which this question depends are, “ to West Boston bridge, thence by the river to Causeway street.” This place being tide-water, a broad navigable river or arm of the sea, the Court are of opinion, that the terms, “ by the river,” cannot be construed to extend below or beyond the low-water mark, and that the direction in this respect was right. An objection was taken to the direction of the judge in one other particular.

Evidence was offered to show, that prisoners entitled to the liberties of the prison limits, had been accustomed to go to the places mentioned, as being within the limits of the ward, which was rejected. This evidence, we think, was rightly rejected. Here the question depended upon the terms of the statute, and of the written return of the proceedings of the selectmen, entered in a book, kept for that purpose ; and all their proceedings were recent. Upon the true construction of these the question depended.

Now all that the evidence offered tended to show, was a reputation, and that for a short period, of the actual and legal limits of the ward, which was inadmissible to control the operation of the statute and the written evidence of the proceedings of the selectmen. Where the question is of an ancient boundary, evidence of reputation is admissible ; but the rule does not apply to a case like this.