190 Mass. 307 | Mass. | 1906
This is. an information' brought by the Attorney General under the R. L. c. 188, to recover an island in Chebacco Pond, in the town of Hamilton, recently entered upon and held by the défendant. The question is whether, as against an intruder, the Commonwealth has a title to this island in a great pond, no part of which has ever been granted or conveyed by the town in which it is situated, or by the Colony, the Province or the Commonwealth, unless it be held that recognition of the town by the Colony, before the adoption of the Body of Liberties of 1641-47, was a grant which "finally transferred the legal title. In this colonial ordinance is this language: “Provided, that no town shall appropriate to any particular person or persons, any great pond, containing more than ten acres of land,!’ etc. Also the following: “And for great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass on foot through any man’s propriety for that end, so they trespass not upon any man’s corn or meadow.” Anc. Chart. 148, 149. All such property then unappropriated was thereby reserved for a public use.
The report of the auditor shows that Chebacco Pond has never been appropriated to any person or persons, but has been held in accordance with this ordinance. It also appears from the report that no grant was ever made-by the Colony to any persons as proprietors, nor to the town, although there was a recognition of the town, with such rights as were ordinarily exercised by towns which had no formal incorporation nor any formal grant of land. There were numerous such towns in existence at the time of the adoption of this colonial ordinance, and there were many great ponds in them. While, so far as we know, there .is no express decision in Massachusetts upon an issue arising between a town and the State, as to whether the legal title to great ponds is in the towns or in the State, there
It may be well to consider what were the relations of towns to the local land when no grant was made, in the early years of the colony. They were undoubtedly authorized, expressly or by implication, to represent all public interests, to a large degree, in local matters, subject to the direction and control of the Colony. They were in possession of the land within their recognized boundaries, with authority to appropriate it to individual
When the colonial ordinance of 1641-47 was adopted, the General Court took away from the towns to which no grants had been made all power to act further in reference to great ponds not appropriated to individuals, and appropriated the ponds to the use of the general public. Under the enactment of the General Court quoted above from Boston v. Richardson, towns, in the absence of a grant, had nothing but a delegated authority which the General Court might at any time terminate. The general government was the natural owner and controller of property held for the public, and as the towns had no absolute title, on the adoption of the ordinance the original title of the Colony remained perfect, with no right in the towns any longer to interfere with it. This we conceive to be the ground on which the . court has proceeded in reaching the conclusions quoted above.
The defendant contends that, even if the pond is owned by ' the State, Loon Island is not included in it. The auditor found “ that Loon Island is insignificant in size, rocky and sterile; that previous to the defendant’s occupation it has never been continuously used or occupied by anybody, and that it is worthless for agriculture or grazing. Fishermen and boating parties from picnic grounds on the shore and elsewhere have landed on the island when and as they pleased, without prohibition from any source, and doubtless gunners have built blinds thereon, behind which they have held tenure according to the patience of their kind.” Whether all islands in great ponds are to be treated as parts of the ponds, under this ordinance, may be a question not free from doubt. Ordinarily a grant of a pond as a piece of real estate would include the entire area within its borders. Islands in rivers, within the boundaries where the line extends to the thread of the stream, are included within grants. Lunt v. Holland, 14 Mass. 149. Ingraham v. Wilkinson, 4 Pick. 268. Deerfield v. Arms, 17 Pick. 41. Hopkins Academy v. Dickinson, 9 Cush. 544. Nichols v. Suncook Manuf. Co. 34 N. H. 345. Kimball v. Schoff, 40 N. H. 190. See People v. Warner, 116 Mich. 228, and Canal Commissioners v. People, 5 Wend. 423, in which latter case Chancellor Walworth says that “Our local law appears to have assigned . . . the beds of the lákes with the islands therein to the public.” In an official answer to an inquiry by the board of harbor and land commissioners, Attorney General Knowlton gave an opinion that the islands in great ponds are the property of the Commonwealth. Attorney General’s Report for 1901, pages 55, 56.
While there are grounds for án argument that the ordinance of 1641-47 had reference only to the waters of the great ponds and the land under them, there is much force in the suggestion that the expressions “ great pond, containing more than ten acres of land,” and “ great ponds lying in common, though within the
But in the present case we need not decide this question, for it is plain that this island is not one that would naturally be separated in ownership from the land under the water and from the water itself. There is nothing in it which ever would have called for an appropriation of it to any other than a public use, and it never has been so appropriated. The title to it has been treated by the town and by everybody as going with the title to the rest of the pond. Without finding it necessary to determine whether there might be an island of such size and shape and character that the town might lawfully appropriate it to a private person after the passage of the ordinance of 1641-47, we are of opinion that the title to this island has never been separated from the title to the pond, and that it belongs to the Commonwealth.
Judgment for the plaintiff.