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Page:Harvard Law Review Volume 2.djvu/219

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able usufruct of it as it was passing by. He could not consume it, or put it out of visible existence as he might the solid land within his purchase, because such a use of it would be inconsistent with the right of his neighbors to enjoy their real property in its natural state. In this view, in order to describe the quality of his ownership, it is sometimes said that a riparian proprietor has no title to the water itself of a running stream, but only to the usufruct of it. In a sense that is true ; in another sense he has a perfect title to the water, considered as water of a stream ; for the property is real estate naturally moving in a defined course, and he has as good a title as it is possible to have, in view of the nature of the subject to which it relates. Merely as an owner, and apart from the exercise of sovereignty, which has no relation to these cases, the Commonwealth could have no better."

The issue between the majority and the minority of the court thus resolves itself into the single question whether the ownership by the State of the waters of " great ponds " is something different and more extensive than the ownership by a private individual of a small pond.

It will be noted that the majority of the court rest their declaration of these larger rights of the public in " great ponds " not upon any peculiar proprietary interest of the State in the soil under the pond, but upon the sovereign and governmental rights which the State holds as trustee for the public. Obviously the mere owner- ship by a private individual of the soil under a pond or stream pves no right to the appropriation of the waters themselves, and it would hardly be contended that the State would stand in a more favorable position than a private owner, so far as merely its pro- prietary interest in the soil is concerned. No authority could be found for the proposition that the proprietary interest of a State in a piece of land in which it owns the fee is not held subject to the same limitations as that of a private owner — sometimes expressed in the maxim, sic utere tuo ut alienum non ladas. It would hardly be supposed that the State, any more than a private individual, could dig on its land to the injury of adjacent land, or maintain a nuisance thereon. The proprietary interest of the State in water flowing over its land miist be limited, as in the case of a private individual, — to its reasonable use as it passes by ; in other words, so far as the proprietary interest of the State is con-