Page:Harvard Law Review Volume 2.djvu/222

In Tudor v. Cambridge Water Works, 1 Allen, 164 (1861), the bill in equity set forth that complainant was the owner of about forty-eight acres of land under Fresh Pond, in Cambridge, containing about one hundred and eighty-three acres; and also of the shore adjoining and of the outlet of the pond and of the land under and on both sides of the same; that he and those under whom he claimed had for more than forty years taken ice from that portion of the surface of the pond now belonging to him, as an article of merchandise, and that the right to take ice is of great value ; that the defendants' act of incorporation gave them no right to take water from the pond to the injury of the plaintiff; that a late statute authorized defendants to take water for the purpose of supplying the inhabitants of Cambridge, provided that they should not at any time draw below low-water mark, and further authorized defendants to take, hold and convey land, water or water rights, under limitations and for purposes therein expressed, provided that before entering upon land or water rights, or taking any water of any persons or corporation, they should file their petition to this court, praying for the appointment of commissioners to assess damages, if any; that such commissioners had not been appointed, nor had defendants filed such petition, but they had entered upon water rights of plaintiff and had taken and drawn off water from his land, and diverted the water from his outlet, by means whereof his right to take ice and his fish rights were injured. To this bill the defendants filed a general demurrer, and their counsel argued that, as there was no averment that water had ever been drawn below low-water mark, the right granted to defendants to take the water to that extent was independent of private rights, because "the Legislature had the right to provide that the defendants might take water from the pond for the purpose specified, without payment of damages. It is a great pond, and by the Colonial Ordinance of 1641 such ponds shall not be appropriated to any particular person. They remain, therefore, the property of the Commonwealth." The court overruled the demurrer on the ground that the bill stated a sufficient case for the interposition of equity to prevent a nuisance, and the demurrer admitting, as it did, the facts stated to be true, the court could not "assume that the defendants have not infringed on the private property and rights of the plaintiff, nor that he had no such title or right as averred in the bill." On the point taken by counsel the court say: "If he [the complainant]