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Page:Harvard Law Review Volume 2.djvu/341

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west to north-east, and that this had always been so. The jury were told not to find for the plaintiff unless they should find from the evidence that the so-called Lake Headley was not mere surface water, but was and had been a permanent watercourse, such as the court described. The italicized words above favor the miller's view more than any case we have seen ; but it is still apparent that this ** so-called Lake Headley " was an ambiguous thing, the char- acteristics of which we cannot very well learn from the report. It resembled a brook in some respects, and a lake in some. Such doubtful cases must go to a jury, and it did so. But why need it go to a jury at all, if the view of the dissenting opinion in the Fall River case is sound } It goes to a jury because some outflowing lakes are not in fact watercourses. That is, the lake is not a wa- tercourse unless upon its character the law of running water can in fact reach it, and it is not a watercourse merely because it is a link in a "water-way" from summit to sea. The word "link** had better be dropped. It may be a severance, and not a link. In New York the bottom of the Mohawk belongs to the State (like that of a great pond in Massachusetts). The State diverted the water, and the court held, " Riparian mill-owners are not entitled to any damage against the State." ^ In Broad bent v, Ramsbottom ^ defendant owned a pond of six acres, the overflow of which went into the plaintiff's brook. The court held, " Plaintiff's right can- not extend further than the flow into the brook itself and to the water flowing in some defined natural channel. Before it reaches such defined channel the land-owner has the right to appropriate it. He has a right to drain his pond and his marsh also."

In Chasemore v. Richards,^ Wightman, J. : " Such a right as claimed would deprive a man of the right of draining his land '* (or the State of Massachusetts from draining or filling its great ponds). Chelmsford, J., in Roustrom v. Taylor,* says, ** The use which any owner in a running stream may claim is only of the water which fias entered into and become a part of the stream.*'

Thus far the books ; and it really seems that in Massachusetts the alleged title in the outlet riparian has never been established, nor has it in England or elsewhere. Of course those cases where towns have paid damages to millers under the conditions of water-

1 33 NY. 465. «iiExch. 602.

« 7 H. of L. 359. * 1 1 Exch. 367.