Page:Harvard Law Review Volume 2.djvu/224

 206 ^^R VARD LA W RE VIE W.

of the water of ponds and lakes in Massachusetts, by littoral proprietors, have never been judicially determined ; but by long and well-established usage they are undoubtedly numerous. Cum- mings V, Barrett, lo Cush. i88. With the growth of the commu- nity, and its progress in the arts, these public reservations, at first set apart with reference to certain special uses only, become capa- ble of many others which are within the design and intent of the original appropriation. The devotion to public use is suffi- ciently broad to include them all, as they arise. . . . Fishing, fowling, boating, bathing, skating or riding upon the ice, taking water for domestic or agricultural purposes or for use in the arts, and the cutting and taking of ice, are lawful and free upon these ponds, to all persons who own lands adjoining them or can obtain access to them without trespass, so far as they do not interfere with the rea- sonable use of the pond by others, or with the public right, unless in cases where the Legislature have otherwise directed."

It will be noted that the so-called ownership by the public of the pond is, so far as the rights are thus set forth, practically an easement to use the pond in a reasonable manner for any of the purposes for which as apond'iX. is serviceable, and that it does not extend beyond the rights which a private individual would in Mas- sachusetts possess in a pond of less than twenty acres owned by him.

In Paine v. Woods, io8 Mass. i6o (1871), a complaint under the mill acts for overflowing, by means of a dam, a tract of land bounded on a "great pond," the law of "great ponds" is likened to that of tide waters, and thereby the ownership of the State in lands underneath the pond is impliedly affirmed.

In Fay v, Salem and Danvers Aqueduct Co., 1 1 1 Mass. 27 (1872), the plaintiff was a littoral proprietor on a "great pond," and sought damages from an aqueduct corporation to which the Legislature had granted the right to draw water from the pond. The act provided for the payment of damages suffered by any one by the taking of the water. The plaintiff complained that, by the with- drawal of the water from the pond, his house was rendered uncom- fortable, and unfit for the purposes for which it was designed. The petition was dismissed. This case is cited by the majority of the court in the recent Watuppa Pond cases as similar to the one at bar. But the explanation of the decision given in Fay v, Salem and Danvers Aqueduct Co., in the dissenting opinion, shows that the