Page:Harvard Law Review Volume 2.djvu/220

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cerned, no property in the water itself can be predicated. This seems to be admitted by all the members of the court.

If, then, the rights of the State in the waters of a "great pond " are held to be different or more extensive than the absolute grant of a small pond would confer upon a private person, the basis of such exceptional rights must be found in the sovereign powers of the State over its waters, and in Massachusetts we should expect to find such sovereign rights defined either ( i ) by the words of the Colony Ordinance itself, or ( 2 ) in the practical interpretation given to it by universal custom and legislative practice, or ( 3 ) in the legal interpretation of its provisions by the judiciary.

( I. ) The ordinance does not, by its terms, purport to reserve to the State any exceptional rights. It merely secures to the public the right of " free fishing and fowling " in "great ponds," and author- izes them " to pass and repass on foot through any man's propriety for that end, so that they trespass not upon any man's corn or meadow," and provides that no town shall appropriate to any par- ticular person or persons any "great pond." In other words, the ordinance declares that the towns, in parcelling out their real estate, shall retain their great ponds, and, instead of reserving the right to use this property to the privileged few, the ordinance dedicated the ponds to the use of the public generally for the pur- poses named. We fail, therefore, to find in the words of the ordi- nance itself any foundation for the assertion by the State of the right to drain a " great pond " without making compensation to the riparian proprietors on the outlet stream.

( 2. ) There is no general custom, long acquiesced in, upon which such a claim of right can be based ; on the contrary, the universal custom and the unbroken legislative practice in Massa- chusetts had proceeded upon the theory that the Commonwealth did not possess this extraordinary right in great ponds. It is admitted, in the opinion of the majority of the court, that the act of 1886, c. 353, granting to the city of Fall River the power to take the water, introduced a new policy into the legislation of Massachusetts.

( 3. ) The decisions prior to the cases under examination do not establish any exceptional rights in the State. For two hundred and ten years after the enactment of the ordinance no case was decided which undertook to determine what the rights in " great ponds" were. In 1851 the object of the provisions in the ordi-