Page:Harvard Law Review Volume 2.djvu/225

THE WATUPPA POND CASES. case cannot be relied upon to support the conclusion reached by the majority of the court. Referring to that case, Mr. Justice Knowlton says : "His petition was dismissed on two grounds. One was that such an injury was too remote to be the subject of an assessment of damages under the statute, and the other that he had no private right of property in the pond. It has been held in several of the above-cited cases that the public, as well as the land-owners along a great pond, may make a reasonable use of it for obtaining water, and for fishing, fowling, bathing, boating and skating. In other words, every member of the community who can gain access to it has the same rights in it that riparian proprietors commonly have in similar ponds. It was therefore decided that a land-owner upon it, whose land comes only to the water's edge, has in it no separate right, but only a right as one of the public. That which would otherwise be his private right is held to be merged in his public rights. See Lyon v. Fishmongers' Co., 10 Ch. App. 679. It follows, therefore, that when the Legislature grants those rights to an individual or corporation, it does not deprive him of property. He is presumed to have bought his land knowing that he could acquire no property in the pond, and trusting to the probable pres- ervation of the public rights for his enjoyment of it.

"But these decisions do not touch the question whether the owner of land upon a watercourse below can be deprived of water by diversion at the fountain head. Mr. Justice Gray says, in the opinion in the case which we are considering, that the Legislature 'had full authority to grant the right to an aqueduct corporation to take and conduct the water of the pond for the use of the inhabit- ants of towns in the neighborhood ; making due compensation for any private property taken for this public use.' But the cases I have cited show that depriving a riparian proprietor upon a run- hing stream of the use of water, by diverting it at a pond above, is taking his property, within the meaning of those words in the constitution. This very case, therefore, recognizes the constitu- tional requirement of compensation to those whose water rights are taken in this way." . ..

" In Fay v, Salem and Danvers Aqueduct, ubi supra, it is said of the water that 'the Legislature, and the respondents acting under their authority, had the right to take and draw it off for the public use.' But this was merely a statement of their right in reference to the petitioners, who had no rights in it, and not of a general