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 THE WATUPPA POND CASES,

209

littoral proprietor, and not the nature of the Commonwealth's right in the pond, which prevented a recovery in Fay v. Salem and Dan- vers Aqueduct Co., 1 1 1 Mass. 27. Hence that case does not sup- port the position of the majority of the court in the present Watuppa Pond cases.

The cases which have been examined above are the only ones in Massachusetts prior to these Watuppa Pond cases relating to rights in "great ponds," except Hittinger v. Eames, 12 i Mass. 539 (1877), and Gage v, Steinkrauss, 131 Mass. 222 (1881), which simply reaffirm the doctrine that littoral proprietors on " great ponds '* have no other right to cut ice thereon than any other person who can legally obtain access to the ponds ; Common- wealth't/. Tiffany, 119 Mass. 300 (1876), which affirms the rights of the Legislature to resign (as it did by Stat. 1869, chap. 384) to the littoral proprietors on ponds between ten and twenty acres in extent all privileges previously enjoyed by the public therein ; and Commonwealth v. Vincent, 108 Mass. 441, and Cole v. Inhabi- tants of Eastham, 133 Mass. 65, which declare that the Legislature may, with a view to encouraging the cultivation of useful fishes, lease to individuals the exclusive right of fishing in great ponds for a limited period.

The only cases in Maine relating to rights in "great ponds ** are Barrows v, McDermott, 73 Me. 441 (1882), where the right of the public to fish, and Brastow v, Rockport Ice Co., jy Me. 100 (1885), where the right of the public to cut ice, were affirmed.

We submit, therefore, that at the time of the decision in the last Watuppa Pond suits, there was no case in the books establish- ing in the public any right in " gjeat ponds," other than a private individual would possess in Massachusetts in a pond of less than twenty acres* area There are, it is true, certain dicta in Massa- chusetts cases which might seem to favor the view of the majority ; but, upon more careful examination, they will hardly be regarded as authorities in its favor.

In The Inhabitants of West Roxbury v, Stoddard, 7 Allen, 158, 168 (1863), Mr. Justice Hoar says : "There is no adjudged case in which any right in them [great ponds], adverse to the public, has ever been recognized ; and in the cases in which the water has been taken for the supply of towns and cities under legislative authority, we are not aware that any private ownership or title to the water in any town or city has been asserted and maintained as