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Page:Harvard Law Review Volume 2.djvu/348

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330

HARVARD LA W RBVIBW.

y

this great ordinance was a measure of almost divine forecast, and cannot be ignored in determining the adaptability of an alleged, but obscure, perhaps non-existent, English principle.

We find State statutes authorizing its own commissioners and lessees to cultivate useful fishes in great ponds, with power to occupy portions with enclosures without compensation to millers. Such enclosures may presumably be solid dikes, to retain spawn, to keep out hostile fish, or retain the water itself as against natural depletion by the miller's brook. This may be very inconsistent with a miller's right to hold or let oflf water ; very inconsistent with the stream riparian's right, for it will not do to have the Com- monwealth's useful fishes dying on bare mud.

The difficulty of establishing the riparian's title to the extent claimed will be shown by its inconsistency in this State, not only with the public ownership of great pond waters, but in this matter of the riparian's fishery English citations do not avail here. He holds under Massachusetts, and she allows him no fishery title ex- cept subject to the public, not even in his own brook where his common-law title would be clear. The same great ordinance of 1641 regulated both water and fishery, and that it dominates the otherwise private fishery title has, in this State, been settled.^ The court will not have two opposite doctrines under the same ordi- nance. Mr. Cole owned his fishery at common law. His title to it was clearer than a miller's claim to a great pond. The State ex- erted its ancient rights under the ordinance and gave the fishery to the town of Eastham, by an act which in terms provided for the payment of all damages, and Mr. Cole went to law for his damages. But the court held he could recover nothing against the State or its grantee, the town of Eastham ; that the ancient rights of the State were superior to those of Mr. Cole. And so it is the decided law that a State can give a fishery to a town, which need pay noth- ing to the commonJaw owner of the fishery ; whereas under some of the water-works acts the public has been made to pay for its water to the miller. Shall this absurd discrepancy longer exist }

In declaring what principles of the ancient common law obtain or do not obtain in this Commonwealth {e.g,^ in West Roxbury v, Stoddard^ and many other decisions upon different topics), the

  • Cole V, Eastman, 133 Mass. 65.

« 7 Allen, 158.