Page:Harvard Law Review Volume 2.djvu/228

 210 fi^R VARD LA W RB VIE W.

a ground of damage." That sentence can be naturally and gram- matically confined in its application to any ** private ownership or title " in a town; but, assuming that the court meant its remark to refer as well to " private ownership " in individuals, still the subject-matter of the decision and the whole context show that the " private ownership or title to the water " contemplated by the court was ownership in the water of the pond quA pond^ and not in the water itself. The only question at issue, and the undivided attention of the court was upon it, was the right of the public to fish, fowl, boat, bathe, skate, ride in or " upon these ponds *' ( p. 171 ), or to take water or ic^ from these ponds^ as against any private ownership of any of these uses of the pond ; the right of the public, or of any one else, to interfere with the natural flow by appropriat- ing the water was not in question, and it may be added that such appropriation would be inconsistent with the uses named, because destructive of the pond.

Again, in Fay v, Salem and Danvers Aqueduct Co., 1 1 1 Mass. 27 (1872), Mr. Justice Gray says : " By the law of Massachusetts, great ponds are public property, the use of which for taking water or ice, as well as for fishing, fowling, bathing, boating, or skating, maybe regulated or granted by the Legislature at its discretion." We have shown above that the decision in this case contains nothing to support the contention of the existence of any right in the State to drain the pond without making compensation to the riparian owners on the outlet stream. And we may add that Mr. Justice Gray cites in support of his dictum only " Anc. Chart. 148, 149; Cummings t/. Barrett, 10 Cush. 186; West Roxbury t/. Stoddard, 7 Allen, 158; Paine z/. Woods, 108 Mass. 160, 169; Commonwealth v. Vincent, ib, 441 ; Tudor v, Cambridge Water- Works, I Allen, 164." All of these authorities have been exam- ined above, and in the last of them the suggestion that the Legis- lature might authorize the taking of the water of a " great pond " without the payment of compensation was expressly repudiated.

In Trowbridge v. Brookline, 144 Mass. 139, 143 (1887), where the petitioner recovered for damages to her well resulting from building a sewer, Mr. Justice W. Allen, delivering the unanimous opinion of the court, says : —

'* The decisions in regard to damages occasioned by taking the waters of great ponds are also in point. When the Common- wealth grants a right to take the water, a provision that payment