219 Mass. 322 | Mass. | 1914
Each one of these petitioners claims to hold title under the grant made on May 6, 1635, by the General Court to “John Humfry” of “500 acres of land & a freshe pond, with a little ileland conteyneing aboute two acres.” This grant has been alluded to several times in our reports. Reporter’s note to Commonwealth v. Roxbury, 9 Gray, 451, at page 528. West Roxbury v. Stoddard, 7 Allen, 158, 165. Commonwealth v. Vincent, 108 Mass. 441, 446. Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 554. It is undisputed that the pond thus granted to Humphrey, the name of which is still Humphrey’s Pond, though it is sometimes called Suntaug Lake, is the same pond which has been taken by the respondent and for the taking of whose waters these proceedings are brought. Each of the petitioners has been allowed to recover damages upon the ground that they were respectively owners, not only of the soil under the pond, but of the water contained therein, with the right to use and deal in the same as a commodity, and even, if they should choose to do so, to sell the water as a source of water supply to any water company, town or city, that might have the right to make such a purchase, because, as they contend, the grant to Humphrey vested in him, as private property, both the five hundred acres of land and the pond, including the soil and the waters thereof. The respondent contends that Humphrey acquired no title to the waters of the pond itself, because, in the first place, the language of the grant, properly construed, did not include those waters within its subject matter, and because, secondly, if the pond was included within the property intended to be conveyed, the attempted grant of the pond was inconsistent with the trust for the people upon which it was held under the Colony charter, and was merely void.
The latter contention has been put very strongly in argument; but in our opinion it cannot be sustained. On the natural meaning of the language, it is plain that it was intended to pass the pond as well as the five hundred acres of land. “Ordinarily a grant of a pond as a piece of real estate would include the entire area within its borders.” Attorney General v. Herrick, 190 Mass. 307, 313. Nor is the validity of the grant now an open question. As already stated, it repeatedly has been alluded to in our decisions and its validity always has been as
We feel obliged to say that Humphrey, by the grant made to him in 1635, acquired title to this great pond as private property.
Many other decisions in different jurisdictions bearing more or less directly upon this question have been brought to our attention by the industry of counsel. But we have not found these of much assistance. In Maine and New Hampshire the rule of our Colony ordinance is regarded as a part of the common law originally adopted in those States. Conant v. Jordan, 107 Maine, 227. Concord. Manuf. Co. v. Robertson, 66 N. H. 1. State v. Welch, 66 N. H. 178. It is believed that there is no other jurisdiction in which the first statement of the rule adopted as to private rights of property in inland waters or the land under them has been accompanied by a declaration that the rule established was not to be applied to grants preceding such establishment. But that was the statement of the Colony ordinance of 1641-47: “Unless the freemen of the same town or the general court have otherwise appropriated them.”
This grant then passed to Humphrey both the five hundred acres of land and the pond, with the island therein. But the grant, made to one of the first settlers, does not purport and has not been shown to have been given for any valuable consideration. No money was paid, no services had been or were to be rendered in return for it, as was the case in Berry v. Raddin, 11 Allen, 577. It comes therefore within the principle applicable to such cases, that though the words used are to be given their natural and ordinary meaning, yet where those words are ambiguous or there is doubt as to the scope or extent of the subject matter of the grant, the construction adopted must be the one most favorable to the grantor and most restrictive of the rights passing by the grant. Cleaveland v. Norton, 6 Cush. 380, 383, 384. Commonwealth v. Roxbury, 9 Gray, 451, 492, 493. This grant was merely of the fresh pond and the island therein. No mention was made of the water of the pond or of its tributaries or outlet as part of what was granted. By the common law as
Property in the water of a flowing stream, or in any large pond or lake which has a flowing stream for its outlet, is at best of a precarious nature. Such water is hardly susceptible of absolute ownership or of any other than a usufructuary right, capable of enforcement and enjoyment only while it remains within the domain of its possessor. See the cases collected in 40 Cyc. 552. In this respect such water resembles the unconfined fish which swim therein. Commonwealth v. Follett, 164 Mass. 477, 481. It was the use of the water which was protected in Berry v. Raddin,. 11 Allen, 577, Watuppa Reservoir Co. v. Fall River, 154 Mass. 305, and similar cases. It was the use of the water which was-regulated by the Colony ordinance. West Roxbury v. Stoddard, 7 Allen, 158. Attorney General v. Woods, 108 Mass. 436. Hittinger v. Eames, 121 Mass. 539.
The rights of owners of great ponds to the waters thereof were stated again by this court in Proprietors of Mills on Monatiquot River v. Commonwealth, 164 Mass. 227, 229. There the title to a great pond had become vested in the Commonwealth by a, taking, just as it had in Humphrey by the grant to him; and the questions raised in the case called upon the court to determine what rights in the water had passed to the Commonwealth as a. private owner, as distinguished from the rights which, before the taking, it held in the pond. And the court said: “ Land and rights in land have been taken, and this includes ponds and streams of water within the limits of the land taken, but no right is given to divert running water from the channels in which it naturally flows. The Commonwealth, as owner in fee after the taking, has, we think, the rights which belong to a private owner of land and of ponds and streams on the land. The Commonwealth was the
Another circumstance is of weight in the construction of this grant. Its concluding words were: “Also, it is agreed, that the inhabitants of Saugus & Salem shall have liberty to build stoore howses vpon the said ileland, & to lay in such pvisions as they iudge necessary for their vse in tyme of neede.” Applying the rule of construction already quoted from the Watuppa Reservoir case, 154 Mass. 305, 306, 307, and giving effect to the plain meaning of the words used, this is clearly a provision that the inhabitants of Saugus and Salem, may build storehouses and lay in provisions upon the island according to their judgment in case of need. This stipulation was inserted for the benefit of those inhabitants, and effect must be given to it accordingly. It may be that apprehension of peril from Indians was the immediate occasion for the stipulation; but it is not limited to such a danger. It gives a right to those inhabitants, whenever an exigency
It follows that the petitioners, so far as they have acquired the rights of Humphrey, may maintain their petitions to recover whatever damage may have been done to their estates by the act of the respondent in talcing the pond, but have not the right to have those damages assessed or the value of their respective interests determined on the basis of the availability of the pond as
On the one hand the case is not governed by Fay v. Salem & Danvers Aqueduct Co. 111 Mass. 27, if the petitioners have the rights of Humphrey in the pond; on the other hand, testimony of the value of the water as a source of municipal or other water supply should not have been received and damages on that account should not have been allowed to be given in this case, in which no land had been taken, and the suggested use of the water was one which the petitioners had no power to make or to allow. Such evidence was not competent even in the discretion of the trial judge, as it was said to be in Sargent v. Merrimac, 196 Mass. 171. And see the cases there cited. So in In re Lucas & Chesterfield Gas & Water Board, [1909] 1 K. B. 16, the question was as to the adaptability of the land taken for use as a reservoir; no question as to the value of the water was raised.
Accordingly, in any event a new trial must be ordered.
We are of opinion that Humphrey’s title to the pond as well as to the upland became vested in Saltonstall by the levy under the latter’s execution. This is properly to be inferred from the language of Saltonstall’s deed to Winthrop. Watuppa Reservoir Co. v. Fall River, 154 Mass. 305, 306, 307.
In many of the other deeds through which title is traced to the respective petitioners, the conveyances purport to be of tracts of land bounded by the pond, or by boundaries described as running to the pond, or to some monument on the edge of the pond, and thence along the pond, with no mention sometimes of the pond or the water, and a mention of them sometimes in the habendum only and sometimes in the granting part of the deeds.
But this great pond was not public property. As the five hundred acres granted to Humphrey were laid out, they surrounded the pond; and he became the owner of the surrounding land and the bed of the pond and of certain exclusive rights in the water in the pond, though as to the water his rights were not those of an absolute owner, and were subject to the riparian rights of present or future owners of land upon the outlet stream and to the rights of the inhabitants of Saugus and Salem. But in common language he was the owner of the pond, and between himself and those claiming under him the pond was private property. We are of opinion that the boundaries in deeds given by him or them, unless a different intent is manifested in the deeds themselves, must be construed like boundaries upon other privately owned ponds, so as to pass the title to the pond, i. e., to the bed of the pond with the existing rights in the waters, as far as the centre of the pond if the grantor’s ownership extended so far. That is the reasonable application of the rule laid down in our decisions. It follows exactly the rule stated in Boston v. Richardson, 13 Allen, 146, 154: “Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made part, as a house, a mill, a wharf, or the like, the side of the land or structure referred to as a boundary is the limit of the grant; but when the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as describing a boundary, and
In the case at bar, there was no apparent motive for any of the grantors to retain their title to the bed of the pond and their rights in its waters after parting with their upland. To them the pond became of little or no value when severed from the upland. To their grantees it had a real value, and its ownership might and probably would be highly desirable. There can be no presumption of an intent not to pass the whole title of the grantors to both upland and pond. That the boundaries of the side line sometimes ran to a monument (as a pine tree) standing on the edge of the pond and thence along or by the pond, would not prevent the title from passing to the centre of the pond if the grantor’s ownership extended so far. Pinkerton v. Randolph, 200 Mass. 24, 26, 27. Doubtless, under the circumstances of this case, the question was one of law for the court. Commonwealth v. Roxbury, 9 Gray, 451, 498. Snow v. Orleans, 126 Mass. 453, 456. For this reason, the “finding” of the auditor, that the different deeds in which parcels of the upland were described as bounding “by the pond,” or “on the pond,” or as running “to the pond,” “did not convey and were not intended to convey any part of the pond or its waters,” appears to have been a ruling of law rather than a finding of fact, and to have been erroneous.
But deeds which described the premises conveyed as running “to the edge of the pond,” and as being bounded “on the edge of the pond,” in the absence of any mention of the pond or of rights in its waters, or any other statement showing a wider intent, passed title only to the low water mark of the pond. Lufkin v. Haskell, 3 Pick. 356. Commonwealth v. Alger, 7 Cush.
We do not think it necessary to go through the numerous deeds under which the respective petitioners make their claims. Their interests depending upon those deeds must be determined by the principles which we have stated, and unless some prescriptive rights shall be found to exist, they must stand or fall accordingly.
What we have said is enough to dispose of the most important points that have been argued. Many other questions, in view of our conclusions, are not likely to arise again in the same form, and need not be examined. We speak only of those which seem likely to become material upon a new trial.
The petitioners who have interests in the bed of the pond and in its waters are entitled respectively to recover whatever damages ■ they have sustained by the loss of the privileges in the pond which belonged as private property exclusively to them and the other owners thereof, including any diminution in the value of their estates by the loss, so far as that has been caused by the respondent’s taking, of the right to have the pond in its natural condition abutting upon their estates. The issue was as to the damage which was caused to each owner from the loss of the rights which belonged to him either exclusively or in common with the other owners whose rights came from Humphrey. For the loss of rights or privileges which they shared with the general public, they had no remedy.
The respondent’s taking of the water has not been by any written instrument, but by the act of inserting an intake pipe ten feet below the high water mark of the pond. This was the only taking; and it was a valid one, for it was only in case of a
We discover no error in the way in which the judge at the trial dealt with the question whether any prescriptive right in the pond or its waters had been gained or whether any of the rights existing under the grant to Humphrey had been abandoned. The testimony of Danforth was competent upon these contentions, as to the character and intent of any action taken by the public or by individuals. Enfield v. Woods, 212 Mass. 547, 551. The testimony of the experts as to the value of the pond or its waters was incompetent, as already has been stated. Nor was any evidence as to the value of the pond as a whole admissible. Each petitioner was entitled to recover the damage to his estate, to the land which he owned, according to his interest in the bed of the pond, and his usufructuary rights in its waters.
It is true also that the respondent by its taking did not become the absolute owner of the waters of the pond, or entitled to use them for any other purposes than those stated in the act which authorized the taking, and that all public and private rights not inconsistent with the new and limited right acquired by the respondent remained as before. Rockport v. Webster, 174 Mass. 385, 392.
The Bradford plan, so called, was admissible to show the claims made by the petitioners. It was not competent as independent evidence of the facts which it purported to show, — the property of each petitioner in the bed of the lake. It was rather a chalk than real evidence.
None of the petitions averred that any land or rights in land had been taken by the respondent or sought to recover damages for such taking. No such taking was testified to or claimed to have been made, or lawfully could have been made under the St. of 1881, c. 171, because no description of any land taken
We cannot say that the respondent’s forty-fifth request
The town of Lynnfield acquired its title by a taking for park purposes under the provisions of R. L. c. 28, §2. Under this statute the town could take land covered by water, and rights in the water as well as upland. Under St. 1893, c. 407, § 4, authorizing the metropolitan park commission to take “lands and rights in land,” for “open spaces for exercise and recreation,” a taking by that board of a great pond and streams of water, as well as of the land which included them, was treated as valid. Proprietors of Mills on Monatiquot River v. Commonwealth, 164 Mass. 227. The land taken was described in the instrument of taking as bounded “northerly and easterly by Suntaug Lake, also called Humphrey’s Pond.” That was sufficient. The rights of the inhabitants of Lynnfield depend upon the same considerations as those of the other petitioners.
In each case the exceptions must be sustained, and there must be a new trial.
So ordered.
The ruling asked for in the request referred to was as follows:
“45. Even if the petitioners had any right, title and interest in the land under the pond, or any portion of it, or in the waters of the pond, or any portion thereof, or in the pond itself, there is no sufficient evidence in this case to show what such right, title or interest may be, or where the limits thereof should be drawn, and the extent of such right, title and interest in any event is not in any case as shown upon the plan introduced by the petitioner.”