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Page:Harvard Law Review Volume 2.djvu/344

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326 H^R VARD LA W RB VIB W.

leaves the lake ? Is not that the point of demarcation of title ? Below that point its destination to the miller has, in point of fact, become assured, sufficiently for the law to treat it as assured, and subject it to the law of running waters. Blackstone thinks water, like a bird, to be of a wild, untamable nature, and that any title to it involves a kind of possession. Perhaps the law has gone far enough when it says that if it gets into my spout or my watercourse it is mine. Suppose a lake has several outlets, of which watercourse would the lake form a part } Suppose in summer the deep lake de- livers no water into any outlet, shall this Commonwealth, with all its great title of 1641, have no right to use the motionless waters i If the court of this State ever has to meet the exact question, whether to adopt as a part of the common law of running waters this broad claim of the millers, it may well hesitate, and say such adoption would be strange and novel, and would not consist in this State with the ancient freedom of great ponds from all private title.

It is conceivable that a brook may originate now or in the future. Probably most lakes antedate their outlets. Select a great pond that has no outlet. The State can drain it, and no abutter can complain ; ^ nor can any stream riparian, for there is no stream. So the ownership is entire and indisputable in the State. Suppose, by topographical changes, extensive gradings for orna- mental grounds, parks, streets, railway-cuts, and embankments, multiplication of street -gutters, alteration in forest-tracks, etc., etc., the watershed increases and the pond rises. Of course the State's title in the increased water is entire. Let it rise still more till it threatens to overflow its lowest bank. Doubtless the State, by dike or drain, could prevent such overflow. But having no present occasion for the water it does nothing, the water overflows, and in a month or two, wearing for itself a channel and banks, runs a beautiful and useful brook through the lower farms to the sea, to the delight and profit of its riparians. Doubtless inter sese the rights of these riparians begin. A few months elapse, and the city of Boston needs relief. Is the State now disabled ? Can it no longer dike, no longer pump water for this half-million of its people without paying for it? Have the rights of the riparian A, below, attached not only to the overflow permitted by the

^Fay V, Salem, 1 1 1 Mass. 27.