Open main menu

Page:Harvard Law Review Volume 2.djvu/335

This page needs to be proofread.



lutely essential to establish the proposition that a great pond of three thousand acres, or a lake, is a brook, a stream, a river. Until this point is established in a miller's favor, he has no stand- ing and no right to discuss the measure of the public title under the ordinance of 1641-7. Is it so established in the dissenting opinion ? Does the dissenting opinion treat fully this important question as a question of reason and historic law, to say nothing of its possible modifications in Massachusetts?

The opinion cites many authorities to maintain that a right to a stream is sacred, and that not even the State can divert without compensation. No one doubts this. It proceeds to say, in the clean-cut English of Mr. Justice Knowlton, that the ** State has no better right to divert water from the river by drawing it out of the pond, than by drawing it from the river, for the river and pond are parts of a natural water-way ^ through which the water passes from it 9 sources to the sea. Together they constitute a single system and natural feature of the country^ the preservation of whose form and identity is essential to the enjoyment of all the property bordering upon their waters. As against riparian owners below, every reason which forbids the diversion of water from a swiftly flowing stream is equally strong to prevent diversion where the water moves more slowly on its way to its outlet. And this has been distinctly adjudicated in cases of high authority, and, so far as we are aware, without contradiction ; " and, after citing several cases,^ treats our topic no further, but proceeds to grapple with the ordinance of 1641.

We are not quite convinced that the plaintiff is yet entitled to such grapple ; that he has yet made out his prima facie title at common law. The reasoning is hardly so full as such a moment- ous extension of title might call for. The italicized statement is, of course, intended as a legal proposition, for the agreed facts do not contain it, and do contain the fact that in the pond "there is no perceptible current whatever."

The water lawyers hoped for a full discussion here upon the topic whether and when a lake is a watercourse. They have seen

1 Gardner v, Newburgh, 2 Johns. 162; Smith v, Rochester, 92 N. Y. 463; Clinton v, Myers, 46 N. Y. 511; Hebron Gravel Co. v, Harvey, 90 Ind. 192; Dudden v. Guardi- ans of the Poor, i H. & N. 627; Howe v. Norman, 13 R. I. 488; Shaefer v. Marthaler, 34 Minn. 487; West v, Taylor, Ore., April 4, 1887, 13 P. R. 665 ; Cummings v, Barrett, 10 Cush. 186.