Page:Harvard Law Review Volume 2.djvu/229

 THE WATUPPA POND CASES. 211

shall be made for all damages sustained by any person in his property by the taking is held to include damages to mill owners by depriving them of the water, although they would have no right to it as against the Commonwealth or its grantee. Watuppa Reservoir v. Fall River, 134 Mass. 267." The force of that dictum is removed by the fact that in Watuppa Reservoir v. Fall River, 134 Mass. 267, the question under consideration is expressly left open, and by the further fact that Mr. Justice W. Allen was one of the three dissenting judges in the recent Watuppa Pond cases. We submit, therefore, that prior to this decision the cases in Massachusetts and Maine had recognized in the public only such rights in "great ponds *' as any private individual would have in a small pond of which he was the sole littoral proprietor ; in other words, that the right of the public in " great ponds '* was to their use quiL ponds ; they established the full right of the public to use, and hence the right in the Legislature to reg^ate the use of, " great ponds," but not the right to destroy them. There was nothing, therefore, in the earlier cases which should have led the court to the conclusion that the Legislature could authorize a di- version of the water of " gjeat ponds " without payment of com- pensation for the injuries done thereby to riparian owners on the outlet stream. On the other hand, the language of the ordinance itself does not countenance the position of the majority of the court ; the unbroken course of legislative practice was opposed to it ; and the earlier decisions, while not necessarily determining the precise point, had established principles which it is difficult to reconcile with the view now advanced. To lay down, under such circumstances, a doctrine which overturns what had previously been regarded as an established rule of property, thus afifecting most seriously many valuable water privileges, seems like a near approach to judicial legislation, and that, too, of doubtful expedi- ency. It is a wide departure from the spirit which has in the past led the Commonwealth of Massachusetts to foster its manufactur- ing industries by every means in its power, and the decision is to be regretted especially, because it comes at a time when all the restraints imposed by the Constitution and the courts are needed to protect private property from the encroachments of the Legis- lature.

Samuel D, Warren^ yr.

Louis D. Brandeis. Boston.