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Page:Harvard Law Review Volume 2.djvu/218

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200 ^^^ VAieD LA W RB VIE W.

prietors on the Quequechan, if the North Watuppa Pond had been a pond of less than twenty acres.

The reasoning upon which the majority of the court in the cases under consideration base the right of the State to authorize the diversion of the waters of a "great pond " without making compensation is, in substance, as follows: —

" The colonies and the provinces derived their rights from the king under their several charters. These charters vested in the grantees not only the right of soil, but also large powers of government and the prerogatives of the crown in the seashores, bays, inlets, rivers and other property which were held for the use and benefit of all the subjects.*' Upon the organization of the State government all these rights became vested in the Common- wealth. The State, therefore, " has not only tliQ jus privatum, the ownership of the soil, but also th^ jus publicum and the right to control and regulate the public uses to which the ponds shaH be applied." The Colony Ordinance of 1641-7 defines " great ponds." " Although fishing and fowling are the only rights named in the ordinance, it has always been considered that its object was to set apart and devote the great ponds to public use," and the de- votion to public use is sufficiently broad to include every such use as it arises. The riparian owners upon the outlet stream hold their land subject to the rights in ** great ponds " reserved by the State. The grant of the right to take the water for the use of a city without making compensation is a public use. Consequently riparian owners on the outlet stream have no redress for the taking of the water of the pond.

The minority of the court rest their dissent upon the foU lowing ground : ** The ordinance secures to the Commonwealth, in great ponds, the same kind of ownership in the water that an individual purchaser of the entire area of a small pond could get by a perfect deed or by an original grant from the gov- ernment without restrictions. If this pond had no outlet his title to the water in it would enable him to use it in any way he might choose. The water in such a pond would permanently appertain to the locus, and would belong as entirely to the owner of the place in which it accumulated as the land itself by which it was supported. If his pond happened to be a link in a chain through which water made its course from the mountains to the sea, his ownership of the water would give him only the reason-