"So, then, you will determine whether or not the present structure, which was built in 1846 by the defendant corporation, was built' at the Old Town falls,'in the town of Old Town. If it was, within the meaning of the law, as I shall further give it to you, then, gentlemen, your verdict will be for the defendant. If not, then, gentlemen, your verdict will be for the plaintiff, provided the legislature has not waived the right.
"So, then, let us see whether the defendant corporation did build the bridge 'at the Old Town falls,'in the town of Old Town. In the first place, was the locality, the falls, the Old Town falls? Now, gentlemen, you will determine what locality was meant by the legislature in that charter. You will take into consideration the natural meaning of the words in the first place, and—what is common knowledge—that a fall of water, or falls of water, is where water is falling, in contradistinction to running. The tail of a fall may be said to be, in certain cases, where the water ceases to fall, and begins to run. Now, falls, in the common acceptation of the term, may be a series of cascades; cascades, a fall of water, running water, a further fall, running water mixed with scones and rips, and finally another fall. So, after all, you will determine, as a matter of fact, from whatever evidence you have heard in this case, and from your own observation, where the Old Town falls are; what piece of territory, what extent of territory, up and down the river, the name at that time was understood to refer to and to include. The plaintiff says it was only the pitch of water above the islands, and so much of it as was falling water down to the top, or to the upper part, of Eagle island. The defendant says it refers to the quick water in and about the river there, from the first pitch to below Webster's island, and below the Dwinel mills; that the Dwinel mills were located upon the lower falls, and thatall that water was known as the 'Old Town Falls.' You have seen it. Now, gentlemen, you will judge.
"The legislature provided that the bridge must be erected 'at the Old Town falls.' Now, gentlemen, the word 'at' does not mean 'on.' It is a more indefinite word than that. The words 'in' and 'on' are more definite words than the word 'at.' The primary meaning of the word 'at' is 'near to.' As given in Webster's Dictionary, It is this: 'Primarily, this word expresses the relations of presence, nearness in place; as, at the house. * * * It is less definite than "in" or "on." At the house may be in or near the house.' So, gentlemen, I instruct you that in this case the word 'at,' in that act of the legislature, would authorize or imply that the bridge might be built either over the falls, on the falls, above the falls, or below the falls, if it was in the immediate proximity, within such reasonable distance of the falls as the exigencies of the case might require, taking into consideration the formation of the land; all the situation about there; the water; the expense of building; the facilities for building; and the cost of placing it either a little above the falls, on the falls, or a little below the falls. You have observed the locality. You have seen what facilities there are for the bridge. You have had detailed to you what need there was long years ago, in 1846, when this bridge was built,—what necessity there was for a bridge there,—and where the business in the village was located; and you will say whether or not this bridge complies with the description in that act. You are not to be governed by that act, so for as literally to require the construction of the bridge on the falls. But if the bridge was built at—that is, reasonably near—the falls, taking into consideration all the exigencies of the time and the case and the situation, then, gentlemen, it is your duty to say it is complied with; and if you find, under those facts, that the provisions of the act of the legislature have been complied with, then, gentlemen, your verdict must be for the defendant.
"Now, if you are of opinion that it had not been complied with, the defendant says, further, that the state has waived its right to insist upon any forfeiture, because the matter was once before the legislature by petitioners asking that the state enter and take possession of this bridge by reason of its forfeiture, and that the legislature voted the petitioners leave to withdraw, thereby indicating the design and intention of the legislature not to enforce this forfeiture, but to allow the bridge corporation to still retain it. You will bear in mind that the charter of the bridge corporation did not expire in forty years, but, at most, that at the end of forty years the bridge should become forfeited to the public. Now, I instruct you, as matter of law, that, if these petitioners asked the state to interpose and take possession of this property by reason of the forfeiture incurred, because the bridge was not built in a proper place, and the legislature heard the parties, and decided the question, and decided that they would not take possession,—would not interfere,— this waived the public right, and the attorney general cannot prevail in this case; but if, on the other hand, they had a hearing before a committee, and the corporation, through its officers, induced those petitioners to withdraw their petition, from any inducement held out to them, if they induced the petitioners to inform the committee that the matter had been arranged, and that no judgment of the legislature was asked in the premises, and the committee thereupon, without adjudicating upon the merits of the case, but finding that the parties had come to an agreement, simply reported to the house leave to withdraw, and leave was so granted, then, gentlemen, the state would not have waived its right, because, in order for the state to have waived its right, it must have acted deliberately,—it must have decided the question in this case upon the merits,—and, if it did not do that, then it has not waived its right.
"Now, gentlemen, in this case, I ask you to consider all the evidence, and determine
whether or not there has been a compliance with the terms of the act inquiring the bridge to be built at the Old Town falls. If, under the instructions I have given you, the old bridge, as originally built, was a substantial compliance with the terms of this act, then, though it had stood there before, if it was a substantial compliance with the terms of the act, 1 instruct you that it was not necessary for them to abandon that site, and to build a new bridge at a new place. But if, on the other hand, it was not, then, gentlemen, it was necessary, in order for them to avoid this forfeiture, to have abandoned that place, and come so near the falls, or at such a place, as would be a substantial compliance with the terms of the act, to wit, at the falls, which means either on the falls, or reasonably near the falls, under all the circumstances of the case, and the exigencies and necessities that existed at the time. * * *
"The Court, (to Mr. Woodard, counsel for defendant:) You wish me to instruct the jury 'as to what weight should properly be given to the contemporaneous construction of the phrase in question, "Old Town falls," as evidenced by the acts of interested parties.' 1 do not know to what class of evidence you refer.
"Mr. Woodard: I refer to the fact of the action of the defendant corporation in giving notice and electing to build the bridge, and the acquiescence and doing nothing on the part of the Old Town & Milford Bridge Company.
"The Court: Well, gentlemen, the fact that the old bridge corporation gave notice to the new corporation of its intention to build the bridge,—in fact, notified them that it already had done so,—and the fact that they did nothing, are facts for you to take into consideration in determining really what was meant, and understood to be meant, at that time, by the phrase, 'the Old Town falls.' It is evidence that is not of great weight. It cannot signify anything more than what those parties may have understood, or may not have understood. They may have understood it rightly. They may have understood it wrongly. It is a fact for you to take into consideration in determining, after all, what you think, from all the evidence, as to their acts in relation to there being a substantial compliance with the act of the legislature requiring the bridge to be built at the falls."
