Open main menu

Page:Harvard Law Review Volume 2.djvu/347

This page needs to be proofread.



York and Pennsylvania denying it in respect of great rivers. We cannot see that the knowledge or belief in any such principle influenced acts or transactions here in the colonial and provincial periods. On the contrary, the existence of the ordinance for nearly a century and a half before the Revolution may have excluded from the popular and professional mind, and from the minds of vendors and purchasers, any thought that a miller had title to the waters of a Massachusetts great pond. The very absence to this day, and through one hundred and forty-six volumes of reports, of a decision giving a milUer such a compre- hensive title is in itself significant. The dicta in Potter t/. Howe ^ and Trowbridge v. Brookline^ are also significant. We are im- pressed by the declarations of our own court that "there is no adjudged case in which any right in the great ponds adverse to the public has ever been recognized," "that the devotion of the great ponds to the public use is sufficiently broad to include new public uses as they arise," "that they are not to be appro- priated to the use of any particular person," "that the usage and practice under the ordinance seems to have been consistent with the understanding that great ponds were public property " (West Roxbury v. Stoddard). We find in 1866, chap. 187, the Legislature authorized towns to divert the waters of great ponds, and this without any provision for compensation to affected millers. Cole v, Eastman^ was decided by a unani- mous court, and was right, and now the enjoyment by the public of free public waters in great ponds must be placed in the same grade and in as lofty a rank as herrings. It cannot be said that the Commonwealth ranks alewives so superior to common-law title, but remands the mighty subject of the purity and comfort of its people to a lower plane and to a less parental care. There must be no discrepancy as to these public rights which stand on the same legal footing. Never mind the State's past liberality to the millers. Wood-choppers and tolerated squatters long cut into the national forests ; but shall not Congress, when it pleases, exert its title to give free homesteads to its citizens without paying toll } So Mr. Cole, of Eastham, owned at common law his fishery, till in the fulness of time it became wise that the supreme title of the Commonwealth should be exerted in favor of the public. In fact,

��» 141 Mass. 359. * 144 Mass. 143. • 133 Mass. 65.