GREAT PONDS.
319
shape of a watercourse ; that his title was under the law of " run- ning waters '* only ; and that a plaintiff miller by no means makes out a case against a diverter by merely putting in proof configura- tion from sea to summit, unless other facts show it constitutes an unbroken watercourse from the point of diversion to the mill.
The dissenting opinion does not restate the facts in the Fall River case, and we therefore refer to them. The Watuppa Lake comprised three thousand acres ; its surplus water tumbled down a hill on which stood the mills. They were established under the mill act of the State ; but that is not of importance, for the riparian's title exists, if at all, without any mill act, and the only question is as to its limit up stream. The city water was taken by a pump two or three miles distant from the outlet.
The agreed facts find that there was "no perceptible current whatever." Did, therefore, any watercourse, in point of law, con- tinue clear through the lake, several miles long, or did the water- course in which the plaintiff had a right commence at the point where the water started into motion at the outlet } Was the water a single legal watercourse to the mountain-top, or was it inter- cepted, broken up into several, by objects that were not water- courses }
In Massachusetts this inquiry, in this precise form of a common- law question and irrespective of the ordinance, has not been ad- judged in favor of the miller. Cummings v, Barrett ^ is cited on both sides. The uncertainty therein expressed by Judge Shaw in 1852 was a noteworthy circumstance, as in seeking for an analogy to a great pond, he says, "Perhaps a running stream may form one, and apparently a strong one." But an analogy is not idem. He also says, " Water taken from the body of a pond never could be water flowing from the pond ; " and he calls the claim a " new claim,** — a "new and unsettled right.**
Tudor V, Cambridge Water Works ^ gives us no help. An imprudent demurrer to a bill stuffed with strong averments was overruled, of course. Fay v. Salem Aqueduct Co. ^ is also cited on both sides. We will venture a remark on this case, premising that all now assent to the doctrine that an abutter's right in run- ning water is no mere easement, but a part and condition of his realty. If Spring Pond was part of a watercourse, Mr. Fay had
- 10 Cush. 186. *i Allen, 164. u- » m Mass. 27.
