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Page:Harvard Law Review Volume 2.djvu/221

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THE WATUPPA POND CASES,

203

nance relating to "great ponds" was first announced by Chief Justice Shaw, and since then numerous cases involving the inter- pretation of these clauses of the ordinance have been decided.

In Commonwealth v. Alger, 7 Cush. 53, 68 (185 1), Chief Jus- tice Shaw says : " In analyzing this ordinance, which thus appears as one act, it appears that that part of it which relates to free fish- ing and fowling in all great ponds, and in creeks, coves and rivers where the sea ebbs and flows, was taken word for word from the 'Body of Liberties,* section 16." . . . "The great purpose of the 1 6th article of the * Body of Liberties ' was to declare a great prin- ciple of public right, to abolish the forest laws, the game laws, and the laws designed to secure several and exclusive fisheries, and to make them all free."

In Cummings v, Barrett, 10 Cush. 186, 188 (1852), an action by a riparian owner on the outlet stream against a littoral owner on the pond for diminishing the supply of water by cutting ice, Chief Justice Shaw first indicated, obiter^ what the rights of riparian owners on an outlet stream of a pond might be. " By the Colony Ordinance of 1641, Ancient Charters, 148, 149, all great ponds, which are defined to be ponds of over ten acres, are declared pub- lic ; and, though lying within any town, shall not be appropriated to any particular person or persons. We are not aware that this ancient law has ever been altered. What the rights are of adjacent or riparian owners of land bordering on such ponds, has, we believe, never been the subject of adjudication or discussion. Some rights, we suppose, have always been exercised by such proprietors, such as a reasonable use of the water, for domestic purposes, and for watering cattle. But in the advanced state of agriculture, manufactures, and commerce, and with the increased value of land and all its incidents, there will probably be hereafter increased importance to the question, whether and to what extent such riparian proprietors have a right to the use of the waters, for irrigating land, for steam-engines, for manufactories which require a large consumption of water, and for the supply of their own ice- houses, for delivery to neighbors, and for more distant traffic.

" In a case between the owners of a mill with the privilege of a mill stream, and the riparian owner of land, on a large pond, sup- plying such mill stream, the nearest analogy perhaps, and that is apparently a strong one, is to that of riparian proprietors, on a run- ning stream."