Page:Harvard Law Review Volume 2.djvu/343

 GREAT PONDS.

32s

legally entitled to the waters of Michigan and Superior, and to his suit if the Illinois water-way is opened ? Will not the court say to the miller, " We have long told you that you have no right what- ever in surface water. Nor do you have any in still water. Run- ning waters originated your title, and to them it is limited too."

There are in the Mississippi valley long lagoons, bayous, full of water but closed at each end, miles in length and but a few rods in width, most frequently curved like a crescent. Their ends have closed, but the swamp waters keep them full. No one would claim that these are watercourses, or anything but extremely elongated ponds, with uses and values very different from those of unnaviga- ble brooks. In Massachusetts^ there would be no community of interest in the shore-owners. In Minnesota there might be, but even there not the identical community of interest that obtains among riparians on a stream ; and, if we may use such a word, it could not be right to force the lake partners into the partnership of stream partners.

That is to say, given a large lake, it will not be pretended that in Massachusetts its hundreds of shore titles are in any sense loose or otherwise tenancies in common of any reservoir. There is no occasion for a body of law to arise to adjust their correlating rights.

They do not interdepend, certainly not as riparians upon running water do. Therefore no similar body of law has come into exist- ence to regulate lakes. Let us suppose, too, that the large lake has an outlet over which its surplus waters pour, when there are any, into a watercourse. But the lake itself below the bed-rock of the outlet remains forever changeless, perhaps a hundred feet deep. It is not going very far to claim that not only the surplus surface water, but the permanent water, too, should be in law condemned to aid in maintaining the mill-flow, and be regarded as a river } Blackstone says water is a species of land. Is it not logical to say that the changeless bottom water of the lake is legally identical with a mere marsh in which no brook-owner has any right, and that the surplus water from rains, etc., is mere surface water, like surface water anywhere else, on a field or hill-slope, in which, also, no brook-owner has any title till it forms itself into a watercourse with its banks and current ; that is to say, at the point where it

^ III Mass. 37.