VBoston, Ma. i [Council* 
 
 [Miscellaneous publications,] 
 Report of the Joint Committee on 
 
 Public Lands in relation to the 
 public garden. l850/ 
 
 JOINT COMMITTEE ON PUBLIC LANDS 
 
 IN RELATION TO THE 
 
 PUBLIC GARDEN, 
 
 JULY, 1850. 
 
 IREAU OF 
 
 44
 
 City Document. No. 18. 
 
 REPORT 
 
 JOINT COMMITTEE ON PUBLIC LANDS 
 
 IN KELATIOK TO THE 
 
 PUBLIC GARDEN, 
 
 JULY, 1850. 
 
 BOS TON: 
 
 1850. 
 
 J. H. EASTBURN, CITY PRINTER. 
 
 BUREAU OF GOVERWiVf5TAL RESEARCH 
 44 LjrfRARY BUILDING
 
 
 CITY OF BOSTON. 
 
 In Common Council, January 17, 1850. 
 
 Ordered, That so much of the Mayor's address as 
 relates to the " Public Garden," so called, be referred 
 to the Joint Committee on Public Lands, with instruc- 
 tions to report specially at an early day, the amount of 
 land comprised in said lot, and its estimated value ; the 
 tenure upon which it is held, and the conditions ap- 
 pertaining thereto, if there be any, and whether it is 
 expedient to improve or sell it. 
 
 Sent up for concurrence. 
 
 FRANCIS BBINLEY, President. 
 
 In the Board of Mayor and Aldermen, > 
 
 January 21, 1850. 5 
 
 Read, and concurred. 
 
 JOHN P. BIGELOW, Mayor.
 
 REPORT. 
 
 The Joint Standing Committee on Public Lands, to 
 whom was referred by an order of the City Council 
 passed January 21st, 1850, so much of the Mayor's 
 address as relates to the " Public Garden " (so called,) 
 with instructions to report specially at an early day 
 the amount of land comprised in the same, and its 
 estimated value, the tenure upon which it is held, 
 and the conditions appertaining thereto, (if there be 
 any,) and whether it is expedient to improve, or sell 
 the same, have considered the subject, and respect- 
 fully submit the following 
 
 REPORT: 
 
 It is scarcely necessary for the Committee, to state 
 that the subject of selling the lands west of Charles 
 street, has often been agitated in and out of the City 
 Council. Reports and plans have been made and sub- 
 mitted from time to time, and in eighteen hundred and 
 forty-three, the City authorized the sale of the land be- 
 tween the continuation of Boylston street and the Bos- 
 ton and Providence Railroad Depot. Your Committee 
 do not aim at presenting many new views on this sub- 
 ject, deeming it very desirable, and intending more par- 
 ticularly to collect and arrange the facts, to state the 
 various opinions that have been entertained in former
 
 4 PUBLIC GARDEN. [July, 
 
 years, and the result of their own investigations, and 
 then to leave their suggestions for such action, as may 
 be deemed expedient and proper by the City Council. 
 
 In the following remarks, the Committee will freely 
 copy from the various reports and documents, that they 
 have found among the City archives ; not considering 
 it necessary in all instances to minutely specify the 
 sources of their information, but at the same time stat- 
 ing those facts only, which they consider well ascer- 
 tained. 
 
 The history of the title to the Common, and other 
 public lands, is clearly stated in an opinion given several 
 years ago by Mr. Pickering, the former City Solicitor, 
 an extract from which will not be considered inapplica- 
 ble in this connexion. 
 
 He remarks that " The l Common' in this City, appears 
 to have originated in a similar manner to that which 
 has taken place, generally, in the towns of this Com- 
 monwealth in the early periods of their settlement. 
 Those lands, which were not ' allotted' to particular 
 inhabitants and enclosed and occupied by them, re- 
 mained open, and were denominated Common Lands or 
 Commons, in which the inhabitants at large had rights 
 of common, for pasturing their cattle or other purposes. 
 In proportion as the population of the towns went on 
 increasing, and ' lots' were taken up by individual pro- 
 prietors in the towns, the 'Commons' were, of course, 
 constantly undergoing a reduction in quantity, till they 
 were either entirely disposed of, or in part retained, and 
 eventually appropriated to other public uses, than those, 
 to which they had been originally applied in a more 
 simple state of society. 
 
 It may be further observed, that in this City, the lands 
 on the 4 Neck,' as far as Roxbury, constituted a part
 
 1850.] CITY DOCUMENT. No. 18. 5 
 
 of the ' Commons] and are mentioned by that name in 
 ancient conveyances. It does not appear, that the City, 
 so far as can be now ascertained, holds the Common 
 under a title distinct from that, under which it holds 
 the public lands, generally, that have belonged to it 
 from the early periods of its settlement. 
 
 The first ' Planters ' took possession of the whole 
 peninsula of Boston, then called the ' Neck ' of land, 
 ' bounded by the sea or salt water on the northerly, 
 easterly and westerly sides, and by the line of Roxbury 
 on the southerly side.' In the year sixteen hundred 
 and thirty (September 7th) the General Court passed 
 an order that ' Trimountain shall be called Boston.' 
 About the year sixteen hundred and thirty-four, (as ap- 
 pears by an ancient deposition of John Odlin and other 
 witnesses) the inhabitants treated with William Black- 
 stone, a large landholder of that day, 'for the purchase 
 of his estate and right in any lands lying within the said 
 neck of land called Boston ;' and for a consideration paid 
 in money, being six shillings from every householder ; 
 he ' sold to the then inhabitants of said town, and their 
 heirs and' assigns forever, his whole right, and interest in 
 all, and every the lands lying within said Neck' Reserv- 
 ing to himself however, some lands, which are unim- 
 portant in the present inquiry. In addition to this 
 conveyance from Blackstone, the town many years after- 
 wards, (March 19, 1684-5,) took a deed of release from 
 the Indian Sachem, Charles Josias, otherwise called 
 Josias Wampatuck, son and heir of Josias Wampatuck, 
 late Sachem of the Indians inhabiting the Massachusetts 
 in New England, and grandson of Chickatabut, the for- 
 mer Sachem. This deed of release recites, that the 
 grantor had been informed, that his grandfather had 
 formerly sold to the English planters and settlers, the
 
 6 PUBLIC GARDEN. [July, 
 
 whole neck, tract, or parcel, 'known by the name of 
 Boston,' that the lands had been ' divided out among 
 them, and occupied, and enjoyed by them, peaceably and 
 quietly, for about fifty and Jive years past &c. ; and this 
 grantor confirmed the whole territory of the town to 
 Elisha Cooke and others, for the use of the inhabitants. 
 After the purchase from Blackstone abovementioned, 
 as testified in the depositions above referred to, the town 
 laid out a place for a ' Training Field,' which, the wit- 
 nesses add, ' ever since and now is used for that purpose, 
 and for the feeding of cattle' 
 
 The portion of the common lands thus appropriated 
 for a training field, &c., has ever been understood in a 
 general view, to include what is now called in popular 
 language, the Common ; and it may be presumed to 
 have been land of such a quality, as was suitable for 
 the purposes of a ' Training Field," and ' the feeding of 
 cattle.' 
 
 The extent of this Training Field or Common, has 
 however, varied at different periods, and the changes 
 cannot now be ascertained with precision ; but the fol- 
 lowing brief statement of its history may afford us some 
 aid. 
 
 By the town records it appears, that ' on the thirtieth 
 day of the first month, (March,) sixteen hundred and 
 forty,' it was agreed at a town meeting, as follows: 
 4 that henceforth there shall be noe land granted, eyther 
 for houseplott or garden, to any person, out of the open 
 ground or Common fteild, which is left between Gentry 
 Hill and Mr. Colbren's End ; except three or four lots 
 to make up the streete from Br. Rob't Walker's to the 
 Round Marshe.' 
 
 The place here called Gentry Hill is the same which 
 has been since known as Beacon Hill ; and Mr. Col-
 
 1850.] CITY DOCUMENT. No. 18. 7 
 
 bren the land owner here named, had his house near 
 the corner of Eliot and Washington street. Such ap- 
 pears to have been at that day, the extent of the Com- 
 mon hi a northerly and southerly direction ; but this ap- 
 pears to have undergone some change, at different 
 periods afterwards, which it is not material to specify. 
 Its extent in a westerly direction also, is difficult to be 
 defined with precision ;" but a practical result sufficient 
 for the present purpose ' may perhaps be attained, by 
 a consideration of the nature, or quality of the lands, 
 which may be supposed to have been appropriated to 
 the particular uses, which the town had in view, and 
 the manner, in which the whole, or any part of the 
 lands, east and west of Charles and Pleasant streets, 
 have been occupied or used, under the authority of the 
 town at different times.' 
 
 In the early periods of its history, a document of 
 some importance, is a lease given by the town to Gov- 
 ernor Leverett, dated February 26th, 1665, by which 
 they leased to him a piece of land in this part of the 
 town, which is thus described in the lease, * a parcel of 
 land lying and being in Boston aforesaid, called or 
 known by the name of Fox Hill, with all the Marsh 
 about the same so far as the salt water flows, bounded 
 with the highway south, with the Town's Commons 
 east and north, and with the beach and sea west.' 
 
 The situation of ' Fox Hill with the marsh about it ' 
 is satisfactorily known, it being westerly of the present 
 ' Common,' and with ' the Marsh,' extending in a south- 
 erly direction as far as the public lands now extend 
 on Pleasant street, and probably, at the period of this 
 ancient lease reaching still farther south. A part of 
 the 'Marsh' lay westerly of Fox Hill, and a part east- 
 erly of it, or between that Hill, and the upland or
 
 8 PUBLIC GARDEN. [July, 
 
 4 Common,' and this last mentioned part of the ' Marsh,' 
 (or a portion of it,) afterwards fell within the ropewalk 
 grant, in which it is described as marsh land. 
 
 At the time of this lease, then, the Common seems to 
 have been limited on the west side by a boundary line 
 not perfectly defined, but in the general direction of 
 the border of the upland, which could not have been 
 far from the main course of Charles street, or the bot- 
 tom of the Common. 
 
 Whether any part of the ' Common' was then en- 
 closed with a fence does not appear. But about sixty 
 years afterwards,' (March 15, 1737,) it appears that a 
 fence had been placed round it; for the town then 
 voted and ordered : * That the openings or gaps, which 
 lead into the Common be made lip with posts and a rail 
 on the top to prevent carts, &c., from going over it and 
 spoiling the herbage ;' and one of the selectmen was 
 desired to cause the same to be forthwith effected, leav- 
 ing only one gap or inlet near the Granary, to go up 
 along by the workhouse to Beacon street, agreeable to 
 said order.' 
 
 From that time to the present, the land which is 
 commonly called the Common has been enclosed, but 
 the borders of it have occasionally undergone changes 
 with a view to improve the Common itself, or the streets 
 which surround it. 
 
 So far as the votes and acts of the town or city may 
 be of weight in determining the extent and meaning of 
 the word * Common,' it may be remarked generally, that 
 it has been in most instances, considered to include 
 only the land enclosed by the fence ; though there are 
 some entries in the records, in which a greater extent 
 westward is given to it." 
 
 The Committee deem it necessary to insert in this
 
 1850.] CITY DOCUMENT. No. 18. 9 
 
 report, a statement of other proceedings of the town 
 and also of certain proceedings of the city relating to 
 the public lands. 
 
 It appears from the records of the town, that on the 
 twelfth day of August in the year seventeen hundred 
 and ninety-four, a meeting of the people was held, for 
 the purpose of determining " whether the town would 
 appropriate the marsh at the bottom of the Common, 
 or any other of the town lands for ropewalks, for the 
 accommodation of the sufferers by the late fire." This 
 had reference to a fire on Pearl street, by which the 
 ropewalks there had been destroyed. At this meeting, 
 the Honorable Thomas Dawes and others were appoint- 
 ed a Committee, to confer on the subject with the own- 
 ers of the ropewalks so destroyed ; and it was ordered 
 that a survey should be taken of the " Marsh," and 
 also, of part of the land on Boston -Neck, sufficient for 
 the purpose of erecting as many ropewalks as were 
 consumed. 
 
 On the twenty-eighth day of August, of the same 
 year, that Committee made a report, which was recom- 
 mitted to them, with instructions " to confer with the 
 sufferers, and to report a specific quantity of ground 
 for their use, and the terms upon which the same be 
 granted." 
 
 Their second report was made on the first day of the 
 ensuing September, and was accepted and adopted by 
 the inhabitants. In this report, after stating that they 
 had again considered the subject, and had repeated con- 
 ferences with the parties concerned, the Committee 
 recommended the passage of sundry votes, to the effect : 
 that there should be granted to the persons hereafter 
 named, being the owners of the ropewalks so consumed 
 by fire, a piece of marsh land, and flats at the bottom
 
 10 PUBLIC GARDEN. [July, 
 
 of the Common, including the whole or such part of 
 Fox Hill as might fall within the following bounds, viz : 
 
 " Beginning at the westerly end of Ridge Hill, five 
 hundred feet from Bacon street, and running directly 
 towards Eliot street, as far as the town's land extends 
 on the west side of Pleasant street, so far as to leave a 
 space of fifty feet between this line and the end of the 
 rail fence projecting down from the burying ground on 
 the south side of the Common ; then extending in 
 weath three hundred feet from the point at which the 
 above described line may strike upon Pleasant street, 
 being bounded westerly throughout by a line run par- 
 allel with the line first described, and beginning at the 
 head of the town's land at the southerly part of the 
 marsh, and running in a northerly direction until it 
 shall meet with a line drawn from the westerly end of 
 Ridge Hill parallel with Bacon street, as is more fully 
 described on a plan taken by Mr. Osgood Carlton, Au- 
 gust 29, 1794." 
 
 " And that the said grantees should be authorized 
 and empowered to extend the limits of the land granted 
 fifty feet over the flats ; they relinquishing the same 
 space on the easterly side of said land, or to alter the 
 said limits so as to extend across the said marsh in a 
 diagonal direction, provided, they did not in either case 
 come nearer than fifty feet to the end of the rail fence 
 aforesaid, nor run northerly so as to cross the said line 
 to be run parallel with Bacon street ; reserving sixty 
 feet in width across the southerly end of said piece of 
 land, for a road from Pleasant street down to the chan- 
 nel. That the following grants in fee simple should be 
 made, viz : the first fifty feet in width from the easterly 
 side, being Lot No. 1, on that plan, to Isaac Davis; the 
 second fifty feet in width, being Lot No. 2, to Jeffrey
 
 1850.] CITY DOCUMENT. No. 18. 11 
 
 Richardson; the third fifty feet in width, being Lot 
 No. 3, to Samuel Emmons ; the fourth fifty feet in 
 width, being Lot No. 4, to William and Archibald 
 McNiel ; the fifth fifty feet in width, being Lot N o. 5, 
 to John and Richard Codman ; the sixth fifty feet in 
 width, being Lot No. 6, to Edward Howe ; reserving, 
 however, a right in the town to carry sluices and drains 
 through the said piece of land to the salt water, in any 
 direction, forever. These grants were made upon the 
 following conditions : 
 
 First, That neither of the said grantees nor their 
 heirs or assigns, should at any time thereafter erect, or 
 cause to be erected any ropewalk, upon the lands 
 where the late ropewalks were consumed by fire, nor 
 any part thereof. 
 
 Second, That there should never be any other build- 
 ings than ropewalks, nor more than six of them erected 
 on the lands granted. 
 
 Third, That the heads of the ropewalks which should 
 be erected on the same should be placed at the south- 
 erly end thereof; " that they should not be more than 
 one story in height, nor the eaves more than seven feet 
 from the floor, except forty feet from the head of each 
 walk for a store," which might be two stories high and 
 built of brick, and covered with slate. 
 
 Fourth, That the grantees should erect, in the space 
 of two years from the time of the grant, at their own 
 expense, a sufficient sea wall in the opinion of the 
 Selectmen, the whole length of the granted land, on 
 the westerly side thereof, at a distance not exceeding 
 thirty feet from the same; the right of property in 
 which wall, if erected without the bounds of the grant, 
 should be in the town.
 
 12 PUBLIC GARDEN. [July, 
 
 Nothing in these grants was to be considered as con- 
 veying to the grantees or either of them, any right of 
 passage in any direction across the common, to or from 
 the granted lands. 
 
 The Selectmen in the name and behalf of the town, 
 were authorized to execute good and sufficient deeds to 
 the respective parties, of the respective lots, upon these 
 conditions, and with these restrictions and reservations ; 
 and to insert in each of the deeds, so to be executed, a 
 covenant on the part of the town, that it would not 
 build any ropewalk on the Common, nor ever there- 
 after grant any part thereof, for the purpose of building 
 such walk. The Selectmen were also authorized to 
 lay out a road sixty feet wide from Pleasant street, 
 along the easterly side of these lands over the marsh 
 towards Beacon street, in order to meet a road that 
 might be opened from West Boston Bridge. 
 
 The question as to the dimensions of the ropewalk 
 buildings, was submitted to the inhabitants on the 
 ninth day of March, of the following year, and was by 
 them referred to the Selectmen, to be settled in the 
 manner, which they should deem most expedient for 
 the interest of the town, " upon the most liberal con- 
 struction of the foregoing votes." 
 
 Only one deed appears by the records to have ever 
 been given by the town of any of these lands, and that 
 was to William and Archibald McNiel of lot No. 4, de- 
 scribing it as being fifty feet in width, and extending 
 from a line parallel to Beacon street, and five hundred 
 feet therefrom, to a street then lately laid out by the 
 Selectmen, sixty feet wide, leading from Pleasant street 
 to the salt water, and bounded northerly on that line, 
 easterly on land granted to Samuel Emmons, southerly 
 on the above mentioned new street, and westerly on
 
 1850.] CITY DOCUMENT. No. 18. 13 
 
 land granted to John Codman. This deed was execu- 
 ted by the Selectmen, and is dated August 31, 1796, 
 and may be found recorded with Suffolk Deeds, Book 
 184, p. 142. 
 
 On the twenty-third day of May, eighteen hundred 
 and three, a Committee were appointed with full 
 power to effect a settlement with these proprietors, 
 and to give them deeds, upon the original terms im- 
 posed, or upon such other terms as would be for the in- 
 terest and advantage of the town. 
 
 The buildings on these lands having been destroyed 
 in the mean time, on the tenth day of March, eighteen 
 hundred and six, a meeting was held by the town, to 
 determine the expediency of taking any measures, rela- 
 tive to the rebuilding of the same, and the subject was 
 then referred to the consideration of the Selectmen, 
 who subsequently in the same month, made a report to 
 the effect; that the town granted to the proprietors 
 of the ropewalks, the ground on which the same stood, 
 for the purpose of ropewalks, and for no other use 
 whatever, and that the proprietors had done nothing to 
 forfeit their right of rebuilding. 
 
 On the sixteenth day of January, eighteen hundred 
 and twenty-three, a Committee were appointed by the 
 City Council, to confer with the proprietors, and ascer- 
 tain on what terms they would release to the City their 
 interest in the lands under and near their ropewalks. 
 The Committee were also empowered, to cause plans to 
 be drawn, to show in what manner it was expedient 
 that the land should be improved, and further to con- 
 sult with the Boston and Roxbury Mill Corporation on 
 the subject of such improvement, and the bounds of 
 their " empty basin." 
 
 A report was made by this Committee on the twenty-
 
 14 PUBLIC GARDEN. [July, 
 
 fourth day of the following March, in which they stated 
 the result of their conferences to be, sundry propositions 
 on the part of the proprietors, and one on the part of 
 the Boston and Roxbury Mill Corporation. The pro- 
 prietors offered to release to the City, all their interest 
 in these lands for the sum of $86,000 or one quar- 
 ter part thereof if the City would release to them 
 the remaining three quarters, and grant them the lib- 
 erty of erecting dwelling houses thereon. Or if the 
 City would fill up the land to a height suitable for the 
 erection of buildings, and release one half thereof to 
 them with such liberty, they would give a release to 
 the City of the residue. Or would give the sum of 
 $30,000, if the City would release its interest in the 
 whole of the same, and confirm to them a good title 
 thereto, with the privilege of erecting dwelling houses 
 thereon. 
 
 The Committee further stated that the Boston and 
 Roxbury Mill Corporation had no general plan of im- 
 provement to propose, but would consent that if the 
 City should fill up its flats, the materials therefor might 
 be taken from their empty basin. That the Corpora- 
 tion were also willing to have the bounds of this basin 
 adjusted and fixed, and were ready to treat with any 
 persons authorized on behalf of the City to fix the 
 same ; contending, however, that by force of their char- 
 ter, they had a right to take so much of the flats of the 
 City, or of individuals, as they might require for such 
 basin, and that they had not forfeited the flats granted 
 to thorn by virtue of a vote of the town passed October 
 20, 1813. 
 
 This forfeiture was insisted upon by that Committee, 
 as well as the right of the City to fill up and occupy 
 the flats to the channel, provided the distance should
 
 1850.] CITY DOCUMENT. No. 18. 15 
 
 not exceed one hundred rods from the shore. An ami- 
 cable adjustment of the matter was suggested by them, 
 with a proposition that a Committee should be appoint- 
 ed for that purpose. And in concluding their report, 
 the Committee remarked, that they " did not deem it 
 expedient to recommend the acceptance of either of 
 the propositions of the ropewalk proprietors." 
 
 This report was accepted. 
 
 On the sixth day of November in the same year, the 
 proposition that the value of the ropewalk lands should 
 be referred to appraisers, was accepted on condition, 
 that they should be restricted in their estimation, to the 
 value of the land, for the purpose specified in the origi- 
 nal conveyance from the town, and a Committee were 
 accordingly appointed to effect the reference, and in the 
 month of January following, they reported that they 
 had referred the matter to the decision of Patrick T. 
 Jackson, Ebenezer Francis, Edward Cruft, Peter C. 
 Brooks, and John P. Thorndike, upon the express 
 reservation that their award should be subject to the 
 final approval of, or rejection by the City Council ; but 
 that one of the proprietors of the land had objected to 
 be bound by the award, upon the ground that the obli- 
 gation so to be bound was not mutual, the City having 
 a reserved power to accept or reject it, and that the 
 same would not be assented to and carried into effect 
 by this proprietor. For the purpose of obviating and 
 removing this obstacle, on the recommendation of the 
 Committee, it was resolved, that a bond should be en- 
 tered into on the part of the City, conditioned to abide 
 by and perform the award of these referees, the proprie- 
 tors giving similar bonds. 
 
 On the twenty-fourth of the following May, the 
 Mayor reported to the City Council the award, which
 
 16 PUBLIC GARDEN. [July, 
 
 was in substance, that there should be paid to the pro- 
 prietors the sum of $54,000, in full for their respective 
 rights, empowering the City, however, to retain from 
 and out of this amount sufficient to pay off any incum- 
 brances on the land. 
 
 On the twenty-fifth day of February, in the year 
 eighteen hundred and twenty-four, Joseph W. Lewis, 
 then of Boston, by a deed of that date, with an unlimited 
 warranty, recorded with Suffolk Deeds, [Book 290, folio 
 193.] in consideration of the sum of one dollar, and for 
 the further consideration expressed in an agreement 
 entered into with the City, of the same date,* conveyed 
 to the City, in fee simple, the three ropewalk lots next 
 to the Common, bounded southeastwardly, on Pleasant 
 street, two hundred feet; northeastwardly, on Charles 
 street, one thousand and six feet ; northwestwardly, on 
 land of the City, one hundred and fifty feet ; and south- 
 westwardly, on lot No. 4, eleven hundred and thirty- 
 eight feet. In the same deed he released the dower of 
 his wife, alleging that he was authorized so to do, by 
 virtue of a resolve of the legislature passed on the 
 twenty-first day of that month. His wife, Ann Lewis, 
 also on the twenty-fourth day of April, eighteen hun- 
 dred and twenty-four, by a joint deed with her husband, 
 quitclaimed the same unto the City. 
 
 Henry Chapman, by deed 'dated Feb. 25, 1824, and 
 recorded as above, liber 290, folio 194, containing an 
 absolute warranty, conveyed for a like consideration, to 
 the City in fee simple, lot No. 4, describing the same 
 
 * This agreement was, among other tilings, that the City should pay to Lewis 
 the amount awarded to be paid to him, within thirty days after the making and 
 publication of the award, retaining therefrom the amount which might be neces- 
 sary to pay off incumbrances on the land. An agreement of a like purport was 
 entered into with the various other proprietors.
 
 1850.] CITY DOCUMENT No. 18. 17 
 
 as follows : southeastwardly on a street leading from 
 Pleasant street to the salt water, measuring fifty feet ; 
 northeastwardly on lot No. 3, eleven hundred and thir- 
 ty-eight feet ; northwestwardly on land of the city, fifty 
 feet ; and south westwardly on lot No. 5, eleven hun- 
 dred and thirty-eight feet. This deed also contained 
 a release of dower. William Gray and Amos Binney, 
 by a like warranty deed, of the same date and recorded 
 as the last, and for a like consideration, (except that no 
 specific time was assigned in the agreement, for payment 
 of the sum awarded,) and containing a release of dower 
 conveyed in fee simple to the city, lot No. 5, bounding 
 and describing it as follows, viz : southeastwardly on 
 Pleasant street, fifty feet ; northeastwardly on lot No. 
 4, eleven hundred and thirty-eight feet; northwest- 
 wardly on land of the city, fifty feet ; and, southwest- 
 wardly on lot No. 6, eleven hundred and thirty-eight 
 feet. Amos Binney, by a like deed of the same date, 
 and recorded as above, folio 195, and for a similar con- 
 sideration to that mentioned in the deeds of Lewis and 
 Chapman, and containing a like release of dower, con- 
 veyed in fee simple to the city lot No. 6, bounded and 
 described in the manner following, viz: southeast- 
 wardly on Pleasant street, fifty feet ; northeastwardly 
 on lot No. 5, eleven hundred and thirty-eight feet ; 
 northwestwardly on land of the city, fifty feet; and, 
 south westwardly also, on its land, eleven hundred and 
 thirty-eight feet. 
 
 By these conveyances, the City became again seized 
 and possessed of all the land granted in 1794 to the 
 ropewalk proprietors, containing six specific lots. 
 
 On the sixth day of July, eighteen hundred and 
 twenty-four, a Committee duly appointed in that behalf, 
 reported that they had discharged and paid off all the
 
 18 PUBLIC GARDEN. [July, 
 
 mortgages, existing on the ropewalks formerly belonging 
 to Joseph W. Lewis, and that the title of the City to the 
 whole of the ropewalk lands, thereby became complete 
 and unquestionable ; and they thereupon recommended 
 a vote of the people upon the question of the disposition 
 of the same. On the same day, it was ordered that a 
 vote of the inhabitants qualified to vote in city affairs, 
 should be had on the twenty-sixth instant, on the 
 questions : first, whether the City Council should 
 have authority to make sale of the upland and flats 
 owned by the City, lying west of Charles street, on 
 such terms, and at such times, as they might deem 
 expedient; and, secondly, whether they should have 
 authority to annex as a condition to such sales, the pro- 
 vision, that the land known by the name of the Com- 
 mon, and lying between Charles, Beacon, Park, Com- 
 mon and Boylston streets, should be forever thereafter 
 kept open, and free of buildings of any kind, for the 
 use of the citizens. 
 
 At this meeting it was determined, that a Commit- 
 tee of twenty-five persons should be chosen, two from 
 each ward, and one by the twenty-four so chosen by 
 the respective wards, to consider and report on the sub- 
 ject at an adjourned meeting. This report was pre- 
 sented at a meeting held on the sixteenth day of the 
 ensuing December, and its consideration was deferred to 
 the meeting to be held on the twenty-seventh day, 
 when the questions to be determined, as suggested by 
 the Committee, were proposed to the meeting. The 
 first and second questions were exactly the same as 
 those mentioned to be considered on the twenty-sixth 
 day of July. The third was ; whether the City Council 
 should be authorized to bring the question of bounda- 
 ries between the City, and the Boston and Roxbury 
 Mill Corporation to a settlement, and for that purpose
 
 1850.] CITY DOCUMENT No. 18. 19 
 
 be authorized to renew or confirm the former grants 
 and acts of the town, with respect to that Corporation, 
 on such terms and conditions as they might deem ex- 
 pedient ; provided that no confirmation or conveyance 
 should be made in virtue of their vote, to authorize the 
 erection of dwelling-houses or other buildings on any 
 part of the premises. 
 
 The fourth was ; whether the City Council should be au- 
 thorized to prepare for sale, and to convey on such terms 
 and conditions as they might deem fit, so much of the 
 upland and flats as were situated southerly of a line, be- 
 ginning at a point on Charles street thirteen hundred and 
 fifty feet southerly from the dam belonging to the Bos- 
 ton and Roxbury Mill Corporation, and opposite to the 
 southwesterly comer of the Common, and running 
 westerly at an angle of eighty-five degrees with Charles 
 street to the bounds of the City flats ; provided, that 
 there should be annexed to all the conveyances, a con- 
 dition, that the Common and all the upland and flats 
 lying westerly therefrom, should be forever after kept 
 free of and unincumbered by any buildings. 
 
 On the first question, the vote was 846 in the affirm- 
 ative, and 1,027 in the negative. On the second, 1,111 
 in the affirmative, and 737 in the negative. On the 
 third, 464 in the affirmative, and 1,360 in the negative. 
 And on the fourth, 420 in the affirmative, and 1,404 
 in the negative. There had been presented to the City 
 Council, prior to this meeting, a remonstrance by Wil- 
 liam Phillips and others, against the sale of the rope- 
 walk lands. 
 
 The Committee deem it advisable, in order that a 
 correct and sufficient knowledge may be attained of the 
 tenure upon which the Public Garden is held by the 
 City, to insert in their present report the substance of 
 the various proceedings of the City Council, on the sub-
 
 20 PUBLIC GARDEN. [July, 
 
 ject of the settlement of the bounds of the property of 
 the Boston and Roxbury Mill Corporation, and of the 
 adjoining property of the City. 
 
 On the twelfth day of January, in the year eighteen 
 hundred and twenty-six, it appears that a petition 
 of this corporation was presented to the City Council, 
 praying that commissioners might be appointed to 
 settle the respective rights of the petitioners, in and to 
 the receiving basin, (so called,) or flats in the Back Bay ; 
 upon which a Committee were appointed to take legal 
 advice, in regard to the rights of the City in the matter. 
 
 On the ninth day of October following, this Commit- 
 tee made their report, recommending that another 
 Committee should be appointed by the City Council, 
 with full powers to settle and adjust with the proprie- 
 tors of land west of Washington street, and the corpo- 
 ration, the division line of their land and that of 
 the City : provided, that no agreement should be made, 
 which should authorize the said proprietors, or the 
 said corporation, to erect any building between the 
 channel and Charles street. Which report was ac- 
 cepted, and the proposed Committee appointed. And, 
 on the twenty-sixth day of December in that year, 
 an agreement of three parts, was entered into, by and 
 between the City, these proprietors of flats and real 
 estate on the easterly and southeasterly sides of the re- 
 ceiving basin, and this corporation, whereby the bound- 
 ary line between the three contracting parties was settled 
 and described as follows, viz : " Beginning at a point on 
 the dam, six hundred and fifty feet from Charles street, 
 thence running in a straight (being the first) line, 
 southerly till it strikes the southwesterly line of Castle 
 street continued into the basin, at a point twelve hun- 
 dred feet from Washington street, as marked upon a 
 plan made by S. P. Fuller ; thence running southwest-
 
 1850.] CITY DOCUMENT No. 18. 21 
 
 erly in a straight (being the second) line, through or 
 along land claimed by said proprietors, or other individ- 
 uals, passing through the boundary line between the said 
 City and Edward Tuckerman, Esq., at a point twelve 
 hundred feet from Washington street, and extending 
 until it strikes a point in said City's land, two hundred 
 feet distant from said boundary line last named ; then 
 turning and running westerly in a straight (being the 
 third) line, by a cedar post to Northampton street, as 
 marked on said Fuller's plan ; thence northerly along 
 the easterly side of said Northampton street to the 
 boundary line between Boston and Roxbury." And in 
 and by said agreement the City and the proprietors of 
 the flats, &c., did agree in consideration of the cove- 
 nants and agreements of the Boston and Roxbury Mill 
 Corporation, that the latter should have, hold, and 
 enjoy in fee simple, all the right, title, and interest, 
 which the City or either of the proprietors then had, or 
 ever had, in and to the land and space within the ba- 
 sin, lying westerly and northerly of the three lines first 
 above described, and easterly of the line of Northamp- 
 ton street ; excepting the right reserved to the board 
 of health by the act of incorporation of the Boston 
 and Roxbury Mill Corporation. It was also therein 
 agreed, that the City and the proprietors, in fee simple, 
 separately and respectively, according to their several 
 rights and estates in and to the upland to which the 
 flats were adjacent, should have, hold, and enjoy all the 
 right, title, and interest, whether of property or flowage, 
 and every other right, of whatever name or nature, 
 which the Corporation then had, or ever had, in and to 
 the land and flats claimed by the City or the Proprie- 
 tors, lying between the three lines first above described 
 and the adjacent upland, and between said east side of 
 Northampton street and the adjacent upland. This
 
 22 PUBLIC GARDEN. [July, 
 
 agreement also gave a right forever to the City and 
 these proprietors to dig, lay, and maintain all conve- 
 nient and necessary sewers or drains from the upland 
 to the channel or deep water within the basin, accord- 
 ing to law and the common and usual practice for the 
 time being within the City ; and also, a right to dig 
 and carry away in common with the Corporation, and 
 those whom they might license, mud and earth from 
 the vacant flats within the basin ; which right, (it was 
 provided) should not be construed to give said City and 
 the proprietors any right to dig to a greater depth than 
 the level of the sills of the sluice-ways, nor within one 
 thousand feet from the main drain or cross-dam west of 
 the channel near Charles street, nor east of said chan- 
 nel, within two hundred feet of that dam, nor for any 
 other purpose than that of filling up and raising the 
 said flats and land bordering upon the basin, and be- 
 longing to the City and the Proprietors. 
 
 There was a further covenant or agreement in this 
 instrument, that neither the Corporation or its assigns, 
 should erect any building within the basin in front and 
 west of the City's land on Charles street, within the 
 distance of one hundred rods from that street, unless 
 the City or its assigns should erect buildings upon 
 their land in front and west thereof, and that neither 
 the Corporation or its assigns, at any time should erect 
 any buildings within the basin between that street and 
 the channel immediately in front and west of that 
 street, whether the City should use its land for building 
 or not. And, further, that the erection by the City on 
 its land, of gun-houses, school-houses, or other like 
 buildings, to be used exclusively for public purposes, 
 and not for rent or profit, should not authorize said 
 Corporation to build within that distance, and that 
 whenever the Corporation should so build, the City
 
 1850.] CITY DOCUMENT No. 18. 23 
 
 might build on the whole space which it owned between 
 said street and the channel, before the execution of the 
 agreement. And, that the City authorities, whenever 
 they might deem it expedient, might lay out as a free 
 and common highway, that part of the road or dam of 
 the Corportion, which extended from said street to the 
 channel, and might then fill up their land opposite to 
 said street so as to connect it with the adjacent dam, 
 and to pass freely to and from the same. The tide 
 water, also, was not to be voluntarily let into said 
 basin by said Corporation, higher than might be neces- 
 sary for the common and ordinary use of the mill-pow- 
 er, to the injury of any of the parties, but no damages 
 were to be claimed unless the water was thus raised 
 to a greater height, than three feet above the level of 
 low water in the said basin at neap tides. The Com- 
 mittee executing this agreement on the part of the City, 
 averred and declared in writing, that one of the condi- 
 tions of their signing the same, as well as their under- 
 standing thereof was " That in case the Corporation 
 should build on the land west of the channel, within 
 sixteen hundred and fifty feet of Charles street, all the 
 land lying between that street and the centre of the 
 channel should revert and belong to the City, in fee 
 simple." The agreement, however, was subsequently 
 altered by the parties in interest, so that if the Cor- 
 poration should build as last mentioned, then all 
 the land lying between that street and the channel 
 should revert and belong to the City in manner afore- 
 said. 
 
 On the first day of February, in the year eighteen 
 hundred and twenty-seven, by an indenture of that 
 date, made by and between the City and that Corpora- 
 tion, the same line was established between them, and 
 the latter released to the former, the estate, premises
 
 24 PUBLIC GARDEN. [July, 
 
 and rights it had released by the last mentioned agree- 
 ment to it, and the said proprietors of flats, &c.; and the 
 City released to the Corporation, the same estate and 
 premises, it had released by that agreement. 
 
 This indenture also contained a provision, that when- 
 ever the " Corporation shall build on said basin within 
 one hundred rods of Charles street, then all the land 
 in said basin east of the following line, that is to say ; 
 a line beginning on the Mill Dam six hundred and 
 ninety feet from the westerly side of Charles street, and 
 running southerly in a straight course to a point on the 
 line between Josiah Vose's land and the City's land, dis- 
 tant nine hundred and twenty-six feet and three inches 
 from the northerly corner of said Josiah Vose's house 
 on Pleasant street, measuring on the line of said Vose's 
 land as marked on the plan of said Fuller, shall revert 
 to said City, and belong to it, its successors and assigns, 
 in fee simple forever ; and the said Corporation will con- 
 vey or release to the City accordingly." 
 
 It will thus be seen, that the bounds of the land of 
 the City adjacent to the Public Garden, were definitely 
 settled by these agreements. 
 
 A petition of Horace Gray on behalf of himself and 
 his associates, was presented in the board of mayor and 
 aldermen, on the twenty-fifth day of September, in the 
 year eighteen hundred and thirty-seven, praying that 
 the petitioners might be permitted to occupy a portion 
 of the city's land west of Charles street, as and for a 
 public garden ; and the same was duly referred to a 
 Committee. ^ 
 
 On the sixth day of November of that year, an order 
 was passed by the City Council to the effect, that the 
 Committee on Public Lands should be authorized and 
 empowered to grant to the petitioners, the use of such 
 portion of the lands mentioned in their petition, for the
 
 1850.] CITY DOCUMENT. No. 18. 25 
 
 proposed garden, as they might deem expedient, upon 
 the following terms and conditions : 
 
 1st. That no building should be erected on the land 
 permitted to be so used, other than green-houses, tool- 
 houses, or such other buildings as might be necessary 
 for properly maintaining a garden for flowers. 
 
 2d. That no such building should exceed fourteen 
 feet in height above the level of Charles street. 
 
 3d. That no building should be erected thereon 
 which should impair the contract between the Boston 
 and Roxbury Mill Corporation, and the City. 
 
 4th. That all buildings or other property belonging 
 to the petitioners should be removed from the ground, 
 and the land peaceably surrendered to the City author- 
 ities, whenever the City Council should require, they 
 giving nine months notice of such requisition. 
 
 5th. That the Trustees or Directors of the garden 
 should annually make a report to the City Council, 
 signed by a majority of their board, stating the expen- 
 ditures made and the income received. 
 
 6th. That the Proprietors of the garden should, in 
 no case, receive to their own use a greater amount than 
 six per cent, per annum on the amount invested by 
 them therein. 
 
 7th. That all income arising from the garden over 
 and above such percentage, should be expended in im- 
 provements on the grounds. 
 
 8th. That the petitioners should procure and file 
 with the city clerk, the written assent of the proprie- 
 tors of the Boston Water Power Corporation, and of 
 the Boston and Roxbury Mill Corporation, (if in the 
 opinion of the city solicitor, the last named Corpora- 
 tion had any interest therein,) to the grant by the City,
 
 26 PUBLIC GARDEN. [July, 
 
 and their waiver of any claim of any right what- 
 ever, under their contract with the City, or in any way, 
 in consequence of such grant, or of the use of the land 
 as a Public Garden ; the instrument containing such 
 consent and waiver to be satisfactory to the city so- 
 licitor. 
 
 9th. That no fence should be erected on the west- 
 erly side of Charles street, other than such as might 
 be sanctioned by the mayor and aldermen. 
 
 10th. That this order should be void unless the 
 garden should be actually commenced within eight 
 months from its passage, and- notice thereof be lodged 
 by the petitioners with the city clerk. 
 
 On the twenty-fourth day of September, in the year 
 eighteen hundred and thirty-eight, a further petition 
 was presented by the same persons, stating that they 
 had been unable to conform to the foregoing order, and 
 praying that they might occupy the proposed land upon 
 the condition, that no building whatsoever, should be 
 erected thereon. Whereupon a Committee were ap- 
 pointed to consider the same and report a plan exhibit- 
 ing the location, and quantity of land which the peti- 
 tioners desired. 
 
 Their report was made on the eighth day of October, 
 to the effect that the land should be granted, accompa- 
 nied by an order, the passage of which was by them 
 recommended ; and which was in substance, that the 
 Committee on Public Lands should be authorized and 
 empowered to grant to Horace Gray and his associates, 
 the use of such portion of the lands west of Charles 
 street, and also of the lands west of Pleasant street, as 
 they might deem expedient for the purpose of a Public 
 Garden, upon substantially the same conditions as be- 
 forementioned, except that no buildings whatever, in any 
 event, should be erected on any part of the lands west
 
 1850.] CITY DOCUMENT. -No. 18. 27 
 
 of Charles street ; and that no buildings should be 
 erected on the land situate elsewhere, other than green- 
 houses, tool-houses, or other such buildings as might 
 be necessary for properly maintaining a garden of flow- 
 ers, and that these should not exceed fourteen feet in 
 height above the level of Pleasant street ; that no fence 
 should be erected on that street or Charles street, other 
 than such as might be approved of by the mayor and 
 aldermen ; and that the order should be void unless the 
 garden should be commenced within twelve months 
 from its passage, and notice thereof filed as abovemen- 
 tioned. 
 
 The whole report embracing the proposed order was 
 recommitted to the same Committee with instructions 
 to consult the city solicitor, as to the right of the City 
 Council to authorize the erection of any building, on 
 any part of the land proposed to be granted. 
 
 On the twelfth day of November, the Committee 
 made their further report, in which they stated that 
 they had consulted the city solicitor on the subject, 
 and that litigation would probably follow, upon the 
 erection of buildings on the land; the City Solicitor 
 having expressed his opinion that the right to erect 
 buildings thereon was of a doubtful character, under the 
 compact between the City and the Boston and Roxbury 
 Mill Corporation ; meaning that in the event of the 
 erection of buildings by the former or its assigns " west 
 of Charles street," (for his opinion was requested in 
 reference to the erection of buildings there only, and 
 not west of Pleasant street,) then that the Corporation 
 would have a corresponding right to erect buildings on 
 their own land on the other side of the channel ; not 
 by any means that the City or its assigns were absolute- 
 ly debarred from building. They therefore proposed 
 that the Committee on Public Lands, should be au-
 
 28 PUBLIC GARDEN. [July, 
 
 thorized and empowered to grant to the petitioners, the 
 use of such portion of the lands west of Charles 
 street, as they might deem expedient, for the purpose 
 of a Public Garden, upon substantially the same con- 
 ditions as mentioned in their last report. 
 
 The Committee on Public Lands having been em- 
 powered pursuant to this order, reported in the month 
 of the succeeding January, that they had assigned to 
 Mr. Gray and his associates twenty acres and a half of 
 land, which together with a small piece reserved by 
 the City, was bounded as follows, viz ; " beginning at 
 the point of intersection formed by the westerly side of 
 Charles street, and the southerly side of the Mill Dam 
 or Western avenue, and thence running southerly by the 
 westerly side of said Charles street about thirteen hun- 
 dred and ten feet to the northerly side of a forty feet street, 
 leading to the city hay scales near the empty basin ; 
 thence running westerly by the northerly side of said 
 forty feet street about eight hundred and thirty feet, to 
 the line established between the City of Boston, and 
 the Boston Water Power Company ; thence turning and 
 running northerly by said last mentioned line, about 
 thirteen hundred and ten feet to the said Western Ave- 
 nue ; thence running easterly by the southerly side of 
 said Western Avenue six hundred and fifty feet to the 
 point of beginning ; containing about twenty-two and one 
 quarter acres ; reserving, however, from the above de- 
 scribed premises about one acre and three quarters of 
 an acre, for the use and occupation of said City of Bos- 
 ton ; which is bounded and described as follows, viz : 
 beginning at a point in the northerly side of said forty 
 feet street leading to said hay scales, at the distance of 
 two hundred and fifty feet from the westerly side of 
 said Charles street ; thence running by a circular line 
 drawn with a radius of one hundred feet to a point
 
 1850.] CITY DOCUMENT No. 18. 29 
 
 seventy-five feet northerly from said forty feet street, 
 and at right angles from a point in the northerly side of 
 said street, which is three hundred and nine feet and 
 six inches from the westerly side pf said Charles street ; 
 thence running by another circular line drawn with a 
 radius of one hundred feet to a point one hundred and 
 fifty feet northerly from said forty feet street, and at 
 right angles to a point in the northerly side of said 
 forty feet street, which is three hundred and sixty-nine 
 feet distant from the westerly side of said Charles 
 street; thence running westerly parallel to said forty 
 feet street, and at the distance of one hundred and fifty 
 feet therefrom, about four hundred and forty-five feet 
 to the line established between said City of Boston, and 
 the Boston Water Power Company; thence running 
 southerly by said last mentioned line, one hundred and 
 fifty feet to said forty feet street ; thence running east- 
 erly by the northerly side of said forty feet street, about 
 five hundred and eighty feet to the said point, which is 
 two hundred fifty feet west from Charles street, con- 
 forming to a plan examined by Alexander Wadsworth, 
 dated December 26, 1838." 
 
 This land composed nearly the whole of the present 
 Public Garden. And on the twenty-sixth day of Octo- 
 ber in the year eighteen hundred and forty-six, an order 
 was passed by the City Council that the residue of the 
 land, between the then Public Garden, and the contin- 
 uation of Boylston street, should be granted to these pro- 
 prietors, or trustees, on the same terms and conditions, 
 as the former grant, with a reservation for the use of 
 the City, of such part thereof as was occupied by, or 
 appurtenant to its buildings. 
 
 By an act of the Legislature passed on the first day 
 of February eighteen hundred and thirty-nine, Horace 
 Gray, George Darracott, Charles P. Curtis and their
 
 30 PUBLIC GARDEN. [July, 
 
 associates, and successors, were made a corporation by 
 the name of the Proprietors of the Botanic Garden in 
 Boston, with all the powers, and privileges, and subject 
 to the duties, restrictions, and liabilities mentioned in 
 the forty-fourth chapter of the Revised Statutes, and 
 were empowered to hold real and personal estate to an 
 amount not exceeding fifty thousand dollars. It may 
 be well to observe here that these persons were the 
 original petitioners or some of the original petitioners 
 for the use of this land, 
 
 On the fourteenth day of November, eighteen hun- 
 dred and forty-two, the Committee on Public Lands 
 were instructed to take into consideration, the expe- 
 diency of laying out and disposing of the City's lands, 
 southwest of Charles street, provided the- same could be 
 done to advantage, and for the benefit of the City. 
 
 On the twenty-eighth day they reported that it would 
 not be for the interest of the City to sell'at that time. 
 
 On the twenty-fourth day of April in the next year, 
 the Committee were requested to advertise for sale such 
 land as in their opinion could be profitably sold with- 
 out prejudice to the interest and convenience of the 
 City. 
 
 On the fourth day of the succeeding September a re- 
 monstrance was presented by the Boston and Providence 
 Railroad Corporation, against the sale by the City of 
 an alleged street, on the southerly end of the ropewalk 
 lands. The remonstrants stated that in the year seven- 
 teen hundred and ninety-four, the inhabitants of the 
 Town of Boston, in town meeting legally assembled, re- 
 served a certain lot of land sixty feet wide for a street 
 and public highway, running from Pleasant street to the 
 channel of Charles River, being on the southerly end of 
 these lands, and that from that time, the said piece of land 
 sixty feet wide, had been known, recognized, and used
 
 1850.] CITY DOCUMENT. No. 18. 31 
 
 as a public street and highway, and had never been 
 discontinued, and had been staked and fenced out by 
 the City, and that the abutters on said street had deriv- 
 ed and acquired an indefeasible right and easement in 
 common with all other inhabitants of the City, in said 
 piece of land sixty feet wide to be used perpetually as 
 a street and public highway ; and further setting forth 
 that they owned land contiguous thereto, and that the 
 street was of great value and benefit to them, and that 
 the City had advertised the same for sale, and more- 
 over that they would contest by all legal means, the 
 right of purchasers and others, to incumber or obstruct 
 the same. 
 
 About the same time there was also a remonstrance 
 presented, signed by Josiah Bradlee and others, against 
 the sale of the lands lying on Pleasant street, and the 
 flats reclaimed from Charles River ; which two remon- 
 strances were referred to the last mentioned Committee, 
 who shortly afterwards made their report thereon, ta 
 the effect ; that the land in question was not " in front 
 and west of Charles street," the limit defined in the con- 
 tract between the City and the Roxbury Mill Corporation 
 to which some of the remonstrants had referred, and that 
 even in the event of the erection of buildings by the 
 City " in front and west of Charles street," this Corpo- 
 ration would not be " relieved from all restrictions from 
 building on their flats contiguous to the flats and land be- 
 longing to the City," as these last remonstrants stated, for 
 in " no case could that Corporation build on this side of 
 the channel," and that the land so advertised, in its state 
 at that time, " was unworthy to be named as City prop- 
 erty," being an " unsightly waste, the resort of menageries 
 and public shows, and the receptacle of the dirt and filth 
 of the city ;" that they could not agree as one of the 
 remonstrances had assumed, that that land had always
 
 32 PUBLIC GARDEN. [July, 
 
 . 
 been regarded as " appurtenant to the Common ;" neither 
 
 could they agree that this land and that west of Charles 
 street were " under the same title and none other than 
 that whereby the Common, strictly so called, was held ;" 
 for, that within twenty years before, at the time of, and 
 after the adoption of the City Charter, the fee of that 
 land belonged to private individuals, on which were 
 erected high and commodious hemp stores, and that 
 the circumstance that the Ordinance of 1834 mentions 
 "flats contiguous or appurtenant" to the Common, while 
 the City Charter specifies the Common and Faneuil Hall 
 only as exempt from sale, was decisive of this question 
 in the minds of the Committee. The ordinance pass- 
 ed April 10, 1834, here referred to, provided for the 
 appointment of a Superintendent of and Committee on 
 Public Lands, and the disposition by sale or otherwise 
 by him, under their directions, of all and any of the 
 lands of the City, except the Common and flats contig- 
 uous or appurtenant to the same, and the City Wharf 
 east of Faneuil Hall Market. 
 
 From this ordinance, it is evident that the sale of 
 such flats, (and the Committee so state in their report,) 
 would require the sanction and approval of the City 
 Council in order to be valid, but that the Superinten- 
 dent, under the regulations prescribed by the Land Com- 
 mittee, had full power to sell any land to the City, other 
 than that mentioned in the exception without such 
 sanction and approval. Upon this report an order was 
 passed confirming a sale of a part of these public lands 
 by the Committee, and authorizing them to sell such 
 other parts of the same as they might deem for the 
 public interest. The Committee in conjunction with 
 their report presented an opinion of Mr. Pickering, 
 then City Solicitor, upon the subject of the right of the 
 City to sell the public lands, which had been so adver-
 
 1850.] CITY DOCUMENT. No. 18. 33 
 
 tised. In it he states, " I am of opinion, that the City 
 has a legal right to sell the lands in question, notwith- 
 standing the suggestion now made against such right. 
 It has been suggested, that by an indenture made Feb- 
 ruary 1st, 1827, between the City of Boston and the 
 Boston and Roxbury Mill Corporation, the right to sell 
 is taken away. The indenture referred to contained no 
 prohibition of the right to sell ; but, in respect to the 
 tract of land, which bounds easterly on Charles street, 
 and which is the subject of the covenants in that in- 
 denture, the instrument provides, that neither the above 
 named Corporation, nor their assigns, shall erect any 
 building within said Basin, (the Receiving Basing in 
 front and west of the City's land on Charles street, within 
 the distance of one hundred rods from said street ; unless 
 the City or its assigns shall erect buildings upon their 
 said land in front and west of said Charles street ; and 
 further, that neither the said Corporation nor their as- 
 signs shall, at any time, erect any buildings within said 
 basin, between said street and the channel immediately in 
 front thereof, and west of said street, whether said City 
 shall use its said land for building or not 
 
 The effect of this covenant is not to restrict the City 
 from selling the whole, or any part of the lands on 
 Charles street, but that, if the City or its assigns shall 
 erect buildings on that land, then the Boston and Rox- 
 bury Mill Corporation and their assigns shall have the 
 like right to build on their land opposite to it, and on 
 the west side of the channel, but not within one hun- 
 dred rods, or sixteen hundred and fifty feet of Charles 
 street. 
 
 The latter provision of the above covenant may re- 
 quire a short explanation. It refers to a strip of land 
 lying on the easterly side of the channel, and which
 
 34 PUBLIC GARDEN. [July, 
 
 upon the settling of the boundary line between the City 
 and the Corporation, fell within the bounds of the Cor- 
 poration's lands. 
 
 The effect of these covenants then, is 
 
 1st. That the Corporation agree not to build, in any 
 event, unless the City or its assigns shall first build. 
 
 2d. If the Corporation or its assigns shall in such 
 case build, then the strip of land above described shall 
 not be used by the Corporation, but shall revert to the 
 City. 
 
 As Charles street is understood to terminate (south- 
 erly) at the place where it meets Boylston street, the 
 lands proposed to be sold, do not appear to be compre- 
 hended within the limits of the land, upon which the 
 above indenture would operate. 
 
 That land is referred to, as lying ' in front and west 
 of the City's lands on Charles street ;' and in a subse- 
 quent clause of the indenture, restricting the Corpora- 
 tion as to the erection of buildings on their own land 
 opposite to that of the City, the land of the Corporation 
 west of the City's land is referred to as being ' between 
 said street and the channel immediately in front thereof 
 and west of said street ;' which description of the Cor- 
 poration's land concurs in defining the bounds of the 
 City's land. 
 
 But even if the lands proposed to be sold, could by 
 legal construction be deemed a part of the lands upon 
 which the indenture is to operate, which I do not 
 think is the case, still that instrument does not restrict 
 the right of selling, as I have before observed." 
 
 At or about the same time his opinion was requested 
 by the Common Council upon the question, " whether 
 the City Council have any power under the City Charter 
 to sell any part of the public lands west of Pleasant and 
 south of the continuation of Boylston street."
 
 1850.] CITY DOCUMENT No. 18. 35 
 
 This latter opinion bears date September 27, 1843, 
 and in it he states, that " presuming by the terms in 
 which the question is proposed, it was not intended to 
 inquire whether any express power to make sale of the 
 public lands in question, was given by the Charter, but 
 whether it contained any prohibition applicable to the 
 present case, against the exercise of the general power, 
 which the City Council has to sell any part of the pub- 
 lic lands," he would consider the subject accordingly. 
 
 He continues, " By the provision of the charter, 
 (Section 16,) the City Council has full power to lease or 
 sell any of the public lands or buildings, except Faneuil 
 Hall and the Common. 
 
 As therefore the lands now in question are not in 
 any manner connected with Faneuil Hall, it follows 
 that unless they constitute a part of the Common, the 
 general authority to sell, would extend to them, as well 
 as to any other portion of the public lands. 
 
 The question under consideration, therefore, is in 
 substance, whether the lands proposed to be sold are a 
 part of the Common, within the intent and meaning 
 of the charter ; if they are a part of it, they cannot be 
 sold, if otherwise, they may be. 
 
 I beg leave here to observe, that with respect to a 
 part of these lands, that is the southerly part, I have 
 lately given an opinion* by request of the Committee on 
 Public Lands ; and as that opinion has been submitted 
 to the Common Council and printed for their use, I ask 
 leave on the present occasion to refer to it, so far as 
 concerns that portion of the land in question. 
 
 That the southerly part of the ropewalk lands, (as 
 they have been called,) did not constitute a part of the 
 Common, within the purview of the charter, at the tune 
 
 * The opinion here referred to, was an opinion given in reference to the alleg- 
 ed highway, sixty feet wide, mentioned in the remonstrance of the Boston and 
 Providence Railroad Corporation.
 
 36 PUBLIC GARDEN. [July, 
 
 it was granted, is manifest, from the fact, that the whole 
 of those lands for nearly thirty years before, had not 
 been the property of the City, but of private individ- 
 uals, and so continued for two years after the granting 
 of the charter, when they were re-purchased by the 
 City, of the proprietors." After stating that the sub- 
 ject of the sale of the upland and flats west of Charles 
 street, was submitted to the inhabitants in general 
 meeting, as before remarked, he adverts to the fact that 
 the Common, in one of the questions submitted, was 
 described as lying between Charles, Beacon, Park, Com- 
 mon, and Boylston streets, and was thus known, recog- 
 nized, and understood by the City Government. 
 
 He proceeds, that " It has been suggested, that the 
 lands in question may be considered as a part of the 
 Common, on the ground of their being flats, and as 
 such appurtenant to the upland called the Common, in 
 conformity with the principle of the ancient Colony 
 ordinance respecting rights in flats. The question now 
 presented, however, does not, in my opinion, bring the 
 case within the principle of that ordinance. The flats, 
 undoubtedly, were the property of the City, and were 
 appurtenant to their upland ; but they were not the 
 property of the City, as being appurtenant to the Com- 
 mon as such. The term Common, was the name of a 
 piece of land appropriated to a specific public use ; as, 
 at one time, for a pasture, at another, for a training 
 field, at another for a public walk, &c. ; and a Common, 
 by that description, would not be presumed in, law, to 
 draw after it as an incident, the adjacent flats, particu- 
 larly if those flats were of such a nature as not to admit 
 of their being used and enjoyed for the purposes of a 
 pasture, a training field, a public walk, &c., to which 
 the Common itself was appropriated." Mr. Pickering 
 further state"d, that although some of his remarks in
 
 1850.] CITY DOCUMENT. No. 18. 37 
 
 this opinion, might be considered as having a bearing 
 on the subject of the lands immediately west of the 
 Common, yet his opinion was intended to be confined 
 to the legal question submitted to him, as to the right 
 of the City to sell the lands west of Pleasant street and 
 south of the continuation of Boylston street. 
 
 It is deemed advisable to mention in this connection, 
 that the ropewalk lands (so called,) composed nearly one 
 half of the width, and about two thirds of the length 
 of what is now called the Public Garden, together with 
 a tract of land now known as the easterly part of the 
 continuation of Boylston street, and land lying southerly 
 of that continuation ; and that nearly the whole of 
 those lands south of that continuation, have been sold 
 by the City, and a large portion thereof built upon. 
 Your Committee have also caused to be searched the 
 records of our Courts to ascertain what judicial action, 
 (if any,) has been taken in relation to the ropewalk 
 lands, and the residue of the lands west of the Common, 
 and have found but two cases relating thereto, the pre- 
 cise nature and result of which, it is material should be 
 set forth in this report. 
 
 The first was a bill in equity, filed November 1, 
 1843, in the Supreme Judicial Court for this county, 
 brought by the Boston and Providence Railroad Cor- 
 poration against the City. In it, this Corporation 
 averred the laying out by the City of the sixty feet 
 street or public way, mentioned in their remonstrance ; 
 that they had located the terminus of their road near 
 the same, and the only access to their depot and store- 
 houses for merchandize and passengers was over this 
 street, save a narrow passage, over their land eighteen 
 feet wide and wholly inadequate for that purpose ; and, 
 further, that the City had given public notice that 
 they should make sale on the third day of November
 
 38 PUBLIC GARDEN. [July, 
 
 then next ensuing, of the soil of the said way, laid out 
 into house and other building lots, and should close up 
 the same by permanent fences and other obstructions ; 
 and that the complainants had reason to fear that the pur- 
 chasers of the said lots, if sold, would place substantial 
 and permanent buildings thereon. It concluded with a 
 prayer for an injunction against the City, restraining 
 them " from stopping up, or in any manner obstructing 
 the said way, and from making sales of the soil thereof." 
 It is evident, that this suit was instituted solely for 
 the purpose of preventing the City from selling or ob- 
 structing this alleged way, situated at the southerly 
 part of the ropewalk lands, and was not instituted for 
 the purpose of preventing sales of any other land in 
 that vicinity belonging to the city. This position is 
 further and conclusively established, by the order for a 
 temporary injunction passed by the court on the same 
 day the bill was filed, which was as follows : 
 
 
 " SUPREME JUDICIAL COURT, ) /-. , rr 
 
 Norfolk ss. I Oct Tenn ' 1843 ' 
 
 " It is ordered by the court, that upon filing in the 
 office of the clerk of this court in the county of Suffolk, 
 the Bill of Complaint wherein the Providence Railroad 
 Corporation are complainants, and the City of Boston 
 defendants, and the affidavits which have been read in 
 the same cause, a writ of injunction issue directed to 
 the said city, and their servants and agents, enjoining 
 them from selling any lands lying within the limits of 
 the way described in the said Bill, and from incumber- 
 ing or obstructing the same, until the further order of 
 this court sitting in the county of Suffolk, or of some 
 Justice thereof; and that the defendants have leave to 
 apply at any time to this court sitting in the county of
 
 1850.] CITY DOCUMENT. No. 18. 39 
 
 Suffolk, or to any justice of this court, to dissolve the 
 said injunction. 
 
 The Clerk of the Supreme Judicial Court for the 
 county of Suffolk, will enter the foregoing order. 
 For the Judges, 
 
 L. SHAW, C. J. S. J. C." 
 " Nov. 1, 1843." 
 
 An injunction was issued on this order, on the 
 same day. 
 
 On the fourth day of December, the answer of the 
 City was filed, denying that the same was ever laid out 
 a public way, or street of said City. A replication 
 thereto was duly filed on the thirteenth day. At the 
 March term of the court, 1845, viz: June 23, 1845, 
 the injunction was made perpetual. It may be proper 
 to remark here, that the court were equally divided 
 upon the question whether the temporary injunction 
 should be dissolved, and the burden was on the City to 
 show sufficient cause for such dissolution ; and hence 
 this result. This cause, however, was amicably ad- 
 justed between the litigant parties, at the November 
 term of the court, 1846. 
 
 The other suit was a bill in equity, brought against 
 the City June 17, 1844, in the same court, by Mrs. 
 Ann Lewis, the wife of Joseph W. Lewis, one of the 
 owners of the ropewalk lands, and one of the grantors 
 thereof to the City, to recover her dower in the three 
 ropewalk lots, granted in 1794, viz: lot 1, 2, and 3, 
 and in land at the comer of Carver and Pleasant 
 streets. The City contended that Mr. Lewis, her hus- 
 band, by virtue of the resolve of the Legislature, be- 
 fore referred to, released her dower in these lots, and 
 that it was also released subsequently by the joint 
 deed of herself and her husband. In opposition to
 
 40 PUBLIC GARDEN. [July, 
 
 which she contended that the Legislature had no right 
 to empower her husband to release the same, and fur- 
 ther, that she was of unsound mind at the time her 
 husband's deed, as well as at the time their joint deed 
 was executed. 
 
 The cause was referred to a Master in Chancery to 
 ascertain the value of her equitable dower in the 
 premises, who reported as follows, viz : 
 That the true value of the three ropewalk 
 
 lots, February 21, 1824, was - - $33,500.00 
 The value of the buildings, ... 14,500.00 
 The value of the house and land at the 
 
 corner of Carver and Pleasant streets, - 9,000.00 
 
 
 
 $57,000.00 
 
 Amount of principal and interest then 
 due upon certain mortgages on the 
 premises, ...... 29,201.78 
 
 
 
 Leaving a sum amounting to - $27,798.22 
 
 on which dower was to be computed. 
 
 And that on this last mentioned sum the true value 
 of the complainant's (Mrs. Lewis') equitable right of 
 dower in the premises, with annual interest from Feb- 
 ruary 21, 1824, was the sum of five thousand four hun- 
 dred and five dollars. ($5,405.00.) 
 
 Whereupon on the first day of July, in the year 
 eighteen hundred and forty-five, a final decree was 
 entered by the court in favor of Mrs. Lewis, against the 
 City for the last named sum, and the costs of suit taxed 
 at ninety-five dollars, ($95.00). And it was further 
 ordered by the court in case said amounts were not 
 paid within two days, that execution therefor should 
 issue against said City. 
 
 No execution was ever issued upon this decree ;
 
 1850.] CITY DOCUMENT. No. 18. 41 
 
 but on the first day of February, in the year eighteen 
 hundred and forty-nine Mrs. Lewis instituted an ac- 
 tion at law, returnable to the March term of the same 
 court then next ensuing, for the recovery of these 
 sums ; the time for the issue of an execution without 
 some additional proceedings having expired ; and 
 on the twenty-fourth day of May last, judgment was 
 entered in that action in favor of Mrs. Lewis, for the 
 sum of six thousand six hundred and seventy-eight 
 dollars and seventy-three cents debt or damages, and 
 costs amounting to the sum of twenty-nine dollars and 
 sixty-seven cents, both of which sums have been paid 
 by the City upon an execution issued against it ; sev- 
 eral sums having been paid by it in the meantime, on 
 account of being adjudged by reason of this decree, a 
 trustee of Mrs. Lewis, in sundry suits instituted against 
 her, by different individuals. 
 
 Your Committee have thus, at great length, stated 
 the various proceedings of the town and city in refer- 
 ence to the Public Garden, and have, in giving its early 
 history and title, the latter of which is inseparably con- 
 nected and interwoven with the title of the City to its 
 other public lands, been compelled to allude to their 
 history also ; having deemed a statement so extended, 
 necessary in arriving at a proper knowledge and under- 
 standing of the tenure by which that garden is now 
 held by the City. And although some of the facts 
 stated may apparently seem to have no material bearing 
 upon the subject, yet, upon a close inspection, the 
 utility and necessity of their insertion will be readily 
 perceived. 
 
 Your Committee have also stated all adjudications 
 of our courts which have been made, relating to the 
 subject, and before proceeding to the consideration
 
 42 PUBLIC GARDEN. [July, 
 
 of the relative expediency of the sale or improve- 
 ment of this land, would beg leave briefly to state ; that 
 the original title to it was unquestionably acquired by 
 the town, in the same manner as its title to its other 
 lands, in the early periods of its settlement ; that there 
 is, as your Committee confidently and unqualifiedly 
 believe, no incumbrance upon the title, or restriction 
 upon the right and power of the City to dispose of 
 the land by sale or otherwise, unless the same has 
 originated since the time of the acquisition thereof by 
 the town, of which your Committee have no knowledge, 
 and consequently do not believe j-^ that the town in 
 1794 granted a part of the present Public Garden, 
 together with a large tract of land lying southerly of 
 the present continuation of Boylston street to the rope- 
 walk proprietors, as already mentioned, upon certain 
 conditions ; that they or their assigns were in the pos- 
 session and occupancy of, and owned the ropewalk 
 lands at the time of the granting of the City Charter, 
 and the organization of the town into a city, without 
 question of their right of property therein, and had so oc- 
 cupied, possessed and owned the same for nearly twenty- 
 eight years before, and continued so to occupy, possess 
 and own the same for about two years afterwards ; 
 that it is admitted that at one time the Public Garden, 
 or some part of it, might have come under the denomi- 
 nation of flats, and as such been appurtenant to the 
 upland ; but the Common could not have been presumed 
 in law, to draw after it as incident, the adjacent flats, 
 particularly if those flats were of such a nature, as not 
 to admit of their being used and enjoyed for the pur- 
 pose to which the Common itself was appropriated, as 
 stated in one of Mr. Pickering's opinions ; that the 
 City, in the- year 1824, by good and sufficient deeds 
 of warranty, re-acquired the ropewalk lands ; that
 
 1850.] CITY DOCUMENT No. 18. 43 
 
 a few years afterwards it entered into an indenture 
 with the Boston and Roxbury Mill Corporation, in 
 which the latter covenanted, that neither they nor 
 their assigns should at any time erect any buildings 
 within their basin, (meaning the receiving basin so 
 called,) between Charles street and the channel, imme- 
 diately in front and west of that street in any event ; 
 and further, that they would not erect any building 
 within their basin in front and west of the City's land 
 on that street, within the distance of one hundred rods 
 from that street, unless the City or its assigns should 
 erect buildings upon their land situate on the same ; 
 which covenants may be briefly construed to mean, that 
 in no event should that Corporation or its assigns erect 
 any buildings on this side of the channel, immediately 
 in front and west of Charles street, and in case the City 
 should erect buildings on its land, in front and west of 
 that street, then the Corporation would have a corres- 
 ponding right to build on their own land on the other 
 side of the channel, but not within the distance above 
 mentioned ; and that whenever the Corporation did 
 build within that distance, then all the land in said 
 basin east of a certain line as before mentioned, should 
 revert to the City, and belong to it in fee simple for 
 ever; that in the latter part of the year 1838, or the 
 early part of the year 1839, nearly all the land com- 
 prising the present Public Garden, and the residue 
 sometime afterwards, were permitted by the City to be 
 used by Horace Gray and his associates, for the pur- 
 poses of a Public Garden, with a reservation however 
 of the right on the part of the City to terminate his, 
 and his associates interest therein and use thereof, upon 
 giving nine months notice to that effect; and that, so 
 far as your Committee believe, such permission has not 
 yet been revoked ; that sales have been made by the
 
 44 PUBLIC GARDEN. [July, 
 
 City to various individuals of nearly all the ropewalk 
 lands, south of the continuation of Boylston street, and 
 west of Pleasant street, under the sanction and advice 
 of Mr. Pickering, the former City Solicitor; that the 
 right of the City to sell the Public Garden stands upon 
 the same basis, and is not varied in the slightest man- 
 ner ; and that such right has never been questioned be- 
 fore any judicial tribunal ; that the suit instituted by the 
 Boston and Providence Railroad Corporation has no 
 bearing on the question of such right. It was a suit 
 brought to present the closing up, and sale by the City 
 of an alleged public highway, a right to pass and repass 
 over which, and to use which, the complainant and citi- 
 zens had acquired ; that the injunction issued was to 
 restrain the City from closing up the same on the ground 
 of such right of passage and use ; that the power of 
 the City to dispose of the lands in the vicinity of this 
 highway was not involved in the cause, and was not a 
 question to be decided, and was not decided therein ; 
 but on the contrary the highest judicial tribunal in this 
 Commonwealth, as your Committee believe and confi- 
 dently state, has established the validity of the alienation 
 or sale (for it may be termed the latter as well as the 
 former) of the ropewalk lands by the town, to the pro- 
 prietors in 1794; and if the town had a right then, to 
 aliene and sell the same, in consideration that rope- 
 walks should not be erected by the proprietors on Pearl 
 street, and no circumstances have occurred since, to im- 
 pair or destroy that right, of which your Committee have 
 no knowledge, the City certainly has the same right 
 now, or a stronger right now, to dispose of the same for 
 a pecuniary consideration, after' an intervening posses- 
 sion by these proprietors, or their assigns, adverse to 
 the world for nearly thirty years, and the impartation
 
 I 
 1850.] CITY DOCUMENT. No. 18. 45 
 
 of all their right and title in these lands to the City. 
 A slight review or examination of the main features of 
 the Lewis suit already referred to, will sufficiently estab- 
 lish the ground taken by your Committee. 
 
 The first principle, fact, or element to be proved in 
 that suit to induce or justify the decree made by the 
 court, as your Committee believe, was, the fact that 
 her husband had had an estate in fee to the ropewalk 
 lots, Nos. 1, 2, & 3, during his marriage with her; and 
 he could not have had such an estate, unless the grant 
 or sale by the town, in 1794, to Davis, Richardson & 
 Emmons, the original proprietors of these three lots, 
 and from and through whom he claimed title by sundry 
 conveyances, was valid and binding and inasmuch as 
 such a decree was entered and could not have been en- 
 tered without the existence of this first material ele- 
 ment, the conclusion is irresistible, when we consider 
 that the claim of Mrs. Lewis was violently opposed 
 by the City, and its defence to the suit ably main- 
 tained by its counsel, that her husband had such an 
 estate in these lands ; and the town, being the origi- 
 nal grantor, had a right to, and did grant such an 
 estate ; for, if her husband had not such an estate, she 
 clearly had no right to dower therein. Her right to 
 dower, implied the possession by her husband of an 
 estate in fee during their marriage and his rightful 
 possession in fee implied the right of the town to grant 
 or sell to his grantor in fee. If the town could not 
 make a valid sale, the grantee of the town could not. 
 If the grantee of the town did not own these lands, how 
 could he give a valid title to them to Lewis 1 If, then, 
 the town, in the year 1794, could dispose of these lands 
 in this manner, and they were not a part of the Com-
 
 46 PUBLIC GARDEN. [July, 
 
 mon at the time of the granting of the City Charter, 
 then your Committee have not the least hesitancy in 
 saying, that the City's right to alienate and dispose of 
 the same at this time is unlimited and absolute, and 
 that they did not at the date of the Charter constitute a 
 part of the Common, is beyond question in the minds 
 of your Committee; for by the word Common used 
 therein, could not have been contemplated what is now 
 popularly known as the Common, together with any 
 land situated in that vicinity, which might at any 
 indefinitely remote period be acquired by the City, or 
 any land then owned by private individuals, but the 
 land then owned by the City and recognized and famil- 
 iarly known as the Common, lying between Beacon, 
 Park, Tremont, Boylston, and Charles streets. The 
 twenty-sixth section of the Charter provides, " that 
 the City Council shall have the care and superintend- 
 ence of the public buildings, and the care, custody, and 
 management of all the property of the City, with power to 
 lease or sell the same, except the Common and Faneuil 
 Hall." The Common is here stated to be a part of the 
 property of the City, not the property of private indi- 
 viduals, but unequivocally the property of the City ; 
 and, as a plain and unavoidable conclusion, if a part 
 of the public garden was not at that time, the property 
 of the City, it could not, by any mode of reasoning or 
 semblance of reason, have been considered as a part of 
 the Common, and embraced within the scope of this 
 prohibition. What reason would there have been, for 
 the Legislature at that time to have enjoined upon the 
 City, the non-alienation of the property of private indi- 
 viduals, in and to which it then had no claim or title, 
 had had none for nearly twenty-eight years before, and 
 contemplated having none to say nothing of the recog-
 
 1850.] CITY DOCUMENT No. 18. 47 
 
 nition at that time by the City, of the bounds of the 
 Common being the five streets last referred to. 
 
 This brings your Committee to the consideration of 
 the main subject in your resolution, the expediency of 
 a sale or improvement of this garden, and as the main 
 fact to be considered in deciding this subject, is the 
 financial ability of the City to retain this land, they 
 would beg leave to advert to its present pecuniary 
 condition. 
 
 Its present debt, exclusive of the water 
 
 debt, is - $1,731,938.79 
 
 The water debt is 4,463,205.56 
 
 Loans authorized for finishing public 
 
 buildings at Deer Island, and New 
 
 Jail, 307,000.00 
 
 Estimated cost of conveying the water 
 
 to East Boston, is 500,000.00 
 
 $7,002,144.35 
 
 So that in all probability at the end of the present 
 fiscal year, the City debt including the many incidental 
 expenses which will arise during the residue of the 
 year, notwithstanding the use by the City of all its 
 other available means and resources, will reach the sum 
 of seven millions of dollars. And it may be well to re- 
 mark here, that the citizens have not yet paid one cent 
 of the interest even, on the water debt, and its burden 
 has not yet been felt by them, in the slightest manner. 
 
 It became necessary in the course of the deliberations 
 of your Committee, to enable them to estimate with 
 any degree of accuracy the value and extent of the land 
 composing the Public Garden, to cause it to be sur- 
 veyed and laid out on a plan of streets and lots, which
 
 48 PUBLIC GAEDEN. [July, 
 
 plan they herewith submit, believing that it will mate- 
 rially aid the City Council, in forming their opinion as 
 to the future disposition, or mode of disposition of this 
 property. 
 
 Your Committee would here remark, that the whole 
 garden contains about one million square feet of land, 
 and that for the purpose of arriving at a fair, or an ap- 
 proximation to a fair valuation of it, they have supposed 
 that three streets may be laid out through it, parallel 
 or nearly parallel to Beacon street, and extending from 
 Charles street to the water, and covering about one third 
 of the whole land ; one of these streets to be one hun- 
 dred and seventy-five feet in width, and the remaining 
 two, one hundred feet each in width, and that on the 
 street fronting the Common, between Beacon and Boyls- 
 ton streets, there may be laid out, 
 
 33 building lots, containing 82,400 feet, 
 which if sold at $3 per foot, would 
 amount to $247,200.00 
 
 On Beacon street, 21 building lots, con- 
 taining 59,110 feet, at $3 per foot, - : , 177,330.00 
 
 On the first street south of Beacon, from 
 the Common to the water, 44 building 
 lots, containing 130,423 feet, at $2 
 per foot, - ... 260.846.00 
 
 On the second street south of Beacon, 
 48 building lots containing 148,337 
 feet, at $3 per foot, - - 445,011.00 
 
 On the third street south of Beacon, 53 
 building lots, containig 137,346 feet, 
 at $2 per foot - - 274,692.00 
 
 On Boylston street, 27 building lots, con- 
 taining 59,296 feet, at $2 per foot, - 118,592.00
 
 1850.] CITY DOCUMENT. No. 18. 49 
 
 And on the street fronting the water, be- 
 tween Beacon and Boylston streets, 10 
 building lots, containing 12,928 feet, 
 at $2 per foot, 25,856.00 
 
 Making in all, 236 lots 629,840 feet, 
 
 valued at - $1,549,527.00 
 
 The estimated value of the flats west of 
 
 the Public Garden, containing about 
 
 230,000 feet, at 17 cents per foot, - 39,100.00 
 
 Showing the total value of the Public 
 
 Garden and flats to be - - $1,588,627.00 
 
 If this land is retained by the City it will certainly 
 require some improvement. In its present condition it 
 is far from meriting the name it bears, is seldom re- 
 sorted to by the public, and wholly unworthy to be 
 considered one of the public grounds of the City. If 
 pointed out to the stranger, it is always done with an 
 apology for its uninviting aspect ; and from its prox- 
 imity to our noble Common, even despoils it of some of 
 its grandeur and loveliness. 
 
 Your Committee have therefore caused to be ascer- 
 tained the probable cost of filling up this land, and 
 making it suitable for what it is now styled a Public 
 Garden, and also the expense of keeping it as such. 
 
 The cost of filling up the 34,977 squares 
 
 which it contains, at $2.50 per square, 
 
 would be $87,442.50 
 
 The expense of filling the streets and 
 
 front yards to prepare the land for 
 
 building purposes, 15,724 squares, at 
 
 $2.50 per square would be - $39,310.00
 
 50 PUBLIC GARDEN. [July, 
 
 The value of the land as 
 
 before stated $1,588,627.00 
 
 Less the expense of filling 
 
 streets 39,310.00 
 
 Leaving a balance of $1,549,317.00 
 The annual interest upon 
 
 which, at 6 per cent, is $92,959.02 
 
 236 houses which can be 
 
 built upon this land at 
 
 $7,000.00 each, would 
 
 amount to 1,652,000.00 
 
 Making the sum of $3,201,317.00 
 
 the annual tax on which at 6K mills 
 
 on a dollar, would be - 20,808.56 
 
 Annual interest on the cost of filling up 
 
 the Public Garden, viz. on $87,442.50 5,246.55 
 
 
 Total, $119,014.13 
 
 So that the annual expense of keeping the Public 
 Garden is about one hundred and twenty thousand dol- 
 lars ; its retention not being of the slightest advantage, 
 and the garden itself no ornament to the City. 
 
 Upon the plan it will be perceived, that the largest 
 street is proposed to be ornamented by a park one hun- 
 dred feet in width, running the whole length of the 
 street, and the two others by large spaces of ground on 
 each side, for trees and shrubbery, so that instead of 
 marring the general appearance of this part of the City 
 the plan if executed will much improve it, and enhance its 
 beauty, to say nothing of the pecuniary advantage which 
 will undoubtedly be derived by the City from a sale.
 
 A 000 885 880 5 
 1850.] CITY DOCUMENT. No. 18. 51 
 
 Your Committee concede that the argument used by 
 some, that it should be the policy of the City to keep 
 open as much territory within its limits as possible, has 
 much force, and it would have been well if more atten- 
 tion had been bestowed upon it in former days ; and they 
 would therefore suggest, that if the opening and laying 
 out of new squares or public grounds, at the public ex- 
 pense, should now be deemed advisable, then that those 
 sections of the City which are densely populated, and 
 where the streets are narrow and the air necessarily 
 confined and impure, should be provided with such 
 grounds ; and in the present state of the finances of the 
 City, no way would recommend itself so strongly, as the 
 sale of the present Public Garden, and the use of the 
 proceeds in laying out such grounds, for the benefit of 
 those, less favored than the inhabitants residing in the 
 vicinity of the Common. 
 
 In conclusion your Committee would beg leave to 
 state, that the subject of the disposal of this land has 
 been so often, and so long agitated, that it is exceedingly 
 desirable that it should be definitely and finally settled 
 at this time. It has presented almost yearly a prolific 
 field for controversy and discussion, and has thus far, 
 unfortunately, never been destined to meet with any 
 final and determinate action on the part of the City 
 Government, and has rested, and probably will continue 
 to rest in the same suspense and uncertainty, unless 
 definitively settled by a vote of the people as here- 
 after proposed ; and your Committee would further 
 state, that from a careful examination and consideration 
 of all the foregoing facts, and biased solely by their 
 own convictions of right, they unhesitatingly express 
 their opinion in favor of the expediency of a sale of 
 this land. But being well aware of the great import-
 
 52 PUBLIC GARDEN. [July. 
 
 ance of the subject, and that no City Government 
 should assume the responsibility of a sale, without con- 
 sulting and following the popular will, would suggest 
 the passage of the annexed resolve. 
 
 JOHN P. BIGELOW, Chairman. 
 S. S. PERKINS, 
 BILLINGS BRIGGS, 
 ABEL B. MUNROE, 
 NATHANIEL BREWER, 
 ALBERT T. MINOT, 
 BENJAMIN BEAK 
 
 Resolved, That it is expedient for the Board of Mayor 
 and Aldermen to submit to the voters of the City, at 
 the next municipal election, the question whether the 
 land belonging to the City lying west of Charles street, 
 known as the " Public Garden," shall be sold. 
 
 CITY OF BOSTON. 
 
 In Common Council, July 11, 1850. 
 
 The foregoing Report having been accepted, the reso- 
 lution appended thereto was passed. And thereupon, 
 
 Ordered, That ten thousand copies of said Report 
 and resolution be printed and distributed among the 
 citizens. 
 
 Sent up for concurrence. Read and concurred. 
 
 JOHN P. BIGELOW, Mayor. 
 
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