Page:Harvard Law Review Volume 2.djvu/346

 328 HAR VARD LA W RB VIE W.

tive water-drops passed on and away, the form and value and power of a brook abided. The interrelating rights to it called for some fair principle to be established as the law of the case. How far shall such principle operate and have scope? Probably no farther than the quasi-community of interest in the owners to adjust their respective mill-powers, elevation of dams, and pre- vent back-water, withholding water, etc., etc. The far-above owner upon the lake shore is not similarly interested in such pos- sible disputes. His disputes with his neighbors on the lake are not the same. There would seem to be no reason why he and his lake neighbors should be included in the body of law necessary for the running-water millers, unless it is a legal reason that millers would make more money if their titles were extended over other people's ponds. So they would, if they could likewise control other people's swamps and hill-sides.

When a question arises in this State whether some principle of the English common law has been adopted here or is adoptable now, an inquiry is made of a somewhat peculiar nature, not by a professor, but by a department of the State government, which does not always exclude reasons of politic wisdom from its deter- mination. First, was the asserted principle known and established prior to our separation from English authority } Second, does it fit appropriately into our system and ways ? If it was not estab- lished at the time of the Revolution there is not much to adopt, for the views of English courts since that time, even upon his- torico-legal questions, do not bind us. Nor are the views of judges of other States of very great importance here, for their local- ities may have their own reasons for "adopting" or rejecting the alleged principle. In the different American tribunals all sorts of reasons, — physical, historic, and otherwise, — usages, unreported practice in inferior courts, professional and popular understandings, etc., etc., bear upon this question of "adoption." The decision might be one way in Pennsylvania and New York, and the other way in Indiana or Oregon. It might specially differ in Massachu- setts, where, in respect of great ponds, for two and a half centuries, rules and policies of a special nature have obtained, not known in the Western States.

Our court may well say, " We do not find in the English books prior to the Revolution any hint of the extension of a miller's title in running waters to still waters. We find the courts of Ney