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Page:Harvard Law Review Volume 2.djvu/345

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GREAT PONDS.

327

State, but have they followed up, into, over, and through the lake itself, so as to possess not only the surplus overflow, but so that A may insist that the vast original pond shall remain a sort of elevated table, undrained and unpumf>ed forever, to the end that there shall be an overflow ? Which is the fair thing ? If the pond were a water-soaked swamp, there would be no doubt about it in law. The swamp-owner could stop the overflow at will, by drains or dikes. Ought the absence of tussocks, flags, weeds, bushes, vegetable-mould, etc., etc., to make any difference in title } In point of natural right, has really A acquired anything except those drops which have escaped de facto from the custody of the swamp or pond owner, and submitted themselves to the custody of the channel-banks of the brook } When the State has, for the period referred to, permitted the overflow of some water, has it waived any of its ancient rights except to the exact quantum of water which it has permitted to escape from its custody into another's ? So long as the conductor-pipes of the State House deliver water into an adjacent owner's premises, which he stores in his cistern, the State has lost it ; but shall it not, even after a hundred years, divert those conductors into its own State-House cistern for thirsty office-holders } The law is clear in case of an overflow from any artiflcial reservoir. But it will be said that the great pond supposed is a natural reservoir. What of that } The State's title to the natural reservoir, prior to any overflow, is at least as good as that of the owner of the artificial one. The cultivator of useful fishes in the pond may be satisfied for a time with an im- perfect enclosure, through which some of his fishes escape from his title into A's brook and private fishery ; but shall not the cul- tivator mend and tighten his enclosure when he sees fit > The legal possessor of a furious whale may decide to let him go, and quite a body of law has grown up to settle the rights inter sese of subsequent pursuers and captors, but no wise in derogation of said possessor while he chooses to retain possession by his line and iron. Shall he who picks crumbs that fall from the rich man's table be entitled to insist upon the continuance of the superfluity and the table too } After all, is not the still pond more legally analogous to the watery swamp than to the running river }

It was the community interest in the brook that built up water- course law. A peculiar article was owned by many. Some texts i^ed to call such owners tenants in common. Though the fugi-