Page:Harvard Law Review Volume 2.djvu/339

 GREAT PONDS,

321

The fact that there is a current from a higher to a lower level does not make that a river which would otherwise be a lake ; nor does a lake lose its distinctive character because there is a current in it for a certain distance, tending toward a river which forms its out- let. On the other hand, the fact that a river broadens into a pond- like sheet, with a current, does not deprive it of its character as a river."

The New Hampshire court indicates a similar view.^ Below Lake Winnepiseogee is an outlet river, with large spaces called '* bays " along the river. The question arose whether one of these was a river or a lake. The court says, ** It may be none the less river, if it is called * bay ' ; on the other hand, it may be so connected with the river as to form a body of standing water, and not be considered a part of a river. These bodies of water may be lakes of themselves, in which case there are two or more rivers. Or they may be in some instances mere enlargements of a river. In this case there is a current which would indicate that at that place (the bridge) is a river." The case was sent to a jury to ascertain whether, at that place, it is a river or not. The judge in- structed that it depended on the fact whether there was a regular and steady and perceptible current or not. The full court used this expression, " A sheet of water in which there is a current from its head towards its outlet is not, therefore^ a river."

The cases cited from other States in the dissenting opinion do not convince us. They will, of course, be read attentively. Smith V, Rochester ^ does not say a lake is a watercourse. There was no finding whether there was a current or not. It was held, under a water-works act, that said act recognized and provided for damages to outlet millers. This is exactly the case of 134 Mass. 267, and nothing more. In passing, the court says, " The doctrine of ri- parian ownership is inapplicable to the vast fresh-water lakes or inland streams of this country, or the streams forming boundary lines of States." But the court does not say how much vastness, nor whether a " great pond " is vast, nor why a State line thus limits this " condition of realty." Clinton v. Meyers ^ was an issue between two millers. Nobody raised our point. The court only decided questions as to unreasonable use of dam, etc. Howe v, Norman ^ decides that defendant shall not divert a spring which

^ Supra, p. 317, note i.
 * State V, Gilmanton, 9 N. H. 461; s. c. 14 N. H. 471.