Page:Harvard Law Review Volume 2.djvu/334

 3i6 HARVARD LAW REVIEW.

GREAT PONDS

^T^HE increasing needs of the public for pure water-supply A have recently called attention to the rights of the State in the Great Ponds of Massachusetts, which were consecrated by far- reaching provision to public uses as long ago as the ordinance of 1641-7, by a devotion sufficiently broad, says Mr. Justice Hoar, "to include all public uses as they arise/' The liberality of the State has, in times past, allowed the fisheries of certain of these ponds, under twenty acres in extent, to be controlled by abutters.^ It has also, by the terms of sundry water-works acts, allowed mill- owners on their outlet streams to be compensated by towns taking such great pond water.^ Such policy has, with the march of events, ended, and it appears to be now the policy of the Com- monwealth to assert fully its ancient rights in great ponds, and to permit its municipalities to take water therefrom without paying mill-owners below, any more than the State itself would be legally bound to pay, — that is, nothing. This form of expression in the recent water-works acts of Fall River (1886), New Bedford, Mai- den, Ayer (1887), Ashburnham, Maynard, etc. (1888), was adopted in order not to preclude any right that the mill-owners might think sustainable in the courts of law. The case of the mill-owners of Fall River has reached a decision.^ A majority of the court decree against them on comprehensive grounds, derived from the operation of the above ordinance in this State, its purposes and uses as long construed, its displacement of ante- cedent common-law views, if such views ever had validity. The minority of the court dissent, and hold that the mill-owners have legal right that the great pond waters shall enter into the outlet stream and come to their mills, and that the Commonwealth can- not enact otherwise without compensation. It is not proposed in this article to examine the views of a majority of the court. Their position did not call for any exhaustive inquiry as to what a watercourse is. To the dissenting opinion, however, it is abso-

1 P S. chap. 91, sects. lo and 23.

« Watuppa Res. Co. v. Fall River, 134 Mass. 267.

s 18 N. £. Rep. 465 (Mass ). For summary of the case see 2 Harv. L. Rev. 291.