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Page:Harvard Law Review Volume 2.djvu/216

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198

HAR YARD LA W RE VIE IV.

only ponds of at least twenty acres are to be deemed " great ponds."^

The doctrine which has received the sanction of the majority of the Supreme Judicial Court of Massachusetts presents a new danger to the mill-owners of a great manufacturing community. In reliance upon the general opinion an<^ the unbroken legislative practice of many years, that the right to the uninterrupted flow of water in a natural stream, whatever its source, is absolute prop- erty, entitled to all the protection afforded by the Constitution, riparian lands and flowage rights have been purchased, and factories, great in extent and number, have been erected upon nearly every stream in Maine and Massachusetts, which is favor- ably situated and capable of furnishing water-power. Now, the mill-owners, who have made their investments in reliance upon a continuous supply of water, learn, for the first time, that when the stream furnishing their power happens to come from or flow through a " great pond," the only hope of protecting their prop- erty lies in a watchful oversight of the Legislature, as it meets from year to year, to prevent legislation which may take away their property. Already the precedent set by the act of 1886 in favor of the city of Fall River has been followed by statutes granting similar rights to several cities and towns.^ Still others are said to have been merely awaiting the decision in the Watuppa Pond cases before making application to the Legislature for like privileges. The importance of the decision is not confined to Massachusetts. The Colony Ordinance of 1641-47 is also a part of the law of Maine, and the reasoning of the majority of the court might well be applied to the navigable waters of other States. It is, we are told, proposed to have the decision reviewed upon writ of error to the Supreme Court of the United States. This fact, taken in connection with the importance of the subject, may justify an examination of the grounds of the decision.

Before entering upon such examination it may be well to recall the following rules of law governing the rights of riparian owners at common law : —

I. The right to the use of a stream of water is incident to the

ist. of 1869, c. 384.

«Aycr, Stats. 1887, c. 152, § 4; Maiden, ib., c. 416, § 5; New Bedford, ib., c. 114, I I; Ashburnham, SUts. 1888, c. 398, § 4; Maynard, ib., c. 407, § 4; Millbury, ib., c. 404, § 4-