Page:Harvard Law Review Volume 2.djvu/338

 320 fi^R VARD LAW RE VIE W.

such right, and, in fact, all of this alleged " watercourse " (Spring Pond) that was above low- water mark was on his land. It would be a valuable part and condition of his realty. It was taken away from him, and to his complaint Judge Gray replies thus : " The pond and water belonged not to him, but to the public ; *' "no part of the petitioner's estate has been actually taken.*' This suffices for the present discussion. The opinion could not have been written if the court believed Mr. Fay to be a riparian upon a watercourse. If a watercourse, Mr. Fay's abutting right would be also valuable whether he owned the soil under any of the water or not.^

It seems, also, that the opinion in Hittenger v, Eames ^ could never have been written if the shore owner had the rights of a watercourse riparian. Would the court have said, ** The owners of the shore (of the lake) have no peculiar rights in the waters except by grant of the Legislature " } So, too, of Gage v, Stein- krauss.^ " As owner of the shore he had no title whatever in the water or ice." What singular language to use in respect of an owner on a watercourse ! Stealing water frozen would be no more virtuous than stealing it unfrozen. But it was not a water- course ; it was a great pond.

In the foregoing we discern indications of Massachusetts judicial opinion. The long-continued title in great ponds (now of price- less value) will, irrespective of its own dominant authority, doubt- less influence in this State the question, if it shall ever need to be met by the whole court, as to the point of origin as a watercourse. We have long since settled the title in the land under great ponds by a rule unlike that of certain Western States. It seems likely that the law of running waters will not be extended to waters that do not run, especially when the public peril in so doing is now obvious. Such extension in Massachusetts would be a hypothecation forever of these glorious free public reservoirs, to pay claims of mill-sites and bank-owners. There will be ambiguous cases, of course. A river may widen out to the semblance of a pond. The best text-writer on these topics, Mr. Gould (1883), sums up thus : ** Fresh-water lakes are distinguish- able from rivers chiefly by the fact that they have no current.

1 Gould, sec. 148; Lyon v. Fishmongers Co., I App. Cases, 662. ' 121 Mass. 546.
 * 131 Mass. 222.