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Page:Harvard Law Review Volume 2.djvu/223

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is the owner of such rights as he avers, then the defendants have no authority to take them without suitable compensation ; nor can the Legislature give to the defendants any power to appropriate them without affording a remedy to the plaintiff, by which he can recover the value of his property, which has been thus taken for a public use." Thus the court met the earliest intimation that the State, through its so-called ownership of great ponds, could take their waters to the detriment of private rights, without compensa- tion.

Inhabitants of West Roxbury v, Stoddard et al,^ 7 Allen, 158 (1863), was an action by the town of West Roxbury against the defendants for entering upon Jamaica Pond and carrying away a large quantity of ice which the plaintiffs claimed was theirs by virtue of their ownership of the pond. The plaintiffs maintained that, by the act of May 3, 1636, the territory which includes Jamaica Pond was granted to the town of Roxbury ; that, by this grant and the authority conferred on towns by the acts of 1635 and 1684, the fee of the land on which the pond lies, including the water of the pond, vested in that town ; that subsequently, in 185 1, on a division of the town, the title passed to West Roxbury. The defendants owned land on the borders of the pond, and without permission, and in the face of express prohibition from the town, proceeded to cut and carry away ice as merchandise. The court gave judgment for the defendants, taking the ground that, assum- ing the fee in the land to be in the town of West Roxbury, as claimed, that fact did not prevent the Ordinance of 1641-1647 from applying to the pond, because " the towns were public bodies, organized for public purposes ; and any property granted to them, which had not been conveyed to private persons, they might right- fully, by the law and usage of the colony, be required to devote to such public uses as the legislative authority should, by general laws, designate and determine. Hence great ponds, containing more than ten acres, which were not before the year 1647 appro- priated to private persons, were by the colony ordinance made public, to lie in common for public use," ..." whether at that time included in the territory of a town or not." In delivering this opinion, the court declare, for the first time, the purposes, other than those speciiicdly enumerated in the ancient ordinance, for which the great ponds are to be deemed to be devoted to public use, in the following language : " The uses which may be made